Hefty new penalties now applied to protesters

Jun 5, 2023

Protesters support Coco Violet. Photograph by Kate Geraghty courtesy of The Sydney Morning Herald

Deanna “Coco” Violet wept with relief inside the NSW district court in March this year when she learned that her 15-month prison sentence had been set aside.

Almost a year earlier, you might remember, Violet was one of four protesters who blocked a lane on the Sydney Harbour Bridge as part of a climate protest.

She clambered aboard the roof of a rented truck and held aloft a flare to draw attention to her cause.

The state’s political and criminal justice system bared its teeth in response.

In the miserable legal prose of the seven charges levelled against her, the flare she set off that morning on the bridge had become an “unauthorised explosive”. But that was the least of her problems.

Violet became the first person to be charged with a new offence – an amendment to the roads act that allowed for fines of up to $22,000 and up to two years in jail for anyone found to have blocked major infrastructure in a way which “seriously disrupts or obstructs vehicles or pedestrians”.

In court the crown prosecutor argued that though Violet’s protest did not involve violence, it was not peaceful.

“It was overt and deliberate disruption…  Which can be contrasted to peaceful, organised rallies where organisers confer with police and the public so there is no disruption to the normal flow of traffic,” said the police prosecutor.

Violet’s record of arrests for protest was described as “significant criminal history” and the court was told that her action on the bridge had left an ambulance caught in a traffic jam. (More on that claim later.)

“[W]hat you have failed to take into account in the actions of stopping people going about their everyday life, is other people’s mental health concerns, or other people’s health and safety,”  NSW Magistrate Allison Hawkins said in sentencing.

“You have halted an ambulance under lights and siren. What about the person in there? What about that person and their family? What are they to think of you and your cause? In fact, you do damage to your cause when you do childish stunts and dangerous stunts like this. It angers the community and rightfully so.”

Violet was sentenced to 15 months in prison and led from the dock to a cell, where she stayed for 13 days until bail could be secured.

Former Premier Dominic Perrottet was not among those appalled to see a young woman locked up for so long for expressing her point of view via legitimate, albeit illegal, protest.

Coco’s imprisonment “was pleasing to see”, he said. “If protesters want to put our way of life at risk, then they should have the book thrown at them … We want people to be able to protest but do it in a way that doesn’t inconvenience people right across NSW.”

In the wake of an earlier round of climate protests that saw access roads and rail lines to ports being briefly blocked, Perrottet’s government, with the full support of Labor’s opposition, had drafted and passed new laws against protest.

“It’s a really badly written law,” lawyer Mark Davis, who has defended dozens of protestors, later told me of the amendment to the traffic act.

“I mean, it is astonishingly badly written. It is so ambiguous no one really knows what it means. What [under the law] is a major road? No one knows.”

According to Davis the wording is so loose that anyone slowly crossing a road could be arrested and face a two-year sentence.

Further, he notes, police are already well armed with powers to clear roads.

“If police really want you to get off the road, they instruct you to get off the road. And if you don’t get off the road, they charge you with failure to comply with a police direction. It’s pretty simple, right?”

It is simple, which is why it is so clear that the purpose of the new law was to pander to conservative tabloid media commentators by hampering political speech with which they disagreed rather than to clear roads.

The problem is that no appeasement will be enough for these voices.

Politicians who try will maintain their favour only by continuing to do so, introducing ever more clumsy and dangerous law.

When Violet was sentenced to an extended prison term I wrote that the prosecution and the premier’s celebration of it broke an unspoken contract in our democracy, citing the case of another protestor, Jonathan Moylan.

Seeking to attract attention to a coal mine extension in 2014 Moylan had drafted a hoax press release saying that ANZ had opted out of providing finance for the project, prompting a short-lived but significant share price slump for the miner Whitehaven.

As a result Moylan was among the first people to ever receive a custodial sentence for a climate protest in NSW.

This was “much more than some sort of public mischief”, said Justice Davies, sentencing Moylan to one year and eight months in prison. “Here, the market was manipulated, vast amounts of shares were unnecessarily traded and some investors lost money or their investment in Whitehaven entirely. These were not just ‘day traders and speculators’ … superannuation funds and ordinary investors suffered damage.”

But Davies accepted that Moylan’s intent was not malicious. “You did it for motives that I accept were sincerely held by you, even though your methods of achieving them were wrong,” Justice Davies said, suspending Moylan’s sentence and releasing him.

In his sentencing Davies acknowledged that conventions over the role of protest were well established, referencing a case heard in the UK’s Privy Council in 2006.

“Civil disobedience on conscientious grounds has a long and honourable history in this country,” said Lord of Appeals Lennie Hoffmann. Accommodating such protest, he said, was the mark of a civilised community. Sometimes that sense of proportion will include a deliberate decision to break the law and to challenge authority.

In Violet’s case the police prosecutor’s proposal that public protest should be confined to “peaceful, organised rallies where organisers confer with police and the public so there is no disruption to the normal flow of traffic” is to demand that it be thoroughly enfeebled.

Protest, sometimes, should be angry and disruptive.

In throwing the book, as Perrottet put it, at Coco Violet, the state lost all sense of proportion, but it had also proved that its new anti-protest law was as late-night clumsy as Davis alleged.

Even before Coco had her imprisonment set aside the NSW police had withdrawn the same charge against another 16 protestors he was representing, most of whom had been arrested in another peaceful climate protest nowhere near a piece of major infrastructure. Whatever that might be.

And in court on March 15 the prosecutor revealed that police too might have been clumsy in helping to prepare the brief against Violet. It turned out that there had been no ambulance caught in the traffic, no lights and sirens, no stricken patient blocked from care.

Less than a week after Violet’s prison sentence was dropped the United Nations Intergovernmental Panel on Climate Change released the last section of its sixth assessment of the state of our climate.

It showed that the world has already hit 1.1 degrees of warming and is likely to hit 1.5 degrees in the first half of the next decade.

The document included a graph showing the stark intergenerational injustice of the crisis. Children born today will be witness to weather extremes that their grandparents could barely imagine.

As a result of our catastrophic failure to address climate change protests will grow around the world over the coming years and months, no matter how many bad laws are cheered through midnight sittings.

 Nick O’Malley is National Environment and Climate Editor for the Sydney Morning Herald and The Age.

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