Protest bans in NSW and South Australia - are they constitutionally valid?
25.09.23
In Australia, we can generally display our political opinions in public without fear of penalty, government persecution or violence. The High Court confirmed in the mid 1990s that our constitution contains an implied freedom of political communication, which is central to our representative democracy. The freedom is not absolute, and some regulation of protests is permitted.
But in 2022 and 2023, two Australian states (NSW and South Australia) passed laws which banned certain forms of protest. Do those laws go too far?
What are the protest bans in question?
The laws in question dramatically increased the penalties for engaging in political protest where that protest is done in a manner which damages or obstructs major roads, tunnels or bridges or damages or disrupts 'major facilities' (NSW) or which 'intentionally obstructs the free passage of a public place' (SA).
In NSW, maximum penalties are now $22,000 or 2 years imprisonment or both; in SA, maximum penalties are now $50,000 or 3 months imprisonment.
While the language of the laws is general – each concerns the action, whatever the communicative purpose of that action – in each state, the legislation was passed as an urgent response to specific political protests which had involved obstruction of the kind which could now attract life-changing penalties. Those political protests concerned climate change.
That the protests were the reason for the amendments was made very clear in both states when the respective bills were introduced. The protests were the subject of the first four sentences in the second reading speech made by the then NSW Attorney-General, the Hon Mark Speakman MP, when introducing the Roads and Crimes Legislation Amendment Bill 2022. In SA, the Premier, the Hon Peter Malinauskas MP, referred in his second reading speech on the Summary Offences (Obstruction of Public Places) Amendment Bill 2023 to 'the way that the protests are increasingly conducted' and to things which 'in recent days' had, in his view, 'caused genuine anxiety' to members of the community.
But, a constitutional enthusiast might ask, don’t we have an implied freedom of political communication in Australia? Well, yes.
And doesn’t it sound like legislation which is directly aimed at political protest might infringe that implied freedom? Quite possibly.
So is the legislation in each state invalid? That is certainly arguable – and the NSW legislation is already the subject of challenge in the NSW Supreme Court in the ‘Knitting Nannas’ case. It seems likely that the High Court will be called on to decide the question in the not too distant future.
Overview of key arguments
Some of the key arguments which would likely be considered in a constitutional challenge are as follows.
Under the 'McCloy test' (see McCloy v NSW (2015)), there are three limbs or questions to be asked in addressing a challenge of this kind. These were summarised in Clubb v Edwards (2019) by Kiefel CJ, Bell and Keane JJ at [5]:
Does the law effectively burden the implied freedom in its terms, operation or effect?
If 'yes' to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
If 'yes' to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
Does the law burden the implied freedom?
Question 1 is likely to be answered 'yes' for each of the NSW and SA laws – that is, the laws are likely to be found to effectively burden the implied freedom.
The operation and/or effect of the laws clearly make certain kinds of protest unlawful. It is true that, unlike the legislation considered in Brown v Tasmania (2017), the laws do not expressly use the term 'protest' or 'protesters'. But the debates in both states when the laws were passed (both in Parliament and in public), described above, make it clear that legislators knew and intended that the laws would criminalise (or criminalise to a greater extent) certain kinds of protest.
Protest is, quintessentially, political communication. In the circumstances, it is not only the case that protest actions will be captured by the legislation – that is, that protesters will be liable to arrest, prosecution and potentially conviction – but also that is the clear intention of the legislation. So it is almost certain that the Court would accept that the relevant laws effectively burden the implied freedom.
Is the purpose of the law legitimate?
As to Question 2, as Kiefel CJ and Keane J said in Farm Transparency International Ltd v NSW (2022) at [34], it is necessary 'to distinguish between an effect of an impugned provision and statutory purpose'. Each state is likely to argue that there is a legitimate purpose behind the relevant provisions, being the protection of the lawful business of individuals and corporate actors. As Gageler J said in Brown at [212]-[213], ‘[t]here could be no question that’ the protection of businesses ‘from conduct that seriously interferes with the carrying out of business activity, or access to business premises’ is a purpose which ‘is compatible with the maintenance of the constitutionally prescribed system of government’ – that is, it is a legitimate purpose. There is thus a good chance that a majority or more of the High Court would accept an argument to this effect in any constitutional challenge to the legislation considered here. If so, then the states would succeed on this question.
But there could be some risk for the states in relation to Question 2.
While the text of each law is about obstruction, damage and disruption, as outlined above, the stated reason for the introduction of the laws was to quell certain kinds of protests which were being carried out in certain ways. As a result there is a clearer and more intentional link between the laws in question and the effect on political communication than there was in Farm Transparency. That case was about a law of general operation prohibiting the making and use of video footage in certain circumstances. That law had been enacted for reasons which had nothing to do with any chilling effect on political communication.
As a matter of general statutory construction, it is entirely legitimate to use the second reading speeches (and Parliamentary debate generally) in interpreting the relevant provisions, including in determining purpose. In a criminal case involving the application of these provisions to a particular protestor, what was said in those speeches would certainly be part of the judicial exercise in understanding the scope of the prohibitions and their application to the alleged facts. Whether the speeches would be used in this way to assess the statutory purpose in answering the McCloy Question 2 is another issue.
Overall, in answering Question 2, it is more likely that the Court will accept that the purpose of the laws concerns the avoidance of obstruction, damage and disruption. The intended impact on political communication would then form part of the analysis in relation to Question 3.
Is the law reasonably appropriate and adapted?
As to Question 3, in McCloy and cases which have followed it, the High Court has adopted a 'structured proportionality' approach, as discussed in previous posts on this blog by Arisha Arif and Emily Azar and Dane Luo.
As set out at [2] in McCloy by French CJ, Kiefel, Bell and Keane JJ, 'structured proportionality' requires consideration of whether the law is suitable, necessary and adequate in its balance in the following senses:
suitable — as having a rational connection to the purpose of the provision;
necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;
adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.
There is often significant overlap between the suitability limb in Question 3 and the legitimate purpose limb in Question 2. And the High Court is often reluctant to get into too much detail on the necessity limb. In Farm Transparency, the Court was asked to consider similar statutes in other states, which were said to achieve the same purpose with a lesser burden on the implied freedom. A majority of the Court ultimately found the laws were too different (see [52], [182], [261]). Overall, the decision tends to emphasise Court’s deference to Parliament in relation to the question of necessity.
Is obstructive protest ‘peculiarly communicative’?
As in most cases, where the debate about validity is likely to get interesting is on the question of whether the laws are adequate in their balance. One argument that is likely to be raised is whether the kind of protest which is targeted by this legislation is 'peculiarly communicative' in a political sense, and whether that means that such protest should attract stronger protection.
This line of reasoning finds its source in Gageler J’s reasons in Farm Transparency. At [79], his Honour said:
It may well be legitimate to seek to dry up an illegal market for stolen goods by prohibiting possession and sale of goods known to have been obtained by burglary. However, the market sought to be dried up by the prohibitions in this case is a constitutionally protected ‘marketplace of ideas’.
His Honour considered that the ‘peculiarly communicative’ nature of visual imagery (at [80]) and the 'indiscriminate' impact which the laws in question had (at [81]) meant that the laws in that case went too far and so did not satisfy the final part of the test (at [82]).
Analogous reasoning in this case might say:
The form of protest in question is the obstruction or disruption of traffic on important thoroughfares at busy times, or disruptions at facilities which are directly connected with climate change risks (such as the ports from which coal is exported). These forms of protest might be seen as ‘peculiarly communicative’ because the number of people impacted by such protests, as well as the size of their economic effects, means they are more newsworthy, and so more likely to be reported upon. In this way, the message behind the protest might be spread more widely.
The legislature in each state has targeted (deliberately and directly) that specific form of protest, and so seeks to dry up the constitutionally protected ‘marketplace of ideas’.
The impact is ‘indiscriminate’ in the sense that there is a blanket ban on protest of this kind, no matter what the interest is of the people engaging in the protest or those who might receive the message from it.
For these reasons, the legislation is not adequate in its balance.
While Gageler J was in dissent in Farm Transparency, the nature of his Honour’s reasoning is consistent with the McCloy test and with the approach taken by the majority judges. It simply represents a different opinion of where the balance in the particular circumstances of Farm Transparency was to be struck. In a case concerning laws passed in order to make it more difficult to engage in certain kinds of protest, more judges might find a position of this kind compelling.
The ‘value judgment’ ultimately adopted by each judge would no doubt depend upon a number of factors, including the evidence actually placed before the Court.
It might also depend on the extent to which what is communicated so strongly by obstructive protest is seen to be ‘true’. In Farm Transparency, the fact that Gageler J considered videography to be ‘factual’ and ‘true’ was an important part of his Honour’s consideration of the power of that form of communication: see [80]-[81] (although, as discussed by Henry Palmerlee, there might be real questions as to the ‘truthiness’ of the visual medium, particularly in these days of deepfakes). In the case of obstructive protest, while the communication might always be powerful, there is no guarantee at all that it will be true.
Do the exemptions in the laws provide sufficient balance?
The arguments made by each state could also make use of language in the provisions themselves which might be said to narrow the scope of the prohibitions.
In NSW, the state might argue that the scope of the laws is narrowed, so as to make them sufficiently ‘adequate in [their] balance’, by the exemptions for industrial action and for action related to Parliament House as well as members of Parliament. Those exemptions might be said to protect some of the most important kinds of political protest – they are certainly those which attracted the most targeted attention from the Labor Party (then in opposition), Greens and independent members of both Houses in debate on the bill.
The state might also argue that the ‘reasonable excuse’ defence applicable to both offences gives the laws more balance. However, it is likely that most kinds of political protest (without something more) would not be a ‘reasonable excuse’. That is because, even if it might generally be arguable that political protest provides a ‘reasonable excuse’ to obstruct traffic (for example), what is a ‘reasonable excuse’ would be interpreted by reference to the usual principles of statutory interpretation. Those include a consideration of the purpose behind the legislation in question, including as evidenced by any parliamentary debate. As described above, the debate in both states made it clear that the legislation was directed at obstructive protest. In those circumstances, it is unlikely that a court would accept that political protest provides a relevantly ‘reasonable excuse’ for conduct which is criminalised by this legislation.
So, when attention is directed at the impact on political communication, the ‘reasonable excuse’ defence does not change the balance much, if at all.
In SA, the state might argue that the legislative decision to require an intention to obstruct (amended from the wording initially proposed, which also included recklessness as to obstruction) means the law is sufficiently balanced. But, as with NSW’s ‘reasonable excuse’ defence, any protest of the kind the prohibition is aimed at would almost certainly involve an intention to obstruct. While the inclusion of ‘intention’ makes the law narrower in relation to conduct which might not be its deliberate target, it is unlikely to produce a more refined result in relation to the very type of political communication which motivated the new laws.
Could the states rely on previous prohibitions to support validity?
Finally, both states would be likely to rely on the statement by Kiefel CJ and Keane J in Farm Transparency at [37] that ‘[t]he relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly restrict.’ In both NSW and SA, there were already some restrictions on obstructive protest (for example, in NSW, obstructive protest on the Sydney Harbour Bridge was prohibited). The new laws extend the range of places where obstructive protest is prohibited.
The states might argue that the amendments merely broadened the circumstances in which conduct was criminal and (in SA) increased the available penalties rather than changing the type of conduct which is prohibited, and so represented only incremental change.
If these arguments are raised, the size of the increased penalties is likely to become particularly significant. It might be possible for the Court to accept that a fine of a few hundred dollars represents an acceptable price to pay for a protest that causes obstruction, and so not too great a burden on the implied freedom. It is more difficult to argue that is true for a fine of thousands of dollars (potentially tens of thousands) and/or a deprivation of liberty. In those circumstances, these laws might be said to extend ‘far beyond’ the previously existing laws in SA, or beyond what is reasonable generally (compare Farm Transparency per Edelman J at [242]).
Conclusion
Overall, there is a real question over the validity of the laws in both states. In NSW, the provision prohibiting protest which damages or disrupts ‘major facilities’ are already the subject of the ‘Knitting Nannas’ litigation, heard by the NSW Supreme Court in May. So stay tuned for High Court challenges, whether arising out of the ‘Knitting Nannas’ case or otherwise.
Brenda Tronson is a barrister at Level 22 Chambers in Sydney.
Suggested citation: Brenda Tronson, ‘Protest bans in NSW and South Australia - are they constitutionally valid?’ (25 September 2023) <https://www.auspublaw.org/blog/2023/9/protest-bans-in-nsw-and-south-australia-are-they-constitutionally-valid>