Tasmania Introduces Workplaces (Protection from Protesters) Amendment Bill 2019

Thursday 21 November 2019 @ 11.26 a.m. | Corporate & Regulatory | Legal Research

On 14 November 2019 the Workplaces (Protection from Protesters) Amendment Bill 2019 (Tas) (“the Bill”) was introduced into Tasmania’s House of Assembly (“Assembly”) by Minister for Primary Industries and Water, the Hon Guy Barnett.

The Bill proposes amendments to the Workplaces (Protection From Protesters) Act 2014 (“the Act”), with the object of the amendments to “ensure protection for lawful business activity in Tasmania”.

Background

As outlined in the Bill’s Explanatory Memorandum (“EM”), the proposed outcome is to be achieved by:

moving the focus of the Act away from protesters;
repealing a number of existing offences contained in the Act;
adding new offences to the Act relating to trespassing on business premises and in or on business vehicles, obstructing public thoroughfares, and threatening to commit an offence to impede the carrying out of a business activity; and
providing police officers with clearer powers of arrest.

Outline of the Proposed Amendments

Some of the substantive amendments to the Act include:

amending section 1 “Short title”;
amending section 3 “Interpretation”;
amending section 5 “Meaning of business premises”; and
substituting sections 6, 7 and 8.

Proposed penalties outlined in section 6(4)(b)(i) and (ii) provide for a first offence of “a fine not exceeding 60 penalty units or a term of imprisonment not exceeding 18 months, or both; or”, while a further offence could attract “a fine not exceeding 60 penalty units or imprisonment for a term not exceeding 4 years, or both”.

Minister’s Comment on the Bill

Commenting on the Bill in a Media Release, the Minister said:

“Widely backed by Tasmanian business groups, our Bill will protect business, workers and their families from trespass, threats and the obstruction of their right to work. The Government is strongly committed to the right of people to protest, but not at the expense of the right of workers to earn a living or the right of business to operate safely and free from threats, interference and disruption.”

In the Minister’s Speech to Parliament, he said:

“This Bill fulfils the Government’s commitment to amend the Act to protect the rights of workers. Certain provisions of the Act were challenged in the High Court of Australia in the case of Brown and Another v State of Tasmania [Brown]. The outcome of Brown was that certain provisions of the Act in respect of their operation on forestry land or business access areas in relation to forestry land are invalid because they impermissibly burden the implied freedom of political communication contrary to the Commonwealth Constitution.”

The Case of Brown v Tasmania

In January 2016, environmentalist and former Senator Bob Brown was arrested for being on a public road in Tasmania's north-west while he was trying to take video footage of loggers.

The legislation allowed police to stop protests before they had started if they were on a business premises or an access area, and allowed on-the-spot fines for protesters as well as gaol time for second offences.

The charge against Mr Brown was eventually dropped, but he argued the laws violated the “implied freedom of political communication”. He challenged the laws, and in 2017 the High Court of Australia found they were at “odds with the implied right to freedom of political communication”, with their Honours noting at [paras 152-153] of the judgment (Brown v Tasmania [2017] HCA 43 (18 October 2017)):

“… The measures adopted by the Protesters Act to deter protesters effect a significant burden on the freedom of political communication. That burden has not been justified. The means adopted cannot be considered as compatible … Part 4 provides the enforcement regime for offences under the Protesters Act. To the extent that it provides for enforcement of and penalties for the provisions here held to be invalid, it too is invalid …”

Industry Comment and Reaction to the Bill

In a recent Media Release, CEO of the Australian Forest Products Association (“AFPA”) Ross Hampton, welcomed the introduction of the Bill, commenting that:

“ … [the Bill] will protect forestry workers from trespassers, threats or obstructions as they go about their business. The forest industry acknowledges the right of every Australian to engage in peaceful, lawful protest and Tasmania has a long history of environmental activism. However, this Bill will protect workers in forestry, agriculture, mining and other primary industries from being harassed or threatened by activists who seek to disrupt legitimate businesses.”

It is reported the Tasmanian Government is confident the proposed changes are constitutional, but some legal stakeholders are highly critical of the proposed legislation.

Speaking to ABC News, University of Tasmania Senior Law Lecturer Brendan Gogarty said the legislation “amounted to a bill of rights for companies with no equivalent for citizens”. Mr Gogarty commented:

“… it was particularly concerning that parts of the original laws allowing police to direct people away from a business premises prior to arrest would be removed under the Government's proposed changes.”

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