Police v Abel; Police v Adams; Police v Kelly; Police v; Molan; Police v Wurcker
[2024] ACTMC 1
•6 February 2024
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Abel; Police v Adams; Police v Kelly; Police v Molan; Police v Wurcker |
Citation: | [2024] ACTMC 1 |
Hearing Dates: | 31 October 2023 and 1 November 2023 |
Decision Date: | 6 February 2024 |
Before: | Magistrate Temby |
Decision: | I find each of the Defendants guilty of the offence charged. |
Catchwords: | CRIMINAL LAW – PUBLIC ORDER OFFENCES – Unreasonable Obstruction – Protest – Climate Change – Criminal Code Act 1995 (Cth) – Defence of Sudden or Extraordinary Emergency. |
Legislation Cited: | Public Order (Protection of Persons and Property Act 1971 (Cth) s 9 Criminal Code Act 1995 (Cth) ss 4, 5.2, 5.4, 10, 10.3, 13.3 |
Cases Cited: | B v R [2015] NSWCCA 103 Bolwell v Jennings [1985] TASSC 60 Guo v Commonwealth of Australia [2017] FCA 1355; (2017) 258 FCR 31 Limbo v Little (1989) 38 NTLR 253; (1989) 98 FLR 421 Mark v Henshaw (1998) 85 FCR 555 Morris v The Queen [2006] WASCA 142 Nguyen v The Queen [2005] WASCA 22 Oblach v R [2005] NSWCCA 440; (2005) 195 FLR 212 R v Webb [2017] NTSC 94; (2017) 326 FLR 413 Schubert v Lee; Morris v Lee (1946) 71 CLR 589 Sharma (by her litigation representative) v Minister for the Environment [2021] FCA 560; (2021) 391 ALR 1 Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95 Warnakulasuriya v The Queen [2012] WASCA 10; (2012) 261 FLR 260 |
Parties: | Branko Tadic (Informant) Nicholas Abel ( Defendant) Catherine Adams ( Defendant) Kathryn Kelly ( Defendant) Anna Molan ( Defendant) John Wurcker ( Defendant) |
Representation: | Solicitors Commonwealth Director of Public Prosecutions Collaery Lawyers ( Defendants) |
File Numbers: | CC 2112 of 2023 CC 2113 of 2023 CC 2114 of 2023 CC 2115 of 2023 CC 2118 of 2023 |
MAGISTRATE TEMBY:
Contents
Introduction
Decision-making principles
Summary of decision
Offence of unreasonable obstruction
Defence of sudden or extraordinary emergency
Disposition
Relevant legislative provisions
Issues in dispute
Climate change
Evidence
Factual findings
Defendants’ evidence
Unreasonable obstruction
Determining whether a person has engaged in unreasonable obstruction
Defendant’s submissions
Prosecution submissions
Consideration
Conclusion
Defendants’ reliance on section 10.3 of the Criminal Code
Preliminary issues
Ruling in relation to admissibility of expert evidence
Application of sections 10.3 of the Criminal Code
Defendants’ submissions
Prosecution’s submissions
Consideration
Conclusion
Verdict
Introduction
1․The catalyst for these proceedings is climate change. The Defendants are all deeply concerned about the impact of climate change and sought to bring attention to the urgency of the situation which climate change poses to the Earth.
2․On 27 February 2023, the Defendants participated in a protest outside 60 Marcus Clarke Street, in Civic (the Premises). They chose that location because, at the time, a tenant of that building was the Australian Petroleum Production and Exploration Association (APPEA), which the Defendants understood to be a lobby group for the petroleum and gas industry.
3․The Defendants considered that it was, and remains, important that governments and individuals reduce their use of fossil fuels, in order to limit the progression of climate change, but that government policies were inadequate to achieve that objective. They considered that APPEA wielded an inappropriate level of influence over the government in this respect.
4․Through their protest they sought to draw attention and sympathy to the cause of climate change, with a view to building public support for a movement that would be able to have an impact on the political process. They hoped to disrupt APPEA’s activities, reduce public support for them and bring the government’s policies in relation to fossil fuel subsidies and new exploration projects to the attention of the public.
5․The protest involved blockading the two main entrances to the Premises. The Defendants are each charged with being a person, in a territory, who engaged in unreasonable obstruction while taking part in an assembly, in contravention of subsection 9(1) of the Public Order (Protection of Persons and Property Act 1971 (Cth) (the Act).
6․The Defendants defended the charges brought against them on the basis that:
(a)any obstruction they caused was not unreasonable (and therefore the offence is not made out); and
(b)even if the elements of the offence are established, the Defendants are able to rely on the defence of sudden or extraordinary emergency provided for in section 10.3 of the Schedule to the Criminal Code Act 1995 (Cth) (Criminal Code).
Decision-making principles
7․There are some preliminary matters which I must first address. The Prosecution of course bears the onus of proving the guilt of the Defendants. The Defendants do not have to prove that they did not commit the offences with which they are charged. The standard of proof the Prosecution must meet is proof beyond reasonable doubt and the Defendants cannot be found guilty unless the evidence, which I accept, satisfies me beyond reasonable doubt of their guilt. If I am satisfied that there may be an explanation consistent with the innocence of the Defendants, or I am unsure of where the truth lies, then I must find that the charges have not been proved to the standard of proof required by law.
8․I must determine whether each of the witnesses is a reliable witness. That is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence as proved. I can accept part of the witness’s evidence and reject part of that evidence or accept or reject it all. I extend this principle to the persons whose statements were tendered at the hearing, even though they did not give evidence at the hearing. The law does not require me to give all evidence the same weight.
9․I must determine the facts in accordance with the evidence, considering it logically and rationally, without acting capriciously or irrationally. I must not let emotion enter into the decision-making process. I must bring an open and unbiased mind to the evidence, but I may use my common sense and experience in assessing the evidence. Both the Prosecution and Defendants are entitled to my verdict free of partiality, prejudice, favour or ill-will.
10․I may draw reasonable inferences from the facts that I find are established. I must consider any possible inference to ensure that it is a justifiable inference, and I must not draw an inference from the direct evidence unless it is a rational inference in all the circumstances. It is permissible for the court to rely on an inference, of which the court is satisfied should be drawn beyond reasonable doubt, as proof of an element of an offence.
11․I must deliver my decision according to the evidence.
12․The Defendants each gave evidence at the hearing. They were not required to do so. They could have elected not to give evidence. They thereby became witnesses in the hearing, and I must approach their evidence in the same way that I approach the evidence of any other witness. Their evidence was no better or worse, because they are the Defendants, than the evidence of any other witness in the hearing and must be considered in the same way.
13․By giving evidence, the Defendants did not assume any onus to prove anything at the hearing in relation to the elements of the offence with which they were charged. While the Defendants had an evidential burden in relation to the defence of sudden or extraordinary emergency upon which they relied, the Prosecution bore the legal burden of disproving the excuse beyond reasonable doubt if the evidential onus was discharged by the Defendant.
14․While I have referred above to the Defendants, collectively, this matter involved a joint trial of the five Defendants. I must consider the case against each Defendant separately when considering my verdicts. I will return a separate verdict in respect of each individual Defendant. There is nothing in law, or for that matter as a matter of logic, which requires me to return the same verdict in respect of each Defendant. I will not determine whether the Defendants are guilty without considering them as individuals and giving each separate consideration. I must not take into account, in deciding whether the Prosecution has proved its case against one Defendant, any evidence that was tendered only against another Defendant.
15․Out of an abundance of caution, I remind myself that, in circumstances where the Prosecution case is largely based on the evidence of a single witness, Sergeant Tadic, I need to examine his evidence carefully to satisfy myself that I can safely act upon his evidence to the standard required in a criminal trial. Having said that, Sergeant Tadic’s oral evidence was supported by video evidence, and I did not understand the facts of the matter to be in dispute between the parties.
Summary of decision
Offence of unreasonable obstruction
16․For the reasons set out in this decision, I am satisfied that:
(a)the Defendants each obstructed the Premises by interfering with the rights and privileges of the owners and tenants of the Premises, and their employees, guests and customers;
(b)the Defendants intended to obstruct the Premises;
(c)in all the circumstances of the obstruction, it was unreasonable; and
(d)accordingly (in circumstances where the Defendants did not dispute that they engaged in the obstruction in a territory (the ACT), nor that they had intentionally taken part in an assembly (the protest)), the elements of the offence against section 9 of the Act are made out.
17․While the Defendants submit that I should find that the obstruction (a well organised, peaceful protest) was not unreasonable, given the scale of the climate emergency they were seeking to address, it is my view that it is not possible for the court to express a judgment as to whether, in the case of a protest, a particular cause being promoted is of sufficient social value or importance such as to render the adopted form of obstruction not unreasonable.
18․Further, even if the purpose of the Defendants’ actions is relevant to the (un)reasonableness of the Defendants’ obstruction of the Premises, this would not assist the Defendants. The fact that they sought to target the business premises of an organisation that was engaged in lawful activities, because they took issue with the influence that they perceived the organisation to have over government policies with which they disagreed, points to the obstruction being unreasonable.
Defence of sudden or extraordinary emergency
19․It was conceded by the Prosecution that the Defendants reasonably believed that climate change constitutes an extraordinary emergency for the purposes of section 10.3 of the Criminal Code. I am satisfied that that concession was properly made.
20․I also have no doubt that the Defendants honestly believed that what they were doing was the right thing. However, I am not satisfied that the evidence relied on by the Defendants suggests, as a reasonable possibility, that:
(a)the Defendants subjectively believed that obstructing the Premises was the only reasonable way of dealing with the climate change emergency; nor
(b)any such belief, if held, was reasonably held.
21․Further, even if the Defendants subjectively believed that obstructing the Premises was a reasonable response to the emergency, I am not satisfied that the evidence relied on by the Defendants suggests, as a reasonable possibility, that any such belief was reasonably held.
22․The actions of the Defendants were not directed to dealing with the climate change emergency that they believed existed, and nor were they compelled to break the law. Rather, their actions were directed at drawing greater public attention and sympathy to their cause, including through social and other media, in order to prompt others to join in their efforts to influence government to change its policies in relation to climate change. Their decision to break the law was a voluntary one.
23․Accordingly, I am not satisfied that the Defendants have discharged the evidential burden that rested with them under section 13.3 of the Criminal Code in order to rely on the defence of sudden or extraordinary emergency in section 10.3 of the Criminal Code.
Disposition
24․As a result, I find each of the Defendants guilty of the offence charged.
Relevant legislative provisions
25․Section 9 of the Act provides:
Unreasonable obstruction
(1) A person who, in a Territory or on Commonwealth premises, while taking part in an assembly, engages in unreasonable obstruction commits an offence, punishable on conviction by a fine of not more than 20 penalty units.
(2) For the purposes of an offence against subsection (1), absolute liability applies to the physical element of circumstance of the offence, that the person is in a Territory or on Commonwealth premises.
26․The elements of the offence are therefore that (with respect to each Defendant):
(a)the Defendant was in a Territory (absolute liability);
(b)the Defendant was taking part in an assembly (fault element of recklessness); and
(c)the Defendant engaged in unreasonable obstruction (fault element of intention).
27․Section 4 of the Act defines “assembly” to mean:
an assembly of not less than three persons who are assembled for a common purpose, whether or not other persons are assembled with them and whether the assembly is at a particular place or moving, and includes the conduct in connexion with that common purpose of all or any of the persons in the assembly.
28․Section 4 of the Act defines “unreasonable obstruction” to mean:
an act or thing done by a person that constitutes, or contributes to, an obstruction of, or interference with, the exercise or enjoyment by other persons of their lawful rights or privileges (including rights of passage along the public streets) where, having regard to all the circumstances of the obstruction or interference, including its place, time, duration and nature, it constitutes an unreasonable obstruction or interference, and “unreasonably obstructs” has a corresponding meaning.
29․Section 5.2 of the Criminal Code provides that:
Intention
(1) A person has intention with respect to conduct if he or she means to engage in that conduct.
(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
30․Section 5.4 of the Criminal Code provides:
Recklessness
(1) A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2) A person is reckless with respect to a result if:
(a)he or she is aware of a substantial risk that the result will occur; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3) The question whether taking a risk is unjustifiable is one of fact.
(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
31․Section 10.3 of the Criminal Code provides:
Sudden or extraordinary emergency
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a)circumstances of sudden or extraordinary emergency exist; and
(b)committing the offence is the only reasonable way to deal with the emergency; and
(c)the conduct is a reasonable response to the emergency.
32․Section 13.3 of the Criminal Code relevantly provides:
(2) A defendant who wishes to deny criminal responsibility by relying on a provision of Part 2.3 (other than section 7.3) bears an evidential burden in relation to that matter.
…
"evidential burden", in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
Issues in dispute
33․The Defendants do not dispute that, on the morning of 27 February 2023, they were in a Territory (the ACT), nor that they were, intentionally, taking part in an assembly (a protest). Having regard to the evidence given by the Defendants at the hearing, those concessions were properly made. They put in issue, however, whether their actions involved an unreasonable obstruction of the Premises (being the third element of the offence).
34․There is also dispute between the parties as to whether each of the Defendants held the beliefs required by section 10.3 of the Criminal Code and, indeed, as to what the Defendants needed to establish in order to rely on the defence contained within that section. That latter dispute was the subject of a ruling I made with respect to the admissibility of the Defendant’s expert evidence.
Climate change
35․The Defendants’ beliefs in relation to climate change, its impacts and the need to take action to limit the progression of climate change was of central importance to this case. For the reasons I have set out later in these reasons, I ruled that expert evidence the Defendants sought to lead in relation to the existence and extent of climate change as an emergency was not relevant to the determination of the proceedings, and was therefore inadmissible.
36․However, it is important that I articulate what my understanding of climate change is. To that end, I have set out below an extract from the summary of Bromberg J’s judgment in Sharma (by her litigation representative) v Minister for the Environment [2021] FCA 560 (Sharma) that was published by the Federal Court. This decision is one that was both published by the Federal Court and widely reported on by media organisations. In my view, the discussion of climate change that is set out in Bromberg J’s judgment is, together with its accompanying summary, both comprehensive and accessible.
37․The summary of Bromberg J’s judgment includes the following:
The parties do not dispute that human emissions of CO2 into the atmosphere are largely responsible for the warming of the Earth’s surface temperature since the Industrial Revolution. The Minister accepts that the Earth’s surface temperature is increasing and that humans are primarily responsible. She also accepts that average surface temperatures will likely continue to increase and Australia will experience more drought, sea level rises and extremes of heat, rainfall and fire-related weather. The Minister accepts that increases in temperature affect the environment, the economy and society and that the climate exacerbates inherent risks and introduces new risks in the context of heatwaves, droughts, bushfires, floods and tropical cyclones all being part of the Australian climate experience.
The Minister accepts that the projected effects of climate change depend upon the extent of greenhouse gases emitted globally in coming years.
The applicants presented unchallenged scientific evidence on the future trajectory of global average surface temperatures. The evidence was largely based on the climate change modelling of the Intergovernmental Panel on Climate Change and more recent assessments made by Professor William Steffen, an eminent specialist in climate science. The following plausible propositions were demonstrated by that evidence:
(i) The Paris Agreement target of limiting global average surface temperature to well below 2°C, with the ambition to limit temperature to 1.5°C above the pre-industrial level, is now unlikely to be achieved without significant overshoot;
(ii) The best future stabilised global average surface temperature which can be realistically contemplated today, is 2°C above the pre-industrial level;
(iii) If the global average surface temperature increases beyond 2°C, there is a risk, ranging from very small (at about 2°C) to very substantial (at about 3°C), that the Earth’s natural systems will propel global surface temperatures into an irreversible 4°C trajectory, resulting in global average surface temperature of about 4°C above the pre‑industrial level by about 2100;
(iv) The 100 million tonnes of CO2 attributable to the burning of coal from the Extension Project is likely to cause a tiny but measurable increase to global average surface temperatures. In doing so, it would increase the risk of global average surface temperatures increasing beyond 2°C and the risk of global surface temperatures being propelled into an irreversible 4°C trajectory. In my assessment, that risk is “real”, meaning that it may be remote but it is not far-fetched or fanciful.
Furthermore, the evidence has demonstrated that the risk of harm to the Children from climatic hazards brought about by increased global average surface temperatures is on a continuum in which both the degree of risk and the magnitude of the potential harm increases exponentially if the Earth moves beyond a global average surface temperature of 2°C, towards 3°C and then to 4°C above the pre-industrial level.
The nature and extent of the harm that may be experienced by the Children is detailed in sections 5.1 and 5.3 of my reasons. Those potential harms may fairly be described as catastrophic, particularly should global average surface temperatures rise to and exceed 3°C beyond the pre-industrial level. Perhaps the most startling of the potential harms demonstrated by the evidence before the Court, is that one million of today’s Australian children are expected to suffer at least one heat-stress episode serious enough to require acute care in a hospital. Many thousands will suffer premature death from heat-stress or bushfire smoke. Substantial economic loss and property damage will be experienced. The Great Barrier Reef and most of Australia’s eastern eucalypt forests will no longer exist due to repeated, severe bushfires.38․I have had regard to the information contained in the above extract in assessing the evidence that was given in the present proceedings and in determining the issues in dispute in the proceedings.
Evidence
39․Detective Sergeant Brank Tadic gave evidence for the Prosecution. He was responsible for the police response to the protest and attended the site of the protest. Detective Sergeant Tadic’s body worn camera footage of his attendance at the protest was played during his evidence.
40․As noted above, each of the Defendants gave evidence in their own case. Another protester, Ms Marni Williams, also gave evidence.
41․Admiral Christopher Barrie, a former Chief of the Australian Defence Force, commenced giving evidence as a purported expert witness. Admiral Barrie is climate change and security advocate and member of the Global Military Advisory Council on Climate Change. He joined the Climate Change Institute at the ANU in 2008 and, since that time, worked with the Climate Commission, the Climate Council and, since 2021, with the Australian Security Leaders Climate Group. However, as discussed below, I accepted the Prosecution’s objection to the evidence of Admiral Barrie and the Prosecution’s other proposed expert witnesses and, accordingly, ruled that evidence inadmissible.
42․I accept that each of the witnesses gave honest and reliable evidence. Further, there were no inconsistencies between their evidence and answers given by the witnesses in cross-examination were given in an open and candid way, and tended to agree with the propositions that were put to them.
43․In those circumstances, the making of relevant factual findings is a straight-forward exercise and I have set out my findings as to the facts relevant to the charged offences below. I have then set out the relevant evidence of each of the Defendants with respect to the reason for their involvement in the protest, and the beliefs they held as to the need to engage in the protest in order to address the emergency that they believed that climate change presents.
Factual findings
44․The protest was well organised, including through a number of planning meetings held from January 2023. The Defendants wished to engage in a peaceful, non-violent, protest. They chose the Premises as the location for the protest because one of the tenants of the Premises is APPEA.
45․The Defendants understood APPEA to be the peak body for the petroleum and gas industry. They were concerned about the contribution that the use of fossil fuels makes to climate change and about what they saw as APPEA’s inappropriate level of influence over the government (and the government’s policies in relation to fossil fuels and inadequate response to climate change).
46․In addition to the roles to be undertaken by the Defendants, a police liaison officer and a first aid officer were appointed, one of the protestors was allocated responsibility for speaking through a megaphone to explain what the protest was about, at least one of the protesters was responsible for livestreaming the protest, and several protestors handed out leaflets to members of the public which explained the purpose of the protest. The leaflet also identified the likely timing of the protest (approximately an hour) and that it would be possible for users of the Premises to get into the building if they had an urgent need to do so.
47․The Defendants participated in the protest outside the Premises on 27 February 2023. The Premises is an office building comprising eight or nine levels. There are several commercial tenants, including the embassy of Ukraine and APPEA. On the ground floor there is a café.
48․Orange webbing was put up between the pillars of the Premises on the ground floor, about three metres from the entrance doors. “Building condemned” stickers were put on the building and windows, and across the entrance doors. A “Fossil fuels cost the Earth” banner was erected. There were objects blocking the entrance doors, including inflatable dinghies.
49․Mr Wurcker, Dr Molan and Dr Abel were situated in front of the entry to the Premises located on Barry Drive. Dr Molan was in front of the revolving door to that entrance, sitting on a chair with an inflatable device in front of the door behind her. Mr Wurcker and Dr Abel were in front of the glass panels either side of the door. Their hands were glued to the glass panels.
50․Ms Kelly and Ms Adams were situated in front of the entry to the Premises on Marcus Clarke Street. Ms Kelly was sitting on a chair in front of the revolving door and Ms Adams was at the fire exit next to it, with her hand glued.
51․Detective Sergeant Tadic attended the Premises sometime between 8am and 8.15am. The police liaison officer approached Detective Sergeant Tadic. Detective Sergeant Tadic asked the liaison officer to advise the Defendants that it was an offence to block the entrances to the Premises and that they should remove themselves.
52․The liaison officer did this, however the Defendants did not leave and so, at around 8.30am, Detective Sergeant Tadic spoke to the Defendants himself. He asked the Defendants to leave the location, however they did not move.
53․Gradually, a number of other police officers arrived. Detective Sergeant Tadic spoke to the Defendants again at around 9am and advised them that they needed to move, or they would be arrested. The Defendants did not move and, at around 9.10am, the Defendants were arrested.
54․During the course of the protest, Detective Sergeant Tadic observed a number of people walk past the Premises, however he did not observe a congregation of people at any stage. From the body worn camera footage it is apparent that many people were driving around the area but only a few members of the public can be seen on the footage standing around, or walking past, the Premises.
55․It is unclear whether the blockade deterred anyone from entering the Premises although it is certainly possible. From a practical perspective, it was not possible for tenants of the Premises, and their workers, nor for visitors of the Premises, to enter the Premises through the blockaded doors. So much would have been apparent to anyone near the main entrances.
56․The blockade of the Premises was clearly a source of frustration for the managers of the Premises. Both the facilities manager and the building manager complained to Detective Sergeant Tadic during the course of the protest.
57․It was possible to enter the Premises through a rear entrance. The Defendants’ position was that if people really needed to get into the building they would be able to, but they wished to persuade people not to go in because they wanted to get their message across.
58․Ms Williams was part of the protest, however, unlike the Defendants, her role was not to block the main entrances to the Premises. She was stationed at the rear entrance, which is accessible from a pathway off Marcus Clarke Street or from the Premises car park. Ms Williams thought that it took around 20 to 40 seconds to walk from the Marcus Clarke front entrance to the rear entrance.
59․Ms Williams’ role was to communicate to people why the protest was being conducted, including to hand out leaflets, but not to prevent people from entering the Premises. She said that the leaflet had been designed in a way that people could understand what the protest was about, without interacting directly with the protesters, and could also understand that they could get into the Premises if they needed to.
60․Ms Williams said that people were coming and going through the rear entrance to the Premises. It is unclear how many people used the rear entrance and how many were deterred from entering by the blockade of the main entrances without enquiring as to whether there was an alternative entrance. I expect that it would have become quickly known by people who worked at the Premises that the rear entrance could be used, but that information would not have been as readily available to visitors of the Premises.
61․Detective Sergeant Tadic initially thought that people could access the Premises through the café entrance, however he later realised that that was not correct.
Defendants’ evidence
Dr Molan
62․Dr Molan decided to participate in the protest because he was “increasingly alarmed at the galloping nature of the climate crisis we were … in”. He wanted the Australian Government not to approve new coal and gas exploration, and to end fossil fuel subsidies. He wanted to reduce public support for APPEA.
63․He said that:
I had been informing myself for years about the state of affairs in terms of emissions and fossil fuel contributions to the problems we're facing and in recent years, by reading works that most of the public don’t get to see from people like - especially Professor Will Steffen who was my major guide in my actions as a climate activist, but also Professor Michael Mann, Dr Joelle Gergis, the Climate Council, the Potsdam Institute. I became increasingly aware that we're facing a dire emergency, the like of which humankind has never faced on this planet and that we were going to overshoot any limits for a safe climate for humanity and that our government - well, successive governments had failed catastrophically to take any action to prevent that. So I knew that some particular events to do with climate regulation were coming up for Parliament and I knew that the gas industry had unrivalled access to our governments and to policy making and so I thought this action which required civil disobedience was warranted because we are actually about to make it impossible for any future on the planet for generations to come. We're heading for three degrees and more of global warming and we can't even feed ourselves on that degree of catastrophe. This is not evident to people. I wanted just to show that this was so extreme, so severe that there ought to be a mass movement to stop the gas industry in particular from cashing in on our destruction. That's why I was there.
64․In addition to the written sources of Dr Molan’s knowledge with respect to climate change, Dr Molan also said that he attended some of Professor Steffen’s seminars.
65․Dr Molan said that he considered that participating in the protest was the only reasonable way to deal with the climate change emergency that he believed existed. He said:
… it's the result of cumulative actions that we've all tried to take to alert our deaf and blind governments to the disasters that are coming at warp speed towards us and at a point where a conscience driven citizen knows that calamity is ahead, then civil disobedience has to become an option and I thought, and I do think, that we are at that point.
[Prosecution] And have you formed a view as to the urgency of these perils that you refer to from the climate emergency?[Dr Molan] These perils are here with us now. The urgency is now to try to save a liveable environment for some human beings. I mean, it's really grim. It's not what people know and the urgency couldn't be greater.
[Prosecution] Did you consider any other way to deal with the emergency that you could …? [Dr Molan] Well, I do take other actions and I have considered – and I have met with MPs, I’ve attended rallies, I’ve written letters, I’ve made submissions to the Senate. I’ve done everything I can do. It’s not enough. We need to go further and I believed that we are actually at the end game. We’re at the end game and if our governments won’t save us, we have to save ourselves. It sounds extreme but it’s the truth as I believe it.
66․Dr Molan described his actions as involving civil disobedience. He said that he did not want to be arrested, but he was prepared to be arrested for his actions in order to further his objective of drawing attention and sympathy from the public, to prompt a mass movement. He also hoped that the government might notice, or that APPEA itself might start to think about its responsibility.
67․In cross-examination, Dr Molan agreed that climate change is a huge issue that cannot be dealt with in a single way, requiring actions from individuals, governments and corporations. He agreed that stopping climate change is not something that happens instantly as a result of one protest and nor did he expect that climate change would cease as a result of blocking the entrance to the Premises.
Ms Kelly
68․Ms Kelly has a long history studying environmental issues. She worked at the Department of the Environment from 1990 to 2002 and, during that time, undertook a Masters in environmental management and development. She said that she gained an understanding of what she descried as the “climate catastrophe” during that time, and that she subsequently made a documentary film in 2010 and 2011 about climate change called “The inertia track – climate change in oceans”.
69․For her film, Ms Kelly interviewed Dr John Church, Professor Will Steffen and Professor David Karoly and included footage from Dr James Hansen from NASA. She said that “their evidence really proves that the situation in relation to climate change is so dire”.
70․Ms Kelly said:
We’re approaching tipping points that will make things move much more quickly, things like the arctic sea ice melting, and that white ice that used to reflect the sunlight up won’t be there anymore, so the dark ocean absorbs more heat. So there’s a little tipping points like that where things could just go so quickly. And we may be reaching – we may have already reached some of those tipping points and that’s where it’s so terrifying, really, for the future.
71․Ms Kelly noted the views of the Secretary-General of the United Nations that this is a desperate time, and the views of King Charles III that climate change represents an existential challenge and emergency.
72․Ms Kelly decided to participate in the protest because nothing she had done had resulted in any action on the part of the government and she wanted to bring the issue of climate change to the government’s attention.
73․She said that blocking the entrance to the Premises was the only reasonable way to deal with the emergency. She said:
Well, I’d been standing on roadsides with banners for years, written letters to parliamentarians and to the media, made submissions on approvals for coal mines, I’ve been to see my local MP and other MPs, David Smith, and been – and I’ve done all of those things that I can think that – of that people do when they are concerned about an issue and it seems to be landing on deaf ears in terms of the government.
74․In cross-examination, Ms Kelly agreed that climate change is a huge issue that requires actions from individuals to government to internal organisations, although she said that the main responsibility for addressing the issue rests with the federal government because most people are doing what they can through, for example, installing solar panels, buying electric cars and recycling.
75․She agreed that she did not believe that, as a result of blocking the entrance to the Premises, climate change would stop immediately, nor that the government would instantly take action. She agreed that the purpose of the protest was to show the government and the public that there are people who care so deeply about the issue that they are prepared to do something potentially illegal and possibly be arrested. She said:
In fact, it’s one of the only things I think we have available to us to reasonably do. I mean, we don’t want to be violent, but I think if more and more people do this, and they are doing this, then that is surely likely to get more attention from the government.
Mr Wurcker
76․Mr Wurcker pointed, in particular, to the decision of Bromberg J in Sharma, in identifying his understanding of the nature of climate change as an emergency. He also said that he followed Ian Dunlop as someone from the corporate sector who had had to deal with climate change issues.
77․Mr Wurcker described the reason for his involvement in the protest in the following way:
And so once realising that this - this is - that climate change is an existential threat. Well, how best is the strategic approach to deal with it, and so that's where non-violent civil disobedience or non-violent direct action, which it's often called, comes into it.
…
it is purely political what we're doing. It would be the fossil fuel groups which would say get yourself an electric vehicle or, you know, recycle your plastics and whatever but that will help but it will be infinitesimal compared to their action of continuing to produce and ramp up fossil fuel production.
…
what is the next most critical action that we need to take to arrest the climate change, so to get that political action is what's required. We have a government at all levels, especially at the state and federal level. Now, some would go so far as to say they've been captured by the fossil fuel industry. And so, yes, we need to do our best to get to - people to vote for representatives that take this seriously but we also - this - that point in time, the most critical thing - given that we’re further away from election - was to deal with this fossil fuel lobby - lobbying. And given that APPEA is at the top of the fossil fuel lobbying, you know, they have the classic fossil fuel deniers now come delayers, you've got ExxonMobil, one of their members. For 50 years they have known the existential threat of climate change.
78․Mr Wurcker said that he considered that his actions were the only reasonable way to deal with the climate change emergency he understood to exist. He said:
Because at that time and still now, dealing with the fossil fuel lobbyists of which APPEA is the head, is the most - is the top - really the - the most critical, the highest priority action for us to deal with climate change because it is their undue influence. It's the donations, it's the revolving doors. Our prime minister had a fossil fuel lobbyist as his chief of staff. People - politicians come out of being politicians and get onto the boards of fossil fuel companies.
… The knitting nannas have been at the APPEA offices, APPEA headquarters for years - prior to this, we have sent letters. This wasn't the first demonstration; we had a string of demonstrations at that building before this. We have written letters. …
… We escalated it on that day as the most appropriate thing that we could do to deal with climate change.
79․In cross-examination, Mr Wurcker said that protesting against APPEA was not the only response to climate change, but it was the next most appropriate. He said that “the next most critical thing to deal with climate change was to reduce the social licence and State capture by APPEA and its members”.
80․Mr Wurcker agreed that climate change is a huge challenge facing humanity and that responding to it requires a wide range of actions and strategies from individuals, governments and corporations. He agreed that he did not believe that climate change would stop as a result of blocking the entrance to the Premises but considered that non-violent civil disobedience “is the only thing that deals with entrenched injustice” and that history shows that important social change is driven, incrementally, through such action.
81․Mr Wurcker said that:
We're building a mass movement and we will do that and at the next election those that are climate deniers in the – or even delayers in the government will come to their comeuppance. But in the meantime, we have to attack, we have to remove the licence, the social licence of the fossil fuel industry particularly the lobbyists.
Ms Adams
82․Ms Adams decided to join the protest because she wanted to send a message to APPEA and the government that what they were doing is not acceptable, and she wanted to inspire other activists to engage in public action. She said that she had been concerned about climate change for a long time.
83․Ms Adams said that her beliefs, at least in recent times, had been informed by the views of Professor Noam Chomsky and of the UN Secretary-General Antonio Guterres, from social media and from scientists such as Professor Will Steffen. She had been involved in other climate campaigning, including earlier protests outside APPEA and Parliament House, but that had not involved civil disobedience and that campaigning did not result in any press coverage.
84․She considered that her actions at the Premises were the only reasonable way to deal with the climate change emergency that she understood to exist. She said:
Well, I think it’s the only reasonable way. I think that – well, I don’t want to commit violence and we haven’t been able to get the tens of thousands of people out on the streets. So, letters aren’t listened to. So, I think that that was the reasonable way. And because, you know, staying there until I got arrested allowed for the protest to go longer and allowed for media to turn up. I don’t know whether we got media, but we try to allow for that, to try and get the message out there.
85․In cross-examination, Ms Adams agreed that climate change is a huge issue facing humanity, requiring action at all levels, both from individuals and organisations, domestic and international. She did not expect that climate change would end as a result of blockading the entrance to the Premises but considered that building public support for a movement was vital to achieving change given that stopping climate change is, at least in part, a political process. To that end, she was prepared to take the risk that she might be arrested, believing that being arrested would draw more attention and sympathy to the cause of climate change.
Dr Abel
86․Dr Abel has been concerned about climate change for a long time. In more recent times he has taken actions to promote stronger action in relation to climate change, including attending various types of protests.
87․Dr Abel said that he had been involved in other actions such as talking to the media about climate change and assisting schools to engage in strikes for climate change.
88․Dr Abel explained his involvement in the protest the subject of these proceedings as follows:
We are now in an emergency. If I could just insert this piece; I've been - my research now is about tipping points, tipping points and society's tipping points in the environment and the association between them. And so, we see systems as being quite stable until suddenly they collapse and change, and so in my opinion, and in the opinion of people who are a hell of a lot brighter than I am, we're right on the edge of a tipping point. We’ve taken it as far as we can go. We cannot go any further without pushing us into hothouse hell, in the words of Will Steffen.
…
my focus was on APPEA because of the tight association between APPEA and all the governments of Australia, state, and the Northern Territory government and the federal government. They are in lockstep.
89․Dr Abel considered that the nexus between APPEA and the fossil fuel industries, and government, is a controlling variable “that’s actually keeping us on track for hothouse hell. So that’s why I focussed on them”.
90․Dr Abel said that he holds an honorary position with the ANU, working with the Institute of Climate Energy and Disaster Solutions. He said that he also worked with the CSIRO in the area of adaptation to climate change. He said that, over time, he had worked with Will Stafford, Brian Walker and Buzz Holling. He described these people as “very big names” in science. He also worked with Mark Hahn, the Deputy Director of the International Panel on Climate Change.
91․Dr Abel said that, in addition to the nexus between APPEA and government, another key variable is human social psychology, or human perception of danger. He said that impacting the public’s perception on climate change is very important because if the public turns against the relationship between APPEA and government “then we’ve nailed a couple of the really difficult variables”.
92․In cross-examination, Dr Abel agreed that his actions amounted to civil disobedience and that he knew that blockading the door was potentially illegal and that he might be arrested. He stated that he did not consider that writing further publications would assist and that what was important was to “win the public over” to create political pressure. In that context, he agreed that potentially breaking the law and being arrested could draw more public attention to the cause.
93․Dr Abel agreed that he did not consider that his actions in gluing his hand to the Premises would stop climate change, but rather he was focused on the cumulative effects of various actions. He considered that there would be a social tipping point, in terms of the public’s attitude towards the issue, at some point.
Unreasonable obstruction
94․As noted above, the only issue in dispute in relation to the elements of the charge brought against the Defendants is whether the Defendants unreasonably obstructed the Premises. The Prosecution drew my attention to only one case that was said to be relevant to that issue, being Bolwell v Jennings [1985] TASSC 60 (Bolwell).
95․Bolwell concerned proceedings brought in relation to an alleged contravention of section 12 of the Act which, relevantly, prohibited a person from engaging in unreasonable obstruction in relation to the passage of persons or vehicles in relation to Commonwealth premises. The definition of “unreasonable obstruction” has remained in the same terms since the decision of Bolwell.
96․At [2] of Cox J’s judgment, his Honour sets out the relevant facts, as found by the Magistrate at first instance. They included the following:
On Monday the 10th of December 1984 members of the Administrative and Clerical Officers Association were engaged in a strike directed against the Commonwealth. The defendant was and is a member of that union and he also was and is a clerical employee of the Commonwealth. As a national executive member of the union he took part in calling the strike Australia wide. He assisted in the organisation of the strike in Hobart and in particular took part in a picket of the Commonwealth Government Centre in Collins Street, Hobart on the day of the strike. There is no doubt or dispute that the Commonwealth Government Centre is a Commonwealth place.
On that Monday morning last December, Mr Price, an electrical contractor, arrived at the Centre for the purpose of supervising his men in the course of the work which he had contracted to perform for the Commonwealth. He proposed to drive from Collins Street and down a ramp in the Centre leading to a parking bay. Apparently Mr McDonough, a Commonwealth public servant, was then on strike and on picket duty alone. He persuaded Mr Price to stop his vehicle either by standing in front of it or signalling him in some manner. Mr Price explained that as a private contractor the strike had nothing to do with him and insisted upon entering the Centre. Mr McDonough allowed him to do so. As he explained in evidence he was on his own and had no literature with him at that time to distribute to the driver in relevance to the strike. Half an hour later Mr Price left the premises. At about 9.45am he returned. At that time Mr McDonough had been joined on the picket by two others; the defendant Dain Wesley Bolwell and Romaine Dallow.
…
By 9.45am the picket was organised. The three union members were strung across the entrance to the Centre so as to bring incoming vehicular traffic to a halt. The intention of the members of the picket was that one of their members should attempt to dissuade the driver from entering the Centre and perhaps give him a pamphlet. If that attempt failed then the driver was to be allowed to proceed. But the intention was to block all drivers and bring them to a halt at least temporarily so that communication could be made with them.
…
... Price came to a halt because his passageway was obstructed and at that time at least the front of his motor vehicle was on Commonwealth property. He wound down his window and said something to the effect that he desired to proceed and that the strike had nothing to do with him. The defendant in reply said something to the effect that he could not get in and remained in position in front of the vehicle. The defendant's intention was to give Mr McDonough the opportunity to move to the driver's side and speak to him. Price, however, did not know that and became impatient. He moved his vehicle forward slowly so that it came into contact with the defendant. After moving forward a metre or two he halted his vehicle. Then he moved slowly forward another metre or two. This action caused the defendant to fall across the bonnet. After the vehicle halted a second time the defendant walked around to the side of the vehicle, wrenched a wiper blade off the windscreen and threw it upon the ground. Price then alighted from his vehicle and made a complaint to a security officer inside the building. After some investigation the defendant was charged with the two offences in question. Price was not charged though the defendant made a complaint of assault.
97․Cox J continued at [3]:
… Although the learned magistrate's findings tend to suggest that this was only Price's second visit to the Centre, it appears from his evidence that he entered with his car more than once before the incident. On the first such occasion he had been momentarily delayed while he persuaded the picketer McDonough to let him through, and on the subsequent occasions before his confrontation with the applicant he had been allowed through without being questioned. It is also clear from the transcript and the argument put to me by both counsel that the interruption to Price's passage in no way involved inconvenience to or obstruction of other persons or traffic and that it was, as the learned magistrate found, "early on a Monday morning and few people were about".
98․At [5], Cox J noted that:
The applicant does not quarrel with the learned magistrate's finding that his act constituted an obstruction of or interference with the right or privilege of Mr Price to take his vehicle onto the premises. His counsel submits however that it could not be said to be an unreasonable obstruction, and furthermore that the learned magistrate, in assessing its allegedly unreasonable character, misdirected himself by having regard to extraneous considerations. I shall deal with the latter submission first.
99․Cox J’s findings are set out at [7] to [9], with his Honour relevantly finding:
[7] With respect, I have formed the view that the learned magistrate did misdirect himself as to the criteria to be applied in determining whether the obstruction was reasonable. He seems to have taken the view that all the circumstances should be considered and the principal circumstances he touched upon, before concluding that the obstruction was unreasonable, were those relating to the applicant's purpose and the inutility of the means adopted to achieve it. True, having made those remarks, he said that whether or not the picketing plan was strategically unwise was not the question for him to answer, but the only matters upon which he touched were matters from which he concluded that some members of the public had been needlessly inconvenienced.
[8] Section 4 does not invite a consideration of all the circumstances at large. What have to be considered are "all the circumstances of the obstruction or interference". There follow the words "including its place, time, duration and nature". These are not the only circumstances of the obstruction to be considered, but with respect the learned magistrate does not appear to have given consideration to any of those nominated circumstances, but appears to have confined himself to considering why any obstruction at all was reasonably appropriate. Although from the point of view of achieving an industrial end the strategic wisdom of obstructing individuals was put to one side by the learned magistrate, it is hard to escape the conclusion that his Worship regarded the obstruction as unreasonable, only for the reason that it was not in his view reasonable to obstruct anyone at all.
[9] It is not an offence against the Act merely to obstruct another in the exercise or enjoyment of his lawful rights or privileges. The obstruction qua obstruction must be unreasonable. It is not hard to imagine situations where the duration of the obstruction, its nature and when or where it occurs will clearly render it unreasonable. In the instant case it occurred on a Monday morning when few people were about, it lasted for a short space of time, it inconvenienced one person only, it was not shown to be essential that that person should have vehicular access to the premises, the applicant and his two colleagues were not intending anything other than a transitory obstruction and the obstruction caused no damage to personal property (I put aside the damage to the windscreen wiper which was not alleged as part of the obstruction, but as a subsequent and independent incident). None of these factors was given specific attention in determining the alleged unreasonableness of the conduct. No doubt they would try the patience of anyone thus obstructed, especially if he were unsympathetic to the cause, but irritating or inconvenient though they might be, the court before proceeding to conviction had to be satisfied beyond reasonable doubt that the circumstances of the obstruction itself made it an unreasonable obstruction.
100․His Honour found that a tribunal of fact could not reasonably find the case proved and quashed the defendant’s conviction.
Determining whether a person has engaged in unreasonable obstruction
101․From a plain reading of section 4 of the Act, and from Cox J’s judgment in Bolwell, two things are clear:
(a)first, just because a person obstructs another in the enjoyment of their lawful rights or privileges, it does not amount to an offence – the obstruction must be unreasonable; and
(b)the focus of enquiry, as to whether a person has engaged in “unreasonable obstruction”, is on the circumstances of the obstruction – in particular, its place, time, duration and nature – that is, on the nature and scope of the obstruction itself, and the extent to which it involves an obstruction of, or interference with, the exercise or enjoyment by other persons of their lawful rights and privileges (including rights of passage).
102․I consider that it would be uncontroversial that the test to be applied, in determining whether the obstruction was unreasonable is an objective one, being whether a reasonable person would consider that the obstruction was unreasonable.
Is the purpose of a person in engaging in conduct involving an obstruction relevant?
103․Whether the purpose of a defendant, in engaging in an obstruction, is relevant to an assessment of whether the obstruction is unreasonable, is not an issue that is clearly addressed in the Act. On the admittedly limited material before me, it is difficult to see how it could be, at least to the extent that the Defendants’ submissions invited me to weigh the social utility of the obstruction they engaged in against the impact that their obstruction had on the rights and privileges of others.
104․From a textual perspective, as Cox J stated in Bolwell, section 4 “does not invite a consideration of all the circumstances at large” but, rather, requires that consideration be given to the circumstances of the obstruction. The particular circumstances that are identified in section 4 all relate to the extent of the obstruction created.
105․Further, from a practical perspective, it would not be possible for the court to express a judgment as to whether, in the case of a protest, a particular cause being promoted by way of protest is of sufficient social value or importance such as to render the adopted form of obstruction not unreasonable.
106․This is not to say, of course, that the purpose for a person’s actions cannot otherwise be relevant. For example:
(a)where a person does not deliberately engage in an obstruction (that is, engaging in an obstruction was not the purpose of their actions), they will not have committed the offence because the fault element will not be made out (the offence requires that the defendant have intended to engage in an obstruction); and
(b)the purpose for a person’s actions may be relevant to a defence such as that relied on by the Defendants in this case (or another defence provided for by section 10 of the Criminal Code).
107․Nor do I entirely discount the possibility that the purpose of a person’s actions could be relevant to whether an obstruction they have created is unreasonable. There may be a difference, for example, between cordoning off a part of a road to allow a delivery truck to have access to premises, as compared to cordoning off the road to play a game of some kind. Similarly, there may be a difference between stopping traffic on a road in order to move an animal from it, as compared to stopping traffic as a joke.
108․However, even if the purpose of the protest is relevant to the (un)reasonableness of the Defendants’ obstruction of the Premises, this would not assist the Defendants. In Mark v Henshaw (1998) 85 FCR 555 (Henshaw), the Federal Court considered the reasonableness of an excuse relied on by appellants for trespassing on the premises of Parkwood Eggs (for the purposes subsection 11(1) of the Act). The appellants wished to voice their concerns about battery hen farming operations that were conducted on the premises.
109․At 559, the Court said:
We do not accept that it is reasonable to enter as a demonstrator, upon the premise of another, when the occupant is carrying out a lawful activity of which the trespasser disapproves. To find otherwise would mean that the citizen would not receive the protection of the law to which he or she is entitled. It would mean that any dissident might be at liberty to enter his or her opponents’ premises in pursuit of a cause.
110․While the court’s decision in Henshaw was given in a different statutory context (consideration of the reasonableness of an excuse), in my view similar observations may be made in assessing the reasonableness of the Defendant’s obstruction of the Premises considered from the perspective of the purpose of the obstruction. In both cases, the alleged offences involved an interference with the rights of property owners or tenants (and others, in the present case) and, if I accept the Defendants’ submission as to the relevance of their purpose in engaging in the obstruction, in both cases an assessment needs to be made as to the reasonableness of the reason for the defendants’ conduct.
111․In my view, if the Defendants’ purpose of engaging in the obstruction is relevant to the present offence, the fact that they sought to target the business premises of an organisation that was engaged in lawful activities, because they took issue with the influence that they perceived the organisation to have over government policies with which they disagreed, points to the obstruction being unreasonable.
Is it necessary to establish that people were in fact impeded in the exercise of their lawful rights or privileges?
112․A further issue that arises in the interpretation of section 4 is whether it is necessary, in order to show that a person has done something that constitutes or contributes to an obstruction of, or interference with, “the exercise or enjoyment by other persons of their lawful rights or privileges”, that there were in fact other persons who were impeded in the exercise of their lawful rights or privileges, or whether it is enough that, had they wished to exercise such rights or privileges, they would have been impeded.
113․In Schubert v Lee; Morris v Lee (1946) 71 CLR 589 (Schubert), the respondents were charged with obstructing a road. The relevant provision prohibited a person from doing certain things on a road “so as to obstruct the free passage of traffic along, through or upon the same …”. The respondent was using a lane for the purposes of conducting a betting operation.
114․While the terms of the relevant provision obviously differ from those used in section 4 of the Act, the case is instructive as both provisions are (or were) directed at conduct which caused an obstruction having a particular impact. In this case, the impact required is on the exercise or enjoyment by others of their lawful rights and privileges; and in Schubert, it was the free passage of traffic. Of note, neither provision is qualified by any reference to the possible or potential impact of the conduct.
115․In Schubert, the applicants argued that they could not be guilty under the relevant provision because there was no evidence of actual interference with other persons who required to use the lane. The High Court said, at 594 (emphasis added):
In order to establish that a highway has been obstructed within the meaning of a provision prohibiting obstruction it is not necessary to prove that any person has actually been impeded in his use of the street. If a man deposits a load of stones in a highway there is no doubt that he obstructs the highway, even though the members of the public are able to walk round the stones and even though it is not proved that any member of the public actually endeavoured to use the highway while the stones were there. This is the view of the law which was adopted in Haywood v. Mumford.
… Every user of a highway for the purpose for which a highway is intended may theoretically at least lessen its commodiousness for the use of other members of the public. But that arises from the nature of things. What is not permitted is the lessening in a substantial degree of the commodiousness of the use of the highway for legitimate purposes by using it for purposes other than a highway ...
…
The extent of the unauthorized use of a highway or other place, its duration, the nature and the occasion of its use and the time must all be taken into consideration, and so too must the character of the place. But, if the conclusion is that a substantial detraction takes place from the commodious use of the place by the members of the public who may reasonably be expected to make use of it, it is unimportant that upon a particular occasion none is in fact impeded. The question which is involved, however, is always one of degree, and therefore of fact. In Dunn v. Holt, it was held that whether or not a person wilfully causes an obstruction in a thoroughfare is in each case a question of degree depending upon the particular facts. It is there pointed out in the reasons for judgment of the court that reasonable use of a highway is not obstruction, but that all the circumstances of time and place must be taken into account in determining whether the acts charged against the defendant do constitute such a reasonable use. In the present cases there was evidence that the lane in one case and the street in the other case were being used for the carrying on by the defendants of betting in such a way as to bring about varying degrees of congregation of persons. It was open to the magistrate upon the evidence in these cases to find that there was an obstruction, in the case of Schubert by the congregation of a substantial number of persons, and in the case of Morris by a series of persons dealing with Morris over a substantial period of time. … The offence, it should be carefully observed, is not betting in a lane or street, but obstructing the free passage of traffic therein. Carrying on a trade or vocation in a street is to make a use of it foreign to the purpose of a highway, and that is the relevance of the betting. An interference with the free passage of potential users of the street caused in such a manner amounts to an obstruction.
116․Having regard to the decision of the High Court in Schubert, it is my view that the Prosecution is not required to establish that any particular individuals were impacted by the obstruction engaged in by the Defendants. While that issue may be relevant to the question whether an obstruction was unreasonable, the question to be resolved in determining whether there was an obstruction is whether the Defendants’ actions interfered with the capacity for potential users of the Premises (its tenants and their employees and guests) to exercise or enjoy their lawful rights or privileges in relation to their use of the Premises.
Defendant’s submissions
117․The Defendants did not dispute that they had engaged in an obstruction of the Premises, nor that that was their intention. In my view, those concessions were properly made on the evidence.
118․However, the Defendants submit that their obstruction of the Premises was not unreasonable. They submit that:
(a)the climate emergency they were seeking to address (which they submitted presents an existential threat to the environment) was of such a dimension that the obstruction – a well organised, peaceful, protest – was not unreasonable. (It appears that this submission was directed both at the question whether the obstruction was unreasonable (as an element of the charged offence) and whether the Defendants’ conduct was a reasonable response to the emergency (as a component of the defence of extraordinary emergency)). That is, the Defendants submitted that I should have regard to the purpose of their actions in obstructing the Premises, in determining whether the obstruction was unreasonable; and
(b)the obstruction was not significant. In particular:
(i) there was no evidence given in the Prosecution case from any tenant that they were unreasonably obstructed;
(ii) Detective Sergeant Tadic’s body worn camera footage did not show people lining up or queuing to get into the Premises, or congregating outside;
(iii) users of the building were able to enter it through the rear entrance; and
(iv) the obstruction lasted for only around 40 minutes.
Prosecution submissions
119․First, the Prosecution submits that the Defendants interfered with the rights of the tenants of the Premises, their customers and their guests, by making the entrances to the Premises on Barry Drive (Dr Molan, Mr Wurcker and Dr Abel) and Marcus Clarke Street (Ms Kelly and Ms Adams) impassible. The Prosecution submits that this makes out the first limb of the unreasonable obstruction charge – the obstruction. In making that submission, the Prosecution submits that Mr Wurcker’s and Dr Abel’s actions, in gluing their hands to the glass panels next to the Barry Drive entrance, did not themselves interfere with the rights of tenants of the Premises, but made the blockade more imposing by increasing the number of people involved, and therefore contributed to Mr Molan’s interference with those rights.
120․The Prosecution submits that, even though the Defendants did not block access to the Premises through the rear entry, the rights of the tenants and their employees, customers and guests was nevertheless obstructed as the Act does not require “total blockage”. The Prosecution submits that:
“interference with” in its ordinary meaning clearly extends to cases where the ability to exercise a right is affected negatively but not entirely frustrated. Moreover, the word ‘obstruction’ on its ordinary meaning does not require total blockage.
121․Relying on Schubert, at 594, quoted above, the Prosecution submits that the rights of the tenants of the Premises and their customers and employees to access the Premises was substantially lessened by the Defendants’ actions.
122․Second, the Prosecution submits that the Defendants’ obstruction was unreasonable. The Prosecution submits that:
(a)the place of the obstruction was a large, multi-storey, multi-tenant, office building;
(b)the time of the obstruction was a Monday morning at around 8.30am, when people would be on their way to work;
(c)the intention of the protest was to disrupt – and that the timing of the blockade was chosen to maximise disruption;
(d)the duration of the obstruction was approximately 40 minutes;
(e)the obstruction involved a total blockade of the main entrances;
(f)the blockades only ceased as a result of the arrest of the Defendants;
(g)while the information in the leaflet indicated that access to the Premises was possible (people were directed to speak to a protest representative if they needed to access the building urgently), the impression that a person would have, if they had not checked the rear entrance, was that the Premises were not accessible; and
(h)if the motives of the Defendants in carrying out the obstruction are relevant, it is clear that the collective motive was to protest, which is not a reasonable motive to engage in an obstruction. The Prosecution relied on Henshaw, quoted above.
123․Third, the Prosecution submits that the fault element of the offence is made out, as each of the Defendants admitted that they planned the blockade and intended to be at the protest.
Consideration
124․For the reasons I have set out in paragraphs [103] – [111] above:
(a)I do not consider that the Defendants’ purpose, in engaging in the obstruction, is relevant to an assessment of whether the obstruction was unreasonable, at least to the extent that the Defendants’ submissions invited me to weigh the social utility of the obstruction they engaged in against the rights and liabilities of others; and
(b)even if their purpose is relevant, it would not assist them.
125․As the Defendants have noted, the obstruction was of the two main entrances to the Premises for approximately 40 minutes, access to the Premises was possible through a rear entrance, there is no evidence of any groups of people congregating outside waiting to get into the Premises and no evidence was given on behalf of any of the tenants as to the impact of the obstruction on them.
126․However, I am nonetheless satisfied, beyond reasonable doubt that, having regard to all of the circumstances of the obstruction, it was unreasonable. In particular:
(a)the place of the obstruction was an eight or nine-storey office building and the obstruction therefore had the capacity to impact the rights and privileges of many users of the Premises;
(b)the time of the obstruction was 8.30am on a workday, a time that many people arrive at work;
(c)the duration of the obstruction was approximately 40 minutes. While this is not a long period, it is not momentary either, particularly at 8.30am, when the entrances to an office building are likely to be busiest;
(d)the nature of the obstruction involved a complete blockade of the two main entrances to the building at a time when those entrances were otherwise likely to be busy. While the rear entrance was accessible, and several people used that entrance, the fact that it was accessible would not have been known by anyone driving past the Premises who wished to attend the Premises, nor by anyone walking to the Premises unless they spoke to one of the protesters or called a tenant of the building who was aware that the rear entrance was open. Not everyone would feel comfortable speaking to the protesters. Further, while Sergeant Tadic’s body worn camera footage did not show groups of people congregating, people who would otherwise have entered the Premises may have simply continued driving, or walking past, rather than waiting, when they saw the protest;
(e)even for those people who did become aware that the Premises could be accessed through the rear entrance, they were inconvenienced by having to use that entrance if their preference was to use one of the main entrances;
(f)the blockade of the entrances meant that the owners of the Premises could not operate it in the way they wished to, by having easy access through the two main entrances. The blockade no doubt also made the Premises less appealing to visit, particularly for customers and visitors of tenants of the Premises, including of the café. As I have noted above, two of the managers of the Premises complained to Detective Sergeant Tadic on separate occasions during the course of the protest; and
(g)the obstruction required police to attend the Premises and, ultimately, arrest the Defendants. This is a circumstance that is relevant for two reasons. First, police resources were required in order to deal with the obstruction engaged in by the Defendants including, when the Defendants would not leave when asked to do so, through the arrest of the Defendants. Secondly, the police presence would have made the Premises even less appealing to visit, further impacting the rights and privileges of the owners and tenants of the Premises.
Conclusion
127․In my view, the blockade of the main entrances to the Premises interfered with the rights and privileges of the owners of the Premises, and of the tenants of the Premises and their employees, guests and customers. Accordingly, I am satisfied that the Defendants engaged in an obstruction for the purposes of the Act.
128․The owners of the Premises were prevented from operating the Premises in the way they wished to, by having easy access through the two main entrances, and the tenants of the building were similarly impacted in operating their businesses or other operations from a building into which access had apparently been precluded. At the very least, the blockade made the Premises less appealing to visit, but it may also have resulted in potential users driving or walking past without attempting to access to the building.
129․The rights and privileges of at least some potential users of the Premises – being the employees, guests and customers of the tenants of the Premises who would otherwise have used the main entrances – were interfered with as a result of having to use the rear entrance (for those who found out it was accessible – which may have necessitated enquiries of others in the building first) or as a result of thinking that the Premises were not accessible at all and not attempting to access the Premises.
130․I accept that Dr Molan, Ms Kelly and Ms Adams engaged in the obstruction and Mr Wurcker and Dr Abel contributed to Mr Molan’s obstruction. I accept the Prosecution submission that the Act does not require for the obstruction to make the Premises entirely inaccessible in order for the Defendants to have engaged in an obstruction – what is required is an “obstruction of, or interference with, the exercise or enjoyment by other persons of their lawful rights or privileges”. In this respect, I accept the Prosecution submission that to interfere with a right, extends to cases where the ability to exercise the right is negatively affected but not entirely frustrated.
131․I make no finding as to whether any person’s rights were “substantially lessened” by the Defendants. In my view, the Prosecution does not need to establish that any person’s rights were “substantially lessened” by the Defendants, which is not part of the definition of “unreasonable obstruction” in section 4 of the Act. In my view, the extent of the interference, and other aspects of the scope of the obstruction, are to be considered in determining whether the obstruction was unreasonable.
132․For the reasons set out in paragraph [126], I am satisfied that the obstruction was unreasonable.
133․I am also satisfied, on the evidence of the Defendants, that they intended to engage in an obstruction of the Premises.
134․Having regard to the above reasons, and also to the Defendants’ concession that they were in a Territory (the ACT) and that they were intentionally taking part in an assembly, I am satisfied that the elements of the offence charged are made out with respect to each of the Defendants.
Defendants’ reliance on section 10.3 of the Criminal Code
135․As noted earlier in these reasons, the Defendants rely on section 10.3 of the Criminal Code in defence of the charges that have been brought against them. The extraordinary emergency upon which they each relied is climate change.
Preliminary issues
136․Four preliminary issues were raised at the hearing with respect to the interpretation and application of section 10.3 of the Criminal Code. They were:
(a)is the existence, and extent, of climate change (being the emergency to which the Defendants said that their actions were directed) something that needs to be established by the Defendants, or is it only that the Defendants reasonably believed that the emergency existed (and that committing the offence was the only reasonable way to deal with the emergency and that the conduct was a reasonable response to the emergency);
(b)how is the reasonableness of the Defendants’ beliefs to be assessed;
(c)does “dealing with” the emergency require that the Defendants’ actions be capable of eliminating the emergency, or is it sufficient that their actions be directed at the emergency in some way (and, if the latter, what degree of nexus is required); and
(d)relatedly, does “dealing with” the emergency require that each individual’s actions be capable of dealing with the emergency, or is it enough that the person’s actions contribute to a solution involving other people.
First issue – existence of climate change
137․The first issue was raised in the context of an objection that the Prosecution raised to the admissibility of the Defendants’ expert evidence. Accordingly, I have dealt with that issue below, in setting out my reasons for my ruling in relation to the admissibility of the Defendants’ expert evidence.
[24] For the purposes of this ruling, it is worth reviewing the common law principles relating to the defence of necessity. As it happens, they were helpfully collated by Biscoe J in Leichhardt Council v Geitonia Pty Ltd (No 6). First, Biscoe J set out the three elements of the defence at common law as illuminated by the Full Court of the Supreme Court of Victoria in Loughnan as follows:…
The element of proportion simply means that the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided. Put in another way, the test is: would a reasonable man in the position of the accused have considered that he had any alternative to doing what he did to avoid the peril? ...
(Emphasis added)
[25] Secondly, Biscoe J referred extensively to the oft quoted judgment of Dickson J in the Supreme Court of Canada in Perka v The Queen and the test which the court held should be applied, as follows:
While necessity should be recognised as a defence through s 7(3) of the Criminal Code, it operates as an excuse rather than a justification. As an excuse, necessity rests on a realistic assessment of human weakness, recognising that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impelled disobedience. The defence must, however, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. That rationale is that it is inappropriate to punish acts which are normatively involuntary. There are a number of tests for determining whether the wrongful act was truly the only realistic reaction open to the actor, one of which is the requirement that the situation be urgent and the peril be imminent. At a minimum, the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a council of patience unreasonable. Another requirement is that compliance with the law be demonstrably impossible. If there is a reasonable legal alternative to disobeying the law then the decision to disobey becomes a voluntary one impelled by some consideration beyond the dictates of necessity and human instincts. One further requirement is of proportionality. The defence cannot excuse the infliction of a greater harm so as to allow the actor to avert a lesser evil. Accordingly, the harm inflicted must be less than the harm sought to be avoided …
(Emphasis added)
[26] Thirdly, Biscoe J set out the important parts of the judgment of Gleeson CJ in the New South Wales Court of Criminal Appeal in Rogers as follows:
[546] The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.
547. The relevant concept is of necessity, not expediency, or strong preference. If the prisoner, or the jury, were free to consider and reject possible alternatives on the basis of value judgments different from those made by the law itself, then the rationale of the defence, and the condition of its acceptability as part of a coherent legal system, would be undermined. To adopt the language of Dickson J in Perka, the accused must have been afforded no reasonable opportunity for an alternative course of action which did not involve a breach of the law.
(Emphasis added)
[27] Finally, his Honour made the following observations about the element in s 10.3(2)(c):
As explained in Loughnan and Rogers, the third element means, in other words, that a reasonable man in the position of the defendant would have considered that he had no alternative but to take the action that he took, which involved breaking the law, in order to avoid the peril.
(Emphasis added)
195․Similar observations were made by Simpson J in B v R, at [301] – [302].
R v Webb
196․In Webb, Reeves J dealt with a case bearing some similarity to the present matter. In that case, the accused were charged with entering a prohibited area at the Joint Defence Space Research Facility at Pine Gap (the same facility the subject of the proceedings in Limbo). The accused sought to rely on section 10.3 of the Criminal Code (and section 10.4). They submitted that they needed to enter the facility to conduct a lament for victims of drone strikes and bombing raids allegedly facilitated by the JDFPG and increase public awareness of the issue.
197․At [12], his Honour set out the relevant evidence of the accused. Similarly to the evidence given in the present proceedings, his Honour recorded the following:
…
Ms Pestorius said in her evidence-in-chief that the accused entered the Prohibited Area at the JDFPG to take direct action about these concerns after their attempts to effect changes to public policy had failed …
In cross-examination, Ms Pestorius said her attempts to effect change to public policy included making submissions and writing letters to Parliamentarians, speaking to members of the media. She also said she was a member of the Greens Party. By these means, she said she wanted to communicate her concerns about the use to which the JDFPG was being put to the wider public. However, she said she did not think these activities were “very effective ... for the peace movement” …
In evidence-in-chief, Mr Paine described his actions in entering the Prohibited Area at the JDFPG on 29 September 2016 as “non-violent civil disobedience”. He said his approach was to go “to where it happens and try ... to disrupt it”. He said he and his fellow accused wanted to gain publicity for their actions and that was why he used Ms Pestorius’ mobile telephone to live stream their activities within the Prohibited Area on Facebook. He also said that he wrote about their actions in entering the Prohibited Area afterwards “in the hope that that would continue in many ways to build peace in the world” …
[Mr Dowling said:] We saw this place as being a facility that allowed war crimes and deaths of innocence to happen and we went there and we prayed and we did what we could to try to disrupt this base and to try to bring people’s attention to this base and, ‘Hey, this is a horrible thing,’ and people need to know about this and people need to do something about this and so that was why we were there on that day ...
198․At [28] to [30], Reeves J sets out his Honour’s reasons for concluding that the accused in that case had failed to discharge their evidential burden with respect to paragraphs (b) and (c) of subsection 10.3(2). His Honour said:
[28] With these principles in mind, I turn to consider whether the accused have discharged their evidential burden with respect to the elements in ss 10.3(2)(b) and (c). Even on the view most favourable to the accused, the summary of their evidence set out above demonstrates, in my view, that they have failed to discharge that evidential burden. First, with respect to the element in (b), there is no evidence that any of them reasonably believed that committing the offence of entering the Prohibited Area at the JDFPG on 29 September 2016 was the only reasonable way to deal with the extraordinary emergency they subjectively believed was posed by the activities being conducted at the JDFPG. To the contrary, their evidence shows that, both before and after 29 September 2016, they pursued the most obvious reasonable way to deal with the perceived extraordinary emergency, namely by lawful protest activities. Hence, their evidence shows that in the months and years before September 2016 and, indeed, since, they were, and have been, all actively involved in various legal protest activities, directed to agitating their concerns about the insidious use to which they believed the JDFPG was being put. More immediately, in the days leading up to 29 September 2016, they were all involved in legal protest activities outside the JDFPG and in the town of Alice Springs aimed at airing those concerns. Against this background, none of them identified any matter that altered that state of affairs on or about 29 September 2016 such that an illegal entry to the Prohibited Area on that date became “the only reasonable way” to deal with the extraordinary emergency that they believed existed. Instead, their evidence shows that, at about that time, they formed the view that their lawful protest activities were “ineffective”. Having formed that view, they decided to commit the offence of entering the Prohibited Area in order to gain greater public attention to their opposition to the use to which they believed the JDFPG was being put. That is reinforced by the fact that they chose to publicise their illegal entry to the Prohibited Area by “live streaming” the lament they conducted there to Facebook. In all the circumstances, this was therefore neither a reasonable way to deal with the perceived extraordinary emergency, nor the only reasonable way in which to deal with it.
[29] For similar reasons, their conduct was not a reasonable response to the perceived extraordinary emergency within the terms of element (c) above. That is so essentially because, even accepting the genuineness of their concerns about the use to which they believed the JDFPG was being put, in all the circumstances, no response was required to that extraordinary emergency beyond continuing to pursue their longstanding and lawful protest activities to agitate their concerns about it. Put differently, their conduct of entering the Prohibited Area at about 4.00 am on 29 September 2016 and conducting a lament there for the victims of drone strikes and bombing raids in the Middle East and elsewhere was not, in any real sense, a response to the extraordinary emergency. They were not, in any real sense, “impelled” to break the law out of their altruistic concerns and no necessity existed of the kind described in the authorities referred to above. Rather, their conduct was a pretext adopted by them to gain additional media coverage and greater public attention to their concerns. In all the circumstances, it was therefore not a response to the extraordinary emergency or, if it was, it was not a reasonable response to it.
[30] For these reasons, I do not consider the accused have adduced, or pointed to, any evidence that suggests that a reasonable possibility that the matter, or element, in either s 10.3(2)(b), or s 10.3(2)(c), existed. They have therefore twice failed to discharge their evidential burden under s 13.3 of the Criminal Code.
Defendants’ submissions
199․The Defendants submit that their evidence establishes that they each believed that their actions were the only way to deal with the climate emergency that they were facing. In general terms, they submitted that they all gave evidence of their belief “that their conduct would help draw attention to the crisis, to APPEA’s role in exacerbating the crisis and would help bring about that change”.
200․The Defendants specifically relied on:
(a)Ms Kelly’s evidence, said to be to the effect that: “Peaceful protest without obstruction had not had any impact. Attending rallies without obstruction had not had any impact. Writing to MPs had not had any impact. Standing on roadsides without obstruction fell on deaf ears. Installing solar panels and driving electric cars has had no change”; and
(b)Dr Abel’s evidence, said to be to the effect that “Writing scientific papers … has had no change” and “The only way to stop getting mad as scientists is to identify those things which are controlling the system. I looked at what is happening with our inaction and identified the nexus between APPEA and our government as a controlling variable. It’s not a random thing at all. My actions are always focused and strategic … At its core, the idea is that breaking the law and being arrested can draw more public attention and as being a scientist, I’ve been thinking about this for 50 years. It was all so strategic. I could have churned out another paper, but I’m done with writing publications”.
201․The Defendants submit that their views were reasonably held. In particular, they submit that to deal with the climate change emergency does not require an immediate nexus between the Defendants’ actions and the emergency.
202․They submit that peaceful protest has been part of social progression in Australia, particularly in the last 20 years. They also point to protest-driven social progression in other parts of the world which have been driven by the actions of a small number of people.
203․The Defendants referred to the example of Rosa Parks and her role in addressing racial segregation in Montgomery, Alabama, through civil disobedience, by sitting in the white section of a bus. As is well-known, Ms Parks’ arrest garnered support from other black people in Montgomery for change, leading to a boycott by black people of buses and, ultimately, a court decision that bus segregation was unconstitutional.
204․In terms of proportionality, the Defendants submitted that “the emergency is of such dimension … that the obstruction was not unreasonable”. As noted above, with respect to the Defendant’s submissions as to the elements of the charged offence, the Defendants point to the scale of the climate emergency they were seeking to address (which they submitted presents an existential threat to the environment), as compared with the reasonableness of their actions, involving a well organised, peaceful protest, which partially obstructed an office building for around 40 minutes.
Prosecution’s submissions
205․As noted already, the Prosecution conceded that the Defendants reasonably believed that climate change constituted a sudden or extraordinary emergency.
206․However, the Prosecution submits that the Defendants’ evidence does not establish that they believed that blockading the main doors to the Premises was the only reasonable way of dealing with the emergency. The Prosecution points to the evidence of each of the Defendants, with respect to other activities they have engaged in to try to do something about climate change and, in particular, bring the issue to the attention of government.
207․The Prosecution submits that the substance of the Defendants’ evidence was that they considered that blockading the entrance to the Premises:
(a)to be the best way to achieve their objectives of drawing public and government attention to their cause of stronger action on climate change, but none suggested it was the only thing that needs to be done to achieve this; and
(b)to be the best option to achieve media attention, the best way to get public support, the best way to influence the government.
208․The Prosecution’s submission in this respect has two elements. The first element is that the Defendants were aware that there were other, reasonable, ways of seeking to raise the issue of climate change with the public and with government. The second element is that the Defendants did not believe that blockading the Premises was a way of dealing with climate change at all.
209․The Prosecution submits that the obstruction “was not an attempt to directly mitigate the emergency” and that the Defendants “all agree that climate change has not ceased as a result of their actions and, of course, nor did they expect it to. Rather, they hoped that public opinion might be shifted, and as a result, government policy might change and that this, in turn, might have an impact of mitigating the impact of climate change”.
210․The Prosecution submits that there is “a fairly remote link” between the Defendants’ actions and the climate change emergency which they believed existed and that the Defendants’ actions constituted too remote a way of dealing with the emergency to satisfy paragraph 10.3(2)(b) of the Criminal Code.
211․The Prosecution further submits that, even if the Defendants did believe that blockading the Premises was the only reasonable way of dealing with the emergency, that belief was not reasonably held. The Prosecution submits that there were “clearly other ways to deal with climate change than blocking a door”. In this respect, the Prosecution points to the fact that the Defendants themselves had engaged in other lawful activities (such as writing letters, participating in other protests, engaging in the political process and making individual lifestyle changes) and that there were other people involved in the protest, such as Ms Williams, who did not obstruct the Premises but focused on lawful activities such as handing out leaflets and talking to members of the public.
212․Similarly, the Prosecution submits that the third component of subsection 10.3(2) of the Criminal Code is not satisfied because the Defendants’ evidence was not that they believed that their conduct was a reasonable response to the emergency. The Prosecution submits that the Defendants’ actions “were not aimed at addressing climate change as an extraordinary emergency per se but were aimed at gaining publicity for their cause and attempting to influence the government to take action to address climate change”.
213․Finally, the Prosecution submits that, even if the Defendants did believe that their actions were a reasonable response to the emergency, that belief was not reasonably held. Again relying on Henshaw, the Prosecution submits that a reasonable person would not believe that it is reasonable for a defendant to obstruct the lawful activities of another person or entity, by engaging in political protest, when the defendant disagrees with those activities, particularly in circumstances such as the present where it was not just the object of the protest (APPEA) which was impacted, but all the tenants of the building.
Consideration
214․I agree with the Prosecution’s submissions.
215․None of the Defendants believed that blockading the entrances to the Premises would result in climate change ceasing or, indeed, having any impact on climate change. Indeed, Mr Wurcker candidly said that he did not even believe that blockading the entrance was the only response to climate change, simply that it was the next most appropriate action.
216․The evidence of the Defendants was consistent as to their purpose:
(a)Dr Molan’s objective was to draw attention and sympathy from the public, to prompt a mass movement that would drive political change. She hoped the government might notice, or that APPEA might start to think about its responsibility;
(b)Ms Kelly’s objective was to obtain attention from the government and the public to drive a change in government policy with respect to climate change;
(c)Mr Wurcker’s objective was to promote a change in societal thinking, using civil disobedience as a catalyst for a mass movement. He considered that “the next most critical thing to deal with climate change was to reduce the social licence and State capture by APPEA and its members”;
(d)Ms Adams’ objective was to draw attention and sympathy to the cause of climate change, with a view to building public support for a movement that would be able to have an impact on the political process; and
(e)Dr Abel’s objective was to contribute to the cumulative effect of activities engaged in by other individuals and organisations aimed at changing societal attitudes to climate change, including by raising awareness of the nexus between APPEA and government. He believed that there would be a tipping point in public opinion, which would then create political pressure for change. Accordingly, he believed that winning the public over was important.
217․That is, in general terms, the objective of each of the Defendants was to draw the public’s attention to the urgency of the need to change government policies with respect to climate change, and sympathy for that cause, to drive political change. Dr Molan and Ms Kelly also hoped to obtain the attention of government directly.
218․In my view, the Defendants were therefore not “dealing with” the climate change emergency that they believed existed, for the purposes of paragraph 10.3(2)(b), and the Defendants knew that. Rather, they hoped that their actions would prompt others into action, in order to convince the government (or to directly convince government) to itself take action to deal with climate change.
219․Further, even if the Defendants did subjectively believe that obstructing the Premises was the only reasonable way to deal with climate change, the evidence does not suggest, as a reasonable possibility, that any such belief was reasonably held.
220․First, a reasonable person would not believe that engaging in a protest, hoping that that protest might inspire a mass movement to influence government policy (or directly influence government policy) directed to addressing climate change is conduct that “dealt with” the climate change emergency, in the sense of being conduct that was capable of achieving something of substance in relation to climate change. That is, it was not a way of dealing with climate change.
221․Secondly, a reasonable person would, even if they accepted that the protest constituted a way of dealing with climate change, not believe that it was the only reasonable way of dealing with climate change. Indeed, each of the Defendants gave evidence that they were aware of other lawful means of bringing attention to their cause but did not consider that they had been, or would be, effective:
(a)Dr Molan had engaged in activities such as attending meetings with members of Parliament, attending rallies, writing letters and making submissions to the Senate, however she considered that they were not enough, and that civil disobedience had become an option. She was prepared to be arrested in order to further her objective of drawing attention and sympathy from the public;
(b)Ms Kelly had engaged in activities such as standing on roadsides with banners, writing to (and meeting with) members of Parliament and the media and making submissions, but nothing she had done had resulted in any action on the part of the government. She considered that by doing something potentially illegal and being arrested would show the government and the public how deeply she cared about the issue. Ms Kelly had also engaged directly in initiatives designed to address climate change, such as installing a solar system, buying (and driving) an electric vehicle and recycling;
(c)Mr Wurcker was aware that other action could be taken, such as seeking to have representatives who take climate change seriously elected to government, writing letters and conducting lawful demonstrations. Mr Wurcker was also aware of ways of addressing climate change directly, such as using electric vehicles and recycling waste, but considered that the impact of those activities would pale in comparison to the impact of fossil companies continuing to produce fossil fuels. He considered that civil disobedience was the best strategic approach to take in order to address climate change, by dealing with the undue influence of fossil fuel lobbyists on government and prompt political action;
(d)Ms Adams had engaged in activities such as writing letters and engaging in lawful protests but considered that being arrested would draw more attention and sympathy to her cause; and
(e)Dr Abel had engaged in activities such as attending lawful protests, writing academic papers and speaking to the media about climate change, however he considered that potentially breaking the law and being arrested could draw more public attention to his cause.
222․That is, there were reasonable legal alternatives open to the Defendants to disobeying the law – obstructing the Premises was not the only way of seeking to deal with climate change, or to seek to bring about a change in government policy in relation to climate change. The Defendants’ view that civil disobedience was likely to be more effective at raising the public profile of their cause demonstrates that their decision to disobey the law was a voluntary one, not one impelled by the dictates of necessity.
223․For the same reasons, a reasonable person would not believe that obstructing the Premises was a reasonable response to the climate change emergency which the Defendants believed existed. As Reeves J said in Webb (at [26], quoting from Rogers at [546]):
… the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.
224․Adopting the observations of Reeves J in Webb, at [29], in dealing with the application of paragraph 10.3(2)(c) in that case:
.. [the accused’s conduct] … was not, in any real sense, a response to the extraordinary emergency. They were not, in any real sense, “impelled” to break the law out of their altruistic concerns and no necessity existed of the kind described in the authorities referred to above. Rather, their conduct was a pretext adopted by them to gain additional media coverage and greater public attention to their concerns. In all the circumstances, it was therefore not a response to the extraordinary emergency or, if it was, it was not a reasonable response to it.
Conclusion
225․I am not satisfied that the evidence relied on by the Defendants suggests, as a reasonable possibility, that:
(a)the Defendants subjectively believed that obstructing the Premises was the only reasonable way of dealing with the climate change emergency; nor
(b)any such belief, if held, was reasonably held.
226․Further, even if the Defendants subjectively believed that obstructing the Premises was a reasonable response to the emergency, I am not satisfied that the evidence relied on by the Defendants suggests, as a reasonable possibility, that any such belief was reasonably held.
227․Accordingly, I am not satisfied that the Defendants have discharged their evidential burden under section 13.3 of the Criminal Code.
Verdict
228․For the foregoing reasons, I find each of the Defendants guilty of the offence charged.
| I certify that the preceding two-hundred and twenty-eight [228] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby. Associate: Mason Britton Date: 6 February 2024 |
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