Brad Homewood describes his first steps into a maximum security facility, where he spent the first three weeks of a two-month jail sentence, as intimidating.
“You’re in there with the worst of the worst,” he says. “There’s a lot of violence in there. I didn’t experience any personally, but you hear it, especially after lockdown.”
Days earlier, he and his partner, Deanna “Violet” Coco, had used a truck with a sign draped over the side that said “climate breakdown has begun” to block three city-bound lanes of the West Gate Bridge during morning peak hour in March. They pleaded guilty to public nuisance and obstructing police, and were released in May.
Recently, another two protesters, both aged 21, found they could also go to prison after being charged under New South Wales’ anti-protest laws.
Last Sunday, Laura Davy disrupted a loading facility at the Port of Newcastle. A day later, the court determined that she deserved a three-month sentence.
“I just thought of my family and my friends, and how I was going to contact them,” Davey tells Guardian Australia of her initial reaction to the sentence, which is being appealed. The pair are now on bail.
They’re among a growing number of Australians who’ve been criminalised for protesting under what the Human Rights Law Centre recently described as a worrying proliferation of “vague” anti-protest laws. Its report, called Protest in Peril, concludes the laws have eroded the right to protest, a right it says is fundamental to democracy.
The laws have disproportionately targeted climate protesters, the report found, but HRLC senior lawyer David Mejia-Canales says it’s affecting other movements. Of most concern to lawyers and advocates is how the laws expanded police powers to break up protest movements, and the use of “borderline unlawful” bail conditions.
‘Protest in Peril’
According to the report, there have been 49 laws enacted by governments that have affected protests over the past 20 years.
They include the Northern Territory’s introduction of an offence of loitering in a public place after being given a notice to leave by a police officer, which can result in six-month sentence. In Queensland, protesters who disrupt mining equipment using devices such as tripods can face one year in prison.
South Australia has the harshest fines, of up to $50,000 and three months in prison for obstructing a public place.
But NSW has enacted the highest number of anti-protest laws of any state, according to the report.
Climate group Blockade Australia was the impetus for introduction of the state’s harsh anti-protest laws in 2022, which can see protesters face a maximum penalty of two years’ imprisonment and $22,000 in fines for blocking major facilities.
Other movements are affected. In March, 19 pro-Palestine protesters were arrested and charged under the anti-protest laws after they blocked the road at Port Botany. This came after 23 people were also charged in November.
One of those charged in March was the Sydney branch secretary of the Maritime Union of Australia, Paul Keating. He’s yet to face court.
“The purpose of the previous state liberal government wasn’t to just stop environmental activists, the law itself is designed to stop forms of protests in all forms,” Keating tells Guardian Australia.
Bail ‘weaponised’
In recent weeks, a number of people have been charged in NSW after Blockade Australia coordinated rolling daily actions blocking the “economic pinch points” in Newcastle. They were calling for a change to the economic and political system to achieve meaningful climate action.
Homewood, 51, is acting as spokesperson for the group.
“I can’t find hope anywhere else but in a culture of resistance. I’ve got no faith in the political class or the system to solve the [climate] crisis,” Homewood says.
Of the dozens of people charged over the Newcastle protests, most received fines of between $750 and $1,500.
This is a more common response from the legal system, according to Lydia Shelly, the president of the NSW Council of Civil Liberties.
Shelly believes this is partly due to the difference between the public perception of protesters – that has been cultivated by police and politicians – and the magistrate taking into account the “objective seriousness” of what the protester has done.
“The majority of the judiciary are quite conscious [of] the importance of the role of protest in liberal democracies, as well as [that] they understand that it’s usually quite low levels of what they would consider low levels of offending,” she says.
After the Westgate Bridge incident, both Coco and Homewood had an initial 21-day sentence increased to two months on appeal, after the court heard the action had hampered emergency services and caused a woman to give birth on the side of the road.
But what is of most concern to Shelly is the “scandalous” use of bail conditions by police to disrupt protest movements.
“Effectively, what they’re doing by way of a bail condition is disrupting and inhibiting the capacity for people to organise, to come together collectively and to organise themselves,” she says. “It’s increasing the surveillance and monitoring of protesters.”
Anastasia Radievska, of the Australian Democracy Network, analysed the types of bail conditions imposed on protesters. Among the requirements were: reporting to a police station three times a week; giving communication devices to police; and not associating with the climate movement they’re involved in or with specific people.
Many recent Blockade Australia protesters in Newcastle were given orders not to associate with others charged in relation to Blockade Australia actions, according to Radievska.
Meanwhile, she says a number of protesters charged in the pro-Palestine movement have been required not to attend “unlawful protests” – but none of the 19 charged in Sydney in March were given harsh bail conditions.
Mejia-Canales says certain bail conditions are “borderline unlawful” and have helped to erode the right to protest.
“The bail is only meant to make sure that you come back to court for a hearing. It’s not meant to punish people any further, and that’s what we’re seeing police services around the country doing.”
A spokesperson for the NSW attorney general, Michael Daley, said the Bail Act needed to strike a balance.
“The Bail Act balances the need to ensure community safety, and the integrity of the justice system, with the common law presumption of innocence and the general right to be at liberty. Keeping that balance right requires ongoing scrutiny,” they said.
Laws under review
NSW’s anti-protest laws are now under review. After a push from more than 40 organisations the government agreed to make the two-year review public and open to community consultation.
Last December, the supreme court ruled part of the rules were invalid after legal action brought by Knitting Nannas, an activist group made up of older women.
In the Human Rights Law Centre report, it states how many rights in Australia have been hard-fought for – including women’s right to vote, the first Mardi Gras in 1978, and the Freedom Rides in 1965.
“Some of us owe our human rights more to protest than the goodwill of politicians,” the report said.
Homewood will soon face court for another action in Victoria, and also one in Tasmania after an action related to the logging industry.
He’s preparing himself for a sentence of “six, eight or even 12 months”.
“We’re as committed as we’ve ever been,” he says. “There’s too much on the line.”
