Human rights advocates warn that new laws in some Australian states are targeting climate protesters for disproportionate punishment.
This statement was originally published on hrw.org on 22 June 2022.
Disproportionate punishments, excessive bail conditions
The authorities in the Australian state of New South Wales (NSW) are disproportionately punishing climate protesters in violation of their basic rights to peaceful protest, Human Rights Watch said today. New anti-protest laws currently before parliament in the states of Victoria and Tasmania would also invoke harsh penalties for non-violent protest.
Following increased climate protest activity in New South Wales, the government in March 2022 established a new police unit known as the Strike Force Guard. The unit is designed to “prevent, investigate and disrupt unauthorised protests across the state.” On April 1, the state parliament introduced new laws and penalties specifically targeting protests that blocked roads and ports. Protesters can now be fined up to AU$22,000 (US$15,257) and be jailed for up to two years for protesting without permission on public roads, rail lines, tunnels, bridges, and industrial estates.
“Climate protesters are being increasingly and disproportionately subjected to vindictive legal action by Australian authorities that is restricting the rights to freedom of peaceful assembly and expression,” said Sophie McNeill, Australia researcher at Human Rights Watch. “Magistrates in New South Wales have been imposing harsh penalties and bail conditions on climate protesters that violate basic rights.”
Human Rights Watch interviewed three climate protesters arrested and charged by police since the government introduced the new laws and formed the police strike force. These cases indicate that climate protesters are being targeted for disproportionate punishment.
One of the climate protesters, Andrew George, a supporter of the climate activist group Fireproof Australia, spent 14 days in a maximum-security prison before his sentence was overturned by a higher court, which ruled that his actions did not warrant a custodial sentence.
Police arrested George, 33, on April 10 after he climbed over a spectator fence and ran onto the pitch carrying an emergency flare during a nationally televised rugby league game at PointsBet Stadium in Sydney. George pleaded guilty to two charges, unlawful entry on enclosed lands and possession of a bright light distress signal in a public place.
The magistrate determined that “the objective seriousness of the matter sits in the lower range,” and that George’s offenses were not covered by the new legislation. However, he then denied George bail and sentenced him to three months in jail. George had participated in three other climate protests in the previous two months for which he faced three charges of disrupting traffic. In October 2020, George was arrested without conviction for a climate protest activity.
George spent 14 days in Silverwater maximum security prison before his conviction was overturned on April 27 in the District Court, with the judge ruling that the offenses did not meet the threshold required for a custodial sentence. George was released from prison that same day.
Human Rights Watch’s review of similar offenses found that other reported first-time pitch invaders received fines, rather than custodial sentences. An examination of recent sentences handed down in NSW courts found that people convicted of drunk driving, assault, or drug offenses also did not receive custodial sentences. George’s case raises concerns that a disproportionate sentence was imposed for politically motivated reasons.
Magistrates in NSW have also ordered climate protesters to abide by overly strict bail conditions.
Violet (Deanna) Coco, a 31-year-old Fireproof Australia supporter, took part in a climate protest on April 13 that stopped traffic in one lane on the Sydney Harbour Bridge. Coco climbed on the roof of a parked truck and stood holding a lit emergency flare. After approximately 25 minutes, NSW police forcibly removed her and the other protesters from the road. Coco is facing seven charges including disrupting vehicles, interfering with the safe operation of a bridge, possessing a bright light distress signal in a public place, failing to comply with police direction, and resisting or hindering a police officer.
She was also charged under explosives regulations for holding the emergency flare, and with an incitement offense for “encouraging the commission of a crime” by livestreaming the protest on Facebook. Coco had filmed a climate protest the previous week, and was charged then with incitement for uploading those images. She also participated in three other climate protests in the previous two months for which she faced three charges of disrupting traffic.
Coco pleaded guilty to two charges – blocking traffic and failing to comply with police direction – and not guilty to the other charges. She was released on AU$10,000 ($6,939) bail, but the magistrate ordered her not to leave her apartment for any purpose except for emergency medical assistance or to attend court. She was also ordered not to associate with any other Fireproof Australia member.
Coco spent 21 days under what amounted to house arrest. On May 5, a magistrate amended her bail and, while she was allowed to leave her property, the authorities imposed a curfew banning her from leaving her address before 10 a.m. and after 3 p.m. Coco remains under these strict curfew conditions for the foreseeable future, awaiting trial.
“I understand that I broke the law, and I’m willing to accept the consequences of my actions,” Coco told Human Rights Watch. “But I don’t think that peaceful protesters should be under 24-hour house arrest. Civil disobedience has historically been a way that we’ve been able to achieve mass social change when all other avenues have failed. And I would say we are in that situation right now. And that I plan to continue to peacefully protest to try and protect the livability of our planet.”
Jay Oliver Larbalestier, 36, took part in the same climate protest as Coco. Larbalestier sat on one lane of the bridge and superglued one of his hands to the roadway. He pleaded guilty to three charges including disrupting vehicles, interfering with the safe operation of a bridge, and refusing or failing to comply with police directions.
He spent two nights in pretrial custody in the Surry Hills Cells Complex. He was then transferred to Silverwater maximum security prison for one night, then released on AU$5,000 ($3,468) bail. Larbalestier had also taken part in a climate protest the previous week that stopped traffic for several minutes and had been charged with obstructing traffic.
Larbalestier’s bail conditions stipulated that he could not leave his house for any purpose except for emergency medical assistance or to attend court. The magistrate ordered him not to associate with any member of Fireproof Australia. Larbalestier spent 42 days under house arrest before his bail conditions were amended on May 27, and he was no longer banned from leaving his home.
The actions by Australian authorities against the climate activists appear aimed at curtailing climate activism more generally, Human Rights Watch said. The United Nations Human Rights Committee, in its General Comment on the right to peaceful assembly, stated that “Where criminal or administrative sanctions are imposed on organizers of or participants in a peaceful assembly for their unlawful conduct, such sanctions must be proportionate, non-discriminatory in nature and must not be based on ambiguous or overbroadly defined offences, or suppress conduct protected under” international law.
Consistent with the presumption of innocence, defendants should normally be granted release pending trial. The International Covenant on Civil and Political Rights, to which Australia is a party, provides in article 9(3) that “[i]t shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.”
The UN Human Rights Committee, in interpreting this provision, has stated that detention before trial should be used only to the extent it is lawful, reasonable, and necessary. Necessity is defined narrowly: “to prevent flight, interference with evidence or the recurrence of crime” or “where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.” The weighing of the relevant criteria for a finding of necessity requires an individualized determination.
In addition to the NSW laws, legislation currently being debated in the Tasmanian parliament would permit the authorities to fine protesters up to AU$12,975 ($8,999), or to jail them for 18 months for a first offense, and to fine organizations up to AU$103,800 ($71,995), if they were judged to have obstructed workers or caused “a serious risk.” In Victoria, legislation before parliament would allow the authorities to sentence protesters who attempt to prevent native forest logging to up to 12 months in jail or more than AU$21,000 ($14,565), in fines and to ban them from protest areas.
“The Australian authorities’ crackdown on climate protesters is an alarming new trend,” McNeill said. “Citizens who protest and violate the law can face appropriate punishment, but the punishment should not be intended to prevent all protesters from exercising their fundamental right to protest. Climate action will mean more people peacefully taking to the streets, not fewer, and the authorities should accept that.”
