In 2000, Patrick Coleman, a law and politics student at James Cook University, was protesting by distributing leaflets in Townsville, accusing the police of corruption.
Among other things, the pamphlets invited the police to “kiss my arse you slimy lying bastards”. He also publicly insulted Constable Brendan Power, who had asked for one of the fliers.
Coleman was convicted of using insulting words under the Vagrants, Gaming and Other Offences Act and, ultimately, when his appeal got to the High Court, one of the main issues was whether the act burdened the implied freedom of communication about government or political matters and whether it also served a legitimate end compatible with representative government.
Four out of seven of the judges said it did burden the implied freedom and was not compatible with a legitimate end, so Coleman’s convictions under the act were set aside.
Six years before Coleman was protesting in Townsville, Laurence Levy was out and about near Lake Buloke in Victoria during the duck hunting season. He wanted to hold up dead ducks for the television cameras as part of his protest about the slaughter of wildlife.
The issue for the high court in his case was whether the wildlife game hunting season regulations and the Conservational Forests and Lands Act got in the way of Levy’s right to protest. The court said the protection of protesters’ safety was a legitimate aim of the legislation and so Levy’s implied freedom of political communication was not impermissibly burdened.
Here we are nearly 20 years later with the New South Wales parliament passing amendments to existing laws that will give the police wide new powers to stop protests, and not just protests about coal seam gas exploration and extraction.
It’s not surprising that the government has bundled into its amendments provisions about the protection of people’s safety. This is an attempt to make the legislation constitutionally bulletproof because safety was what the High Court latched on to in sinking Levy’s argument that the regulations got in the way of his free speech.
In a nutshell, three pieces of NSW legislation have been amended.
A new offence has been created under the Inclosed Lands Protection Act – attempting or intending to interfere with a business, or undertaking, or doing anything that gives rise to a serious risk to a person’s safety. There’s a new maximum penalty of $5,500, up from $550.
There are existing laws that deal with trespass, unlawful assembly and criminal damage, but the new measures take us into “attempts and intentions” to interfere with a business undertaking.
There is also an amendment to the Crimes Act, extending the definition of a mine to any place where gas or petroleum is extracted or areas of exploration for minerals or gas.
While the new laws have been sold as clearing the path for unhindered coal seam gas extraction, the related amendments are not confined to mine protests.
For instance, the changes to the Law Enforcement (Powers and Responsibilities) Act allow for the confiscation by police, without warrant, of “anything” that is intended to be used to lock or secure someone to equipment. Maybe that’s a piece or rope, wire, masking tape or some strong shoelaces.
As the NSW Bar Association says in its submission opposing these amendments:
“The criminal law should not operate by reference to vague descriptions of physical items that fall within the ambit of a provision only by the existence of someone’s intention to use them in the future for a purpose, particularly when that purpose and the likely use of the items are each themselves assessments based on broad and uncertain criteria.”
The amendments also sweep away previous restraints on police power in giving “directions” in relation to genuine demonstrations or protests, a procession or organised assembly. Now the police will be able to give directions where there may be a serious risk to personal safety or where the assembly is obstructing traffic.
As the barristers’ submission says: “The bill sets the threshold too low for the activation of police powers ...”
The direction about obstructing traffic can be given to any person, whether or not that person is actually obstructing the traffic.
Once again, there is a concern that this sort of legislation is incompatible with the implied constitutional right to free speech on political or government policy issues. No doubt it will head to the high court, just as Levy and Coleman did.
The former Greens leader Bob Brown has initiated High Court proceedings claiming that the Tasmanian Workplace (Protection from Protesters) Act 2014 impermissibly burdens the implied freedom of political communication. The legislation criminalises all protest activity on business premises where it hinders business activities.
Protest is sweepingly defined as an activity that is for the “purpose of promoting awareness of or support for an opinion, or belief in respect of a political, environmental, social, cultural or economic issue”.
Brown was arrested and charged at a logging site under the legislation in January.
Western Australia is contemplating draconian measures, although at this stage its proposed legislation has not been passed. It seeks to create two new offences. Anyone who intentionally physically prevents a lawful activity that is being or about to be carried out faces up to two years jail or a fine of $24,000. Here, there is no requirement relating to the level of seriousness of the offence and the burden of proof is reversed.
The second new offence is that a person may not make, adopt, or knowingly possess “a thing” for the purpose of using it to prevent lawful activity.
This is beyond Orwellian and three US special rapporteurs have urged the WA government not to press for the passage of this legislation, saying it is contrary to international law.
Victoria and Queensland have also recently expanded police powers that deal with protesters, in Victoria’s case prompted by the East-West Link picketers and in Queensland ahead of the G20 meeting in late 2014.
The common law has long held that citizens have a right to assemble and protest peacefully. Of course, without a bill of rights the common law can be overturned by legislation. Nor do we have an explicit right to assembly, because it is only relevant in circumstances where the implied freedom of political communication arises and as we have seen that varies, depending on whether you are handing out insulting leaflets or protesting against duck hunting.
Brown’s case looks as though it has many of the ingredients that could pave the way for a constitutionally protected right to protest.
