INCLOSED LANDS, CRIMES AND LAW ENFORCEMENT LEGISLATION AMENDMENT (INTERFERENCE) BILL 2016

15 March 2016

2nd Reading Speech


The Hon. ADAM SEARLE (Leader of the Opposition) [8.27 p.m.]: I speak on the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016. The Opposition resolutely opposes this bill and the measures contained within it. This bill is completely unnecessary. If the Government has concerns about issues such as trespass, obstruction and criminal damage in the Crimes Act and elsewhere there is panoply of existing laws that comprehensively deal with these matters. For example, if the Government is concerned about coal seam gas and mining operations there are very specific provisions in section 125C, obstruction of holder of petroleum title, of the Petroleum (Onshore) Act. The Mining Act also has a range of offences, such as section 257, obstruction of a person on a mine site, and section 378B, obstruction of the holder of mining authorisation. They contain penalties higher than those contained in this legislation, but that is not the real purpose of this bill.

The Hon. Walt Secord: Sinister.

The Hon. ADAM SEARLE: I acknowledge that interjection. The purpose of the bill is to try to threaten and intimidate citizens of this State from engaging in peaceful and lawful protest as they have been able to do for generations. The bill contains a range of provisions aimed at elevating the rights of coal seam gas and mining companies above that of other private properties owners. It also contains, in what can only be described as a series of extraordinary measures, powers for police confiscation of private property without recourse to the courts. For a party that claims to respect private property rights these measures are quite breathtaking. In addition, the legislation contains measures to enable police to effectively shut down peaceful protests not only on inclosed lands or adjacent to inclosed lands, not only in relation to mining or coal seam gas, but across the board, because these amendments are to the Law Enforcement (Powers and Responsibilities) Act, which applies generally to peaceful protests and the like. These measures are insidious, they are anti-democratic and they create a narrative which is attempting to stifle public discussion and dissent.

In particular, this law is aimed specifically at non-violent protests. Australia—indeed, this State—has a long history of non-violent protest and has been a world leader in promoting and effecting social change through community movements engaged in campaigning and in protests. Violence has not generally been a feature of those movements. Therefore, it raises the question: Why does the Government believe it needs this law? In the Minister’s press release on Monday 7 March, apart from a summary of the legislation, there is only a bland claim that the bill will ensure the right to peaceful protest is balanced with the need to ensure public safety, the safety of workers, the protection of communities and lawful business activity.

But on the radio the Minister spoke about actions for which the bill is required and I believe he referred to things such as the cutting of powerlines and tampering with explosives. Those matters, if ever established in fact, are already serious criminal offences and they are not addressed by this bill; they are addressed elsewhere in the law. So in one sense this bill rests on a complete fraud by the Government. But, as I said, there are a series of provisions in the bill which are insidious and anti-democratic and should be opposed root and branch. All of the activities that could disrupt business activities covered by these new anti-protest laws, if they are passed, are already covered by existing minor public order offences, such as obstruction and trespass or, as I mentioned earlier, specific provisions of mining and gas legislation. I believe that these laws, taken together, represent a significant attack on our collective freedoms and they should be utterly rejected.

Schedule 1 deals with an amendment to the Inclosed Lands Protection Act 1901 to create an aggravated form of the offence of unlawful entry on inclosed lands and it provides for a tenfold increase in the maximum penalty that currently exists for trespass in the Crimes Act. New section 4B will apply not only to mining or petroleum operations but also to any site upon which any business or undertaking is conducted. Therefore, it will penalise any person who interferes with, or attempts or intends to interfere with, the conduct of a business or an undertaking. This provision, if enacted, would elevate business activity, business premises and undertakings above other private property rights by providing for a higher penalty for that offence. Interfering with someone’s property rights carries a maximum fine of $500, but interfering with business activities carries a $5,500 fine.

We are seeing the party of big business talking, because this provision, if enacted, would elevate the rights of business over the rights of any other property owner. Nothing could speak more clearly to that than this provision. The idea of business rights taking precedence over civil or political rights or even over other private property rights is a new and retrograde development in our democracy and should be rejected by this House and by this Parliament. Schedule 2 amends the Crimes Act 1900 and adds petroleum gas operations within the definition of a “mine” for the purposes of the offence in section 201 of the Crimes Act of interfering with a mine. This is an offence that carries a maximum penalty of imprisonment of up to seven years.

As I indicated, it would extend the definition of a “mine” so that it extends to equipment and other things associated with a mine and to a gas or other petroleum extraction site; a mineral or gas or other petroleum exploration site; a work construction site for proposed minerals, or gas or other petroleum, extraction; and a former mine at which works are being carried out to decommission the mine or make it safe. The effect of schedule 2 is that protests at coal seam gas or other gas operations could now fall within the scope of this offence, which, as I indicated earlier, carries a maximum penalty of up to seven years. The amendments would mean that not only people protesting—for example, at Bentley or at the Pilliga—but also landholders who oppose coal seam gas drilling rigs from coming on to their properties could, in future, be charged with interfering with a mine under section 201 of the Crimes Act.

It is the case that landholders in New South Wales have no legal right to prevent mineral exploration or extraction on their property, and we understand that; the Labor Party accepts that as a cornerstone of this State’s approach to resources development generally. However, if a petroleum production project is approved on a farmer’s property and that farmer or his family or friends take action to block access to the farmer’s own property and this becomes law they will be able to be charged with interfering with a mine. Landholders could therefore be arrested on their own property for hindering the working of coal seam gas equipment that has been driven onto their property by extraction companies.

This extraordinary legal power is completely at odds with the principles of land access signed by Santos and the NSW Farmers Association and would, if enacted, hand to coal seam gas and other mining companies de facto ownership of farming land in this State with rights in excess of those enjoyed by the actual landholder. For a Minister and for a political party—the Liberal Party—that claim to respect and to be founded on the protection of private property rights, this is extraordinary legislation. But The Nationals—a party that claims to represent farming communities and rural and regional New South Wales where so many of these contested matters have been occurring—are completely derelict in their duty to respect and to speak up for their communities. As I indicated, the effect of this expansion of the definition of a “mine” will be to criminalise the peaceful protests that have been occurring in connection with coal seam gas across this State and to criminalise the right to protest enjoyed by regular citizens—a right that they have enjoyed for generations and a right which we must protect and hand down to generations to come.

It would simply be an outrage if these provisions were enacted and we were to say to farmers that if they protest on their own property they can be charged with this offence and be made a criminal. That is not the way to deal with these often divisive community discussions about resources and about the coal seam gas industry. There are better ways and we must find them together, not enact provisions that divide our communities and criminalise regular people seeking to stand up for their land and for their communities. This is not a case of saying that farmers should not be allowed to protest about other people’s projects; this would affect farmers trying to protect their own land as well and we simply should permit that right to protest, to resist and to say to whoever is the government of the day, “We disagree respectfully with what you are doing and we will protest about that.” Criminalising and exposing landholders to the risk of serious jail time is not the appropriate or the right approach; it is completely outrageous.

Schedule 3 amends the Law Enforcement (Powers and Responsibilities) Act 2002 and adds a new division 7 at the end of part 4 that provides for additional—and, quite frankly, extraordinary—search and seizure powers in relation to lock-on devices. The new section 45A applies to anything that is intended to be used to lock on or to secure a person to any plant, equipment or structure. The new section 45B provides a police officer with the power to stop, search and detain a person or vehicle on the grounds of a reasonable suspicion that a person has possession of a thing to which the division applies and for seizure of such items. It enables the police to do that on the basis of suspicion, or reasonable suspicion, not on the basis of any search warrant.

The division provides for a power to seize private property on the basis of suspected and proscribed future intended use. It will extend to common items such as bicycle locks, padlocks, chains, ropes, barrels and tins. Some of these could be common items in vehicles of farmers or tradesmen. It is possible that it could even extend to tractors or other agricultural machinery or trucks and the like, if the police suspected that these were intended to be used as part of a lock-on installation or otherwise posed a threat to public safety. Under this legislation farmers could take items of equipment to protests and have them seized by police. That equipment may be very expensive trucks or articles of farm equipment worth tens of thousands of dollars or more and subject to financing with high interest rates. They could be forfeited to the Crown permanently—farmers would not get them back.

Mr David Shoebridge: You can buy them back at auction.

The Hon. ADAM SEARLE: I do not know if you can.

Mr David Shoebridge: To the highest bidder.

The Hon. ADAM SEARLE: I acknowledge that interjection. What we have here is the confiscation of property and property rights, without any due process. On the basis of a police officer’s reasonable suspicion, the officer can take these things permanently because new section 545C provides for that. People cannot get them back; they cannot go to court; their right to that property is completely quashed. That is outrageous. What if the policeman made a mistake? I know it is an extraordinary proposition, but such things happen from time to time and we have a situation where people can lose valuable property. We certainly vigorously oppose that aspect of the bill.

There are also provisions in the bill which seek to lift the limitation on the exercise of police powers under section 200 of the Law Enforcement (Powers and Responsibility) Act 2002. The new section 200 creates an exception to the existing limitation upon the use of police move-on powers in relation to genuine protests by allowing the move-on orders to be issued to protesters where the gathering is obstructing traffic. By granting the police the power to give directions to protesters unless they have authorisation under the Summary Offences Act, the bill seeks to provide police effectively with the powers to veto any and all non-violent protests and assemblies through these direction powers. In so doing, this bill effectively equates non-violent protests in public places with the violent behaviour which is criminalised by section 545C of the Crimes Act 1990.

Existing laws in relation to obstruction already enable police to arrest any person who is obstructing traffic. One of the effects of this new law would be to extend criminal liability beyond any individual who is obstructing traffic to encompass all persons who are attending an assembly where the obstruction occurs. In this sense, the laws are aimed not just at the obstruction, if it occurs, but at the assembly that accompanies it, whether or not the persons who are issued with the move-on orders are in fact themselves obstructing the traffic. For this reason, it provides a very low threshold for the use of the powers and easily triggers an overly wide mechanism for the dispersal of any protest in New South Wales. As I indicated, it is not limited to mining or coal seam gas [CSG]; it could extend, for example, to protests about council amalgamations or any other government policy or program that the community legitimately takes issue with.

The extension of the laws to control all attendees at a given event reveals the true character of these proposed laws as laws against protest and assembly generally, rather than laws against a subset of obstruction or protest in relation to mining. Taken together, these laws, in my view, and in the view of the Labor Opposition, represent a very serious winding back of civil and political rights in New South Wales in relation to matters over which there has been no demonstrable failure of the existing laws. Whether it is in relation to trespass, obstruction or criminal damage, the Government has not even attempted to make the case that the existing laws are somehow deficient or weak. The bill and the matters that it contains demonstrate an ideology, a view of the world, that the interests of business have priority over the interests of other property holders and citizens in this State and over basic civil and political rights in our democracy. The bill has alarmed many observers.

DEPUTY-PRESIDENT (The Hon. Paul Green): Order! Mr Jeremy Buckingham will not cause a disturbance in this Chamber while a member is speaking. The member will be heard in silence.

The Hon. ADAM SEARLE: The Law Society of New South Wales has provided the Government and members of Parliament with a brief summary, not only of the contents of the bill but of its effects. I will quote briefly from some of its submission, because it is worth noting. It states:

The Law Society is concerned that the proposed new laws may interfere with the ability of people in NSW to engage in demonstrations, protests, processions or assemblies. The Law Society considers this right an important aspect of a democratic state. These amendments appear to again expand police powers, without the safeguard of judicial oversight. They may also interfere with the right against arbitrary deprivation of property.

I quote further in the submission:

We consider that the NSW Police already have extraordinary powers of search and seizure, and are able to restrain and detain people for their own, or others’, safety. The proposed amendments do not appear to be either necessary or proportionate.

The Law Society goes on to give a detailed analysis of the bill and its provisions, which I will not repeat here. The New South Wales Bar Association, representing the barristers of New South Wales, also considers, “That the bill should not be enacted in its present form” because of the shortcomings that that organisation identifies. In relation to the new aggravated offence of trespass on inclosed lands where it would interfere with or attempt to interfere with the conduct of a business, the Bar Association says:

The new offence is expressed in words that are very wide and uncertain in meaning. In particular, there is a wide range of potential conduct by which a person might be considered to act in a way that ‘interferes with, or attemptsto interfere with the conduct of a business or undertaking when that person is on inclosed lands without consent. By way of analogy, a decision in the Supreme Court of Western Australia in 2011 held that an offence of interfering with fishing gear was committed if the fishing gear was, ‘handled, used or in any way dealt with, rather than being left alone’

Interference with the conduct of a ‘business or undertaking’ could likewise include any use of or contact with the tangible property of the business, as well as any disruption (apparently, however insubstantial it might be) to the processes and activities of the business.

The Bar Association goes on to say:

Further, the broad meaning of the terms used in proposed section 4B does not appear to reflect the more limited purpose of the government as indicated in the Second Reading speech, namely to protect against real threats to personal safety and severe disruption to lawful business activity.

The Bar Association further says:

There are existing laws presently available in respect of trespass, unlawful assembly … and criminal damage … If, despite the continuing availability of those laws, the creation of an additional offence is considered necessary, it should be restricted to instances of proven severe disruption or actual damage to a business or undertaking; or circumstances in which there is a serious and immediate risk of significant physical harm to a person.

In relation to the proposed powers to, without a warrant, stop, search and detain a person or vehicle if a police officer suspects on reasonable grounds that the person has or the vehicle contains anything to which the division applies, the Bar Association says that new sections 45A and 45B provide:

… an unclear but potentially very intrusive power of search and seizure without a warrant. For example, a person and their vehicle might be stopped, detained and searched because a police officer suspects that the vehicle contains rope or wire and a padlock that may be used in an unsafe way.

The forfeiture of things seized under 45B also permits the Local Area Commander of Police to destroy or dispose of a thing. Section 45B(4) provides that “a court does not have jurisdiction” to order delivery of a thing (to a person from whom it was lawfully seized) under Part 17 (which otherwise provides for the recovery of property in police custody, including by application to a court).

The Bar Association goes on to say:

The proposed additional powers of search and seizure without warrant appear to be an excessive and disproportionate response to the perceived problem.

In relation to the expansion of the move-on powers, the new section 200 of the Law Enforcement (Powers And Responsibilities) Act 2002, the Bar Association, after analysing the provision proposed, goes on to say:

… the Bill sets the threshold to both the activation too low for the activation of police powers in respect of a procession, assembly or demonstration.

Further, it says:

A direction should be able to be given by a police officer to an individual or group in a public assembly, procession, demonstration or protest on safety grounds only in circumstances in which there is a serious and immediate risk of significant physical harm to a person.

The threshold for police action, according to the Bar Association, is far too low. The Bar Association goes on to list comprehensive reasons for that, including noting:

There is an extensive range of community groups, religious organisations, returned services groups and charities that participate in processions and assemblies … throughout New South Wales. Not all of them wish to … go through the process of approval as an authorised public assembly … under the Summary Offences Act 1998.

That is one of the triggers for police to be able to use these powers: if an event or demonstration is not approved under the Summary Offences Act. There are a range of reasons. The Bar Association concludes:

… there must be a real doubt about the constitutional validity of proposed section 200 in its application to individuals or groups that are exercising their implied constitutional freedom of communication about government and political matters. It may be that a Court would consider the law not appropriate and adapted to the achievement of the reasonable regulation of the participants in a public assembly (of the requisite type) on the basis that it permits a police officer to disperse the assembly or otherwise give directions to participants— or, indeed to anyone who happens to be in the vicinity— merely because the assembly (but not necessarily the relevant individual) is “obstructing traffic”.

The new section 200 … would involve an unjustifiably broad conferral of discretionary power on police officers to prevent or disrupt peaceful assembly, processions and demonstrations. It should not be supported and section 200 of the LEPRA should be retained in its present form.

The Law Society of New South Wales noted:

The common law right to assembly has been expressly recognised by Australian courts, including the High Court of Australia and the Supreme Court of NSW. The … Constitution has been interpreted by the High Court as requiring Australian citizens to be able to assemble before the Federal Parliament.

For example, in R v Smithers, a case in 1912. The Law Society continued:

Additionally, the High Court has interpreted the … Constitution as providing the implied freedom of political communication.

I mentioned that earlier. The Law Society continued:

While this implied freedom is not a personal right— as was found in the case of the former Mayor of Newcastle— it would invalidate laws that burden that right if such a law is “not appropriate or adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.”

There the society is quoting from Lange v Australian Broadcasting Corporation, a High Court decision in 1997. The Law Society continued:

Courts have noted that peaceful assemblies are “perfectly reasonable and entirely acceptable modes of behaviour in a democracy.”

That is from NSW Commissioner of Police v Bainbridge. It continues:

… peaceful assemblies are “integral to a democratic system of government and way of life”.

That is extracted from the NSW Commissioner of Police v Rintoul, a 2003 decision of the New South Wales Supreme Court. I note also that the International Covenant on Civil and Political Rights protects the right to peaceful assembly, in article 21, and any limitation of that right must be “necessary in a democratic society”. Justifying these extraordinary provisions by reference to the requirement, I think would be a very difficult case to make in support of this legislation.

This legislation is to simply crack down on the right to peacefully protest. It criminalises peaceful protest behaviour, which at present is perfectly lawful, in the way that I have described. It would criminalise the actions of farmers and other members of the community who simply seek to stand up and be heard and to protest against government. As I indicated, leaving aside the issue of the power to stop vehicles or people and search them without a warrant, the forfeiture of people’s property without any due process should disturb every member of this Chamber. I ask members to reflect on new section 45C on page 5 of the bill, which says:

(1)      A thing seized under this Division is forfeited to the Crown.

(2)      The Local Area Commander of Police (or such other person as that Commander may direct) may destroy or otherwise dispose of a thing so forfeited in accordance with the directions of the Commissioner.

(3)      The proceeds from any sale of a thing disposed of under this section are to be paid to the Treasurer for payment into the Consolidated Fund.

(4)      Part 17 does not apply to a thing seized under this Division and a court does not have jurisdiction on an application under that Part to order the delivery of the thing to the person from whom the thing was lawfully seized or who appears to be lawfully entitled to the thing.

Whether it is ropes, devices for locking on, or farm equipment or vehicles—

Mr Jeremy Buckingham: Chains.

The Hon. ADAM SEARLE: Leaving aside chains, consider the seizure of vehicles or farm machinery worth tens of thousands of dollars—or more, in the case of a new tractor. They are often subject to finance. This bill would enable those valuable pieces of property to be confiscated on the basis of a police officer’s reasonable suspicion.

Reverend the Hon. Fred Nile: The police would protect it, not confiscate it.

The Hon. ADAM SEARLE: No. Read new section 45C. If a police officer stops and searches and then decides to seize the thing so that it cannot be used, automatically under this bill those things that are seized are forfeited to the Crown. They are not legally able to be returned to the owner. They can be destroyed. They can be sold. Whoever owned that thing loses all right to it, even if that item is a heavily financed piece of farm equipment. People who lose the property could be ruined. The fact is that these are extraordinary provisions that should not be entertained in a modern democratic society. They are not needed because there are already multiple provisions that deal legitimately with trespass, obstruction and criminal damage.

That is not what this bill is about. It is about trying to frighten and intimidate those communities that stood up against coal seam gas across New South Wales. By making an example of those people, because they derailed and wrecked this Government’s gas plan and called the Government out for the fraud that it is, the Government said, “We will not have that in future. We do not like what is going on with our council amalgamations policy, which is unravelling from one end of the State to the other. We do not want any more of our policies to hit the buffers through community action, so we will put the frighteners on the public, the citizens of New South Wales, to say that they cannot do this. That will send a clear signal that dissent will not be tolerated in New South Wales.”

That is a bad message from a party that calls itself the Liberal Party. It is just the name of the shop, clearly, because it would be a very strange definition of the term “Liberal” that would authorise or support such extraordinary measures, including the confiscation of private property without any process at all. So I urge members to resolutely reject the contents of this bill. At the very least, if they do not want to take my word for its pernicious effects, let us refer this to a committee so we can have a closer look at it.

We could have a close and quick look at it to see whether or not it does what the Government says it does or whether or not it does what we say it does. With a bit of goodwill we could turn that inquiry around very quickly. I think it is a very reasonable proposition. What is the hurry? Well, of course, the Government does not like dissent. It does not like to be called out and it does not like to have its ridiculous ideas held up to the scrutiny of daylight. But we say to all members that they should think carefully before they cast their vote in this place in support of these unnecessary, extraordinary and undemocratic measures. They should be rejected and consigned to the dustbin. They should not be enacted in law by this Parliament.