Coalition continues to erode the democratic right to protest

Abigail tried again to disallow the Coalition's anti-protest laws. The Greens will not stop fighting the Coalition's draconian and anti-democratic anti-protest laws. 

Abigail said:

That, under section 41 of the Interpretation Act 1987, this House disallows the following words in Part 1 of Schedule 1 of the Crimes Amendment (Major Facilities) Regulation 2022, published on the NSW Legislation website on 5 April 2022:

(a) "Central";

(b) "Martin Place";

(c) "Museum";

(d) "St James"; and

(e) "Town Hall".

There is a disconcerting trend towards authoritarianism underway in New South Wales politics, driven by a Coalition Government whose members see themselves as rulers, not representatives. Regulations made through the hastily rushed through Roads and Crimes Legislation Amendment Bill 2022 made it a crime, punishable by up to two years in jail, to take part in a disruptive protest on main roads, highways, freeways, bridges or tunnels across New South Wales without the permission of the police. The regulations extend to any protests near major train stations like Town Hall and Martin Place. Town Hall station and Martin Place are historic sites of protest and activism in this city, and rallies regularly pass by and temporarily obstruct access to Museum, St James and Central stations.

Protest organisers can only avoid this anti‑protest law if they have the permission of the police. In short, the NSW Police Force—not an organisation known for its love of protests—gets to decide who can protest over what. If there was ever any doubt about the political intent of the bill, it was made clear in the debate in Parliament. The Coalition rejected efforts to exclude peaceful protests from the new law. The Coalition was joined by the Labor Party in rejecting amendments to protect peaceful protests for climate action and for First Nations rights. An email chain, acquired through an order for papers, shows just how little regard the Government has for peaceful protesters in this State. In this email chain, the Attorney‑General asks "Should we put the boot into Labor for trying to sabotage the laws with a so‑called peaceful protests carve‑out?". This was vigorously agreed to. Talking points were then circulated condemning the actions of our Labor colleagues in the Legislative Council for "trying to move an amendment that would have carved out peaceful protests from the law".

That amendment, according to the Attorney‑General, would have "drastically hamstrung" the law. In other words, and despite the Government claiming otherwise, the intent of the legislation was to crack down on peaceful protesters for the supposed crime of peaceful assembly. Government MPs went so far as to describe peaceful climate change protesters as "terrorists" who they intended to put in jail with this law. That language, together with the extraordinary new police powers, should trouble anyone who cares about human rights and political freedoms. When mainstream politicians start describing peaceful protesters as terrorists it begins a process of "othering" that leaves protesters vulnerable to serious human rights abuses at the hands of police and vigilantes. As sure as night follows day, since the law has come into effect the police have been flexing their new‑found legislative muscles, proactively asserting their discretionary power and interfering with the organising and protest activities of unions and climate activists seeking to gather at Town Hall.

The new powers given to police are especially troubling for First Nations activists. Since the law came into effect, protesters have needed explicit police approval to gather at or near Sydney Town Hall. Union organisers for the May Day rally this year faced police opposition citing this law. As recently as 2020, New South Wales police angrily opposed the Black Lives Matter protest and only backed down when the Supreme Court ordered the protest could go ahead. The new law gives no role to the courts, leaving the NSW Police Force as the sole arbiters of who can protest over what. Given so many First Nations protests call out police brutality and the racism of the justice system, asking police for their consent is seriously Orwellian.

I do not know of a single comparable country with a history of democratic politics, civil rights and political dissent where police have been handed the power to veto protests and then arrest the government's political opponents like this. Such laws have a far more comfortable home in authoritarian regimes, which often send in the police to arrest protesters and break up dissent. We are told by the Government that the law is in response to a series of actions by a small group of climate protesters who blocked access to ports and some main roads during busy traffic times. Those protests caused inconvenience, but they were peaceful and modest in size and, in any event, were rapidly dispersed using a raft of existing police powers. For all the heat and light in this debate, the new law does not give the police any new powers to clear roads or railways—mainly because they do not need them. The documents that The Greens obtained under Standing Order 52 make it very clear that the Government knew that.

The Government claims that it is not denying the right to protest, that this law will only be applied in extreme instances. But that is not what is contained in the language of the law. The law is so expansive in its scope that just about every protest action that occurs in this State will potentially be captured. Application of the law is at the arbitrary discretion of the NSW Police Force. Police have already demonstrated their confused, mixed and arbitrary application of this and other protest laws and regulations, and have demonstrated a preference for repression, obstruction and intimidation of certain classes of protesters and activists over others. The discretion under the regulation falls squarely within the hands of the NSW Police Force, meaning that people in New South Wales are now not permitted to protest unless they are protesting in a State‑sanctioned place, on a State‑sanctioned topic, with the prior permission of the State.

The Greens have sought clarity from the Government on how police have been instructed to interpret this legislation, information on how many times it has been invoked since coming into law and guidance on how protests at places like Town Hall fall under the intent of the law. True to form, this Government preferred to shroud the process in secrecy and misplaced faith in judicious police discretion. The Greens, and a host of over 40 leading civil society organisations, rejected the legislation outright as a fundamentally illegitimate attack on our right to political association. So far it has been made clear that these values are not ones strongly held by either of the major parties here in New South Wales.

The disallowance motion seeks to go some small way towards ameliorating the very worst excesses of this draconian assault on our democratic rights by removing Town Hall, Martin Place, Central, Museum and St James stations from the list of major facilities covered by the regulation. If the argument made by the Coalition and Labor during earlier debate, that the law is not designed to hinder regular peaceful protest, was genuine and not merely face‑saving rhetoric, they will now support this extremely minor clarifying amendment. What has happened in New South Wales is a shameful moment in our political history and is a development that should send shivers down the spine of every person in this State. The Government has asked us to take it on faith. If the Government fails to support The Greens' motion to permit peaceful organised protest at historic sites of rally and protest in the Sydney CBD, it will have nailed its anti‑democratic, anti‑civil‑society colours to the mast.

A legal challenge to the constitutionality of the law is already gathering evidence, and The Greens are confident that the law will be found to be unconstitutional. In the meantime, the very least that the major parties could do is to recognise in some small part the horrific overreach of this law and support The Greens' move to protect the rights of concerned citizens seeking to freely gather on the steps of Town Hall or the Martin Place forecourt. The right to peaceful assembly has been under assault in this State and across this country for many years now. It is a right that must be vigorously defended and constantly reaffirmed. The next chapter in this shameful history will unfold today. The ramifications of this vote could either mark the turning of the tide or reaffirm our inexorable slide towards authoritarianism. The Greens' position is clear. The power, unfortunately, now rests on the votes and consciences of the major parties.

 

The Labor Party and the Coalition unsurprisingly did not support Abigail's disallowance motion. The Greens are the only political party fighting for the right to protest, and we will continue to do so at every turn possible. 

 

Ms ABIGAIL BOYD (18:06): In reply: I thank the Hon. Scott Farlow and the Hon. John Graham for their comments. It is really frustrating and hard not to find it in some ways amusing that this Government is so reluctant to listen to the people, that its policies are so bad, that people are so unhappy with what it is doing and that it cannot bear to have people in the streets telling everybody about it. Instead of listening to the valid concerns shared by people around the globe and by the majority of people in this State and Australia that we need to act far more urgently and do far better than we are doing right now, the Government's response is to send in the police. It is an extreme response.

For the Hon. Scott Farlow to say that The Greens want to shut down the city, that we want to do all these things, is extraordinarily paranoid. I suggest to him that if the Government has that level of paranoia about people rioting in the streets against it, it might want to listen to the people and to its moderate members. Instead of taking such a hard, draconian line and dragging itself even further to the right, it should take a long hard look at itself and adopt better policies, start listening to the people and stop fearing peaceful protestors. This Government sent police out to hide in bushes where activists were getting together to plan a peaceful protest, and then cried foul when the protestors were not unreasonably surprised to find police in the bushes. This is not the way to deal with dissent in a modern democracy. If the Government hates the idea of people getting to work late, why does it keep cancelling the trains to make a political point? For heaven's sake, I got stuck in traffic on my way to work because there was a rock on the road, and the other day I got stuck in traffic because there was a tree across the road.

A bunch of events caused by the growing climate crisis have occurred—not least of all floods—that are delaying people on their way to work every single day. But Government members do not seem to want to take any kind of extreme action to solve that. Instead, they are only concerned about these very rare circumstances where a protester might cause a slight inconvenience. It does not ring true. It does not convince anybody of their reasoning for keeping such a firm grip on these protest laws. It is just extraordinary.

I get the line that the Hon. John Graham and the Labor Party are trying to walk, but these laws are already problematic. They are already having a chilling effect. At the May Day protests, very experienced union organisers came into contact with police and faced conflict over the police trying to exercise these laws in ways that we have been told they were not intended. Those experienced campaigners were able to navigate that with the police, but people from a number of organisations who are not as experienced have found it much, much harder. The police have been able to exercise a considerable amount of power over how those protests occur.

Not only is there a chilling effect on our democracy; it also takes away from the culture of our city. This city is for the people. Previously, people have viewed the steps of Town Hall and Martin Place as their place to be—their place to sit and talk to passers-by about their issues without it being a problem. Now, suddenly, we have a city that is no longer our own. That cannot be underestimated. It is unfortunate that this disallowance motion will not pass today. I will try again. The Government may well find that inconvenient, but that is how bad these laws are. For so long as we have the most draconian anti-protest laws in the country and amongst comparable jurisdictions overseas, The Greens will continue to fight very hard against them.

 

You can read the full transcript in Hansard here. 

 

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