2022-12-13
Today District Court Judge Timothy Gartelmann has released climate protestor Deanna “Violet” Coco on bail pending an appeal to a 15 month jail sentence which is listed for hearing next year. In light of this, and a number of other cases currently before the courts, The Greens NSW will move to enshrine a right to protest without imprisonment as a key priority of the next Parliament of NSW.
NSW Greens MP and spokesperson for justice, Sue Higginson, said: “Today the Court got it right, Violet should never have been sent to prison, especially while she waits for her sentence appeal. No protester who engages in non-violent direct action, no matter how inconvenient it may be, should ever be sent to prison.
“Violet, all of the other peaceful activists awaiting court hearings, and our democracy need protection from this kind of draconian punishment for exercising essential rights of protest. As soon as the new State Parliament is formed the Greens will move to enshrine a non-violent direct action defence into our sentencing laws. I will work to remove imprisonment as a sentencing option for people who play by the rules of non-violent direct action.
“As a lawyer, I have represented hundreds of protestors who have engaged in acts of civil disobedience across Australia. I have represented people who have locked on to bulldozers in forests, stopped coal and gas mine operations and obstructed trains, traffic and ports. Every person I have ever represented has been a good person who cares about the environment, nature and our collective future.
“Whether you agree with the tactics and methods employed by the people raising the alarm about climate change, they have been playing by the long established rules of non-violent direct action which are woven deeply in the fabric of Australian history.
“Without non-violent direct action the Rocks would have been demolished, equal rights under law would not exist for women, First nations people would be worse off, minimum pay and conditions would have never become a reality and large chunks of the natural environment in our State would have been destroyed.
“It was deeply worrying to hear the Premier say that it was “pleasing” that Violet had been sent to prison and the leader of the opposition say he had no regrets helping the Government to pass these laws. This is the mark of a system that is quickly going in the wrong direction.
“In the new Parliament next year, I will work around the clock to enshrine a non-violent direct action defence into our sentencing laws. I will work to remove imprisonment as a sentencing option for people who play by the rules of non-violent direct action,” Ms Higginson said.
Media Contact: Andrew Bradley p: 0412 500 009 e: andrew.bradley@nsw.greens.org.au
Background:
For an understanding of the District Court of QLD decision in EH v QPS; GS v QPS [2020] QDC 205 which involved Adani Coal mine protestors see the following extracts which the QDC accepted from the English Courts, which involved XR protestors. This is a sophisticated understanding of the law and sentencing in relation to civil disobedience - https://archive.sclqld.org.au/qjudgment/2020/QDC20-205.pdf
[69] In England, it is well established that the fact that acts of deliberate disobedience to the law were committed as part of a peaceful protest is a relevant factor in assessing culpability for the purpose of sentencing in a criminal case: most recently, Cuadrilla Bowland Ltd & Ors v Lawrie & Ors [2020] EWCA Civ 9 at paragraph 87 per Lord Justice Leggatt. He also said at paragraphs 97 and 98:
“Civil disobedience may be defined as a public, non-violent, conscientious act contrary to law, done with the aim of bringing about a change in the law or policies of the government (or possibly, though this is controversial, of private organisations): see e.g. John Rawls, A Theory of Justice (1971) p.364. Where these conditions are met, such acts represent a form of political protest, both in the sense that they are guided by principles of justice or social good and in the sense that they are addressed to other members of the community or those who hold power within it. The public nature of the act in contrast to the actions of other lawbreakers who generally seek to avoid detection is a demonstration of the protestor’s sincerity and willingness to accept the legal consequences of their actions. It is also essential to characterising the act as a form of political communication or address. Eschewing violence and showing some measure of moderation in the level of harm intended again signal that, although the means of protest adopted transgress the law, the protestor is engaged in a form of political action undertaken on moral grounds rather than in mere criminality.
It seems to me that there are at least three reasons for showing greater clemency in response to such acts of civil disobedience than in dealing with other disobedience of the law. First, by adhering to the conditions mentioned, a person who engages in acts of civil disobedience establishes a moral difference between herself and ordinary law-breakers which it is right to take into account in determining what punishment is deserved. Second, by reason of that difference and the fact that such a protestor is generally apart from their protest activity a law-abiding citizen, there is reason to expect that less severe punishment is necessary to deter such a person from further law-breaking. Third, part of the purpose of imposing sanctions, whether for a criminal offence or for intentional breach of an injunction, is to engage in a dialogue with the defendant so that he or she appreciates the reasons why in a democratic society it is the duty of responsible citizens to obey the law and respect the rights of others, even where the law or other people’s lawful activities are contrary to the protestor’s own moral convictions. Such a dialogue is more likely to be effective where authorities (including judicial authorities) show restraint in anticipation that the defendant will respond by desisting from further breaches. This is part of what I believe Lord Burnett CJ meant in the Roberts case at para 34 (quoted above) when he referred to “a bargain or mutual understanding operating in such cases”.”
[70] In R v Roberts [2018] EWCA Crim 2739; [2019] 1 WLR 2577 (‘Roberts’) Lord Burnett of Maldon CJ considered the appropriateness of a custodial sentence for nonviolent protest. He referred with approval to the observations of Lord Hoffmann in R v Jones (Margaret) [2006] UKHL 16; [2007] 1 AC 136, at paragraph 89:
“My Lords, civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account.”
At paragraph 34 in Roberts the Lord Chief Justice said:
“Paragraph 89 [above] echoes the understanding that the conscientious motives of protestors will be taken into account when they are sentenced for their offences but that there is in essence a bargain or mutual understanding operating in such cases. A sense of proportion on the part of the offenders in avoiding excessive damage or inconvenience is matched by a relatively benign approach to sentencing. When sentencing an offender, the value of the right to freedom of expression finds its voice in the approach to sentencing.”