11 Dec 2014

Protection from protest: a new standard to minimise business disruption in Tasmania

by Nick Thomas, Tom Dougherty

Protest action in Tasmania will now face tough controls designed to minimise interference with business activity, particularly mining and forestry projects.

Businesses in Tasmania, specifically including mining and forestry, may soon have significant protection from protest activities, with the passage through the Tasmanian Parliament's Upper House of the Workplaces (Protection from Protestors) Bill 2014.

Following amendments in the Upper House, the Bill will return to the Government-controlled Lower House for confirmation in the new year, where it is anticipated it should be passed.

The Bill imposes criminal sanctions for a range of protest related activities, and is specifically intended to protect economic activity. It breaks new ground in Australia, and may provide a significant precedent for governments around the country which are concerned about the effect of protest activities on Australian businesses.

Broad scope of the prohibition

According to the Second Reading Speech for the Bill, it "regulates protest activity to ensure that where protesting starts to unduly interfere, interrupt, obstruct or hinder the ability of business to develop and operate productive, job creating ventures and for workers to go to work and do their jobs safely and productively then that protest action is going too far".

The Bill prohibits a person from entering or remaining on "business premises", or doing an act on business premises" if:

  • that action "prevents, hinders or obstructs the carrying out of a business activity on the premises by a business occupier in relation to the premises"; and
  • the person knows, or ought reasonably to be expected to know, that that action is likely to have that effect.

The key terms in this prohibition are very broadly defined:

  • "protest activity" includes activities 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";
  • "business premises" includes vehicles used for business purposes; and
  • "business activity" includes activities for profitable purposes, activities by government business enterprises, and other activities by occupiers of "business premises".

The prohibition extends to a "business access area", which is an area of land outside of the business premises used to enter or exit the workplace.

The Bill imposes various other prohibitions, which cover (among other things) acts on roads, footpaths and other public places, causing damage to business premises or "business-related objects", and threats of damage to business premises, and various forms of incitement to take prohibited action. The Bill also gives police strong powers to require persons to leave "business access areas" and remove obstructions.

The prohibition does not include participation as a bystander, participation with the consent of the relevant "business occupier" or "business operator" (in the case of workers), various forms of industrial action, and other activities prescribed by regulation.

Significant penalties

The Bill allows police officers to issue "on the spot" infringement notices to persons whom they reasonably believe have committed or are committing an offence, with penalties of $2,000 for individuals.

Otherwise, offences in the Bill are taken to be indictable offences, and some offences carry minimum fines of $5,000 and, in the case of repeat offences, minimum gaol terms of 3 months.

The Bill also empowers the Court to make compensation orders against a person convicted of an offence.

An Australian precedent?

This type of legislative protection against protest activity for businesses does not exist in other Australian jurisdictions. The Bill is, in some ways, consistent with some views expressed by the NSW Minerals Council, who recently called for harsher penalties to be imposed on professional activists and illegal protest activity in NSW.

The strong stance in Tasmania against illegal protest activity may cause other State and Territory governments to consider protections from protest activity.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.