Workplace (Protection from Protestors) Amendment Bill 2019
Ms WEBB (Nelson) – Mr President, I am quite thankful to other members who have spoken. It has been really interesting to listen to contributions; I have noted that so far, no non-Government members of any stripe have been able to stand up and give unqualified support to this bill.
I thank members for the points they have already raised. I will try not to go over those things too repetitively, but pick out matters I felt were important to reiterate and add to the total of the debate.
Quite frankly, I am disgusted to have to participate in this rank exercise of cynical self‑serving political theatre from the Government. I am appalled the Government has chosen to play-act at policy-making and legislation on a topic that has such serious consequences for the safety and wellbeing of Tasmanian workers and the success of Tasmanian businesses. In reality, the Government is clearly indulging in an exercise in petty political pointscoring for electoral advantage at the blatant expense of hardworking, vulnerable Tasmanian workers whose interests they falsely claim to be serving.
This matter could have been advanced and settled had the Government chosen to put well-conceived, well-drafted, fit-for-purpose and constitutionally sound legislation in place seven years ago.
The Government clearly put ideological virtue signalling and cheap political pointscoring ahead of the safety and wellbeing of Tasmanians. Instead, we have seen seven years of uncertainty, of Tasmanian workers and businesses left in the lurch with no additional protections or legal support for their safety or wellbeing – seven years in which the Tasmanian Government has wasted the time and good work of public servants, and wasted considerable public money defending a law in the High Court of Australia that was so bad it was described by one of the Justices as pythonesque.
We have heard from industry bodies and representatives who spoke passionately about the devastating impact that some types of protest action have had on Tasmanian workers and businesses, and I feel for those Tasmanians.
Hearing emotional stories from people personally impacted by threatening and violent protest actions is heartbreaking. These people have clearly been traumatised by their experiences, and they just want those kinds of protests to stop. They are not necessarily looking for more effective responses as they say it is often too late – by the time the police arrive, the damage has already been done and the trauma has been caused. They want a greater deterrent effect for it not to happen in the first place.
I particularly feel for them because this Government has not in good faith put their interests ahead of its own political ends. There are industry bodies that genuinely want the best for their members and workers. They have been rolled out as cheerleaders by the Government for this piece of legislation, that on all indications will not achieve the specific outcomes those core Tasmanian people wish to see. They want to see an end to extreme protest actions, but this legislation remains so questionable it may well face the same fate as its predecessor and be struck down – leaving them in the lurch once again.
Most of us will sympathise with people and businesses experiencing trauma from protest action in their workplaces, and businesses whose lawful business activities are being disrupted. We recognise our laws should protect the rights of people undertaking lawful business activities. At the same time, most of us will also express support for the important principle of the right, in a healthy democracy, for people to engage in protest activity.
We also recognise the need to protect and ensure this right in our laws. We recognise that our complex task is to balance a suite of rights in an appropriate manner. This bill does not do that. It is broad; it lacks clarity and sufficient balancing provisions. We have to remember this bill is not simply about one form of protest or one protest organisation – as much as the Government might like to highlight one kind for its own political purposes. Extreme protests involving violence and threats are causing harm that needs to be addressed.
That does not excuse the Government for putting forward a bill that goes much further than that particular form of protest action, and has much broader implications for other nonviolent protest actions – which are the vast majority of protest actions. This bill has implications for all of us here – our families, our workmates, our community members. It is important to remember that we cannot conveniently divide people into two camps: workers on the one side and protesters on the other. It is politically convenient to divide people into us and them, to pitch people against each other, but I suggest many of us here have engaged in various forms of protest, and may well engage in such activities in the future.
Protest is a normal and healthy part of a liberal democracy. It is essential. It is the only way we have seen progress in a range of important issues that affect our lives. Without protest action occurring in the past, I literally would not be standing in this place today. Protest is a valid mechanism by which people who do not hold power or do not have ready access to participation in decision-making can make their voice heard.
Protesters are people – citizens – who care passionately about an issue on which they want to see positive change. They are unable to access or influence the decision-making on that issue through formal structures so they engage in action to be seen and heard and to express their view on what needs to change.
In many cases protest is a last resort for citizens who care passionately about an issue and have not successfully been able to access, participate and be heard through the formal decision‑making processes such as parliament or the political system.
The vast majority of people who engage in protest action are regular citizens who care passionately about a better outcome for their community. They protest because they feel an urgent sense of civic duty to take action to see that better outcome realised. Even the tiny cohort of protesters who engage in extreme protest activity, and who may be characterised by some as ‘ratbags’ who are just trying to be disruptive – even those protesters are motivated by an urgent sense that the wellbeing of our community, our state, our planet requires change to be made. When citizens feel the need to protest, it points to other avenues for civil discourse being broken or too limited. An escalation of an extreme form of protest points to a serious break in other avenues for civil discourse and influence.
Mr President, some have noted an increase in extreme protest action here in recent years. I put it to you that protest does not happen in a vacuum. It occurs within and is a product of the social and political environment. Any escalation in protest action can be linked to what is occurring in the social and political environment around it.
Some members have spoken about the previous efforts of discussion and negotiation that went into the Tasmanian Forest Agreement. That process and that agreement made a change to the social and political environment that resulted, at the time, in a de-escalation of protest action. Members have talked about their disappointment and frustration that efforts around the TFA are being lost, and about the resultant escalation of protest action and the very real and negative impact some of the extreme forms of that protest action are having on our state.
I remind members that this Liberal Government took the disruptive and damaging action of ripping up the TFA. This parliament as a whole supported that action and passed legislation to facilitate the end of the TFA. Members in this Chamber voted to support the legislation that brought about its end –
Mr Valentine – Some did.
Ms WEBB – Indeed. Actions and decisions have consequences. Votes in this place have consequences. Discarding the efforts on all sides that went into the TFA overtly changed the social and political environment on issues related to forestry in this state and provoked an escalation of protest activity.
Let me be very clear: in saying this I am not endorsing any particular instance of protest action, especially violent or threatening protest action. I am merely highlighting that protest does not happen in a vacuum, therefore if you want to look at effective ways to address extreme protest action, we have seen clear evidence in this state that bringing people together to discuss and negotiate, bringing all voices into the decision-making process, is effective. We are also seeing evidence in this state that threatening a crackdown on extreme protests by discarding discussion and negotiation efforts and empowering our legal system to broadly squash protest action is not effective. It creates an escalation, not a de-escalation.
This parliament has the power to affect the social and political environment. It has done so in recent years to both positive and negative effect through its legislative function. We are faced with that opportunity again here today. Evidence tells us that passing this bill will have an ultimately negative effect in exacerbating extreme protest action – the exact opposite outcome that we have been pled to deliver by the stakeholders in our community who need us to act.
It brings us back to the issue of balance. The balance that must be found between the value of dissent and protest, against the value of public order and safety and undertaking lawful business.
Our job is to ensure the Government is doing its job to balance these two roles – protecting business and protecting civil rights. There are legitimate concerns that this bill does not achieve this aim. The Government has made election commitments and says this bill is to deal with workplace invasion-style protests. That was the election commitment, but the bill goes far beyond that scope.
The Government has not simply toughened fines and jail terms for current trespass and property crimes; it has created new offences. The Government says this law should protect people undertaking lawful activity; but it has elevated this above the even more fundamental principles of civil liberties and a healthy liberal democracy. It has the balance wrong. This bill ignores laws already in place that provide such protections, which may have been strengthened and extended to serve the intention here.
We have had sufficient concerns raised. All members have spoken of those, which gives us pause on the lack of balance in this bill.
We have heard legal experts, including the Law Society of Tasmania, express significant reservations about the broad nature of this bill and the likelihood of it capturing benign protesting behaviour. We have heard from many expert stakeholders that the laws we currently have are adequate to respond and could possibly be strengthened in their current form to give effect to the purported intent of this bill.
We have heard about the potential impact on the police force, due to the lack of clarity in the bill, and the weight of discretion that puts on them. It has been put to us that the amendments in this bill only compound the confused nature of the original act.
We heard that workers and businesses affected by more extreme protest actions – sometimes involving threats and violence – want those protests to stop. They recognise that by the time there is a response from the police under current laws or indeed, under this proposed law, the damage is already done. They are looking for a deterrent effect. That is the impact they are looking for from legislative efforts here.
Will this bill stop extreme protest action from occurring? Will it provide that deterrent effect? Will the new offences created here substantially deter people who undertake those kinds of protest actions beyond the deterrent that is already there in existing laws.
Evidence tells us, Mr President, that they will not; it tells us that this bill will not deliver the outcome sought by those Tasmanians who have made entreaties to us for the protests to be prevented.
Evidence suggests this kind of bill in particular will have the opposite effect – of exacerbating extreme protest activity. It will throw fuel on the fire, although it may have an impact on other non-extreme forms of protest or have a deterrent impact in those places.
While it is unlikely to deter or prevent extreme protest activity, there is every indication this bill will have a chilling effect on more benign, non-violent protest action and all political expressions due to the fear and uncertainty in which it leaves us and our community.
This likely impact is not the outcome sought. This likely impact was not in a commitment taken to an election by the Government. This is a fundamentally anti-democratic impact that erodes the civil rights of our community.
In the absence of guaranteeing the agreed outcomes that were sought, this erosion of civil rights and the strength of our democracy is an unacceptable outcome. It is not an appropriate balancing of these rights.
A question has to be asked: why has the Government not brought a fresh bill with considered provisions addressing these fundamental issues? In response to the High Court decision, this Government introduced an amending bill – amendments to an act that was deemed invalid by the High Court. Despite these proposed substantial amendments, the breadth of the operation of the amended provisions continues neither to be appropriate nor adapted to the legitimate objective. ‘Compatible’ is not compatible also with our constitutionally prescribed system of representative responsible government.
Given that the bill imposes criminal sanctions and modifies a range of common law freedoms, including freedom of speech and association of movement, clarity and accessibility should have been central to its drafting. Yet the bill remains unbalanced and unclear, and continues to focus on the rights of business without any commensurate concern for civil and political rights. The bill should clarify that citizens have the right to associate, criticise government and business, and express their political views. It does not do that. It is a fundamental rule of law principle that the public should be able to understand what rights and duties they have and which of those rights and duties are to be altered or to be taken away by any given law.
The lack of clarity in this bill goes against this principle. A number of issues with the proposed amendments in this bill have been discussed by this parliament and legal experts who have spoken to us many times already. I do not want to go over too much ground that has been covered by other members; I am just going to mention a couple of particular issues about details in the bill.
The first one is the amendments we are discussing in this bill were made in response to a High Court finding that the previous law was invalid. What is happening in these amendments is a move away from reference to protesters, a key issue in the finding of the High Court that it could not be targeted at protesters as an explicate way as the previous bill was.
These amendments then are removing the word ‘protesters’ and removing specific reference to protest from the bill. This is an overly simplistic drafting decision because it does not actually remedy the issues of discrimination identified in the High Court decision as it does little to remedy the practical operation of this bill, which will still be focused at protesters and protesting activity.
The purpose of the bill remains on a prohibition protest activity that affects business operations. Removal of the explicate reference of protesters has not remedied the operational discrimination there. I believe there are still problematic aspects in regard to that.
Second, I would like to talk about the choice not taken with this opportunity to amend the provisions to provide more defined and clarified definitions and a scope of this bill that balanced rights appropriately. The lack of clarity on when an individual might be in breach of the provisions of this bill is likely to serve only as a deterrent and a chilling effect on potential future communication on government and political issues and protest activities of a benign nature.
We look at some of the elements of the bill that do that – the lack of clarity, the defining of impeding a business activity, broadly defined in clause 3, to prevent, hinder or obstruct. The definition does not offer clarity of the necessary materiality or physicality of the threshold of that. You need to intend to threaten or intend to impede, both of which are difficult to prove. No time or place is attached to the threat or its effect on the business activities. It is not clear that actual damage needs to occur to the business activities or what the level of damage should be. We have to infer that the lack of clarity will have an impact on people’s choices and activities and an impact on the discretion needed to be bought by police.
Not having a clear threshold on what damage or disruption needs to occur to activate this scares people from exercising their political voice. That is the chilling effect I mentioned. It puts police in a difficult position to know what the threshold is to apply the law. We also see provisions extending to public spaces and thoroughfares. The inclusion of the new provision in this way means that in effect anywhere in the public domain and some private spaces, like easements, are thoroughfares for the purposes of the amendments.
Rather than determining a clear definition around particular forestry or business sites, the Government has instead decided to cover all its bases by including all public spaces. Beyond this it has removed any time or location linkage between the offending activity and the business activity in question. This lowers the necessary obstruction away from business to public spaces and is problematic. There is a new offence, a new provision of threatening in this bill that proscribes threatening to commit an offence against clause 6 in relation to business premises and business vehicles if the person intends by so doing, by threatening, to impede the carrying out of that business activity on the business premises or in the vehicle.
The threatening offence is an overly broad offence. It is speculative and entirely uncertain in scope. We have heard this from numerous experts. Confusingly, the offence apparently requires two separate intents in relation to the same crime: the intent to impede by threatening; and the threat to do the act itself, which must also possess an intent to impede the business, or at least if that is to be clarified. Clearly, enough experts are finding the lack of clarity in that part of the bill confusing.
This provision around threatening is not appropriate and adapted to a purpose in this bill. It is overbearing and it is beyond the purposes of the bill. It seeks to charge people with offences without any damage needing to have occurred. Rather the offence requires merely an intention to impede by threatening to commit an offence under the section 6 of the original act.
As with other provisions, the offence lacks temporal or geographic elements. It may be committed at any place, apparently including online and at any time. Furthermore, the provision around threatening has not been included under the bill’s given exemptions in clause 6. Unlike clause 6, it would appear to be possible for a person to be charged with a clause 7 threatening offence where the conduct – which they are threatening to undertake – forms part of a lawful activity that has been exempted in clause 6, but is not exempted here.
Given the clear potential to impact on the freedom of political expression, the level of ambiguity within the provision, particularly in relation to its scope and application, raises problems that could well lead to difficulties with the bill down the track were we to pass it. Clause 7 is a problematic provision and I think it needs to be rethought entirely.
That is just a brief mention of some particularities in the bill that I think are problematic. Other members have covered some of the other areas in more detail and I do not want to be too repetitious with those. Basically, the concerns I have raised – and the ones we have heard from others in this place – relate to the form, breadth and clarity of this bill. They have not been adequately answered and addressed by the government in what has been presented to us.
I mention also that the second reading speech referenced – as did a lot of material the Government put out publicly on this matter – that the Government wants us to understand this legislation is simply aligning us with other states and the Commonwealth in some manner. It is doing nothing of the sort.
The three pieces of legislation from other jurisdictions cited in the second reading speech are all much more discrete and/or balanced than what we see in this bill.
The Commonwealth act that is talked about is about incitement to commit a crime. It is not about expanding the scope of crime or making it more severe. It explicitly includes a balancing provision for freedom of political communication, unlike this bill.
The Queensland law mentioned is very specific. It relates to dangerous devices used in protest and it is about police powers to remove them. That is a very targeted and specific response to particular kinds of dangerous activities. Very appropriate. The reason that is targeted and specific – and unlike the bill we are presented with, it does not capture and bleed into other legitimate benign process spaces – is that Queensland has a charter of rights. Queensland has to balance and measure its proposed legislation against its charter of rights. They are guided by that charter in getting the balance right. That is why we see appropriate targeting, effective lawmaking there and why we do not see it here. It is a great tragedy that Tasmania does not yet have a human rights act in this state that would provide us with similar guidance in our legislative efforts.
A human rights act in this state would be a very positive contribution where we would have an agreed and respected set of rights that would assist any government of the day in developing policy and legislation that would appropriately balance and protect rights for Tasmanians.
The New South Wales bill, the third bill mentioned in the second reading speech, is quite specifically about interference with agricultural land. Again, it is targeted to a particular problem. I believe it relates to leaving the gate open in some respect, and it explicitly did not try to replicate the trespass offence found elsewhere in the New South Wales laws.
Overall, to try to paint this bill as being a straightforward way of bringing us into alignment with some national approach on this issue is simply misleading. No other jurisdiction has taken this road and risked this breadth and lack of clarity that we see in this bill. No other jurisdiction has done that. I encourage the Government to take a much closer look at other jurisdictions and see how they have gone about solving particular problems with targeted and balanced legislation. Let us go down that path.
In conclusion, for seven years the Government has acted in bad faith in the development and progress of this bill – the first bill, and now this bill. Twice in the past seven years we have seen it ignoring expert advice, neglecting to engage meaningfully with all affected stakeholders, curtailing appropriate parliamentary debate, wasting time and public money, and entirely failing to achieve the outcomes the bill purports to seek.
The Government has used this bill as a political tool, part of its ideological weaponry to be deployed to wedge opponents and score cheap electoral points. Through all that, the Government has let Tasmanians down – it has let Tasmanian workers down, and it has let Tasmanian businesses down. It has left Tasmanian workers and businesses less protected and less safe.
On on top of that it has actively fostered a political environment that increases tensions on contested issues. It has discarded and destroyed past efforts at negotiated peaceful resolutions on those issues. There are more targeted means of achieving the desired end of protecting workers, but rather the choice made has been to pursue this piece of legislation which is broad, and lacks clarity and risks our civil rights. Further, with the absence of human rights protections in this state, and with no explicit balancing provisions in the bill, it carries a high risk of chilling benign political protest by creating confusion and uncertainty among the Tasmanian public.
The amendments in this bill should not be passed. The invalid act which they seek to amend should be abandoned and a fresh approach taken that is targeted, clear and more effectively balances all our rights.
This Government loves to crow about the many things it will not apologise for. Let me put on the record some of my own when it comes to this bill. I will not apologise for wanting strong democracy that balances fundamental rights. I will not apologise for listening to expert advice. I will not apologise for expecting sound and proportionate legislation to be presented for consideration in this place. I will not apologise for expecting a government to legislate to genuinely deliver safer outcomes for Tasmanian workers rather than play-act for political advantage.
Finally, I certainly will not apologise for being disgusted by the Government’s self‑serving political theatre at the expense of vulnerable Tasmanians. I cannot support this bill.
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