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Clarence City Council - Proposed Disallowance of Public Place By-laws

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Wednesday, 26 September 2018

Tags: Clarence

Dr WOODRUFF (Franklin) - Madam Speaker, I move -

That the House, in accordance with section 47 of the Acts Interpretation Act 1931, disallows the Clarence City Council - Public Places By-law (Number 1 of 2018) laid upon the table of the House on Tuesday, 12 June 2018.

This is a by-law of Clarence Council that was brought to our attention by members of the Clarence community, particularly a number of groups that have been very active in that community, speaking about development issues, public open space issues, community access and consultation issues, with the Clarence City Council. They keep a weather eye on what is happening at their council because they love the place that they live in.

It was also brought to our attention by the Tasmanian Conservation Trust which, with members of the community, attended the Subordinate Legislation Committee last week about this matter.

There are three areas of major concern in relation to this by-law. There is a range of smaller matters in the by-law that have been raised. I will focus on the three major areas of concern and then discuss our options. The first major area of concern relates to section 15 of the by-law. This makes a new category of offence which is banned entry to a public place. Section 15(1) says, 'The general manager may, by notice, ban a person who has offended against this by-law from entering a specific public place for such period of time as the general manager determines.'[TBC] It is important to note there is no limit to the number of notices that can be issued by the general manager in relation to a ban. Given the range of public places in Clarence, it is clear such a ban could apply to a wide range of places and people might need to access these places for their normal daily activities.

There is also no requirement that the ban needs to be justified. There is no rationale provided for creating this new power of the Clarence City Council. A reasonable expectation would be that some criteria could have been established around whether a person was being disruptive or dangerous in their activities. This is not required for the general manger to make a ban.

The general manager has unconstrained discretion to apply a ban to a person to decide how long a ban applies. Conceivably it could apply for a person's entire life. The general manager has unconstrained discretion to decide the area that is covered by a ban. There is nothing in the bylaw that defines what a specific public place is or how large it would be. Importantly, there is no right to challenge a ban. There is no doubt this is absolutely draconian. It impinges on civil liberties and it is clear that even if a ban is not applied to a person, the fact it exists as a by-

law would undoubtedly have a chilling effect on public debate and activities, particularly in relation to election periods and people's right to gather in public places in groups in response to development decisions or proposals and to make their feelings known in a public space.

It is clear people might fear repercussions of their actions, be concerned about being banned and possibly not take them up in the first place. The fine for breaching the penalty of entering into a place that a person has been banned from for an undisclosed time, is up to 10 penalty units which is $1570, I understand, at the moment. Not an inconsequential amount of money for simply being able to be in a public place.

The High Court voiced its concerns on similar laws that aimed to stifle public debate in their decision to strike down Tasmania's anti-protest laws in October last year. We can see the same concerns the High Court voiced in their decision being reflected in the cautionary advice of the police commissioner, Darren Hine. He wrote to the general manager in response to the request from the general manager to provide advice on the by-law. With your indulgence I will table for the House the letter from Darren Hine, Commissioner of Police, in response to the general manager of the Clarence City Council and the subsequent response from the general manager to the commissioner about the advice he provided.

I seek the leave of the House to table both of those documents.

Leave granted.

Dr WOODRUFF - I will read the commissioner's comments in relation to section 15. 

The proposed new power allowing for the general manager to ban a person from a public place if they have offended against the by-law is a significant power for a by-law and may be an unintended overreach that infringes on people's civil liberties. Police officers possess a dispersal of persons power found in section 15B of the Police Offences Act 1935. That section states that a police officer may direct a person in a public place to leave that place and not return for a specified period of not less than four hours. However, it should be noted that the section also imposes strict guidance regarding the circumstances in which such a direction from police may be given. The consultation draft provided for comment to the Police Commissioner does not adequately define the operation, scope or limitations of such a strong power or how its application may be enforced.

In summary, the commissioner is cautioning that the proposal for section 15 actually gives council staff vastly more powers than police. It gives the general manager the possibility of the discretion of banning a person for life, or at least an undisclosed period of time, from a public place, whereas in a similar situation a police officer may direct a person to leave a specified area for not less than four hours, but with strict guidance on the circumstances for that decision.

Mr Deputy Speaker, these were very serious criticisms that should have been taken on board and addressed by the council when they were redrafting their by-law, but they were not. The general manager's only response was to redraft the clause so that the general manager can ban a person from a specific public place, not from any public place. That is a totally inadequate response for such a serious concern, particularly because the commissioner refers to significant unintended overreach and infringement of people's civil liberties. It does not address the issues. The general manager can still issue multiple notices to a person regarding different public places, so they can be banned from one specific public place and another specific public place. It does not address the civil liberties issue and fails to adequately define the operations scope for limitation of the powers.

This is pretty outrageous stuff really. I am reading this out as though this is normal everyday stuff but this is happening in Tasmania. The next section we have serious concerns with is section 33 of the by-law in relation to signage and advertising. Sections 33A and B create what we believe are new or expanded offences that relate to the use of signs in a public place. Section 33C deals with an offence related to giving out pamphlets, et cetera, in a public place. There is a fine of $777 that would apply to an offence against those provisions.

Part 5 of the by-law provides for a person to make an application to the general manager for a permit or licence to use public spaces but section 33 is in Part 3 of the by-law, so it seems that a person does not have a potential to apply for a permit or licence in relation to signage and advertising on public land. They are, therefore, locked in a situation where there is not even a possibility to make application to make it legal if such a thing was reasonable, which we argue it is obviously not.

Section 33 is totally excessive. Section 33A prohibits a person from using a sign on public land where they are held by a person, which means a person attending an event on public land who holds a sign of any size would be committing an offence. That constitutes a complete ban on the use or possession of signs in a public place. Section 33B is essentially the same as 33A but is worded slightly differently.

Section 33C makes it an offence to give out or distribute any handbills, pamphlets, et cetera, which makes it an offence to hand out written information to other people while you are at an event at a public place. That means a prohibition on distributing pamphlets or handbills, which is completely excessive and totally restricts the freedom of speech or expression and the normal activities that people would use to communicate at a political gathering, public event, assembly or rally. It is our fundamental right to be able to enjoy the liberty of peaceful assembly and peaceful conversations. Those things would not only be restricted but banned without application for licence.

The general manager can use those powers to restrict public demonstrations of concern regarding developments, for example, or to limit media coverage and to interfere with election events. I am not suggesting that is the intention of this particular general manager, but a general manager would be able to use those powers in such a way. Just the existence of those powers means people will be inhibited from practising and organising in such a way.

Section 38 concerns public assembly, speaking or entertainment. Section 38B of the by-law makes it an offence for a person in a public place to organise or participate in an assembly, rally, public speaking or similar activity, with a fine of $770 if they do it without seeking the general manager's leave. The person has to make an application to the general manager for a licence to use public places for public assembly, speaking or entertainment. That means it is an offence to organise or participate in an assembly without a permit, regardless of the scale, the place or the circumstances. This is obviously manifestly excessive and unfair.

The definition of an assembly in the by-law is 'a group of people gathered together in one place for a common purpose'. Therefore, a meeting of two or three people in a public place could be considered a group by the by-laws definition. In practical terms, it is again a chilling effect on snap actions, such as would be required in response to an unreasonable council decision and an opportunity to capture the media attention on something which has occurred. Given that the general manager needs to provide a permit, it would mean the timeliness of that is going to have an impact on whether it will be provided in time for a gathering people would like to have.

It does not have any conditions or criteria to limit the application of the general manager in his or her decisions. It does not, for example, constrain a public event or public speaking to a very large assembly. You might imagine if you are expecting to organise something with 500 people, it is totally appropriate to make a communication with council and negotiate that space. It does not talk about whether it involves amplification or not, whether the event is at night or not, or the proximity to people's houses. None of that stuff is covered. It is just a blanket ban on people being able to assemble and speak in public and have their voice heard without the general manager's approval.

The mere existence of those powers would have an effect on chilling people's decision to come together and restrict public demonstrations, particularly with regard to council activities where council would be in a position of possibly being disinclined to provide a permit for those sorts of events. There are a number of other concerns and I will go through these very briefly, but given the gravity of those three they pale into insignificance. Section 19 of the by-law relates to nuisances and a person in a public place must not commit a nuisance or cause a nuisance to any other person and must not wilfully obstruct, hinder, or annoy any member of the public, with a penalty of $785 if they do so.

'Annoy' is a very loose term. People are annoyed by the colour of other people's clothes, people are annoyed by the fact that they have a dog, even if it is on a leash and it is in the right place. People are annoyed by a person riding their bike too near them. People are annoyed by so many things in a modern world. What we have now is a council's ability essentially to restrain the people that they wish to restrain, and that is the point. This by-law is in all likelihood not going to be used for the vast majority of people's activities, except those people who become known to council, except those people who become an annoyance. That is the rub because there are no details around the blanket bans and the prohibitions and the requirement for licences. None of that is detailed in here. It is just council; the general manager gets to make his or her own decision without any right to appeal.

Another annoying and obviously outrageous aspect of this by-law is section 34 - ball games:

A person in a public place including a playground must not play or practice cricket, golf, football, hockey or other ball games of a like nature, unless in an area designated for that purpose.

I am not sure if people are aware that this particular matter of beach cricket went viral and I know that the UK Daily Mail in Australia published a piece about this where they noted that this was a draconian law and they referred to Tasmania being like a nanny state. They make the point that this would have a chilling effect on people's ability to be able to go about normal activities, particularly being able to get together and enjoy each other's company. The point is that there is no designated public place in Clarence to play beach cricket. You cannot go to the designated place because there is no designated place.

Given how far a ball is hit in golf there are clearly issues to do with golf balls, but this is a level of micro-managing by council in an attempt to try to remove any opportunity for conflict amongst residents. It has taken on the responsibility of acting as police officers and acting as shepherds between people in public places. It is removing the expectation that people will operate generally out of respect for each other. We are removing the requirement and expectation for people in a public place who have a barbecue and they might be playing a game of family cricket next door to pay attention to where the ball goes and to think about the fact there are other people there too.

It is not the job of council to get in the way of people who want to have a barbecue and some other people want to stand over there and hand out leaflets and talk about a development that council has going at the same time. Who gets to decide which of those things should happen at the same time? That is the point and it was put to me that council needs these by-

laws because it is their job to reduce conflict in the community. It is their job to sensibly look at risk. It is not the job of councils to reduce conflict; it is the job of the police to come in if conflict gets to a point where people are verbally harassing and bullying people. They are acting against the law because we have the laws that govern the police, and as the commissioner said in the comments that he made to the general manager, there are laws which govern the police and the role of the police in the matter of resolving conflict. Police officers have the training and equipment to do that work. By inference from what he said, it is pretty clear that he does not think it appropriate for council staff to be going and acting like little mini police without the training or the equipment to deal with conflict.

Ms O'Connor - It is actually dangerous, it will potentially create more conflict.

Dr WOODRUFF - That is essentially what the commissioner was saying. He did not say it, but he was gesturing to the fact that there is a whole area of law and a whole police service which is funded and trained to do that work. It is not the job of councils to create more problems in their community by removing people's rights, their freedoms, freedom of speech, freedom of association, basic fundamental freedoms that this by-law would do.

What is the council's real reason for wanting these by-law sections? They say they want to remove conflict in the community, and that they are sensible and rational by-laws which will do that. It is good to look at the fact that this went viral and went to the United Kingdom because it gives us a sense that we live in this bubble where we have become normalised to thinking that, that level of 'nanny state' intervention is actually helping.

Other parts of the world have different ways of dealing with conflict in the community. They do not have draconian councils who have authoritarian laws where they are acting like a mini police state. That is not what happens in other countries that we want to be like and emulate. This is mission creep; this is councils moving into areas that they should leave the police to manage.

The real context for this by-law, the context for an addition of a banning of people from public places and the throttling of people's right to freedom of assembly or to hand out pamphlets, the real context for that by-law, is that the council wants to remove conflict between them and community outrage.

It is because of the controversial manner in which the council mismanaged the developments of Kangaroo Bay, the Bellerive Oval amendments to the operating hours of Blundstone Arena, and the development on the top of Rosny Hill. It is because of their failure to consult the community in its own time according to its own public participation policy; because of the failure of the council to adopt the Kangaroo Bay Development Plan height limits which were established by the community, supported by the council, went to the Planning Commission, the Planning Commission endorsed them, but it did not do that. It has created a hornets' nest of community members who are sick of not being listened to and having no other place to go except to take a stand in public; except to use their right to freedom of association, use their right to freedom of speech.

They did not ask the general manager's permission when they went and stood on the side of the road and let people know what was happening at Kangaroo Bay. They did not ask the general manager's permission to go to the top of Rosny Hill - the Friends of Rosny Hill Network - and hold a public meeting to talk about the beauty up the top of the hill; to let people know what it looks like and what the views are, to get people to feel for themselves and what the traffic problems would be. They did not ask for permission; they should not have to. It is their right to do it at any time in a peaceful way.

Madam Speaker, the fantastic news announced today is that the Rosny Hill development has been withdrawn from the council. The point is that it was successful; if only the council had done a community consultation process in the first place about whether the community wanted anything on their Rosny Hill conservation area. They told me they do. They want some toilets and rubbish bins. The council has never put rubbish bins there. They might even like somewhere to have a coffee, but they want to keep the solitude of that place. Their roadside signs, their public handouts, their public meetings communicated that message and achieved that result. It is a good result. The council should have listened in the first place; now they get a chance to ask the community what they want. It is the community's public area.

I want to read the comments from the Kangaroo Hill Voice, Rosny Hill Friends Network and Clarence Action Network, a new network that has been established on the eastern shore. They said this Clarence Council by-law is a threat to freedom of speech and to demonstrations against developments. They point out that it is more than coincidence that council's by-law is timed with recent community rallies and media events regarding major developments in Kangaroo Bay and on Rosny Hill Nature Recreation Area, including a public meeting on 17 July where several hundred people unanimously rejected a proposed development for Rosny Hill reserve.

They made the point that council failed to adequately and responsibly consult with sections of their community and ratepayers and it seems that they are now trying to shut down well-warranted criticism to cover-up their failure to communicate. They say that rallies have been largely about council playing an active role in bringing the developments forward of their own volition, being regularly and privately briefed by their developer and attempting to privatise public assets and crown land reserve. Overall the groups consider the by-law, particularly the issue of banning freedom of speech, represents a gross infringement on civil liberties.

I will wrap up now, Madam Speaker, so other members have a chance to speak on this.

It is clear that what this points to is the need for a human rights act in Tasmania. We would not be having this conversation if there was a human rights act in Tasmania. The Greens have made a policy commitment at the last election that we will legislate a charter of human rights and we will create a Tasmanian human rights commission. We will create a human rights unit in the Department of Justice and we will fund an education campaign for the public service about what a human rights act would mean for people's freedoms.

The fundamental freedom which a human rights act would enshrine is the right to freedom of speech, the right to peaceful assembly and the right to free association. These are fundamental things. It is clear that the High Court and the police commissioner are speaking with us on this issue. The High Court has made these points tangentially about the anti-protest laws. This is an anti-protest law. The police commissioner has made his concerns very clear. There is evidence of that being used around the Bellerive Beach Park.

I will finish up with some words about a fantastic woman who I have met on the eastern shore, Joanne Marsh [TBC]. She is a gutsy community custodian and she one of the many people I have met through these development proposals that have rolled through Clarence Council over the past couple of years. Ms Marsh is a tireless speaker for her community. She was born there in 1957. She has lived in the area and has spent a lot of time, as she says, writing a submission to the general manger about this by-law, at community consultations, in protest meetings, at events holding placards and placing protest signs in public places. She has done that and in the past there were no problems. She could make those public statements in a peaceful way. She is a very gentle woman. She could do that because she cared. When things came up she let her neighbours know what was going on. She was there all the time at the public meetings. She is a fantastic record of a person who loves her community area.

Thank you to Joanne and all the other Joannes like her, and the Peter Edwards and the Ann Geards and Michael Geards [TBC names] and all the other people who have got together and created such a strong network on the eastern shore. They sure as hell know how to protect their place and their public land.

I strongly hope the Labor Party will support this disallowance motion. It does not leave the council in a dire situation at all. It means that the by-law that has been in place since 2007 will remain. It leaves the Clarence Council the opportunity to undertake a proper review. It leaves a new council, once elected after October, hopefully with a fresh crop of people who are committed to public consultation -

Ms O'Connor - Beth Warren for mayor.

Dr WOODRUFF - Beth Warren for mayor.

It leaves people with the option to do a proper review, to listen to any words of wisdom provided by the Subordinate Legislation Committee on this matter, to take up the concerns of the commissioner and to prepare a new by-law that can go through the normal process, attending to all the concerns people have raised.

There is the opportunity for the Minister for Local Government to consider taking some action under the Local Government Act. Division 4, the model by-laws, section 170B, provides the opportunity for you, minister, to arrange for a public consultation to be conducted in respect of a proposed model by-law. There is a real need here to look at consistency across the state. The Local Government Association agrees with that. It is very difficult for the council to make these by-laws. Some guidance from the Government and some management of that, along with the Local Government Association, would be very helpful in this situation.

I encourage the Government and the Labor Party to disallow this by-law so council can prepare a better one.