The last 12 months have been marked by a new tactic taken towards nonviolent direct actions carried out in the defence of climate and the environment, which has seen jurisdictions, such as NSW, Victoria and Tasmania, dramatically escalate the punishments that apply to such protests.
The anti-protest regime established by the Perrottet government in NSW last April, sees those taking part in unauthorised actions that obstruct roads, bridges, tunnels and major facilities no longer receiving fines in the hundreds, but instead facing two years imprisonment and/or a fine of $22,000.
Blockade Australia (BA) was one of two climate defence groups whose actions sparked the laws. But undeterred by them, BA climate defenders forged ahead with a week of disruptive actions planned for Sydney in late June, and it was at this time that police unleashed a massive crackdown.
According to long-term peace and climate activist, Margaret Pestorius, the chilling effect on protest in NSW has more to do with the bail conditions applied to activists arrested during the police counterprotest operation, who are now facing potential jail time.
Pestorius posits that not only are increasingly severe bail conditions serving to prevent climate dissent, but they’re also acting as a form of pre-conviction punishment.
‘There has been a lot of attention on the law, but the law is just a mechanism for the bail conditions, because that’s where the real control is, in the conditions,’ said Pestorius, who’s currently subject to a set of extreme bail conditions owing to her arrest for participating in a BA protest last June.
‘I’m not allowed to associate with thirty people. If I do, I can be incarcerated immediately,’ she continued, adding that she’s also been restricted from messaging apps, which leads her to believe she’s being surveilled, and she has to supply passwords to her phone or computer if requested by an officer’.
The Beyond War activist educator advises that there’s a dozen Blockade Australia protest participants, like her, facing the new penalties, while another dozen are awaiting their appearance in court in relation to a pre-protest raid that NSW police carried out at a Colo property.
For mere participation in, and not organisation of, a June 2022 Sydney CBD action, Pestorius was arrested when standing at a bus stop days later, and charged with two minor obstruction offences and one count of the harsh new section 144G offence under the Roads Act 1993 (NSW).
Harsh bail conditions
‘I signed those draconian bail conditions thinking someone would then challenge them, but no one has assisted me in challenging them with human rights-based arguments,’ Pestorius told Sydney Criminal Lawyers.
‘Every time I’ve tried, lawyers pretend there is no effect on me, when there is.’
After a wave of Sydney climate protests kicked off in 2019, dozens were arrested for obstructing a CBD thoroughfare, which led to subsequent complaints over severe bail conditions that were applied to those who were taken into custody.
Pestorius recalled that those bail conditions were thrown out by the Supreme Court on the basis that they were lower-level charges.
So, this inability to apply heavy-handed bail conditions to summary offences led the Coalition government to enact laws which carry harsh punishments in relation to climate actions, the activist added, in order to be able to hit protesters with crippling restrictions pre-trial.
Pestorius says, ‘We need to be able to hear lawyers making rights-based arguments against conditions, so we can replicate them, when [lawyer’s aren’t] available.’
Instead of presenting arguments against draconian bail conditions, Pestorius says legal representatives are cutting backroom deals with police in relation to them, while it’s law enforcement that’s actively attempting to try and restrict political space for activists.
‘It’s embedded in the structural process of the courts for lawyers to collaborate with their opponents to reduce time in front of the magistrate,’ she made clear.
‘But for us, what happens in that space is – we learn nothing, and bail conditions are becoming more constricting and punitive.’
Protesters from last June are waiting up to 11 months to face their charges, which means they’re also restricted from taking climate action over this time, and, as Pestorius points out, those caught up in the raid are out of action for up to 17 months.
Pestorius encourages climate activists to not sign on to the steep bail conditions they’re presented with on arrest, as this is negating any need for criminal defence lawyers to present arguments to the courts during bail applications, based on how the restrictions breach international human rights law.
Pestorius believes legal representatives should engage with the political cause their clients are involved in, as well as develop arguments against draconian bail conditions broadly based on breaching rights and not specific individual cases. ‘We need lawyers making these arguments, because that’s how we, as activists, learn,’ Pestorius explained.
♦ First published on www.sydneycriminallawyers.com.au.
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