A run down of the Workplace (Protection From Protesters) Bill 2014
The Tasmanian Government introduced the Workplaces (Protection from Protesters) Bill 2014 (the Bill) into the House of Assembly on 24 June 2014. The Bill was passed by the House at 11.15pm on 26 June 2014. The Liberal Government went to the election in March with a promise to introduce ‘tough’ new laws to impose mandatory sentences and large fines for protesters who prevent, hinder or obstruct forestry or mining activities.
This fact sheet examines the effect of these new restrictions on protesting and the practical impacts they will have.
What is ‘protesting’?
A person is a ‘protester’ under the Bill, if they are engaging in ‘protest activity’. ‘Protest activity’ is defined in the Bill as:
an activity on business premises …that is in furtherance of or for the purpose of promoting awareness of or support for an opinion, or belief, in respect of a political, environmental, social, cultural or economic issues.
The Bill makes it an offence for a protester to:
· Invade or hinder a business (including by entering a business premises, doing an act on a business premises or preventing access to a business premises);
· Cause or threaten damage to a business premises or business-related object (this would include machinery used by the business).
It is also an offence under the Bill for a person (as distinct from a ‘protester’) to incite someone to commit one of the above offences. For example, a person would be committing an offence under the Bill if they ‘incite’a person to go onto forestry land and hinder or obstruct logging. These provisions potentially cover a broad range of situations, particularly considering there is little information in the Bill about what ‘incite’ may include.
The Bill makes it a criminal offence to “prevent, hinder or obstruct the carrying out of a business activity”. However, despite the stated intention of the Bill being to prevent impacts on commercial operations, there is no requirement to establish that the “hindering” actually caused any damage to the business.
Where will protesting be restricted?
The protest activity which the Bill aims to regulate is restricted to protesting that is conducted on a ‘business premises’ or ‘business access area’. A business access area includes any land outside the business premises (e.g. footpath or road).
‘Business premises’ is defined to include:
· land on which mining, mining operations or exploration is being carried out;
· forestry land (which is broadly defined);
· land or a building in which agriculture, aquaculture or an abattoir operation is being carried out;
· a vehicle or vessel used for the purpose of the business activity (e.g. a bulldozer);
· other ancillary premises (manufacturing, administration, management or residential premises associated with the business).
A business activity means a lawful activity carried out for the purpose of profit. This definition is exceptionally broad and goes far beyond merely forestry or mining business premises. Interestingly, it does not cover “not-for-profit” businesses.
Business premises includes land on which mining, mining operations or exploration for minerals (as defined under the Mineral Resource Development Act 1995 (MRDA)) is occurring. This includes both traditional open cut mining and processing, as well as ‘shale gas’ or ‘coal seam gas’ exploration and extraction.
The Bill could result in penalties being imposed on ‘Lock the Gate’ style protesters, such as rural landholders trying to prevent mineral exploration and mining from being undertaken on their property. Private property, where mineral exploration is permitted, would be classified as a business premises. As the Bill contains no exemptions for private landholders taking ‘protest action’ on their own property, a landholder undertaking a protest activity could potentially face fines and, in certain cases, a mandatory prison sentence.
The Bill also prescribes substantial fines and mandatory sentences for protesters undertaking ‘protest activity’ on forestry land which prevents, hinders or obstructs forestry operations. Forestry land is defined broadly in the Bill and includes:
· An area of land on which forest operations are being carried out;
· An area on which work is being undertaken in preparation for the submission of a plan for certification for forest practices plan;
· Private commercial forest under the Private Forests Act 1994;
· Premises that are used to process forest products or to store equipment.
The Bill, if passed, would result in a person who obstructs a bulldozer which was to be used for the purposes of undertaking forestry work receiving a fine of at least $5,000 for a first offence and a term of imprisonment of at least 3 months for a second offence.
Move on powers
The Bill gives police the power to direct a person to leave a business premises or business access area where the police officer reasonably believes that the person has committed, or is committing, an offence.
The Bill also allows the police to direct a person to move on if the office reasonably believes that the person is “about to” commit an offence. This power can only be exercised where the police officer believes the person predicted to commit an offence is motivated by a political, environmental, social, cultural or economic issue.
This means that a police officer is only required to reasonably believe that a person is about to undertake an unlawful ‘protest activity’ before being able to direct a person to ‘move on’. These are strong powers, requiring the police to make a subjective judgment regarding a person’s motivation and their predicted actions.
The police may also direct a person to leave a public place (or any other land) where the police officer reasonably believes that the person has undertaken or is about to undertake a protest activity which hinders movement of a vehicle or vessel. This allows police to move on any person in a public place where the police officer believes they may undertake an unlawful protest activity.
If the police officer has directed the person to ‘move on’, then it is an offence under the Bill for that person to return to the area within 4 days of the police direction.
These police powers to move on people where they believe an offence is about to be committed will have wide ranging ramifications for peaceful and traditionally lawful protests.
Powers with respect to identification
The Bill also imposes a significant fine for any person who refuses to provide proof of identity, or who provides false information. Under the existing Police Offences Act 1935, the fine for failing to provide a name and address when directed by police is $260. The new Bill would impose a fine of up to $2,000.
Currently, police can search people if they believe they have stolen goods, drugs or an item to commit an offence (such as a weapon). Police cannot search people for their identification.
This Bill changes that, allowing police officers to search any ‘protestor’ if they believe the person has identification on them and is not handing over to police. This Bill therefore gives police powers of inspection against ‘protestors’ that they do not have with respect to the public at large.
The Bill prescribes significant fines and mandatory prison sentences for persons who commit an offence under the Bill. ‘Person’ includes organisations.
The Bill permits a police officer to issue on the spot fines (infringement notices) of up to $2,000 for certain offences.
Unlike offence provisions under existing laws (such as Police Offences Act 1935 offences for not providing your name), the Bill requires a conviction to be recorded for any offence. A recorded conviction can have significantly ramifications for a range of later issues, including visa applications and police checks for job interviews.
The Bill also imposes mandatory sentencing, taking away existing discretion about what penalties may be appropriate in particular circumstances. This is the first legislation to impose mandatory sentencing in Tasmania.
For a first offence of invading or hindering a business, a protester must be fined at least $5,000 and may be fined up to $10,000. For a second offence, a mandatory sentence of 3 months must be imposed – the sentence may extend up to 2 years in prison.
By comparison, under other legislation a person convicted of assaulting another person may be fined up to $3,600 or imprisoned for up to 12 months. A person who steals a car may be fined up to $6,500 or imprisoned for up to 3 years.
The most concerning aspect of the Bill is the potential for large fines and prison sentences to be imposed for activities which fall outside the stated intention of the legislation.
The offence of hindering business activity offence could apply to a person challenging a shop assistant who refuses to provide a refund for damaged goods. Under the Bill, a person who asks to see the manager and refuses to leave until the manager arrives could be committing an offence and liable to a $5,000 fine. If the same thing happened, even many years later, a Magistrate would have no choice but to send them to gaol for 3 months.
The protest activity doesn’t need to be connected to the business which is being hindered. The definition of protestor does not relate the business premises on which the protest is taking place or the reason for the protest.
For example, if a person parks their car in a place that hinders a business activity (for example unloading of a truck) on the way to a rally that is completely unrelated to the business affected, they could commit an offence under the Bill
The Bill also creates a very broad offence of threatening to cause damage ‘in relation to’ a business premises. Without clearer definition, this offence could potentially catch a person who angrily tore up a receipt when a restaurant got their order wrong, or a person who wrote to a business threatening to expose details of poor work practices.
Do existing laws cover these issues?
Under the Police Offences Act 1935, it is an offence to unlawfully enter land (i.e trespass). For non-residential land, the penalty for trespass is a fine up to $650 or a prison term not exceeding 6 months.
The Police Offences Act 1935 provides power to the police to arrest trespassers without a warrant. However, the police can only take this action if the person has failed to comply with a request to leave the area. The police cannot arrest a trespasser without a warrant if they believe the person has a reasonable excuse for being on the land.
In contrast, the Bill allows police to arrest persons without a warrant without giving a warning.
The Bill adds the additional element of hindering a business activity to a trespass offence. The addition of that element sees the fine go from a maximum of $650 (for trespass) to at least $5,000 (for protest activity). If a person commits a second offence, they must then be gaoled for at least 3 months (up to 2 years).
The Police Offences Act 1935 makes it an offence to destroy or injure property. The penalty is a fine not exceeding $1,300 or a prison term not exceeding 12 months.
Under the Bill, the fine for causing damage to a business premises is up to $50,000, 5 years gaol or both.
This fact sheet is for information purposes only and is not legal advice. For advice about a specifi issue, please contact EDO Tasmanian on 6223 2770 or firstname.lastname@example.org