Australia: Participants in the nation's largest civil disobedience action for climate get off lightly

Climate defence group Rising Tide staged The People's Blockade of the World's Biggest Coal Port over a weekend in November, which involved a 30-hour sanctioned on-water obstruction of the Nobbys Headland entrance to Newcastle Port, at the point where the Tasman and the Hunter meet.

In support of the mass civil disobedience action commencing late morning on Saturday 25 November, a four day festival was held on Newcastle's Horseshoe Beach, with thousands of supporters, including contingents from the Greens, the Bob Brown Foundation and Socialist Alliance.

Just to be clear, the climate crisis is no longer confined to the poles, as northern Queensland and regional Victoria have only just suffered extreme rain events, which followed the mass floodings in the east over 2022 and the destruction of 20 percent of mainland forest in the 2019/20 wildfires.

The blockade didn't conclude at the police-approved 4pm Sunday deadline, however, as around 100 activists remained on the waterway at the headland entrance to the fossil fuel port, and the writer of this article was one of the dozens still out on the water as NSW police commenced arrests.

And as the court attendance notice issued to those who'd broken the law in a mainly kayak-buoyant civil disobedience act required, dozens of Rising Tide supporters attended Newcastle Local Court on 11 January, only to be welcomed into the new year with a positive court experience.

No conviction

All those who participated in the nonviolent direct action were charged with one count of operate vessel so as to interfere with others use of waters, contrary section 14(a) of the Marine Safety Act 1998 (NSW). And the fine-only offence carries a maximum penalty of a $5,500 fine.

The writer was represented by Sydney Criminal Lawyers senior associate James Clements, who, in securing the first cab off the rank, argued that the offending occurred in a very small window of time and further, the motivation for the crime was altruistic.

From whence the police issued a warning and commenced arresting those disobeying the law, Clements said, was only a 20 minute timeframe, to which the prosecution agreed. And the criminal defence lawyer further noted that the writer was attending the event in the capacity of a journalist.

After a brief adjournment to consider documents, NSW Magistrate Stephen Olischlager returned to the courtroom, and, as he began the sentencing process, he noted that a 25 percent discount would apply to the writer's punishment, which indicated that a fine and conviction were forthcoming.

At this point, Clements interjected and underscored the brief timeframe, as well as the climate justice motivation for the breach of the law, and this appeared to lead the judicial officer to a more lenient approach that set the precedent that shaped the rest of the day's proceedings.

The writer received no conviction on a first offence, and an 18 month conditional release order (CRO), which, in the old parlance, is a section 10 good behaviour bond. Indeed, those subjected to a CRO cannot break the law for the stipulated period or else, a penalty for the initial crime will be imposed.

The law in New South Wales does not allow the courts to issue a fine without conviction. A CRO cannot be issued in conjunction with a fine. And CROs are usually reserved for offences that are considered less serious, that have noncriminal reasoning for commission and when the actor is of good character.

Leniency in the face of altruism

Anne from Rising Tide told SCL that the overall court experience produced an "outstandingly good result" in terms of the penalties that Magistrate Olischlager handed down to all climate defenders who had their matters dealt with on Thursday, with 34 arrestees having to return on 25 January.

According to Rising Tide, 38 activists who were arrested at the action were sentenced on 11 January. And the group's summary of the day's results shows that everyone with no prior convictions received a section 10(1)(a) dismissal, or no conviction recorded, along with an 18-month CRO.

All climate defenders who had a criminal record were convicted, which wasn't unexpected. But the $300 fines they were issued were significantly lower than the guestimates that were floating around beforehand, and for those who spent time in custody after the incident, no fine was forthcoming.

Although there was one defendant who had no priors and did receive a conviction and $300 fine.

Some of Thursday's defendants who might be termed seasoned activists, with quite a few protest convictions under their belt were surprised with the leniency that the magistrate dealt them, as they'd been half expecting the presiding judicial officer on the day, to throw the book at them.

Positive summing ups aplenty

In an apology letter to the court, the writer expressed that he hadn't intended to take part in the blockade but did so as he believes that the climate defenders are right in raising awareness and, as he often speaks to them regarding actions and arrests, he was expressing his allegiance with them.

"The climate crisis is escalating, so I thought it was time to put my money where my mouth was and show solidarity with the activists," the writer told ABC journalist Keira Proust, outside Newcastle courthouse post-sentencing.

Proust also noted the positive remarks Magistrate Olischlager made in regard to the types of civilians who do take part in civil disobedience actions as a means of forging climate justice.

"Offences of this nature are [often] committed by persons who are of good character," the ABC journalist reported the magistrate as saying. "It is a strength of those characters, which on this occasion [means] these are matters that can be dealt with by not proceeding to conviction."

"[This was] not selfishly motivated," Magistrate Olischlager further assessed the mass civil disobedience action. "[They are] valuable contributors to society, persons who are intelligent ... and making a real contribution to society."

As the CAN relating to the mass arrest notes, the Port of Newcastle sees close to 4,700 ships moving through it on an annual basis, with about 166 million tonnes of cargo, the overwhelming majority of which is coal and the effects of turning this substance into energy is destroying the planet.

New climate statistics released this week emphasise the urgency of actions like Rising Tide's, as the EU's Copernicus Climate Change Service (CCCS) advised that 2023 was Earth's hottest recorded year, and the 1.5 °C warming mark is likely to be passed in the next 12 months.

As for Rising Tide, it remains defiant, as whilst the climate defence group is pleased with the way Newcastle Court dealt with participants in the nation's largest ever act of civil disobedience, it's already posted an event page, spruiking this year's repeat mass blockading of Newcastle Coal Port.

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