South Australia will now have the harshest fines in the country for "obstructing a public place".
Here's a breakdown of what the changes to the state's protest laws mean.
What's the offence?
It is defined under the Summary Offences Act as intentionally engaging
in "conduct that obstructs the free passage of a public place".
A "public place" is defined as "a place to which free access is permitted to the public" or to which "the public are admitted on payment of money" or a road, street footway, court, alley or thoroughfare.
There's no definition in the legislation of what constitutes an obstruction, but the term "obstruct" is often used in conjunction with terms like "hinder" and "interfere" in other sections of the Act.
What's the penalty?
The controversial law increases the maximum penalty from $750 to $50,000 or imprisonment for three months.
In criminal proceedings, it's up to a court to determine an appropriate penalty within the scope of the legislation.
Although other states have legislated longer maximum jail terms, the $50,000 maximum fine is by far the harshest monetary penalty in Australia for this type of offence — more than double the maximum in other states.
Why are the penalties being increased?
Both the SA government and opposition pushed for the change and said it was necessary to deter groups like Extinction Rebellion from disrupting the "safe operation" of the city and the state, following protests in the heart of Adelaide a fortnight ago, when a protester abseiled from the Morphett Street bridge, causing traffic chaos near the Royal Adelaide Hospital.
The bill was rushed through state parliament's lower house in less than an hour two days later.
But civil society groups, unions, lawyers and crossbenchers have argued the changes are anti-democratic and could curtail people's right to protest.
But Premier Peter Malinauskas has stressed lawful protests would still be allowed.
"What we've seen is a new type of protest action emerge from Extinction Rebellion where a $750 fine is seen as an opportunity to break the law, rather than think about the consequence to other South Australians," Mr Malinauskas said.
"We are keen to change the penalty regime here to send a clear message that demonstration and protest in South Australia are absolutely welcome, but hanging upside down from bridges, completely shutting down our city, stopping emergency service workers getting to hospitals is not okay and we're going to do something about it."
What happened in the upper house?
After more than 14 hours of continuous, vigorous debate in the upper house, the bill eventually passed with amendments just before 7am on Wednesday.
Crossbench MPs from the Greens and SA Best moved 12 amendments in the Upper House on Tuesday night, but only three passed.
The biggest change was to the definition of the offence by removing reference to the term "reckless".
The government and opposition wanted the definition to be: "a person who intentionally or recklessly engages in conduct that obstructs the free passage of a public place".
But, using the term "reckless" essentially means that prosecutors don't have to prove intent, and the laws could therefore apply to people who unintentionally commit the offence.
During debate on Tuesday night, SA Best successfully pushed for the word "recklessly" to be removed from the bill.
"It was absolutely critical that that be struck out," SA Best MLC Connie Bonaros said.
"It lowers the prosecutorial threshold and so it introduces a new criminal element into the bill."
Amendments moved by the Greens, including the insertion of a "sunset clause" that would have killed the laws after 12 months, were voted down by the government.
A guilty verdict can cost more than a fine
In addition to having the heaviest financial penalty in Australia, the legislative changes also allow a court to order someone found guilty of the offence to compensate police for the cost of responding to the incident.
The legislation states that proof of those costs can be obtained through a certificate "apparently signed by the chief officer of the relevant entity".
In a joint submission to the Attorney-General, the Law Society of South Australia and the South Australian Bar Association said that resulted in an "effective reversal of the onus of proof".
Dr Sarah Moulds, a senior lecturer in law at the University of South Australia and co-founder of the Rights Resource Network SA, said that puts a defendant in a very difficult position.
"It would be very, very difficult for the defendant to gather evidence to either contest or challenge any of the material that the police or relevant entity put before the court," Dr Moulds said.
What if I'm indirectly involved?
Another controversial aspect of the new laws is the fact that someone can still be found guilty if their conduct "directly or indirectly obstructed the free passage of a public place".
This could include police cordoning off the area to deal with the incident.
Dr Moulds said it was another example of how the wording had broadened out the scope of the offence, which had fuelled speculation that the laws could be used in a variety of situations that weren't intended by parliament.
The premier has repeatedly said the government did not intend to stifle people's right to protest and demonstrate.
"It's never been the government's desire or intent to expand the scope of people who can potentially be captured by the law," Mr Malinauskas said.
Dr Moulds said even if it wasn't intended the wording of the laws, especially in their original form, made them one of the broadest in the country.
"We can imagine everyone acting reasonably and the prosecutor and the police would not use it in these other crazy scenarios but if you just look at the way that the law is drafted it does capture a broad range of things," she said.
Are the laws destined for a High Court challenge?
There will no doubt be a high level of scrutiny on how the laws will be applied by the courts.
And there is a possibility the laws will end up in the High Court.
"Governments can do what they like until it breaches the implied right of political communication," University of South Australia Emeritus Professor of Law and Criminal Justice Rick Sarre said.
"Only a High Court challenge can determine whether that threshold has been breached."
In its submission to the Attorney-General, the Law Society of South Australia said the law changes created "a potential for chilling implications for freedom of association and political communication".
Dr Moulds said, undoubtedly, "there will be people interested in testing its constitutionality".
"The implied freedom of political communication has a complex legal test to it which makes it difficult for anyone to kind of quickly say whether this would be constitutional or not, but certainly you could say that this would engage the freedom of political communication because it does limit people's ability to get together and protest," Dr Moulds said.
"The next question is, is this law appropriate and adapted to its legitimate end?
"It's at that point that some of the features we're talking about would be looked at in great detail by the High Court because they would be looking to see 'well is it too broadly drawn that it can't be considered proportionate to what they're trying to achieve here?'."
In 2017, the High Court found that certain sections of Tasmania's protest laws were invalid because they burdened the implied freedom of political communication in the Commonwealth Constitution.
What's next?
Now that it has passed both houses, and has gone to the Governor of South Australia Frances Adamson for assent, it is officially law.
It will sit alongside the Public Assemblies Act in South Australia which allows people to apply for authorisation for a public assembly, such as a protest.
The government has been at pains to point out that lawful protests are still allowed, and there are no changes to the longstanding Public Assemblies Act.
It says a protester participating in a lawful protest cannot be convicted of obstructing a public place, even if they cause a disruption, provided they demonstrate in accordance with the approval that was granted under the Public Assemblies Act.
However, with the stakes now raised for the obstruction offence, Dr Moulds said there may still be trepidation and confusion for people planning to attend a protest about whether it was authorised and lawful.
"If you were leaving your house to join a climate protest, how would you know as a protester whether you would be covered by the Public Assembly Act or not, and if you can't work that out then I think that's a problem," Dr Moulds said.
Meanwhile, Greens MLC Robert Simms has flagged he will try to repeal the legislation.
"We'll get some advice on the best way to do that," he said on Wednesday.
"We'll wait for the dust to settle."
