Wednesday 29 October 2014

Hansard of the Legislative Council

WORKPLACES (PROTECTION FROM PROTESTORS) BILL 2014 (No. 15)

Mr FINCH (Rosevears)- 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.

It 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.

The 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.

Why 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 prison?

My 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.

The 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.

We 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.

The 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.

No doubt, Mr President, you and our colleagues read the editorial in Monday's Mercury, 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:

They 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.

Bills 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:

This 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.

I 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.

I 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.

'Business 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 power.

The 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 the site?

There 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.

Clause 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 needed.

Clause 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.

Mr 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.