The Chilling Effect of the NSW Antiprotest Regime Appears to Be Waning

The 2022 New South Wales antiprotest regime was put to one of its most significant tests on Awabakal and Worimi land in the regional city of Newcastle late last November, and it appeared that the deterrent effect these laws and their draconian penalties initially possessed has eroded quite significantly.

Public protest, or the ongoing suppression of it, continued to be a key issue on the state’s political agenda in 2024, as, despite loud civil society calls to revoke the 2022 laws early last year, the Minns government went on to officially determine that “no legislative changes” were needed.

These laws were enacted by a Coalition government in April 2022, at a point when there was a marked uptick in climate protests in the Greater Sydney region, which were successful in putting the issue front and centre. And the then NSW Labor opposition threw its weight behind these laws.

As the antiprotest regime was drafted by the Liberal Nationals and it had subsequently been opposed by the union movement, hopes had been harboured in respect of an incoming NSW Labor government rescinding the regime on taking office.

But last year saw NSW Labor premier Chris Minns rather doubling down on the repressive regime, as he considered new ways in which to bolster it and he experimented with other ways in which to stifle demonstrations, which included an obvious desire to shut down pro-Palestinian protests.

And the last major protest on the 2024 calendar was the Rising Tide water blockade of the entrance to Newcastle Coal Port, which saw over 200 regular people enter the shipping channel on kayaks in order to hinder traffic into the world’s largest such port, and they were all willingly risking being charged under the regime, which carries up to 2 years imprisonment and/or a $22,000 fine.

Jumping over the precipice en masse

The Rising Tide Newcastle Coal Port blockade was set to take place over the weekend of the 22nd to the 24th of November 2024, for the second year in a row. However, state authorities went to town in attempting to stop the direct action, which was supposed to take place over the entire weekend.

NSW police commissioner Karen Webb took the organisers to the NSW Supreme Court, to successfully have a judge strike down the Form 1 notification of the event, which meant protesters were not to be afforded the ability to demonstrate without fear of arrest, as rather participants would continue to be subjected to the full force of the antiprotest regime over that weekend.

The Minns government then announced it was imposing an exclusion zone upon the waters leading into the Newcastle Coal Port, which would mean no one on the water for the entire weekend. But this fresh barrier to the protest didn’t survive a Rising Tide Supreme Court challenge, which resulted in the ban being lifted as the law had been misapplied in order to facilitate it.

All this effort to prevent the demonstration taking place was eventually foiled when, at around 10 am on Sunday 24 November, 200-odd people on kayaks breached an area of Newcastle Harbour that police had relegated them to and entered into the shipping lane, which eventually led to a coal tanker having to delay docking at Newcastle Port.

NSW police then took to the water to arrest 170 demonstrators, with 138 of these civilians being charged with disrupting a major facility, under section 214A of the Crimes Act 1900 (NSW). And this offence, one of two that comprise the antiprotest regime, carries the excessive maximum penalties of 2 years inside and/or a $22,000 fine, which are the signature penalties of these laws.

This marks the most significant breach of these laws since enactment, and this mass breaking of the law does indicate that the steep penalties that once had a significant chilling effect on unapproved protests no longer do. And this isn’t so surprising when the motivation for these protests, the climate crisis, is only getting more severe.

A Liberal-minded leader in Labor clothing

Premier Minns has been a keen critic of public protest since he took office in 2023. And the NSW Labor leader has a special aversion to the pro-Palestinian protests that have been taking place on Gadigal land in Sydney for the past 65 weeks. However, the Labor leader has no power to shut these public demonstrations down.

Earlier court action was taken by the NSW police commissioner to prevent the 52nd weekly Free Palestine protest from taking place in early October, citing safety concerns as her reasoning. But as NSW police and the Palestine Action Group Sydney protest organisers began negotiations, the case was dropped and the protest did go ahead.

After the protest marking a year of pro-Palestine demonstrations in the city had taken place, Minns then announced early the following week, that he considered that NSW police should be able to deny protests from going ahead if the agency has concerns about the cost of policing such demonstrations, even though organisers aren’t calling for the saturation policing this involves.

This proposal sparked head of the opposition Mark Speakman to go one step further. The Liberal leader suggested that the NSW user-pays policing system should apply to public protests, which would mean that the organisers of them would have to foot the bill for their policing.

Back in 2018, NSW police were applying user-pays policing to certain state music festivals that they wanted to prevent from going ahead in order to price the organisers out of being able to afford the staging of their events.

In terms of the regime, Minns jumped at opportunities to extend it over the past year. In November, the premier oversaw the passing of a bill that served to insert the standard antiprotest maximum penalty of a $22,000 fine to the offence of the obstruction of a railway, contrary to section 213 of the Crimes Act 1900 (NSW), which already carried a 2 year prison sentence.

And while Minns was having difficulty in identifying how he could pass a law that would serve to stifle the pro-Palestinian protesters, an opportunity finally presented itself, as following the torching of a synagogue in Naarm-Melbourne, the NSW Labor leader announced in mid-December that his government now proposes to pass a law that would end protests staged outside of places of worship.

Losing its shine

Renowned climate defender Violet CoCo was the first person charged under the antiprotest regime, after she’d blocked one lane of the Sydney Harbour Bridge in late April 2022.

The activist was charged with the other key regime offence, which is obstructing a major road, bridge or tunnel in the Greater Sydney, Wollongong or Newcastle regions, contrary to section 144G of the Roads Act 1993 (NSW).

CoCo was initially convicted on 2 December 2022, and she was sentenced to 15 months in prison, with non-parole set at 8 months.

The climate activist then spent 13 days inside before being released on bail pending appeal, and in March 2023, CoCo’s prison sentence was dropped, and she was placed on a 12 month conditional release order (CRO).

Back then, the community was outraged that someone had been hit with such a steep prison sentence for a nonviolent direct action, and the 2022 NSW antiprotest regime was clearly having the desired chilling effect it was established to deliver.

Yet, the Newcastle blockade involved over 200 people flaunting these laws, as they no longer serve to deter as they once did.

And the clear reason for this is that despite the stiff penalties that apply, the climate emergency is escalating, and as that crisis becomes ever more threatening, those maximum penalties pale in significance.