Workplaces Protection From Protesters Bill: Tasmania Goes Mandatory

Monday 18 August 2014 @ 9.44 a.m. | Crime | Industrial Law | Legal Research

The Tasmanian Workplaces (Protection From Protesters) Bill 2014 has gained wider attention in the news recently because under its provisions protesters will face mandatory jail time and members of the public could be fined for inciting protests.

The Bill was introduced into the Tasmanian Assembly mid June 2014, passing through the lower house of the Tasmanian Parliament on 26 June 2014 and is expected to be debated in the Legislative Council when it next sits on 19 August 2014.

Background

The Bill was introduced by the Government through the Resources Minister Mr Paul Harriss, who is reported as saying that the Bill was a centrepiece of the governments attempts to deal with forest protests and that the legislation could even apply to other production sites.

The key measures taken by the Bill are the creation of new indictable offences under Tasmanian law, which the Minister said in his speech to the Parliament,

". . . do not seek to prohibit the right to peaceful protest . .[but] does seek to regulate inappropriate protest activity that impedes the ability of businesses to lawfully generate wealth and create jobs."

This Bill introduces measures the Minister says will operates in such a way that it prohibits persons engaged in protest activity from hindering, obstructing or preventing business activity on the business premises.

For the purposes of the Bill, the term "business activity" is said to cover those businesses that operate on a commercial basis with the intent to generate wealth and employment opportunities in Tasmania. The term includes government owned businesses, as well as private for profit businesses.

The Bill also provides a definition of what businesses premises are considered to be, and that covers a range of industry sectors within the economy, including forestry, mining, agriculture and manufacturing, as well as vehicles, vessels and aircraft. However, the Bill does not cover certain premises, such as, schools, hospitals and government offices.

Under the proposed legislation, penalties for breaches include fines of $2000 for what is termed as "invading or hindering a business"; penalties that can rise up to $5000 if the person has the charge heard in court and is found guilty. where the person is found guilty a conviction would be automatically recorded. As well, a second and later offences would carry a minimum three months going up to two years in jail and would represent Tasmania’s first mandatory imprisonment legislation.

There are also heavy fines for inciting others to hinder a business, for both individuals and organisations.

Reaction and Comments

Speaking for the government the Hobart Mercury quotes the Minister as saying:

“We support and acknowledge the constitutional right of people to peacefully protest. There’ll be no prohibition - and neither can there be, given the national legislation - but we don’t support this random invasion of workplaces where people are prohibited from going about their legal rights to work, . . .’’

The Minister is further quoted as saying the legislation was "appropriately tough" and saying further, that:

“This [the legislation] will send the clear message that Tasmanians have a right to earn a living, whether that be in forestry, mining or any other industry, without having extremist protesters come on to their workplaces, . . . We say enough is enough – and at the election the Tasmanian people overwhelmingly agreed with us.’’

The Minister also used public safety as another justification for the legislation saying that protesters in workplaces could put workers lives and their own lives in peril.

In a recent Press Release of 12 August 2014 the Australian Bar Association (the ABA) has been critical of the proposed legislation saying of it:

A new law designed to prevent anti-logging and mining protests in Tasmania will stifle freedom of speech and lead to harsh outcomes . . ."

The Vice President of the ABA Fiona McLeod SC is quoted as saying:

". . .it [the Bill] would potentially criminalise peaceful protests aimed at raising awareness of environmental, political, cultural, economic or social issues."

On the matter of a mandatory three month term of imprisonment for a second or subsequent offence, Ms McLeod comments:

"There is no evidence that mandatory sentencing actually works. It’s never the 'quick fix' its backers promise it to be. It’s difficult to enforce, notoriously expensive, causes backlogs in the court system and may have other unintended consequences . . ."

The ABA has called on the Tasmanian Upper House to reject the Bill and for the government to reconsider the proposed law saying:

"The proposed penalties restrict judicial discretion and are likely to have a disproportionate impact on the community".

The Law Society of Tasmania is also reported to view the imposition of mandatory sentences for such offences "with alarm", the Hobart Mercury quotes its president Anthony Mihal as saying:

“It’s a fundamental principle that our democracy is founded on, that the separation of Parliament and the courts be maintained, . . . Courts should be free to impose penalties taking into account each situation, . . . These laws are founded on concerns of courts being too ­ lenient. Those concerns are wrong. People do and have been imprisoned.’’

The Bill is due to be debated when the Tasmanian upper house next sits on 19 August 2014 and it will be interesting to see if it is amended or modified before passing into law, especially, given the concern expressed by the ABA and other areas of the legal community across the country, about the growing trend throughout Australian jurisdictions to impose mandatory sentences which remove the option of a merciful result.

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