The NSW Supreme Court will this week consider whether harsh anti-protest laws introduced by the NSW Government last year breach the right to free speech implied in the Australian Constitution. 

Knitting Nannas Dominique Jacobs and Helen Kvelde, through their lawyers at the Environmental Defenders Office, launched a constitutional challenge to s214A of the Crimes Act 1900 in October 2022. 

Ms Jacobs and Kvelde contend the Crimes Act amendment was unconstitutional because it “impermissibly burdened the implied freedom of political communication”, and that to uphold the Australian Constitution, the NSW Government must allow communities to peacefully protest government policy in public spaces. 

The Crimes Act amendment introduced a number of offences relating to major facilities including making it an offence to remain “near” any part of a “major facility” if doing so “causes persons attempting to use the major facility to be redirected”.  

Major facilities include train stations, such as Central, Town Hall and Martin Place, places that historically have been synonymous with peaceful protest.  

The reforms also increased maximum penalties for peaceful protest to two years’ prison and $22,000.  

Ms Jacobs and Ms Kvelde have been at the frontline of Australian climate impacts, experiencing trauma and loss from drought, fire and flood in the last four years alone. 

QUOTES FROM LAUNCH LAST OCTOBER. 

Ms Jacobs said: “Australians like us shouldn’t have to risk imprisonment or bankruptcy to participate in our democracy, and the Government should not be taking away our democratic freedoms.”  

Ms Kvelde said: “There’s a long, proud history of peaceful protests in Australia, and our democratic freedoms are critical in pushing the Government to do the right thing and take climate action seriously.” 

EDO CEO David Morris said: “If successful, this case will aid in the preservation of our democracy. It will see the worst excesses of these new laws struck out. It will provide clarity for all NSW citizens seeking to avail themselves of the democratic freedom to protest.” 

BACKGROUND 

Following highly publicised protests in Sydney earlier this year, the NSW Government ushered through amendments to the Road Amendment (Major Bridges and Tunnels) Regulation 2022 and introduced the Roads and Crimes Legislation Amendment Act 2022 to parliament without public consultation. 

The new laws are so broad that a group of people could face serious criminal charges simply by protesting near a railway station and causing people to be redirected around them. They mean peaceful protesters could be fined up to $22,000 or face up to two years in jail. 

On behalf of on Ms Kvelde and Jacobs, EDO has launched a Constitutional challenge to section 214A of the Crimes Act 1900 that makes it an offence to remain “near” any part of a “major facility” if that conduct “causes persons attempting to use the major facility to be redirected”, on the basis it impermissibly burdens the implied freedom of political communication. 

EDO’s clients will also ask the court to find the definition of “major bridge, tunnel or road” under s 144G of the Roads Act too broad. 

MEDIA COVERAGE OF THE LAUNCH 

Court challenge to NSW protest laws, AAP (Daily Mail), 13-10-22 

‘Integral part of democracy’: climate activists mount court challenge to NSW anti-protest laws, Guardian, 13-10-22  

This case is being conducted with the support of the GRATA FUND  

The Grata Fund supports people and communities to hold powerful government and corporate leaders to account and achieve systemic change through the courts. Grata has provided financial backing to remove the barriers of adverse costs to this important piece of public interest litigation. Learn more.