Controversial Victorian climate change protest laws breach freedoms of political expression and are “stifling democracy”, a prominent barrister and Greens candidate has claimed. Brian Walters SC, who is running for the seat of Melbourne in the Victorian state election on November 27, told Crikey that new penalties relating to “critical electricity infrastructure” specifically target climate change protesters.
“I don’t think there could be any other reason for bringing those laws in. In fact they refer specifically to coal infrastructure,” he said.
Yesterday between 100 and 300 people protested at Hazelwood power station in the Latrobe Valley, Victoria. Signs attached to a perimeter fence announced the new offences and possible jail terms. Over 250 police were present, including officers from the mounted division, search and rescue, water police, the dog squad and the air wing.
One new offence imposes a maximum penalty of a year’s jail or equivalent $14,300 fine for being on premises “without authority”. Another imposes a maximum penalty of two years’ jail or equivalent $28,700 fine for damaging, interfering or “attaching things” to critical electricity infrastructure.
The legislation was introduced by Victorian Minister for Energy and Resources Peter Batchelor late last year after a similar protest at Hazelwood power station, where 22 people were arrested. No protesters were arrested yesterday, so the legislation remains untested. In his second reading of the legislation, Batchelor said: “The offences are not merely for the protection of private interests but for protection of the electricity supply.”
The genesis for the harsher penalties can be traced to a Council of Australian Government decision in December 2008. In a more recent communiqué, energy ministers “reiterated the importance of appropriate penalties to deter protest activities designed to interrupt operations” at power stations and related infrastructure.
But Walters SC told Crikey the offence dealing with being on the premises without authority wasn’t introduced to protect electricity infrastructure at all: “It doesn’t do that because a lot of people will be caught who don’t threaten the electricity infrastructure in any way.
“Under these laws just being on land without authorisation becomes an offence, and it’s an offence carrying a huge jail [term]. You don’t have to be asked to leave and refuse, you don’t have to do any damage to anything. You just have to be there.”
Walters SC says politicians were influenced by a controversial court case in the UK, where six Greenpeace activists who painted a political slogan on a chimney at Kingsnorth power station used climate change as a “lawful excuse”. Dr James Hansen, a scientist from NASA and one of the world’s leading experts on climate change, testified on the activists’ behalf. The jury then cleared the activists of causing criminal damage.
“The case not only was defended, but it was politically damaging to the interests of big coal,” says Walters SC. “This [Victorian] legislation appears to be directed specifically to avoiding that kind of embarrassment, not for protecting any electricity infrastructure.”
Walters SC told Crikey activists charged with the new offence would not be able to call a climate scientist to testify: “Historically, it’s been regarded as a reasonable excuse that you’re making a lawful political protest. And indeed the High Court have recognised the right of political free speech, including by action.”
But under the new offence, he said, “there’s no question of reasonable excuse”: “I think it [the legislation] is designed to shut out the kind of case that we saw in Kingsnorth, and to stack it all in favour of big coal, and to prevent criticism of the inaction in relation to coal-fired power plants.”
Responding to these claims, Peter Batchelor told Crikey: “The Brumby Labor Government supports the fundamental political right of all Victorians to carry out peaceful protests and these penalties do not affect that right. As seen on the weekend at Hazelwood, peaceful protesters have nothing to fear from this legislation. These penalties were introduced to better reflect the serious consequences and dangers that can arise from entry or damage to power stations.”
However, a protester at Hazelwood power station, Simon Jane, said last year the intention wasn’t to destroy property but to send a message: “The plan was to get in the car park and get arrested. No one wanted to do any damage, it was purely nothing more than a statement.”
Lou Sigmund, a Latrobe Valley local and an independent candidate for the Victorian state seat of Morwell, spent the afternoon of the Hazelwood protest standing up for the power station and its workers’ jobs. He says he doesn’t blame the power station for trying to stop protesters entering the compound. “What they don’t want is idiots who jump over the fence and electrocute themselves,” he said.
Yet he also describes the new laws as “draconian”. “I really think that people have a right to protest,” he said.
Switch Off Hazelwood organiser Shaun Murray also spoke out against the new offences. “They’re laws designed to quash political protests,” he said.
Other activists on the day told Crikey the new offences “reduce the options of how you can protest” and are an example of the government “directly trying to repress grassroots political action”.
Asked about the impact of the new offences, Walters said: “We are less likely to hear the concerns of the activist community about the future health of our planet, and we are discouraging people from participating in our democracy, and therefore stifling our democracy.”
But while the new offences were a major deterrent to some activists, they represented a challenge to others. Friends of the Earth spokesperson Cam Walker said that although there were no arrests at the Hazelwood protest, the new legislation might be challenged by a “pledge of resistance” where many activists took part in a “mass occupation”.
The proposed HRL-Dual Gas power station in Morwell might be the impetus for such a demonstration, he said. “I would suggest HRL, if it does get through the EPA process, would be a test case for these new laws.”