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Police Offences Amendment (Prohibited Insignia) Bill 2018

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Tuesday, 21 August 2018

Tags: Police

Dr WOODRUFF (Franklin) - Madam Speaker, on behalf of the Greens I provide our contribution to this bill. It is something that the Greens have spent a lot of time thinking about. We have spent a lot of time talking to stakeholders. We have spent a lot of time being briefed by the police and people who have flown from interstate to provide us with information about the context for this bill.

We recognise the very serious problem that organised criminal activity poses in the Australian society. We understand that violence, intimidation and criminal actions are undertaken by groups of people for their own benefit and that it leaves people in Tasmania and in other parts of Australia suffering from acts of violence, living with the fear of violence, being intimidated in their lawful right to move about in their own personal life. People who get caught up with criminal groups either through drug trafficking, drug use, money laundering and all the other awful and nefarious activities that people do in these groups for their own personal profit but also because the most vulnerable people get sucked into a system, sometimes and used as pawns, in the game of large criminal organisations. From the evidence of Australian Intelligence we know that some have international links and are connected to similar groups in other countries and around the world.

We recognise the importance of safety to help people not to get caught up in these sort of activities and to provide justice for people who have been threatened, abused, attacked, raped, murdered - many other terrible things - which criminal outlaw groups perpetrate on innocent people in society.

We wanted to be part of the solution. The Government came to us and spoke about this as a bill which the minister said he would hope it could be a tripartite bill and that we could contribute to supporting the bill. We listened to the minister’s concerns. We attended the briefings. We heard evidence from Queensland Police from the Australian Crime and Intelligence Commission. We heard from people from the AFP as well as from Tasmania Police.

We worked in good faith. We spoke at length with our stakeholders. We spoke at length with members of the public who contacted us - people who wrote me emails as late as this morning. I was receiving new emails with unsolicited comments from people who were voicing serious, genuine and reasonable concerns which had not been addressed.

We raised those concerns and we proposed possible amendments to test the concern and the willingness of the Government to amend the legislation as they said they were open to doing. We provided possible amendments potentially to satisfy, or at least consider whether it was possible to satisfy, some of the concerns that stakeholder groups provided to us.

What we found was absolutely no change; not only no change from the Government to the proposals that we made but no comment, no response, and no engagement; just another briefing.

We are in a situation now where we cannot support this bill. It is now a moot point whether we ever could have supported the bill. In our view it has failed to achieve the objectives that the bill ostensibly was established to achieve. There seems to be two bills that are operating here and I will go into this.

All the stakeholders in the civil liberties and justice disciplines agree that the bill has been drafted in far too broad a way. It is extremely wide in its definitions. It is silent in a number of important definitions that ought to be included in the bill, and it provides overreaching powers for a minister, essentially unchecked in the important factors, to severely curtail and inhibit the ability of people to associate and to express themselves.

The only strict limitation that has been placed on the minister to proscribe an organisation is that he must be satisfied that the proposed prohibited items may cause members of the public to feel threatened, fearful or intimidated, or may otherwise have an undue adverse threat on the health or safety of members of the public, or the amenity of the community including by increasing the likelihood of public orders or acts of violence.

The other qualifying factors in the bill are only matters that the minister must have regard to, including only having to have regard to the advice of the police commissioner, and whether or not a member of the organisation has committed a serious criminal offence, or a relevant offence, including public violence, damage to public property or disorderly, offensive, threatening or violent behaviour in public. This is a very weak test. There is a broad range of offences that have been listed and there is no way that they have to be actually linked to the activities of the organization. On top of that, a very important point, is that the minister only has to have regard to those matters and only has to have regard to the advice of the commissioner. The minister may regard the advice of the commissioner, but the minister may also disregard the advice of the commissioner, that is the point.

There has been a stubborn reluctance on behalf of the minister and the drafters of the bill to accept the concerns in the drafting of the bill by legal and civil liberties advocates, as well as to accept the concerns raised by members of both Houses of parliament.

In one of our three briefings on this bill, the officers stated quite conclusively - and I provide this by way of an example of the rigidity of the Government in this process - that they could not think of any circumstance in which it would be acceptable for a minister to proscribe an organisation without the explicit advice of the police commissioner. Yet as the bill itself is drafted, this is in fact what could happen, but this has not been changed. This was a particular matter we pointed out at our first briefing. There has not been any movement on that.

One of the officers at the briefing stated that the intent was for the commissioner - and this is in clause 5 of the bill - to initiate the process and not the minister. We were told yesterday that the recommendation to proscribe an organisation would be after a recommendation from the police commissioner, but the bill leaves it open and this has not been changed. The bill clearly leaves it open - and this has not been changed - clearly for the minister to initiate the process and to then have regard to or seek advice of the commissioner, which is contrary to the advice we received yesterday that practically this is not what would happen. It must be drafted and written down in black and white because we are required to look at a situation where there may in a future government or in a future situation be a minister who chooses not to do it that way but instead chooses to initiate an organisation being proscribed rather than have it as a recommendation from the police commissioner.

Both of those issues could be easily improved in the bill. We have not been provided with any identified reasons why our proposed changes should not be adopted. The only response we had was that it should not need to be changed because practically it would not operate this way, but if it is not the intent of the bill then what is the harm in amending the bill to make those changes? Of course these are the least of the significant flaws in the bill but they are a really perfect illustration of how the Government has been unreasonably rigid in this consultation process, despite a lot of assurances that there is an intention to try to work on this very important issue.

Many submissions were made to the consultation process raising concerns with the proposed structure of the bill, yet the bill we have before us today in no way differs to how it was described in the paper. It seems again that consultation, despite the rhetoric, means absolutely nothing to this Government. The minister will probably make some noise today and in the House about opposition to the bill, but throughout the process of the drafting there was absolutely no ground given to any of the legitimate concerns raised by stakeholders a long time ago. I would like the minister to put on the record whether in fact there were any changes made to the bill from the consultation draft in relation to submissions and suggestions that were made by the public. Could he please detail the ones that have done if there have been?

The other central issue of concern for us is the very confused message that has been sent out around the need for having this bill. In the initial briefing we had and in the public media releases, the expressed intent of the bill was about the need to disrupt recruitment efforts for serious organised crime and to reduce the attractiveness to Tasmania for so-called outlaw motorcycle gangs. It was expressed to us very emphatically in the first briefing we had that the police only want to target serious criminal organisations and these were described to us as organisations that systemically, methodically and deliberately engaged in acts of serious crime as a deliberate business model.

However, in the last briefing we had yesterday, when I asked why the bill in no way limits the power of the minister to target only serious organised criminal groups, the response I received was that that was not in fact the objective of the bill. The objectives are those that are set out in the bill themself and these read in clause 2:

The objects of this section are as far as practicable -

to ensure that members of the public may lawfully use and pass through public places without experiencing fear or intimidation because other persons are visibly wearing or carrying prohibited items; and

to reduce the likelihood of public disorders or acts of violence in public places.

That is a profoundly different objective to what we were given as the rationale, the motivation, the purpose for this bill, in our first briefing. In the briefing there was no time spent arguing the benefits about reducing public fear, but instead the people who provided information to us talked about the disruptive impact the bill would have on serious organised crime, so you can see there is a very mixed message here. One is the need for the bill being aggressively pushed for generating fear about serious crime, but when we asked why the bill doesn't limit itself to serious crime, the response we had is that it is not the intent of the bill, which is to prevent public fear and intimidation.

They are two very different bills and very different debates before us today. The public face of the bill, the one that will be in the front page of the Mercury tomorrow, is about targeting serious organised crime, but the actual bill here on the table before us is about targeting any organisation as long as the minister is satisfied that the organisation's insignia may cause public fear. You can see why civil liberty groups, justice groups and other groups who are involved in lawful peaceful protest might be very seriously concerned about the contents of this bill.

By way of context, the Tasmanian Liberals committed to resurrecting the controversial anti-protest laws before the election. They had that as an election commitment and they have vowed to fix the measures that the High Court found breached the rights of free speech. The Resources minister, Guy Barnett, said they would rework the legislation to get the balance right to support the rights of workers and businesses as well as protecting the continued right to free speech and the right to protest. He said:

We believe that it is a fundamental right for Tasmanians to be able to go about their lawful work without the threat of protesters intentionally shutting down and harming Tasmanian businesses.

Earlier this month, peaceful protesters held up logging operations for three hours in the state's remote west in the first forestry conflict since the High Court shot down the Liberals' original anti-protest laws after they were challenged by Bob Brown, long-time Greens and activist. Back in February, eight protesters gathered at a Forestry Tasmania logging coupe 100 kilometres east of the Arthur River defending the ancient trees that live in that area of the Tarkine.

This is relevant to today's discussion because when peaceful protesters were at the Florentine protest and at the Lapoinya coupe that was being logged last year, they reported that police officers had referred to them as thugs, as threatening. There were reports in the media that their appearance was threatening, that they were intimidating. If you look at the Sea Shepherd insignia on their black jackets and hoodies, they have pirate-style crosses. They go on the high seas, challenging Japanese whaling boats in the Antarctic. They are there ramming the sides of whaling vessels. People are putting their lives and bodies on the line to protect things they care so much about. The Greens will always support the rights of people to non-violent protest.

No doubt a case could be made to a minister of the day that people feel threatened and intimidated and sense fear because there is a group of people - protesters, ferals, hippies - wandering around wearing jackets or hoodies so you cannot see their faces and do not know what they are thinking. They are in groups. The point is that I raised the issue directly with the police yesterday that if this bill is clearly about outlaw motorcycle gangs, why doesn't it use the term 'outlaw motorcycle gang' in the bill to make it really precise that is what this is about? If this is about reducing the threat of outlaw motorcycle gangs and serious criminal activity –

Sitting suspended from 1 p.m. to 2.30 p.m.


Dr WOODRUFF (Franklin) - Madam Speaker, the point I was making is that there are many organisations with reasonable cause to be afraid because of the contents of this bill which, as drafted, could be used to target them and their nonviolent protest activities. The police and the minister have argued that they only intend to target five specific organisations. They professed that it will be limited to serious criminal organisations, but the refusal of the minister to explicitly limit the application of the bill to these bodies legitimises the concerns of organisations that have put in strong representations against the bill.

It has been suggested that the organisations that could be prescribed, were this bill passed, by a future minister, that those prescribed organisations would first be presented to parliament as a disallowable instrument. They would be presented before a joint standing committee for their assessment, but to rely on the ideological openness and the assessment of that committee and of that parliament misses the point. A number of far lower bars are presented that could be jumped through and, of course, it depends on the makeup of the House.

We were told that the minister would have to present his or her recommendations to Executive Council and would have to go through a joint standing committee. But, should a future parliament not have the numbers to be able to push through prescribing an organisation without suitable evidence of their involvement in serious criminal activity, it leaves open the prospect of not sufficient legislative detail in this bill to prevent that happening. It particularly leaves out the prospect of any appeal rights for a prescribed organisation if such an organisation seeks to exert its right to protest in the courts. There is no opportunity for that to occur as the bill is drafted, as I read it.

Let us not forget that, although it was stated that we should not be concerned about the looseness of the language in the bill and the ability for a minister to make a decision without having to take on the view or the advice of the police commissioner in so doing, the minister can initiate prescribing an organisation.

In the last term of government, we had a parliament that passed a law restricting the right of people to peacefully protest in Tasmania. Parts of that law were found to be unconstitutional at the High Court. If it were not for the work of Dr Bob Brown, Jessica Hoyt and the other people who took that case against the Tasmanian Government all the way through to the High Court, we would still have today, an unconstitutional law, passed by this Liberal Government in the last term of parliament. It is not enough to rest on hoping that it can be disallowed by a parliament in future. If a parliament is willing to pass law in breach of the constitution that restricts the right to political speech, then it is possible that a parliament in the future would allow a peaceful protest organisation to be prescribed under this bill.

The minister flagged in his second reading speech that he intends to bring a consorting bill into parliament later this year, a piece of related legislation. It would appear that the minister, in the process of the consultation on this bill and of the drafting and briefings we have had, has not taken on board the serious comments and suggestions for change made to him.

I strongly suggest, minister, that given the problems with this bill, that when the consorting bill comes around, it should be produced for a final consultation before the final bill is tabled in parliament and that a serious attempt be made in that bill to listen to the concerns of stakeholders and to incorporate their comments.

I will finish up with a couple of specific comments that were raised by stakeholders that have not been presented so far. One of these relates to the use of the term 'amenity':

(5) The Minister may only recommend that an organisation be prescribed … having regard to the advice of the Commissioner, that the wearing or carrying of a proposed prohibitive item, in relation to the organisation, by a person in a public place -

(b) may otherwise have an undue adverse effect on the health or safety of members of the public, or the amenity of the community, including by increasing the likelihood of public disorder or acts of violence.

The Civil Liberties Council makes a very important point that 'amenity' means pleasantness which is a very different concept to violence. It has a much lower threshold to satisfy before insignia were to be banned, which is ostensibly the objective behind this. Pleasantness is also much more subjective and difficult to define compared to concepts of violence and fear. It therefore creates the risk of being implied much more widely against groups that in the future may be unpopular for one reason or another. This again contradicts the supposed rationale of the bill, which is about cracking down on serious criminal activity of outlaw motorcycle groups. It is something that we would hope is noted by members of the other place in the assessment of the bill.

I also draw attention to the language of the minister in the second reading speech. It makes reference to outlaw motorcycle gangs. It is important in the context of this material and of this issue to remove the hyperbole. The concern that was raised by the Lawyers Alliance was that the use of the word 'gang' is unnecessarily loaded. It is a pejorative term and that 'outlawed motorcycle activity' would be a much more appropriate term.

I will finish up by saying the Greens will not be supporting this legislation. We support the underlying -

Mr Ferguson - Shame.

Dr WOODRUFF - It is unfortunate that you say it like that, minister, because we have worked really hard to try to come to an understanding on this serious matter and we have done so in good faith. In good faith we will also listen and represent the views of the stakeholders who have not been listened to in the drafting of this bill.