Climate change protesters claim another win against government protest crackdowns.
Helen Kvelde and Dominique Jacobs, two members of the Sydney Branch of ‘Knitting Nannas’ climate change protest organisations, have succeeded in having some of the state government’s protest legislation struck down for violating the implied freedom of political communication.
Last year, the New South Wales government passed the Roads and Crimes Legislation Amendment Act 2022 (NSW) to amend the Crimes Act 1900 (NSW), inserting the new Section 214A, criminalising protest activities outside ‘major facilities.’
Under the Act, major facilities included transport hubs and facilities, plus infrastructure facilities that “provid[e] water, sewerage, energy, manufacturing, distribution or other services.”
The four kinds of activity criminalised by sub-section (1) were (a) causing damage, (b) “seriously disrupt[ing]” access to, (c) causing the closure of, or (d) causing the redirection of those attempting to use the major facilities.
The maximum penalties are a fine of up to 200 penalty units, each valued at $110, and/or 2 years behind bars.
The implied freedom of political communication is a constitutional right, implied into the Australian Constitution, that protects the ability of Australians to engage in conversations and activities regarding politics and government. It has been treated as an intrinsic part of democracy in Australia, as it allows the public to keep the government accountable.
In Kvelde v New South Wales [2023], the two women argued that this New South Wales legislation disproportionality infringed on the implied freedom of political communication by obstructing their right to protest.
Here, Kvelde and Jacobs relied on Brown v Victoria (2017), a High Court ruling that had struck down Tasmanian anti-protest legislation that disproportionately punished environmental protesters. Justice Walton of the Supreme Court agreed, in part, with their argument.
In McCloy v New South Wales (2015), the High Court laid out a three-stage test for determining if there is a breach of the implied freedom. This proportionality test is consistent with the doctrine that Australia does not recognise the existence of absolute rights. Check out Common(wealth) Knowledge #26 for more on this test.
The first step is proving that the law does infringe on the implied freedom. Justice Walton relied on the characterisation of the implied freedom in Brown by Chief Justice Kiefel and Justices Bell and Keane as ‘freedom of expression’ to conclude that the effect of the Act was an infringement on the implied freedom, by criminalising protests.
The second question is determining if the legislation has a legitimate, lawful purpose that “is compatible with the system of representative government provided for by the Constitution.”
Justice Walton agreed that the purpose of preventing major damage or disruption, which would have serious consequences for the local economy and general community. However, His Honour noted that “it does not extend to the criminalisation of conduct merely causing inconvenience to particular individuals who, for example, were redirected by protesters.”
The third step is the proportionality test, consisting of three questions: suitability, necessity, and balance.
Justice Walton concluded that the law was suitable and capable of achieving the purpose he had outlined above. It was capable of preventing serious disruption and partial closure, such as by preventing access to a railway station, which would also affect the broader community if it meant that trains were delayed.
However, it failed the question of necessity. Necessity requires considering if there is “an obvious and compelling alternative” that would achieve the purpose while also lessening the burden on the implied freedom.
Importantly, the two women pointed out that the Knitting Nannas consisted of elderly protesters, so many of their protests were held near transport hubs because of the ease of access for their members. If they were unable to protest at those locations, it would seriously affect their ability to carry out any protests, meaning that this law was an even greater infringement on their right to protest.
Justice Walton accepted the alternative put forward by the two women that tort law, specifically trespass and nuisance, would be sufficient for achieving the purposes of the protest law while being a lesser infringement on the implied freedom that criminalising that activity.
Trespass law would allow the property owners to take civil action against the protesters, while public nuisance law is consistent with a narrow purpose. To bring a public nuisance lawsuit, a party must be able to prove that they were more significantly affected than other people. This would prevent ordinary users of the facilities, such as those who were redirected because their bus was delayed, from bringing lawsuits.
His Honour struck down Section 214A(1)(d), which dealt with redirecting those seeking to access the facility. He also partially struck down paragraph (c), allowing for partial closures of the facilities, but not a complete closure.
This would ensure that causing damage and serious disruption would still be criminal offences, with Justice Walton accepting that, on the balance, the infringement on the implied freedom outweighed the need for those laws.
As a final observation, this case illustrates an increasing tension over the approach to the implied freedom of political communication.
There is unanimous agreement that the implied freedom focuses on ‘electoral accountability. Yet, the understanding of the implied freedom when it was first accepted by the High Court often saw it as a freedom of expression, albeit one limited to political and governmental matters. For example, ‘freedom of expression’ dominated the approach of Chief Justice Mason in Nationwide News Pty Ltd v Willis.
The joint judgment of Chief Justice Kiefel and Justices Bell and Keane in Brown also took this approach, which Justice Walton adopted here, quoting “the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth.”
However, In Brown, Justice Edelman rejected a ‘freedom of speech’ approach, arguing that the implied freedom cannot be used to override something that is already “independently unlawful,” such as criminal trespass.
The dominant approach to the implied freedom in McCloy and the Unions NSW cases, explored in Common(wealth) Knowledge #38, was understood to be an ‘equality of opportunity’ to engage in political processes.
Although Justice Walton referred to a single McCloy/Brown approach, the disagreement over freedom of expression vs equality of opportunity is an ongoing one. The New South Wales government is considering appealing this judgment, and if it makes its way to the High Court, this conflict may be definitively resolved.
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Sources:
Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43.
Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12.
Kvelde v New South Wales [2023] NSWSC 1560.
McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 34.
Nationwide News Pty Ltd v Willis (1992) 177 CLR 1; [1992] HCA 46.
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