29 October 2014
of the Legislative Council
(PROTECTION FROM PROTESTORS) BILL 2014 (No. 15)
Mr President, Tasmania is far too small to be continually split apart
by arguments over resources and developments. That is why I supported
the Tasmanian Forestry Agreement with the hope that it would end more
than 30 years of conflict. We Tasmanians have wasted too much time
and energy participating in arguments which have split our
communities and our families.
was the new state Government's decision to scrap the TFA and the
hopes for peace over forest resources. When it replaced the Tasmanian
Forest Agreement with its own plans for the future of forestry many
were worried we would go back to conflict. The Government believes
this is the case or why would it be introducing this bill in
anticipation of protests and renewed conflict? Not only does this
bill anticipate renewed conflict, but, if it is passed in its present
version, it will exacerbate conflict.
sad thing is that this controversial legislation is not necessary.
There are ample laws to deal with protests. The absence of laws like
those proposed did not prevent busloads of protestors being jailed
during the Franklin Dam blockade. If protestors or anyone else
damages a business property or intimidates its workers, there are
existing legal consequences and existing laws governing protests and
demonstrations. There are laws against trespass or refusing to leave
someone else's property, against damage to someone's property,
penalties for obstructing police, penalties for preventing someone
from going about their business, or using a public space. There are
penalties for those who fail to leave a public space when directed by
a police officer. All those measures adequately cover any future
protests against forestry operations.
do we need this bill? All this bill does is adversely affect the way
the rest of the world views Tasmania and its products. We are a small
and peaceful island and that is the way people should see Tasmania.
Would an overseas customer buy Tasmanian forestry products knowing
that their harvesting was splitting a community and sending people to
biggest concern about this bill is the provision of mandatory rather
than discretionary penalties. The entry of the legislature into the
domain of the judiciary is a dangerous step. The judiciary is trained
to consider and properly assess a penalty in respect of each
individual. Mandatory sentences take away that right and the result
can be severe and unfair on a particular individual and inflict great
hardship. We heard in our briefings this morning from organisations
and people - and I appreciate the Government's cooperation in
providing those yesterday and today. Unions are against the bill. The
Law Society calls it complex, convoluted and difficult to interpret.
The society is steadfastly opposed to mandatory sentencing. It says
it is not necessary and it does not work.
contribution by retired Supreme Court judge, Pierre Slicer, was
damning. He told us that mandatory sentencing offends every principle
of justice. It is not a measured response, and would affect students,
visas and travel, among other things. This bill is going to do harm,
he told us. He said it was one of the worst drafted bills he had seen
in a long time. The Law Society of Tasmania's briefing was also
damning. They called it overly complex, difficult to interpret and
potentially difficult for the courts to apply and for the community
to understand. The Law Society also maintains the alternatives
between summary prosecution in the Magistrates Court and indictable
prosecution in the Supreme Court places too much discretion on the
Department of Public Prosecutions, resulting in the prosecutor having
a determinative role as to the penalty that offenders will receive.
must take note of what the Law Society says about this bill,
especially when it calls the penalties disproportionately harsh. We
also heard support for the bill from the Forestry Industries
Association of Tasmania - FIAT - the TFGA, the TCCI and the Master
Builders Association. They made the general point that the right to
protest is maintained, but not in the workplace.
question the Government and the minister need to answer is, did the
mining and forestry industries request this legislation, particularly
when only a few months before that the forestry industry was
supporting the Tasmanian Forestry Agreement. I can only think that
this bill is ideologically motivated out of a hatred of
conservationists. I am puzzled about why this legislation is so
pressing, as there is a six-year delay in logging the former TFA
reserves, and any protest action in the area is unlikely.
doubt, Mr President, you and our colleagues read the editorial in
which suggested that this debate will help to define the relationship
between our two Houses of state Parliament for the term of the
Government. The editorial also says of these laws, and I will quote:
also serve to distract from other more pressing issues. This week
much space and air time will be given to these laws while the
community waits on significant reviews of the health system and
education. The upper House will have its day to determine whether
these laws are in step with what the community wants, expects, needs,
desires, or whether they are just much ado about nothing.
such as the wage freeze, the one which we postponed, and this bill,
put this House in a difficult position. Both were bills made in
haste, and both were amended by the Government in an attempt to get
them through, and continue to be amended. We had an email earlier
this week from 22 organisations that called this bill a dramatic
change to Tasmania's legal system. I will quote that email:
bill proposes to create mandatory prison sentences which would
overturn established legal precepts. There are no mandatory minimum
prison sentences currently on the Tasmanian statute books. This is a
dramatic change to a legal system that has been drafted in the
absence of any consultation with legal experts or those in the
community who have an interest.
ask, Mr President, why was there no proper consultation on this
change, especially with the judiciary? I want to have a closer look
at the Government's proposed amendments, some of which the Minister
for Resources quaintly says will protect 'mum and dad' protesters.
hear also what the Leader said about the changes to business
premises. Some legal advice came to me about the definition of
'business access area'. It states that it is the area outside a
business premises that is reasonably necessary to enable access to an
entrance to, or an exit from, the premises. There could be several
entrances or exits and they could be from several streets or over
extensive tracts of vacant land. If the business is in the bush, any
track leading to the business no matter how distant from the business
could be deemed as being reasonably necessary to enable access.
activity' is defined to be the lawful activity carried out for the
purpose of profit or an activity carried out on business premises, or
ancillary to, or connected to a business activity, or for a
prescribed purpose that is related to the carrying out of an
activity. The use of the term 'prescribed purpose' means that the
minister could prescribe any by regulation. There ought to be no such
definition of 'business' is far too wide and leaves it open to the
Government to prescribe by regulation the class of persons who carry
on business activities in relation to the premises. Are the business
activities to be performed on the site or can they be performed at
another place that is in relation to the premises and then brought to
are also problems with the definition of 'forestry land'. 'Forestry
land' is stated to include premises that are used to process forest
products or to store vehicles or equipment for use on forestry land
whether or not the premises are forestry land. The vehicles, et
cetera, on the premises may be kilometres away. For example, a
contractor's private property is still deemed to be on forestry land.
The word 'equipment' could include axes, crowbars, twitch chains and
so on stored on a contractor's private property.
4(5) states: 'Nothing in subsection (3) or (4) is to be taken to
limit the generality of subsection (1)'. I think the Leader needs to
explain what the practical effect of this subclause is and why it is
16 authorises a police officer to issue an infringement notice. If a
person seeks to dispute the issue of that notice, he will have to
apply to a court. However, if the court finds the officer properly
issued the notice under clause 18, the court must convict that
person. There is no discretion. The effect of these provisions will
be that a person will not challenge a notice and the actions of a
police officer will never be subject to judicial review. I have a
problem with that.
President, this bill, in its current form, worries me and I cannot
support it. I will listen closely to the debate and I will look
carefully at any amendments - there are plenty - but I cannot help
feeling, as the Mercury
editorial suggested on Monday, that these laws are just much ado
about nothing, and that we are wasting time at this time that could
be better spent on more pressing community issues.