The right to protest comes from the implied freedom of political communication found in the Australian Constitution. It means while Australians may not explicitly have a right to protest, governments are expressly forbidden from introducing any laws which might impede a person's right to express themselves or protest. Despite this, the NSW government (alongside state governments in other jurisdictions) has introduced some of the most draconian anti-protest legislation in Australia which is accompanied by a stigmatising narrative of fear and security risk against protestors.

The NSWCCL submits that in New South Wales, section 144G of the Roads Act 1993 (NSW) (‘Roads Act’) and section 214A of the Crimes Act 1900 (NSW) (‘Crimes Act’) significantly infringe people’s rights to freedom of movement, freedom of speech, freedom of assembly and freedom of political communication, and ought to be repealed. These restrictive and repressive laws create an environment where stigmatising narratives flourish in sections of politics, media and law enforcement in Australia. There's a prevalent narrative enabled by these laws emphasising security threats and perceptions of disruption associated with public protests.

This narrative emboldens law enforcement to use unnecessary force against protestors. In September 2022 disturbing video and photographic evidence emerged of NSW police at a student protest outside The Australian Financial Review Higher Education Summit in Sydney. The video appeared to show police forcing one protestor to the ground and pepper spraying multiple other peaceful protestors outside the summit. At the time, civil Society groups, trade unions and community groups expressed concerns about increasingly harsh and disproportionate laws and actions taken against protestors in New South Wales and across Australia.

There is a narrative used by politicians and police emphasising the importance of maintaining public order and preventing disruptions caused by protests or assemblies. This was used in the arrest of climate protestors in Sydney in 2022 and later found to be false at the court hearing in 2023. NSW Police had tendered false allegations that the protest in December 2022 had “prevented an ambulance responding to an emergency under lights and sirens as it was unable to navigate through the increased heavy traffic”. These false allegations had strongly influenced the court’s decision to impose harsh bail conditions and severe custodial sentences for nonviolent, peaceful protesters. These allegations had been widely publicised in media and social media channels contributing to the narrative that justified these arrests.

One of the key factors influencing the narrative is the link between large corporations and the government. Using words like "the safety and security" or “risks of shutting down major economic activity” or “throw the book at these people,” politicians justify increasingly harsh and arguably unconstitutional penalties which are hastily drafted and introduced into law with limited debate.

In 2021 NSW Police established Strike Force Tuohy, which deployed police resources generally reserved for serious criminal activity, to disrupt and prevent environmental protests in the Hunter/Newcastle region.  This was well publicised and creates a narrative of fear, need for increased security and order in the public arena. These narratives collectively shape public attitudes, legal frameworks, and policy decisions regarding the exercise of rights to freedom of peaceful assembly and association in Australia. They seek to justify restrictions and harsh penalties based on the stigmatisation of protestors.

Through the introduction of these draconian laws Australia has restricted the ability for activists and the broader community to engage in meaningful forms of protest and direct action.

In NSW, two years on from the introduction of the draconian 2022 anti-protest laws, these laws are creating a chilling effect on civil movements and social progress. The barriers for a diverse range of groups to participate in protest action have been raised to an unattainable height due to risk of police interaction and escalated police violence, especially for groups such as First Nations people and individuals on temporary visas. The political and police response to protestors and protest movements has become increasingly hostile over the last decade and has resulted in the demonisation of protestors and protest movements across Australia.

RECOMMENDATION:

NSW Council for Civil Liberties recommends that the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association visit Australia to assess the situation and the compliance of the right to peaceful assembly and of association, including the legal frameworks in place, the progresses, challenges and opportunities for the promotion of these rights.

Read our submission here.