Police Offences Amendment (Workplace Protection) Bill 2022 (No 15)
Wednesday 22 June 2022, Second reading speech
Ms ARMITAGE (Launceston) - Mr President, first I thank the Leader for arranging the briefings this morning, as well as others such as the Australian Democracy group that has chosen to meet with us and emailed us, and I met with them separately. I appreciate the briefings from the unions, the TFGA, employers, and employer organisations, as well as Greg Barns, and the Bob Brown Foundation. I found the briefings interesting and I appreciate the information provided by all the presenters.
A freedom to protest does not confer an unqualified right to do it at any place, any time or in any manner that the person chooses. It must be balanced with the rights that others have, including freedom from interference with another's body or property, or freedom from being obstructed, to do one's work or to move freely. A freedom to protest does not confer a right to break the law, but must be balanced with the rights of others and the inherent obligations that we have to one another in a civilised society.
I believe we need to amend the Police Offences Act to specifically address the significant risks that some protest activity has had particularly on our forestry and mining operations, but also the heightened risk involved with some of the practices which have been adopted by some of the protesters. As the Leader mentioned in the second reading speech, the Criminal Code Amendment (Agricultural Protection) Act 2019, passed by the Commonwealth parliament, specifically addresses trespass and property offences on agricultural land. Such interference or trespass could have significantly wider implications on food contamination, production and security.
I believe that a similar principle applies here. Some protest methods, especially when they are in remote and regional Tasmanian wilderness locations, have the potential to cause significant damage to property, the environment and human life. The penalties and thus deterrents for commission of such acts, should therefore be commensurately more vigorous.
I do not believe we should unfairly or unduly target or capture regular protest activity including things like handing out flyers or assembling in public spaces. I am satisfied that by the wording and through the intent of the bill, non-aggravated protest activity will not be unduly caught up in these measures. I note also the comments by the member for Murchison in regard to mining and people going to work. I have a son and a daughter-in-law who work in mining. They both work underground and I would hate to think that they would get to work and be faced with people trying to stop them from getting to work, and the psychological impact that that would have on them. They are fortunate in some ways that they work in Western Australia. To the best of my knowledge they have never been impacted by anyone preventing them from getting to their work or to their business. I know that would definitely have an impact on them.
It has been a long road in reaching the point where we debate this bill and its principles again. In the case of Brown and Anor v the State of Tasmania, certain provisions of the 2014 iteration of the act were found to impermissibly burden the implied freedom of political communication found in our country's constitution. This is a serious and significant finding by the court, and rightly required that the bill be rethought, redrafted and debated in our parliament. I note that the High Court of Australia held that the act pursued the legitimate purpose of protecting businesses and their operations by ensuring that protesters do not prevent, hinder or obstruct the carrying out of business activities on business premises.
The court also held, however, that the burden imposed by the impugned provisions on the implied freedom of political communication was impermissible because those provisions were not reasonably appropriately adapted or proportionate to the pursuit of that purpose in a manner compatible with the maintenance of the system of representative and responsible government that the Constitution requires. In other words, the High Court of Australia held that the objective of the act was legitimate but went too far.
I believe that taken with the decision of the High Court in the Brown case, we must strike a more reasonable balance which it challenged is less likely to be held to be invalid.
Today in briefings we heard from union representatives who said they consistently had opposition to these types of laws as they have serious concerns about the ability for these laws to frequently capture the activity of members, both lawfully and peacefully. They believe members could potentially get captured by public annoyance features such as obstructing the streets as well as other action taken. We were advised that a lot of the action workers take is not about pay and conditions but there are a range of instances that were about the services their organisations provided and how to improve those for the community.
They mentioned when nurses blocked many streets complaining about closed wards and also about Launceston General Hospital nurses who protested every week for a year to get additional staff in the emergency department. Those briefings from the union mentioned these are not stop-work meetings but very frequent and regular actions nurses have taken and they were concerned they could be caught up in the legislation. Personally, I do not believe our police would arrest in these circumstances as I am sure they would use discretion, as they always do.
We also heard from employer groups and organisations that, while it is a fundamental right to protest, people also have a right to go about their legal work and there needs to be a balance so both of these things can coexist.
We cannot have protesters putting themselves, workers or emergency service personnel at risk by chaining themselves to heavy equipment, standing in front of heavy vehicles, sitting high in trees, and the list goes on.
We also heard that the cost, not only to industry, can be extremely high through either loss of work or access but also the cost of police personnel who I am sure could be engaged in other pursuits. We could certainly do with a more visible police presence on our roads. The question for me is whether increasing penalties deters activity in this space.
We were told in briefings today that attempts in other jurisdictions over many years to strengthen and increase penalties and the breadth of discretion of police over people exercising rights and occupying public areas has not necessarily deterred people from doing so.
Are we sending the message that there needs to be sterner action taken against those people who participate in this action on the assumption they will be deterred?
As we heard this morning, most of us are not covered by this law or are frontline activists, but if you are motivated and passionate about a particular cause it would not matter for some what the penalties were as they will not be deterred. Sometimes going to jail is a badge of honour.
We were also told in briefings that what will likely happen is that police resources will be diverted to this legislation and that people will plead not guilty because of the provision in the legislation. I have found in the past that this generally happens with mandatory legislation because to do otherwise guarantees a fine or jail.
It is only a minority who think it is appropriate to protest and intimidate. Some people overstep the mark and this is what this piece of legislation is all about. We already have the Police Offences Act with trespass, the Forest Management Act request to leave the area, the Criminal Code for disobedience but the key bit missing is about obstruction which is section 13 of the bill.
Protesters who do not support a development or business can still protest lawfully. You can still walk the streets and put your views publicly and it is important that you can still voice your opinion, and I do not believe this legislation will stop that.
I have a friend, Scott, who protests regularly and, on occasion, gets arrested - quite regularly. His passion is obvious and he leaves you in no doubt that he is deeply concerned about the climate and our world. I believe he has every right to protest, along with the other members of his group. I have seen them out in the pouring rain, in freezing cold, such is their dedication to their cause. They usually let people know when they will protest. I believe they get permits. They do not intimidate and they are peaceful.
It is important to me that people such as this will not be caught up in this legislation. I need to be clear: the right to free speech and protest is an important protected form of expression and communication. It should not be interfered with in a way that harms the ability for people to peacefully communicate their views or express dissent, even if it is unpopular. Protest, assembly and communication are all rights which should have as broad a definition as possible and permit as much lawful conduct as possible. These rights are not absolute; they must be weighed against the rights of others, including the right to go about one's business free of interference, intimidation or harm. This is what this question turns on - rights and responsibilities.
It is important we take a nuanced and balanced approach to permitted protest conduct in a business context and provide greater legal clarity and certainty. I will continue to listen to others. I certainly support the principle of the bill and I will vote it through the second reading and listen and allow discussion on proposed amendments.