2022-12-20
Tuesday 20 December 2022
Following attacks on the right to protest in jurisdictions around the country, the Greens will bring a national law to Parliament to enshrine the right to protest in Australian law which would then override non-compliant state laws.
The Greens’ proposal is supported by constitutional legal advice confirming that the Federal Parliament has the power to pass right to protest laws based on the external affairs power. The Bill will be drafted in the first half of 2023 in close consultation with legal reformers, activists and the environment and justice movements.
Lines attributable to Greens Senator and Justice Spokesperson David Shoebridge:
“The right to protest is under assault in states and territories across the country with real impacts on democracy and the ability to demand changes to unjust laws and policies.
“The environment and justice movements are increasingly under threat of legal sanctions and arrest for acts of nonviolent resistance to the extractive industries, especially logging and fossil fuels.
“Protesters shouldn’t be met with repression, with police violence or with long prison sentences.
“The right to nonviolent protest is essential in any free society but we see politicians across the country increasingly using their positions of power to crack down on protests that threaten the fossil fuel and logging industries.
“Australian politicians are quick to condemn other nations that criminalise and attack peaceful protests, but under our noses Governments across Australia have been chipping away at this fundamental right.
“I’ve been arrested under these unfair protest laws and I saw the system close up, it’s nothing to do with public safety or national security, it is being used by the rich & powerful to try and avoid accountability.
“We know that these laws are mostly used against young people, and especially First Nations communities, who are resisting damage to land, water and their collective future.
“Young protesters standing up for the right to a liveable planet are being hit with criminal penalties while the owners of corporations that pollute water, destroy land and damage sacred sites face no sanction.
“Our bill is an attempt to rebalance the scales towards justice,” Senator Shoebridge said.
Background
The Federal proposal relies on the external affairs power in section 51(xxix) of the Constitution to implement the International Covenant on Civil and Political rights to which Australia is a signatory. Articles 21 and 22 of the Covenant say that the right to peaceful assembly is essential and can only be restricted in limited circumstances. The defence of the profits of fossil fuel corporations does not represent such a circumstance.
Just some of the measures that have been taken in the past decade to greatly limit the right to protest at a state and territory level are:
· In Queensland the Summary Offences and Other Legislation Amendment Act 2019 (Qld) (‘SOOLA’). SOOLA creates new criminal offences, expands police powers to search and seize and intensifies penalties for assemblies that use ‘dangerous attachment devices’
· In NSW laws were passed in 2016 criminalizing any disruption to fossil fuel projects with penalties of up to 7 years imprisonment. This year further restrictions were passed under which people can be fined up to $22,000 and/or jailed for a maximum of two years for protesting illegally on public roads, rail lines, tunnels, bridges and industrial estates. This 2022 law has been used to prosecute numerous activists this year who have received prison sentences over a year.
· In Tasmania in 2014 the Workplaces (Protection from Protesters) Act 2014 was passed threatening forest protestors with up to 4 years in jail for engaging in protests on land or a business where forestry operations were taking place. Elements of this law were ruled unconstitutional after Bob Brown challenged them in the High Court. Now the state has come back with a differently awful attack on the right to protest with the proposed Police Offences Amendment (Workplace Protection) Act 2022.
· In WA protests can be declared illegal by police if they deem protestors to be trespassing (including staying in a place after being asked to move on), intending to cause harm, or causing a traffic hazard or obstruction. Under these laws protesters can face up to two year jail terms or fines up to $25,000.
· In Victoria protesters attempting to prevent native forest logging now face up to 12 months’ jail or more than $21,000 in fines, and bans from protest areas under laws passed earlier this year by the Andrews Labor government.