Bills debated

CRIMINAL CODE AMENDMENT (PREVENTION OF LAWFUL ACTIVITY) BILL 2015 - continued 2

 

Resumed from 12 March.

HON LYNN MacLAREN (South Metropolitan) [2.12 pm]: When we last considered the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015, I spoke about the outcomes of our consultation on the legislation and I want to further elaborate on those outcomes, but not without making a few remarks about the requirements of and standard best practice for consultation in Australia and how they compare with those recently practised in Western Australia. I want to look at specific questions about the process undertaken in relation to this amendment and read in some of the comments we have received in our consultation and then discuss in more detail some of the elements of the bill, including the reversal of the onus of proof and the possession of a thing. I have questions for the minister about those matters. As members know, the Greens have been highly critical of this legislation and it is important that we hear more detail on the government’s intention. To that end, I will ask a series of questions about the bill as I continue my remarks in the second reading debate. I remember when the Western Australian government under Premier Geoff Gallop had a very strong focus on consultation. At the time, it established good policies for meaningful and good consultation that still hold today. In 2001, Premier Gallop established a special office within the Department of the Premier and Cabinet, called the Citizens and Civics Unit, headed by Dr Christina Gillgrin, which focused on building citizens’ capacity and developing best practice for community consultation that offered meaningful interaction driven by a sincere desire to get community input to decision-making. I will provide a very brief quote from a paper Dr Gillgrin recently delivered in Queensland entitled “Embedding Community Participation in Public Sector Culture and Practice” — The CCU — The Citizens and Civics Unit — has developed a State Citizenship Strategy: A Voice for All: Strengthening Democracy. This strategy embodies a whole-of-government approach and provides a basis for all Western Australians to have a voice and become more active citizens. It has four key pillars, which are: knowledge and understanding; inclusion; participation; and democratic governance. There is no doubt that involving the public in policy and decision-making requires a paradigm shift in government’s relationship with the public but this is the fundamental intent of the Citizenship Strategy. The strategy recognises the responsibilities that government has towards citizens and one of these responsibilities is to ensure that appropriate mechanisms exist for the wider community to participate in decision-making processes. Since the government came to power, community consultation has gone a bit on the backburner. Citizens’ views are no longer routinely heard. Today, if a person were to search for the word “consultation” on the Department of the Premier and Cabinet’s website, they would find that the best practice guidelines for consultation can no longer be found there. In fact, on the Public Sector Commission’s website, which is a bit better resourced, a person can dig up the “Guidelines for the review of legislation” with the whole chapter 3 about consultation. I have those guidelines here if government members are interested in them.

Hon Ken Travers: I think you should read it to them because they might not have seen it.

Hon LYNN MacLAREN: At this point in time, there are some pertinent guidelines I would like to review. A guideline in chapter 3, “Consultation”, states — Consultation will often be the most resource-intensive stage of a review. If done well, it can generate valuable feedback for the review, as well as goodwill among stakeholders. Stakeholders are more likely to support a review if they feel their concerns were heard, even if they do not agree with the final recommendations. Detailed information on designing a consultation process is also contained in The Australian Policy Handbook. Those guidelines are available on the Public Sector Commission’s website. Page 22 of the “Guidelines for the review of legislation” refers to the “2010 Regulatory Impact Assessment Guidelines”, and states — The 2010 Regulatory Impact Assessment Guidelines provide specific guidance on what an agency must do to satisfy compliance requirements, including criteria for Consultation and Decision Regulatory Impact Statements (RIS). See also Premier’s Circular 2009/06–Regulatory Impact Assessment Guidelines for Western Australia for more information. This is important because the guidelines recommend that proposals such as this one have a regulatory impact assessment. The Premier’s circular states — On 1 December 2009, the Regulatory Impact Assessment (RIA) program commenced in Western Australia. The program ensures all new and amending legislation are only implemented where it has been demonstrated that a clear assessment of alternatives has been undertaken, and that the benefits of the proposal outweigh any costs or negative impacts. This is achieved by mandating an assessment of all new and amending legislation through a two-tiered process, unless an appropriate exception or exemption applies to the proposal. The process of regulatory impact assessment is supported by the guidelines as well, this time developed by the Department of Treasury. I will just add — The two-tiered process is comprised of the following: • A Preliminary Impact Assessment to determine impacts on business, consumers or the economy. The Preliminary Impact Assessment includes an assessment of alternative options to address an identified problem, and an assessment of potential impacts and benefits to society. • If the Preliminary Impact Assessment identifies significant impacts, a Regulatory Impact Statement will be required. That is from Premier’s Circular 2009/06 that I mentioned. In order to be considered effective and appropriate, the “Regulatory Impact Assessment Guidelines for Western Australia” state — The Consultation RIS should be made public on the agency website where appropriate. The RGU requires consultation to be assessed as effective and appropriate. In order to be considered effective and appropriate, it is expected that agencies, at a minimum, consult with those stakeholders directly affected by the regulatory proposal and provide sufficient information on the issue, options and impacts. The RGU encourages full public consultation, as it is considered ‘best practice’ and there are often circumstances where all potential stakeholders affected cannot be identified. Having outlined what I feel is clearly the policy framework that new legislation should be held to, I need to ask the Minister for Police, through the representing minister in this place, the Attorney General, whether a regulatory impact assessment has been undertaken for this legislation. Secondly, if no assessment was undertaken, what were the reasons for that? Thirdly, if an exemption was granted or an exception applied to this legislation, can the minister please share the details? Fourthly, if an assessment was undertaken, what was the outcome of that assessment? Finally, what organisations outside the public sector were consulted in this process? I come back to the “Guidelines for the review of legislation” that are put out by the Public Sector Commission. From the Premier’s circular, I understand that these guidelines apply to not only the review of legislation, but also the making of new laws such as the bill before the house today. The Attorney General might want to correct me if I am mistaken in the view of whether these guidelines apply to the amendment before us. Key consideration 11 in the guidelines is stakeholder engagement. This was flagged earlier, and I intend to spend a bit of time talking about stakeholder engagement.

The guidelines state — Use an appropriate consultation method to engage each stakeholder. This is done by preparing a stakeholder engagement plan, which is guided by three questions —

• Are stakeholders aware of the review and the desired outcomes of the consultation?

• Do some stakeholder groups have special needs (i.e. physical, geographic, temporal etc.) that must be met to allow them to participate?

• What information do stakeholders need to meaningfully contribute to the review? The first consideration is usually whether there is an issue to address, and the guidelines give some hints on how to do that. The “Guidelines for the review of legislation” were on page 17 of the attachment that I first read. A key consideration is whether there is an issue in the first place that needs to be addressed, and the guidelines help to identify that. Key consideration 7 states — Issues can be identified by accessing many different information sources, such as:

• ministerial correspondence

• ministerial media statements

• parliamentary reports, debates and questions

• reports from central agencies (e.g. the Office of the Auditor General, the Office of the Ombudman)  

• complaints databases

• experts in the field

• legal opinion databases

• academic research

• emerging knowledge

• media reports

• front-line operational units that administer the legislation.

I ask the Attorney General, acting for the Minister for Police, to share information about who raised the issue with the government and then what happened. A guidance note for best-practice consultation from the federal Department of Prime Minister and Cabinet states — A genuine consultation process ensures that you have considered the real-world impact of your policy options. This is likely to lead to better outcomes and greater acceptance in the community, particularly among any stakeholders who may be adversely affected by the policy. Question 5 of the seven Regulation Impact Statement (RIS) questions in the Guide to Regulation asks; ‘Who will you consult about these options and how will you consult them?’ In the consultation section of the RIS, you must: • explain the purpose and objectives of consultation • outline a plan for conducting consultation • explain who should be consulted—and who does not need to be consulted • outline a strategy for the most efficient and meaningful consultation • summarise the major topics to be covered and what issues might be raised. … Consultation plays an important role in ensuring that every practical and viable policy alternative has been considered. Stakeholders and those closest to a problem can sometimes suggest useful ways to solve it. Your RIS should therefore reflect the feedback received on all genuine and viable options. … There are four consultation options that you can take when developing the RIS: full public, targeted, confidential or post-decision. Full public consultation is the appropriate level of consultation for all proposals unless you make a compelling case for a limited form of consultation (such as a need for confidential consultation because of market sensitivity). Be aware of the effort required from individuals and businesses to participate in consultations. You should take advantage of the synergies possible with joint consultation with other agencies. Australian Government agencies should also engage with state and local governments to benefit from shared experiences. … Each portfolio has also established a Ministerial Advisory Council. The councils consist of business, community organisations and other stakeholders, and can provide a broader consultation mechanism on policy matters. I am not sure whether there is a ministerial advisory council for the Minister for Police, but if there is one, I am also not sure whether that advisory council put forward a suggestion for these amendments or somehow raised the issue in any way whatsoever in order for this to be pursued. That is something I would like addressed in the second reading response. The note continues — Online technology can increase your engagement with individuals and enhance collaboration in policy making … Consultation with key stakeholders should be continuous and should start as early as possible. These are the key points I want to highlight from the best-practice consultation guidance note from the Australian government Department of Prime Minister and Cabinet. This is not something from 2001 or even 2010; this document is dated July 2014, so it is current for the present federal government. It is a fairly comprehensive and well-written guidance note. I do not know whether the government has had an opportunity to reflect on it or see how it fits in with our current policies. However, I can question whether it fits in at all with the consultation that has been undertaken on this amendment. We can compare the consultation on this bill with other consultations that have been undertaken. The one that comes to mind is the review of the domestic violence laws. There was extensive consultation on how we can improve those laws, and draft proposals were put out for public comment. I have on my desk in my electorate office a very thick book on those laws that has been published and is now out for circulation. In fact, we have been made aware through the media that the Attorney General in this case intends to pursue revamped restraining orders and law reform initiatives that will be integrated with multi-agencies to address the issues that were raised through that very extensive and important consultation. The review raised 73 recommendations for us to pursue, and we expect that the government will put forward a plan on which recommendations it will take on board and how it intends to address those recommendations. That law reform review is in stark contrast to the amendments to the Criminal Code that we are considering in this bill. This bill has been introduced without so much as a peep from anyone that this was the intended course of action by the government to address an issue that is on its agenda. From my consultation with a range of legal bodies across Western Australia and Australia, this issue has not been raised before. This bill has implications for not only the public interest, but also a number of important and high-profile ongoing protest actions in Western Australia. Therefore, I know that many stakeholders are keen to be consulted and make comment on this course of action. Indeed, it was raised with me last night at a meeting of activists, and it was also raised in a meeting with the departmental officers who briefed me on this bill, that there is an ongoing dialogue between the police and protesters. The relationship between the police and protesters has very much improved. That relationship, which involves negotiation and follows certain criteria that have been established between the police and protesters themselves as individuals, has led, in all the cases that I am aware of, to the peaceful resolution of protest actions. Therefore, my question is: were the police—who are the liaison officers on the front line with the many people who are standing up and protesting on various issues around Western Australia— consulted in relation to how this would be played out? I also asked in the briefing whether the police have put in place operational guidelines as to how the measures proposed in this bill will be implemented. At that time, I was advised that the police have not prepared operational guidelines to deal with this matter. Even draft operational guidelines would assist us in knowing how these amendments to the Criminal Code will be implemented. The minister’s advisers talked to me about the hierarchy of prevention and hindering—which I will go into detail about later—and about determining whether a protest action is a permanent action or an action that prevents lawful activity. If the police had operational guidelines, that would shed quite a bit of light on how this law will be implemented in society. From my experience, these are issues that come out when the stakeholders who will be directly impacted by a piece of legislation are consulted and given the opportunity to comment on how any operational guidelines that are put in place can be the most effective and functional. We know from previous protest actions over the years—over decades, I would say—that there was a quite confrontational relationship between the police and protesters, and very little dialogue and negotiation was undertaken. We went through a great period in Western Australia during the 1990s during which a much more realistic and human-centred approach was taken to the management of the law and the management of civil disobedience. The result is that Western Australia now has a culture—of which we can be quite proud—of achieving change through peaceful civil action. That was after a long period during which there were many opportunities for engagement that led to more definitive action, such as physically preventing activities such as logging, for example. In light of that, when we look at the consultation process that obviously this government and the federal government aspire to, there is, of course, a natural curiosity—other members have raised this before—about when the idea for these amendments was born. The briefing alluded to a working group. However, I have since been given no further information about this working group. Therefore, I would like to know: when was the working group formed; who were the members of the working group; who initiated the formation of the working group; how often did the working group meet; were there any business representatives on the working group; what was the outcome of the work of the working group; did the working group produce a report or make any recommendations; and will the minister table the report or the minutes of this working group? As this working group seems to be the only body that has given these amendments any consideration whatsoever, it would be illuminating to us at this juncture, in trying to determine whether to support this amendment bill, to find out the rationale for this bill and who has put this bill forward. None of the people whom I have consulted had any idea that this bill was on the agenda, and certainly the text of this bill was not circulated prior to the bill being introduced in this house a couple of weeks ago. It will come as no surprise to many members in this place, including you, Mr President, that community consultation is very close to the heart of the Greens. The four pillars of the Greens’ policies are social justice, economic and ecological sustainability, peace and nonviolence, and participatory democracy. The very essence of this debate today is about ensuring that our laws allow people to participate in our democracy in a peaceful way. Peace and nonviolence is very important to the Greens. One of the key decision-making tools that we use is consensus decision-making. In order to reach a consensus decision, people need to have a space in which they can say what they think, be heard without interruption, and be able to be interrogated about exactly what they see as the problem and what they see as the means of achieving the resolution of that issue. Then we move forward. Taking all points of view into consideration, people have that opportunity to amend their point of view, adjust it, leave it behind altogether or embrace another new point of view so that all of us agree to move forward together. The benefit of that is that we do not have ongoing conflict because everybody feels they have a buy-in; everybody feels they have been consulted, they have participated and the decision is something they can uphold. It is not an easy process to undergo, but it is a very fruitful process that results in more cohesion and a greater, I guess, connection with the decision and support for that decision because people have participated in it. It is all linked in; if a very good process of participatory democracy is established, the settings are established for peace and nonviolence.

Hon Michael Mischin: If people in this participatory democracy do not agree with the decision that is made, how should they react to it? Let’s say everyone is consulted but they still do not like the decision. Are they entitled to be frustrated?

Hon LYNN MacLAREN: Would the Attorney General like me to go over it again?

Several members interjected.

The PRESIDENT: Order! Look, I did not mind when one member was making a constructive interjection, but when the rest of the chamber starts buying in, it gets unmanageable.

Hon Lynn MacLaren, you do not have to respond to an interjection if you do not want to; it is up to you.

Hon LYNN MacLAREN: The merits of consensus decision-making and its impact on the strength of a decision is something we could consider at length. A decision made through consensus really does not have that element of challenge post the decision because everybody is behind it, and I will just —

Hon Michael Mischin: Well, no, but there are always going to be people who are going to disagree with it. Do you agree that they should be entitled to frustrate that decision that has been reached by consensus?

Hon LYNN MacLAREN: Mr President, I believe the Attorney General is raising an important issue. The issue I have tried to raise for maybe the last 20 minutes or so is that genuine consultation and people contributing to the solution to whatever unseen issue is identified would create an environment in which consensus could be sought. But if genuine consultation is not undergone with all the stakeholders involved, it is easy to see how people could challenge a decision made by an authority that does not even take into account the points of view of all the people involved. I can see that Hon Alanna Clohesy is nodding her head, and therefore there is some recognition of that amongst many of my colleagues. Maybe we will hear more about that in relation to this amendment bill.

Hon Ken Travers: We understand it; the Attorney General is the one who is struggling.

Hon Michael Mischin: No. The ones who do not agree and have not been part of that consensus, they can go off to a camp or something like that and be re-educated.

Hon LYNN MacLAREN: Re-educated — Hon Michael Mischin: There are bound to be people who still do not agree with the decision.

The PRESIDENT: Order! I think the Attorney General, according to my list up here, has not spoken yet, but he will get the chance to respond, I believe, to the second reading debate.

Hon LYNN MacLAREN: I will reply to that interjection because if the Attorney General has any further information about the re-education camps he has just suggested, perhaps we could also have that on the parliamentary record. It is certainly the first time I have heard about that, and certainly there has been no consultation or discussion paper about that.

Hon Michael Mischin: What do you do if someone does not agree with that consensus decision?

The PRESIDENT: Order!

Hon LYNN MacLAREN: I do have a couple of further questions for the Attorney General and the Minister for Police whom he represents. Which agencies have the police, or the Attorney General in this regard, consulted during the drafting of the bill? If any agencies were consulted, could we please have that on the parliamentary record? I also understand that over the years the police have developed professional relationships, as I have just gone into detail on, with activists and the not-for-profit sector, which is often associated with civil discourse and civil dialogue. What I would like to have responded to is: Why was there no consultation using these established links? Does WA Police have a policy on consulting with the community sector for policy changes or legislative changes? If yes, why was this policy not followed in this regard? If no, why do they not have such a policy, because we have seen quite a lot of crime bills come through this place and Criminal Code amendment bills, and why would there not be a policy on stakeholder consultation? I am sure there is some policy somewhere, and it would be good to have that to reflect on how this current amendment bill adheres to it. If there is no policy, we have another law reform issue that we really do need to consider in a greater amount of detail. Before I get to a more detailed observation about each of the provisions of the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015, I would like to share a few more letters and emails I received following the consultation we commenced only last week. People responded quite promptly and with quite a bit of passion in some cases. A constituent, Tom Percy, QC, from Wolff Chambers, wrote— It seems to me that the whole area is best dealt with as a civil matter, and the criminal law doesn’t need to get involved. If someone is breaking a law, as it stands (and there are no shortage of them …) then arrest them. If there is no offence, but someone is subjected to some sort of inconvenience or hardship, sue them. Get an injunction, seek damages. We don’t need another law to incriminate something that has for centuries gone unrestricted, at least in the sense that it has never required the intervention of the criminal law. Can someone give me a glaring example of where the present law is deficient in its operation?

Several members interjected.

The PRESIDENT: Order! This is sounding a little like a committee stage that is out of control! We are still in the second reading debate.

Hon Simon O’Brien: Let’s just go to the committee stage.

The PRESIDENT: Order! I do not want to see you get into strife with your interjections. I will not name you for that reason.

Hon LYNN MacLAREN: As I said, I did consult on this bill, and this is what a constituent—a stakeholder who obviously deals quite a bit with criminal law—wrote to me. The email continues with a question — Where there is a gaping hole which requires an offence carrying 12 months imprisonment? As we know, that can be doubled to 24 months. Tom Percy continues — The explanatory memorandum is breathtakingly brief in its explanation (in fact it offers none) as to why any change might be required to the substantial existing body of law we already have. Several members interjected.

The PRESIDENT: Order! It is the second reading debate when members put their points of view about the principles of the bill, not a to-and-fro argument on the detail; that comes later.

Hon LYNN MacLAREN: The email continues — The proposal is perhaps best described as the “Clayton’s Offence”. The offence you commit when you arent committing any offence. Any actual or attempted property damage, traffic obstruction or unlawful loitering (and many other forms of anti-social behavior) already attracts the criminal law. I say the whole idea embodied in the new proposal is misconceived, unnecessary, and offensive to the notion of a free society. This chap also has told me that he cannot recall ever seeing law in the same way as it is now proposed. When I originally contacted him, I asked him whether he was consulted and he said no. He felt that it was another knee-jerk reaction. The final comment that I will put on the record is — It hardly arises out of an avalanche of cases which cry out for its introduction. Next I would like to share the view of Aidan Ricketts from Southern Cross University, who is one of the academics who has been a leading source of material on how to be an activist, the laws surrounding activism and how to engage in activism. Aidan Ricketts has advised me —  In essence it severely criminalises peaceful protests, particularly those where protesters use chains or devices to lock their own bodies to gates, machinery etc. These kinds of actions are the essence of nonviolent democratic practice and reflect of course the actions of suffragettes campaigning for universal suffrage. The act of locking on exemplifies the commitment of an individual to cause no harm to any other person and the courage to place one’s own body on the line as the last line of peaceful and democratic action. The use of lock on devices also reduces the risk of injury and violence in protest situations because they alleviate the likelihood of police taking action against crowds and instead focus the action upon an orderly removal of a single or of a few locked on protesters. The action of peacefully locking on is a time honoured way for a citizen to make a statement in a peaceful but effective way. The rise in the occurrence of this kind of protest throughout Australia and the world, particularly in relation to environmental emergencies such as logging, fracking and the expansion of coal mines reflects the growing overreach of the corporations and governments in extractive enterprises and the growing frustration of citizens that processes for civic engagement are effectively sham processes. There is no example of these kinds of actions taking place that have not also been preceded by an exhaustion of more cooperative forms of social movement lobbying. There is more local feedback from the Alliance for a Clean Environment, which responded to this bill by saying — Non violent civil disobedience is a cornerstone of our democracy. The WA government has consistently put the interests of corporations, particularly mining and industrial, ahead of the best interests of civil society. This is risking the protection of intergenerational equity, undermining a principle that our government has previously committed to as a participating nation under the United Nations Declaration on Environment and Development. I have also received an email from Jess Beckerling, who is the head of the Western Australian Forest Alliance, as would many of my colleagues. I will not read the entire letter, but I want to focus on three paragraphs. It states — Non-violent direct action is a method used by all kinds of people once official channels have been exhausted. The old stereotype of radical extremists being the only people who engage in this sort of activity is invalid. The Mowen and Helms forest campaigns over the last few months have been testament to this. People feel very strongly about protecting native forests. It is non-sensical to be logging native forests—the industry operates at a financial loss, employment numbers have fallen significantly and continue to decline and the ecological cost is profound and irreversible. People will continue to defend native forests with non-violent direct action when Governments refuse to listen to the community’s concern, and jailing them for this is no solution. These laws would not stop people from using non-violent direct action to protect the environment, but they would take WA down a murky path where good people who are acting peacefully and altruistically face a disproportionately punitive set of legislation. Mr President, as you know, a joint statement about protecting lawful protest has been mentioned on at least two occasions during the second reading debate, but it has additional signatures since the last time I spoke. The petition was printed earlier, but I am sure that as the days go by during this debate, more and more people will sign it. I think the total was up to 44 when I read it last time. The new signatories include Frack Free Kimberley, the Greens WA, the Deaths in Custody Watch Committee, the Busselton–Dunsborough Environment Centre, Frack Free Geraldton, Friends of the Earth Australia, Transition Town Guildford, Socialist Alternative, Our Land Our Water Our Future, Foodwatch Australia, the Animal Justice Party of WA, the Fremantle Environmental Resource Network, the Carnamah land care group, the Coalition for the Protection of Racehorses, and Fremantle Road to Rail.

Hon Ken Travers: Have the Nationals signed it yet?

Hon LYNN MacLAREN: Let me just check.Hon Ken Travers has asked me whether the Nationals have signed it. I do not see their signatures on it yet, but the petition is still open for signatures. It is a joint statement.

Hon Paul Brown interjected.

Hon LYNN MacLAREN: I believe that the Nationals are considering whether to support this bill, as we all are seriously considering all the information put forward, so maybe their names will be added to that long list of people soon enough. There is also a recent statement from the Law Society of Western Australia. This was alluded to last time we met, but the statement had only just come out into the public domain. It states — The Law Society of Western Australia is concerned that proposed legislation to address radical protests is too broad and may erode fundamental aspects of our criminal justice system, which protects our whole community. While there may be legitimate reasons to target legislation at such protests, amendments are required. The Law Society is very concerned about the reversal of the onus of proof. “In criminal matters, it is for the State, with its resources, to prove beyond reasonable doubt that a crime has been committed. This has been the bedrock of our successful criminal justice system for hundreds of years”, said 2015 Law Society President, Matthew Keogh. Furthermore, the Law Society believes that criminal offences are too broad and Criminal law should be drafted so that it is clear to the public, Police prosecutors and the courts. “These laws would place too much discretion in the hands of the Police and prosecutors, especially combined with the reversal of the onus proof and it’s not fair on anybody when the public have to second guess how the police may enforce very broad criminal laws” Mr Keogh said. The Law Society believes that the proposed legislation could be greatly improved through proper scrutiny through a parliamentary Committee process. It may well be that the best way forward is for a committee to look at these amendments in detail. My contention is that, be that as it may, we may have to go down that road, but I would obviously like the government to withdraw this legislation and replace it with something that has a bit more forethought and can be implemented in consensus with the protesters who are the target of this legislation. As we know from my reading of a letter from the Uniting Church, which is very concerned about this legislation, it is very concerning across a broad range of civil society. If it were returned to the drawing board for some consultation with stakeholders, maybe we could look at considering whether to send it to a committee or reject it outright, or perhaps there might be a bill that is worthy of our support. The Human Rights Law Centre put out a statement last week as well. I believe this was following my initial remarks on the second reading speech so I did not get a chance to review it and provide these comments. The Human Rights Law Centre put out an article called “Excessive anti-protest laws in Western Australia risk criminalising peaceful protest & breaching international human rights law”. The article states — Proposed legislation being debated today — Which was last Thursday when we started the debate — in the Western Australian Parliament risks criminalising peaceful protest in breach of international human rights guarantees. The Human Rights Law Centre’s Executive Director, Hugh de Kretser, urged the parliament not to pass the proposed legislation. “This new legislation goes too far. The offences are vague and will be prone to misuse. There are real risks they could criminalise peaceful protest in breach of our international human rights obligations,” said Mr de Kretser. The Criminal Code Amendment (Prevention of lawful activity) Bill 2015 creates vague new offences of “physically preventing a lawful activity” and “possessing a thing for the purpose of preventing a lawful activity”. Both offences carry serious penalties of prison of up to 1 year and a fine of up to $12,000. In certain circumstances, the penalty for preventing a lawful activity can rise to 2 years and $24,000. Mr de Kretser goes on to say — “This vague and excessive legislation is simply not needed. Police already have a suite of offences like trespass, property damage and breach of the peace at their disposal as well as overly broad powers to move protesters on if they reasonably suspect they are breaching the peace, preventing a lawful activity or about to commit an offence. “There is no time period specified in the legislation so even a brief interruption to a lawful activity will trigger the offence. Further, the legislation effectively reverses the onus of proof requiring people to disprove that they intended to prevent the lawful activity if there are reasonable circumstances suggesting they did. “This bill is further confirmation of the trend of eroding fundamental democratic freedoms in Australia. Over the past 18 months, we’ve seen the excessive Queensland G20 anti-protest laws, Tasmanian laws that unjustifiably prioritise business over human rights and overly broad Victorian move on powers. The Western Australian Parliament should reject this bill,” said Mr de Kretser. There was also a recent article in The Sydney Morning Herald—this is even more recent—on 16 March. It is titled “New protest laws a blow to democracy and decency”. The author Larry Graham states — In every protest in WA since 1829, and again on Heirisson Island, police managed to move protesters on. So why do we need these terrible laws? Our country is undergoing deep changes that frighten the hell out of me. Two of the very important principles woven into our systems of government and justice are being deliberately degraded. The presumption of innocence and our government being answerable to the people are both fundamental building blocks of our democracy and they are being undermined from within. Since the inception of Westminster-style democracy, both these important principles have stood the test of time, but they will be seriously damaged if Barnett’s proposed anti-protesting laws are passed and enacted. In parliamentary debates so far, much has been said about restricting public protests—and I share those concerns—but that is not the real evil of this proposed law. The real evil is the reversal of the onus of proof. To put it another way, you can be considered guilty unless you can prove you are innocent. There is nothing in the proposed law that restricts its application, so once it’s passed, the laws will apply across the state. There are literally hundreds of protests each year. I digress from this article just for a moment to remind members of that long list of protests that I read in at the beginning of my contribution to the second reading debate. A long list of protests are occurring across the state. In fact, there is a march coming up; the March in March is on this Sunday. The article continues — Currently there is Heirisson Island, but I also recall G20, 54B, and the Swan Brewery protests, Aboriginal rights, the live animal export rallies, land rights, deaths in custody, logging in old-growth forests, public education and the list goes on and on. We admired the brave protesters in Hong Kong, eastern Europe and during the Arab spring because they showed that demonstrating plays a healthy role in democratic advances, but in WA that’s not so. Protesting here just got harder.

Several members interjected.

The PRESIDENT: Order, members!

Hon LYNN MacLAREN: It goes on — The point of protesting is troublesome—sometimes protesters can do silly things—but that is why we give police powers to move people on. But to counteract police move-on orders, protesters chain themselves to things and this restricts the ability of police to act. This is nothing new. At the start of the 20th century women suffragettes won the right to vote by chaining themselves to stuff, and somehow police then were able to deal with it. In every protest in WA since 1829, and again on Heirisson Island, the police managed to move protesters on. So why do we need these terrible laws? Giving police the power to arrest people for an inconvenience or when no real crime has been committed is an atrocious act of political bastardy that would be more at home in North Korea than in any democracy. This law joins other flawed government actions including the Queensland anti bikie laws, the Tasmanian protester laws, the various terrorism laws, the Prime Minister stating that it is time we removed the benefit of the doubt in administrative matters relating to refugees, the unwanted, expensive and unworkable metadata retention laws and WA’s shocking anti-party laws. These are all bad laws that undermine our democracy. Criticism of these laws is not bleeding heart liberalism. When they are examined individually, any one of these laws should trigger public concern, but when they are assessed together, the trend is alarming. The authoritarian nature of these laws subjugates our personal rights and liberties and increases governments’ power over us. That is an unhealthy direction for Australia and we have to go back to colonial days to find a more repressive collection laws than these. The now infamous bushranger laws were probably the most extreme we have ever seen. Those laws proved to be completely ineffective and were taken off the statutes after a suitable face saving period. Returning to the WA protest laws, the Nationals seem to have forgotten their excellent work of voting down the previously proposed stop-and-search laws, but that flash of decency must have been a one off, because they are now supporting far worse laws. We have not heard from the Nationals in this chamber yet. We have only heard some random statements in the media and we need to test that in the chamber. We need to have the Nationals’ response to this proposal on the official record. I know that they continue to listen to stakeholders, and I commend them for that because stakeholders deserve to be listened to. We know that one of those stakeholders, the Western Australian Farmers Federation, is one of those early sign-ons to the statement — Hon Kate Doust: And an important group in our community.

Hon LYNN MacLAREN: It is an important group in our community that is represented—seemingly—by the Nationals, but I think in increasingly more terms, perhaps by other voices in this house. It is important that we allow enough time for stakeholders to get to those relevant decision-makers in the National Party to be able to determine whether they are indeed representing their stakeholders, if they support this legislation. That could have happened if we had had a proper period of public consultation. Then, perhaps, early on in this debate those stakeholders would have had a voice and we would not be at this very hairy point where we are now whereby I am sure that those members feel quite a bit of pressure and attention being placed on them, because —

Hon Michael Mischin: I think this is where the fundamental problem arises: you represent stakeholders; we represent the community interest.

Hon LYNN MacLAREN: And I am only asking who that community is that the Attorney General thinks it is, because there is no evidence that anybody needs or wants this bill. So who is the Attorney General representing in this regard?

Several members interjected.

The PRESIDENT: Order, members!

Hon LYNN MacLAREN: I return to the final paragraphs of the article in The Sydney Morning Herald of 16 March to conclude the assessment of these laws by the writer, Larry Graham, who continues — Often the puerile argument put forward is that those with nothing to hide have nothing to fear from these laws. That is just so much nonsense because only the stupid have nothing to fear from authoritarian laws. When lawmakers grant the authorities the power to monitor your electronic media data, assume guilt and legislate a power to jail people without charge, we should all be fearful. Many will be familiar with the description of democracy made famous by Abraham Lincoln in his Gettysburg address: “ ………and that government of the people, by the people and for the people, shall not perish from the earth.” Tragically, that form of government has perished in this part of the earth and the combined effect of all these laws is to remove any semblance of the democratic principles advocated by that great man. I mentioned earlier that following a period when I expressed the views of all the people we had consulted, and obviously going on the public record in greater number, I have mentioned as many of those as I can to make it up to date. I am sure that there are other voices that others will mention over time because these voices are only growing in number. It is very interesting to hear the people who have spoken out, but having talked about those consultations that I have been able to do in my electorate office of two people without ministerial resources and certainly without departmental resources, it is clear that there is significant distress about this amendment bill, and it is a privilege of mine to be able to bring those voices to Parliament during the second reading debate. I want to talk in greater detail about the particular passages of the bill that we have alluded to on several occasions. One is the reversal of the onus of proof. I also want to make a comment about the possession of a “thing”. In fact, I want to put on the record that it has been put to me that the offences regarding the possession of a thing go further than the terrorism laws. This advice has been given to me by spokespeople for legal groups around town. It has been very interesting to hear evermore about the complexities of the law. I want to ask about the definitions of “prevent”, “physically” and “circumstances of aggravation”, and indeed whether they apply on public or private land; and finally I want to ask a couple of question about the higher penalties and the risk of this oppressive searching. In doing that, I note that a couple of members have asked by interjection what the reversal of the onus of proof is all about, and I want to explain exactly what those in the legal fraternity are saying in that regard. I have tried to summarise some of the comments that my stakeholders have made to me during the consultations that I have been able to do in the short amount of time that I have had. At proposed sections 68AA(3) and 68AB(2), the bill reverses the onus of proof so that the prosecution no longer needs to establish a mens rea, which is criminal intent beyond reasonable doubt. Hon Michael Mischin: We don’t have mens rea in WA, so we can stop with that opinion already. He plainly doesn’t know what he’s talking about.

The DEPUTY PRESIDENT: Order, members! Hon Lynn MacLaren has the call.

Hon LYNN MacLAREN: This bill proposes that instead, the prosecution will be required to prove only that “circumstances give rise to a reasonable suspicion”.

Hon Michael Mischin: No, that’s not right either.

The DEPUTY PRESIDENT: Order, members! Hon Lynn MacLaren has the call. If other members would like to contribute to the debate, they can do so by seeking the call after Hon Lynn MacLaren.

Hon LYNN MacLAREN: I am sure that as this debate goes on, those questions that the Attorney General has will be able to be addressed in detail. I believe that the committee stage is an opportunity to do that, if they indeed are not addressed during his reply to the second reading debate.

Hon Michael Mischin: No, it’s not a question; it’s a correction.

Hon LYNN MacLAREN: However, it is very important that I put on the parliamentary record what has been put to me by these people who are very concerned about these laws. In those circumstances, a concerned citizen who has been charged is required to then prove a negative about their own thoughts; so obviously “circumstances of reasonable suspicion” is a very low bar. In fact, we looked at the LexisNexis website, which provides the following explanation of “reasonable suspicion” — A suspicion based on facts which, objectively seen, are sufficient to give rise to an apprehension of the suspected matter: R v Chan (1992) … Reasonable suspicion involves less than a reasonable belief but more than a possibility; some factual basis must exist for the belief … It does not require proof on the ‘balance of probabilities’. It is an inclination of the mind towards assenting to, rather than rejecting, a proposition …

Hon Michael Mischin: Is that what came out of LexisNexis or is that the opinion you are reading out?

Hon LYNN MacLAREN: I am happy to table this, Madam Deputy President.

Hon Michael Mischin: I am just curious.

Hon LYNN MacLAREN: Obviously the Attorney General is interested in what LexisNexis contains, and it quotes particular cases.

Hon Michael Mischin: That’s what I am trying to clarify.

The DEPUTY PRESIDENT: Order, members! We are not in committee; we are still dealing with the second reading debate on the bill, and Hon Lynn MacLaren has the call.

Hon LYNN MacLAREN: The final quote I want to put on the record on the definition in LexisNexis is — To say that a suspicion is reasonable does not necessarily imply that it is well-founded or that the grounds for suspicion must be factually correct. Several cases are employed in the definition. I did not read them into Hansard but, as the Attorney General is so interested in this definition, I seek leave to table from LexisNexis this definition of “reasonable suspicion” under criminal law.

Leave granted [See paper 2640.]

Hon LYNN MacLAREN: After arrest, police need to consider whether there is sufficient grounds to charge a person, and this requires establishing a higher test than reasonable suspicion. Further, before the state prosecutes a person, the prosecutors will need to be satisfied that there is a case to answer and a reasonable prospect of success. Each of these protections for our community is determined by reversing the onus on the basis of a reasonable suspicion, which is the lowest test—something more than just a mere hunch. The commonwealth Attorney-General’s Department provides public guidance to policymakers on the importance of the presumption of innocence, its protection in human rights and long history in common law. That guidance from the Attorney-General states — What is the presumption of innocence? The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Where does the presumption of innocence come from? Australia is a party to seven core international rights treaties. The presumption of innocence is contained in article 14(2) of the International Covenant on Civil and Political Rights (ICCPR). The right to the presumption of innocence is one of the guarantees in relation to legal proceedings contained in article 14. The other guarantees are the right to a fair trial and a fair hearing, and minimum guarantees in criminal proceedings, such as the right to counsel and not to be compelled to selfincriminate. There is more information on these rights under guidance sheets titled “Fair trial and fair hearing rights” and “Minimum guarantees in criminal proceedings”. There is also a reference to see article 40 of the UNICEF Convention on the Rights of the Child, and I want to mention that in a comment later on, because that is some of the advice I have received. The commonwealth Attorney–General’s departmental document goes on — When do I need to consider the presumption of innocence? You will need to consider the right to the presumption of innocence when you are working on legislation, a policy or a program that: • creates an offence that requires the accused to prove or establish the absence of an element of an offence or requires the accused to establish an exception, exemption, excuse or other defence The second bullet point I think is particularly relevant to what we are considering today — • creates an offence that contains a presumption and puts an evidential burden on the accused to rebut the presumption There are five other dot points that need to be considered — • creates an offence that contains a presumption operating against an accused that cannot be displaced That might be something to consider through an amendment later on. The document continues — • creates an offence that imposes criminal liability on an officer of a corporation solely by reference to the officer’s position, and requires the officer to make out a defence • relates to comment by a public official or by the media on the guilt of persons who have been charged • relates to the manner of presentation of accused persons in court, for instance in shackles, or • provides international legal assistance or cooperation, including development of legislation or strengthening criminal justice systems. This list should not be regarded as exhaustive. There are a couple of other questions to help people understand what we are talking about what we talk about the presumption of innocence, because it has been hotly contested as to whether that is needed in this amending legislation. The other questions include — What is the scope of the right to the presumption of innocence? The answer is — The presumption of innocence is a fundamental principle of the common law. The UN Human Rights Committee has stated that the presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. The Committee has also stated that public authorities should refrain from prejudging the outcome of a trial by making public statements affirming the guilt of the accused, and that the media should avoid news coverage undermining the presumption of innocence. Finally, the Committee has stated that defendants should normally not be shackled or confined in an enclosure during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals.  Some laws, commonly called reverse onus provisions, shift the burden of proof to the accused or apply a presumption of factor law operating against the accused. The departmental officers advised us during the briefing that, indeed, this legislation would involve a reversal of the onus of proof, and I believe we need to question whether that is necessary. The document continues — Can the right to the presumption of innocence be limited? Derogation Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant, including the right to the presumption of innocence ‘in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed’. Such measures may only be taken ‘to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin’. The UN Human Rights Committee has indicated that strict limitations would apply to any derogation under article 14, specifying that they must be exceptional and temporary. There is a limitation — Limitation As indicated above, so-called reverse onus provisions can be considered a limitation on the presumption of innocence. We had a look at the Evidence Act and the standard of proof that is required in criminal proceedings, and I learnt two things. Firstly, in a criminal proceeding the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt. Secondly, in a criminal proceeding the court is to find the case of the defendant proved if it is satisfied that the case has been proved on the balance of probabilities. The reason I mention that here is that we are talking about intention and whether one has the intention to do something. What is the standard of proof about whether one is being honest about one’s intention? We did think about this, and this example may come up later in my speech notes, but it comes to me now as being relevant. Let us say that someone’s intention is to stop a piece of logging equipment because they know that there is a habitat tree in the area that has not been protected for some reason, such as not having been marked by an officer, and they know that the loggers are going towards that tree and so they are determined to place themselves in the path of potential harm to stop that equipment. In order to do that, they might prepare to go there by obtaining a map, putting on their wellies and heading out to Helms Forest, for example, with every intention of standing in front of that piece of equipment. However, they find out on the way that their aunt has passed away and they need to go to the funeral, so they attend the funeral and do not end up actually carrying out their intention of going to Helms Forest.

Hon Ken Travers interjected.

Hon LYNN MacLAREN: Indeed, so in that case, how do we get into that person’s mind and say, “You intended to go there”? The person did not even go there; they may have had every intention to, but they did not end up going there. That is the opposite story.

Several members interjected.

Hon LYNN MacLAREN: Maybe it fits in better elsewhere, but I wanted to talk about it now. It is very relevant. Several members interjected.

The DEPUTY PRESIDENT: Order, members!

Hon LYNN MacLAREN: I can see that there are some members on the other side who are struggling to follow this.

Several members interjected.

The DEPUTY PRESIDENT: Order, members!

Hon LYNN MacLAREN: I can see why this matter might raise some emotions, especially amongst National members who are seeking to interject at this time, but it is important. These are the facts of the law, and we are talking about passing a new law. It is important to put on the record how we think that law fails on many counts. I want to conclude the advice from the commonwealth Attorney-General about the presumption of innocence, which deals with domestic laws and which ones relate to the presumption of innocence. I just read from section 141(1) of the Evidence Act, which provides that, in a criminal proceeding, a court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt. In this legislation we are introducing a couple of provisions to do with intent and preparing to do stuff, and the question of reasonable doubt is a serious and important consideration that we need to address. In fact, I would say that the amending legislation before us does not pass muster and I am really looking forward to hearing from other members on that matter. There are other rights and freedoms relating to the presumption of innocence, but I will not go into that now, other than to commend members to this presumption of innocence material provided by the commonwealth Attorney-General’s Department, if anyone has a question about what it entails. It is provided to persons who have a role in commonwealth legislation, policy and programs as general guidance. I will just say that it is important that we take into consideration the advice of learned people when we debate this bill, and not just go on what we might hear. One of my concerns thus far is about reports in the media and the continual showing by the Minister for Police of these things called thumb locks and other devices that I do not know the names of that are very innovative materials that are used to lock on at protests. That gives the community the idea that that is what we are dealing with here, because those are the images going out into the public domain. There is nothing in this bill that says anything about thumb locks, and there is nothing that explicitly outlaws any of those materials. In fact, this bill is drafted so broadly that it includes a range of materials. I will go into that in detail when I talk about what a thing is and the use of the word “thing”.

Hon Ken Travers: Thing, that was in the Addams Family.

Hon LYNN MacLAREN: The Thing, which was not the thing, was it?

Several members interjected.

The DEPUTY PRESIDENT: Order, members.

Hon LYNN MacLAREN: I have a question about the defences available to a person in this legislation. There is no detail about the defences available to a person. We really need to know how to discharge the reversed onus of proof. A person charged with an offence created by this bill is required to prove that they do not have the relevant intent or purpose. Proposed section 68AA refers to the intention to prevent a lawful activity. Proposed section 68AB refers to the prevention of a thing “for the purpose of using it, or enabling it to be used,” in the commission of an offence of physical prevention of lawful activity or trespass. Proposed section 68AA requires that the prosecution prove only that the person prevents lawful activity in circumstances that give reasonable grounds for suspecting that a person has had that intention—the intention to prevent lawful activity. Proposed section 68AB requires that the prosecution prove only that the circumstances give rise to a reasonable suspicion that the person had the purpose, being the purpose to use a thing or enabling the thing to be used in the commission of either physical prevention of a lawful activity or trespass. The reversal of the onus of proof in proposed section 68AB is extremely concerning, because it reverses the onus of proof for the offence of the possession of a thing on the basis of a reasonable suspicion, which is one of the lowest tests know in criminal law, something more than a mere hunch.

Hon Michael Mischin interjected.

The DEPUTY PRESIDENT: Order, members.

Several members interjected.

Point of Order Hon MICHAEL MISCHIN: The member is misleading the house, She is actually is misreading—deliberately, I would suggest, or grossly negligently—the text of the bill before her.

Several members interjected.

The DEPUTY PRESIDENT: Excuse me, members. There is a point of order before the Chair; it is not an invitation to have a general debate across the chamber. If the Attorney General wants to present a point of order on this matter, he needs to substantiate his point of order and provide some evidence in support of the argument he is making. At this point, I see that the Attorney General is presenting a different point of view about the provision of the bill, and he will have ample opportunity to respond to that and provide his point of view in more detail when he replies to the second reading debate.

Debate Resumed

Hon LYNN MacLAREN: Thank you, Madam Deputy President. I refer the Attorney General to page 4 of the bill and proposed section 68AB, which states — (1) A person must not make, adapt or knowingly possess a thing for the purpose of using it, or enabling it to be used, in the commission of — (a) an offence … The proposed section continues — (2) A person making, adapting or knowingly possessing a thing is presumed to have the purpose referred to in subsection (1) if — (a) the circumstances give rise to a reasonable suspicion that the person has the purpose; and (b) the contrary is not proved. Anyone charged with the offence is required to provide the contrary to overturn the presumption of a guilty intent or purpose. This means that the person charged is required to prove a negative. They have to prove that they did not intend to do something. They need to prove that they did not have the thing for the purpose of enabling it to be used in the offence. A person could be charged with this offence before any activity has even been prevented. That is the clear intent of the Attorney General’s second reading speech. In those circumstances, a person is required to prove a negative about their thoughts about a possible future event. The only evidence that a person could lead in such circumstances is to go into the witness box and make a mere denial of the relevant intent. Electing to give evidence opens a person up to cross-examination by the prosecution on any issue in question, and the choice not to give evidence is long associated with the presumption of innocence. The reversal of the onus of proof with respect to the element of intent very seriously undermines the protection of the presumption of innocence and the right of an accused to elect not to give evidence. As we learned in the United States, that is the right to remain silent and to not self-incriminate. How does this particularly affect juveniles and underage offenders? I refer to article 40 of the international Convention on the Rights of the Child, which I know many members will be well aware of because we have discussed the Convention on the Rights of the Child in this place several times when we have looked at Criminal Code amendments. Article 40(2)(b) states — (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: (i) To be presumed innocent until proven guilty according to law; A defendant simply denying that they held the relevant intent or purpose when facing conviction and punishment for that offence is unlikely to be compelling to a court. There is a risk that a simple denial would be seen as merely a self-serving statement. This is particularly so in our system of justice in which the prosecution bears the onus of proof and a defendant can elect not to give evidence. A defendant who elects to give evidence but then makes only a self-serving statement is given little weight, if any. A defendant who provides evidence of an alternative purpose for the thing may also struggle to prove that they did not also have the requisite criminal purpose. Proposed section 68AB is drafted so broadly that it applies to any thing. Things can have many uses, as we know, that are not mutually exclusive. The possession of a rope could be for use on the farm—it does not prove that the rope was also intended to be used in the prevention of a lawful activity. The bill is drafted so broadly and the reversal of the onus of proof operates so that the prosecution is not required to prove that the accused person had any particular plan to commit an offence or prevent lawful activity or trespass. The offence of possession of a thing can refer generally to relevant offences without an allegation that the person who possessed the thing did so to prevent a particular lawful activity at a particular time. The accused person is denied any potential to provide the court with alibi evidence; for example, evidence that they had other commitments at the time that the prosecution alleges that they would have been preventing that lawful activity. For example: I was not intending to go to the forest on Thursday, because I was going to attend my aunt’s funeral. I want to hear whether there are any defences. There has been no mention of defences. If we want to go down the road of amending this legislation and taking it to committee to look at other ways that we might want to fine-tune it, that is one of the things we could look at. We could look at whether there are some opportunities for people to bring forward and provide some kind of natural justice. The other hotly debated issue is the possession of a thing. The second reading speech highlights that this bill is targeted at activists who lock on; however, the bill does not once refer to a locking mechanism of any kind; it goes far, far wider than that. In fact, it goes as far as one could possibly go in the English language, and it criminalises the possession of a thing. The bill provides absolutely no limitation on the things that it would be a crime to possess—literally, anything. The government might be expected to say that the community is protected because it is a crime only to possess the thing for a particular purpose. However, the bill reverses the onus of proof on the very element that could provide any protection to the public. Activists creating physical barriers or lock-ons tend to use common, everyday items in their protests. A lock-on might be created with a section of chain or a piece of pipe. As we have seen on the news, an activist might be secured to a tree with a pipe or some wooden poles. In attempting to criminalise the possession of these resources, the government is criminalising the possession of everyday items. It is really hard to know what the government is even trying to target with the offence of possession of a thing to be used for the purpose of trespass. It could mean the possession of a map or a compass. It could apply to shoes or Wellington boots, for example. Because a person has Wellington boots the police might think they are going to go into a swamp and stop something from occurring. A person could be in possession of a car or even a water bottle, for carrying water into a place where water is unobtainable. Are these things that could be criminal things that could be involved in trespass? It has been put to us that the bill criminalises the possession of these items, and we will be extremely interested in the second reading response about how this is actually defined. There is nothing in the bill that helps us work that out. Some people have suggested to me that the possession of a thing offences actually go even further than terrorism laws. My question is, how does this legislation compare with the terrorism laws? The commonwealth Criminal Code Act 1995 includes provisions about terrorism offences, one of which is the possession of a thing that is connected to terrorism. In that offence, the defendant bears an evidential burden to show that the thing was not intended to facilitate a terrorist act. For people who are following this, I am referring to section 101.4(5) of the commonwealth Criminal Code. The evidential burden is defined in that act, in section 13.3(6), which reads — “evidential burden”, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. That is what the commonwealth is doing in relation to terrorism, but the bill now before this house requires an accused protester—we are not talking about terrorists here; we are talking about protesters—to prove the contrary. Again, there is no definition to clarify the details of the reversal of the onus, but it is likely to mean that an accused must prove on the balance of probabilities that they did not have the requisite purpose or intent— these are words quoted from the bill—under the two proposed new offences. This means that this bill goes further than the commonwealth terrorism laws and, in this respect, one might say it treats peaceful protesters worse than terrorist suspects. When the anti-terrorism offences were proposed, there was much community concern about the drafting of the offence of the possession of a thing in that context. At that time it was rationalised that it was necessary for the protection of the community from terrorism, and yet we now see that it was really the thin end of the wedge. It was undermining long-held principles of our justice system. What was once applied only to terrorism offences, is now proposed to be applied to peaceful protests. I want to raise a couple of further matters in relation to the specifics of this bill. One is inchoate offences and the criminalisation of preparatory actions. Before I go on to that, I need to ask whether the Minister for Police has considered using the evidential burden provisions of the commonwealth legislation that I have just discussed in relation to terrorism. Has the Minister for Police considered using evidential burden definition that is employed in that legislation? It would help us to look more carefully at this bill if that evidential burden had been considered by the minister, and if there were some explanation about why our protesters in the forests are being required to have a higher standard of proof than terrorist suspects caught up by the much more stringent antiterrorism laws. The bill before the house seeks to criminalise preparation. This is contained in proposed section 68AB. That is on page 4 of the bill, if anyone is looking at the bill and following the second reading debate. The criminal law has traditionally included a number of inchoate offences—namely, attempt, incitement and conspiracy. Prevention of harm is a major rationale of these offences. For example, the offence of attempted murder requires the prosecution to establish that the defendant intended to commit the completed offence and, in furtherance of this intention, acted in a way that is more than merely preparatory to the commission of this offence. This offence is punishable as if the substantive offence had been committed. However, even inchoate offences are not uncontroversial. Debate has long surrounded the appropriateness of allowing the state to preventatively intervene to prosecute and punish a person who intends to cause, but has not in fact caused, harm. For the offence created in proposed section 68AB, there is no obligation on the prosecution to establish that the preparatory act was connected to a particular act of trespass or prevention of lawful activity, nor is there any obligation to establish that trespass or prevention of lawful activity has in fact occurred as a result of the possession or making of the thing. The effect of the preparatory offences is to criminalise conduct well in advance of what would have been captured by the inchoate offences, thus creating what I have described as “pre-inchoate liability”. Criminal responsibility arises well before an agreement has been reached for a conspiracy charge and well before the person has decided precisely what he or she intends to do. Preparatory offences allow the state to intervene prior to the risk of harm developing. They render individuals liable to very serious penalties even before there is any clear criminal intent. The breadth of the preparatory offences is exacerbated by the fact that the inchoate offences may attach to them, thus creating “pre-pre-inchoate liability”. The inchoate offence of attempt, it should be recalled, is punishable as if the offence attempted had been committed. Thus, the high penalties attached to these proposed new offences would also apply to an attempted charge. The extension of criminal liability to preparatory offences and this “pre-pre-inchoate liability ”—which is not a very elegant way of discussing it—involves the criminalisation of acts taken longer before and further removed from harm, than would have been traditionally accepted in Australian criminal law. This is contrary to ordinary principles of criminal responsibility, since people who think in a preliminary or provisional way about committing crimes may actually change their mind. They may actually not go that far; they may decide it is something they do not want to do and may not implement their plans in the end. We looked also at the definition of “preventing” versus “hindering” or “obstructing”, because that is another key part of the bill. The bill does not include a definition of “prevent”. That is interesting. During the previous debate on this bill, a very helpful member in this chamber pointed to the definition of “prevent” in the Concise Oxford English Dictionary, which is “hinder, stop”. In the context of the commonwealth Trade Practices Act 1974, a distinction is made between “hinder” and “prevent”. However, there is nothing in this bill to import those definitions into the interpretation of the proposed law; and, further, the two concepts are so closely linked that they are often considered together. In section 45D of the Trade Practices Act, the phrase “hinder or prevent” raises a causation issue in situations in which a secondary boycott is imposed on the supply of goods and services. The word “hinder” is broadly construed as meaning to affect to an appreciable extent the ease of the usual method of supply of goods and services—see Australian Builders Labourers’ Federated Union of Workers (WA Branch) v J-Corp Pty Ltd. The word “prevent” connotes more than the achievement of a total stoppage in dealings between the target and the indirect target. Conduct hindering or preventing can be engaged in by threat, verbal intimidation or physical interference. An example is a picket line. Therefore, the lack of a definition of “prevent” is one of the serious flaws, we would say, in the bill. The term “prevent” has also been judicially considered in other circumstances, including in the Victorian Supreme Court in the case of Stillman v Falla in 1977. In that case, Justice Fullagar considered the law that requires a load to be secured to prevent it coming off a truck, and said — In my opinion, the dictionary meanings of “prevent” which are appropriate to reg149 are as follows, with the emphasis on the last: to “forestall, balk … by previous measures; to provide beforehand against the occurrence of (something); to preclude.” Clearly, the concept of delay is included in the concept of prevent. I did mention earlier that in the briefing, the department indicated that the police would not charge a person with prevention of lawful activity in circumstances in which the person was hindering or obstructing. It is clear that both hinder and obstruct can be considered subsets of prevent, and that hindering and obstructing behaviour can also lead to convictions under this new offence. I therefore ask the Attorney General to clarify what is meant by “prevent” and how it relates to hindering and obstructing. If the government is seeking to argue that “prevent” in this case means a “total stoppage”, as in the trade practices context, the law will apply to almost no situation and may actually be of no effect. However, the limiting definition of “prevent” is not included in the legislation. If a committee of this house were to look at this bill, or if the house were to consider making amendments to this bill, that is one amendment that the Greens might look at proposing. But we first need to hear from the Attorney General as to why that is not included in the bill before us. The proposed definition of “physically” does some injury to the English language, because it includes concepts that are clearly not physical, such as the risk of injury to a person, or the risk of damage to property. Statutory interpretation can be a complex area of law at the best of times, and the job of the judiciary in interpreting and applying the laws fairly and appropriately is made a great deal more difficult when we have definitions such as these. In our view, this is exceedingly poor drafting. I refer in particularly to proposed section 68AA, which states, in part — In this section — circumstances of aggravation, in relation to the commission of an offence, means circumstances in which the offence is committed in a manner that causes injury to, or endangers the safety of, a person (including the offender or another person participating in the offence); physically, in relation to the prevention of lawful activity, means — (a) by physical force; or [17] Extract from Hansard [COUNCIL — Tuesday, 17 March 2015] p1248c-1269a Hon Lynn MacLaren; Hon Ken Travers (b) by the threat of immediate physical force, or (c) by the creation or maintenance of — This is where we think this is poor drafting — (i) a physical barrier to carrying on the lawful activity; or (ii) a risk of injury to a person (including the offender) or of damage to property as a direct consequence of carrying on the lawful activity. We raised this issue in the briefing, because this is the concern that the community is talking about. This is not about people who are permanently locked on—as we have seen in the pictures—and preventing a machine or an engine from going or an axle from turning. This bill will not capture the permanently locked-on or cemented-in people who make the difficult decision to prevent lawful activity or lawful logging for a 24-hour period. This is about people who are just standing in front of a truck, as I have seen the anti–live export people do at Tydeman Road in North Fremantle, and who are damaging or threatening only themselves. This bill will capture people who have historically and culturally always been completely entitled to exercise their democratic right to peaceful protest by using their body to stand somewhere, sit somewhere or hang out somewhere. That is one of the concerns about this bill. Proposed section 68AA creates circumstances of aggravation. That includes circumstances that endanger the safety of a person. Proof of circumstances of aggravation will increase the penalty to two years’ imprisonment and a fine of $24 000. This is a serious offence, and there is a stiff penalty for a person who stands where they should not be standing. The kinds of lock-on actions that the government highlights in the second reading speech—namely at James Price Point and at Mowen Forest—where a person was locked onto machinery, include the inherent risk of endangering the safety of the activist himself or herself. The legislation does not target these particular forms of protest but a much wider range of actions, criminalising peaceful protests that do not endanger the safety of anyone; we believe they would be captured. We need to know whether the minister intended to capture those, did not intend to capture those, or what the response is to the advice we have had that they will indeed be captured. Another question is: does the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 apply on private land as well as public land? The bill creates offences that apply equally on public and private land, I understand. That means that a farmer locking a gate and physically preventing activity on their own farm can be convicted under the proposed legislation. I have mentioned that before, and we know that farmers are particularly concerned about the risk to their water supply due to the actions of mining companies that are going to start fracking. Locking the gate has been a method of protest and civil disobedience by farmers protecting their land. Can we hear from the Attorney General about the rationale for public and private land being affected by this bill, or can people actually protect their private land? Can they do something to prevent unlawful activity on their own land? There is a risk of oppressive searching during protests generally, not just of the lock-on activists. I am concerned that proposed new section 68AB will lead to extremely oppressive policing of protests, effectively giving police a reason to search every vehicle, bag and person going to a protest, or a rally in the street even. We have already seen Western Australian police unnecessarily strip searching protestors, as I mentioned in my opening remarks. I would be very concerned that a proposed section like this could lead to routine oppressive searching of nonviolent protestors. This is one of those areas where if we had the operational guidelines of the police, at least we would have some insight as to how they are going to be implementing these laws. But we do not have those guidelines, and in the absence of that we need a clearer statement from the Minister for Police about how they intend to carry out those laws. I am really saying that these laws go way too far and they need to be knocked out because they will affect too many peaceful protesters. There is also the issue of high penalties. Activists are, in the main, otherwise law-abiding citizens. The creation of a crime that specifically targets political action will significantly increase the potential that concerned citizens will be imprisoned. There will be a chilling effect on public expression and the demonstration of dissent. These penalties are wholly disproportionate to the actions taken by concerned members of the community seeking to protect people and places. These penalties are too high. What is the rationale behind them and why are they so high? Members may recall Dee Patterson, the protestor who was recently arrested in the “car dragon”. She is a lovely grandmother whose husband had died, and her protest action was in his memory; she is the woman who looks after all the injured cockatoos. She protested in her husband’s memory. Think about that kind of person. Are we talking about fining that woman $24 000 and imprisoning her for two years? Hon Michael Mischin: What’s the current penalty?

Hon LYNN MacLAREN: The Attorney General may wish to enlighten us on that.

Hon Michael Mischin: You are speaking as though these ones are excessive and draconian; do you know what the current penalties are?

Hon LYNN MacLAREN: We are creating a new offence, Attorney General.

Hon Michael Mischin: There are numerous offences that are currently available, if necessary.

Several members interjected.

The DEPUTY PRESIDENT: Order, members!

Hon LYNN MacLAREN: The second reading speech refers to the innovative use in recent times of lock-ons, and I wanted to set the record straight. It is not true: physical blockades, including lock-ons, have been used for decades—possibly longer—around the world without governments needing to resort to this sort of regressive legislation. Continued use now does not justify overturning much older principles of law such as the burden of proof, which is a fundamental protection in our democracy. I turn to the issue of paying for police time. People convicted of serious offences do not currently pay for police time or for any aspect of their investigation, apprehension or detention. Peaceful activists should not be charged for the time taken to remove a “physical barricade”. Who made the decision to charge them? Why are they going to be charged? If we are going to start introducing a user-pays system, perhaps we could start way back at square one with a consultation paper and a discussion paper about why that is necessary, and then we could look at the offences we want to charge people for. What about the expensive forensics undergone after criminal activities like burglary or murder, for example? How much does an autopsy cost? If we are going to start talking about charging for police time, why are we starting with these people who are trying to save the forest? Why are we starting there with this user-pays system? I do not get that.

Hon Ken Travers: What about full cost recovery of civil court cases that we see all the time?

Hon LYNN MacLAREN: I look forward to that discussion.

Several members interjected.

The DEPUTY PRESIDENT: Order, members! Members, I have called the house to order.

Hon LYNN MacLAREN: “Physical barricade” is not defined in the bill, by the way. It is another one of those mysteries. Given that “physically” has been given such an extraordinarily broad definition in the bill, there is a risk that “physical barricade” will also be given this broad definition. Corporations that incur expenses can make civil claims against any person who has caused them losses. This is generally a separate consideration to the criminal process, and the cause of action already exists at law. I put the case that there is no need for more offences or powers. I have read to the house comments from people in the profession of criminal law who are saying there are plenty of laws out there, and I concur after my very brief reading of the laws available. In fact, the activists I met with last night are well aware of all the laws that can be employed to prevent their activities, and they make a conscious decision about when to escalate that. The current Criminal Code has offences that can address this, including trespass. Hindering a lawful activity is a basis for issuing a move-on notice, and failing to comply with a move-on notice is an offence. A move-on notice can also be issued preventatively; that is, a move-on notice can be issued before an offence has been committed and before a lawful activity has been hindered. That means that if police suspect someone of intending to commit an offence, they can issue a moveon notice as soon as a person comes into the public place, which is broadly defined for the purposes of move-on powers. Specific offences relating to actions in forests and mine sites are already on the books, and the offence of conspiracy to commit offences already exists. The officers of the Department of Environment Regulation—the powers could have been transferred to the Department of Parks and Wildlife; I am not sure, maybe that is another question I need to ask—operate and have powers under the Conservation and Land Management Act. They police the offences of felling, cutting, injuring, destroying, obtaining or removing any forest produce from a forest conservation area without lawful authority. The maximum penalty is $10 000 and one year’s imprisonment. It is an offence if a person fails or refuses to provide an authorised officer with an account of how the person may have come to possess that material. It is an offence to wilfully obstruct an authorised officer, and the person is liable to a penalty of $500. Others may want to go into more detail about the extravagance of the penalties put before us. There are miscellaneous offences. It is an offence to compel any authorised officer by violence or threats, and the maximum penalty for these offences is $10 000. Infringement notices can be issued. Forest officers, wildlife officers and rangers can issue infringement notices for lots of offences. There are regulations, and the Port Authorities Act has powers for marine activism. I would say that there are already enough offences that would cover these to ensure that civil society continues in the peaceful way that we go about life in Western Australia. Madam Deputy President, if you have listened to anything in the second reading debate, you will know that I have serious concerns and I believe the bill should be opposed. I believe it is not salvageable. However, I have, as is my duty as a member of Parliament, taken great pains to look at the complexities of the bill and how it might be possible, if we were to send it to a committee, to improve it or slightly modify it. I am arguing strongly that we not send it to a committee and that, in fact, the Minister for Police and the Attorney General have a discussion and decide that these offences are perhaps a little undercooked and that any bill that we want to consider should be re-presented at another time after there has been significant consultation with the community and those stakeholders who have much more expertise than I in this matter. That is the Greens’ position on this bill. I want to express my appreciation to the officers who provided me with the briefing and also to all the activists who have been meeting regularly, together with spokespeople from civil society around Western Australia, to get across these issues and how they will affect their daily lives and the lives of the people they represent. I know that we will hear extended debate about civil society and how it will be affected by this legislation. I really appreciate the fact that the criminal lawyers and the dean of the law school contacted me so promptly to advise me in the way that they have and to provide me with that privileged opportunity of providing their voices in this chamber, because clearly their voices have not been considered hitherto. It was my privilege to do that. I appreciate the fact that most members have listened intently and patiently while I have outlined the concerns that the Greens have with this legislation. We are not very happy about the bill and members will hear from my colleague Hon Robin Chapple in detail. If we do not get a better bill, maybe we will look at sending it to a committee.

Authorised by Lynn MacLaren © 2018

Hon Lynn MacLaren MLC - Member for South Metropolitan Region (2009-2017)
Legislative Council, Parliament of Western Australia