Right: Violet Coco; under arrest and facing a long term of imprisonment
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Arguments in favour of Australia's new protest laws
1. The newly imposed laws are meant to regulate protest, not ban itDefenders of Australia's new protest laws argue that this legislation is intended to regulate protest actions, not ban them.
The Australian Capital Territory is the least restrictive jurisdiction in Australia regarding freedom to protest; however, in common with all other jurisdictions in the country, it recognises the need to balance the right to protest with other rights that should be available to Australian citizens. Its protest guidelines state, 'The National Capital has many public places where people can exercise their right to communicate their opinions and ideas through peaceful protests and demonstrations.
Our democracy recognises this right which is subject to the general law and must be balanced against the rights and interests of others and of the community as a whole. Of paramount importance are the protection of public safety, the maintenance of peace and the facilitation of fair and equal access to public areas.'
Jurisdictions where more severe measures have been put in place to discourage certain forms of protest action, similarly, claim that their intention is not to remove the right to protest but to balance it with other citizen rights. A background paper produced for the New South Wales Parliament in 2015 stated, 'The right to protest peacefully is a defining feature of liberal democracy, a system of government characterised by the tolerance of dissenting minority opinion... Fundamentally, there is consensus that people should have the right to protest. At issue is where the line between lawful and unlawful protest activity should be drawn.'
The drafters of New South Wales's most recent protest laws have repeatedly declared their support for the broad principle of protest action and claimed that their aim is to prohibit only a certain type of protest. Alister Henskens, the New South Wales Minister for Enterprise, Investment and Trade, has stated, 'I strongly believe in the right to freedom of speech, including in the form of lawful, peaceful protests. New South Wales is one of the freest places in the world to express a point of view, with a very clear set of laws which I fully support." A similar point has been made by the New South Wales premier Dominic Perrottet who has explained, 'We want people to be able to protest but do it in a way that doesn't inconvenience people right across New South Wales.' The New South Wales Minister for Police, Paul Toole, offered the same justification, stating, 'While the New South Wales Government respects the right to protest, that must be weighed against the right of other members of the public to move freely and not be obstructed in public places.' The Victorian premier Daniel Andrews has also claimed that his state's recent legislation placing further restrictions on those protesting at logging sites was not intended as an attack on the right to protest. He defended the legislation by claiming it struck 'the right balance' between the right to protest and the need to protect public safety. It has been noted that certain amendments were made to the recent New South Wales protest laws to ensure that they did not unreasonably restrict public protest. One area that was specifically preferenced was the right to hold public protests as part of strike action. Mark Speakman, New South Wales Attorney General, stated that the new laws were not designed to block appropriate industrial action such as the New South Wales Nurses and Midwives Association's mass strike.
Further, although part of the purpose of the new New South Wales protest laws is to restrict protesters' access to certain 'major facilities', there are numerous exemptions made. The first set of exemptions are to allow industrial action taken by strikers. The new law states that 'A person does not commit an offence under this section if the conduct forms part of... [an] industrial action, an industrial dispute, [or]an industrial campaign.' This exemption has been seen as the government's recognition of the protest rights of striking workers. Another set of exemptions states that the new law does not prohibit 'conduct in relation to Parliament House, or an office of a member of parliament.' This exemption has been seen as the government respecting citizens' right to mount their protests before their elected representatives. 2. People's everyday lives and livelihoods should not be disrupted by the actions of protesters
Those who support laws that severely punish certain protest actions claim that the community needs to be protected from activists prepared to disrupt citizens' daily lives and occupations. Those who support these laws are also opposed to protests that undermine states and countries economically.
These arguments have been put forward to justify New South Wales's new protest legislation. The New South Wales premier Dominic Perrottet has stated, 'The clear message here, and it is a clear lesson - everyone has the right to protest but do so in a way that doesn't inconvenience people.'
The type of inconvenience to which the New South Wales government appears to be referring is predominantly economic inconvenience. The government does not want roads blocked so that people cannot get to work, and goods cannot be delivered. They also do not want workplaces disrupted so that people cannot perform their regular jobs. The New South Wales Attorney General, Mark Speakman, has stated, 'What we are stopping, or criminalising even further, are protests that shut down major economic activity.' The Attorney General explained that the new laws were directly in response to recent disruptive behaviour from protesters. He stated, 'Following the events of recent days, I worked with Minister Ward [the New South Wales Minister for Metropolitan Roads] to urgently review existing laws. We are strengthening them to deter mayhem being inflicted upon ordinary citizens.' The premier, commenting on the effect of recent protests, claimed, 'Those protests literally started to grind our city to a halt.' The new protest laws appear to have bipartisan support. In a speech to the New South Wales parliament, the state's Labor leader, Chris Minns, said the opposition endorsed the legislation. He stated, 'It is shameful to think that it's appropriate to disrupt the lives of ordinary people as they go about their business in the pursuit of your own particular aims.' The same arguments, that people's daily lives and employment should not be disrupted by protest actions, have also been put by other state governments. Supporting Victoria's recent legislation imposing harsher penalties on those who protest at logging sites, the Minister for Agriculture, Mary Anne-Thomas, stated, 'Every Victorian has the right to be safe at work. Protests are becoming increasingly dangerous -particularly for workers - which is why this legislation will support them to get on with their job and minimise disruption to the industry.'
The Australian Forest Contractors Association (AFCA) has welcomed the new Victorian legislation claiming that AFCA's members are affected by protesters invading their workplace and have been for many years. The Association claims there are significant costs associated with these unsafe workplace interruptions such as forfeited work hours and increasing health and safety concerns. The Tasmanian government has also claimed that it will protect Tasmanians from having their workplaces disturbed. It claims it has a mandate for these laws having won three state elections at which it presented variations of them to the electorate.
On September 7, 2022, Guy Barnett, the Tasmanian Minister for State Development, Construction and Housing, issued a media release stating, 'The Government's agenda has delivered stronger laws and increased penalties to protect workers and businesses from workplace invasions. Tasmanian workers should be allowed to go to work safely, without threat from extremists who invade workplaces and endanger employees and disrupt businesses...This legislation will support our productive industries and businesses working in sectors like forestry, mining, agriculture, and aquaculture.'
The Queensland government has used similar arguments to justify its 2019 legislation imposing severe penalties on protesters who used dangerous locking devices to attach themselves to protest sites, either urban or rural. The premier, Annastacia Palaszczuk, stated, 'I don't think the people who are protesting at the moment are endearing themselves to families, to motorists, to people going about their ordinary duties or getting to and from work, and it has become unacceptable to use these dangerous devices.'
Queensland Police Minister Mark Ryan stated, 'These are a cohort of extremists who are crossing the line...significantly disrupting the legal rights of other Queenslanders.' 3. Protest action can put public safety at risk
Those who support laws severely punishing certain protest activities claim that the community needs to be protected from activists who put their own and other people's lives at risk.
It is claimed that some protesters show a reckless lack of concern for the lives they jeopardise. In the United States, for example, climate activists have been accused of endangering people's lives by cutting off their heating oil. The Direct Climate Action protest groups, each made up of one activist and one supporter, forced their way through security fencing at pipeline facilities belonging to Enbridge, TransCanada, Kinder Morgan and Spectra Energy. After filming statements justifying their actions, they cut the chains and locks protecting pipeline safety valves and turned off the flow of oil. A spokesperson for one of the oil companies described the group's 'attempt to tamper with energy infrastructure' as 'reckless and dangerous,' noting the possibility for a pipeline failure or explosion because of the tampering. 'The groups involved in this ... claim to be protecting the environment, but they do the opposite and put the safety of people at risk - including themselves, first responders and neighbouring communities and landowners.'
It was further noted that had the activists been successful, the fuel used to heat the homes of 55 percent of those living in Michigan would have been cut off. Jason Hayes, the director of environmental policy for the Mackinac Center for Public Policy, in Midland, Michigan, has stated that it is wrong 'to deliberately endanger lives and communities because you refuse to wait for your worldview to be implemented.' Another complaint made about protesters is that their actions can divert the work of police and emergency services personnel resulting in injury and death. This warning has been made regarding some protesters in Australia. In January 2023, Extinction Rebellion activists have protested and tried to blockade the International Cycling Union's Tour Down Under being staged in Adelaide. The South Australian Police Commissioner, Grant Stevens, has warned that activists will be held responsible if their activities lead to death or injury because they divert police or emergency services. He has stated, 'The safety of all people in our community is paramount and is one of the core duties of police and other emergency services.
For such resources to be unnecessarily committed to random acts of obstruction to public places deflects emergency service resources away from critical calls for public assistance from those in our community who might be at serious risk of harm.'
The same point was made by Queensland premier Annastacia Palaszczuk, defending her state's new laws targeting the dangerous locking devices used by anti-logging protesters and others. The premier stated, 'Every single minute our [emergency services] spend dealing with these types of protesters is a minute they are spending not helping others. It will not be allowed to continue.' A death that occurred in Berne, Germany, on October 31, 2022, has been used as an example of the risk that protests can create by impeding emergency services. The German Vice Chancellor, Robert Habeck, has condemned protests that endanger people after a demonstration by two climate activists on a Berlin motorway slowed rescue services' response to a traffic accident, after which a cyclist died. A vehicle belonging to the fire brigade, which had been on its way to assist the critically injured cyclist, got stuck in a traffic jam resulting from two protesters gluing themselves to a gantry sign on an autobahn. The Vice Chanceller concluded, 'Forms of protest that endanger people are wrong ... climate protection is about protecting life and liberty. Those who risk the health and lives of others with their protests forfeit all legitimacy and also damage the climate movement itself.'
The German Chancellor Olaf Scholz similarly stated, 'My appeal can only be that, in all the decisions people make for political demonstrations, they always ensure that they don't contribute to endangering others.' In the same month in England, the deaths of two women motorists have similarly been claimed to be the result of the actions of climate change protesters. On October 16, 2022, two Just Stop Oil protesters scaled the Queen Elizabeth II Bridge, which links Kent and Essex. The protesters remained there for 24 hours and caused two-hour delays and a more than nine-kilometre traffic jam. The accidents occurred as motorists attempted to avoid the traffic jam. The situation was made worse as emergency services could not reach the victims. Mick Neville, former Metropolitan Police detective chief inspector, stated of the protesters, 'They may not have directly caused the M20 accident but had their irresponsible demo not taken place, the women...would probably not have been there.' Another accident victim who suffered a broken back when struck by a car while attempting to help a stranded motorist said of the protesters, 'Without the protest, the emergency services might have been able to get there in time to save the women.'
4. There are many ways to protest other than by taking disruptive and/or dangerous action
Those who support severe legislation to discourage disruptive and potentially dangerous protests typically argue for more passive, non-intrusive protests.
There are several more moderate, non-disruptive forms of protest that can be used. In an article published in The Conversation on August 20, 2021, Aidan Ricketts, a lecturer in the School of Law and Justice, Southern Cross University, stated, 'More passive forms of protest (writing letters, signing petitions, talking to politicians, building community support) can work with or without disruptive tactics. But they often require many years of campaigning to produce the groundswell necessary to achieve change. Australia's marriage equality campaign is a good example of a successful long campaign of this kind... [Protest] is most powerful when it is integrated within an intelligent social movement campaign that is reaching out to the public with accurate information, coherent framing of the issue and ready to apply political pressure when the opportunity arises.'
Advice offered to Australian citizens travelling abroad classifies the types of more direct protest that they may encounter overseas. These classifications also apply in Australia. Some of the types of direct protest listed are: 'Marching, where groups of people walk together through the streets. Their destination may be a rally or picket.
Rallies, where people gather at a location to hear speakers.
Pickets and sit-ins, where people surround, occupy, or block off an area.'
Under the more severe forms of state law currently being enacted to regulate protests, marching remains legal so long as the march has been approved and is considered neither hazardous nor disruptive. Rallies are legal under the same conditions though pickets and sit-ins are less likely to be legal because they would be more likely to disrupt employment which is a key consideration of both the recent New South Wales and Tasmanian anti-protest legislation.
The Women's March4Justice is an example of the type of direct protest likely to be granted official approval to be held under the more severe anti-protest legislation. The first national Women's March4Justice was held in 2021. A second nation-wide march and rally were held in 2022. The organisers' press release read, 'March4Justice is committed to providing a safe space for all women and their allies to be heard and events will be welcoming to First Nations peoples, people of all sexual orientations and gender identities, people from CALD and immigrant communities, people of all abilities and people from every area of the political spectrum.
The only people who are not welcome to join March4Justice events are those who do not wish to embrace the values of inclusion; there is zero tolerance for hate speech, intimidation or of course threats of violence or violence.'
Those who argue that there are other forms of protest beyond those that are dangerous and disruptive, tend to claim that these more moderate forms of protest are likely to be more effective. Recent research has indicated that there are significant disadvantages to extreme protest actions. Studies conducted in the United States and reported on in Psychology Today on November 21, 2020, claim that extreme tactics generate a backlash, and that moderate and peaceful protests are more effective at winning public support. Researchers studying different protest movements (animal rights, racial justice) recently found that compared to protests that used extreme tactics, including violence or the threat of violence, moderate peaceful protests generated more popular support and willingness to join the movements. The main reason for this was that people simply could not identify with more radical protesters or see them as people like themselves.
Eric Shuman, who studies the psychology of protest and collective action at the University of Groningen in the Netherlands and the Hebrew University of Jerusalem, has stated that when the public come to see a protest action as so extreme that they consider it wrong, then this tends to distract from and undermine the cause that is being promoted. Shuman states, 'Once something is perceived to have crossed some sort of moral line or boundary, this is when the disruption is much less likely to be effective, for a lot of reasons. People are going to have a very strong motive to condemn that, and anything associated with it.' 5. Protest actions are increasing and becoming more extreme
One of the justifications offered for the stricter protest laws being implemented in several Australian states is that the actions of protesters are becoming more frequent and extreme. This concern has been expressed worldwide.
Several studies appear to show that mass protests are increasing. On March 2, 2020, the United States Center for Strategic Studies released a paper titled, 'The Age of Mass Protests: Understanding an Escalating Global Trend'. The study states, 'We are living in an age of global mass protests that are historically unprecedented in frequency, scope, and size... a decade-long trend line affecting every major populated region of the world, [shows] the frequency of [mass protests has] increased by an annual average of 11.5 percent between 2009 and 2019.' The study noted, 'Factors that could increase the rate of protest include slowing global economic growth [and] worsening effects of climate change...' It concluded, 'Analysis of the underlying drivers of this growth suggests the trend will continue, meaning the number and intensity of global protests is likely to increase.'
The Global Peace Index has released similar findings. It claims that in the eight years leading up to 2018, the available comparable global data shows a 102 per cent increase in the number of riots, general strikes, and anti-government demonstrations. The Index's report looks at the global trends in civil unrest over [a] ...decade and finds that between 2011 to 2019, Europe had the largest number of protests, riots and strikes over the period, totalling nearly 1,600 events from 2011 to 2018.
This trend is replicated in Britain. In 2019 there were over 280 reported protest events, compared with 154 in 2010 - and only 83 in 2007, the year before the global economic crisis hit. Similar data has come out of the United States. The internal business security management group, ASIS, stated, 'Prior to the lockdowns initiated in response to the COVID-19 pandemic, historically unprecedented levels of unrest continued increasing in early 2020 and simmered during the lockdowns. Mass protests in the United States surged by 186 percent from April to May 2020, largely catalysed by the murder of George Floyd in Minneapolis, Minnesota. By June, the country fell into the high-risk category of Verisk Maplecroft's Civil Unrest Index, an assessment of the risk of disruption to businesses due to mobilized protest groups.' Mass protest has also grown in Australia, in part spurred by resistance to COVID lockdowns and compulsory COVID vaccinations. On November 20, 2021, The Guardian reported, 'Thousands of people have marched in "freedom" rallies in Melbourne, Sydney, Brisbane, Perth, and Adelaide, with the largest crowds in the Victorian capital as protests against the state government's pandemic legislation ramped up again.
Protesters marched from Victoria's state parliament, down Bourke Street and up to Flagstaff Gardens, carrying Australian flags and placards bearing anti-vaccination, anti-lockdown, and anti-government slogans, while chanting "kill the bill", "sack Dan Andrews" and "Aussie, Aussie, Aussie, oi, oi, oi".
The rally drew a significant increase in numbers following weeks of protests against the Victorian premier's Public Health and Wellbeing (Pandemic Management) Bill 2021, which previously came to a head last weekend, when thousands of people marched through central Melbourne in a demonstration that included a prop gallows, protesters posing with nooses, and chants of "hang Dan Andrews".'
Those who oppose this growth in protest claim that many of those promoting it are aiming for maximum disruption. They claim that the protesters' aims have moved from drawing attention to an issue to undermining governments and states. Critics of radical conservationist action groups such as Extinction Rebellion (XR) argue that their extremist views make them a threat to ordered society and the rule of law. On July 16, 2019, a conservative British think tank called Policy Exchange warned of the danger posed by the founding British branch of XR. The authors state 'Extinction Rebellion [follows a] subversive agenda, one that that is rooted in the political extremism of anarchism, eco-socialism and radical anti-capitalist environmentalism.
The "civil resistance model" they espouse is intended to achieve mass protest accompanied by law-breaking -leading eventually to the breakdown of democracy and the state.'
Critics claim that this escalating pattern of mass disruption demands harsher penalties.