How Far Would You Go For A Cause You Care About?
THE STORY
Peak hour traffic this morning in Brisbane CBD was worse than usual, with a group of about 30 Anti-Adani protestors causing traffic chaos. The plan was simple: block the road for 10 minutes, before getting out of the road for 3 minutes to let traffic through, before returning to block the road. They did this repeatedly throughout the entire morning traffic. The group, ‘Extinction Rebellion’ were drawing attention to environmental issues, standing in the path of multiple lanes of traffic, holding up banners and signs. Climate change protests have become more regular recently, with demonstrators last month supergluing themselves to the road in Brisbane. Last week similar protests took place in Sydney, Brisbane and Melbourne, shutting down CBD traffic during the afternoon commute.
In a statement leading up to the planned protest, the group said “This will cause congestion throughout the city, and we recognise some people may be late to work; we are deeply sorry to those affected, but we do this because the Australian Government inaction of the climate crisis will affect Australian’s much more”. This comes at a time when the final step towards the approval of the controversial Adani coalmine in Queensland has been taken.
Reportedly, the group said, “respectful nonviolent civil disobedience has been shown to be the most effective form of demanding change”. They even offered frustrated drivers’ vegan biscuits, who were beeping their horns and yelling abuse. “We cause disruption to society in order to allow our population to consider the climate emergency and what they will do about it, as this will affect us all and we must act now” the group further said.
Two of the protestors are due to appear in Court today over the action, for what offences specifically, is unknown.
WHAT IS THE POSITION IN NSW?
The point is made by Tom Gotsis in his Briefing Paper to Parliament that, whilst “Queensland provides an express legislative right to peaceful assembly and Victoria and the ACT provide for a right to peaceful assembly under their human rights charters” … “the legal basis of the right to protest in NSW is the common law right to peaceful assembly, which can be traced back to the Magna Carta” (‘Great Charter’ which enshrined in our legal history the fundamental principle that no one in society is above the law: not the King nor his subjects, not the government nor the governed). “The right is further protected by the Australian Constitution under the implied freedom of political communication.”
This defining feature of liberal democracy, however, has suffered some controversy in recent years. Protests have been conducted, in particular against the mining industry due to the impact on environmental issues and lack of a response to climate change, and these have been responded to by the State Government with more laws to deter action such as climbing or “locking on” to mining equipment and freight trains. There is debate about what constitutes lawful and unlawful protest activity.
THE LAW
There are many offences directly related to protests, these include the following:
Arrest without warrant for breaching the peace
Although breaching the peace is not specifically a criminal offence, the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’) allows police to arrest or detain a person to prevent a breach of the peace occurring. Section 4(2) of LEPRA specifies that “nothing in this Act affects the powers conferred by the common law on police officers to deal with breaches of the peace”.
Section 99 of LEPRA also provides police with broad powers to arrest without a warrant.
Resist Arrest
Section 546C of the Crimes Act 1900 (NSW) makes it an offence for any person to resist or hinder a police officer in the execution of their duty, or to incite any other person to do the same.
The offence carries a maximum penalty of 12 months’ imprisonment and/or a fine of $1100.
In Gotsis’ Report, the broad powers under Part 6A of LEPRA are discussed. These “powers were a direct response to the Cronulla Riots” and give police powers to disperse groups, establish roadblocks and search vehicles. It is stated that the use of such powers in relation to peaceful protests was specifically excluded, with only the intention of preventing or defusing large-scale public disorder. However, Part 6A “contains no express limitation on the scope of the powers it provides police other than that they apply to prevent or control a “large-scale public disorder”. Public disorder is defined in section 87A to mean a “riot or other civil disturbance that gives rise to a serious risk to public safety.”
To read up on the offences of resisting arrest or hindering a police investigation, have a look at our dedicated page here.
DISTINCTION BETWEEN PEACEFUL PROTEST OR ASSEMBLY AND ‘RIOT’
A riot exists where 12 or more persons who are present together use or threaten unlawful violence for a common purpose. The collective conduct would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.
To read more about the offence of ‘riot’ check out the following link.
Obstruction – section 6 of the Summary Offences Act 1988 (NSW)
This provision makes it “an offence for a person, without reasonable excuse, to wilfully prevent in any manner the free passage of a person, vehicle or vessel in a public place.”
The maximum penalty is a fine of $440.
Clause 236(1) of the Road Rules 2014 (NSW) makes it an offence to cause a traffic hazard:
“A pedestrian must not cause a traffic hazard by moving into the path of a driver.” Subsection (2) provides “a pedestrian must not unreasonably obstruct the path of any driver or another pedestrian.” The maximum penalty for such an offence is a fine of $2,200, much higher than the offence of obstruction.
These are just some of the offences that could be relevant to peaceful protests, for more on this, check out the Gotsis’ Report here.
If you have tried to make a difference and protested, but are now facing criminal penalties, please contact National Criminal Lawyers® immediately to ensure you get the best representation possible.