CRIMINAL CODE AMENDMENT (PREVENTION OF LAWFUL ACTIVITY) BILL 2015 - continued

Resumed from an earlier stage of the sitting.

HON LYNN MacLAREN (South Metropolitan) [5.09 pm]: Before our attention was captured by question time, I was discussing the international human rights obligations that the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 may well violate. At that time, I believe the Attorney General was seeking further information and I wanted to draw to his attention the advice that we have received. We understand that many of the measures in the bill seriously encroach on personal rights and inappropriately prioritise commercial and economic interests over fundamental human rights, such as the right to liberty. Criminalising other legitimate protesting activity and attaching severe mandatory penalties is far beyond the least intrusive method to achieving the protective function that the bill serves. I have already touched on the first of the three points that were brought to my attention by this particular group of legal minds; that is, this bill represents a serious breach of our international obligations. The second point is that it is unnecessary, as police have sufficient power under existing legislation. The third point is that it also compromises the very nature of our democracy.

On the second point, which is that it is unnecessary, the second reading speech implies that the aim of the legislation is to target specific protest behaviour when protesters use devices that are not easily removed by police. As is acknowledged in the speech, substantial powers already exist for police to apprehend and arrest protesters. Move-on notices are available to police, which, if breached, can result in arrest. Other powers under the Criminal Code and other legislation are given to police to apprehend those on or near certain property. The submission that I received indicates that the new provisions are unnecessary. I will at a later time have an opportunity to go into detail about the existing provisions, particularly for forest protesters.

Finally, on the point that it compromises the very nature of our democracy, the United Nations special rapporteur on the right to freedom of peaceful assembly, Maina Kiai, has said —

                 In democratic societies, demonstrations and protests are key to raising awareness about human rights, political, social concerns, including regarding environmental, labour or economic issues, and of holding not just governments, but also corporations accountable.

He also said —

               Authorities not only have the duty to protect public safety and order as well as the rights and freedoms of others, but also the obligation to facilitate the holding of peaceful assemblies … Public space must be made available for individuals and groups in order for them to exercise their fundamental freedoms.

             Enforcing the law includes the implementation of human rights law, without which there would be no security, no justice …

These comments sum up the central importance of the right to protest to a healthy democracy. This year saw global celebrations for the anniversary of the civil rights movement in the United States, which achieved so much. In implementing this law, which heads in the opposite direction, Western Australia will make itself a pariah state. I have already mentioned that Australia was present at the Human Rights Council for the twentyfifth session on 24 March last year and the statement that we signed on to at that time.

Finally, the provisions may be unconstitutional and subject to challenge. The High Court of Australia has inferred freedom of opinion and expression. This can be limited only by laws that are reasonably appropriate and adapted to serving the legitimate functioning of a responsible government. I had something else on that very matter from one of the people learned in the law at the University of Tasmania. Tasmania recently passed a similar bill, but our bill has improved upon that bill. At that time, it was looked at very carefully. Professor Ben Bartl has advised us —

                 The Bill also raises constitutional concerns insofar as it impacts on the implied freedom of political communication guaranteed by the electoral provisions of the Constitution. While such a freedom is not absolute, it is designed to ensure that the Australian                    public is able to freely discuss, exchange and publicise matters of public interest, particularly where those matters might inform the electoral process. Insofar as the Bill is designed to limit the use of ‘things’ at protests it would appear to “effectively burden                  freedom of communication about government or political matters,” the first arm of the test laid down by the High Court in Lange v Australian Broadcast Corporation for the determination of whether the implied freedom has been infringed. It should be noted                    that the implied freedom covers all forms of expression, or actions designed to raise awareness through nonverbal means. The second arm of that  test requires consideration as to whether there is a ‘legitimate end’ to the legislation, and, if so, whether the                  achievement of that legitimate end is ‘reasonably appropriate and adapted’ to the freedom to communicate on government and political matters. It is arguable that the wide-meaning given to ‘thing’ will not be constitutionally valid.

He has given me his contact details if he can be of any further assistance.

At this point I want to thank all the organisations that contacted me and provided me with their expert opinion and comments. The government did not consult with the activists, the not-for-profit sector, the unions, civil society organisations or the churches. My office has been consulting with a wide range of community organisations over the past few days, and we have received clear disapproving comments, including those following. We also contacted Mr David Kaye from the University of California Irvine school of law, who is the United Nations special rapporteur on the right to freedom of opinion and expression. I have not yet heard back from him. I believe it is on the other side of the planet, and they might be asleep. They will wake up, though, and talk to us tomorrow. I am hoping to include his comments, because he was very keen to make them. I believe he made some comments on the Tasmanian law.

The Uniting Church wrote to me. I have to mention this, because Hon Kate Doust mentioned the community groups that got together this week to discuss this. Among the people who were deeply concerned about this legislation were the people from the Uniting Church, UnionsWA, the Conservation Council of Western Australia and many of the activist groups involved in that long list of protest actions that I gave earlier in my second reading contribution. It is very important, because it is not easy to get a quick opinion from an organisation like the Uniting Church. There are several levels of bureaucracy to get through to get that statement, and it is very important today for me to read it in —

              The Uniting Church Synod of WA has noted with some concern the introduction of the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 into state parliament. We are a Church with a history of non-violent civil disobedient protest when our                   consciences dictate that opposition to a circumstance or law in our community requires such action. In these cases we do of course expect that we will be treated with the usual due process of our justice system. We note that you have expressed some                     alarm about the bill, and want to thank you for expressing these concerns. While we recognise the rights of groups and individuals to conduct their lawful activities, we are concerned too about the lack of community consultation around this new measure, and               the possibility that if passed, this bill will endanger people to undue harassment and stress whilst undertaking peaceful protests in WA. Other key concerns we have with the proposed bill are in regards to the severity of the penalties imposed, the reversal of                 onus of proof, the singling out of protesters to pay for police resources and the broad and vague wording allowing for wide interpretation of the laws. We would appreciate being kept informed on the progress of this bill.

The other people who contacted me include the group that was directly involved with the James Price Point protests—that is, the Wilderness Society. It is one of the many groups that was involved there. Its concerns with the bill are as follows —

1. The bill impedes the rights of peaceful protestors to make a stand for matters of public interest.

2. The Law would also allow for offender(s) under this Act to be made to pay for police time and attendance. There doesn’t appear to be a WA precedent for offenders being required to pay for police attendance or time, and if passed in its current form would set a worrying precedent for the policing of criminal behaviour.

3. The language of the bill, when referring to a ‘thing’ is broad and non-specific and is an unacceptable term to be passed in a bill. The letter then quoted the relevant part of the bill, and we will continue to pore over that interesting little word “thing”. The letter continues —

4. The law proposes to reverse the onus of proof on citizens who choose to protest. Basing a law on ‘intention’ ensures that citizens must prove that they are innocent, rather than prosecutors having to prove that they have a case. This is contrary to The Universal Declaration of Human Rights, article 11, states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”

5. The penalties below are radically based on presumption and unacceptable; (a) If the offence is committed in circumstances of aggravation, imprisonment for 24 months … and a fine of $24 000; (b) In any other case, imprisonment for 12 months and a fine of $12 000. …

In the case of James Price Point, in February of 2012, Woodside applied to the Broome Shire for the ‘retrospective approvals’ of a meterological tower, ground works, staff infrastructure and a helipad. Protesters were arrested blocking the illegal works that they knew Woodside didn’t have approvals for. There was no process carried out by police for checking the confirmation of the lawful right of the company to carry-out the works.

Debate adjourned, pursuant to standing orders.

House adjourned at 5.20 pm