A Win for Climate Justice: Newcastle Harbour Exclusion Zone Revoked for Rising Tide

Despite Transport for NSW (TfNSW) having secured a 97-hour exclusion zone over the navigable waters of Newcastle Harbour, this Minns government-backed attempt to stop climate defence group Rising Tide from staging The People’s Protest of the World’s Largest Coal Port on that waterway this weekend has been lifted by the NSW Supreme Court as its application was illegal.

The imposition of the zone was a drastic measure to prevent a protest that had not been authorised by NSW authorities, as instead of accepting the required Notice of Intention to Hold a Public Assembly or a Form 1, which must be lodged seven days prior to an event, NSW police commissioner Karen Webb earlier had that same court strike down the notification due to safety concerns.

Rising Tide was clear, however, that it would be pushing ahead with the blockade, as it understands that the rejection of a Form 1 results in the usual impunity that protesters have from being arrested by NSW police in regard to obstruction offences no longer holds. However, this does not actually prohibit an event, as citizens continue to have the right to protest at threat of arrest by police.

This was apparent yesterday afternoon, as when news of Justice Sarah McNaughton’s decision to quash the imposition of the exclusion zone hit Newcastle Harbour prior to 6 pm on Thursday, dozens of kayakers were already out on the waterway, even though the zone had come into force at 5 pm, and no law enforcement incidents occurred in regard to the early demonstration.

Following the imposition of the zone, Newcastle Young Citizen of the Year 2000 Alexa Stuart took the Minns government to Supreme Court to challenge the way in which TfNSW had applied the law in order to facilitate the exclusion zone.

And following the successful eleventh hour outcome, the family-friendly protestival, which commenced last Tuesday, is now full steam ahead for the planned weekend of climate justice demonstration, with Rising Tides’ Friday social media post announcing the protest flotilla would commence at Horseshoe Beach at 11 am that morning, and welcoming all to join.

Democracy in practice

Justice McNaughton told the court late on Thursday afternoon that even though she’d “found the notice should be quashed”, the outcome did “not necessarily mean activities that have been planned by the organisation will be lawful”.

This is due to the fact that the protest’s Form 1 remains unauthorised and therefore, police officers may arrest those taking part in any waterway protest.

Rising Tide organiser Zack Schofield told Sydney Criminal Lawyers that the measure would have left those entering “the water at any point, at any depth, around the entire harbour” open to arrest. And he scrutinised the way in which the authorities had misapplied the law in order to achieve the exclusion zone, as the Marine Safety Act “is meant to facilitate community events” not prevent them.

The exclusion zone had been declared under section 12(2) of the Marine Safety Act 1988 (NSW).

However, this provides that when a special event is taking place on a waterway, the minister can regulate vessels on “specified navigable waters”. As Schofield advised, this is meant to facilitate an event. And section 12(5) of the Act stipulates that a breach can incur a fine of up to $1,100.

Prior to having been informed of the exclusion zone late last Friday night, Rising Tide had reached a clear agreement with senior NSW police the day prior, which had entailed protesters agreeing to only enter the water close by the shore, leaving the shipping lane free. And this appears to be how the weekend’s demonstration will be taking place over the next three days.

Further the Rising Tide campsite was relocated on request of Newcastle City Council, after TfNSW pushed for this change, as the original site bordered TfNSW land and potential trespass was raised, despite the area not being enclosed.

Last week also saw council approve the People’s Protest music festival for the coming weekend, which is set to take place at Horseshoe Beach, with a lineup that includes John Butler, Gurridyula and Dobby.

The bipartisan assault on protest

In early 2022, nonviolent direct actions carried out in the name of climate by Fireproof Australia and Blockade Australia were gaining traction in the Greater Sydney region.

Along the eastern states, the Black Summer bushfires of 2019/20 had seen 20 percent of mainland forest burndown, while the massive rain bomb flooding events along the eastern seaboard of 2022, were just kicking in.

So, the Perrottet government passed a new antiprotest regime in April 2022, with the bipartisan approval of NSW Labor. This sees participants in unauthorised protests, or those without Form 1 ‘approval’, who obstruct a road, tunnel or bridge in Sydney, Newcastle or Wollongong, as well as at a long list of major facilities, facing severe penalties of up to 2 years gaol time and/or a fine of $22,000.

Since taking office, the Minns government has only shown itself to be a proponent of these laws, and further it’s started cracking down on authorised protests, as it targets the nonviolent weekly Free Palestine demonstrations on Gadigal Country in Sydney. And the police commissioner had an unsuccessful crack at ending the 52nd consecutive protest in the Supreme Court.

But following the 12 month anniversary march having successfully gone ahead, Minns spruiked the idea of permitting NSW police to cancel regular street marches for financial reasons, while NSW Liberal opposition leader Mark Speakman suggested a user-pays system whereby protest organisers foot the bill for the saturation policing their now required to have at demonstrations.

The NSW police user-pays policing system requires event organisers that want to hire the services of NSW police having to pay $147.60 inclusive of GST an hour per officer, as of 1 July this year.

The user-pays system was used circa 2018 to ensure that certain music festivals that NSW authorities didn’t want to go ahead, were then priced out of the market.

Despite the formidable campaign against the NSW antiprotest laws, which has seen more than 240 civil society organisations call for it to be revoked, the Minns government released its statutorily required review of the regime last Thursday, which recommended letting the laws stand as they are because they serve as deterrent, and there will not be another review of them for three years.

And just for good measure, two days before the release of the suck-it-up news, NSW Labor introduced the Crimes Amendment (Obstructing a Railway) Bill 2024, which seeks to attach the draconian antiprotest regime fine of $22,000 to the offence of obstructing a railway, contrary to section 213 of the Crimes Act, as the offence only carries up to 2 years prison time right now.

The people succeed

Rising Tide doesn’t consider the safety concern raised in order to invalidate the People’s Blockade Form 1 was valid, as, over the years, the same protest has been staged a dozen times.

Last year’s event garnered global headlines, after 3,000 people launched the 30-hour blockade and over 100 people were then arrested by NSW police due to having remained on the waterway for 2 hours after the time that was specified on the Form 1 had expired.

The coal exports running through Newcastle Harbour represent 1 percent of global emissions. Rising Tide is calling for an end to all new coal and gas approvals in Australia, along with a 75 percent tax to be placed on all fossil fuel exports, with the revenue then being used to fund community and industrial transition to renewables, as well as ending all coal exports from Newcastle by 2030.

As to the broader implications this latest attempt to supress the voice of climate dissent entails, Schofield considers it has been “a disgraceful attack on our foundational democratic rights”, which “sends a really clear message that the government does not care about young people.”

“In fact, they care more about protecting their corporate mates, than they care about democracy,” the climate activist said in conclusion.