Division III: Clamping Down on Direct Action ProtestSection 23: Object of this DivisionThe objects of this division are:

To address the disruption caused by performative protests [RG1] which beset [RG2] the ordinary functioning of government or corporate entities.
Preserve [RG3] robust, respectful protest aimed at promoting awareness of the impacts of climate change.
 

Section 24: Hostile Protest Activity: Definition

(1) Hostile protest [RG4] activity refers to protests and related activity which due to its confrontational nature[RG5]  results in or is likely to create serious disruption to lawful activities, access to sites, and efficient operations.

(2) For the avoidance of doubt, any protest that deliberately blockades or creates an oppressive atmosphere outside private business premises is intended to be covered by subsection (1).[RG6]

25. Consequential orders and penalties

(1) Engaging in conduct prohibited under section 24 may result in an apprehended breach order [RG7] being made against the person.

(2) An apprehended breach order may prescribe time-limited movement restrictions on an individual to ensure they do not disrupt the businesses or sectors targeted by the original protest.

(3) A failure to comply with an apprehended breach order results in a civil penalty of $5,000 and an extension of the order for an additional year.

(4) Where an individual who breaches section 24 is on social security, the Deputy Secretary of the Department may order a review of their mutual obligations. This will review any evidence that:

Whether the individual has been properly carrying out their mutual obligations to search and make themselves available for work.
Whether the person has been refusing legitimate job offers on an improper basis.[1]
 
[1] Just in case one thinks this would never happen!: Peter Dutton suggests climate protesters should lose welfare | news.com.au — Australia's leading news site

 [RG1]A performative protest is a type of protest where the actions and behaviors of the protesters are intended to convey a symbolic message or make a statement rather than directly achieving a specific practical outcome.

 

Principle of Legality Question

Please highlight how I would approach writing a submission for Cassandra's side- drawing on whether the decision to rule Cassandra's protest as 'hostile protest activity' ultra vires the relevant provisions of the Act.

Cassandra Rendell is a climate activist, who recently organized a protest covered by the Commonwealth legislation attached in a separate file on the LMS. As organizer, she directed others to undertake various actions, and she has no issue with copping any consequences if they turn out to be within power. She organized a recent 'community blockade' protesting a mining development in Western Australia. This protest has attracted media and controversy due to its reliance on social media and its 'academy' strategy. Young people from major cities are invited to stay in the local community and participate in the protest. This has been dubbed a 'Schoolies Protest Academy' which seeks to bring together local communities and climate activities in a common cause. It has garnered an enormous public profile as a result and actively harnesses this through performance protest.

Despite the term 'blockade' featuring, the protest, by and large, is conducted with good humour with physical access still being preserved to the site. It brings together young and old, who regularly sing and host classes on protest during the day. There have been no arrests for disorder or violence. The protests do seek to slow entrance and exit to the site by forming 'caravans of tourists' periodically during the day. These are cyclists who pedal rather slowly down the narrow roads leading to the site. Large trucks and other vehicles struggle to pass them out, leading to some verbal exchanges and frustrations.

Such a caravan was operating on the day when Cassandra was made subject to the legislation. At the site entrance the protestors had also created a pool of stained water (the large surface puddle was pre-existing). This temporarily stains the trucks' wheels green or other colours, but washes off naturally in time, or in the rain or after a gentle hosing. It does however permit the capturing of social media videos of vehicles wading through 'blood' or 'greenwashing'. These social media videos never show driver's faces or identifiable details. Upon entering the site, protestors would chant directly at arriving or departing staff, site visitors, or truck drivers whoever was stationary. Accompanying chants include:

"no ifs no buts, no peace until this site shuts"

"You can sell your soul, but there is no Planet B!"

The company argue that the protestors' incessant presence is "complicating the enjoyment of the site access and boundary areas by staff". It argues that a hostile and provocative environment for workers is the motivator of the activity. Staff's only rest and recreation areas lie close to and within sight of the relevant site entrance, and they are often delayed coming home from work.

Cassandra has recently been informed she is being made subject to a penalty and social security review under the Act. The decision letter states that the treatment of site staff had the required impacts upon individuals carrying out their lawful business and accessing the site. The letter claims the protest activity falls within the Act, as it was about targeting mining staff and visitors rather than protesting. While the road was public, and no criminal offence had been committed, the protest was clearly aimed at disrupting the effective operation of the listed site. The letter states that concerns for staff's wellbeing are 'genuinely held' and they have a right not to be targeted for doing a day's work.

 

Note:

You may assume that the law has been found constitutional by the High Court. In its (fictional) ruling, the High Court found that: "carefully read in the light of the principle of legality and confined by reference to its purposes, the ordered regime as a whole is constitutionally permissible and does not unjustifiable impair the implied freedom of political communication. Its case-by-case use will be supervised by the courts in the light of the principle of legality, which will operate to ensure interferences with right to freedom of expression are narrowly read.'

You may assume Cassandra is legally liable for all actions undertaken by herself and fellow protestors she directed - that, as organizer, it all effectively counts as activity directed by and thus undertaken by her effectively. (I avoided including that provision in the statutory provisions as it is secondary and I didn't want something so technical cluttering things up).