Written by Andrew Fraser
May 11, 2016
The right to protest and the boundaries placed on the ability to protest have long been a contentious part of the criminal law.
The issue has flared again after recent protests in NSW over various mining initiatives, with the state government acting to amend the Inclosed Lands Protection Act, the Crimes Act and the Law Enforcement (Powers and Responsibilities) Act to tighten up just what protesters can and can’t do.
The Industry, Resources and Energy Minister Anthony Roberts says the changes “create a workable model that ensures that the ongoing protection of the right to protest is balanced with the need to protect the safety of others and the conduct of lawful business activities”.
But to Opposition spokesman Ryan Park, the legislation “flies in the face of democracy in NSW”.
Greens MP Tamara Smith notes the concerns raised by both the NSW Bar Association and the Law Society of NSW.
The Bar Association described the move to institute an aggravated form of the offence of 'unlawful entry on inclosed lands' as "wide and uncertain in meaning".
Ms Smith continued: “It has the potential to capture such a wide range of conduct that the Bar Association and the Law Society … regard its effect to be violating people's rights against arbitrary deprivation of property; the common law right to assemble; the International Covenant on Civil and Political Rights in relation to peaceful assembly; and that it is an unreasonable expansion of the search and seize powers of police.”
The new law makes it an offence if a person enters inclosed lands on which “any business or undertaking is conducted and, while on those lands interferes with or intends to interfere with, the conduct of the business or undertaking; or does anything that gives rise to a serious risk to the safety of the person or any other person on those lands”. (An “undertaking” is defined as a business-like activity, whether or not conducted for profit or gain.)
The maximum penalty for the new offence is a fine of $5500, 10 times that for the simple offence, which remains as an alternative verdict for the new one.
Minister Roberts says the law is needed, given the growing complexity of protest methods.
He told Parliament: “Protesters have developed sophisticated tools, such as lock-on devices, which require rescue squad-type capability to remove them from plant or equipment without harm.”
There were indications, he said, that protesters had engaged rigging experts to help them hang from coal loaders and other large equipment.
The law changes redefine “mine” to include “a place at which gas or other petroleum is extracted from the ground, and a place at which exploration for minerals, or for gas or other petroleum, is undertaken by mechanical means that disturb the ground, and a place at which works are being carried out to enable the extraction of minerals, or of gas or other petroleum, from the ground, and a former mine at which works are being carried out to decommission the mine or make it safe”.
The new definition obviously captures activity at the site of coal-seam gas exploration, a particular recent flashpoint of protest.
The third change to the law is the insertion of a whole new Division into the Law Enforcement (Powers and Responsibilities) Act, giving “additional search and seizure powers in relation to things used to interfere with a business or undertaking”.
These include the ability for police to stop, search and detain a person – without warrant – if the officer suspects on reasonable grounds that the person has in his or her possession or under his or her control anything that may be used to interfere with a business or undertaking.
Things so seized are to be forfeited to the Crown and Local Area Commanders may destroy them “in accordance with the directions of the Commissioner”.
Ms Smith told Parliament: “These laws represent a serious winding back of civil and political rights in NSW when there is no demonstrable failure of existing laws that relate to trespass or obstruction. “These laws also reflect an ideology that says the interests of businesses have priority over the interests of other property holders in the State and the basic civil and political rights that are appropriate in a democracy.”
She emphasised that the new laws were aimed at non-violent protest. “We are not talking about terrorists,” she said. “We are talking about men and women who are at their wit's end about what is going on in our agricultural regions.”
Labor MP Guy Zangari noted the search and seize powers were aimed at “lock-on” devices but could capture many innocent people. “This could affect anyone, including tradespeople, farmers or even recreational drivers who may have items such as chains, ropes, padlocks or bicycle locks,” he said. “Should any of these items be seen in a vehicle, under the proposed legislation the police would have the ability to search the vehicle and seize any such items, which would be forfeited to the Crown for resale or disposal.”
If you are charged under the new laws, or with any protest matter, you should consult a specialist criminal lawyer. The team at Armstrong Legal deal only with criminal and traffic law and can help you get the best possible outcome from your matter.