One Year After NSW Brought In Harsh Anti-Protest Laws, We’re Starting to See the Dark Effects

More than a year since anti-protest laws were hastily written and passed in just three days by the New South Wales parliament, the state’s supreme court has ruled them constitutionally invalid.

The hardline laws passed in August 2022 after climate activists “started to grind [Sydney] to a halt” by blockading roads, one lane on the Sydney Harbour Bridge and freight lines in and out of the world’s biggest coal port in Newcastle. The State Government, then led by the Liberal Dominic Perrottet, was sending a “clear message”: that keeping the state’s economic engine chugging was more important than any cause worth protesting. 

​​“If protesters want to put our way of life at risk, then they should have the book thrown at them and that’s pleasing to see,” Perrottet said at the time of the sentencing of one climate activist – Violet Coco – to 15 months jail time, which was later successfully appealed, for her role in the Harbour Bridge blockade. 

“We want people to be able to protest but do it in a way that doesn’t inconvenience people right across NSW.”

The laws, also supported by the Labor opposition which came to power in late 2023, were intended to apply when demonstrations interfered with or shut down “major economic activity” and were backed up by plump penalties – up to $22,000 in fines or two years in prison – and strict bail conditions that prevent them from attending any form of political demonstration or even communicating with other activists.

Legal and human rights experts have since argued the laws are unconstitutional, draconian, undermine our fundamental right to protest and, on top of that, bolster police power in ways never seen before in the state. 

“Peaceful protesters should never be criminalised or imprisoned,” the UN’s special rapporteur on freedom of peaceful assembly Clément Voule said in reaction to the new laws at the time.

More than a year on, hundreds have been arrested under these laws and dozens charged but in December 2023, the NSW Supreme Court ruled parts of the suite of laws that criminalised activities that caused partial closures or redirections around ports and train stations were, in fact, unconstitutional.

Justice Michael Walton said the laws had “a chilling effect on political communication via protests and public assemblies” and a spokesperson said the NSW government was now “carefully considering the judgment and seeking advice on appeal options or options for legislative reform to ensure that protest activity is appropriately regulated and balances the rights and freedoms of the people of NSW”.

Although no one arrested under these laws has yet served jail sentences, and the validity of these laws could be in doubt, they have already set a new, darker tone for the future of protest in NSW.

In November, more than 100 people were arrested, including five children and one 97-year-old man, for stopping Australian coal ships during a 30-hour blockade at the Port of Newcastle. 

Protesters in kayaks and rafts set up a pontoon in the shipping lane and took turns floating in a group around it to stop ships from exporting Australian coal in objection to Australia’s booming fossil fuel industry.

NSW Police said in a statement they would “allege in court that a number of protesters purposely entered the harbour channel after this time despite appropriate warnings and directions by police,” and the majority of them have been given notices to attend court on January 11. 

Several NSW Council of Civil Liberties legal volunteers in high-vis clothing were among those arrested, which the council’s president Lydia Shelley said “risks sending a dangerous message to the public that NSW police do not want their interactions or conduct with peaceful protestors monitored by independent organisations. It also further strains the already deteriorating relationship between NSW police and segments of our communities”.

In the same month, 23 protestors were arrested in Sydney’s Port Botany under the anti-protest laws for disrupting commerce and trade by blockading Israeli shipping containers in protest of its defence force’s genocide of Palestinian people. 

Videos circulated on social media of mounted police using kettling formations to surround and corral the small crowd at the port. The protestors were forced against a fence with such force it collapsed, and footage showed a child in a pram being lifted over protestors’ heads to exit the crush. 

“There were a lot of children and elderly people in the crowd, people were giving speeches, chanting and people sat down on the road near the entrance once they sat down police began issuing move-on orders,” Anastasia Radievska of Legal Observers NSW told VICE. 

“A lot of the move-on orders couldn’t be heard by the crowd because there were speeches going on at the same time. 

“The way the police approached [this protest] didn’t account for the profile of the crowd or vulnerabilities of the people there and put people at risk unnecessarily. 

“I would say this is one of the most significant uses of police force in recent years.”

Radievska said the only other recent example of police kettling protestors with the same intensity was inside Sydney’s Central Station in 2020 during the much larger Black Lives Matter protests.

But Radievska said it’s not just the new powers to arrest and charge that are worrying; a set of disturbing bail conditions can also be applied to further limit protests in the state.  

Since 2022, there have been several incidences of NSW Police imposing two bail conditions on individuals arrested at protests. They require anyone charged “not to participate in unlawful protest activity”, nor to “contact or be in the presence of” any member of specific activist groups identified by police as ‘Issue Motivated Groups’.

The first bail condition means anyone charged under the new laws cannot attend any demonstration without risking arrest and new charges.

All 23 people charged at Port Botany were handed this bail condition as well as one person who was charged at Wage Peace protests in Sydney on November 7, 2023; six people who were arrested on 19 June, 2022 as part of the raid on a property where preparation for protest activity was alleged to have taken place; and to two participants in a street march in Sydney’s CBD in June 2022.

“Given the fact that there is no specific offence of ‘unlawful protest activity’ or capacity for individuals to know if a protest they participate in will give rise to unlawful activity, there is no legal basis for this bail condition and individuals cannot know if they are in compliance with it, short of not participating in any protest activity at all,” Radievska said. 

The second bail condition, that blocks communication between activists, was also applied to a number of people arrested at pro-Palestine protests in Sydney in early December.

But many activist groups do not have a formalised membership structure nor defined membership. There is also no public list ‘Issue Motivated Groups’ nor is there a simple way for of individuals to find out if a group they are part of is classified as such. 

Radievska said if the only way for an individual to adhere to the bail conditions was to not participate in any protest activity, then the laws clashed with the implied freedom of political communication in the Constitution.

All these new legal ropes now leave activists’ hands tied under serious threat of severe consequences. 

 “It means people feel potentially less safe coming to a protest,” Radievska said. 

“The situation we have now makes it very difficult for there to be that kind of broad participation in protests that really underpins democracy.”

She said it also emboldens police to use violence – signalling to officers such force both is accepted by society and encouraged by the government. 

“The signalling around these laws is that it doesn’t matter how just the cause you’re protesting is, if there’s any disruption to the flow of goods that means your right to protest is effectively revoked.”

Aleksandra Bliszczyk is the Deputy Editor of VICE Australia. Follow her on Instagram. 

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