Statement amended on 26 June: Following media interest, the NSW Council for Civil Liberties (CCL) has responded to criticisms from the NSW Government regarding the breadth of these regulations. CCL appreciates the government’s engagement with our concerns. This statement has been amended to incorporate the Government’s response, which is explained more fully in the final section of this statement. The regulations have also been provided at greater length, to explain other prescribed activities, and to set out penalties stipulated under the regulations. CCL remains opposed to the regulations in question.
On 1 July, new regulations will come into effect, granting the NSW State Government incredibly wide powers to disperse or ban protests, rallies, and virtually any public gathering across approximately half of all land across the state. CCL strongly opposes these regulations. As is explained in the final section, the NSW Government has responded to our criticisms by arguing that the new regulations are broadly the same as previous regulations. This argument is factually correct, although fines that may be imposed under the new regulations have been increased. However, this does not answer criticism of the merit of the regulations.
Regulations which are potentially extremely broad in scope do not become good law simply because they have precedent. In the context of increased hostility to protest rights as demonstrated by “anti-protest” legislation, and the dispersal of Martin Place homeless protesters, CCL is concerned that this style of regulation can arbitrarily impede the right to protest. Such regulations need to be debated and brought to the attention of the public. CCL opposes both sets of regulations.
On 16 March this year, the NSW State Government published the Crown Land Management Regulation 2018 (NSW). Included was a provision which provided that public officials would have broad power to “direct a person” to stop “Taking part in any gathering, meeting or assembly”. The only exception provided for is “in the case of a cemetery, for the purpose of a religious or other ceremony of burial or commemoration”. Alternatively, public officials have broad discretion to affix a conspicuous sign prohibiting any gathering, meeting or assembly – again, unless the public gathering is a funeral.
Police, Local Council officials, and even so-far unspecified categories of people or government employees will have the power to ban people from holding public gatherings on public land. The territory where these incredibly broad powers apply are called Crown Land - land owned by the State Government. This includes town squares, parks, roads, beaches, community halls and more.
The new regulations come into effect from 1 July. Under the old regulations, public officials similarly had wide powers to disperse gatherings on public land. CCL also regards those regulations as unacceptable infringements on the civil liberties of people in NSW.
The effect of the provisions in both sets of regulations is that protests, rallies and demonstrations can only occur at the sufferance of police and other officials. Virtually all public events can only occur with the tolerance of public officials. Our right to assemble on public land under these regulations is something less than a license. That right may temporarily be granted by public officials, but it may just as easily be withdrawn, at any time, for any reason. The enabling Act allows the regulations to affix a penalty of up to $11 000. The regulations currently stipulate a penalty of $1100 for defying such an order to stop meeting in public.
On 20 June, Greens Member of the Legislative Council David Shoebridge sought to disallow this regulation. The government prevented debate on this motion. It is shocking that the government would prevent parliamentary debate on regulations in relation to the fundamental liberties of people in NSW.
The new regulations will come into effect in less than a week. Like the regulations from 2006, they grant sweeping powers that can be used oppressively. Any power to ban activities like leafleting and public gatherings on public land is a power that is inconsistent with fundamental civil liberties. This is the perfect time to reconsider whether people in NSW should have rights on our own public lands. CCL strongly objects to these regulations, and urges their repeal.
CCL believes that a properly enshrined charter of rights would have prevented the passage of the regulations in question.
What is Crown land?
Crown Land is land that is owned by the NSW State Government. This amounts to about half of all land in NSW. According to the Department of Industry, which manages Crown Land, this includes:
some of the most iconic and diverse public land through the Crown reserve system.
The 35,000 Crown reserves provide many of the state’s town squares and local parks, state heritage sites, buildings, community halls, nature reserves, coastal lands, waterway corridors, sporting grounds, racetracks, showgrounds, caravan parks, camping areas, travelling stock routes, rest areas, walking tracks, commons, community and government infrastructure and facilities. Hyde Park and Bondi Beach in Sydney are two famous examples of the NSW Crown reserve system at work.
The department manages around 54,000 leases and licences enabling the use of Crown land across the state for a range of commercial, agricultural, industrial, community, residential and private uses.
This includes land “set aside on behalf of the community for a wide range of public purposes including environmental and heritage protection, recreation and sport, open space, community halls, special events and government services.”
What legislation applies to Crown Land?
Right now, the Crown Lands Act 1989 (NSW) applies to Crown Land. Under that Act, regulations can be passed to flesh out some of its provisions. In 2016, the Crown Land Management Act 2016 (NSW) was passed. It provided that an “authorized officer may direct a person” to “stop carrying on an activity on Crown land of a kind prescribed by the regulations”. Alternatively, the Minister or a Crown land manager may cause a notice to be displayed in a conspicuous place to prohibit persons from “carrying on an activity on Crown land of a kind prescribed by the regulations.” An “authorised officer” may be someone appointed under a written instrument by the Minister who works for the government, a local council, or another class of persons prescribed by the regulations.
The Crown Land Management Act provides that anyone who commits an offence against these regulations can be fined up to 100 penalty units. That presently amounts to $11 000. However, the regulations stipulate that an individual who defies a direction to stop carrying on a prescribed activity is to be fined $1100. An individual who defies a conspicuously displayed sign is to be fined $220. However, the Act provides that these fines could be increased up to $11 000.
The Crown Land Management Act 2016 was fleshed out with a set of regulations, called Crown Land Management Regulation 2018 (NSW). Regulation 2 provides that some of it comes into effect on 19 March 2018. Most of it will come into effect on 1 July, including the provision we are considering in this statement.
Regulation 13(1) sets out what is prescribed for the purposes of those provisions of the Act. They include “Taking part in any gathering, meeting or assembly (except, in the case of a cemetery, for the purpose of a religious or other ceremony of burial or commemoration)”.
That is, the kind of activity that is prescribed by the regulations, that authorised officers may direct a person to stop, or put up a sign to ban, includes “any gathering, meeting or assembly”. The exception is, at a cemetery, if the purpose is a “religious or other ceremony of burial or commemoration”.
Brief excerpts of relevant legislative provisions
From the Crown Land Management Act 2016 (NSW):
(1) An authorised officer may direct a person, within a specified period, to stop:
(b) carrying on an activity on Crown land of a kind prescribed by the regulations.
(2) A person must not contravene a direction.
(1) The Minister may cause a notice to be displayed in a conspicuous place on or near Crown land (or at a commonly used access point to the land) that prohibits persons from:
(a) using a structure on the land without lawful authority, or
(b) carrying on an activity on the land of a kind prescribed by the regulations.
(2) A Crown land manager of dedicated or reserved Crown land may cause a notice to be displayed in a conspicuous place on or near the land (or at a commonly used access point to the land) that prohibits persons from carrying on an activity on Crown land of a kind prescribed by the regulations.
(3) A person must not use a structure, or carry on an activity, on Crown land if the person is prohibited from doing so by a notice under this section.
10.6 Authorised officers
(1) The Minister may, by written instrument, appoint:
(a) a specified qualified person to be an authorised officer, or
(b) persons of a specified class of qualified persons to be authorised officers.
(2) A person is a
"qualified person" for appointment as an authorised officer if the person is any of the following:
(a) an employee of a government sector agency,
(b) an employee of a local council,
(c) an employee of a Crown land manager of dedicated or reserved Crown land,
(d) any other person of a class prescribed by the regulations.
From Crown Land Management Regulation 2016 (NSW):
(1) Each of the activities specified in the following Table is prescribed for the purposes of sections 9.4 (1) (b), 9.5 (1) (b) and 9.5 (2) of the Act:
4 Taking part in any gathering, meeting or assembly (except, in the case of a cemetery, for the purpose of a religious or other ceremony of burial or commemoration)
7 Distributing any circular, advertisement, paper or other printed, drawn, written or photographic matter
16 Climbing any tree, building, fence, seat, table, enclosure or other structure
30 Conducting or taking part in any sporting activity that forms part of any organised competition or tournament
32 Riding on or using a bicycle, skateboard, roller skates, roller blades, scooter or similar apparatus
For the purposes of section 11.3 of the Act:
(a) each offence specified in this Schedule is an offence for which a penalty notice may be issued, and
(b) the amount payable under any such penalty notice is the amount specified in this Schedule for the offence.
Column 1 Column 2
Offences under the Act
Section 9.4 (2) $2,200 (for a corporation) or $1,100 (for an individual)
Section 9.5 (3) $440 (for a corporation) or $220 (for an individual)
Response to NSW State Government
The NSW Government has responded to our criticisms by arguing that the new regulations are broadly the same as previous powers granted under the soon to be superseded Crown lands legislation. This argument is factually correct, but does not affect our criticism of the substance of the powers granted under the regulations in question.
The Crown Lands Act 1989 (NSW) provides in section 156 that the Minister may “may cause a notice to be served on a person prohibiting the person, without lawful authority… from carrying on any prescribed activity on public land”. It also provides that a notice “displayed in a conspicuous place” can prohibit persons from “carrying on any prescribed activity on the land”. The prescribed activities in Crown Lands Regulation 2006 (NSW) regulation 46 are broadly similar. They include “taking part in any gathering, meeting or assembly (except, in the case of a cemetery, for the purpose of a religious or other ceremony of burial or commemoration)”.
Other prescribed activities include “distributing any circular, advertisement, paper or other printed, drawn, written or photographic matter”, “disturbing any rock”, “climbing any tree”, and “riding on or using a skateboard”.
The old enabling Crown Lands Act allows for a penalty of up to 20 penalty units – $2200 – but the regulations stipulated a penalty of $220. This may be compared to the new Act, which stipulates a maximum penalty of 100 penalty units for individuals – $11 000. Under the new Regulations, the penalty for defying a direction to cease an activity is $1100 for an individual. The penalty for defying a conspicuously displayed sign is $220.
CCL believes that giving public officials the power to ban people from taking part in gatherings on public land – land that constitutes half of all land in NSW – is an unacceptably broad power. It is foreseeable that such powers may be subject to abuse. The existence of similar previous regulations does not demonstrate the merit of either sets of regulations. The question that matters is whether it is appropriate to grant such powers to public officials. Powers that can be used so oppressively should not be on the books at all.
NSW Council for Civil Liberties