THREE people charged after a protest outside Wilpinjong coal mine in April, 2017 have told a Mudgee magistrate the untested NSW Government laws they faced were unconstitutional.
Barrister Philip Bolton for Wollar residents Bev Smiles and Bruce Hughes and Bathurst woman Stephanie Luce told Mudgee Local Court on Friday that the offences they were charged with conflicted with the implied freedom of political communication under Australia’s constitution.
“There is such an implied freedom,” Mr Bolton told magistrate David Day.
The Wilpinjong Three were charged with rendering useless a road belonging to a mine and hindering the working of equipment belonging to a mine after they were arrested during a protest outside Wilpinjong coal mine between Denman and Mudgee.
The protest occurred shortly after the NSW Planning Assessment Commission in April, 2017 approved the seventh expansion of the mine since it was first approved in 2006.
The giant mine, which is approved to produce up to 16 million tonnes of coal per year, supplies coal to Bayswater and Liddell power stations under a contract first signed with the NSW Government.
Wollar Progress Association is appealing against the approval in a separate hearing that started in the NSW Land and Environment Court on Thursday.
Ms Smiles, Mr Hughes and Mr Luce face up to seven years’ jail under the offences which were controversially passed by the NSW Government despite heavy criticism from the NSW Law Society, Bar Association and Council for Civil Liberties.
The three were the first to be charged under the new offences which followed a promise made by Mike Baird to a NSW Minerals Council event to “throw the book at” mine protesters who “chose to break the law”.
The court was shown film taken at the Wilpinjong protest where a large banner saying “Enough is Enough” was displayed at the front gate of the mine and protesters stood at the mine entry.
The film showed police arriving and warning people they risked being arrested if they continued to block the mine entry. The film showed some protesters moving and police pulling down the banner. The film then showed Mr Hughes, Ms Smiles and Ms Luce remaining on the road before police arrested them.
Environmental Defenders Office solicitor Sue Higginson said the Wilpinjong Three case was a very important test case of the new laws, particularly after veteran Tasmanian Greens former leader Bob Brown won a High Court challenge in October after he was charged with similar offences in Tasmania.
“Three members of the community very peacefully stood on the road in front of the entrance to the mine with other members of the community to voice their strong and conscientious objection to the expansion of the mine that will do significant damage to the environment and virtually wipe the village of Wollar off the map,” Ms Higginson said.
“They were arrested and then they very peacefully removed themselves from the mine entrance.They are now faced with two charges under the Crimes Act that both carry a maximum penalty of seven years imprisonment.”
Ms Higginson said the High Court had repeatedly upheld appeals on the basis of the implied freedom of political communication in the Australian Constitution.
“We have had to put all Attorneys General in the country on notice about the case and the NSW Attorney General has determined to intervene in the case,” Ms Higginson said.
A barrister for NSW Attorney General Mark Speakman sought leave to appear at the hearing and tendered a written submission to magistrate Day.
The hearing continues.