A series of harsh state-based laws cracking down on climate activists could be overridden by a federal “right to protest” bill being pushed by the Greens.
After the jailing of climate activist Deanna “Violet” Coco in New South Wales this month, the party says the commonwealth has the power to overturn the series of state laws passed in recent years that experts say curtailed the right to protest in Australia.
After obtaining legal advice from Prof George Williams, a constitutional law expert at the University of NSW, Greens senator David Shoebridge said he plans to introduce a bill into parliament that would “rebalance the scales towards justice” by enshrining the right to peaceful assembly into law.
“The right to nonviolent protest is essential in any free society, but we see politicians across the country increasingly using their positions of power to crack down on protests that threaten the fossil fuel and logging industries,” he said.
“Australian politicians are quick to condemn other nations that criminalise and attack peaceful protests, but under our noses governments across Australia have been chipping away at this fundamental right.”
Coco was jailed after a protest on Sydney’s Harbour Bridge this year in which she parked a truck and stood holding a lit flare.
Her 15-month prison sentence, which is currently subject to an appeal, placed a new spotlight on a suite of laws imposing harsh penalties on protesters across Australia.
In NSW, the government this year passed laws introducing a possible two-year jail term for protests that disturb major roads, bridges and ports. The bill was rushed through parliament in April with the support of the Labor opposition.
While Coco was last week released on bail ahead her March appeal, the Guardian has previously revealed that at least a dozen other climate activists face possible jail time under the same laws.
In some cases, court documents show protesters – seen at a June march that caused disruption in Sydney’s CBD – were identified on social media before being charged by police.
While the NSW laws are subject to a supreme court challenge by the Environmental Defenders Office, they are among a series of state-based laws passed in recent years that have cracked down on climate protesters.
In Victoria, forestry activists will be subject to up to $21,000 in fines and 12 months in prison for protesting near logging areas, while in Queensland people found possessing devices used in disruptive protests can face two years in jail under laws passed in 2018.
But the Greens say the commonwealth has the power to override these state-based laws by legislating a federal right to protest bill.
Advice provided by Williams and seen by the Guardian states that Australia has the power to introduce laws conforming with international treaties and conventions under the external affairs power in the constitution.
It was the same provision used in the case that saw the Franklin River Dam blocked by the high court in 1983, as well as federal laws that overrode Tasmania’s ban on gay sex.
“Basically, the commonwealth has the power to implement conventions and the constitution says where there is a conflict with the states, they are overridden,” Williams said.
The EDO’s case against the NSW government is set to be heard in the state’s supreme court in May. It centres around two women, 57-year-old preschool teacher Dominique Jacobs from Gloucester in the Hunter Valley and 71-year-old psychologist Helen Kvelde, who blocked a major road into Port Botany with two trucks during a protest in March.
Williams said he could “see why” the EDO was running the case, which will rest on whether the court decides the laws unreasonably impinge on the implied right to freedom of political communication.
“There has been some success with like challenges but in the end these things always depend on the detail … but it’s a difficult road,” he said.
Shoebridge said federal intervention was necessary because “the right to protest is under assault in states and territories across the country”.
“The environment and justice movements are increasingly under threat of legal sanctions and arrest for acts of nonviolent resistance to the extractive industries, especially logging and fossil fuels,” he said.
