Proposed laws that intend to increase tenfold the fines for coal seam gas and mining protesters in New South Wales have been strongly criticised by the Law Society of NSW and the NSW Bar Association, just as they are expected to be rushed through both houses of parliament.
The reaction came as hundreds of protesters gathered outside Parliament House in Sydney to express their opposition to the proposals. Some of their placards read: “You gotta fight for your right to fight for your right.”
The laws remove protections for political activities that have “properly been regarded as an essential part of the social, political and cultural life of any civilised society”, said the NSW Bar Association in a submission obtained by Guardian Australia, which recommended the laws not be supported.
And according to the Law Society of NSW, which also does not support the bill, the legislation “appears to encroach upon and limit fundamental rights to assemble and protest” and “would represent an erosion of long-standing democratic institutions and individual rights”.
The Baird government is expected to introduce to parliament on Tuesday legislation intended to limit protest action at mining and coal seam gas sites, which increases penalties for actions like locking-on to mining equipment from $550 to $5,500. The legislation also extends the powers of police and limits the protections peaceful protesters have under the law.
The two submissions raise a number of major concerns, but both use particularly strong language when criticising part of the bill that removes some limits to police powers.
Currently, the Law Enforcement Act allows police to order people to do things in public places, like removing obstructions to traffic or people. But section 200 of the act has important limits to that power, which says police cannot exercise that power in situations like industrial disputes, genuine protests or organised assemblies.
The proposed bill eliminates that section and replaces it with one that gives police discretion over whether they can issue orders at such events.
The NSW Bar Association said section 200 of the Law Enforcement Act functions as “an important check on police power to ensure some balance and as an acknowledgment of the high public interest in allowing concerned or interested citizens to participate in peaceful assembly, processions and genuine demonstrations and protests”.
“Events of that sort have for centuries properly been regarded as an essential part of the social, political and cultural life of any civilised society.”
The Law Society of NSW said the amendment to section 200 “appears to encroach upon and limit fundamental rights to assemble and protest”. It said that fundamental right has been recognised by the high court as implied by the constitution and section 200 recognises that.
In addition, the bill creates a new criminal offence, which is “aggravated unlawful entry on inclosed lands”. But the NSW Bar Association notes the types of action which falls under that could be anything that interferes with a business activity. And it notes “inclosed lands” include every building in NSW and any private or public area that is surrounded by a fence or wall, even by a natural feature.
The Law Society of NSW also said the laws expand police powers of search and seizure without a warrant, allowing them to seize items that are not inherently dangerous, such as rope. It said in light of the International Covenant on Civil and Political Rights, which protects against arbitrary interference with privacy, such interferences should be safeguarded by the requirement for a warrant.
“The Law Society is very concerned with the apparent trend of expanding police powers without corresponding judicial and other safeguards,” their submission read. “In our view, such a trend would represent an erosion of long-standing democratic institutions and individual rights. For the reasons set out above, the Law Society is not able to support the bill in its current form.”
At the rally outside parliament on Tuesday, both Greens and Labor politicians addressed the crowd.
“The right to protest must be reserved for future generations,” Labor’s energy spokesman Adam Searle said.
“We will fight these laws because the community have a right to democracy,” said Greens MP Jeremy Buckingham.
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