Supreme Court case takes on repressive NSW undemocratic anti-protest law

Contributed by Adam Carlton

A case has just been heard before the NSW Supreme Court has drawn attention to the outrageous new anti-protest laws in this state.  Put through as amendments to the Crimes Act and passed through parliament last April, they empower government ministers to order the forceful remove people from a road or facility, including a railway station. The penalty for breeching such an order can be imprisonment. This is a law designed to silence critics of the government’s policies and actions through intimidation.

Not everyone enjoys the money and connection to be heard through the political establishment and equal access to media. Their voice is in the streets, and taking away this voice is to silence them.

Till now, the focus has been on protectors of the environment. It won’t stop here though. Politicians are quick to get a taste for their newfound authority.

The first person to be imprisoned for this law was Deanna “Violet” Coco. She was sentenced to 15 months for a protest on Sydney Harbour Bridge in 2022. She was lucky. Her appeal proved that the police had lied about her blocking an ambulance and their testimony was no longer reliable. There was no other course but to quash the sentence. The police later admitted the lie.

Two members of the environmentalist group the Knitting Nannas, Kvelde and Dominique Jacobs, were in the court. They were supported by the NSW Environmental Defenders Office., which argued that the amendment to the Crimes Act is unconstitutional, because it infringes on freedom of political expression.

Kvelde and Dominique Jacobs brought the case before the NSW Suprreme Court

“The explicit purpose of the law is to impose a burden on political communication, because it is perceived … a particular form of protest … should be prohibited and subject to severe penalties,” said the lawyer acting for the plaintiffs, Stephen Free SC.

Kvelde and Dominique told the court that fear of arrest and imprisonment has intimidated then to the extent that they are too scared to attend any more protests, and that this is silencing them.

Never mind that the government’s claim that the law is only there to protect the right of people to use roads and public facilities. This is the claim of every would-be tyrant in Australia or overseas. Repression is always pronounced as a virtue. Unfortunately, the new Labor government has continued on the same track. The truth is that this is the result of a fear of political opposition and adverse public opinion.

Justice Michael Walton, who is the judge presiding over the case, has reserved his decision.

Whatever the result, it will revolve around legal technicalities. That there is a threat to freedom of pollical expression is obvious. This doesn’t mean that the state’s Supreme Court will defend this right. The fossil fuel lobby is a major donator to the political establishment, has leverage, and has been pushing for better [protection of its own industries from the government and the law.

A weakness of the Australian constitution is that while it might imply the right to political expression, it does not actually state it, and this provides considerable wiggle room for the political elite to do as they like. It was the British parliament that fashioned this constitution and entrenched in it the protection existing privilege above other considerations.  This means that the NSW government may well be found to have acted within its scope.

Repression breeds more resistance, and whatever the result here, those who seek to find a voice in the streets will continue.

In a little more than two weeks United States President, Joe Biden, will be in Sydney, and he won’t be the most popular person in town. There are bound to be protests covering a range of causes, from the threat of war and nuclear submarines to United States infringement on Australia’s sovereignty. Supporters of WikiLeaks founder Julian Assange will be there to be heard.

Will the new law be applied on this occasion?  What will be the reaction of they do?

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