Our rights, freedoms

Terese Henning explains why the Hodgman Government’s proposed antiprotest laws are deceptive and dangerous

FEARFUL governments breed fearful times. Their apprehension manifests in repressive policies, laws and justifications that depend upon and breed more fear.

The latest manifestation of this is the Tasmanian Government’s Workplace (Protection of Lawful Business Activities) Bill 2019. This Bill represents another incursion on Tasmanians’ fundamental freedoms, this time under the guise of protecting business.

The core aim of this Bill is to confine citizens’ freedom of assembly and right to political protest.

In his second reading speech on the Bill, Guy

Barnett MHA made it very clear that its purpose is to limit those rights. But it seeks to do so, without making express provision to that effect, so as to avoid another declaration by the High Court that it infringes our constitutional freedom of political communication and is therefore invalid.

In order to do this, the Bill has removed all mention of its main target — protests and protesters. This, in itself, is troubling. It means that the

Bill is deceptive.

The complete removal of the actual political target of the Bill means it now applies to all people and an almost indefinable range of activities.

Any act that affects business activities by way of trespass and obstruction is targeted. It also extends to threats to do those things.

Every interference with business, from the most trivial to the most significant is covered. Further it prescribes an unprecedented range of locations where such trespassers will occur. Nor is it limited to conduct that actually causes economic loss, let alone “significant economic loss,” though this is the justification given for it by Mr Barnett in his second reading speech.

Examples of the trivial “trespasses” that this Bill criminalises serve to underscore this point.

You might refuse to leave your boss’s office until he agrees to pay shortfalls in your wages. You may have queued for hours at a business only to be told to come back another time. You refuse to do so, not wishing to repeat the experience all over again the next day.

Or let’s say you go to a car yard to complain to the retailer about your horrendous experience with the dud he sold you and his refusal to replace or fix it. Your conduct is born of frustration and a desire to save others from the same experience. Note that these things are already illegal, but are rightly considered minor offences. What this Bill will do is make them indictable offences, regardless of the degree to which the conduct actually “impedes” the operation of the business. These are the most serious offences in the criminal calendar.

What’s more, this Bill makes it an offence even to threaten to do those things — for example, if you phone the car retailer to tell him that tomorrow you intend to warn potential customers at his premises about his poor business standards. Clearly, it is not only conduct that has the potential to cause “significant economic loss” that is criminalised.

Human rights principles mandate that where laws encroach on human rights and fundamental freedoms, they must be necessary, accessible and certain. There must be no other, less intrusive way to achieve their purpose. That is clearly not the case with this Bill. It is based on an open deception about its purpose, which is really about pursuing a policy of criminalising political protest.

Trespass and obstruction are already illegal under the Police Offences Act 1935 (Tas) — and were in fact used last month to remove climate change protesters from around Parliament and Salamanca Place.

That shows our laws work as they are intended. Indeed, the second reading speech for the Bill does not point to one instance of a trespass that has occurred in Tasmania of the kind targeted by the Bill, let alone any such conduct that has caused “significant economic loss for workers and businesses.” Yet, according to Mr Barnett the Bill “will provide the country’s highest maximum penalty for the offence of trespassing.”

So, this Bill is not only unnecessary, it is also disproportionate in the response it provides. This casts a shadow over the human rights legitimacy of this Bill. Such problems with our

legislation would be less likely to occur if Tasmania had a Human Rights Act. A Human Rights Act could provide for the systematic evaluation of all government legislation in human rights terms.

Without it, our governments are relatively free to erode our rights and freedoms. This Bill walks Tasmania another step away from respect for human rights and individual freedoms.

It may seem an insignificant step. But by such means are our rights and freedoms slowly undermined.

Associate Professor Terese Henning is an expert in human rights, evidence law and criminal process. She works at the University of Tasmania and is director of the Tasmania Law Reform Institute. Her views here do not represent those of UTAS or the Law Reform Institute.