One of the hallmarks of a free society is the right to protest – to assemble in public and express a point of view.
In democracies such as ours, that right extends to everyone – even those with a tenuous grip on reality.
But there is an important caveat: this freedom, while important, is not absolute. Like all rights, the freedom to protest and make a political point must be balanced against other rights.
All rights are subject to boundaries.
It is, for example, entirely legitimate to engage in public debate about the war in Gaza. But that freedom does not extend to speech that amounts to the incitement of violence.
Nor is there a right to make untrue public statements that damage someone’s reputation by bringing them into hatred, ridicule or contempt.
The real issue therefore is not whether the right to protest should be restricted, but where the boundary should be drawn and who should do the drawing.
Democrats would argue that this should be the work of parliament because it is best placed to take account of community sentiment and changing circumstances.
If politicians draw boundaries that are at odds with community expectations, they can always be replaced once their failures become apparent.
That is not an option if this work is left entirely to the judiciary. The best judges know this and can be identified by their self-restraint.
After the chaos that has affected the streets of Melbourne in recent days, Victorians might wish to consider whether they are happy about the way the current limits on the right to protest are working.
When Extinction Rebellion protesters stopped traffic on the Westgate Bridge, it was entirely foreseeable that this would have dangerous consequences – particularly on those needing urgent medical attention.
Nobody should be too surprised that this is exactly what happened.
A woman being rushed to hospital was unable to proceed and was forced to give birth at the side of the road. Mother and child are reported to be fine. But the penalty imposed on those who put their lives at risk can only be described as trivial: 21 days in prison.
In practical terms, that means the boundary on the right to protest in Victoria barely exists – at least when compared to NSW, where a similar incident could attract up to two years in prison and a fine of up to $22,000.
Compared to this, Victoria privileges protest and disruption while giving less weight to community welfare.
The boundary between these conflicting goals needs to change. And the NSW Roads Act might be worth considering.
In 2022, in response to action by a group known as Blockade Australia, both sides of politics in NSW agreed to change the Roads Act to make it much more difficult for protesters to avoid tough penalties for blocking major roads.
Parliament agreed that the government could use regulations to stay flexible and define which major roads are covered by this provision.
At the same time, both sides of politics agreed that the same penalties – jail and big fines – should be imposed for damaging or seriously disrupting major facilities such as ports and power stations.
This is where the NSW parliament believed the boundary on the right to protest should be set. But that is not where it stayed.
Late last year, the Environmental Defender’s Office challenged this legislation on behalf of two protesters from a group calling itself Knitting Nannas.
The EDO, which is funded by taxpayers, has quite a record. In January, the Federal Court’s Justice Natalie Charlesworth accused it of making up evidence.
In the NSW case, known as Kvelde, the EDO failed to persuade the court to strike down changes that enable the government to define which roads are protected from protesters.
That means the Roads Act has been tested and survived. That puts Extinction Rebellion on notice about what awaits this group if it blocks any major road in NSW.
But the Knitting Nannas did have a partial victory. They punched a hole in parliament’s plan to protect ports, power stations and other major facilities.
Protesters will still face jail and $22,000 fines if they succeed in closing major infrastructure. But the court decided these penalties should not apply if protesters close only part of a major facility.
This is a major loophole. It neutralises a key part of the plan backed by Labor and the Coalition.
The court did this because, in its view, the law as enacted by parliament conflicted with the implied freedom of political communication – a doctrine invented by the High Court.
So after parliament reached a cross-party agreement on where to set the boundary between conflicting rights, the Supreme Court intervened and set a different boundary.
The new boundary means protesters are free to render part of a power station or a port inoperable in NSW without triggering the criminal penalties that were considered appropriate by both sides of politics.
So if protesters close part of a rail line between Hunter Valley mines and the port of Newcastle, they could avoid criminal penalties by leaving another part of the rail line alone.
When Extinction Rebellion blocked traffic in Melbourne, the consequences were foreseeable – and that is the case with this decision. It amounts to a guide for protesters on how to target power stations, ports and other essential infrastructure: do it in stages and you can escape the reach of the criminal law.
This cannot be what the High Court had in mind when it developed the implied constitutional freedom of political communication.