Friday, June 27, 2014

Nil-All On Anti-Protesting

Last night the new Tasmanian state Liberal government fulfilled one of its election promises by passing the Workplaces (Protection From Protestors) Bill 2014.  This bill was mainly inspired by a desire to crack down on anti-forestry protestors who obstruct lawful businesses.  We haven't seen that much of that sort of thing lately in Tasmania, but based on the new government's attempts to rip up what it can of the forestry "peace deal" passed during the last government's rule, we may be seeing more of it quite soon. Anti-forestry protests are considered a problem not just because of the obstruction to workers they create, but also because the ease of conducting illegal anti-forestry protests greatly assists activists to gain media coverage that helps in their attempts to damage the industry's brand.

(Note added: There are already laws covering obstructive protests, including in forestry coupes, and of course trespass law covers many protests on business premises.  However, the government has backed those who consider that the penalties delivered by the courts are often token, excluding perhaps the most determined and recidivist offenders, who have been imprisoned in very rare cases.)

In any case, the legislation goes far beyond forestry and other environmental protests, and in fact covers any kind of protest (with very limited exceptions) that "prevents, hinders or obstructs the carrying out of a business activity on the premises by a business occupier in relation to the premises" or "prevents, hinders, or obstructs access" to a business activity.  It also covers protests on public land that knowingly obstruct "the movement of a vehicle, vessel or aircraft used by a business occupier in relation to business premises" and a range of business obstructions that might take place on public land - for instance the obstruction of a private business or government business enterprise in a forestry coupe.  

One crunchy bit is that a person breaking this law can be moved on by police, and if they then remain in the area, or return to it within four days, then should they be charged and found guilty there is a mandatory minimum $5,000 fine. Strike two for this offence is a minimum three-month prison term.  (Minister for Resources Paul Harriss very correctly pointed out that prosecution is not automatic and is at the discretion of the Director of Public Prosecutions, but I am doubtful confidence in said office is currently at an all-time high.)  The second crunchy bit is that people who prevent, hinder or obstruct businesses or access to business premises can be hit with a $2,000 infringement notice.

There are a number of things that can be said against this bill in its current form.  One of my concerns is that the word "hinder" (in relation to a business operation) is rather vague.  Does a protestor standing outside a store in its "access area" (but not obstructing anyone) and chanting a slogan against its business practices that can be heard inside the store "hinder" the business in selling its products, if the effect is to drive business away?  

Another is the sheer reach of the law - farmers protesting against fracking, and Tasmanian Aboriginals protesting against the construction of a bridge over a sacred site were plausible examples mentioned by the Greens leader Kim Booth in his speech against the proposal. The interlock between government and business is so extensive these days that all kinds of protests that don't even look like obstructions of a private profit-making business can fall under the wording of this bill - or be incorrectly thought to.  

In 1996, following one of the very few student union rallies of the time that was actually worth the time of day (a rally against university funding cuts), a small subset of the protest briefly occupied the foyer of the building where Senator Eric Abetz had his office.   However, the occupation (which I didn't participate in) caused some disruption to businesses sharing that foyer, who were not its intended targets. So a perhaps unexpected consequence of this bill could be an effective and large quarantine zone around the offices of politicians who were smart enough to embed their offices within a protected private business, with any protestor targeting the politician's office and knowingly impeding a business in the process facing massive penalties.  

Something else that bugs me about this bill is the one-size-fits-all approach to mandatory minimum penalties. Forestry protests occurring in remote areas that police cannot easily and quickly reach are often hugely disruptive to contractors, who might end up wasting a whole day because of a protest by a single activist. Large fines against such activists are entirely appropriate as a deterrent. But protests occurring near businesses in cities are often much less disruptive to the whole of the business's activity and far more easily broken up quickly by police under existing laws.  Yet protests that are basically just minor nuisance value to large urban businesses are treated by this bill on the same level as remote forest protests that can directly deny a forest contractor their workplace for the day.  

With the exception of the traditional areas of anti-forestry and other green or perhaps unionist protests, it's not clear what current political need this sort of legislation serves and why (apart from an attempt to not be seen to favour specific industries) it has to be anywhere near so broad.   

Anyway, you can hear similar and other points against this legislation from the Labor Opposition and the Greens, the Law Society and various so-called civil liberties groups, or any number of green leftists on #politas.  Supposedly it's all draconian, excessive, the road to a police state, reminiscent of Sir Joh or even Campbell Newman, anti-democratic, an unjust restraint on free speech, and redolent of fascism.  

Whatever merit those claims have (excepting the last, which has none), the re-elected Labor and Green MHAs are the last people on earth to be complaining, and I will not cease reminding them of why, no matter how boring my recycling of the subject gets or how few people care.  After all, while the Liberals' bill may well be (and I'm increasingly thinking is) over-generalised, inflexible, excessively punitive and severely underbaked, at least it only regulates where you can express a given point of view in the course of a protest (and even then, mainly if you continue to do so after the police tell you to scram.)  It does not seek to regulate what you can say. We don't have to look back far to see the last attempt to go that pernicious step further, because it came from Labor and the Greens.

In late 2012 Labor and the Greens passed amendments to the Anti-Discrimination Act that, among other things, would have made it an offence to knowingly ridicule, insult, or offend a person on the basis of their political and religious opinions, no matter how legitimate the purpose for doing so or how richly the target deserved it.  This particular aspect of the amendments was snipped by the Legislative Council, and the end result of negotiation between the Houses over the amendments was an excellent set of discrimination law reforms.  But that did not occur before the ALP/Green government showed it was all at sea on the idea of freedom of speech, as it introduced a massive rewrite of the fabric of Western political communication in the guise of a clumsy response to a low-level moral panic about "bullying".

So it was kind of amusing (but rather more on the depressing side) to hear Labor and Green MHAs railing against the anti-protestor laws as the most draconian thing they had seen in their time in the parliament and a major threat to freedom of speech in this state.  Really, after the atrocious legislation they complacently put through the House less than two years ago, it is only thanks to the Upper House (such as it is) that there is that much freedom in Tasmania left to save.  

We have two bills less than two years apart that both impose major restrictions in the name of a perceived threat, and that both represent legislation that could do with some major panel-beating.  On the second, much of the Tasmanian left is up in arms while the first was either given a free pass by the left or else promoted by it, nearly without exception.  So far as Labor, the Greens, and their sycophants are concerned, it's "draconian" when free speech is attacked in a way that hurts your allies, but if it is attacked in a way that seems to only hurt those nasty righties (but in fact hurts nearly any political persuasion without hurting the trolls and bullies it was directed at), then that's dandy.  The sentence you are now reading has been toned down from the original, but it still says that Labor and the Greens (exempting those members not in the previous parliament) have displayed severe inconsistency in their attitudes to free speech on this issue compared to that one.

The strange thing is, I actually don't think that they know it.  I think those on the opposition benches who attacked the current government's proposal were largely sincere in their opposition to it (with a degree of exaggeration and theatrics, perhaps) and had no comprehension that their own behaviour less than two years ago was on balance about as bad.  I often find that when politicians of either side are confronted with evidence of their own ideological inconsistency, they just don't seem to have the philosophical toolkit to grasp the argument.  This is a problem they share with many of their rank and file supporters, who share their unfortunate ability to be outraged when the free speech of their own side of politics is unfairly restricted, and unable to even register when it is their own side doing the restricting.  (And it's a problem that is all-pervasive in politics: even US Supreme Court judges aren't immune.)

Unsurprisingly, not all the Liberals in the Lower House scrub up any better than the ALP and Greens.  Last year the Government passed abortion law reforms that include a 150-meter "access zone" around abortion clinics in which protests could not occur.  The reason for these zones was to ensure women seeking abortions could not be harassed by protests and "vigils" around clinics, and there was no mandatory sentencing employed.  (These laws also differ slightly from laws protecting businesses in that they primarily protect a woman seeking a termination of pregnancy from harassment, not a business from inconvenience and loss of profit.)  Yet Will Hodgman trotted out exactly the same argument now being used against his own party's laws on other protests: that the law "seems to be a response to a non-existent problem and appears to impede free speech" and that there were other laws available to address the alleged problem.   Jacquie Petrusma also opposed access zones.  More consistency was displayed by Rene Hidding (!!) and Adam Brooks, who both supported access zones (although they still voted against the bill as a whole.)  

Does This Bill Have A Chance?

There's not a lot of psephological juice in this one: the government had the numbers, they rammed the bill through, and now it's off to the interesting stage of its life - "upstairs".  I expect this bill to be given short shrift by the left side of the Legislative Council (Farrell, Finch, Forrest, Gaffney, Valentine) leaving it in the familiar situation of, for instance, needing at least two of Taylor, Armitage and Mulder to pass.  It's possible also that some of the more conservative non-Liberal MLCs will not support it in its current form.  The Government may consider its political mission accomplished just by having lived up to its pre-election posturing on the issue (just as its defeat on World Heritage Area boundaries will do it no harm whatsoever) and should consider whatever it can actually get out of the LegCo to be a bonus.  The LegCo is likely to want to tread the path of showing that it is listening to the government's mandate, but at the same time that it will not just be a rubber stamp for whatever rushed legislation the government puts forward.  Thus, I won't be too surprised if this is heavily amended.  (Or perhaps even if the LegCo announces that it is very sympathetic but, sorry, the bill is apparently unconstitutional, and rejects it altogether.)

Saturday update: My Twitter mailbag late at night after releasing the above rant confirmed suspicions in the House on Thursday night that the current Premier's bedtime might be earlier than his predecessor's.  

In subsequent tweets the Shadow Attorney-General and former Premier made further valid points (at least by 140-character-per-message standards) about the large differences in sentencing between the Anti-Discrimination changes I referred to and the Liberals' new proposal.  The fuss about the current bill is at least as much about the severity and inflexibility of the punishments as about the kinds of new offences (to the extent that they even really are new) being proposed to be created.  The combination of extreme penalties and unintended reach - that someone might be mandatorily sentenced or hit with a large infringement notice over something that the bill's drafters didn't even mean to make illegal - is the worst part of the problem.   

The punishments available under the Anti-Discrimination Act in contrast are pretty minor on the surface and are highly discretional, although if a person is ordered to apologise or agree to shut up and fails to comply on principle they could still end up in the same boat as anyone who defies an order of the Supreme Court.   So while the restrictions on free speech attempted by the previous Government were far more extensive, they would also have been much less harshly punished.  (These points have prompted some toning down of my comments above in a few places.)

That said, the process of defending against an anti-discrimination complaint can be quite a drawn-out punishment in itself, and it is one that is especially open to being visited upon those who turn out to be innocent.  Also, a person who is frequently involved in forthright debate could have found themselves to be the target of constant multiple investigations and a blizzard of minor penalties under the proposed changes, and the net effect of that in terms of forcing them to change their ways (or else) would be not much different to that of the current bill on the choices of the serial forest protestor.  Ali Alishah has been arrested 20 times, but had the proposed ALP/Green anti-discrimination changes existed through my life I could have been dragged before tribunals 5000+ times, nearly all of those for standing up to obnoxious internet trolls and/or the peanut gallery on Tasmanian Times.  

And indeed if there is any issue that demonstrates why the former government's Anti-Discrimination proposals were so wrong it is this one.  Ridicule and harsh speech can be powerful and important weapons against bills such as this.  But had the former government's proposals been passed by the Legislative Council, then those trying to complain about the new government's anti-protest proposals now would have found their wings severely clipped.  Any time they said that a particular minister's viewpoint on the matter was absurd, or reminded them of fascism or Joh or the convict era (and so on) they could have found themselves hauled before a tribunal to answer an anti-discrimination complaint that they had offended, insulted or ridiculed another person on the grounds of that person's political beliefs or political activity.  If the former government truly believes that fighting against "police state" laws like this is so important (and I have no doubt it does), why on earth did it support amendments that could have taken away so many of the words needed to do it?  

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