Criminal Offence Against Protesting is Partially Unconstitutional, NSW Supreme Court finds

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By Paul Gregoire and Ugur Nedim

The NSW antiprotest regime has partially fallen over in the face of a NSW Supreme Court challenge that was raised in October 2022, after the Perrottet government, with the unquestioning support of the Labor opposition, passed laws that effectively wiped out unapproved disruptive protests.

The legal challenge was brought by two members of renowned of protest group the Knitting Nannas, Helen Kvelde and Dominique Jacobs, who were represented by the Environmental Defenders Office, as they claimed the laws were unconstitutional, which it was found was the case in part.

The laws were rushed through both houses of NSW parliament, taking effect on 1 April 2022, less than 30 hours after the amendments were introduced, amidst the Coalition and 2GB having stirred up a public furore around ongoing disruptive actions at Port Botany and Sydney’s Spit Bridge.

The Roads and Crimes Legislation Amendment Bill 2022 broadened preexisting section 144G of the Roads Act 1993 (NSW) to criminalise the disruption of major bridges, tunnels or roads, whilst it created section 214A of the Crimes Act 1900 (NSW) to make such behaviour relating to major facilities illegal.

In raising their challenge, the pair of Knitting Nannas claimed that the laws pertaining to major facilities were unconstitutional as they infringed upon the implied right to freedom, and in hearing their argument, Supreme Court justice Michael Walton found their claim was partially made out.

The NSW antiprotest regime

The Kvelde-Jacobs challenge revolved around section 214A of the Crimes Act, which, following the passage of the Amendment, criminalised certain persons who entered, remained nearby, climbed upon, jumped from or otherwise trespassed on or blocked entry to any part of a major facility.

As the law stood, these persons were found to break it if their behaviour caused damage to a major facility or seriously disrupted or obstructed persons trying to use it, caused the major facility, at least in part, to close down or it involved a person attempting to use the facility being redirected.

This was the section it was claimed was unconstitutional, as it was hampering the right to political expression on the part of all NSW civilians. And since the Amendment did pass, this offence and the section 144G crime carry the draconian penalties of 2 years prison time and/or a $22,000 fine.

The Amendment also expanded the offence in section 144G of the Roads Act which prior to the reform had merely criminalised obstructive behaviour in regard to the Sydney Harbour Bridge, so that now extends to “any other major bridge, tunnel or road”. And this change went unchallenged.

It was also claimed that changes to clause 48A of the Road Regulations 2018 (NSW), which outline that the 144G offence involves main roads, highways, freeways, tollways, or a bridge or tunnel relating to the aforementioned, and bridges and tunnels in Sydney, Newcastle or Wollongong.

Overly burdensome

Knitting Nannas Kvelde and Jacobs sought declarations that both section 214A and clause 48A were invalid. Their position was that the former impinged upon the implied right to political communication, while the latter was beyond the regulation-making powers within the Roads Act.

The pair brought the challenge as they’ve long engaged in actions that have been disruptive when raising environmental and climate causes. And since they plan on participating in such protests again, they have an interest in knowing whether they’ll be observing the law in doing so.

“The implied freedom is essential to the maintenance of the system of representative and responsible government for which the Commonwealth Constitution provides,” outlined Justice Walton, who further found that environmental protests do constitute this form of communication.

His Honour ruled that the parts of section 214A of the Crimes Act pertaining to the partial closure of a facility, specifically subsection 214A(1)(c) causing closure or part closure and 214A(1)(d) causing a person attempting to use the facility to be redirected, “impermissibly infringe” on the implied right.

In terms of the redirecting clause, Jacobs raised the point that the Knitting Nannas had been involved in protesting nearby Martin Place Railway Station, and that in doing so, they partially blocked the entrance, causing people to walk around the action, which the law had since forbidden.

This criminalisation of the part obstruction to a major facility was found to unduly impinge on the right to political expression, and it was further determined that the behaviour dealt with in 214A(1)(d) was already covered in 214A(1)(b), which rules out seriously disrupting or obstructing.

As for 214A(1)(c) this prohibition that includes activities that merely cause the partial closure of a major facility was again found to be unconstitutional, as part closure is “a mere inconvenience” and therefore, this is too harsh a burden. The behaviour in 214A(1)(c) is again caught by 214A(1)(b).

The second half of subsection 214(1), that being (1)(c) and (1)(d), were then found to overly impinge on political communication as they criminalised actions causing inconvenience and not serious damage or disruption, while the earlier provisions of the subsection already cover these actions.

The regulations

But Justice Walton did not find that clause 48A of the Road Regulation is beyond the regulation-making power in section 264 of the Roads Act, which empowers the Governor of NSW to prescribe a range of functions relating to roads, including regulations involving their “control and management”.

The major bridges, roads and tunnels identified as relating to section 144G in regulation 48A have been prescribed by the Regulation, as per the stipulation of the Roads Act, and it has nothing to do with the powers the minister has in sections of the Act to make declarations about types of roads.

The challenge to the Regulation, his Honour found, had failed, as the power to prescribe remains in the hands of the Governor, as the provisions of clause 48A do not result in that power being extended to the minister.

Orders of the day

“The Court has concluded that section 214A of the Crimes Act does effectively burden the implied freedom in its terms, operation, and effect. The law is, therefore, constitutionally invalid unless justified,” Justice Walton said in concluding his final findings. And he added clause 48A is invalid.

“For the reasons given in this judgment, I do not consider that partial disapplication would lead to a result which contradicts or alters any policy of the statute,” his Honour continued.

“The provision does not evince an intention to have either a full or complete operation or none at all. The provision can be reduced validly by the process of partial disapplication.”

And on 13 December, his Honour ordered that both 214A(1)(c) and 214A(1)(d) are invalid, and therefore, should be scrubbed from the books.

However, as the NSW Supreme Court justice has emphasised, this does not mean that the application of the NSW antiprotest regime has been altered in any way that contradicts how the law was intended to apply on the ground.

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