Criminalising dissent: anti-protest law is an ominous sign of the times
Criminals the lot of them: that is what people who stand against
government plans ‘to rebuild Tasmania’s forestry industry’ could become
under the new anti-protest law.
Author provided
The Workplaces (Protection from Protesters) Bill – locally known as the “anti-protest” bill, was passed
by Tasmania’s Parliament late on Tuesday night. The law was introduced
as part of the government’s intention to “re-build Tasmania’s forestry
industry”. That is a source of controversy and division in Tasmanian
society.
To achieve its aim, the government has committed itself to a wide legislative agenda. This includes: amending the uniform Defamation Act 2005 to allow large companies to sue protesters; de-funding community and conservation organisations; and tearing up a “peace deal”
between foresters and conservationists, which had been enacted into law
before the 2013 election. Recognising the potential return to
hostilities, the government stated it would “not try and appease” protesters, but would rather “toughen the law to deter them”.
The anti-protest law is its chosen mechanism of deterrence. While
such hard-line policies on political opposition are not new, the
severity and breadth of the law to enforce such a policy arguably is.
The shift from hard-line policy to hard-line law is worrisome in a
constitutional democracy. The spread of state anti-bikie laws in
Australia illustrates why this law is not just of concern for
Tasmanians.
The business of silencing protests
The new law covers all acts on, or acts inhibiting access to, a
business premises (all public and private land, including forestry and
mining lands) which are:
in furtherance of, or for the purposes of promoting
awareness of or support for an opinion, or belief, in respect of a
political, environmental, social, cultural or economic issue.
Any such protest is subject to significant penalties if they
interrupt “business activity”. While originally such sanctions were
mandatory, the government agreed in the upper house to exchange these
for discretionary penalties.
Peter Cundall was found guilty of failing to obey police in 2009, but would risk jail if he protested against a pulp mill today.
AAP/Paul Carter
Click to enlarge
However, the government agreed to this only on condition that the
subsequent maximum penalties would be significantly increased. This was
to “send a strong message” to protesters and the courts charged with
punishing them. As a consequence, protesters who repeatedly interrupt
business face fines of up to $10,000 and four years in jail.
From its inception, the law has been criticised by domestic and
international lawyers. Three United Nations human rights rapporteurs
considered the Bill to breach international law, one describing it as “shocking”. They considered the legislation, as originally envisioned, to be:
disproportionate and unnecessary [creating a] chilling
effect of silencing dissenters … [who are] key to raising awareness
about human rights, political, [and] social concerns … holding not just
governments, but also corporations accountable.
A wide range of legal professionals have voiced similar criticisms.
While the removal of mandatory penalties alleviated some concerns, the
larger concern about a law designed solely to punish people for
protesting against controversial business activities - especially
publicly supported and funded ones – remains.
Right to protest? What right?
Australia is the only Western democracy to lack an entrenched bill or charter of rights. Nor do we enjoy a strict separation of powers doctrine
to keep governmental power in check. Our civil rights are entirely the
product of our parliamentary process … and entirely vulnerable to it.
The only thing that ensures this process operates in the public
interest is the ability of electors to openly exchange criticism of
governmental action, free of pressure or retribution, so that government
remains representative and responsible. As Justice Brennan of the High
Court of Australia stated:
It would be a parody of democracy to confer on the people
a power to choose their Parliament but to deny the freedom of public
discussion from which the people derive their political judgements.
Tolerance of divergent ideas and expressions is important in any
democracy, but in Australia, where we have few other protections, it is
vital. That principle extends beyond mere words, but to acts and places
too.
If the government controls where or how people say things it can
greatly inoculate the strength of a political message, if not extinguish
its impact altogether. In a society awash with information, individuals
must adopt varying – indeed, perhaps sensational – approaches and
measures to publicise dissent and disagreement with mainstream policies.
That is not least because their message may not accord with the views
of those who control dominant public forums.
That is not to say all speech should be unfettered; the government
has a duty to regulate actions that undermine the public interest. It
must also protect people’s business from criminal activities. However,
such legal protections must be tailored and balanced against the
constitutional obligation to ensure freedom of political expression.
When government controls the place or time people can voice political views, freedom of expression is seriously diminished.
EPA/Narong Sangnak
Law turns protest into a crime
Unfortunately, the anti-protest law does not seek to engage in such a
balancing process at all. Despite being pitched as “protecting workers'
rights”, the Tasmanian law makes no mention of industrial, political or
other civil rights – it solely focuses on sanctioning protest. Nor does
it provide legislative direction on how such rights and duties should
be balanced.
In fact, workers' rights and business interests are already protected
by a wide range of civil and criminal laws. The anti-protest law seeks
to do something more, specifically to scare people off protesting – that
is, “expressing objection to or dissent”
about matters of public interest – by turning protest into a crime. It
does so without providing any commensurate recognition of the
constitutional importance of political protest, expression or dissent.
Previous protest and assembly laws have tended to be written cautiously, reinforcing rights as much as taking them away (e.g. Peaceful Assembly Act 1992 (Qld)).
The Tasmanian law is, simply put, brutal. It does not appear to once
engage with the responsibility of government to foster all forms of
political expression, even the types it doesn’t like; indeed, especially those types.
The anti-protest law indicates a move away from self-imposed
governmental restraint towards a “get things done at all costs”
attitude, even if the costs are disproportionate, unjustified and
antithetical to our constitutional system. This law raises serious
questions about the current attitudes and commitment to representative
and responsible government in this country.
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