Climate Change, Police Powers and Protesters

The International Context

Climate change concerns have existed for decades. In 1997 the world witnessed the adoption of the Kyoto Protocol, which currently has 191 sovereign states as signatories and 1 regional economic organization. Nearly two decades later, the world witnessed the landmark Paris Agreement to combat climate change. There was widespread support across the globe to accelerate and intensify actions and investments required for a sustainable low carbon future. How nations elect to comply with this international endeavour is an entirely different matter.

 The Domestic Context

Australia signed the Paris Agreement the day it was open for signature, on 22 April 2016. In 2019, Adani was given the final environmental approval it required before commencing works on its Carmichael coalmine in Central Queensland. Understandably, environmentalists and climate change activists are not thrilled with the Australian Government.

Recently protests have taken place in Sydney, Brisbane and Melbourne that have resulted in dozens of arrests. Therefore, this article focuses on police powers that may be employed.

Police Powers

The Law Enforcement (Powers and Responsibilities) Act 2002 gives NSW Police a number of powers. Police have a general power to require your identity to be disclosed if the officer suspects on reasonable grounds you are able to assist in the investigation of an alleged indictable offence, because you are at or near the place where the indictable offence occurred. Your failure to comply with this requirement can result in a fine of up to $220.

The Police also have the power to search persons and seize and detain things without a warrant, pursuant to Section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002. This section states:

(1) A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable         grounds that any of the following circumstances exists:

• the person has in their possession or under their control anything stolen or otherwise unlawfully obtained,
• the person has in their possession or under their control anything used or intended to be used in or in connection with the commission of a relevant offence,
• the person has in their possession or under their control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,
• the person has in their possession or under their control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.

Failure or refusal to comply without a reasonable excuse is punishable by a fine of up to $550.

Police also have the power to give reasonable directions under Section 38 of the Law Enforcement (Powers and Responsibility) Act 2002:

A police officer who exercises a stop, search or detention power under this Division, or who is authorised to exercise a vehicle roadblock power under this Division, has the power to give reasonable directions (to facilitate the exercise of the power) to any person:

• in or on the vehicle concerned, or
• on or in the vicinity of a road, road related area or other public place or school.

A failure to comply with directions without reasonable excuse is punishable by a fine of up to $5,500 and or 12 months imprisonment, under Section 39 of the Law Enforcement (Powers and Responsibilities) Act 2002.

The protests have been condemned as dangerous, for example one protestor chained himself to a rail line in Brisbane. As a result of the arrests at these protests, some protesters have been slammed with bail conditions they regard as harsh, that are said to have been “designed for bikie gangs”.

Bail Conditions

Rep-Revive Criminal Lawyers question some of the bail conditions imposed on protesters include the requirement that they not go near or contact or try to go near or contact any members of the group “Extinction Rebellion”. Rep-Revive Criminal Lawyers questions how can this condition be complied with effectively, if Extinction Rebellion does not have paid-up members with membership lists? How do you know if a member is in a building or shopping centre you are about to enter? The enforceability of some of these bail conditions have been brought into question.

Another bail condition includes a ban from coming within 2 km of Sydney CBD. Protesters, including former Greens Senator Scott Ludlam, might find it difficult to go to Downing Centre Local Court to answer the charges whilst not being allowed in that area.

If you or someone you know has been charged with a criminal offence, please contact Rep-Revive Criminal Lawyers for a free consultation.