As more than a hundred climate activists waded into the Port of Newcastle on Thursday afternoon with kayaks and rafts, with police boats drifting in the distance, it was unclear what would happen next.
In a supreme court room, about two and half hours’ drive south in Sydney, sat 21-year-old Alexa Stuart who was challenging a maritime exclusion zone the New South Wales government had imposed around the port. The zone restricted anyone entering the water over a four-day period in a bid to stop the protest, which was attempting to stop coal ships from leaving the port.
A few hours later, the court would accept the argument of the protest organisers, Rising Tide, that the government had improperly used the Marine Safety Act and deemed the move invalid.
When news of the win spread to the protesters floating on the water, the crowd erupted in a rousing cheer, waving paddles in the air.
“We’ve had to overcome so many twists and turns,” Stuart says. “The fact we are here is a win in itself.”
Legal experts say moves by the government and police to stop the Rising Tide protest – which organisers hoped to be among the biggest climate protests in Australia’s history – comes amid an escalating crackdown on protesting across the country.
‘Draconian anti-protest laws weaken our democracy’
Over the past two decades there have been 49 laws introduced by federal and state governments that have eroded rights to protest, according to a report released by the Human Rights Law Centre in June.
The report author, senior lawyer David Mejia-Canales, says that since the report’s release, protests have been “restricted in significant ways” across both pro-Palestine and climate movements.
“It’s being done by police and politicians,” Mejia-Canales says.
“The reasons are being wrapped up in often dubious safety concerns,” Mejia-Canales adds, referring to the NSW police’s supreme court challenge against a pro-Palestine protest which cited new planter boxes installed at town hall as one of a number of safety hazards.
Mejia-Canales’s report found NSW had introduced the most anti-protest laws. On Thursday, the Minns government added another, introducing a maximum $22,000 offence for obstructing a railway.
It adds to the same laws for protesters caught blocking major roads and facilities like ports – parts of which the supreme court found last year were unconstitutional.
“Recent protests have centred on railway lines, putting everyone’s safety at risk,” Minns said at the time of the announcement. “Introducing this fine for blocking a railway line sends a strong message: this conduct is not acceptable.”
Five unions, including the NSW Nurses and Midwives Association, signed a letter opposing the bill. In a statement to Guardian Australia, the Australian Services Union says the government “had decided to double down on bad legislation even after the supreme court ruled part of the laws unconstitutional”.
“Draconian anti-protest laws, together with the lack of a basic Human Rights Act in NSW, weakens our democracy,” the union’s secretary, Angus McFarland, says.
Mejia-Canales says these laws are also causing protests to become more restricted by police via the form 1 permit system for protests. If organisers’ applications are accepted by the police, it protects them from certain criminal charges, such as obstructing traffic.
But Mejia-Canales says the threat of charges under the anti-protest laws has transformed the form 1 system, from what used to be a notification to police, to making police the “authoriser” of protests.
This permit system does not exist in Victoria, where the premier, Jacinta Allan, rejected a proposal to introduce one. For this reason, Mejia-Canales says “Victoria is above other places” in how the right to protest is protected.
In the space of a month, the NSW police declined and legally challenged two applications to hold a protest. This included a rally which went ahead after negotiations between organisers and police.
The second legal challenge, which it ultimately won, was against the Rising Tide organisers, who had made an application to block coal exports from leaving the port for 30 hours.
A similar protest had gone ahead last year. But this time around, the police minister, Yasmin Catley, said police deemed it “too big and dangerous to proceed”.
“We strongly urge the public not to attend or participate in this assembly. Do not put yourself or our police, maritime, and emergency service workers at risk,” Catley said.
The Rising Tide protest went ahead, with organisers expecting 5,500 demonstrators over a week-long action.
On Saturday, three were arrested after they tried to paddle through a police water checkpoint.
‘We are really up against it’
This increasingly stringent approach is happening as Australia pitched itself to the world as the right location for the 2026 UN climate summit – COP31.
“We’re definitely worried about how these trends may escalate in the lead up to COP,” says Isabelle Reinecke, the founder of Grata Fund, a public interest organisation that helps individuals access the courts.
“COP will be a really important opportunity for Australians to express their concerns, and people from other communities in the region, like Pacific Island leaders and their communities, to express their concerns with the Australian government’s approach.”
Australia is the third largest exporter of fossil fuels in the world.
Since the Albanese government was elected, the Greens say it has approved 26 new coal and gas projects. The climate change minister, Chris Bowen, has said the country is aiming to become a “renewable energy superpower”, but that it was a big task that would take time.
Rising Tide is demanding the government immediately cancel all new fossil fuel projects and end all coal exports from Newcastle by 2030. It is also calling for the government to tax current fossil fuel export profits at 78%, and to put that money towards community and industrial transition away from fossil fuels.
At the protest this week – it began on Tuesday and will run until Monday – it felt more party than protest at times. It attracted people from across the country, and included a land-based “protestival” with a number of musical performances, including one by Midnight Oil frontman, Peter Garrett.
“The overreach from the authorities including the NSW government in respect of peaceful protest is unnecessary,” Garrett told the crowd after his performance.
The water-based aspect of the protest, the purpose of which was to block coal ships, did not work however. The coal and other cargo ships continued to lumber through the port.
Police set up an area in the water, marked by yellow bouys, and reportedly told organisers it had been set up for people’s safety and moving past them would result in a response by the police, but not an immediate arrest.
“It was like they had set up a kiddie pool for us, while they [let] the coal ships through,” says Stuart, who led the legal actions against the government’s exclusion zone.
On Saturday, the third day of the protest, activists decided to test this, paddling outside the boundary set by police, resulting in three arrests
Stuart says the reason protesters felt compelled to engage in civil disobedience was to “send a message”. She says so many of the other protesters had already tried signing petitions, marching, and speaking to MPs.
“I’ve been protesting for this since I was 15,” Stuart says. “That’s a quarter of my life … It feels like there’s no way else to be heard.”
“It’s a big reminder that the fossil fuel industry is so big and that we are really up against it.”
