The NSW state government have passed new protest laws that some deem to be in conflict with Australia’s standing on human rights. Australia is a party to the seven-core international human rights treaties. In articles 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR)- external site and article 8(1)(a) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) the right to freedom of assembly and association is protected.
So has NSW breached these human rights with these new laws. Some will say yes, and some will say no, so what exactly do the laws entail.
- Changes have been made under the Roads Act 1993 and the Crimes Act 1900 to clarify and strengthen protections against what the government deems illegal activity that would disrupt any roads, bridges, tunnels, public buildings and other critical infrastructure.
The full amendment can be seen at the bottom of this article.
The penalty for breaching the act is a maximum penalty of $22,000- or 2-years imprisonment.
The laws have been passed due to the protest activities of the climate change group ‘Extinction Rebellion’ who are known to blockade major arterial roads, bridges and ports causing extreme traffic chaos with flow on economic effects to the NSW economy.
So, these laws should have no effect on a group of protestors meeting in a public park and protesting vaccine mandates for example, where that can change is if the group then decide to march along public roads and stop or interrupt traffic. Other examples of when this law could come into play is at protests at public buildings and transport hubs, if these protests interfere with the ability of people or workers to access these venues then arrests can be made, and charges laid.
So, the right for peaceful protests has not been removed completely but protestors will need to pay attention to the rules to ensure they do not end up on the wrong side of the law.
One example of where these laws could be used incorrectly could be at protests out the front of state parliament or the governor general’s home. Protestors will need to ensure they do not disrupt access to these buildings for workers and the public, but what will the Police constitute as a disruption to these facilities, will the act of just protesting out the front of the building result in Police stepping in under these laws. Time will tell but the public have the right to be concerned about them.
The Amendments
Schedule 1 Amendment of Roads Act 1993 No 33 Schedule 1 makes it an offence with a maximum penalty of $22,000- or 2-years imprisonment, or both, if a person enters, remains on, climbs, jumps from or otherwise trespasses on a major road prescribed by the regulations if the conduct— (a) causes damage to the road, or (b) seriously disrupts or obstructs vehicles or pedestrians attempting to use the road.
Schedule 2 Amendment of Crimes Act 1900 No 40 Schedule 2 creates a new offence of damaging or disrupting a major facility with a maximum penalty of $22,000- or 2-years imprisonment, or both. A person commits the offence if the person enters, remains on or near, climbs, jumps from or otherwise trespasses on or blocks entry to any part of a major facility if that conduct— (a) causes damage to the major facility, or (b) seriously disrupts or obstructs persons attempting to use the major facility, or (c) causes the major facility, or part of the major facility, to be closed, or (d) causes persons attempting to use the major facility to be redirected. A major facility means the following— (a) the ports of Botany Bay, Newcastle and Port Kembla, (b) a railway station, public transport facility, port or infrastructure facility prescribed by the regulations.
If you go to Part 4AF Major facilities of the Crime Act 1900 you will find additional information on what is considered a major facility for the purpose of Schedule 2 of the amendment. See Below:
(7) In this section—
major facility means the following, whether publicly or privately owned—
(a) a railway station or other public transport facility prescribed by the regulations,
(b) a private port within the meaning of the Ports and Maritime Administration Act 1995, or another port prescribed by the regulations,
(c) an infrastructure facility, including a facility providing water, sewerage, energy, manufacturing, distribution or other services to the public, prescribed by the regulations.
RESOURCES:
NSW Press Release: Protecting communities from illegal protestors
NSW Roads and Crimes Legislation Amendment Bill 2022
