A NSW magistrate has dismissed anti-protest charges against three Upper Hunter coal activists in a decision that brought cheers from a packed court gallery, but a warning that the controversial 2016 laws remain a threat to the right to protest.
Magistrate David Day dismissed charges that a protest by Bev Smiles, Bruce Hughes and Stephanie Luce outside the Wilpinjong coal mine in 2017 rendered a public road “useless” and hindered the operation of equipment “belonging to a mine’’.
He found them guilty of a back-up charge of obstructing pedestrians and drivers but did not record a conviction and placed them on 12-month good behaviour bonds.
The three had faced maximum seven year jail sentences if found guilty of the two serious charges controversially passed by the NSW Government in 2016. The laws were passed after the then NSW Premier Mike Baird told a NSW Minerals Council event his government would “throw the book at” mine protesters who “chose to break the law”.
Mr Day found there was no evidence the protest, against expansion of the Wilpinjong mine to take it closer to the village of Wollar, rendered the road outside the mine “useless”. He noted that “all the evidence is that the road was obstructed and easily cleared”.
“I observe that it was a blockade, not unlike the old style union picket lines, not seen much in recent times,” Mr Day said.
I observe that it was a blockade, not unlike the old style union picket lines, not seen much in recent times.Magistrate David Day
“People standing on the road obstructing traffic are not rendering the road useless.”
He also dismissed charges that the three hindered the working of equipment belonging to the mine after Mr Day found police had not provided evidence to prove machinery was owned by the mine.
If police had charged the three with hindering equipment “associated with” the mine, rather than belonging to it, they would have been successful, Mr Day said.
He told the court he did not need to consider whether the charges offended the implied freedom of protest in the Australian Constitution after dismissing the charges.
Outside the court solicitor Sue Higginson applauded the decision but said the issue of the anti-protest laws restricting the right to protest remained “live”, despite the landmark nature of the case.
Because the charges were dismissed on the technical issues of whether the road was rendered “useless” and the failure to prove equipment was owned by the mine, the protest rights issue remained untested, she said.
The three were the first protesters to be charged after the laws were passed, and the matter was pursued to test the legislation, she said.
Outside the court Ms Smiles thanked people from across the state who cheered in court after the decision, and made a guard of honour when the three left the court.
“Justice prevailed for us today,” Ms Smiles said.
“It’s been a gruelling 18 months for us with these charges hanging over our head.”
The decision meant “We can continue to have our freedom of speech in NSW”, she said.
The Wilpinjong protest occurred shortly after the NSW Planning Assessment Commission in April, 2017 approved the seventh expansion of the mine since it was first approved in 2006.
The giant mine, which is approved to produce up to 16 million tonnes of coal per year, supplies coal to Bayswater and Liddell power stations under a contract first signed with the NSW Government. Wollar Progress Association, formerly headed by Wollar activist Bev Smiles, appealed against the mine extension in separate court action.
The controversial anti-protest legislation passed despite heavy criticism from the NSW Law Society, Bar Association and Council for Civil Liberties.
February’s court hearing was shown film taken at the Wilpinjong protest where a large banner saying “Enough is Enough” was displayed at the front gate of the mine where protesters stood at the mine entry.
The film showed police arriving and warning people they risked being arrested if they continued to block the mine entry. The film showed some protesters moving and police pulling down the banner. The film then showed Mr Hughes, Ms Smiles and Ms Luce remaining on the road before police arrested them.
NSW Greens justice spokesman David Shoebridge said the decision was a win for people power.
“What this case has shown is the deep illegitimacy of laws that seek to criminalise protests,” Mr Shoebridge said.
“They were peacefully protesting to protect their homes and the environment, and they had every right to do so. The Liberal National government was so desperate to silence protest and dissent that they rammed through a raft of draconian anti-protest laws in 2016. Today people power has been vindicated.
“Bev, Stephanie and Bruce were the first to be prosecuted under the Liberal National government’s anti-protest laws, and today’s judgement has shown just how illegitimate those laws are.”
The Greens would work to get rid of the laws, Mr Shoebridge said.