We are deeply disturbed by the repression of peaceful protests at the Indo Pacific naval defence exposition in Sydney this week. NSW Police have arrested 9 people following protestor gatherings along the Darling Harbour foreshore on Monday and Tuesday.
Several protestors have been charged with participating in an unlawful assembly, which carries a maximum 6 month prison term. This law means conduct such as gathering at the entrance to an event and chanting can result in a prison sentence. The right to protest is recognised in international law as encompassing the right to disruptive protest. Imprisonment is a disproportionate penalty that should not be available for merely disruptive protest conduct.
Police have applied repressive bail conditions to the protestors arrested this week. These included being required to leave Sydney immediately, with one individual being arrested by police for still being in Sydney the morning after being released from prison. A magistrate subsequently dismissed the charge, agreeing that police needed to give individuals a reasonable amount of time to comply. Nevertheless, expelling protestors from the state for holding a banner and chanting near an event is an unjustified attack on people’s freedom of movement.
A further bail condition has been imposed on several individuals requiring them to “not undertake or attend any training, recruitment sessions or participate in the planning of unlawful protest activity”.
This condition has been imposed in relation to 9 people since 2022. It uses vague and misleading phrasing which effectively renders participating in any form of protest potentially unlawful. There is no specific offence of “unlawful protest activity” and in many cases, there is no capacity for a protestor to know if a protest they participate in will give rise to unlawful activity. For example, if an individual subject to this bail condition attends an authorised protest that takes a slightly different marching route than the one approved by police, that person would be in breach of their bail.
Short of not participating in protest activity at all, there is no way for individuals to comply with such a condition. Imposing this condition unfairly infringes on the right of public assembly recognised by courts in NSW and the implied freedom of political communication in the Constitution.
Several individuals have also had bail conditions imposed that require them to “not contact or be in the presence of” any member of specific activist groups, such as anti-militarist activist group Wage Peace who organised the protests. This bail condition does not accord with the implied freedom of political communication and its corollary freedom of association in the Constitution.
The basis upon which NSW Police claimed these bail conditions were appropriate was that they deemed the protestors to pose ‘an unacceptable danger to the community’. There were no violent, threatening or dangerous acts committed by protestors that would reasonably give rise to that concern. To characterise protest action that may have inconvenienced some expo attendees as violent and dangerous is an unacceptable overreach and has the effect of criminalising democratic political activity.
What violence was perpetrated outside the expo was perpetrated by expo attendees and the police. In one instance, two protestors were punched in the face by expo attendees in view of police who took no action. Later, while two protestors were leaving the area in compliance with a move along direction issued to them by police, they were chased down by the same officers and thrown to the floor. Police told them they did so ‘to check they understood’ the move along direction that they were in the process of complying with. NSW Police use excessive force while policing protest actions with impunity, often creating dangerous situations by the strategies and methods used.
The criminal charges imposed on protestors and the repressive bail conditions they are now subject to pose a disproportionate and unjustifiable restriction on the right to protest. NSW Police continue to use aggressive and escalatory tactics that create dangerous situations with impunity.
Legal Observers NSW 