In Kvelde v State of New South Wales [2023] NSWSC 1560 Walton J has found that the Roads and Crimes Legislation Amendment Act 2022 (NSW) impermissibly burdens the implied freedom of political communication, in this instance regarding protest activity by the 'Knitting Nannas'.
The Court states
(1) The Court declares that subsection 214A(1)(d) of the Crimes Act 1900 (NSW) is invalid because the provision impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution.
(2) The Court declares that subsection 214A(1)(c) of the Crimes Act 1900 (NSW), to the extent that the paragraph makes it an offence for persons engaged in the conduct specified in the paragraph to cause part of the major facility to be closed, is invalid because the provision, to that extent, impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution.
It notes
On 30 March 2022, the Roads and Crimes Legislation Amendment Bill 2022 (NSW) was passed in the NSW Legislative Assembly. The Roads and Crimes Legislation Amendment Act 2022 (NSW) (“Amendment Act”) commenced at the beginning of 1 April 2022 less than 30 hours after the Bill was introduced for the first time in NSW Parliament. The Amendment Act inserted, inter alia, a new Part 4AF titled “Major Facilities”, which consisted of ss 214A and 214B, into the Crimes Act. Section 214A(1) provides as follows:
214A Damage or disruption to major facility
(1) A person must not enter, remain on or near, climb, jump from or otherwise trespass on or block entry to any part of a major facility if that conduct— (a) causes damage to the major facility, or (b) seriously disrupts or obstructs persons attempting to use the major facility, or (c) causes the major facility, or part of the major facility, to be closed, or (d) causes persons attempting to use the major facility to be redirected.
Maximum penalty—200 penalty units or imprisonment for 2 years, or both.
The Amendment Act amended Pt 9 Div 7 of the Roads Act, including by expanding its application to major bridges, tunnels, or roads. The Roads Amendment (Major Bridges and Tunnels) Regulation 2022 (NSW) amended cl 48A to its present form to include the classification of a main road, highway, freeway and tollway in Pt 5 Div 1 of the Roads Act.
On 12 October 2022, Ms Helen Kvelde and Ms Dominque Jacobs (the plaintiffs), sought declarations that s 214A of the Crimes Act 1900 (NSW) (“Crimes Act”) (“the impugned law or provision”) and cl 48A(1) of the Roads Regulation 2018 (NSW) (“Roads Regulation”) are invalid. The State of New South Wales (the State) opposed the relief sought.
The plaintiffs both had a history of engaging in protest actions as part of the Knitting Nannas group, including protesting on or near roads, train stations and ports about environmental and climate change issues. Unless constrained by the impugned provisions, the plaintiffs intend to engage in conduct which it proscribes. They have, therefore, an interest in knowing whether they are required to observe the law. The Court held that the plaintiffs do not merely have strong political beliefs but rather also have a real and special interest in the validity of the impugned provisions, which have affected and will continue to affect, their ability to communicate their political beliefs through protest actions.
The principal issues for the Court were:
1. Whether s 214A of the Crimes Act is invalid because it infringes upon the implied freedom of political communication (“the implied freedom”) and thus, is beyond the power of the Parliament of New South Wales; and
2. Whether cl 48A(1) of the Roads Regulation is invalid because it is beyond the scope of the regulation-making power contained in the Roads Act 1993 (NSW) (“Roads Act”).
The Court held: As to s 214A of the Crimes Act
1. Subsection 214A(1)(c), so far as the provision concerns the closure of part of a major facility and subs 214A(1)(d) impermissibly infringe the implied freedom of political communication.
2. Environmental protests do constitute political communication on which the efficacy of electoral accountability for the exercise of legislative and executive power within the constitutionally proscribed national system of representative and responsible government depends. The nature of the burden is demonstrated by the impugned provisions directly targeting protest activities and is not eliminated or reduced to the point of insignificance by subss 214A(4), (5) or (6).
3. The relevant burden is the incremental effect of the impugned law on the ability of a person to engage in a communication which the law may already validly prohibit. The impugned provisions in this case were found to restrict the implied freedom beyond valid existing laws, thereby constituting an incremental burden on the ability of persons to engage in political communications, such as environmental issues, which are capable of having a bearing on electoral choice.
4. The State contended the implied freedom in this matter was “slight” and “so slight as to be inconsequential.” The submission conveyed that in those circumstances the first question should be answered in the negative. Having regard to the relevant authorities that proposition needs to be approached with considerable caution. The correct assessment is whether the impugned law has a real effect on the burden. It is not appropriate to examine the degree of the restriction effected by the provision in considering the first question. It cannot be a quantitative assessment. Thus, the inquiry is as to the character of the burden and whether there is an effective burden in qualitative terms.
5. Hence, subs 214A(1)(c) (as to partial closure of a major facility) and subs 214A(1)(d) effectively burden the implied freedom in their terms, operation, and effect and must be justified.
6. The purpose of the impugned provisions is legitimate in its purpose.
7. The impugned provisions are capable of preventing serious disruption or obstruction and therefore, the impugned provisions were found to have a rational connection to the purpose of deterring disruption and therefore suitable for the legitimate purpose. It is unclear on the authorities whether the test of capability might properly be conditioned by a requirement that there needs to exist a real, substantial, or direct connection to the purpose. However, the Court held that the test is no more demanding than that the law is simply capable of realising the purpose of the law.
8. The impugned provisions have failed at the stage of ‘reasonable necessity’. The second alternative means (or a law of that kind) advanced by the plaintiffs may be reasonably expected to have imposed a significantly lesser burden upon the implied freedom and still achieved Parliament’s purpose to the same or a similar effect.
9. The effect of the impugned provisions on the implied freedom significant outweighs benefit sought to be achieved by more effectively deterring any conduct that may disrupt major facilities themselves and hence, s 214A(1) is not adequate in its balance.
As to cl 48A(1) of the Roads Regulation
1. The challenge to the validity of the Regulation (cl 48A(1)(a) and (f) must fail. Clause 48A(1)(a) does not conflate two concepts which the legislation intended to be separate. Ultimately, cl 48A(1)(a) and (f) of the Regulation do not transgress the high threshold for unreasonableness.
2. The exercise of power conferred by s 144G(6) and s 264 is complete by the Governor prescribing major bridges, tunnels or roads by reference to the defined terms in the Roads Act. Regulation 48A(1) does not delegate the prescription of major bridges, tunnels or roads, to some other person or entity. When the Minister exercises the power conferred by ss 46, 47, 48 and 52 of the Roads Act (corresponding to the provisions in cl 48A(1)(a)–(e)), the Minister is not exercising the power to prescribe a bridge, tunnel or road as a “major bridge tunnel or road.” The question of an improper purpose does not arise in the present context. No impermissible sub-delegate has occurred by cl 48A(1) of the Regulation.
