CIVICUS speaks with David Mejia-Canales, senior lawyer at the Human Rights Law Centre (HRLC), about anti-protest legislation being introduced in states across Australia and its impact on civil society activism.
The HRLC is an independent civil society organisation (CSO) that advances strategic legal action, policy solutions and advocacy to support people and communities to eliminate inequality and injustice in Australia.
What is the situation of civic freedoms in Australia following last year’s change of government?
Australia doesn’t have a national charter of human rights that legally protects people’s human rights. We are the only western democracy without a national charter or similar document. There are, however, three charters of rights operating successfully at the state and territory levels. This means that the protection of your civic freedoms in Australia is at least partly dependent on the jurisdiction you are in.
Following last year’s election, we have a new federal government that is willing to consider ambitious reforms on how civic freedoms are protected in Australia. The new government has initiated a parliamentary inquiry to make improvements to our human rights frameworks, including considering whether Australia should have a national charter of human rights. Later this year, Australians will vote on a referendum to alter the constitution to establish a permanent, constitutionally enshrined, First Nations advisory body to the legislative and executive branches of government. We are heartened by these steps in the right direction. However, the proof will be in the implementation of all these measures.
What is driving the increase of anti-protest legislation at the state level?
As environmental activism increased in response to the worsening climate crisis, state governments have increasingly sought to introduce laws explicitly criminalising protest. These laws are often so broad and vague that it could be argued that they are introduced more for the benefit of newspaper front pages than for a genuine, legitimate purpose.
It is also important to note that other laws and powers are being increasingly used to criminalise protest, even where not originally intended for this purpose. For example, move-on orders, surveillance and bail conditions are all regularly used in attempts to silence protesters.
Due to Australia’s incredibly lax lobbying regulations, it is impossible to know in what measure state governments around the country have introduced these laws as a result of pressure from oil, gas and mining corporations. Fossil fuel companies donate millions to the major parties to discourage politicians from regulating them properly. Overall, corporations spend billions hiring lobbyists to cosy up to politicians.
They can do all this because Australia lacks basic transparency and integrity safeguards, and our outdated laws leave money in politics woefully underregulated. We need to address the power of harmful industries to skew democratic processes to win political outcomes that put their profits ahead of our wellbeing.
Which groups are being targeted by anti-protest laws?
These laws are almost exclusively targeting environmental activists. However, many of these laws are so vague and broad that they often end up criminalising other types of conduct occurring in the public realm, like blocking a road or obstructing a public passageway. While their intent is to criminalise protesters, these laws are so broad that they could be used against anybody. In some jurisdictions penalties consist of steep fines or two years in prison. Often the penalties are grossly disproportionate to the offences.
In the state of New South Wales, a police taskforce was established with the express purpose of breaking up environmental protest groups. A taskforce is a concentration of police resources usually reserved for very serious crimes like murder or to deal with organised criminal groups. In Western Australia, anti-terrorism police have been involved in seizing devices like phones and memory cards of journalists covering protests.
What are the recent amendments to the protest law in South Australia?
South Australia is the latest jurisdiction to have imposed severe penalties on people for engaging in peaceful protest, joining New South Wales, Queensland, Tasmania and Victoria. South Australia’s anti-protest laws carry the harshest financial penalties in Australia.
The Summary Offences (Obstruction of Public Places) Amendment was rushed through the South Australian Legislative Assembly without any public consultation: it was introduced and passed on 18 May 2023. It was a response to protest activity in the city of Adelaide, which briefly closed traffic on a bridge.
The bill dramatically increases the maximum fine for obstructing a public place from AU$750 (approx. US$500) to AU$50,000 (approx. US$33,300) and introduces prison penalties of up to three months. It will surely have a chilling effect on protest in South Australia, undermining people’s ability to exercise this right.
How has civil society responded to the amendment?
There has been an incredible response. South Australia is rightly proud of its history of protest and dissent. It was the first place in Australia, and the second in the world, to grant women the right to vote, and the first place in the world to grant women the right to stand for election to parliament. South Australians deeply understand that these, and many other rights and liberties, were won through protest.
It is incredibly heartening to see such a strong reaction from civil society, including unions, climate defenders, women’s rights organisations, LGBTQI+ organisations, charities, legal assistance services and the legal profession. Civil society deeply resisted these laws not just in parliament but also in the streets, through rallies and other forms of protest. It was because of this incredible response that at least one of the worst elements of the bill was removed through an amendment in the upper house.
The amendment involved a single word – ‘recklessly’. In the original definition, the offence applied to ‘a person who intentionally or recklessly engages in conduct that obstructs the free passage of a public place’. This would have disproportionately criminalised very peaceful protest activity like handing out flyers on a sidewalk, because it would apply even to people unintentionally committing an offence.
What can the international community do to support civil society’s response to restrictions?
The right to protest is a fundamental human right that, together with the right to vote, has been instrumental in advancing other human rights and civil liberties. It is critical that the international community join civil society in Australia and anywhere to fight back against any interference in the right to protest. This could be as simple as amplifying the calls of activists on the ground and supporting their movements.
As the climate crisis intensifies it is crucial that we all protect the right of those fighting for climate justice to continue to gather and demand better from our governments.
Civic space in Australia is rated ‘narrowed’ by the CIVICUS Monitor.
Get in touch with the HRLC through its website and follow @davidHRLC on Twitter.