Legislative Council Wednesday 24 March, 2021
Ms FORREST (Murchison) - Mr President, it is no surprise we see this bill presented for the obvious reason that the 2014 bill was fundamentally flawed, as a number of us pointed out at the time. I was not aware that the 2019 debate was guillotined. It was in 2014 too. It is like a case of déjà vu. I accept and understand the challenge many businesses and workplaces are experiencing when protesters invade their workplaces and prevent them going about their work. This is unacceptable. We need to respond to this more effectively.
Some of this relates more to police resourcing, it seems, from discussions I have had. A lot of these activities occur in quite remote areas, certainly in my electorate they are quite remote. It is difficult for police to respond in a timely manner. It is not a criticism of police, it is acknowledgment of a reality. Business is disrupted for much longer, even though the protesters might move along once the police arrived. But three hours of work, time and opportunity have been lost.
The other point raised with me, including by those in industry, who in many cases have felt very let-down by the politicisation of this issue, is that this is a purely political attempt to create division and seek to politicise the upcoming Legislative Council elections. Surely we can do better than that? To claim that because we had an existing framework and the bill that was tossed out by the High Court, while valid in purpose - to protect workers in their workplace and businesses - that framework was rejected in its approach by the High Court.
To suggest that this bill needs to be modified, and the Government is presenting that as the only way, I believe is disingenuous. As a number of us stated in 2014, the strengthening of existing legislation and/or more direct application of existing laws would provide the same framework and be less likely to fail a High Court challenge, depending on the approach taken.
If the intent is to create an additional offence of aggravated trespass, it seems clear this could equally be achieved without the breadth and associated risks of limiting freedom of communication that many, especially in the legal profession, believe this bill risks. So, is this a politically driven move that is putting industry in the unenviable position that we could see them let down again? This is a very real fear that industry has. Industry people [TBC] I have spoken to, and many of them are in my electorate, feel they are being used like political pawns.
I note recent posts on social media and via email from Liberal Party members that are entirely political and inflammatory in their nature. This is childish if you are serious about the validity of the bill and does not help anybody. I will not name names. I know who they are; it is completely unacceptable. As you said, Mr President, they probably have the memes ready to go out now. The memes are already out there. The last one I saw was a week or so ago. If you are serious about the strength of your legislation, do not trivialise it with stupid political antics. That is what some Liberal Party members are doing.
Also helping me make my decisions about this legislation are the hundreds if not thousands of emails generated through websites like dogooder.co. These are equally unhelpful and add nothing to a thoughtful, considered debate about important legislative reform. I do not believe anyone here suggests that workplace invasion is appropriate where it disrupts business, threatens workers and is on the basis of a philosophical opposition to the industry. I believe it is fundamentally wrong and a real and current problem for many businesses right now in my electorate.
Despite some of the recent media promotion by the Government, it is interesting to note that in my discussions about this bill with key stakeholders - in the forestry industry in particular, but also in others - they share the view that this spiel is a political game where other options more likely to be effective have been overlooked.
There are other laws that could and should be tested more fully to deal with the problem, and, if necessary, we could amend those laws.
I know the member for Rumney spoke a little about approaches taken in other jurisdictions in regard to the trespass laws.
Mrs Hiscutt - I am just dwelling on the fact you said hundreds of Do Gooder proforma emails.
Ms Lovell - It is an online advocacy platform.
Mrs Hiscutt - I know what it is. I have not received any of them.
Ms FORREST - Lucky you. They clog up your inbox and you run the risk of deleting important emails.
Mr PRESIDENT - We can forward them to you.
Ms FORREST - What I will do, Mr President, as soon as I finish my speech is do an automatic forward of all of them to you.
Mrs Hiscutt - No, that is okay. It is interesting to note the three Liberals here were excluded from that.
Ms FORREST - Lucky you.
Mr Valentine - It is probably only to independents or something.
Ms FORREST - To anyone out there listening who may participate in that sort of activity, it is not helpful at all. I do not mind getting an email with a well-considered opinion on this bill on either side of the argument. In fact, I welcome it, but that sort of nonsense - I call it nonsense because it is completely unhelpful, and I do not read any of them, if anyone is interested - I delete. I have set up a rule and they go straight to the bin.
If that is what you are going to do, that is not helpful. The risk in setting up a rule to delete them all is that you end up deleting something you actually wanted to see.
It is a big call, but I tend to delete them individually, which takes time I could be spending on other things.
In order to have thoughtful, considered debate about this important reform, we need to have considered thoughtful input into it - not just mindless pressing a button of an already prepared email.
I do not believe anyone here suggests that workplace invasions are appropriate.
There are laws that could and should be more fully tested to deal with this problem. If necessary, we can amend those laws, including increasing penalties, particularly, if that is deemed necessary to act as a deterrent. We know monetary penalties and even prison terms do not appear to be a particularly good deterrent for some of these activists who do not really seem to care what it is the penalty. If they are really determined to do it, they will just be there. If they know that when they get there, they have already disrupted the business for a number of hours, their work is done. They do not need to be arrested.
Even with these laws are passed, it will not help my people at Venture Minerals because there is a camp of Bob Brown Foundation people in that vicinity. They are between Venture Minerals operations, a forestry operation and the MMG expansion of a tailings dam. They are in spitting distance of each other.
It is very convenient and you can move from one to the other. Police are definitely on the back foot here. If this bill were to pass, it would be of little benefit to the impact on the workplaces I represent in those areas.
What the members for Huon and Rumney have said was interesting, because I read with interest the terms of the willingness or non-willingness of the minister to work cooperatively with the opposition.
I will just read from an article in The Examiner on Saturday:
Tasmania's Small Business Council director Elizabeth Skirving said as the policy was a mandated issue it will need to be supported in the vote next week.
It is an issue that we would really like to get sorted now it has been mandated. It has gone to the people of Tasmania. It is something that needs to be pushed through so that we are in line with other jurisdictions in Australia.
I am uncertain what Ms Skirving means when she says it is mandated. Our job here is to assess every bill on its merits. The whole mandate argument is a tired and poor reason to say any particular bill should or should not be supported. Our job is much more than that.
Mr Valentine - It is a mandate to put it on the agenda to have it debated.
Ms FORREST - That is right. They have often said that.
Those are the words put into her mouth, I almost believe, because that is the language that comes out of the minister's mouth and others promoting this bill on a mandate argument.
Yes, they went to an election talking about this, as they did many other things. The article went on:
With regard to the opposition to the bill by the Opposition and comments made by the member for Braddon, Dr Broad.
I quote from the article:
Dr Broad said the party was open to working with the Government but changes needed to be made to secure support. I am willing to work with Minister Barnett on alternative models that would provide certainty to the forest sector and other industries.
Mr Barnett confirmed that the Government is willing to hold more discussions with advocacy and protest groups in place of them protesting at workplaces.
Still quoting Mr Barnett:
We are very open to working with everyone in the community -
I thought Opposition were members of the community, but I could be wrong on that:
We support what is best for Tasmania and my door is open and I look forward to those discussions.
If that is a clear representation of his comments, he has committed to working with anyone, including the protesters, advocacy groups and obviously, I suggest here, and the Labor Party because it is part of our community, or its members are.
I was very pleased to read this because I have been hearing it from many in industry. This is what they would want rather than this legislation. They want a proactive, considered approach, a collaborative approach that actually addresses their problem. I hear thatd from the member for Rumney, particularly when she read the letter to Dr Broad -
Ms Lovell - That's right.
Ms FORREST - That seems not to have been followed through. What was the date of that letter?
Ms Lovell - It actually was not dated, but the letter to the minister was sent on 19 March, so after 18 March.
Ms FORREST - It was probably said before the media comment, I expect; that was Saturday. Anyway, close in time.
In considering this bill, it seems that some inconsistencies and flaws in the previous bill that remain in this bill. I share the frustration of the industries impacted by the serious negative impacts of protester activity which disrupts their businesses and risks or causes a genuine worker health and safety risk. That is not appropriate anytime, anywhere.
I see the industry caught in the middle of this, purely for political pointscoring, and that is disappointing to say the least. What the Government should do is have an adult conversation that fully considers all the options to address this, including police resourcing. The minister has stated he is willing to do this, so I urge him to get out there and get on with it. Include the Labor Party, include the Greens, include the protesters and include whoever it is you need to engage.
I revisited my 2014 speech on this bill that the Government now seeks to amend. As I indicated in my comments, many comments I raised and matters I addressed remain relevant now. As I said in 2014 - and I repeat again now - I made it very clear a number of times in this place, certainly prior to the previous elections and since, that I support the overall intent of the legislation and the need to address issues related to workplace disruption, especially when driven from an ideological position.
The current Government, including when in opposition, was very strong in condemning protesters, as was, I think I can safely say, everyone in this place. To disrupt workplaces in the way that has happened in the past - and we are seeing more and more of it again at the moment in recent times - is wrong. Of course, regardless of the workplace, there will be times when you should disrupt people seeking to attend or be in their workplace and that is when the work they are doing puts them in personal danger or can cause harm to others.
I understand this is not what we are talking about here, but as I raised a particular scenario in the briefing, it seems to me that they could be caught up in that if a worker, not part of an industrial action, deliberately tried to prevent entry to a site and impede the business activity. This could be because of concerns around the practices inside, whether it be a health or a safety practice from a danger point of view, physical danger, or whether it be vilification of women or that sort of thing. To me this is that broad.
This bill is about where people are trying to stop people going about their lawful work when they have every legal right to do so and the people seeking to prevent them are opposed, often from a philosophical point of view, to the work being done. I do not have an issue with that principle, it is how it is put into effect that is an issue.
The fundamental principle underpinning the 2014 legislation, and again in this bill, is that no one should have the right to prevent another person from undertaking their lawful work. The unions and the legal fraternity agree with this principle. How you give effect to that principle is the issue here, as it was in 2014. Playing politics with this issue rather than an approach that strengthens current laws that have yet to be tested in many cases has not been tried as much as it should have been. Ensuring adequate resourcing of workplace standards and police seem to be another issue that is repeatedly raised with me by industry representatives.
One of the concerns I had in 2014 and which remains today is: has the case been made for this particular approach to legislation? Our job is to ensure that legislation that comes into this place to give effect to government policy actually does that and does not have unintended consequences, or is a duplication of something from legislation already in place, thus creating confusion, particularly for police, who have to apply these laws. In 2014, and again now, I have listened to many opinions and I suggest there are other avenues that would achieve the intended policy position. However, according to some, these options and laws are not working.
The questions ate: Why are they not working? What is the issue? Why are people not being prosecuted under provisions that we have? Or are they? Why or why not are they not having sentences imposed the general community deems to be appropriate for the circumstances? I have not been able to get any information about recent sentencing of protesters to understand what is happening, so I went back.
In 2014 we were provided with a case by the unions, where arrests were made and charges were laid. This is a case in 2001. It is a long time ago, but to say our laws are not working, I would question that. I referred to this in 2014, but I want to mention it again now. It was Smith v Vissa 2001, TASSC4010, April 2001 [TBC].
To be briefly refer to that case, the defendant held up forestry work by occupying land where work was being undertaken for one week. The magistrate imposed a fine of $7000, not an insignificant sum for an individual, in line with the penalties being proposed in 2014, and here, depending on whether it was deemed a summary or indictable offence, of course, in this bill. The defendant appealed against the penalty to the Supreme Court and the judge imposed a fine of $5000, so it was reduced. But it was still $5000 and it was still a fine in line with this bill and the 2014 bill, as was being proposed for a summary offence. As this was 20 years ago, I assume the penalties under Trespassers Act and Police Offences Act might have increased on these offences, but I have not been able to get the current information.
In this case 20 years ago, I suggest the court was doing its job. You could argue that the reduction of the penalty was the court doing its job too. Maybe the first decision was a heavy handed approach. However, there are others we hear about - I do not have evidence of this - that receive a slap on the wrist, then are sent home back to the mainland where they come from. I agree this is not right, particularly when they have caused a significant disruption and/or damage in the workplace. I know Venture Minerals and others are particularly concerned about the Easter break, a nice little holiday to Tassie, borders are open, let us go down and do a bit of protesting. Even if this legislation is passed, it would not help them this Easter. It is next week.
That case suggests that our current laws can work. As I said in 2014, rather than politicise it, we need to make it work, rather than trying to duplicate or bring in separate legislation where other significant concerns have been raised about it. The concern raised in the 2014 bill - it is somewhat changed in this bill - relates to the power of the prosecutor to effectively determine the likely offence.
I know the member for Windermere raised this in the briefing. It is ith regard to a decision whether an offence would be heard and determined as an indictable or summary offence and either go to the Court of Petty Sessions or the Supreme Court.
The only change I could really discern in this current bill is the wording changes from 'with the consent of the prosecutor' to 'at the election of the prosecutor'. That is in clause 10 of this bill, on section 17V(8), so I do not understand how this wording would alter the outcome, if indeed it does.
To me the bill states the default position is that offences under this legislation are indictable offences and will be dealt with in the Supreme Court before a judge and, if the offender pleads not guilty, before a judge and jury.
The Supreme Court has a full range of sentencing options available and now has significant times to trial and delays, partly COVID-19-related, but they have always had a bit of a backlog. This is why we have expanded the Magistrates Court last year.
Mr Valentine - Also a fairly expensive exercise.
Ms FORREST - Oh yes, expensive as well. As I was about to say, it is much more expensive for a person to defend in the Supreme Court.
In the proposed amendments, there is an amendment to clause 17, which says 'an offence may on the election of the prosecutor be heard and determined by a court of summary jurisdiction'. [TBC]
This means it can be dealt with summarily before a magistrate where there is no jury. Magistrates deal with offences which are of a less serious nature generally and there are significant differences in penalties to be imposed in the event of finding of guilt, depending on whether the matter is dealt with by the Supreme Court or by a magistrate.
Importantly, there are no guidelines in the bill as to when it should be dealt with by a magistrate, a judge and/or jury. It simply says 'the election of the prosecutor'. The prosecutor - that is the DPP - will be able to make the decision as to how to proceed.
I am concerned as I was in 2014 that this will create a risk of interference and the prosecutor could easily determine which way to go of their own volition, potentially without any guidelines.
Basically, the prosecutor is really determining a likely fine going to be imposed or a likely term of imprisonment an offender would be sentenced to. The court could still impose those, of course, but depending on which path they take, the difference is significant.
I think there should be some guidelines for this rather than just the prosecutor's decision. Maybe the Leader can comment further on that in her reply.
Either way, it seems to me this bill has all the hallmarks of being politically driven, particularly its timing. I believe it was brought on at a time to play wedge politics rather than work with industry players. That is what they are telling me to ensure our current laws are effective and working.
The case has not been made for this approach and I fear the industries impacted by workplace invasions will be caught in the middle of a political game prior to the upcoming elections, and that is very disappointing.
I heard absoluting nothing in our briefings to convince to me that this is the most appropriate framework. I absolutely support the right of people to go about their work unimpeded and do their lawful work. I urge the Government to fully explore the current legislative framework, consider increasing maximum penalties if indicated and utilise other laws available to respond to some of the well-organised groups like the Bob Brown Foundation, which raises funds, often through dishonesty and deceit. We have state government legislation related to charitable organisations which I think should be considered and perhaps used. If you hit an organisation like that in the hip pocket, you will have a much bigger impact because they are just raising money to pay the fines at the moment.
If this bill were to pass. we can almost guarantee the day after it is enacted, one of the Bob Brown Foundation members or a similar organisation will lock onto some forestry or mining equipment, break into a workplace and obstruct access to a worksite to encourage their arrest, so we are back to the High Court, leaving the industry almost worse off than they are, as if there is any chance of a High Court victory for them. If there is a High Court victory after all of that, another win for the Bob Brown Foundation or whoever it is that takes it further is a kick in the guts for industry.
Mr President, I urge the minister to do what he said he would in The Examiner and hold more discussions with advocacy and protest groups, all interested parties and also with industry representatives to ensure we have an effective mechanism to enable workers to go about their lawful work and businesses to get on with their business.
The minister said he is open to working with everyone in the community. He supports what is best for Tasmania and his door is open and he looks forward to those discussions. Through that process I am sure a more workable solution could be found.
I will not be supporting the legislation because I think there is a better way. It is just a real shame it has been brought on this way.Go Back