This year alone, news headlines have reported on protester arrests on a near-weekly basis. The penalties faced by peaceful protesters have increased, and even when no convictions result, the impact on individuals of being arrested, held in custody, and threatened with prison sentences or fines into the thousands can be hugely stressful.
In this space, lawyers often provide education for individuals and organisations planning protests before, during, and after a protest. This holistic approach to preparing and reacting to the consequences of civil protests falls under the umbrella of ‘Activist Legal Support.’ There is a long history of legal observers attending protests to monitor police and activist behaviour, documenting the actions of both parties. Then, there’s the legal support team, who plan and coordinate legal advice around what the protesters are planning, legality within the specific jurisdiction, possible charges, and possible penalties.
The legal information element is responsible for clearly communicating possible causes of arrest, how to respond if this occurs, possible charges and penalties, and resources in the event of this happening. The other two arms are arrest support and court support, providing psychological and legal support, advice and resources over the sometimes lengthy process of a case.
In circumstances of mass arrest, there are a number of vital roles that cumulatively form an activist legal support team: arrest support, liaison with lawyers, police liaison, and court support over the months between a charge being laid and a hearing.
According to Melbourne Activist Legal Support (MALS), activist groups should be adequately preparing activists and those in support roles well before staging a protest or assigning legal observer roles. This includes arranging in-person or video call-based legal briefings, and ensuring there are lawyers prepared to advise the organisation and activists, or to represent them upon charges being laid.
The preparatory legal information that activists ought to be provided prior to any protest activity should be, according to MALS, “drafted and verified by a solicitor, written in ‘plain’ language – (avoiding legal jargon) and always couched in terms of what is potential or possible.”
They advise that this information “can be provided in pamphlets, handbooks, blog posts or during activist trainings or in briefings before and during actions.”
MALS, like many other activist organisations, points out that this legal information can be confronting, even scary, but that throughout history, protesters have taken peaceful civil action to make fundamental change despite the risks.
Timothy Raynor is a criminal solicitor with O’Brien Solicitors, which has represented a number of activists and observers.
He points out, “protest is a really important mechanism for change, and a lot of people who have protested have ended up on the right side of history, with the classic example being the suffragettes.”
The consequences of protest
On 6 February this year, O’Brien Solicitors lodged a statement of claim to the District Court of NSW on behalf of plaintiff, University of NSW student Cherish Kuehlmann. The claim for damages alleged false imprisonment, assault & battery, trespass to goods and malicious prosecution pursuant to Sections 6 and 8 of the Law Reform (Vicarious Liability) Act 1983 (NSW).
A year earlier, on February 17, Kuehlmann was one of 30 students who attended a protest against excessive bank profits at the Commonwealth Bank of Australia, followed by another protest outside the Reserve Bank of Australia – both in Martin Place, Sydney. Just past midnight, police attended Kuehlmann’s home address to arrest her on the offence of aggravated unlawful entry on inclosed lands under section 4B(1)(a) of the Inclosed Lands Protection Act 1901 (NSW), which is a fine-only offence with a maximum penalty of 50 penalty units ($5500). She was taken into custody at 1am, fingerprinted just past 2am, and granted conditional bail just after 3am, with a court appearance at Downing Centre Local Court for March 1, 2023. In October, police withdrew the charge before the magistrate dismissed the matter and the civil claim was settled confidentially.
Following the 2023 Rising Tide blockade of Newcastle Port in November, in which police arrested 109 activists, 99 people were charged with Section 14a of the Marine Safety Act 1998 (NSW), “unreasonable interference by operation or use of vessel.”
While 40 people had no convictions recorded, 21 people received convictions in the first court hearing on 11 January this year, and 35 others pleaded guilty with an additional five being convicted. The majority of those pleading guilty received no penalty nor recording of the offence. While a maximum fine of $5,500 (50 penalty points) was possible, the largest penalty imposed was $400 and the only protesters fined were those with prior convictions.
Rising Tide Acquittals
Rising Tide was one of the earliest climate action groups in Australia, forming in Newcastle in 2005. The group have planned the “2024 People’s Blockade of the World’s Largest Coal Port” between November 19 and 28 in Newcastle. They have labelled the period between November 22 and 24 as their “Protestival”. The group claims 10,000 people will attend the 10-day “peaceful and disruptive” blockade which hinders coal exports for 50 hours over two full nights.
Last year’s blockade was also a peaceful, but disruptive, event that resulted in three legal observers being charged.
In August this year, O’Brien Solicitors – including Rayner – obtained acquittals for the three legal observers owing to a lack of police evidence for interference. A legal observer’s role is to document and monitor protests, and their positions are protected under Article 19 of the Universal Declaration of Human Rights.
Raynor explains legal observers are “often present, and they have a long history of participating at protests. They don’ t have many legal protections as members of associations. Under international human rights law, they have protections, but under NSW law, they have regrettably few protections and local courts in NSW don’t recognise legal observers. When activists are charged, they have to rely on either poor police investigation or good criminal defence.”
The Human Rights Law Centre labelled the current anti-protest laws in NSW “draconian” after amendments to the Roads Act 1993 (NSW) and the Crimes Act 1900 (NSW) were adopted in April 2022. These amendments, which defined offences in vague terms, threatened up to two years’ imprisonment and a $22,000 fine.
Patrick Latham, a solicitor with O’Brien Solicitors, says these amendments “seem to have been directed towards climate change protesters – including Extinction Rebellion and Rising Tide seemingly in focus.”
While activists may not have convictions recorded, nor prison terms imposed, it can be deeply disruptive to their lives and wellbeing to experience being arrested and held in custody. Others can experience onerous bail conditions that may curb their travel or ability to attend their place of education or employment.
“Offenders can be controlled by the threat of breaching bail on what are often fine-only offences. It’s a tactic used as a deterrent in week-long protest events,” he says.
In relative terms, a Human Rights Watch review indicated NSW courts found that people committing violent common crimes like assault were avoiding custodial sentences at the same time that peaceful protestors and activists were given months in maximum security prison. Victoria, in August 2022, introduced penalties of up to a year in jail or $21,000 in fines for environmental protestors. Tasmania, likewise, introduced $13,000 fines or two years in prison, with nongovernmental organisations accused of supporting members of the community to protest threatened with fines of over $45,000.
Raynor says, “Over the past two years, when you speak to a client or you’re reviewing a brief of evidence served by police, we’re seeing that police are sometimes approaching protesters and protest organisations in the same way they’d approach organised criminal groups or syndicates such as outlaw motorcycle gangs. Police have far-reaching powers and they are investigating protesters as if they’re major or significant criminals.”
Long-lasting consequences of being charged
The consequences of protest, and subsequent charges, cannot be overlooked.
Raynor says, “It can have far reaching lifelong consequences. Even if someone is acquitted of a minor criminal offence, or an infringement fine-only offence, you may have to disclose that to a future employer – especially in legal or accounting workplaces. You could also be limited to where you can travel overseas for a period of time.”
“Organisations are really good in that they do have plans in place – safety and risk management plans – to indicate what they can and can’t do, and what to do should police do something. The benefit of those plans, despite courts not recognising legal observers in Australia, is that those safety management plans can be tendered in courts to defend against police claiming there’s a reckless disregard for safety.”
In NSW, a Form 1 is required by police prior to a protest being held. This Notice of Intention to Hold a Public Assembly (nsw.gov.au).
According to the Environmental Defenders Office, Part 4 of the Summary Offences Act 1988 (NSW) contains provisions that facilitate the right to protest in NSW, with the intention of encouraging cooperation between protesters and the police in planning a public demonstration or protest.
Once Form 1 is supplied, if the NSW Commissioner of the Police does not oppose the public assembly, then it is authorised. If at least 7 days’ notice is given to the Commissioner, and the Commissioner is opposed to the public assembly, the Commissioner must apply to the Court to prohibit the public assembly. The Court then decides to either authorise or prohibit the public assembly. If less than 7 days’ notice is given to the Commissioner, and the Commissioner opposes it, the public assembly organisers must apply to the Court to authorise the public assembly. The Court then decides to either authorise or prohibit the public assembly.
Latham says, “In practical terms, Form 1 is a good idea. Police may approve the submission or negotiate changes before they can take it to court and challenge it. Police then have the obligation to take it to court if they can’t negotiate changes.”