Climate activists have been “intimidated” and “frightened” from protesting by sweeping new laws that impose jail terms for demonstrations that disrupt major roads or public facilities, the New South Wales supreme court has heard.
Simply gathering near a train station in the city could see protesters jailed, environmental campaigners have told the court, so broad are the new laws’ powers.
“The impact of these laws have been to intimidate me,” the environmental activist and member of the Knitting Nannas, Helen Kvelde, told the court in an affidavit, part of a constitutional legal challenge to the laws.
“I am so intimidated at the thought of arrest and going to prison. I want to be tougher and braver and to participate in protest actions without fear, but instead I am not.”
The new laws, amendments to the Crimes Act passed by the NSW parliament last April, impose jail terms of up to two years, and fines of $22,000, for protesters who cause “damage or disruption” to major roads or major public facilities.
The legislation empowers government ministers to designate any road or public facility as a “major road” or “major infrastructure” by regulation. Disruption can include people “being redirected” from a major facility, such as a train station.
The environmental activist Deanna “Violet” Coco was the first person to face jail under the new laws.
Coco was initially convicted and sentenced to 15 months in prison for a protest on the Sydney Harbour Bridge in 2022. However, her conviction was quashed on appeal after it emerged police lied to the court about her protest, alleging her action had blocked an ambulance, a fact police later conceded was untrue.
Two members of the Knitting Nannas environmental advocacy group, Kvelde and Dominique Jacobs, supported by the NSW Environmental Defenders Office, have challenged the constitutionality of the new laws in the supreme court.
The case argues the new laws are unconstitutional because they infringe on protesters’ freedom of political expression.
“The explicit purpose of the law is to impose a burden on political communication, because it is perceived … a particular form of protest … should be prohibited and subject to severe penalties,” Stephen Free SC, acting for the protesters, told the court.
Free argued a political protest held at Sydney’s town hall – a commonplace occurrence – could fall foul of the new law, with all of its participants facing imprisonment, because the demonstration could be deemed to be near to, or affecting, major facilities, such as a train station or significant road.
In an affidavit read in court, Kvelde said she had regularly participated in democratic protests since the 1960s, when she marched against the Vietnam war. But she said NSW’s new laws had cowed her from attending recent climate protests.
“I am intimidated at the thought of arrest and going to prison.
Jacobs told the court she had refused to attend several recent protests because she feared being arrested and imprisoned.
“I have a family, the idea of two years in prison really does frighten me: the new laws have made me more apprehensive about protests.”
Both Kvelde and Jacobs have previously been arrested for protesting in NSW, over a March 2022 protest at Port Botany. That protest was the catalyst for the state government introducing the new anti-protest laws they are challenging.
However, the state of NSW is arguing the two climate protesters do not have standing to challenge the new laws because they have not faced charges under the new legislation, section 214A of the Crimes Act.
Michael Sexton SC, the solicitor general for NSW, told the court the legislation carried a “legitimate purpose” in wanting to deter conduct that deleteriously impacted upon major roads and public facilities, and the right of others to use them.
Sexton argued the burden on the implied freedom of political communication in this case was “almost zero”.
But Free, for the protesters, told the court the new laws were introduced for the express purpose of “deterring people from participating in protest actions”.
In his second reading speech before parliament, read into court on Thursday, the then attorney general Mark Speakman, said the bill, “in no way seeks to impose a general prohibition on protests”.
“The government supports the rights of all individuals to participate in lawful protest. Freedom of assembly and speech have long been recognised by Australian courts as important rights that are integral to a democratic system of government; however, the right to protest must be weighed against the right of other members of the public to move freely and not be obstructed in public places.
“There are plenty of other ways for individuals to express their strongly held views, and the Government will not stand by as the few seek to disrupt and dispossess the rights of many.”
Justice Michael Walton has reserved his decision.
