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Workplaces (Protection from Protesters) Bill 2014 (No.15)

November 6, 2014

Mrs Armitage (Launceston) - Mr Chairman, I want to put on the record that I support industry and business, as we all do.  Because I do not support mandatory sentences does not mean I do not support businesses in this state.
 

We have, with the amendment in front of us, substantial fines for summary offences. Previously trespass attracted a $1 400 fine.  We now have summary offences with a fine not exceeding $25 000.  That to me sends a very clear message to the judiciary that we do take it very seriously.  I do support business and industry, but I also support the comments of the Law Society of Tasmania when they say that any provision for a mandatory minimum penalty is contrary to the public interest and contrary to the interest of justice.  It is likely to result in unjust outcomes with penalties that can be disproportionate to the nature of offending and should be opposed at every turn.  I thank the Government for listening to the people.  I thank the Government for taking out mandatory sentences and making this bill consistent and removing the minimal penalty.  We are sending a very clear message to the judiciary that we now have a fine up to $25 000 for these summary offences.  I support the amendment.
 

Dr Goodwin (Leader of Government) - Honourable members, I have some bad news.  Inadvertently, when this amendment was redrafted, we left out the subclause (2) that needs to go before.  Originally my third amendment had subclause (2) as well as this subclause (3), so we will have to get that tidied up and I will seek leave to withdraw the amendment.  I do not think we need to have the debate all over again because we will have it on the next clause.
 

Leave granted.
 

Amendment withdrawn.
 

Dr Goodwin - I have a new amendment; I am adding in a (2), if you go back to your original. 
 

I move -
 

That clause 17 be amended on page 38, at the end of the clause, by inserting the following subclauses:
 

(2)     Despite subsection (1), an offence against the provision of this Act may, with the consent of the prosecutor, be heard and determined by a court of summary jurisdiction. 
 

(3)     If an offence against a provision of this Act is dealt with by a court of summary jurisdiction under subsection (2), the court may impose -

          (a)    if the offence is an offence, committed by a body corporate, against -

                   (i)       section 6(6) - a fine not exceeding $25 000; or

                   (ii)     section 7(1) or (2) - a fine not exceeding $25 000; or

                   (iii)    section 7(3) - a fine not exceeding $25 000; or

                   (iv)     section 8 or 9 - a fine not exceeding $10 000; or

          (b)      if the offence is an offence committed by an individual against -

                   (i)       section 6(6) and section 19(2)(a) applies in relation to the individual - a fine not exceeding $5 000; or

                   (ii)     section 6(6) in section 19(2)(b) applies in relation to the individual - a fine not exceeding $5 000 or a term of imprisonment of not more than 12 months, or both; or

                   (iii)    section 7(1) or (2) - a fine not exceeding $5 000 or            imprisonment for a term not exceeding 12 months, or both; or

                   (iv)     section 7(3) - a fine not exceeding $5 000 or a term of       imprisonment not exceeding 12 months, or both; or

                   (v)      section 8 or 9 - a fine not exceeding $5 000; or

                   (vi)     section 12 - a fine not exceeding $5 000.
 

Mr Dean - When we look at the penalties and how it has now been amended to a fine up to a certain amount of money, we should not forget that there is also the option in certain circumstances for a court to require compensation to be paid by offenders.  There is that capacity here, over and above any fine that might be imposed.  That gets the message of the intention of this Parliament across extremely strongly if the bill is supported.
 

Amendment agreed to.
 

Clause 17 as amended agreed to.
 

Postponed clause 19 -

(Mandatory penalties for invading or hindering business)
 

Mrs Armitage (Launceston) - Mr Chairman, I move -
 

That clause 19, subclause (1) be amended by leaving out 'must impose in respect of the offence a penalty of not less than $50 000 and not more than $100 000' and by inserting instead 'may impose in respect of the offence a fine not exceeding $100 000'.
 

Amendment agreed to.
 

Mrs Armitage - Mr Chairman, I move -
 

That clause 19, subclause (2) be amended by leaving out 'must' and inserting instead 'may'.
 

Amendment agreed to.
 

Mrs Armitage - Mr Chairman, I move -
 

That clause 19, subclause (2), paragraph (a) be amended by leaving out 'a penalty of not less than $5 000 and not more than $10 000' and inserting instead 'a fine not exceeding $10 000'.
 

Amendment agreed to.
 

Mrs Armitage - Mr Chairman, I move -
 

That clause 19, subclause (2), paragraph (b) be amended by leaving out 'a term of imprisonment of not less than 3 months and not more than 2 years' and inserting instead ', a fine not exceeding $10 000 or imprisonment for a term not exceeding 4 years, or both'.
 

Mrs Armitage - In the fourth amendment, the reason that it is four years rather than two years was to send a strong message to the judiciary that we consider it could be a serious crime.  So we take out the term of imprisonment of three months but allow the judge or magistrate to realise that the Parliament sees it as fairly severe, in that we would allow a term of imprisonment of up to four years, and also add in a fine, when in the bill there was not a fine or imprisonment.
 

Bruce McTaggart, the president, and Chris Gunson, the vice-president, of the Tasmanian Bar were both vehemently opposed to a mandatory prison sentence and the Law Society of Tasmania and the Law Council of Australia have requested that we remove the mandatory prison sentences.  I note the member for Rumney has mentioned his exceptional circumstance clause that he was looking to add.  However, I reiterate, regarding exceptional circumstances, I do not believe that it could always fill the void.
 

Exceptional circumstances must be considered in accordance with precedent.  Exceptional circumstances can be described as circumstances which are unusual and/or atypical.  If they are not unusual or atypical - in other words, if people had acted in the same way on prior occasions and the circumstances seemed to be fairly run-of-the-mill, for which most courts would impose a lesser penalty and they do not amount to exceptional circumstances - then there is no out.  The interpretation does not take into account all the matters of sentencing, where fairness  would say this person should not go to prison, but the circumstances do not amount to exceptional.  If that is the case, even though imprisonment is seen as being unfair, the court's hands are tied and the individual must go to prison.
 

I have been told that on occasions the judge will say, 'I would like to give you a penalty less than I am required to do in accordance with the law because of the matters you have raised.  If I could use my discretion I would impose a lesser penalty, but unfortunately I cannot because of the legislation.'.  The courts often see the unfairness of a mandatory penalty when they are stating this.  They can see the facts do not amount to the sentence or fine, which the legislation says has to be imposed, but they cannot do anything about it.  Therefore, I ask members for consistency with the fine, and also for consistency with the bill, to remove the mandatory penalty of imprisonment.
 

Dr Goodwin - I just wanted to make some comments in response to this amendment.  The Government is aware of the will of the House in relation to minimum mandatory penalties.  This provision, as unamended, applies a minimum mandatory prison sentence of three months to a further offence.  If a person has already committed an offence of invading or hindering a business and they reoffend and commit another offence - for example, if they are asked by police to move on and they do not move on - they are convicted of that offence.  At the second offence, the court would be required to impose a minimum mandatory sentence  of three months imprisonment. 
 

In the policy it took to the election, the Government was clear about its rationale for this provision.  We wanted to send a clear message to protesters and would-be protesters, that if they committed a repeat offence they could look forward to receiving a penalty commensurate with the seriousness of reoffending.  We also wanted to provide very strong protections to workplaces.  As I said in relation to the previous clause, we will carefully monitor the implementation of these provisions, and the penalty provisions in particular.  We reserve the right to revisit them if they do not deliver the level of protection we hope they will for businesses that are subject to workplace invasions by protesters.
 

Mr Mulder (Rumney) - I oppose the amendment.  It is possible to consider exceptional circumstances - and I raise this because the mood of the motion has raised a criticism of my proposal.  Mandatory sentencing relies on precedent, but it relies on the circumstances of those precedents.  By and large the mandatory minimum penalties that have been applied to date have not been applied to this sort of behaviour.  Therefore we are in a position where judges will start to develop a whole new set of exceptional, atypical circumstances.  The case of a magistrate having no discretion but to levy a fine - levy a special penalty of $1 million dollars - on a fisherman who had a few undersized fish on board was mentioned. 
 

An exceptional circumstance would not be the fact that you had no money to feed your children, because it is not atypical or unusual.  Likewise a person seeking to avoid the loss of their licence because they have no other means of transport is not a special circumstance, if the offence was serious.  Mandatory penalties can occasionally cause injustice but it is the degree of injustice the magistrate will be looking at.  It is not like you need your car to stay alive.
 

The exceptional circumstances I imagine a court would take into account with this protester legislation would include the age of the offender.  You would not want to send a 90-year-old geriatric who needed regular medical attention to jail.  That person would be able to make a special case exemption.  For a start, 90-year-olds on barricades, especially 90-year-olds with medical conditions, are not typical - they are atypical.  To say that 'exceptional circumstances' would be difficult to establish is, in fact, attacking the very thing you are seeking to preserve, which is the common sense and judicial discretion that judges are able to apply.  The other thing I found is that the judges can chose to be novel in their interpretation and how they apply a precedent.  The way precedents are set is someone changes the way things are done.  That becomes a precedent only for so long until someone else decides we need to change things again. 
 

This bagging out of special circumstances is locked in history and there is more flexibility than people might think.  Especially when you are so concerned about judges being free to make decisions, you are suddenly doing an illogical flip if you decide they are perfectly free to make decisions.  We want them to make decisions but we do not trust them to make decisions about what special circumstances are appropriate to a particular case.
 

I understand the need for this amendment to pass for practical and policy reasons but I will indicate that I do not support it as a principle.
 

Ms Forrest (Murchison) - Mr Chairman, I am concerned about the impact on business and industry and that is why we are here.  I accept the Government's right to bring in legislation and deal with it, particularly clause (b) with the mandatory penalty for a second offence.  The big issue for me, if we do not support removing the mandatory sentence, is that a second offence can happen many years later.  It could be a young person has an offence when they are passionate, enthusiastic, 10 feet tall, and bulletproof and they can rule the world.  Then 20 years later, on an issue the whole community is concerned about, without removing this, they would receive a mandatory prison term.  They could have a valid reason for trying to protect something that could be damaged during construction.  I accept the Government's need to send a strong message.  I believe it still does.  Mandatory penalties have all sorts of unintended consequences, particularly on people who tend to be disadvantaged in our community.
 

We need to think carefully about that and I urge members to support this amendment.  It has long-lasting implications if the provision stayed in.  Associating mandatory penalties with driving offences is ridiculous because a driving licence is a privilege.  Many people forget that when they go to get their licence back after they have had it taken off them.  The registrar says no, it is not automatic.  They think, I have had it once, I should have it again.  No, it is a privilege. 
 

A key plank of democracy is the right to protest.  If it does step over the line, as we have identified in this bill where it hinders people going about their lawful work, we do need to deal with it and that is what this is intended to do.  Unfortunately, there could be people who find themselves - if mandatory sentencing remained - in prison because they felt so strongly about what they believed were two very serious matters, many years apart.
 

Would it flow through to a change to the title of this clause if the amendment is successful?  It says 'mandatory penalties'.  It may be a thing that happens automatically but I am not certain.  I encourage people to support this amendment because it is serious to have an automatic conviction after a second offence when the first or second offence may not have created a lot of damage or harm to any person or property but an offence is an offence.  The court has the jurisdiction and the capacity to make that decision to put someone in prison if they think that is the only way we are going to deal with them.  If it is a serious offence then that option remains.
 

Mr Valentine (Hobart) - Madam Deputy Chair, I rise to support the amendment in the sense that it is giving the jurisdiction back to the court to make the call on exactly what penalty should be applied here.  I will ask the question again; maybe I will ask the question of the Leader as to what the circumstance would be.  I talk about a log truck driver who is a contractor - he is not an employee - delivering logs to a woodchip facility.  They are really disenchanted with the amount they have been given for carting those logs.  Yes, they have a contract and they may well be in breach of their contract, but they want to make a statement.
 

Ms Forrest - And they have been required to drive unsafe hours.
 

Mr Valentine - Yes.  They park their log trucks across the entrance to stop other log trucks from getting in.  The police come along and say, please move on.  They fail to move on and maybe they do this one or two days in a row, who knows?  Where does that person stand under this in terms of the capacity for them to be charged?  One expects that they are no different to a protester; they are a protester.  They are illegal, so therefore they will be charged, won't they?  That is why it needs to be before the court.
 

Dr Goodwin - That is correct.  If someone commits a repeat offence, if the provision remains as it is, they will receive a minimum mandatory sentence.  That is the whole point of the provision - to capture those repeat offenders.  In the example the honourable member for Hobart just talked about, if the log truck driver complied with the direction of the police officer and moved his truck on, then of course there would not be an issue.  But if he stays there and commits the offence and he commits it two days in a row, yes, he has committed a repeat offence and he will be captured by this provision.
 

Mr Armstrong (Huon)- I will not be supporting the amendment.  People need to take responsibility for their actions.  What we are saying here with this is, a person could hold up a business for a week or whatever it may be, and they can walk away with a one-day jail sentence or nothing - one day for probably costing businesses thousands and thousands of dollars.  Whereas, if it was a mandatory sentence, they are going to start to think about their actions, aren't they?  It is the wrong message that we are sending to industry.  We have to support these industries, not let these people hold up their businesses for days or weeks or whatever it may be.  I will not be supporting the amendment.

 

Mrs Armitage - We are assuming from the comments by the member for Huon that people will not be jailed if they commit serious offences.  We cannot assume that.  We cannot assume that the judges, if they see that someone has committed a serious offence, will not -

 

Mr Armstrong - They possibly could.

 

Mrs Armitage - They possibly could, they possibly could not.  On that comment, I will read something from the Tasmanian Bar.  It says -

 

In the context of the Workplaces (Protection from Protesters) Bill, the Bar expresses its ongoing and fundamental opposition to the imposition of mandatory imprisonment.  Mandatory sentences of imprisonment have the potential to result in grossly disproportionate sentencing outcomes compared with the conduct engaged in, and can lead to fundamentally unjust sentences being imposed.  Mandatory sentences of imprisonment constitute an unacceptable form of arbitrary detention without regard for the individual circumstances of the offender.

 

That is what we need to look at - the circumstances of the offender.  I cannot make a decision here whether someone should be jailed.  A judge has all the facts in front of him when he makes his decision.  I rely on his discretion.

 

 

 

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