Anti-Protest Laws

Tasmania's Workplace (Protection from Protesters) Act 2014 came into effect on 17 December 2014. The new law makes it an offence to act on, or inhibit access to, a business premises, including all public and private land (which includes forestry and mining lands), if the protest action is:

... 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.

Protesters are subject to significant penalties if they interrupt 'business activity'. Protesters who repeatedly interrupt business can now be fined up to $10,000 and imprisoned for up to four years. This includes farmers and other landowners protesting against mining activities on their property.

Catch 22

The Environmental Defender's Office says that while the police can't direct landowners (eg farmers) who are protesting to leave their own property, they can direct the landowner to stop their protest activity. If the landowner doesn't comply, they will have committed an offence under the Workplace (Protection from Protesters) Act and could be fined up to $10,000. The law will have dramatic implications for 'Lock the Gate' style peaceful protests in rural areas if mining companies find a resource there they'd like to exploit.

Santos logos are visible on Queensland police cars being used

United Nations Human Rights Council

The introduction of the anti-protest law prompted the United Nations Human Rights Council to respond. United Nations human rights experts said that as well as breaching international law, the Workplace (Protection from Protesters) Act 2014:

  • could silence legitimate and lawful protests and prevent governments and corporations from being accountable for their activities
  • United Nations Human Rights Councilimpedes the function of protests and demonstrations in democratic societies, which are key to raising awareness about human rights, including political and social concerns and labour, economic, or environmental issues
  • is disproportionate and unnecessary in the way it balances people's rights to free expression and peaceful assembly with the government's interest in preserving economic or business interests
  • specifically targets environmentalists by listing specific industries, such as forestry, agriculture, and mining

Michel Forst, UN Special Rapporteur on the situation of human rights defenders, who labelled the law "shocking", expressed concern the law would curtail human rights defenders' legitimate right to express their opinions, especially when their views didn't correspond with the government's or industry's position on an issue.

UN Resolution 25/38

Before the bill was made law, UN experts urged the Tasmanian government and its legislature to withdraw it, and to instead act in a manner that was consistent with Australia's international commitments. In doing so, the UN pointed out that in March 2014, Australia co-sponsored UN Human Rights Council's Resolution 25/38, which, in part:

  • Recalls that States have the primary responsibility for the promotion and protection of human rights and fundamental freedoms, including in the context of peaceful protests, and to ensure that national legislation, policies and practices, as the national framework for the exercise of the rights to freedom of peaceful assembly, of expression and of association, are in compliance with international human rights law
  • Recognizes that, pursuant to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, the rights to freedom of peaceful assembly, of expression and of association are human rights guaranteed to all, while their exercise may be subject to certain restrictions, in accordance with States' obligations under applicable international human rights instruments
  • Recognizes also that any such restrictions must be based in law, in accordance with States' obligations under applicable international human rights instruments and subject to a competent, independent, impartial and prompt administrative or judicial review
  • Stresses that peaceful protests should not be viewed as a threat, and therefore encouraging all States to engage in an open, inclusive and meaningful dialogue when dealing with peaceful protests and their causes
  • Expresses concern at the criminalization, in all parts of the world, of individuals and groups for having organized or taken part in peaceful protests
  • Recognizes that peaceful protests can make a positive contribution to the development and strengthening of democracy
  • Acknowledges that participation in peaceful protests can be an important form of exercising the rights to freedom of peaceful assembly, of expression, of association and of participation in the conduct of public affairs
  • Recognizes that peaceful protests can make a positive contribution to the development, strengthening and effectiveness of democratic systems and to democratic processes, including elections and referendums
  • Acknowledges that peaceful protests can contribute to the full enjoyment of civil, political, economic, social and cultural rights

SLAPP

In 2014 the Tasmanian government announced plans to amend the Defamation Act 1995 to allow large corporations to take out Strategic Lawsuits Against Public Participation (SLAPP) suits. A media release from the Attorney General's Office in January 2015 confirms the government remains committed to removing restrictions on companies suing for defamation.

Defamation law exists to protect people's reputation; it is not intended to be an avenue for large commercial enterprises to target individuals with legal action. Amendments to the law could see companies seeking orders against individuals for compensation for commercial injury.

Human Rights Commission

The Human Rights Commissioner says that the defamation law is already used too readily to protect the rich and the powerful from scrutiny and criticism, and that extending it to include companies means the already restrictive defamation law can be used to restrict free speech even further.

Tasmanians may be fearful of being slapped with a SLAPP if they speak out publicly (including on social media) on issues that are important to them. In other words, although we live in a participatory democracy, if members of the public think about exercising their democratic right to protest an actual or proposed activity of a business, they may need to first think about whether they can afford to defend a lawsuit launched by a company or corporation that wishes to silence legitimate community debate or dissent.

Injurious Falsehood

Businesses already have legal avenues to pursue redress for injurious falsehood if they can prove commercial injury resulted from the publication of false claims. They can seek injunctions against damaging and untrue material being published, and they can seek damages. In injurious falsehood claims, the plaintiff has to prove the defendant published false statements about a plaintiff's goods or services, that the defendant was motivated by malice or another improper motive, and that these actions caused injury, or damage, to the plaintiff.

Defamation

Suing for defamation is a much more straightforward proposition than making a claim for injurious falsehood. To sue for defamation, all a plaintiff has to prove is that a publication, which includes posts on social media networks, is defamatory.