On Tuesday a small public protest was held in Devonport, a coastal city in northern Tasmania. It was, as someone described on social media, a protest by “shop-keepers, farmers, fisherman, bakers, retirees and accommodation operators” who felt they were “left out by decision makers”.
Such protests might not always get the attention they deserve from the media. They are lucky to get a newspaper headline here, or a spot on the evening news there. But protests like these are the lifeblood of our democracy.
Not all of us have the connections to get an audience with politicians, or the funds to buy political advertising. Few can engage well-dressed lobbyists and schmooze at fancy dinners. There are many well-documented shortcomings with Australia’s political system, which give powerful industries a louder voice in policy debate.
But the thing about protesting, about taking to the street and speaking up for the causes we believe in, is that it remains open to everyone. When enough of us come together to express our views, to show solidarity and demand change, decision-makers must listen. Protest is the ultimate in equal-opportunity political action.
Alarmingly, in Tasmania, the freedom to protest is under threat. As the protest was taking place in Devonport, the Tasmanian upper house was in the final stages of preparing to debate a draconian anti-protest law which will come before it on Wednesday. The police offences amendment (workplace protection) bill 2022, if passed, will have a chilling effect on protest in Tasmania. It is a cruel irony that as the Devonport protesters were busy having their say, the Tasmanian parliament was considering whether to criminalise some forms of protest activity.
The law will amend and expand criminal offences relating to protest activity. A community member marching on the streets to Parliament House could be jailed for three months if deemed to have caused an unreasonable obstruction. An underpaid hospitality worker who attends a workplace to demand entitlements, and obstructs the business in the process, could be fined more than $8,000.
This is the fourth time the Tasmanian Liberal government has tried to pass laws which restrict protests – particularly forestry and mining protesters, at whom this law appears to be squarely aimed. After first being enacted in 2014, a different law was struck down in the case of Brown v Tasmania (the Human Rights Law Centre intervened as a friend of the court). The high court held that it violated the implied freedom of political communication, with one judge noting that the law operated “with Pythonesque absurdity”.
On the other occasions, the state government has found itself stalled in the drafting phase and blocked by parliament. But now, on this latest attempt, there is a real risk that the Tasmanian legislature may finally pass this draconian, anti-democratic law. Unless the bill is blocked by the crossbench and Labor (which unsuccessfully moved an amendment in the lower house, to give industrial protest a special carve-out), it will become law.
It should not. The law is unnecessary: the government has failed to show any need for the changes. It says the bill is necessary to protect worker safety and denies it is aimed at legitimate protest. But a recent estimates hearing was told that the regulator, WorkSafe, had not received a single protest-related safety complaint at a worksite in the past eight years. To the extent the government is worried about violent protests, existing laws already provide a range of criminal offences.
But this law goes much further. It is disproportionate, providing severe penalties that far exceed anything in other Australian jurisdictions. It is vaguely drafted, which will give police arbitrary power. It even risks inadvertently criminalising homelessness due to the general obstruction offence. In short: it is a bad law – a law that is not needed, and may well be unconstitutional, for the same reasons that invalidated the last one. The Tasmanian Legislative Council must block this bill; it is expected to vote on the draft law on Thursday.
Tasmania has a history of anti-protest efforts but it is far from alone. This year New South Wales hurriedly enacted an anti-protest law in an apparent response to climate protests. That law is arguably worse than the Tasmanian bill; it too may face challenge in the high court. Both will serve to discourage ordinary Australians – from schoolchildren to pensioners – from taking to the streets and having their voices heard.
And it doesn’t stop there. The state government in Victoria has anti-protest laws before parliament now. Those amendments would impose harsh penalties for protestors who prevented or disrupted forestry activity. Queensland has also experimented with laws that criminalise protest activity. Anti-protest laws are proliferating across Australia.
These laws might be invalid if they were enacted in many other nations. Yet Australia is unique among comparable liberal democracies in lacking robust legal protection for human rights. Without enforceable human rights laws at a federal, state and territory level, these attacks on fundamental democratic freedoms will continue. (Victoria is one of the few Australian jurisdictions that does have a human rights charter, which may leave the Victorian government’s proposed law susceptible to legal challenge.)
Throughout history, protest has helped to make Australia a better place. Because courageous Australians took to the street in decades past, we have workplace rights, voting rights and environmental protections. If these efforts to restrict protests continue, we may not be able to effectively advocate for the important social change that must come next – from gender equality to climate action to the end of whistleblower prosecutions.
When we silence the shop-keepers, the farmers, the bakers and the retirees, we silence Australia. Anti-protest laws are an affront to democracy. They have no place in this country.
• Kieran Pender is a senior lawyer at the Human Rights Law Centre
