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

Mrs Armitage (Launceston) - Mr President, I also acknowledge the briefings we had earlier. They have been excellent and cleared my mind on a few issues.

I support the principle of the bill. It is the right of a business to continue their business activity without interference from protesters which inhibits access, or their ability to work, or results in damage to machinery. I believe it should be a fundamental right.

Protests of this type can make this state seem undesirable for business to locate to and make it appear on the world stage as unstable, and it is unfortunate that the powers do not extend to those travelling other countries and undermining our state.

I thank the Government for listening to this Chamber and making some amendments which have gone some way to addressing concerns expressed previously, but there are many areas which are still causing concern amongst stakeholders and some areas which are poorly defined.

I note the previous concerns of the TFGA for the rights of farmers to protest against any action that occurred on their own land, which also contains their home. For example, if a farm is compulsorily acquired for mining rights a farmer may choose to protest, but if they return to their family home they may have been in breach of these laws and may potentially be arrested. It would appear that these factors have been taken into consideration and amended accordingly.

While industries to which this bill applies have now been defined as primary industry, construction, manufacturing and mining, with other business types excluded, there are still concerns regarding Government Business Enterprises being caught up in this legislation. I assume that it covers all GBEs, including MAIB, Metro, Port Arthur Historic Site, Forestry Tasmania, Hydro, the Public Trustee and the Tasmanian Public Finance Corporation to name a few. This begs the question whether there should be a limit to the application of the law as it currently applies to GBEs, such as TT-Line or Metro, because benign protest activity is still captured within this legislation and there is the possibility of unintended consequences that could occur.

Further, it is my understanding that schools under construction are also included, as would be the Royal Hobart Hospital. While officially exempt under this legislation it would not be exempt because of its construction status. As most hospitals have ongoing construction work, for example, the Launceston General Hospital, this could make demonstration by nurses on site illegal. I ask the honourable Leader if she could address her mind to those questions in her response.

Workers in the private sector are able to take protected industrial action under the Fair Work Act, but this does not apply to Tasmanian public servants who are subject to the Tasmanian Industrial Relations Act 1984. Therefore they are not exempt from prosecution under this law if protesting is part of industrial action. Similarly, protected industrial action does not cover employees' families, friends or union representatives in the case of protests on a construction site such as the Royal Hobart Hospital.

There have been concerns expressed about the right to protest, but people are still permitted to march and demonstrate on public roads, footpaths and paths. It is important that this bill, from my understanding, is not against the right to protest and that is still allowed. A warning system has been introduced for a period of three months so people are given an opportunity to disperse without penalty. Safeguards have been built into these offences whereby a lawful excuse to commit the offence may be argued.

People are permitted to protest near business premises, as long as the protest action does not inhibit business activity. It is an offence to damage, intimidate or use scare tactics. Farmers and business owners have the right to protest on their own land. Penalties have been reduced but are still significant and the mandatory imprisonment terms have also been removed for all summary offences.

It has been suggested that the scope of this bill should be restricted to forestry, which was its original intent and for which the Government could argue a mandate. And that rather than passing these many amendments the bill should be rewritten and reintroduced when fixed up as new legislation to be passed through and properly debated in the House of Assembly, rather than rushing these laws through. This certainly is deserving of consideration, but I understand as well that mining and some of the other industries may already come into play.

There is also the issue of the DPP gaining additional decision-making powers, whereby they have the power to decide whether the offence will be heard by a magistrate or in the Supreme Court with significantly different penalties applicable. The Supreme Court has a mandatory jail term attached. I asked the question whether it is appropriate for the DPP to make these decisions and does it leave the process open to influence with regard to penalties? While there is some merit in the summary offences in which magistrates have some discretion, there will, however, be no discretionary powers within the Supreme Court.

Mandatory sentencing for second offences remains a contentious issue within the legal profession with the Law Society expressing extreme concern about the harshness of the laws and the potential for unintended consequences. The aim of mandatory sentencing is to deter offenders from committing offences in the first place by pre-knowledge of what penalties may be in store. At the same time, mandatory sentencing removes the ability of the judiciary to make an informed decision about what is an appropriate sentence based upon the charge, the individual, and any mitigating or individual circumstances. Only the judge at that time knows.

The Law Council of Australia states there is a lack of persuasive evidence to suggest that the justifications often given for mandatory sentences - retribution, effective deterrents, incapacitation, denunciation and consistency - achieve their intended aim. Rather they can produce unjust results with significant economic and social costs without a clear and directly attributable corresponding benefit in crime reduction.

Mandatory sentencing schemes undermine community confidence in judges to administer justice and deliver appropriate sentences after consideration of all the facts and circumstances. I do not feel that I, as a legislator, should be telling a judge how to do his work. It is up to the judiciary to determine the sentence with all the information they have in front of them.

I further note that the legality of this legislation has been questioned by Professor Adrienne Stone, a constitutional law expert from the University of Melbourne, who feels that the legislation may not stand up in court as it could well be unconstitutional. She believes the law is convoluted and confusing and could risk the potential of individuals ending up in prison or with significant fines through its ambiguity; or, alternatively, court proceedings that fail for the same reason.

In summing up, mandatory penalties - do they work and act as a deterrent or do they often deliver unjust outcomes? Does one size fit all? The punishment needs to fit the crime, and I am sure we all agree with that, but only the court can exercise that level of discretion and I am told that in 90 per cent of cases judges get it right.

I have been advised by some members that breathalyser convictions have mandatory penalties and while I accept that this is the case I do not believe it is comparable. Breathalyser mandatory penalties are about taking away something that is not a right. As we have been told, a licence is a privilege and not a right, so it is not the same. I am considering amendments to the mandatory penalties provisions if we get into the Committee stage, as I am not overly comfortable with them.

We are told by some that, even with the amendments, it is still a flawed bill and that with the best intent in the world it cannot be saved. However, I agree that everyone should have the right to work, to earn a living without disruption or risk of danger. These are not victimless crimes. If you blockade a worksite, there is a lot of collateral damage affecting many innocent people. Apart from the monetary issue, there is often considerable stress to owners and workers and real psychological damage.

The bill is drafted for those acting with intent and I appreciate that. I appreciate the intent of the Government as well and while I accept there are flaws in the bill, as we have been told, it probably is an unrealistic expectation for any parliament to be able to enact watertight legislation. However, it does need to be as good as we can make it and to this end I know there are many amendments planned. I will therefore support the bill into Committee.