NSW … March of the state … Regulatory paralysis of the right to protest … Law n’ Order … Roads, bridges, tunnels, smelters, steelworks, ports, coal-fired power stations – all out of bounds … Perrottet and pals take on the activists … Max Shanahan reporting 

After promising to “throw the book” at protestors who blocked roads and railways last month, his government has passed anti-protest legislation post haste, radically expanding obstacles to freedom of expression, while providing for heavy penalties for protestors that “seriously disrupt” main roads or “major facilities”.

The Roads and Crimes Legislation Amendment Act breezed through both houses of parliament after a carveout exempting industrial action from the harsh restrictions secured the support of the Labor Party – keen to avoid the wrath of the brewing tabloid campaign which precipitated the urgent lawmaking. 

Deftly playing at once to the free speech, law n’ order, and “working families” crowds, Perrotet said that his government “respects free speech”, but “don’t do it at the expense of people trying to get their kids to school”.

The legislation makes two changes. Firstly, amendments to section 144G of the Roads Act make it an offence, punishable by a $22,000 fine and/or two years imprisonment, to “enter, remain on, climb, jump from or otherwise trespass on a major road” if the conduct causes damage to the road, or “seriously disrupts” road users. 

Previously, s.144G applied only to major bridges and tunnels. The addition of major roads radically expands the section’s application. 

“Major roads” receive their definition in the Schedule of Classified Roads and Unclassified Regional Roads. Under this designation, the NIMBYs of leafy Barcom Avenue, Darlinghust (Main Road 625) could face two years porridge for parading against pub opening hours, while the nonnas of James St, Leichhardt (Main Road 652) could be locked away for protesting panettone prices. 

The minister can designate main roads by regulation, giving the government free rein to determine where protest, which used to be a basic civil right, is and is not permitted. 

Secondly, the Act creates a fresh offence under s.214A of the Crimes Act, providing for a $20k fine and/or two years prison for causing damage, serious disruption or obstruction to a “major facility”. Industrial action and protests outside Parliament House and MPs offices are exempt. 

This is where we come to devils and details. 

Major facilities are defined as railways stations, ports, or other infrastructure facilities. In regulation, the purpose of the legislation becomes clear. 

Alongside the obvious “infrastructure facilities” such as airports and freight terminals, conspicuously included are NSW’s five coal-fired power stations, the Port Kembla steelworks, and the Tomago aluminium smelter. 

The inclusion of the state’s biggest polluters as prohibited places of protest makes it plainly obvious that the legislation is peculiarly directed at halting actions by environmental activists. 

Indeed, activists – juicy targets for the tabloid media and a conservative government – can expect more restrictions, with the Coalition vowing to prescribe additional prohibited facilities. 

Acting premier, the appropriately named Paul Toole, said: 

“Illegal protesting has no place in our state and this new legislation demonstrates that we are committed to cracking down on this selfish, economic vandalism.”

Opposition to the legislation came largely from the Greens, with Abigail Boyd MP criticising the government for being “drunk on power”. 

“The major parties are so captured by the interests of their big business mates that they are willing to trample on some of the most fundamental political rights of the people of NSW.

Nobody likes to be criticised, but that doesn’t mean you get to imprison those who speak out against you.”

An open letter signed by 39 civil society organisations described the laws as “incompatible with the democratic right to protest and our fundamental civil liberties … Any crackdown on our capacity to exercise [civil liberties] is a serious threat to democracy.”

Nonetheless, it is difficult to see dissent over the protest laws sticking – Extinction Rebellion types don’t have many friends these days and, for many large-scale protests that generally seek and receive prior police approval, little will materially change. 

After two years, the amendments will be subject to review to “determine whether the policy objectives of the Part remain valid and whether the terms of the Part remain appropriate for securing those objectives”. 

It remains to be seen whether protest crackdowns will still be politically fruitful in two years time. 

It is likewise unlikely that the judiciary will come to the rescue of civil liberties in NSW. Some noise has been made about parallels with Brown v Tasmania, where a similar Tasmanian law was struck down for effectively burdening the implied freedom of political communication. 

That law, however, prohibited protest that hindered or obstructed business activity generally. The High Court, by a 6:1 majority, found that while protecting business operations from protestors was a legitimate object, the broad and ill-defined legislation was “grossly disproportionate” to the stated purpose of protecting businesses.

Given the more targeted nature of the NSW legislation – referable to specific, though infinitely expandable, “main roads” and “infrastructure facilities” which go to transportation, power sources and supply chains – it is unlikely to face the same indeterminacy problems as the failed Tasmanian laws. 

Some commentators have lamented the absence of a charter of rights in allowing restrictions on the right to protest to proceed. Yet, even in states with human rights legislation, courts have not granted an unlimited right to protest. 

In Attorney-General (Qld) v Sri & Ors [2020], the Supreme Court of Queensland granted an injunction to prevent a planned sit-in for refugee rights on the Story Bridge – finding that in the circumstances, the broader population’s right to freedom of movement outweighed the rights of the protestors. 

If NSW had such a charter, it would be unlikely to come to the rescue of protestors blocking the Spit Bridge or access to Port Botany. 

Ultimately, these laws are an unfortunate overreaction to a fairly isolated problem – the instruments are open to misuse and manipulation, with the sacrifice of protest rights to political expediency.