The Tasmanian government will have to decide whether to accept a significantly watered-down version of its flagship anti-protest legislation after the state's upper house substantially altered the bill to reduce its scope and penalties.
The Workplace Protection Bill sought to toughen penalties for protesters who obstruct business activities, such as environmental protesters blocking a logging site, by changing the Police Offences Act to introduce new aggravated offences of public nuisance and trespass.
Protesters would have faced increased fines or prison time if a court found that while committing the offence of public nuisance, they prevented workers from entering a workplace, or if while committing trespass, they obstructed employees from carrying out their work or caused a risk to their own or workers' safety.
But yesterday, the Legislative Council refused to support the section that dealt with public nuisance, meaning it is no longer part of the bill.
Legislative councillors also substantially changed the part of the bill that would introduce the new aggravated trespass offence.
The amendments the council supported included:
- Requiring police to prove protesters "substantially" obstructed workers and intended to do so
- Excluding protesters who are obstructing work in their own workplace as part of an industrial campaign or an industrial dispute
- Reducing maximum penalties for individual protesters from $13,575 for a first offence to $9,050, with the maximum prison term increased from 12 months to 18 months
- Reducing maximum fines for a second offence from $22,625 to $13,575, with the maximum prison term reduced from 30 months to 24 months
- More than halving the maximum fine for a body corporate from about $108,600 to $45,250
The Legislative Council passed the amended version of the bill this morning.
How did this happen?
In May, the bill passed the second of three votes in the Legislative Council, and it was expected to pass the final vote yesterday.
Murchison MLC Ruth Forrest supported the bill before the winter break but yesterday persuaded the council to consider new amendments to the bill, arguing it did not strike the right balance between protecting workers and protecting the right to protest.
Ms Forrest represents an electorate in the far north-west of Tasmania where many people are employed in mining and forestry and is the location of many environmental protests.
She said she was especially concerned about unintended consequences from the section of the bill dealing with public nuisance, which applies to people obstructing vehicles and pedestrians on public roads.
Ms Forrest argued this meant the new offences could be applied to people unintentionally blocking workers or workplaces unconnected to protests.
Her amendments to this part of the bill were supported, but Ms Forrest and Launceston MLC Rosemary Armitage both voted against the entire clause, sinking it.
Ms Forrest also successfully moved amendments to narrow the scope of the aggravated trespass offence and to carve out protests related to industrial action.
Nelson MLC Meg Webb and Hobart MLC Rob Valentine strongly objected to excluding industrial action, arguing it was discriminatory to prefer one category of protesters above others; both opposed the bill as a whole.
Latrobe MLC Mike Gaffney successfully amended the bill to reduce the maximum fines and penalties.
He argued the original maximum penalties were disproportionate compared with those for other comparable offences and compared with similar laws in other states.
What happens now?
Reflecting on the amended bill this morning, Ms Forrest said while she still had concerns, the best possible balance under the circumstances had been struck.
"I maintain that the right to protest is sacrosanct to our democracy and must not be undermined," she told the Legislative Council in her third reading speech this morning.
"Protest is disruptive by nature but should not negatively affect the health and safety of others."
Because the bill has been changed by the Legislative Council, it will be sent back to the House of Assembly.
The lower house will either approve the amended bill or make further changes, in which case the bill will have to be sent back to the Legislative Council for further scrutiny.
The current bill is the Liberal government's fourth attempt to clamp down on protesters disrupting mining and forestry operations.
The Hodgman government passed standalone workplace protest laws in 2014, but after former Australian Greens leader Bob Brown challenged his conviction under the laws, the High Court ruled them unconstitutional.
The current bill's high maximum fine for body corporates is widely considered to target Dr Brown's namesake organisation, the Bob Brown Foundation, which frequently engages in protests aimed at stopping contentious forestry and mining operations.
In 2018, the Legislative Council refused to pass a similar standalone bill.
This latest bill took a different approach, toughening penalties for existing offences.
The government has consistently argued it has a mandate to pass laws protecting workers from disruption from protests, having won three state elections while carrying the policy.
It remains to be seen whether the government accepts the constrained and watered-down bill the Legislative Council will hand it or whether it will go back to the drawing board yet again.
At a press conference following the bill's passage on Thursday, Resources Minister Guy Barnett said the government was "absolutely delighted that a signature policy we've been trying for since [the Liberals' election win in] 2014 has been passed in the Upper House".
"This is a very big step forward to improve protections in the workplace for workers and businesses to allow them to operate free from intrusions and workplace invasions; free from people tying themselves to equipment or property," he said.
Mr Barnett said the government would "consider this bill and review the amendments", but declined to set a date for when a Lower House vote would be taken on the legislation.
'Undemocratic' law savaged
Despite the amendments, Tasmanian Greens Leader Cassy O'Connor described the legislation as an "assault on free speech and the right to peaceful protest", adding it was "questionable whether it's even constitutional".
"With its passage through the Legislative Council, the Liberal government's savagely undemocratic and unnecessary anti-protest legislation is all but certain to become law," she said.
Ms O'Connor said Meg Webb, Rob Valentine, Mike Gaffney, Rosemary Armitage, and Sarah Lovell "all deserve credit for voting to uphold the right to peaceful protest", but singled out Liberal MLCs Leonie Hiscutt, Jane Howlett and Jo Palmer, and Independents Ruth Forrest, Tania Rattray, and Dean Harriss, whom she said "deserve no credit or thanks".
"Each of them undermined this island's long, proud history of peaceful protest," she said.
"Tasmania is in the midst of a health and housing crisis, a devastating commission of inquiry, and an ongoing pandemic. Rather tackling these critical issues, the Rockliff government has prioritised laws designed to lock people up for exercising their democratic rights.
"Well, they'd better build bigger jails."
Veteran environmental campaigner Bob Brown described the legislation as the "government of big business pandering to logging, mining and fish-farming corporations, many of which drain their profits out of Tasmania, to stifle our spotlight on their destruction of Tasmania's beautiful environment and wildlife".
"It won't work. It will have no effect on our intention to campaign for Tasmania's beauty, naturalness and wildlife," he said.
"There are many more than me, and many younger than me, who will not be deterred from peacefully protecting Tasmania's seas, forests and wildlife.
"The government, bowing to corporate thuggery, is criminalising effective peaceful protest while legalising seal shooting, owl destruction and parrot extinction.
"It is up to all citizens to determine for themselves what to do in this age of such deliberated destruction of nature."
Rodney Croome, president of Equality Tasmania, said the island state was a "more inclusive place for LGBTIQA+ people thanks to three decades of protest".
"We are very concerned about the adverse impact of this bill. We are glad the Upper House voted down the clause restricting protest in public places," he said.
"But overall, the bill will still have a chilling effect on protest and the reforms that flow from it."
