NSW anti-protest laws are part of a corrosive national trend

This was first published by the Sydney Morning Herald.

NSW's harsh and unnecessary new anti-protest laws are the latest example of an alarming and unmistakeable trend. Governments across Australia are eroding some of the vital foundations of our democracy, from protest rights to press freedom, to entrench their own power and that of vested business interests.

The NSW laws give police excessive new powers to stop, search and detain protesters and seize property as well as to shut down peaceful protests that obstruct traffic. They expand the offence of "interfering" with a mine, which carries a penalty of up to seven years' jail, to cover coal seam gas exploration and extraction sites.

They also create a tenfold increase in the penalty applying to unlawful entry to enclosed land (basically any public or private land surrounded by a fence) if the person "interferes" or "intends to interfere" with a business there. At the same time as ratcheting up this penalty for individuals who protest, recent changes made by the NSW government mean that resource companies that illegally mine can receive a $5000 penalty notice instead of a potential $1.1 million fine.

Disturbingly, these laws aren't isolated.

Tasmania last year targeted environmental protest with broad and vague new offences including "hindering" access to business premises or "obstructing" business operations, with penalties of up to $10,000 and four years' imprisonment. In Western Australia, proposed legislation contains extremely broad new offences of "physically preventing a lawful activity" and "possessing a thing for the purpose of preventing a lawful activity" with proposed penalties of up to two years in prison and fines of up to $24,000.

Common to these anti-protest laws are harsher penalties, excessive police powers and the prioritisation of business interests (particularly mining and forestry operations) over the rights of Australians to gather together and protest about issues they care deeply about.

Our democracy doesn't start and end on election day. Its enduring success rests on vital components like press freedom, the ability of NGOs to advocate freely, the rule of law, watchdog institutions like the Australian Human Rights Commission and the right to peacefully protest.

We can't take these foundations for granted. They are critical components of the democratic system that has helped to make Australia one of the safest, most stable and prosperous places on the planet.

But just as protest rights are being undermined, so too are many other vital democratic foundations.

Governments across Australia are deliberately using a range of funding levers to suppress advocacy by NGOs including gag clauses, targeted funding cuts and threats to the ability of environmental organisations to receive tax deductible donations from supporters – a tax status which is often critical to financial sustainability.

Secrecy laws and an increasingly aggressive attitude to whistleblowers mean that people who expose even the most serious human rights abuses face unprecedented risks of reprisals, including prosecution and jail. Press freedom is being eroded by new laws and policies jeopardising journalists' ability to maintain the confidentiality of sources and to report on matters of public interest. All the while, in critical areas governments are undermining or sidelining the courts and institutions that were created to keep them in check.

Last month, I was joined in Canberra by leaders from across Australian civil society to launch our Safeguarding Democracy report. The report documents this corrosive trend and outlines ways to reverse it.

Leaders who spoke out in support of issues raised in the report included representatives from the nation's peak community agency, peak Indigenous body, faith-based agencies, the media, unions, philanthropy, international development and the environment movement.

They share a common concern for the health of our democracy. It's a concern that should be shared by political leaders across the spectrum.

Encouragingly, the work to stop the damage has begun in some places. The Queensland government has removed gag clauses from NGO contracts imposed by its predecessor and is looking to protect fundamental human rights, including protest and assembly rights, in a Queensland Human Rights Charter. Victoria has repealed excessive move-on laws that threatened peaceful protest and is strengthening its charter. At the federal level, the government recently agreed to wind back certain aspects of ASIO laws that undermine press freedom and is looking to reset its relationship with the Australian Human Rights Commission after the extraordinary political attacks last year.

We need more.

We need to call out regression like the NSW anti-protest legislation for what it is. We need to recognise the cumulative democratic harm being inflicted by particular environment, counter-terrorism or refugee policies. Ultimately, if we truly care about protecting our democratic rights and freedoms, we need to guarantee them in an enforceable national Human Rights Charter.

Hugh de Kretser is Executive Director of the Human Rights Law Centre. He is on Twitter @hughdekretser