Legalwise News Editor Caroline Tang interviewed NSW Council for Civil Liberties President Stephen Blanks, a Sydney-based solicitor, about what the Council argues are “oppressive” powers of public officials to disperse or ban public gatherings on Crown Land in NSW, in light of the updated Crown Land Management Act and Regulations, which include tougher penalties, coming into effect on July 1.
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Mr Blanks said the NSW Council for Civil Liberties (CCL) remained strongly opposed to the revised regime, which still had the capacity to criminalise public gatherings which fell within its ambit.
CCL has ramped up its campaign against the Crown Land Management laws after Greens MP David Shoebridge was gagged from debating the issue in NSW Parliament last week, and the ensuing publicity revealed the laws’ existence was not common knowledge among the wider public.
“Community reaction to the public exposure of these regulations indicates that there is widespread concern at the powers which government officials have to curtail our fundamental freedoms and rights,” Mr Blanks said.
“A range of government officials have broad powers exercisable in public spaces to arbitrarily control otherwise lawful conduct, with very little accountability. Like the regulations from 2006, they grant sweeping powers that can be used oppressively. Any power to ban activities like leafleting and public gatherings on public land is a power that is inconsistent with fundamental civil liberties.”
Mr Blanks said CCL called upon the NSW Government to “substantially revise” these regulations and redraft them, so that they do not give arbitrary power to officials to restrict legitimate public assemblies and protests, or curtail activity which people have a right to engage in or, activity which does not cause harm.
“Victoria, the ACT and comparable overseas jurisdictions have human rights-based legal systems which would ensure that regulations like this can’t be imposed or enforced. This is the perfect time to reconsider whether people in NSW should have rights on our own public lands,” he said.
“Powers that can be used so oppressively should not be on the books at all.”
Broad powers
On March 16, the NSW Government published the Crown Land Management Regulation 2018 (NSW). Included was a provision which provided that public officials would have broad power to “direct a person” to stop “taking part in any gathering, meeting or assembly”.
The only exception provided for is “in the case of a cemetery, for the purpose of a religious or other ceremony of burial or commemoration”. Alternatively, public officials have broad discretion to affix a conspicuous sign prohibiting any gathering, meeting or assembly – again, unless the public gathering is a funeral.
Police, local council officials, and even so-far unspecified categories of people or government employees, will have the power to ban people from holding public gatherings on public land.
The territory where these incredibly broad powers apply is called “Crown Land” – land owned by the Government. This includes town squares, parks, roads, beaches, community halls and more.
New regulations
The new regulations come into effect from 1 July. Under the old regulations, public officials similarly had wide powers to disperse gatherings on public land. CCL also argues those regulations are “unacceptable infringements” on the civil liberties of people in NSW.
The effect of the provisions in both sets of regulations is that protests, rallies and demonstrations can only occur at the sufferance of police and other officials. Virtually all public events can only occur with the tolerance of public officials. CCL argues that the right to assemble on public land under these regulations is “something less than a license”.
That right may temporarily be granted by public officials, but it may just as easily be withdrawn, at any time, for any reason, CCL believes. The enabling Act allows the regulations to affix a penalty of up to $11,000. The regulations currently stipulate a penalty of $1100 for defying such an order to stop meeting in public.
Crown Lands legislation
The Crown Lands Act 1989 (NSW) provides in section 156 that the Minister may “may cause a notice to be served on a person prohibiting the person, without lawful authority … from carrying on any prescribed activity on public land”. It also provides that a notice “displayed in a conspicuous place” can prohibit persons from “carrying on any prescribed activity on the land”.
The prescribed activities in Crown Lands Regulation 2006 (NSW) regulation 46 are broadly similar. They include “taking part in any gathering, meeting or assembly (except, in the case of a cemetery, for the purpose of a religious or other ceremony of burial or commemoration)”.
Other prescribed activities include “distributing any circular, advertisement, paper or other printed, drawn, written or photographic matter”, “disturbing any rock”, “climbing any tree”, and “riding on or using a skateboard”.
Hike in penalties
The old enabling Crown Lands Act allows for a penalty of up to 20 penalty units – $2200 – but the regulations stipulated a penalty of $220. This may be compared to the new Act, which stipulates a maximum penalty of 100 penalty units for individuals – $11,000.
Under the new Regulations, the penalty for defying a direction to cease an activity is $1100 for an individual. The penalty for defying a conspicuously displayed sign is $220.
Stephen Blanks became President of the NSW Council for Civil Liberties in October 2013, having been Secretary since 2005. Stephen has been a solicitor since 1985, and has a small legal practice in Rozelle. Stephen has been a member of NSWCCL since 1993.
Stephen’s particular civil liberty interests include asylum seekers, free speech, privacy and racial vilification. Although Stephen’s legal practice is primarily commercially focused, Stephen has over the years taken on many legal cases involving civil liberties issues, including cases involving unpopular asylum seekers, protesters, pedophiles and people smugglers. Contact Stephen at http://www.nswccl.org.au/contact_us
