Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The District Court of Queensland resentenced the appellants, two young people who participated in a public protest against the impacts of climate change. Both had been charged with obstructing and trespassing on a railway, using a dangerous attachment device to interfere with transport infrastructure, and contravening a direction or requirement. In the first instance (Magistrates Court), the plaintiffs were sentenced to three months imprisonment. The District Court conceded that it was manifestly excessive because the objective gravity of the offense was incorrectly characterized, the appellants were first-time offenders who pleaded guilty at the first available opportunity, they had favorable antecedents, there was no violence or threat of violence, there was an absence of risk of physical harm to others, and there was no disruption of members of the public. The judge held that appellants should pay a single fine of $1000 Australian dollars.
On January 7, 2020, the appellants, two young people (21 and 23 years old) concerned about the impacts of climate change and involved with an activist group opposing new coal mines, went with about 20 other members to a railway line on a private road north of Bowen, Queensland. The line provides access to the Abbott Point bulk coal loading facility. There, the appellants attached themselves to a device known as a “dragon’s den”. This locking device can only be removed in two ways: by them voluntarily, or if the device is being cut from them. Cutting them from the device carried a risk of injury to the appellants.
Their presence suspended the operations of that railway line until they were removed. The police arrived, asked the appellants to remove themselves from the device, and directed them to cease trespassing on, and obstructing, the railway, but they declined to do so. The police eventually released them from the device. Further, they were taken to the watchhouse, charged, and released on bail. The appellants were charged with four offences: i) Obstructing a railway, contrary to section 477 of the Criminal Code Act 1899; ii) trespassing on a railway, contrary to section 257 of the Transport Infrastructure Act; iii) using a dangerous attachment device to interfere with transport infrastructure, contrary to section 14C(1) of the Summary Offences Act 2005; and iv) contravening a direction or requirement, contrary to section 791(2) of the Police Powers and Responsibilities Act.
The appellants pleaded guilty before the Magistrate Court, a first-instance tribunal. For the offence of using a dangerous attachment device, the Acting Magistrate convicted and sentenced them to three months imprisonment, wholly suspended for two years. For the other offences, they were convicted but no further penalty was imposed. The plaintiffs appealed the imprisonment sentence pursuant to section 222 of the Justices Act 1886 on the ground that it was manifestly excessive.
Judge Tracy Fantin delivered the opinion for the District Court of Queensland. The main issue before the Court was whether the three-month prison sentence imposed on the appellants was manifestly excessive. The defense solicitor emphasized that an imprisonment sentence was a last resort for these offences and submitted that a fine of $1,000 to $2,000 Australian dollars was the appropriate penalty. He also described the offending act as civil disobedience or a political act, not based on any malicious intent. Additionally, he submitted that convictions should not be recorded considering the appellants’ lack of criminal history, their early pleas, the burden that a conviction would have on them as young people, and the significant implications for their careers or their capacity to travel. For the police prosecutor, fines were not a sufficient deterrent, and held that the offences caused extreme inconvenience and disruption to the Aurizon network —a company that operates a coal export rail network in Australia— and their course of business.
When analyzing the hearing in the Magistrates Court, the District Court highlighted that the first instance judge quickly dismissed a good behavior bond and a fine as a possible penalty. In this sense, the District Court considered that “in ruling out the possibility of a bond before hearing any further submissions including defense submissions, the Acting Magistrate erred by unduly fettering his sentencing discretion” [para. 17]. Furthermore, it added that the judge “had prejudged the matter” and that his mind “was not open to persuasion on this penalty option and that he had formed a conclusion incapable of alteration, whatever evidence or arguments may be presented by the defense” [para. 17]. The District Court concluded that “a reasonable apprehension of prejudgment is a denial of procedural fairness, and an error of law” [para. 17].
The District Court also held that there was no evidence of any kind about the extent to which the offence had caused inconvenience and disruption to the rail network or to Aurizon’s course of business, so the objective gravity of the offence was incorrectly characterized. Additionally, it affirmed that the only risk of injury was to the appellants themselves and that there was no evidence of violence or threat of violence. The District Court also recalled that the appellants had no criminal history in any Australian jurisdiction. On the contrary, “character references were tendered which spoke of their good character, family support, and commitment and contributions to their communities, the environment and climate justice issues” [para. 17]. In any case, for the Court, “the objective gravity of the offending was at the lower end of the range for the particular offence” [para. 62].
As for the right to protest, the District Court held that every person has “the right to express their views and to protest against an activity to which they object subject only to such restrictions as are prescribed by law and are necessary in a democratic society for (amongst other legitimate aims) the prevention of disorder or crime or the protection of the rights and freedoms of others” [para. 66]. The judge recognized the public interest in free speech and the right of assembly in Australian democracy, which must be balanced against considerations of public health and inconvenience, but highlighted that the offending, in this case, involved trespass on private property rather than a public place.
Additionally, the District Court sustained that “when sentencing for offenses committed in the course of protest actions, the legitimate democratic right to protest conferred on all Australian citizens as an incident of the implied freedom of political communication is a relevant consideration, but it is not unfettered. It is a freedom to communicate by lawful means, and it does not authorize unlawful acts (such as trespass or obstruction of transport infrastructure)” [para. 71]. The judge also added that “the motive for the commission of the offense will often be relevant to the moral culpability of the offender” [para. 73].
In sum, the Court considered of particular significance the absence of violence or threat of violence or intimidation, the absence of risk of physical harm to others, the absence of evidence of loss suffered (financial or otherwise), the absence of disruption of members of the public, the sincerity of the appellants’ beliefs, and that the offences were committed in pursuit of their viewpoints against climate change. In conclusion, the District Court held that the first instance sentence was manifestly excessive and incurred in several errors, resentenced the appellants to pay a single fine of $1,000 Australian dollars, and ruled that convictions should not be recorded.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
While the judgment resentenced the appellants to pay a single fine of $1,000 instead of the three months imprisonment imposed by the first instance judge, it still criminally condemned the protest. It could be interpreted that it was a legitimate restriction, as it was established by law, served a legitimate interest (protect the rights of third parties and public order), and was proportionate, but it might have not been necessary in a democratic society. Condemning climate change protests, even with a fine of $1,000, could have an chilling effect on exercising the right to freedom of expression, in particular when the “legal or allowed” channels are not effective to make governments take climate action.
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