The absence of constitutionally recognised human rights legislation in the form of a Bill of Rights makes laws that restrict civil and political rights in Australia difficult to successfully challenge. Former leader of the Greens, Bob Brown, who recently launched a constitutional challenge against Tasmania's anti-protest laws, is likely to have been left without standing after the Tasmanian Director of Public Prosecutions recommended the charges against him be withdrawn.
The Bill was introduced into the NSW Legislative Assembly on 8 March 2016 and passed through both Houses of Parliament on 17 March 2016. The Act was assented to on 22 March 2016. The Act came into force on 1 June 2016, however amendments to police powers under the Law Enforcement (Powers and Responsibilities) Act are yet to commence.
The increase in penalties for offences of trespass and hindering mining equipment coupled with an increase in police powers is unnecessary and disturbing. There are already a range of laws in NSW criminalising protest activity that interferes with roads, railways and mining operations. Indeed the NSW Parliamentary Research Service which recently undertook a comprehensive review of the law as it relates to protesters in NSW described the limits imposed on the right to assembly by the civil and criminal law in NSW as 'extensive' and the field of legislation as 'crowded'.
Despite this, the NSW parliament has legislated to protect mining operations and to further deter people from engaging in civil disobedience specifically at mine sites by increasing penalties and police powers. As the Premier, Mike Baird, told mining industry representatives back in November 2014 during a NSW Mining Industry and Suppliers Awards Dinner:
We need legislation that provides a real deterrent to this unlawful behaviour and protect businesses from illegal protesting activities. ... [I]f you chose to break the law when you protest, we will throw the book at you.
KIRA LEVIN is a solicitor with EDO NSW.