Workplaces (Protection from Protesters) Amendment Bill 2019 (No 54)
Ms ARMITAGE (Launceston) - Mr President, the controversy around this bill seems to relate to people's ability to lawfully, peacefully and freely protest, and balancing that with the right of people to go about their work without unreasonable interference arising from protest activity or types of intrusion or trespass. It comes down to freedom to versus freedom from. It is important not to forget that certain provisions of the Workplaces (Protection From Protesters) Act 2014 were challenged in the High Court of Australia in the Brown & Anor v The State of Tasmania case. It was held by a majority of the Bench that certain provisions of the act were invalid because they impermissibly burdened the implied freedom of political communication governed by the Constitution. To quote the case note from Brown & Anor v The State of Tasmania -
However, by majority, the Court held that the burden imposed by the impugned provisions on the implied freedom of political communication was impermissible because those provisions were not reasonably appropriate and 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 protest act was too heavy-handed in regulating protest activity. The purpose of the bill before us then is to strike a more even balance. One of the issues I have seen repeatedly come up as a matter of concern is the addition of new offences to the act relating to trespassing on business premises and in or on business vehicles, obstructing public thoroughfares and threatening to commit an offence to impede the carrying out of business activities.
Many people are concerned that benign forms of protest, such as handing out pamphlets near a business or other similar activities will be caught by this act as an offence. While I do not see this being very likely on my reading of the bill, I am mindful that legal experts do see it as a possibility. I would therefore like the Government's assurance that this bill, should it pass into law, will be monitored very closely for any adverse effects as it is implemented and applied. It goes without saying that it would be an extraordinarily poor outcome for our state's democratic processes and systems of accountability, responsibility and transparency if lawful, peaceful and benign forms of protest end up being criminalised by this legislation.
We can also be sure of further High Court challenges should the act still be considered too forceful, wasting taxpayers' money and the valuable time of our High Court.
Further feedback I have received relates to a concern that the protest bill duplicates a number of offences which are already contained in other acts. I believe that it might help the Government to expand more on how the definition of trespass in this bill and trespass described by the Police Offences Act or the Criminal Code are different, and to put that on Hansard, even though we have had it in briefings. As I read it, offences in the Police Offences Act relating to trespass refer to a person not being able to enter land without lawful excuse. The clause in the bill we are considering, however, prohibits a person from trespassing on land if it impedes business activity. I wonder if the current Police Act could not be simply amended to incorporate this. I have had communication today with the police union, but I will leave it. I believe Mr Dean will read that in.
Mr Dean - No. You know the reading.
Ms ARMITAGE - I am happy for you to read it in. Just let me know if you are or not.
Mr Dean interjecting.
Ms ARMITAGE - That is all right. I will leave it till later.
According to the minister's second reading speech, the idea behind creating this additional process for civic trespass provision is that trespass, aggravated by the intentional impediment of business activity, has the potential to cause significant economic loss for workers and businesses, as opposed to the type of trespass contained in the Police Offences Act or the Criminal Code, for example. Again, I encourage the Government to make a commitment to ongoing monitoring of this legislation as it is implemented, should it pass, to ensure no adverse effects arise.
I am given a bit more confidence in this bill by the High Court's passing comments in the Brown v Tasmania case that the protesters act pursued the legitimate purpose of protecting businesses and their operations by ensuring the protesters do not prevent, hinder or obstruct the carrying out of business activities on business premises. Whilst I understand these comments do not bind the High Court in future decision-making, this bill expressly includes the words 'prevent, hinder or obstruct' to define impediment to a business activity, which means that judicial guidance has been considered as the bill has been drafted.
As such, I am pleased this has specifically been considered in drafting the bill. I am yet to be convinced, however, that there is sufficient certainty around the definition of 'prevent, hinder or obstruct.' The submission made by Dr Brendan Gogarty advises that clause 6 of the bill, which prescribes impeding business activities not further defined or circumscribed by the bill, leaves the definition to be gleaned from common law.
According to Dr Gogarty's submission, each term 'prevent', 'hinder' and 'obstruct' being defined by common law extends 'impeding' to include -
(1) any act which makes any aspect of a business more difficult to carry out;
(2) so long as the effect of the impeding is depreciable; and,
(3) regardless of whether the interference is complete, serious or even physical in character.
To my mind, this renders the definition of 'prevent, hinder or obstruct' to potentially be extraordinarily broad. I am unsure if the bill intends for this to be so broad and capture this much conduct. If so, clarification in the bill of these terms may be necessary to ensure its proper intended function.
I am sceptical of any laws that can potentially impede the fundamental implied right of political communication and protest and believe that any legislation which seeks to do this ought to have significantly important reasons to do so. I understand the context from which this bill has arisen is quite unique and it is likely with the Tasmanian forestry in mind. It is in the interest of every Tasmanian to have a sustainable and prosperous forestry industry. We must remember while it is also in their interests to have a robust system of civil liberties, that where work that is being undertaken is lawful, those workers have rights too.
Like all rights there must be a balance between freedoms - freedoms to and freedoms from. In this case, the right to protest must not unreasonably impinge on another's right to work without interference. Undue, unreasonable and dangerous interference with work that is being lawfully carried out is not in the interests of anyone. I appreciate this is a highly emotive topic which inspires passionate debate from all sides but we, as lawmakers, need to keep a cool head and ensure that legislation we consider is proportionate, necessary and clear.
I can understand that where loss to business and harm to workers are exacerbating factors, more specific provisions with greater penalties may be warranted. I know that as it has been drafted the bill has considered the High Court comments on the matter and I believe has tried to strike a fair balance but whether this will carry through to its practical functions if passed remains to be seen.
I want to be clear that in considering whether I support this bill, it is on the proviso that it is monitored carefully for adverse effects as it is implemented and does not unduly impinge on our civil liberties, nor leave our businesses vulnerable to undue, unreasonable or unsafe interference.
I look forward to hearing other members' contributions on that. As for some of the briefings we actually had - and some of it was read in by the member for Hobart and I appreciate the Leader organising the briefings from the Government and from both sides of the debate, but one of the questions we have is: how do we deter a protest that is unreasonable?
As we heard this morning, laws must be clear, predictable and accessible, readily known, available, certain and clear, and applied to all people equally and not discriminatory.
As we heard earlier from other members, Ray Mostogl mentioned the forgotten victims. He said that we need to be a voice for the people who respect the laws that are passed and make sure the silent majority are not taken for granted, that these workers are powerless. Tasmanian workers need security. They must be free from bullying and intimidation and they often work in remote places.
Something we heard as well is that so often by the time the police actually get there and remove workers, it is certainly a long time that they have actually been in the workplace - protesters I should say, have been there for some time.
We also heard this sits with people for a long time and the psychological problems they have do not just happen while the protesters are there, but can be ongoing for such a long time.
Nick Steel mentioned strong protection for workers. We need stronger laws passed, that we cannot put the rights of workers at risk. The TFGA said they clearly support the right of people to protest, engaged in protest for good sound reasons, but never to invade a workplace. Tasmanian workers, including farmers and farming families, have the right to have a safe working environment that is free of harassment, bullying and intimidation.
We must think about the impact on workers, both short and long term. As mentioned, I contacted Colin Riley of the Police Association, as I believe did the member for Windermere. He has asked that his whole response be read in:
The Police Association has not been engaged in detail by the Government with regards this bill so my comments here in this email are from reading the bill without an appreciation of the background purpose or understanding of why the sections have been constructed.
Our comments with regard to this bill are:
(1) Police officers are in the frontline position of policing unlawful actions at protests. It is noted that unlawful actions at protests can endanger the health and safety of members of the public and potentially our members.
(2) The original act was poorly constructed and overly complicated. The current bill is about fixing these issues with the associated amendments proposed.
(3) Police currently have powers to intervene for unlawful actions at protests.
(4) This act is an additional piece of legislation that police will need to understand, making policing more complicated. Individual police officers have original authority i.e. their own discretion at incidents. As there will be potentially options for trespass under different acts, this can create uncertainty as to which offence to select by police officers at that time.
(5) Creating an 'aggravated trespass' under the Police Offences Act is once again overcomplicating a piece of legislation that police have to operate under. The issue of any aggravation should be a consideration in penalty only and not in the offence. A court can now take into account any aggravating circumstances when it decides on a penalty.
(6) The act itself is about increasing penalties for offenders impeding business. As it relates to the imposition of sanctions we do not have a view on this bill.
As he mentions, he hopes this assists and he was happy to have this read into parliament provided the whole email was read in. That was Colin Riley, president of the Police Association of Tasmania.
I too have received many emails, many form emails - at my last count I had 1198 form emails and that included the email read out by the member for Hobart, but I divided them, and I had another 85 emails where people actually put their own comments. I have responded to the emails where people put in their own comments. I have not responded to the form email.
One of the issues I have with the form email - and this is where the Government or the Leader in summing up can make a comment - is my understanding is that peaceful protest really is not captured by this bill.
I have had people saying to me that the recent Women 4 Justice march would have been captured under this. My understanding is it certainly would not. The police will look at many of these issues and really will only be prosecuting when people are actually going onto worksites, going into businesses, and causing utter grief for those workers.
Mrs Hiscutt - I can confirm, now, that is the intent the way you described it.
Ms ARMITAGE - Yes.
I supported the bill in 2014. When I looked over my comments then, to me it comes down to the rights of workers - where they spend their money, look after their families - and they have a right to go to work. I would hate to think any of my family members who went to work were intimidated or harassed to stop working. I appreciate that they still get paid, but someone suffers. If their business suffers or the business they are working for suffers, ultimately they suffer. If people have to be put off and they lose their jobs and they suffer, their family suffers and ultimately the community suffers because they cannot afford to pay their bills, afford to shop and do other things.
The other part in the bill gives me some comfort - and I have spoken to a couple of the people who had written to me who gave me phone numbers - is the offences and the jail terms actually say 'up to' or 'not exceeding'. I would be very surprised if any magistrate or judge gave someone going on to a workplace, unless they caused serious injury or malicious intent - caused something terrible to happen at that business - any of these major penalties. It comes down to the discretion of the judiciary to actually make those decisions.
I understand the intent is to try to prevent this happening, but, as we heard in briefings today -
Ms Rattray - Deter.
Ms ARMITAGE - Deter, prevent. I hope it does not deter normal people from going out and being afraid to peacefully protest as people are able to do. I hope people do not think they are going to be caught up in this.
Mr Dean - When you refer to penalties, you probably should have mentioned 'unless they have 20 prior convictions as well for the same offence.'.
Ms ARMITAGE - Well, perhaps you can mention that when you stand up, member, because I am not sure I have seen that in there and I am not going to make a comment on something I am not certain about.
I certainly will support the bill into Committee. I believe it deserves to get into Committee to at least discuss the clauses as we go through. I would appreciate if the Leader could make some comment on some of the issues I raised. I thank her for the briefings, they were very informative and helpful.