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Bolt, Steve --- "A right to protest?" [2001] AltLawJl 33; (2001) 26(2) Alternative Law Journal 95

Community Legal Centres: A right to protest?

STEVE BOLT[*] reports on the case of Atkins (unreported, District Court of New South Wales, Ducker J, Lismore, 27 November 2000).

The District Court at Lismore has upheld an appeal against conviction by an environmental activist, effectively acknowledging that an environmental protester has a legal right to protest by blocking access to a development site in some circumstances.

Albert Atkins was charged under s.6 of the Summary Offences Act 1988 (NSW) after he was arrested (with about 100 others) for blocking the road to a development site behind the Byron Bay lighthouse in October 1999. Section 6 reads:

Obstructing traffic
A person shall not, without reasonable excuse (proof of which lies on the person), wilfully prevent, in any manner, the free passage of a person, vehicle or vessel in a public place. Maximum penalty: 4 penalty units.

The site has been the subject of much interest and litigation over the years, and has undoubted conservation value. Among other things, the site contains a rare and endangered native orchid and is among the few coastal heathlands close to a major centre that is still largely undisturbed.

The Byron Shire Council has consistently opposed development of the site by the Detala Company, but in 1995 the Land and Environment Court approved the development, subject to certain conditions. One of those conditions was that Detala must submit to Council a detailed plan of any trees it planned to remove before commencing work, consistent with Council’s tree preservation order.

In October 1999, Detala attempted to put a bulldozer on the site to begin work. Mr Atkins and hundreds of other residents blocked the path of the lowloader carrying the bulldozer, preventing access to the site. Mr Atkins was arrested and then convicted in the Lismore Local Court of obstruction (under s.6 Summary Offences Act) and of resisting police. He was fined a total of $700.

On appeal to the District Court, Judge Tom Ducker accepted that Detala had no lawful right to begin work, accepting a Land and Environment Court decision (Byron Shire Council v Detala, unreported, Land and Environment Court, 14 March 2000) that the condition concerning compliance with the tree preservation order was a condition precedent to the development proceeding, and that any work without compliance with that condition would be a breach of s.123 of the Environmental Planning and Assessment Act 1979 (NSW).

Therefore Judge Ducker found that Mr Atkins was preventing an unlawful activity. Further, he found that, in the circumstances, it was reasonable for Mr Atkins to physically block the road to delay or prevent access as the bulldozer was about to cause apparently irreparable damage to the site. There was a genuine urgency to the situation, in that recourse to due process (such as seeking an injunction) was not a viable or practical option. Mr Atkins, therefore, had a reasonable excuse for the obstruction, as provided for in s.6 of the Summary Offences Act.

The District Court quashed the conviction for obstruction. The penalty for resisting police was set aside. In its place, the judge imposed no conviction under s.10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

[*] Steve Bolt works at Northern Rivers Community Legal Centre.

© 2001 Steve Bolt

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