CHEYNE:

Tell me about last year's blockade. What was it like out on the water?

ZACK:

We actually had a storm roll in our little squall just before 4pm. and the rain was lashing down and there were some lightning strikes and we were thinking, jeez, we're not going to be able to get on the water.

And then all of a sudden, the clouds parted at about 3:30 and we could see dolphins coming in through the harbour and then it was go time.

Audio excerpt — Sky News Reporter:

“A massive protest is underway at Newcastle Port by a climate defence group in what could be the largest civil disobedience action in Australia's history.”

ZACK:

We paddled out into the middle of the channel. We were waiting for that 4pm deadline to see what would happen, to see what the cops would do because, of course, that was the end of our court approved period.

CHEYNE:

And you were one of the arrests that day?

ZACK:

Yeah, that's right.

CHEYNE:

Can I ask your personal decision to stay out past 4pm, what drove you to do that?

ZACK:

I think I wanted to be part of history.

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DANIEL:

From Schwartz Media, I’m Daniel James. This is 7am.

A year on from one of the biggest environmental protests in Australian history, the activists behind it, a group called Rising Tide, are preparing to blockade the Newcastle coal port once again.

But they’ve hit a stumbling block that saw the protesters challenged in the Supreme Court, before the blockade had even begun.

In New South Wales, protestors are criminalised more than anywhere else in the country and Premier Chris Minns is calling for even stronger police powers to shut protests down, raising questions about overreach when it comes to quelling people's right to assembly.

Today, producer Cheyne Anderson on the growing creep of protest crackdowns nation-wide, leaving activists fighting for the right to demonstrate.

It’s Friday November 22.

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DANIEL:

Cheyne, you've been looking into the case of climate activists Rising Tide and their upcoming blockade of Newcastle coal port. Can you tell me about this group?

CHEYNE:

Yeah, I can tell you that they formed in 2005 in Newcastle, which is two hours out of Sydney and that they’re one of several blockade groups in Australia. But even though they’re all galvanised around climate action, they each have different philosophies towards civil disobedience.

So Rising Tide have a really clear charter. They want the government to phase out coal exports. They want to stop new oil and gas approvals and they want to fund the energy transition with a tax on mining profits. So to do this they make a point of only targeting fossil fuel infrastructure. And that's what they did last year.

Audio excerpt — Protesters:

“No more coal! No more coal!”

CHEYNE:

So they blockaded the port of Newcastle for 30 hours and there were 109 arrests all up, including Australia's oldest man arrested for climate activism, the Reverend Alan Stuart, who was 97 years old at the time.

Audio excerpt — Reverend Alan Stuart:

“There are so many in this country, particularly in the coal industry, who are not concerned with what is going to be.”

CHEYNE:

And another person arrested was Zack Schofield.

Audio excerpt — Zack Schofield:

“So hi my name is Zack I’m a Newcastle local law student and I’ve been an organiser with Rising Tide for the last two years.”

CHEYNE:

Zack told me that he grew up basically in the shadow of this coal port which is the biggest of its kind in the world.

Audio excerpt — Zack Schofield:

“You can hear the fog horns overnight and you can go to the beach and see the ships lined up just offshore. I would count them with my mum. I suppose it took a while to realise that, you know, what's being exported there, that's death.”

CHEYNE:

So Zack told me that when it came to doing a blockade again this year, he pointed out that, you know, we had the hottest year globally on record and he pointed out new mine approvals and expansions. So there really wasn't any question of not doing it again this year. But this time they wanted to make it bigger, get more people out on the water in these little kayaks paddling up against these huge coal ships to try and get the message out that they don't think the government is moving fast enough to stop climate change. It's this plan that has already seen them have to defend themselves in the Supreme Court before the protest has even begun.

DANIEL:

So how did that happen?

CHEYNE:

Yeah, so it started when they submitted their Form 1. It's a notice of intention that you send to the police commissioner that you want to hold a protest. And it's just, you know, two pieces of paper, five little sections that you fill out. And yet it's this little piece of paperwork that's at the centre of all of this. I spoke to Briohny Coglin about it. She's a single mom in Newcastle and she's also a lawyer so it was actually her name on the Form 1 that they submitted.

Audio excerpt — Briohny Coglin:

“So let's be clear. The Form 1 is not a request for permission to hold a public assembly. You don't need permission to protest in Australia. All the Form 1 does is provide an opportunity for police and protesters to work together to ensure our shared goal of everybody's safety at the public assembly and essentially suspend certain police powers so that the people gathering can have some peace of mind that they won't be issued with move on orders or charged with certain obstruction offences.”

CHEYNE:

Once you've submitted a Form 1 to the police commissioner, there’s a couple of things that can happen next. The first is the police can authorise the form outright. Maybe there’s a bit of back and forth about conditions or location, but the protest goes ahead and that’s what happened last year. The people that were arrested were the ones who stayed out on the water intentionally past that deadline.

But the other option, which is where it starts to get interesting for Rising Tide, is when the police don't want to authorise a protest.

The police can't reject a Form 1 outright, but instead what they can do is apply to a Supreme Court and let a judge decide if a protest should be authorised or prohibited.

So Rising Tide were notified on Tuesday the 29th of October. That’s when they were told the police were making this application to the Supreme Court. And then the first hearing was slated for the Friday of that same week.

DANIEL:

Right. So take us inside the courtroom. How did it play out?

CHEYNE:

Inside the courtroom, the police were effectively arguing why the protest shouldn’t go ahead, on the basis of safety on the water and the potential economic disruption to the port, which Rising Tide had to defend.

Audio excerpt — Zack Schofield:

“It's quite a bit of work to appear in the Supreme Court. We have to get affidavits from, you know, our witnesses who are going to be presenting evidence on our safety plans and our strategic plans.”

CHEYNE:

I talked to Zack, who at times he was standing outside the doors, kind of straining to listen in to hear how it was going.

Audio excerpt — Zack Schofield:

“And, you know, we got some amazing evidence from folks about the amount of economic disruption this would actually cause, you know, who would be suffering any losses if, if anyone.”

CHEYNE:

And then Briohny Coglin whose name is on the Form 1 she was even cross examined.

Audio excerpt — Briohny Coglin:

“I'm no stranger to court proceedings but even for me, it was incredibly stressful, incredibly time consuming. I was either in court or at my computer working on the case for 20 hours a day over the course of ten days.”

CHEYNE:

And then it was on the final day, which was November 7, that Justice Fagan delivered his verdict on the protest.

DANIEL:

Which was?

CHEYNE:

The court ruled in favour of the police.

Audio excerpt — Zack Schofield:

“So I was in the courtroom when the judgement was handed down and Justice Fagan came in and said that he was giving the police their sort order to not have a Form 1 go ahead. And he walked out.”

DANIEL:

So what does that actually mean?

CHEYNE:

It means the protest is officially prohibited and it also means there is no option to appeal.

Rising Tide say they’ll still go ahead with the protest which they’ll do alongside a police force that now has a full suite of powers. And what’s more, challenges like this are becoming more and more common and they’re set against a backdrop of a nation-wide crackdown on the right to protest.

DANIEL:

After the break, on why it’s more challenging to hold a protest than ever before.

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DANIEL:

Cheyne, it sounds like the Supreme Court challenge to stop this protest by Rising Tide all hinged on this Form 1, which I've never heard of. What makes this piece of paper work so important?

CHEYNE:

Yeah, it was the Form 1 that really got me interested in this story because just a few weeks before Rising Tide was in the Supreme Court, there was another group in the exact same situation. The Palestine Action Group who were challenged over their Form 1 for rallies planned around October 7. They ended up reaching an agreement with the police outside of court, but it got me thinking how this could happen twice in one month.

And it turns out the Form 1 actually has quite a long history.

It was originally brought about after the Mardi Gras protest in 1978. This was the first ever Mardi Gras march and it ended police brutality and mass arrests for which the NSW police apologised for in 2016.

Audio excerpt — News Reporter 1970s:

“Whilst demonstrators went through a repertoire of slogans the court began remanding the 53 people arrested on Saturday night, but before midday another seven people were in jail.”

CHEYNE:

So, it was in the wake of these protests that the Form 1 was born.

Because the government wanted to improve the relationship between police and protesters, bringing them together so they could set boundaries and therefore reduce violence and reduce arrests.

I even had a look back at what was said in parliament in 1979, when it was introduced, and the New South Wales Attorney-General called it ”the greatest recognition of the right to assemble."

DANIEL:

But it sounds like that's changed now.

CHEYNE:

Yeah, I mean speaking to advocates, there is a sense that its usage has been changing quite a bit. I'm told that there were pretty much no police challenges until around 2003. That's when lawyers started hearing about it more often.

And it really kicked up a gear again in 2022 when the New South Wales State Government under Premier Perrottet brought in anti-protest laws that at the time were the most punitive laws in Australia.

Audio excerpt — Premier Dominic Perrottet:

“People have the right to free speech. We promote that.”

CHEYNE:

He brought in tough fines and even potential jail time for protesters who obstructed things like coal ports and railways.

Audio excerpt — Premier Dominic Perrottet:

“We pass the laws. We'll throw the book at these people because their behaviour is completely unacceptable.”

CHEYNE:

And it's since then that advocates say Form 1 has been less about bringing everyone to the table and is functioned more as a kind of protest permit. Because now if a Form 1 isn't authorised by the police, there's a threat of jail time as soon as your protest starts.

I should say as well, I did ask the New South Wales Police about the changing use of the Form 1 and they told me that in the vast majority of cases they do authorise a form, usually with some negotiation involved. Statistics show, however, that since 2003 there have been 18 police challenges in the Supreme Court over a Form 1 and in 13 of those cases or 75 per cent of cases, the police won.

DANIEL:

So what does all this say about how protests are changing in Australia?

CHEYNE:

Yeah. So I mean, the Form 1 is just, you know, one small part of a much bigger picture. You know, we know that in the past two decades there's been 49 anti-protest laws enacted in Australia. Human Rights Law Centre say many of them are confusing and vague.

We know that in the entire decade, up until 2021, only one person was imprisoned for protesting and since then, we've had nine. Many more have been arrested and subjected to really tough bail conditions before they've been found guilty of anything. And we know that the New South Wales Premier Chris Minns has been, you know, doubling down on anti-protest laws and is calling for the police to be given even more authority to prohibit protests that he says are costing taxpayers money.

DANIEL:

Certainly I know where I’m from Cheyne, in Victoria, the police union is pushing for a similar system to the Form 1 system that you have there. So it definitely feels like there’s a shift from a police perspective to get the balance right between peaceful assembly versus the cost of disruption. But there’s also a concern that this is going too far?

CHEYNE:

Yeah definitely and I think what you’re getting at there as well is that there does need to be this balance struck, but should it rest with the police or with the government of the day to decide where that line is drawn? Especially in the case of Rising Tide, these are protests that have critical messages against the government’s own decisions.

DANIEL:

So Rising Tide has said that the blockade will still go ahead. What is the group risking in doing that? How could it unfold?

CHEYNE:

So the protest is still very much going ahead. In fact, yesterday afternoon we saw hundreds of kayaks paddle out into the harbour. And without the protection of the Form 1 authorisation, it does mean we’re likely to see arrests and charges.

There was one small victory for the protesters though, so Transport NSW had earlier tried to make the entire coal port a ‘maritime exclusion zone’, which meant that anyone who even dipped their toes into the water could be hit with an $1,100 fine. Rising Tide went back to the Supreme Court, challenged that and won.

But before the protest had started, I did ask Zack if he thought there was ever a point where he thought the pressure would become too much. If he’d ever thought about just cancelling the protest. And he seemed determined from the get go that that would never happen.

Audio excerpt — Zack Schofield:

“Oh God no, no, no, no. We're certainly not cancelling it. A lot of folks are feeling more determined than ever to come. Because they see this as basically a political attack but the message that it sends is that the government doesn’t want us on the water, they don’t want us to be protesting.

At the end of the day, you know, we're targeting the fossil fuel industry. We don't need to make anyone else's lives harder than they need to be, but we need to assert our rights.”

DANIEL:

Cheyne, thank you so much for your time.

CHEYNE:

Thank you, Daniel.

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DANIEL:

Also in the news today

The chair of the Indian Adani Group, Gautam Adani, has been indicted by US Prosecutors over what they describe as a “massive bribery scheme”.

Adani is accused of agreeing to pay $250 million to Indian government officials in exchange for solar energy supply contracts with an estimated yield of $2 billion in profits.

The Adani group is then accused of going on to fund the solar projects with billions from US investors.

And

There are more First Nations children in the child protection system than ever before.

According to data from the annual Family Matters report, there are currently almost 23,000 Aboriginal children in the system, making Aboriginal kids 10.8 times more likely to be removed from their family than any other child.

Despite this, only 6 per cent of child protection prevention money goes to Aboriginal-run organisations with more funding for programs that remove children from families rather than in prevention or support.

7am is a daily show from Schwartz Media and The Saturday Paper.

It’s made by Atticus Bastow, Cheyne Anderson, Chris Dengate, Daniel James, Erik Jensen, Ruby Jones, Sarah McVeigh, Travis Evans and Zoltan Fecso.

That’s all for now. See you next week.

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