2.1.   Anti-Protest Laws

Climate activists engage in lawful forms of advocacy and various forms of civil disobedience. The concept of ‘civil disobedience’ is much contested, but one influential definition presents it as ‘a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies’.^[1] There has been a long history of environmental activists engaging in civil disobedience.^[2] Law-abiding climate activism, including school climate strikes, can be very effective. Nevertheless, law-breaking on the part of climate activists has become more common in recent years. ‘Extinction Rebellion’ is a powerful global phenomenon; this climate activist group embraces the tenet that civil disobedience is a necessary pathway to the radical social and political changes required to prevent cataclysmic climate change.^[3] Subsequently, the arrival of even more radical offshoots, such as ‘Just Stop Oil’ in the United Kingdom (UK) and ‘Blockade Australia’ and ‘Disrupt Burrup Hub’ in Australia, has heralded a further escalation in tactics, with a focus on disruption and real or simulated property damage.^[4] This includes the throwing of food and gluing of hands to the perspex covers of major artworks in public galleries.

It is important to keep in mind that the approach adopted by groups such as Extinction Rebellion in which activists should be prepared to be arrested for acts of civil disobedience does not necessarily factor in the discriminatory treatment of people of colour within criminal justice systems. In 2019, the grassroots collective ‘Wretched of the Earth’ wrote that ‘[t]he strategy of XR [Extinction Rebellion], with the primary tactic of being arrested, is a valid one – but it needs to be underlined by an ongoing analysis of privilege as well as the reality of police and state violence’.^[5]

Anti-protest laws that clearly target environmental activists have been passed in most Australian jurisdictions.^[6] Such legislation has been enacted despite a High Court ruling ^[7] that Tasmania’s original anti-protest legislation infringed a constitutional implied freedom of political communication. In another constitutional challenge in 2023, Kvelde v NSW [2023] NSWSC 1560, NSW anti-protest legislation passed in 2022 was struck down as invalid. This legislation imposed penalties of up to two years imprisonment and/or fines of up to $22,000 for disrupting or damaging major roads or major public facilities. Similarly draconian anti-protest legislation has recently been enacted in the UK.^[8]

Some activists arrested for minor offences, such as traffic obstruction, have been granted bail with conditions that are far more onerous than those usually imposed in relation to such charges.^[9] These conditions seem to be aimed directly at preventing the protester from exercising basic civil and political rights. One example is that of Scott Ludlum, a former Senator for the Greens Party, who was arrested and charged with obstructing traffic and granted bail by police on the condition that he not come within 2.5 km of the Sydney Town Hall or attend future Extinction Rebellion events.^[10]

Problematically, acts of civil disobedience on the part of climate activists are increasingly conflated with acts of terrorism or ‘ecoterrorism’. Governments in the Global North are resorting to various forms of counterterrorism surveillance.^[11] There have been pre-emptive strikes on Australian activists, mirroring the pre-emptive nature of many anti-terrorism offences. In June 2022, a police raid on a gathering of climate activists at Mount Colo led to the arrest of seven activists, with the so-called leader charged with ‘aiding and abetting the commission of a future crime’ and refused bail.^[12] Later that year, police officers, including members of the Queensland counter-terror command unit, visited the homes of climate activists to deter them from participating in protests at the forthcoming International Mining and Resources Conference.^[13] The pre-emptive surveillance and policing of Australian climate activists in Western Australia was exposed in a 2023 Four Corners program.^[14]

There are also international instances in which law-breaking activists have received sentences designed for terrorists. For instance, in 2016 and 2017, Jessica Reznicek and Ruby Montoya blasted holes in parts of the Dakota Access Pipeline in the United States (US) with a blowtorch. Reznicek was sentenced to 96 months in prison, and three years of supervised release, after a court applied a ‘terrorism enhancement’ clause. Her appeal against this sentence was unsuccessful.^[15]

We are familiar with historical examples of law-abiding behaviour being retrospectively criminalised, as in the Israeli trial of Nazi bureaucrat Adolf Eichmann, who was following orders in orchestrating the transportation of countless people to concentration camps. The converse position, as articulated by many in the climate movement, is that ‘protesters condemned as criminals today will be the heroes of tomorrow’.^[16]

2.2.   Defence of Emergency or Necessity

In raising the defence of necessity,^[17] a defendant in a criminal prosecution does not dispute that they committed the act which constitutes the alleged offence but claims that it was justified on the basis that it was a necessary action to prevent or avert a greater evil. Climate activists are using this defence to argue that it is necessary to break the law in order to avert the far greater evils associated with climate change.

In Australia, the common law defence of necessity is available in NSW^[18] but, to date, has not been successfully invoked by climate activists. In other Australian jurisdictions, the defence is codified as the extraordinary emergency defence. In Queensland, ‘a person is not criminally responsible for an act done under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise’.^[19]

An early success with the defence, framed as lawful excuse, occurred at the 2008 trial in the UK of six members of Greenpeace. They were charged with criminal damage after climbing the Kingsnorth power station chimney, graffitiing it, and causing the temporary closure of the power station. A jury acquitted them after five expert witnesses explained the property damage that would result from climate change. One activist posed this question:

If jurors from the heart of Middle England say it’s legitimate for a direct action group to shut down a coal-fired power station because of the harm it does to our planet, then where does that leave government energy policy?^[20]

British climate activists have had little subsequent success in presenting the defence of necessity, with judges holding that it is inapplicable. This was certainly the direction to the jury in the 2019 trial of Extinction Rebellion founder Roger Hallam and another climate activist for property damage; the jury nevertheless acquitted them after hearing evidence on climate change risks.^[21] Arguing the defence or even alluding to the climate crisis, in the face of judicial instructions to the contrary, can have serious consequences; defendants who do so have been jailed for contempt of court.^[22] Even holding up a sign stating ‘Jurors: you have an absolute right to acquit a defendant according to your conscience’ outside a courtroom in which climate activists are tried could lead to contempt charges.^[23]

In the US, there have been no acquittals on the basis of necessity. The defence has been allowed to be put to the jury in a number of trials,^[24] including the 2014 trial of two activists who used a lobster boat to block the delivery of coal to a generating station and the 2016 trial of the ‘Delta Five’, who blocked railway tracks used by crude oil trains. In 2019, Ken Ward, one of five ‘valve turners’ who shut down emergency valves on tar sands crude oil pipelines, successfully appealed a lower court’s refusal to allow him to argue necessity.^[25]

In January 2020, a Swiss court upheld the defence of necessity in the trial of climate activists who played tennis in a Lausanne branch of Credit Suisse, but this decision was later overturned on appeal.^[26] Climate activists have also argued in a number of French courts that unhooking President Macron’s official portraits to highlight climate inaction can be justified on the basis of necessity.^[27]

Climate change constitutes an extraordinary emergency, even if it is not a sudden one and the peril is not perceived as imminent. Would or should ‘an ordinary person possessing ordinary powers of self-control’ respond with acts of civil disobedience? It may well be viewed as reasonable to respond to this global emergency with actions designed to prevent the construction of a large coalmine or impede the transportation of coal by rail. This has not, however, been the approach taken by Queensland magistrates, as activist Greg Rolles found out in his 2019 trial.^[28] Four others have subsequently failed to establish that the extraordinary emergency of climate change justifies or excuses law-breaking in Queensland.

The defence of emergency or necessity permits law-breaking and can be viewed as undermining legal norms, and hence the rule of law. Climate activists, however, believe that the climate crisis poses a far greater threat to the rule of law than do non-violent acts of civil disobedience.

2.3.   Sentencing of Climate Activists