CRIMINAL CODE AMENDMENT (PREVENTION OF LAWFUL ACTIVITY) BILL 2015

HON LYNN MacLAREN (South Metropolitan) [3.07 pm]: On behalf of the Greens, I intend to make quite a lengthy speech on the second reading that explains exactly why we, too, oppose the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015. This bill will establish the Criminal Code Amendment (Prevention of Lawful Activity) Act 2015 under which legitimate protest activity is stifled and criminalised through the creation of two new offences in the Criminal Code. Those offences are in proposed sections 68AA, “Physical prevention of lawful activity”, and 68AB, “Preparation for physical prevention or trespass”.

This bill is unnecessary and it breaches international human rights law. This bill appears to have been made on the run. It is badly drafted and too broad in its application. This bill contains a significant attack on civil liberties. It is applicable to all protest and criminalises all dissent. Key provisions of the bill are ambiguously drafted or unnecessarily broad, resulting in a legislative framework under which individuals may not know whether their conduct would constitute a criminal offence.

My first comment—many members have raised this in the corridors—on the name of the bill is that it has in its title the words “prevention of lawful activity”. This is the target. But a protest is a lawful activity. Therefore, the bill is ambiguously named. It is restricting an activity that has been lawful up until now. Protest is lawful, as many members will say, and it is a significant part of our democracy. Many members have asked for examples of why that is true. I intend to provide those examples to illuminate to members what people are so upset about. We need look no further than yesterday’s newspaper, which contains an article on the forest protest down south. The article is entitled “Protesters use ‘car dragon’ to halt logging at WA’s Helms Forest”. Many members who are following this debate—I would expect many south west members to be particularly following this closely— would have seen this article. This article has a picture of a typical protester in the forest. I am holding up a gorgeous photo of protester Dee Patterson. She is sitting in what is called a car dragon, which is a car being used by protesters to halt logging at Helms Forest. I ask members to look at that newspaper article. There is a gorgeous picture of what looks to be a woman in her 70s, laughing. She could be anybody’s grandma. The article states —

A ‘CAR dragon’ has been used to halt logging as protesters step up their fight to save Helms Forest near Nannup in WA’s South-West.

Hon Simon O’Brien: Can the member explain what a car dragon is?

Hon LYNN MacLAREN: The article goes on —

                 Protesters blocked the road with an old car with a hole cut in the floor and positioned over a steel pipe embedded in the road below it.

                On Wednesday morning Dee Patterson had her arm locked into the steel pipe, preventing authorities from shifting the car dragon to clear the road for logging trucks and machinery to access the forest.

These protesters are being targeted by this amendment to the Criminal Code.

Government members: Absolutely!

Hon LYNN MacLAREN: Unfortunately, the proposed amendment that has been put forward not only captures the very gorgeous Dee Patterson, but it also captures lots of other people who are also protesting. I will go into more detail about those people. We have been advised by learned people in this town and throughout the country that this bill will capture these people. The article continues —

                     Ms Patterson is a cockatoo expert and the manager of nearby Jamarri Black Cockatoo Rehabilitation Centre, who has rehabilitated and released more than 100 black, red-tailed, Baudin’s and Carnaby’s cockatoos into Helms.

                     Ms Patterson and her husband David, who passed away in January, have been campaigning for the protection of Helms since 1999.

                    “I am doing this for David. He wanted so badly to protect Helms Forest, and if it came to it to stop the logging himself,” Ms Patterson said.

                    “I spoke to David’s mum about taking this action, and she said, “Do it Dee, do it for David and for the cockatoos”.”  

                    Ms Patterson is currently caring for more than 60 cockatoos including four babies. “We are going to lose the black cockatoos if we don’t stop logging native forests,” she added.

                   “The Barnett Government is pushing them to extinction and I will not sit by while this happens.”  

                   The calls have been echoed by Jess Beckerling, convener of the WA Forest Alliance.

                   She also said new anti-protest laws proposed by the government would see protesters jailed for up to two years but would not stop people from taking necessary stands to prevent the logging of threatened species habitat.

                  It is the latest in a series of protests at Helms, with conservationists locking themselves to bulldozers and machinery.

                 The Forest Products Commission and the WA Government say the native forest timber industry is an important part of the fabric of the South-West region, —

We have heard from many members representing the south west region, especially from the government side —

                with only a fraction of forests selectively logged and old growth forest left untouched.

               “Many local communities rely heavily on the employment and provide services to the industry.

We believe that there is much more to be gained by saving Helms Forest. I want to commend Dee for her actions in that regard. These are the people we are talking about today.

Hon Kate Doust read into Hansard the joint statement from the groups who contacted us, and will contact all MPs today, I believe, to advise them of their opposition to this amendment bill being debated today. Forty- four groups are listed. Members have focused on the Western Australian Farmers Federation. That is because many members in this chamber represent those farmers.

Hon Ken Travers: Claim to!

Hon LYNN MacLAREN: They should be representing them, and that is what we are counting on. I note that at this point in time, unfortunately, many of them are not in the chamber; they are away on urgent parliamentary business. However, I note that a couple of members from this chamber who represent the South West Region are listening to the debate intently, which I appreciate. I know that the others will be listening intently from their offices or they will be monitoring it later. Four more groups have signed on since Hon Kate Doust spoke, which was only half an hour ago. They are in addition to the 44 groups Hon Kate Doust has already listed. They include the Save Beeliar Wetlands group. Hon Sally Talbot and I will soon support that group physically, when it steps up its actions. It also includes the Fremantle Refugee Rights Action Network, the Action for Human Rights Group and the Tamil Eelam Sri Lanka Group. As we speak, this issue is growing. In the last half an hour, more groups have signed on to this letter. As Hon Kate Doust said, they are concerned about the criminalisation of protest. These people are working very hard to make their protests and their voices heard. I know the Attorney General will be interested to hear this: 3 144 people have signed a petition about this in the last couple of days. That petition is going like gangbusters around the online community and will soon be delivered to the Premier. It is directed to the Premier. I am sure that most, if not all, are from Western Australia.

Hon Jim Chown interjected.

Hon LYNN MacLAREN: There are people who care about the democratic right to protest. Most of them, I would assume, or all of them, are Western Australians. There has been some attempt to try to marginalise the opposition to this. Before I review the history of these offences in WA law, I want to read into the record a letter that I received at lunchtime today. It is a letter from the dean of law at Murdoch University and the director of clinical programs, both of whom are equally concerned. In addition to all of the civil society groups we have heard, these learned legal experts have put forward this statement — The Western Australian parliament is today debating the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015. This bill, which is a response to the recent conduct of environmental protestors, is concerning in its scope. While the second reading speech describes it as giving police “the required tools to appropriately deal with the changing tactics of protestors”, closer inspection reveals that is goes much further than what is necessary for the government to do to achieve its own objectives. Any peaceful demonstrator is put under a risk of severe criminal liability for participating in a demonstration, including 12-24 month sentences for newly created offences that need very little or no evidentiary basis.

Hon Alyssa Hayden: They should not put themselves in that position to bully people.

Hon LYNN MacLAREN: I urge members to heed the advice of these learned experts, who have seen a bit in their day and who certainly understand the amendment before us. They are sharing their wisdom with us. I think it is important we have this letter in Hansard. As we go forward in this debate, we can use that wisdom in deciding whether this bill is worthy of our support. The bill does not have my support, and this is why. The authors go on to say —

Hon Alyssa Hayden: It is not wise to put your body at risk in any state, let alone in protest. That is not a wise decision.

Hon LYNN MacLAREN: It is someone’s democratic right to make that decision. The right to protest is not only protected under international law, and forms part of Australia’s international obligations, it is also the cornerstone of our, and any other, democratic system.

Hon Michael Mischin: Does the right to protest include the right to destroy other people’s property?

Hon LYNN MacLAREN: There is nothing about destroying property in this bill. I continue — Australia itself was present in the United Nations Human Rights Council for the 25th Session in March last year; when it called upon States to promote a safe and enabling environment for individuals and groups to exercise their rights to freedom of peaceful assembly, of expression and of association According to the Dean of Law at Murdoch University and the director of clinical programs — The bill is designed to give police the power to arrest and remove protesters before they lock themselves to trees, machinery or other devices in such a way that their removal becomes very difficult. It can be a legitimate aim of the government to prevent or sanction such behavior. The freedom to demonstrate does not include the right to endless blockade or the right to—actively or passively—physically force one’s own will onto others in an unreasonable manner.

Hon Michael Mischin: That is what we are trying to prevent.

Hon LYNN MacLAREN: Exactly. It continues — The problem is that achieving this legitimate goal does not warrant the type of sweeping legislation proposed and the disproportionate penalties prescribed.

Hon Michael Mischin: Do you agree with the proposition that it is legitimate to prevent that sort of protest where people are preventing activities by chaining themselves to trees et cetera?

Hon LYNN MacLAREN: I believe that the second reading speech and the amendment before us do not match up. That is what these people are saying.

Hon Michael Mischin: It is a question of degree. You agree with their aims.

Hon LYNN MacLAREN: The Attorney General is asking me about the Greens’ policy on protests, which I can assure him would be nothing like the Liberals’ policy.

Hon Michael Mischin: I am asking you whether you agree with the proposition of the dean of the law school.

Hon LYNN MacLAREN: I agree with the proposition that we have a democratic right to voice our minds and, at times, we choose to break the law. At times when society is at a point of change, individuals choose to break the law. They did it about the Vietnam War when I was growing up. It is democracy. What about the chap who stood in front of the tanks?

Several members interjected.

The ACTING PRESIDENT (Hon Liz Behjat): Order! Members, obviously this is a highly emotive debate and a topic for discussion and everyone wants to make a contribution. I understand that and we are allowing some latitude on interjections but I ask that you keep them to a minimum.

Hon LYNN MacLAREN: Thank you, Madam Acting President. I continue — As the second reading speech acknowledges, there already exists substantial powers for police to apprehend and arrest protestors. Move on notices are available to police, which, if breached, can result in arrest. There are other powers under the Criminal Code and other legislation which give powers to police to apprehend those on or near certain property. There are multiple options ranging from applying existing law, including the option of claiming damages from those engaging in activities outside the scope of peaceful demonstration to a wording of new legislation that would much more accurately capture what might well be a legitimate interest of the government in such circumstances. By contrast, the bill under consideration is proposing legislation which is so broad, that any citizen would have to think twice about participating in any form of protest for fear of criminal charges arising out of this bill if it became law. After all, on the language of the bill a crime is committed by the protestor if she cannot disprove that there was an intention to prevent a lawful activity. It is hard to see how a protest of more than a few people on a street would not prevent a lawful activity being carried out by others.

Hon Michael Mischin: Well then—there is no offence.

Hon LYNN MacLAREN: It goes on — Even a small demonstration that stops traffic for an hour would fall into this definition.

Hon Michael Mischin: No.

Hon LYNN MacLAREN: It goes on — The drafting of this bill can only be described as extremely loose, in that far from specifically targeting the issue it purports to address, it sweeps within its purview any ‘thing’ which in the circumstances give ‘reasonable grounds for suspecting’ will be used in a protest. History has taught us over and over again, that when law is broad and discretionary it is open to abuse. The Courts could, of course, limit the scope of such broad legislation by way of interpretation but that will leave potential protestors with all the risk of not knowing whether they are acting legally or might face jail time. If nothing else this legislation will have a chilling effect on any and all potential demonstrations or protests. The bill is designed to give police the power to arrest and remove protesters before they lock themselves to trees, machinery or other devices in such a way that their removal becomes very difficult or impossible thus ensuring ongoing disruption of conduct that the protestors oppose. It can be a legitimate aim of the government to prevent or sanction such behavior. The freedom to demonstrate does not include the right to endless blockade or the right to—actively or passively—physically force one’s own will onto others in an unreasonable manner. The problem is that achieving this legitimate goal does not warrant the type of sweeping legislation proposed and the disproportionate penalties prescribed. No matter where one stands politically, the proposed measures are an unnecessary and therefore disproportionate restriction of a core democratic right. They need to be reconsidered.

Hon Michael Mischin: You have already just admitted through that, other provisions can theoretically prevent legitimate, peaceful protests, yet they are not used for that purpose. What makes you think this, which is far narrower, can achieve, or will achieve, that sort of unnecessary and undesirable result?

Hon LYNN MacLAREN: I think that if the Attorney General puts forward a bill that tries to achieve what the learned dean has told us is achievable, we will debate that bill. This is not that bill. This Criminal Code Amendment (Prevention of Lawful Activity) Bill is way out of scope and does not achieve what he intends. That is my legitimate criticism, and the criticism that has been expressed to us by many different sources. It is not just civil society as Hon Kate Doust had read from the unions; it is not just WACOSS.

Point of Order Hon MICHAEL MISCHIN: I call on the member to table the document.

Hon Ken Travers: You can’t, you idiot; you have to go through the motion of asking the member to identify it.

Hon Michael Mischin: She has already identified it, idiot.

The ACTING PRESIDENT (Hon Liz Behjat): Order! Is the Attorney General making a point of order?

Hon MICHAEL MISCHIN: I am asking the member to table the document she has referred to so that it can be considered.

The ACTING PRESIDENT: You have been asked to table the document you have been reading from. Would you like to do that?

Hon LYNN MacLAREN: I would be delighted to table the document I have been reading from. Will the Attorney General promise to read it?

Hon Sally Talbot interjected.

The ACTING PRESIDENT: Unfortunately, that is not a question I can put to the chamber.

Leave granted. [See paper 2630.]

Debate Resumed Hon LYNN MacLAREN: Thank you, Hon Sally Talbot, for that joke. We have been advised that this amendment criminalises peaceful protest; it criminalises peaceful civil disobedience. When the official channels have failed them, non-violent direct action has been used by people from all over Western Australia throughout history to establish and protect rights and to protect the places they love. Church leaders, farmers, footballers, mothers and grandmothers—do members remember the save oldgrowth forest protesters when the footballers went there; it was great. Academics, lawyers, doctors, truck drivers and many more concerned citizens have at all times engaged in non-violent direct action to physically prevent something from occurring that they believe in so strongly that they are prepared to put their bodies or trucks on the line. This bill seeks to criminalise those concerned citizens. On 6 March, when we became aware of this drastic overreach, I released a media statement that was subsequently picked up. I recognise in Hon Darren West’s contribution some quotes from it, but he left out some things.

We said the following — The Barnett Government’s new Crime Bill may be a drastic overreach that destroys the democratic right to lawful protest,

           Greens MLC Lynn MacLaren says. “The Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 contains a raft of concerning elements aimed at criminalising activists,”

          “I am concerned that this Bill could lead to extremely oppressive policing of protests, effectively giving police a reason to search every vehicle, bag and person going to a protest.

          “We have already seen police officers unnecessarily strip searching protesters and I’d be very concerned that a section like this could lead to routine oppressive searching of non-violent protesters.

         “The Bill also proposes to make it an offence to possess a thing for the purpose of trespass but this section is so broad that it seems could cover any ‘thing’.

          “They also propose charging people suspected of these new offenses for police time. This is clearly out of step as offenses such as murder, violent assault, or robbery, have no such ‘law enforcement’ payment.

“People who engage in lawful, non-violent protest in the public interest should not be liable for police time for dealing with a protest—that would be wholly disproportionate. I had a look at how this came about. From the briefing that I had—I thank the Minister for Police for that briefing—we looked back in history and it appears that the government has come full circle.

If members look at Section 82B(3) of the former Police Act there were two offences that deal with hindering lawful activities. According to the Law Reform Commission’s report in 1992 there was considerable overlap between them. These offences were introduced to deal with “the problem of demonstrations.” I want to quote from that Law Reform Commission report because it is an important part of Western Australian history. There were a couple of sections that it was suggesting should be deleted: section 67(4) was inserted in the act in 1978. The justification given for this new offence was that — … it was necessary to prevent coercive interference with the activities of licence holders, and that the Government had a duty to protect licences issued by it. It appears that the Government was principally concerned about the activities of anti-whaling protests in Albany.

Section 82B(3) provides, and I quote —

              (3) A person shall not, without lawful authority, prevent, obstruct, or hinder any lawful activity which is being, or is about to be, carried on upon any premises.

              Penalty: $500 or 6 months’ imprisonment. It is surprising now to reflect on those penalties and how they have changed over time. It would be remiss of me not to mention that we still want to see a reform of penalties so that they are in keeping with one’s income. We know that people with a high income who are paying a low penalty do not actually have the same deterrent effect as people with a low income who have an extremely high penalty. I may want to come back to this in committee when we look at the provisions of this amendment in detail. The offence that I just talked about was inserted into the Police Act in 1980. It would be interesting to find out whether any prosecution was successful, and with what result. The Law Reform Commission recommended abolishing this provision, and its reasons are still valid. They apply to this bill before the house. The commission’s recommendations to repeal the provisions were as follows — 1. Section 67(4) is drafted in obscure and vague terms. 2. Section 82B(3), with its reference to “lawful activity” in conjunction with “lawful authority”, is drafted in very wide terms. 3. Demonstrators can be dealt with by other offences, such as disorderly conduct, entering premises for an unlawful purpose or without lawful excuse or remaining on premises without lawful authority after being requested to leave. 4. There are adequate civil remedies, such as an injunction and proceedings under the Trade Practices Act 1974 (Cth), to protect lawful activities, particularly commercial activities. Finally, the Law Reform Commission had two more points — 5. There is no equivalent of either provision in the police legislation of any other Australian jurisdiction. 6. Few, if any, charges are laid under these provisions. That is last time we saw this type of provision and, clearly, there were good reasons for getting rid of it. As I have mentioned, there have been recent protests in our south west. They involve a number of people who are repeatedly trying to protect our native forests from logging. However, that is only one view of the civil unrest that is occurring in Western Australia. I have a short list of 21 different protest groups who are currently engaged in protest action because they are not happy with the way things are and they are trying to change society. They are trying to speak up for people who are disadvantaged or vulnerable; or they are trying to get our attention that there is an injustice occurring. These protesters, who will be very interested to hear the outcome of our debate today, were the ones who were marching in March, only two weeks ago. They had a range of different issues; I know the unions were there, I know the anti-GMO protesters were there, and possibly the people who are crying out for internet freedoms were there. The refugee rights action network was also there. They hold a regular walk for refugees, which is coming up on Palm Sunday. There are the people in Helm’s Forest who yesterday used a car to halt logging. There has been a proposed late-night train slumber party. This was cancelled because the Minister for Transport decided that instead of stopping the late-night trains he would keep that going for a while. These protesters were fully prepared to spend their night in the train station in their PJs to have their point heard. There was also the Heirisson Island protest on 3 March against the remote community closures. I have a note here, and I missed this at the time, but Hon Peter Collier, the Leader of the House, dismissed that protest and said it was premature. That is kind of interesting in hindsight. On 4 March there was a “Save our Services” rally for public services’ pay rates, Medicare and penalty rates. Up here at the house on 7 March there was a great rally for deaths in custody, trying to draw attention to the death of Ms Dhu and calling for an inquiry into deaths in custody and the lack of action or the slow action to stop those deaths. “Save Mowen Forest” had a protest on the first day we sat with many protesters who came up from Margaret River. They brought a cheque for $90 000 to try and save their forest. Several days later they met with not the minister, but a representative of the minister, who told them to take their money away. They have taken that cheque away but it is still gathering momentum. While they are protesting in the forest even as we speak, they are still prepared to buy that forest instead of seeing it logged. We believe that the price they are offering is more than fair for the amount of profit that the Forest Products Commission would gain from logging that irreplaceable forest. There was also the “Justice for Reza Berati” rally on 20 February; the Invasion Day protest on 26 January, which used to be known as “Sorry Day.” There was a march in May to protest the Abbott budget; the seniors protested their pension and the concession cuts last year. Every Saturday there is now a walk along the path of Roe 8 to save Beeliar. When I was on the march there were about 50 people there. It was amazing; it was a very good march and a beautiful day. We walked where they are planning to put that six-lane highway through that beautiful wetland. There is the “No Gas for James Price Point” protest, which is potentially particularly relevant to the legislation before us. We hope to find out more about that as more speakers are able to give their second reading contributions. Of course, last year—this was mentioned in the minister’s second reading speech—there was that tremendous turnout against the shark cull on the beaches in Cottesloe. The protesters have returned every few months, in smaller numbers, but those people were protesting and are listening to this debate today and are very concerned about whether they are going to be considered having the intent to maybe stop the drum lines; I do not know.

Hon Michael Mischin: How do they fit within this legislation?

Hon LYNN MacLAREN: They are in the minister’s second reading speech. Tell me how they fit in this legislation!

The ACTING PRESIDENT (Hon Liz Behjat): Order!

Hon Michael Mischin: You are saying that they will; explain how this applies to them.

Hon Ken Travers: She is trying to but you keep interrupting her!

Hon Michael Mischin: She is reading out a list of protests —

The ACTING PRESIDENT: Order!

Attorney General! The use of “she” in the chamber when you are speaking of another member is not appropriate by way of interjection or otherwise.

Hon LYNN MacLAREN: I agree that the list is quite long. I am almost to the end of it. There was a protest against the amendments to the Aboriginal Heritage Act; I am sure we will hear more from those protesters. There was a protest about the deregulation of university fees. There was a protest for marriage equality, which happens every year. I often go along to those and support those people. There was a frack-free WA protest. There was a nuclear-free protest in WA and also Stand Up for the Burrup. They are just a few of the citizens around Western Australia who are concerned enough about the way things are to protest. Those are the people who are very concerned about these amendments. They have been told by learned people that these laws will draw them in and that their lawful and peaceful demonstrations will no longer be permitted, and they will be risking criminalisation if they stand up and speak out against government policy and the way things are. That is why we are opposing this legislation. It is our contention that the bill criminalises civil dissent when people put their own bodies in front of bulldozers. Members have to agree with that. This is aggravation. When someone puts their body in front of a bulldozer, on our advice, that person will be triggering these offences.

Hon Michael Mischin: You need to get yourself another lawyer because that is not the way this legislation is framed nor is it how it will work.

Hon LYNN MacLAREN: I see that it was not the government’s intent to frame it that way perhaps, but perhaps it was; I am sure the Attorney General will have an opportunity to express — Hon Michael Mischin interjected. Hon LYNN MacLAREN: Why does the Attorney General not take that as a question to answer in his speech in reply, because it is our contention that it would be considered aggravation, and I think that is what we learned in the briefing, because someone is putting themselves at risk and in danger if they stand in front of a bulldozer? I would like the Attorney General to expand on that when he replies to the second reading debate. Is the Attorney General saying that what I was told in the briefing is incorrect, because we need that clarified?

Hon Michael Mischin: I am suggesting you did not understand the briefing.

The ACTING PRESIDENT (Hon Liz Behjat): Order! Members, perhaps if we can go back to the rules of the chamber 101. This is the second reading debate of a bill. One person at a time has a chance to put what they feel about that bill. During the course of that time they may pose questions to the member of the government who introduced the bill. At the appropriate time that government member will respond to that. If members want questions going across the chamber the whole time, that is what we do in the committee stage. They are the stages of the bill and that is what we will stick to today.

Hon LYNN MacLAREN: Several times in this debate we have already discussed civil disobedience and its role in democratic society. I want to briefly talk about that. The Fitzroy Legal Service describes civil disobedience on its website; it is one of the guides that activists use, if anybody needs to have an update on their activism skills. It reads — Civil disobedience is the deliberate and conscious refusal to obey, or violation of, a law believed to be unjust. Civil disobedience has a long history and has played an important role in many activist traditions. The deliberate violation of laws has played a crucial part in Australian activist history. Hon Alyssa Hayden, who was questioning this earlier, might find this of some interest — The Aboriginal land rights and civil rights movement, union struggles for wages and the eight hour day, women’s campaigns for the vote, and the modern peace, social justice and environmental movements have all been affected. Hundreds of people have been arrested in large civil disobedience actions throughout Australia at many protests against US bases, uranium mines, asylum seeker detention centres and blockades of old growth logging operations. A famous and influential theorist of civil disobedience in the western world was Henry David Thoreau. Thoreau refused to pay a poll tax and spent one night in jail. He argued that the tax supported slavery and the aggressive US war against Mexico, both of which he opposed. Thoreau’s essay, On the Duty of Civil Disobedience (1849), influenced Gandhi, Martin Luther King, and countless other activists. He said, “It is not desirable to cultivate a respect for the law, so much for the right Law never made men a whit more just; and by means of their respect for it, even the well-disposed are daily made the agents of injustice ... the demands of conscience are higher than the demands of the law.” The argument that the demands of conscience are higher than the demands of the law is central to all civil disobedience. Civil disobedience on the individual level tries to influence by example. The peace activist who refuses to obey a ‘Keep Out’ sign at a military base may hope that others will oppose militarism or war in their own ways after witnessing this civil disobedience. Sometimes the civil disobedience is aimed at challenging or undermining the authority of a particular law, such as when Aboriginal and non-aboriginal activists deliberately broke racist segregation laws during the Freedom Rides in the 1960’s. Public displays of outright defiance of a law served to delegitimise the repressive law, undermine public acceptance of it and encourage others to oppose it. Ultimately civil disobedience can aim to influence public and institutional opinion in order to change the unjust law or abolish the unjust policy. In theory, civil disobedience focuses on the law itself and not on the police who enforce it. In its most sophisticated form, civil disobedience seeks to undermine support for the law even within the police, courts and legal system. Civil disobedience can also aim to “clog the machine” (in Thoreau’s phrase) with political prisoners; to get into court where activists can challenge the constitutionality of a law; to put an end to your personal complicity in the injustice which flows from obedience to unjust law—some combination of these. ... ‘Direct action’ is a term that is often misunderstood. To act directly is to address the actual issue of your concern. If you’re working against hunger, it might be simply giving someone a meal. If you’re working against homelessness, it might be taking over an abandoned house and making it habitable. If you want to stop military spending, it might be refusing to pay your income taxes. Direct action differs from symbolic protest action, which is lobbying someone in authority to change his or her policies. An advantage to direct action is that it doesn’t require the cooperation of the authority to be effective. If the police or authorities intervene to stop your action, you are able to expose the injustice; if they ignore you, you have acted against the injustice and can continue following it further. Since the action in itself has a direct effect, it has a power and strength. In practice, the most effective actions are both direct and symbolic. Civil disobedience is often carefully planned and can lead to severe legal consequences. It is often a highly effective and high profile part of a direct action campaign. By itself, civil disobedience is not a strategy, but a tactic that can form an important part of many campaigns and movements for change. … Many people have argued that civil disobedience cannot be justified in a democracy. That was the question posed by the activist rights network at that time. I wanted to go into a bit more detail because Hon Kate Doust mentioned a particularly high-profile protest action that occurred recently, when the strip searching occurred. I wanted to mention it at this point because that was a particularly poignant act of peaceful civil disobedience. It was composed of a group of people of all ages who sat and prayed in the electorate office of the Minister for Foreign Affairs; the office is in this state. A report in news.com.au in December last year reads — A FEMALE priest and a mother with her infant were among eight people strip searched and charged following a peaceful protest over asylum seekers at Julie Bishop’s electorate office this week. Staged sit-ins saw 53 Christian leaders arrested or forcibly removed from electorate offices of Government MPs across Australia on Wednesday, calling for the release of detained asylum-seeker children. Most of those involved in the sit-ins were arrested and released without charge, but those praying in the Foreign Minister’s Subiaco office were arrested, stripsearched and then charged with trespass. Reverend Lorna Green was one of the protesters taken to the Perth Watch House where she says she was stripped naked and searched. “I was outraged to be stripped naked to be searched for drugs and firearms, but I’m even more outraged at the way our government is treating helpless babies,” she said. In a statement prepared for news.com.au, a spokeswoman for WA Police confirmed eight people had been charged after police were called to Ms Bishop’s electoral office and would appear in court at a later date. “The group allegedly refused to leave, with police continuing to negotiate with them for more than an hour,” she said. “The group were fully advised they would face charged and as such undergo standard procedures at the Perth Watch House if they didn’t comply. “The protesters still refused to leave and were arrested and conveyed to the Perth Watch House.” The prayer sessions were coordinated by Christian protest group Love Makes a Way. A spokeswoman from the group said they were “disappointed that a group of Christians who had been praying peacefully for eight hours in one spot were suddenly being stripsearched for drugs and weapons”. I point this out because according to this article the sit-ins took place on Human Rights Day last year in seven offices around the country, and I want to contrast the outcomes.

The article continues —

• Immigration Minister Scott Morrison’s Sydney office (9 arrests, released without charge).

• Attorney-General George Brandis’s Brisbane office (5 arrests, released without charge)

• Senator Zed Seselja’s Canberra office (5 arrests, released without charge).

• Jamie Briggs’ Adelaide office (5 arrested, formally charged with trespass).

• Josh Frydenberg’s Melbourne office (10 people forcibly removed, released without charge).

• Kelly O’Dwyer’s Melbourne offices (11 people forcibly removed, released without charge).

But here, in Western Australia, in foreign minister Julie Bishop’s office, there were eight arrests, and the protesters were stripsearched and formally charged with trespass.

Hon Michael Mischin: They were warned about the consequences and they chose to accept those consequences.

Hon LYNN MacLAREN: Is there any way that the Attorney General cannot understand the sensitivities amongst people in Western Australia who are trying to protest peacefully when the government tries to step up the law and make it even more onerous and capture even more people? Peaceful prayer sit-ins are held in electorate offices and around the country and there are no charges, with the exception of Adelaide, and we see how people here in Western Australia are treated. I do not understand why that happened. I would be delighted to find out why. That is not the purpose of this bill, but I can say that that is one reason that protest movements, ranging from farmers who want decent prices for their wheat all the way to those people fighting against children in detention, are concerned about any laws that try to prohibit their peaceful demonstrations. In this state, we are talking about criminalisation of peaceful protests because of the government’s intent to stop unlawful activity. This bill relates to the “intent” and the “preparation of” and not to the actual event itself. So, even thinking about or preparing for such action is proposed to be unlawful. Someone who goes into a welder’s workshop where at one time some thumb locks or something were created can be captured by the definition of “preparation” in this bill. Have I sent one too many emails to Amnesty International about logging in Western Australia or about treatment of refugees?

Hon Peter Katsambanis: Last time I looked, Western Australia had no responsibility for refugee treatment.

Hon LYNN MacLAREN: Actually, it does because mental health services in Western Australia look after refugees and I appreciate the fact that they do. I asked a question about that recently.

Hon Peter Katsambanis: You know that’s not what you were referring to.

Hon LYNN MacLAREN: Is that intent? Is that intent? That is the question! Several members interjected.

The ACTING PRESIDENT (Hon Liz Behjat): Order! Let us get back to the subject at hand.

Hon LYNN MacLAREN: All of these actions are protests. Hon Kate Doust mentioned Martin Luther King Jr and the civil rights movement in the United States. I do not want to go into a lot of detail—Hon Kate Doust went into some detail, which I appreciated—but one of the very important quotes that affects me and I know affects many people in Western Australia in the protest movement is — Our lives begin to end the day we become silent about things that matter. That is why people are concerned about these laws. They do not want to be silenced. It is really important that we hear those voices of protest and to realise that sometimes they have to go to extremes to be heard. I know that the Mowen forest protesters have had many protests that have not been covered in the media and Western Australians would not know about most of their actions, so sometimes escalating an action and deciding to make that difficult decision about locking on is taken because it is necessary in order to be heard. That is the role of civil disobedience. All these actions of protest, resistance and intervention have in common is that there is no physical violence involved. People usually do not move. They are calm. They put their body in the way of the authority or the private company that acts in a way that is not compatible with the conscience of the activist. Through this amendment bill the government proposes to convert these actions without physical violence as physical actions through the trick of definition. Simply putting your body on the line and endangering yourself will be defined as acting physically. This definition is too broad and would apply to the person who stood in front of the tank in Tiananmen Square in China. It would apply to the Indigenous elders at James Price Point who sat in the road in front of the drill rigs and the exploration crew. Although the government says that the bill targets only people using lock-on devices and ropes in forest protest actions or at James Price Point, this bill will actually apply to everybody who stands up in the way of machines and cars and locks the gate or even has a sit-in on a road. Every action that might cause damage to property or possibly endanger the life of the protester or other people will fall under this bill because those actions prevent lawful activities being carried on. Let us find out more about the Australian history of civil disobedience.

I cite an article by David Ritter, a WA lawyer and chief executive officer of Greenpeace Australia Pacific, in The Drum titled “Coal, climate and civil disobedience”. I will quote only a couple of paragraphs, which read — Committing acts of civil disobedience does not mean disrespecting the rule of law itself. Indeed, by being prepared to accept the legal consequences of their actions, citizen activists show their fidelity to the rule of law per se. In the past in Australia, people of conscience have acted up against entrenched racism, in support of women getting the vote, to achieve fair pay and conditions for workers, to save iconic wild places like the Franklin River, and to end our participation in the Vietnam War. On all of these issues and others, plucky men and women of conscience were not afraid to take a stand and great social and political progress was the fruit of their courage. Today in Australia, the profound global threat posed by climate change and the specific consequences for our country could not be clearer. And the angry summer of 2012–13 gave us a disturbing taste of what climate change means for our nation. Yet despite the dire warnings and punishing weather, none of the major parties are proposing any action to curb Australia’s single largest contribution to climate change, namely our coal export trade. Already, the contribution to global warming of our exported coal when burned in overseas power stations is at around 140 per cent of domestic emissions production on 2011–12 figures. Yet this physical reality is a political taboo. Already, the contribution to global warming of our exported coal when burned in overseas power stations is at around 140 per cent of domestic emissions production on 2011–12 figures. Yet this physical reality is a political taboo. The response of Environment Minister Tony Burke to last week’s boarding of the coal ship could not have been more telling … “Our position is that we dealt with the issue of Australia’s emissions when we introduced the carbon price.”

The Minister’s position is indeed a fair and truthful reflection of the Commonwealth Government’s view on the matter, but like all political spin, his words concealed a deeper untruth. It is logically untenable to claim to have “dealt with the issue of Australia’s emissions” for so long as nothing is being done about the proposed expansion of our coal export trade. According to data assembled by the Commonwealth Bureau of Resource and Energy Economics, over the next five years the coal industry plans to add new thermal coal mining capacity equivalent to twice 2012 exports. The planned increase of Australia’s coal industry is the second largest of 14 major fossil fuel growth enterprises globally which would collectively almost certainly push the world beyond two degrees of warming. In a liberal democracy, citizens confronting a wrong are presented with a range of lawful options for making their views heard. These include rights under administrative law and such other procedural and legal mechanisms as may exist, campaigning through the media and in the community, political lobbying, and electoral participation. Despite years of committed effort by thousands of Australian citizens, all available lawful options have proven wholly inadequate and ineffective for reining in the coal industry which is hell-bent on reckless expansion. In Queensland, for example, what is ostensibly due process is leading to the construction of up to nine new coal mines in the Galilee Basin and up to nine new coal terminals on the Great Barrier Reef World Heritage Coast. The plain truth is that the existing regulatory process does not function to prevent coal mines from being built, so much as legitimise their construction, regardless of the climate and other environmental consequences. It is the gulf between the scale and immediacy of the threat posed by the radical expansion of the coal industry and the absence of effective lawful options to address the hazard that creates the conditions in which civil disobedience is justified. The clock is ticking, the storms roll in and the temperature is rising, but our politicians wash their hands of responsibility. A discontented autumn is upon us. Professor Clive Hamilton, Vice-Chancellor’s Chair at the Centre for Applied Philosophy and Public Ethics at Charles Sturt University, is another person who has written extensively about this topic. His article “When the time comes to disobey: civil disobedience and coal”, published on The Conversation website of 24 April 2013, refers to a recent decision of the influential Sierra Club in the United States and states — To date the campaign to protect Earth’s climate has been mostly law-abiding. But that is changing as campaigners, including many young people, accept that they must take greater risks. In 1960 Bertrand Russell defended the need for direct action in a time of “utmost peril” and called on those feeling disempowered to engage in direct action because “you will be doing something important to preserve your family, compatriots and the world”. Over the last 20 years environment groups around the world have been models of civic decorum, playing the conventional game of political lobbying and public relations. But some have tired of being fobbed off with promises. Sorry, I need a drink. Hon Michael Mischin: So do I. Hon Sue Ellery: Don’t we all! Hon LYNN MacLAREN: Actually, there is tea and coffee available if members feel the need. The article continues — In the United States, under pressure from members exasperated with the political system, the Sierra Club, the nation’s biggest, oldest and most venerable conservation organisation, has now endorsed non-violent civil disobedience as a response to the opening up of new sources of fossil energy. The Sierra Club’s Canadian spokesman put it succinctly: Science, logic and huge public support for action have all been thwarted by the fossil fuel industry and governments that do their bidding. People of conscience have been left with nowhere else to turn. The same could be said for Australia, and that is why the Greenpeace action is not only to be expected, but has been a long time coming. In a recent opinion piece flagging a change in direction, Greenpeace chief executive David Ritter wrote of the betrayal of our political system in the face of repeated warnings about climate disruption. “Civil disobedience is about peacefully standing up for a fair go or to stop something precious from being destroyed,” he wrote. The political systems of nations like Australia have proven incapable of responding to the increasingly dire warnings of the world’s most authoritative climate scientists, including those gathered in the most prestigious scientific academies. Every week we read new and more alarming evidence of the scale of the threat. The annual ice melt in the Antarctic has accelerated dramatically in recent decades. The Arctic is described as being in a “death spiral”. Feedback effects are kicking in earlier than expected with melting permafrost releasing methane and carbon dioxide into the atmosphere. The warnings have become so clamorous that bodies as conservative as the IMF and the World Bank have called for immediate action. IMF chief Christine Lagarde recently declared that without rapid action to counter global warming, the next generation would be “roasted, toasted, fried and grilled”. As the evidence of the peril mounts, global carbon emissions are not falling or even slowing, but accelerating, as if humanity has some kind of death wish. Unless stopped, the rapid expansion of Australia’s coal exports will be a major contributor to the destabilisation of Earth’s climate in the coming decades. The effects will last for centuries. Australia’s total greenhouse gas emissions last year were 550 million tonnes. With a coal mining boom now underway, by 2025 annual emissions from Australia’s coal exports are expected to reach somewhere between 1300 and 1700 million tonnes. Every tonne of coal Australia exports causes damage to the wellbeing of future generations. In a situation where the facts overwhelmingly demand sweeping measures to protect humanity yet our political system seems unwilling to respond, what is a concerned citizen to do? In a land where the voters can choose between a party that believes in incremental progress (while overseeing a rush to accelerate coal exports) and one that is dominated by deniers who refuse to accept the scientific facts, how can anyone make a difference? Is it enough, for a person of conscience, to sit back and wait for the harms to become intolerable? For some, including the Greenpeace activists, the situation is impossible. When all legitimate means have been exhausted, the only alternative to apathy and despair appears to be civil disobedience. They feel that their duty to a higher law overwhelms their allegiance to those on the statute books. Such a duty can never endorse violence, but that does not rule out physical acts aimed at preventing the harm being done. The kind of action taken by the activists from the Rainbow Warrior shines a light on the hypocrisy of authorities who use smooth words to persuade us that they accept the danger yet vigorously promote the activities that are making it worse. We can expect today’s dramatic events to be the opening shot in a long campaign.

Hon Peter Katsambanis: Was that on Clive Hamilton?

Hon LYNN MacLAREN: That was Clive Hamilton’s article “When the time comes to disobey: civil disobedience and coal” published on The Conversation website on 24 April 2013.

Hon Peter Katsambanis: Do you also like what he said in 2007, when he called for the suspension of the democratic process, which would have led to the closure of this place?

Hon LYNN MacLAREN: That is not my second reading contribution, but it could be the member’s.

Hon Peter Katsambanis: Do you want to just say yes or no? Do you want us to suspend the democratic process like he does?

Hon LYNN MacLAREN: No; I would just like the government to withdraw this bill. That would be enough for now.

The ACTING PRESIDENT (Hon Liz Behjat): Order. I am not listening.

Hon LYNN MacLAREN: There was something else from Clive Hamilton on Crikey that I wanted to share with members, but it is not what the member is looking for. It is a very brief comment about the British Greenpeace protesters who scaled the smokestack of the Kingsnorth coal-fired power plant in Kent and painted a slogan on it. It reads — They were arrested and charged with criminal damage. In court they did not dispute that they had caused damage but argued that they acted to prevent a greater harm—the damage to the atmosphere being caused by carbon dioxide emissions from Kingsnorth. … The jury in the Kingsnorth trial heard the arguments from defence and prosecution. They accepted that the protesters had a lawful excuse for damaging the power plant and acquitted them. The law was applied and they were found not guilty. This is just a bit of a happy thought for our protesters in the south west. Public interest defences are currently found in Western Australian law and the most prominent of these is in a citizen’s arrest. In this case, the legislators have given the person the right to act in defence of a higher common good. One could argue that people putting their life and personal safety on the line for a higher common good could equally be protected under the law. On several occasions I have mentioned how international law is being violated under the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015. The advice that I have again from those who are more learned than I is that the bill violates multiple fundamental rights recognised and protected under the International Covenant on Civil and Political Rights.

Hon Michael Mischin: Which ones?

Hon LYNN MacLAREN: I was just about to get there. The International Covenant on Civil and Political Rights was ratified in Australia in 1980. The ICCPR obliges all levels of government at the state level, including Western Australia, to respect, protect and fulfil the human rights articulated in the ICCPR. The bill violates the rights to peaceful assembly and freedom of expression as contained in the ICCPR, although some restrictions may be placed on these rights, for example, to ensure public safety.

Hon Michael Mischin: And the rest! Which article is the member talking about specifically?

 Hon LYNN MacLAREN: I hope to get to that. The matters in the bill are disproportionate again. Article 19(2) of the ICCPR provides that — Everyone shall have the right to freedom of expression … This freedom is a necessary condition for the realisation of the principles of transparency and accountability. Several members interjected.

The ACTING PRESIDENT (Hon Liz Behjat): Order, members! Hon Ken Travers, this is not helpful.

Hon LYNN MacLAREN: This freedom is a necessary condition for the realisation of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights. Under article 19(3), the right to freedom of expression may only be restricted by measures provided by law and necessary to respect the rights and reputations of others, or for the protection of national security, public order or public health or morals. The bill, which restricts the right to freedom of expression by criminalising the exercise of this right in particular circumstances, goes beyond what is a permissible limitation for the following reasons: limitations on the right to freedom of expression must conform to the strict tests of proportionality and necessity of the measures under the bill, they must seriously encroach on personal rights, and limitations on free speech must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly. Key provisions of the bill are ambiguously drafted or unnecessarily broad, resulting in a legislative framework under which individuals may not know whether their conduct constitutes a criminal offence —

Hon Michael Mischin: They will know if they read the legislation.

Hon LYNN MacLAREN: The only thing they have read is the legislation. These provisions will be triggered if a protester or person prevents lawful activity. The bill does not define the word “prevent”, the threshold for triggering the relevant offences that would be met in many possibly unintended circumstances. Debate interrupted, pursuant to standing orders.

[Continued on page 1161.] Sitting suspended from 4.15 to 4.30 pm