State governments are passing draconian laws that are turning environmental groups away from direct action, as climate change makes their campaigns more urgent than ever. By Mike Seccombe.
The end of direct action
The most celebrated environmental action in Australian history, which stopped the damming of Tasmania’s Franklin River, began 40 years ago this December. It could not have happened today, says Bob Brown.
If the laws recently passed by the Tasmanian parliament had been in place back in the Franklin era, says the former GP who became the figurehead and main spokesperson for the thousands who took part in the blockade, “it would have had a chilling effect that would have deterred maybe 80 or 90 per cent of the people who came down.
“That big protest, which succeeded, would have failed under these new laws. So the Franklin would truly now be a dead ditch.
“Now, if you stand in front of a tree in Tasmania full of wildlife that they want to knock down, you face a greater penalty than if you go into a neighbour’s house with a shotgun and terrorise them,” he says.
That evocative comparison is not the non sequitur it seems, nor much of an exaggeration. In 2020, a meth-addicted man armed with an unlicensed, sawn-off shotgun invaded the home of an elderly Launceston resident, bashed and robbed him, and was sentenced to four years and three months’ jail, with the prospect of parole after serving half that time.
The fact that otherwise law-abiding citizens seeking only to prevent forest destruction through non-violent protest can be jailed for almost as long, Brown suggests, says a lot about the determination of some people to shut down dissent. And by “some people”, Brown means governments prepared to pass laws facilitating “robbing Australia of its human and natural heritage at the behest of multinational corporations”.
As of a couple of months ago, an individual protesting against the destruction of old-growth forests in Tasmania faces up to two years in prison and substantial fines. A community member who obstructs access to a workplace as part of a protest – such as by simply blocking traffic – could face 12 months in prison. Any organisation that supports them may be fined $45,000.
Brown is in no doubt that latter provision is specifically directed at his organisation, the Bob Brown Foundation, one of the few environmental groups that still actively encourages non-violent civil disobedience. Its slogan is “Action for Earth” and its ethos holds that such action is among the most democratic forms of political expression.
But now if they are deemed to have supported a criminal action, he says, incorporated environmental charities such as his not only risk large fines, but face the “loss of our charitable status automatically – because you’re not allowed to have [been involved in] a criminal offence – and then being deregistered as an organisation.
“What they want us to do is stand uselessly on the footpath on the side of the road waving placards while they drive past with the bulldozers and log trucks.”
It’s not just Tasmania that has enacted draconian laws.
In 2019, the Palaszczuk Labor government in Queensland criminalised the use of lock-on devices that protesters have used to hamper environmentally destructive development, notably at the Adani coalmine. The new offence carried a penalty of up to two years’ jail. This coincided with the New South Wales government’s Right to Farm legislation, which targeted protests by animal rights activists on agricultural and forestry land, including public land, and provided for penalties of up to three years’ jail and $22,000 fines.
In August this year the Victorian parliament passed new laws targeting protests against logging, imposing a fine of more than $21,000 and prison terms of up to 12 months.
Most repressive of all was the Roads and Crimes Legislation Amendment Bill 2022, passed by the NSW parliament almost six months ago, which provides for penalties of up to two years in jail and/or a $22,000 fine for any disruption to roads, train stations, ports and public and private infrastructure.
Last week the Environmental Defenders Office launched a challenge to the NSW laws in the Supreme Court, on behalf of two members of the group Knitting Nannas from the state’s Central Coast, both of whom have been affected by climate change-fuelled natural disasters. They will argue the laws breach the constitution as they “impermissibly burden the implied freedom of political communication”.
Whether the laws are deemed constitutional or not, the intent to chill public debate is clear. Nor are these efforts to criminalise protest limited to Australia. Draconian laws have been introduced in Britain, and 45 American states have now legislated against environmental protest, with penalties ranging up to 20 years in jail, says Brown.
“And the right to protest is protected international human rights law,” says Azadeh Dastyari, associate professor in the School of Law, Western Sydney University, and director of the Network for Law and Human Rights.
“Freedom of speech and freedom of assembly are really, really important protected rights under the International Covenant on Civil and Political Rights. There is a recognition that states can keep public order, but this has to be reasonable and proportionate,” she says.
Increasingly that is not the case. Dastyari notes also that it is not only right-wing governments, as usually defined, that are bringing in these laws.
“It seems to be a bipartisan effort to stifle protests,” she says. “Regardless of government, we’re seeing very troubling policies and laws coming out of both Labor states, like Queensland and Victoria, and also, in the states with Liberal governments, like New South Wales and Tasmania.”
But why, at a time when popular opinion and scientific evidence both reflect growing concern about an environmental and climate crisis, have the efforts to curb its expression ramped up?
Because, says Brown, governments and the commercial interests that they support are on the defensive about their failure to take the necessary action. And the best defence is attack.
“They can’t win the argument on the environment, so they have to take out the key environmental spokespeople,” he says.
“It’s worldwide, and it is tearing at the heartstrings, the foundations of environmental groups – whether we toe the line or stay out there, defend the environment and suffer the consequences,” he says.
Forty years ago, when Brown led the Franklin blockade, the consequences were not so severe – although the response of the Tasmanian Liberal government of Robin Gray was considered extreme at the time. The parliament passed legislation revoking large parts of the Franklin-Gordon Wild Rivers National Park, and amended the police offences act to make trespassing an offence punishable by a $100 fine or six months’ jail. Nearly 1300 people, including state and federal politicians, were arrested. But only a few, including Brown, did any significant jail time. He was detained 17 days because he refused to agree to a bail condition to not return to the protest site. In most cases, though, people simply forfeited their $100.
Now that they could be jailed for years, most people and most mainstream environment organisations are increasingly reticent to risk it.
For almost a quarter of a century, Brown worked to effect change within the system as leader of the Greens in both the Tasmanian and federal parliaments, but he never discounted the importance of direct action.
“When I came out of the senate in 2012, I set up the new group because I could see that peaceful direct action was an absolute imperative if we’re going to protect the environment. And I couldn’t, I didn’t want to go into an organisation which has already discounted that. I think we’re the biggest organisation left standing,” he says.
His harsh assessment of mainstream groups is perhaps a little unfair.
As Kelly O’Shanassy, the chief executive of the venerable Australian Conservation Foundation, says, different organisations contribute to the cause in different ways. She harks back to the Franklin campaign.
“The blockade was incredibly important in bringing attention to the potential destruction of the Franklin and raising global awareness of it.” But, she says, the dam was permanently stopped by the election of the Hawke government – which resulted in the necessary legislation – and the High Court case that validated it.
“Our president at the time [Murray Wilcox, QC,] was involved in drafting the bill that gave responsibility of the federal government over world heritage areas.
“So the blockade was fundamentally important because it stopped the development for long enough for those other things to happen. But those other things had to happen and ACF was more involved in those other things.”
She deplores the new laws and while ACF doesn’t participate in any unlawful activities, she says, there’s a growing compliance burden on even law-abiding groups such as hers to ensure “that we don’t cross the increasingly closer-to-us lines that government keeps drawing.” O’Shanassy argues that “the bigger driver of the change in strategy by mainstream environmental groups is not tougher laws, but the nature of the environmental challenge we now face.
“The issues that we’re trying to solve now are incredibly complex. To fix climate change you have to change the energy we produce, what we export to the world, change investments and economy. We’re trying to fix entire systems. It’s much more complex than trying to stop a single development. Organisations now have a lot more sophisticated ways of creating change.”
And there is another big consideration too – public opinion, which is fickle and often cognitively dissonant. Most people, the polls tell us, want stronger action on climate, but not at the expense of their carbon-intensive lifestyles. They want their cheap electricity and petrol and are apt to react negatively if protest action blocks a road and makes them late for work.
We saw a pertinent example recently when Mali Cooper blocked Sydney Harbour Tunnel with a car and attached a bike lock around their neck and the steering wheel. Although Cooper was a traumatised victim of the Lismore floods, and livestreamed an eloquent plea for greater action on climate, most media focus was on the angry response of other motorists.
Cooper was charged under the new anti-protest laws and might have been jailed for two years, but the charges were subsequently dismissed by magistrate Jeff Linden on mental health grounds.
Cooper later tweeted: “I have watched the town I love be decimated by a climate disaster. I have witnessed community step up & take care of each other in place of our Gov. If we stand together and resist through direct action, we have the best chance of turning this destruction around”.
Do we, though? O’Shanassy is dubious, even as she emphasises that “the disruption caused by these protests is minor compared to the disruption that climate change is already causing.
“But you have to move the middle,” she says. “That’s where the politicians sit.”
A senior global figure for Greenpeace puts it more bluntly. If you engage in activities “that piss people off … you don’t get a lot of movement.
“Do something like stop the morning commute, and then [the media] are going to be all over it. And it’s actually counterproductive.”
It’s a valid concern. But it’s also true that the combination of the escalating climate crisis, the crackdown by governments and the withdrawal of mainstream environmental groups from direct action has created a vacuum that is being filled by new groups.
And the new crop of environmental activists, of which Extinction Rebellion and Blockade Australia are the best known, has more radical approaches to forcing change.
Mali Cooper aligns with Extinction Rebellion. So does Max Curmi. In March, he scaled and suspended himself from a 60-metre crane at Sydney’s Port Botany, with the intent of disrupting operations, to protest against inaction on climate change.
He subsequently pleaded guilty to five charges, and was sentenced by magistrate Ross Hudson to four months in jail plus a $1500 fine. Interestingly, the penalty was not imposed under the new anti-protest laws.
“The magistrate chose to make the primary offence trespass on a rail,” says Curmi, who studied politics and economics at university.
“I had crossed the railway line when I was walking into the port, and because it carried a maximum of three years’ jail, that’s what they used.”
On appeal, he says the District Court reduced the penalty to a nine-month community correction order. “They said that I shouldn’t have done jail time,” he says.
But Curmi soon fell foul of the law again. He was present on a property at Colo, north-west of Sydney, when it was raided by police, and charged with intimidating and obstructing police, affray, damage to property and aiding in the commission of crimes.
He maintains he was not even at the scene when other people confronted the officers, who were not in uniform, let down the tyres on their unmarked vehicle, and – ironically – called the police.
Because he was already on a corrections order, Curmi was initially refused bail and spent another 22 days in jail. He now is living in Brisbane, having been, as part of the conditions for his release, “banned from Greater Sydney. For an indefinite period.”
He says the chain of events – the selective use of an incidental offence in his initial prosecution, the circumstances of the police raid on Colo, successive adjournments by the authorities while they try to make a case against him – has only strengthened his cynicism about the political/legal regime in Australia. He sees no way to effect change other than provocative action.
“The way politics works on this continent, there is no meaningful pathway to taking the sort of serious action that we need to see now, because it’s so deeply corrupt, and the interests that are pushing to prevent climate action are so deeply embedded,” he says.
In his younger days, Curmi was involved with the Greens party. From there he moved on to Extinction Rebellion, but thought its idea of establishing a “binding citizen’s assembly … a process that’s somewhere between a jury and a royal commission” that would bypass parliament and be empowered to implement policy, was unrealistic. So he drifted to the more radical, to Blockade Australia.
“Blockade Australia is not incorporated. There is no formal leadership,” he says. Instead, it is a movement of individuals determined to “participate in far more organised resistance.
“The way the environmental movement has historically got its power has been through organised direct action, you know, things like the Franklin campaign.” Now, he says, the major environmental groups have been “reduced to lobbyists”.
“Those organisations didn’t push back against the crackdown on direct action. They have been marginalised and have become pretty ineffective.” Some, like the Greenpeace source, would argue that there are smart ways to go about direct action, and others not so smart.
He cites actions taken in London several years ago by Extinction Rebellion, in which activists effectively shut down the London Underground by climbing on top of trains.
It split the organisation and resulted in some of the leaders being removed. The movement broadened once it was realised that stopping the trains only disrupted the lives of working-class people, many of them people of colour and workers on zero-hours contracts. And anyway, he says, “We actually want people to take more trains, more public transport, so why would we disrupt that?”
Disruptive actions have to be targeted, argues Alice Drury, acting legal director of the Human Rights Law Centre.
“Protests by their nature are inconvenient. To be effective, they shouldn’t be convenient.
“Disruptive protests may be frustrating for governments, but we must remember that because of them, we have the eight-hour work day and the right to vote for women.”
It can take fewer people to achieve even big changes – such as removing authoritarian governments. And they are far more effective if they are peaceful.
“Historical studies suggest that it takes 3.5% of a population engaged in sustained nonviolent resistance to topple brutal dictatorships,” wrote Erica Chenoweth, co-author of Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict.
That still leaves groups such as the Bob Brown Foundation, Blockade Australia, Extinction Rebellion and other such groups maybe half a million people short. But Brown lives in hope.
“I often think of the suffragettes – if they hadn’t broken the law, and they’d stood peacefully on the footpath calling out for equal vote, they would probably still be standing there uselessly,” he says.
Though of course, the risks in their struggle were different. Was Emily Davison doing a bad thing when she ran in front of the racehorses at the Epsom Derby in 1913, for women’s suffrage? No. Though, of course, she died four days after she was trampled by King George V’s horse.
This article was first published in the print edition of The Saturday Paper on October 22, 2022 as "The path of ceased resistance".
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