IN an embarrassing setback, the state government has failed to get its own anti-protest legislation scrutinised, at its own request, by the Legislative Council. In an effort to spin the upper house snub, the government labelled it a Labor backflip, ignoring the independent status of MLCs and warnings from the centre about the bill. The controversial Workplaces (Protection from Protesters) Bill punishes protesters and groups - who enter, damage or hinder businesses - with large fines and mandatory jail for repeated offences. The stated aim of the bill is to send a "strong message to disruptive and irresponsible extremist protest groups". The government's failure to move the legislation to committee can be interpreted several ways. The proposal is certainly on the nose within sections of the community, including farmers who helped take down a Labor arson bill last year. It might be that MLCs are loath to be stuck polishing the proverbial Bondi cigar. Legislation-wise, it's a dog's breakfast - vague, confusing and potentially constitutionally invalid. The setback, though not fatal to the bill, is a double blow: not only is the bill linked to what the Liberals have come to stand for (resurrecting forestry), it's also the first of their "tough on crime" laws to come before Parliament. The anti-protest laws were always going to cause more of a stir than the Liberals' plans to axe suspended sentences, introduce mandatory jail for sex offenders or roll back defamation reform. After all, nobody gives a toss about prisoners (who find it hard to get down to Parliament's lawns for a protest as long as Risdon's walls hold up) and perhaps even less so the gripes of journalists. But the anti-protest bill is the canary down the coalmine - if it survives the passage of the house then the others are likely to as well. By sending it to the committee, the government was probably quietly hoping that MLCs would wrangle the legislation into a more politically digestible form. In this scenario, the government could have shrugged its shoulders and told voters it had tried sending a message to extremists but MLCs watered it down. Now the government must fix its own bill which could involve a backflip of its own. But that is the lot of all governments who make populist pledges before an election only to discover they have to implement them. If the Liberals do excise from the bill the mandatory jail provisions or large fines, they'll no doubt be jumped on by the Greens and Labor. This would be a shame, given that such penalties are poor public policy. As a society, we've generally come to accept that judges are best placed to decide what punishment fits the crime. When democratic governments do thumb their nose at the separation of powers, it's usually for far more serious offences than protests. The debate surrounding the bill has been full of claim and counter-claim so it's instructive to actually examine the more controversial parts of the legislation. Section 6(4) states a person must not intentionally protest on "a road, footpath, public place, or another area of land" if it causes a vehicle, vessel or aircraft used by a business to be "prevented, hindered or obstructed". The penalty for doing so is a fine of $2000. Or if the person takes it to court and loses, the magistrate must impose a minimum $5000 fine, capped at $10,000, or for a second offence, a minimum three-month prison term. Section 7 prohibits protesters from damaging, or threatening to damage, a business premises. The penalty for an organisation is a maximum $250,000 fine. The maximum penalty for an individual is a $50,000 fine and five years' prison. Section 10 says a person "must not incite" others to commit the above crimes with penalties for an organisation capped at $250,000 or $50,000 for an individual. Hired by the Greens to provide a legal opinion, Hobart barrister and former crown prosecutor Greg Melick, SC, said there was a "high risk" that individuals who weren't extremists could fall foul of that legislation, which contained penalties much more severe than what already existed. He stated the bill's constitutional validity was open to challenge. Mr Melick's expert opinion isn't the ranting of a left-wing nutter nor is Wednesday's legislative shoot-down by the upper house a Labor-Green conspiracy. And I'm not sure how you frame legislation that unites environmental activists and farmers. Unless the Liberals want to dig in as extremist ideologues rather than moderates charting a steady course back to economic stability, it's back to the drawing board on this one.
IN an embarrassing setback, the state government has failed to get its own anti-protest legislation scrutinised, at its own request, by the Legislative Council.
In an effort to spin the upper house snub, the government labelled it a Labor backflip, ignoring the independent status of MLCs and warnings from the centre about the bill.
The controversial Workplaces (Protection from Protesters) Bill punishes protesters and groups - who enter, damage or hinder businesses - with large fines and mandatory jail for repeated offences.
The stated aim of the bill is to send a "strong message to disruptive and irresponsible extremist protest groups".
The government's failure to move the legislation to committee can be interpreted several ways.
The proposal is certainly on the nose within sections of the community, including farmers who helped take down a Labor arson bill last year. It might be that MLCs are loath to be stuck polishing the proverbial Bondi cigar.
Legislation-wise, it's a dog's breakfast - vague, confusing and potentially constitutionally invalid.
The setback, though not fatal to the bill, is a double blow: not only is the bill linked to what the Liberals have come to stand for (resurrecting forestry), it's also the first of their "tough on crime" laws to come before Parliament.
The anti-protest laws were always going to cause more of a stir than the Liberals' plans to axe suspended sentences, introduce mandatory jail for sex offenders or roll back defamation reform.
After all, nobody gives a toss about prisoners (who find it hard to get down to Parliament's lawns for a protest as long as Risdon's walls hold up) and perhaps even less so the gripes of journalists.
But the anti-protest bill is the canary down the coalmine - if it survives the passage of the house then the others are likely to as well.
By sending it to the committee, the government was probably quietly hoping that MLCs would wrangle the legislation into a more politically digestible form.
In this scenario, the government could have shrugged its shoulders and told voters it had tried sending a message to extremists but MLCs watered it down.
Now the government must fix its own bill which could involve a backflip of its own.
But that is the lot of all governments who make populist pledges before an election only to discover they have to implement them.
If the Liberals do excise from the bill the mandatory jail provisions or large fines, they'll no doubt be jumped on by the Greens and Labor.
This would be a shame, given that such penalties are poor public policy.
As a society, we've generally come to accept that judges are best placed to decide what punishment fits the crime.
When democratic governments do thumb their nose at the separation of powers, it's usually for far more serious offences than protests. The debate surrounding the bill has been full of claim and counter-claim so it's instructive to actually examine the more controversial parts of the legislation.
Section 6(4) states a person must not intentionally protest on "a road, footpath, public place, or another area of land" if it causes a vehicle, vessel or aircraft used by a business to be "prevented, hindered or obstructed".
The penalty for doing so is a fine of $2000. Or if the person takes it to court and loses, the magistrate must impose a minimum $5000 fine, capped at $10,000, or for a second offence, a minimum three-month prison term.
Section 7 prohibits protesters from damaging, or threatening to damage, a business premises.
The penalty for an organisation is a maximum $250,000 fine. The maximum penalty for an individual is a $50,000 fine and five years' prison.
Section 10 says a person "must not incite" others to commit the above crimes with penalties for an organisation capped at $250,000 or $50,000 for an individual.
Hired by the Greens to provide a legal opinion, Hobart barrister and former crown prosecutor Greg Melick, SC, said there was a "high risk" that individuals who weren't extremists could fall foul of that legislation, which contained penalties much more severe than what already existed. He stated the bill's constitutional validity was open to challenge.
Mr Melick's expert opinion isn't the ranting of a left-wing nutter nor is Wednesday's legislative shoot-down by the upper house a Labor-Green conspiracy.
And I'm not sure how you frame legislation that unites environmental activists and farmers. Unless the Liberals want to dig in as extremist ideologues rather than moderates charting a steady course back to economic stability, it's back to the drawing board on this one.
