No football for you: and other implications of sloppy WA Bill to restrict freedom to protest

Should football tackles be illegal in Western Australia? How about stopping a toddler – or someone distracted by their mobile phone – from walking in front of a car?

If you answered “of course not, don’t be silly”, you should be worried about the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA).

As the Second Reading Speech for this Bill makes clear, the target is environmental protests, in particular those involving protestors “locking on” to mining or forestry equipment or to gates on access roads, in order to immobilise that equipment or block use of those roads.

Long haired unwashed hippies all, no doubt.

Couldn’t possibly include farmers worried about “fracking” for gas wrecking the water table – by actions including locking their own gates to “physically prevent” access.

Couldn’t include local conservation groups full of grey haired people trying to draw attention to loss of habitat for threatened species.

Oh wait, it could.

The Second Reading Speech for the Bill claims there are various problems in using existing law to deal with such protests.

One of these “problems” is the need to prove intention where that is a necessary element of the offence.

Old-fashioned lawyers might think that the usual need to prove intention is a fairly important part of the protections of liberty which we have been taught to think are embedded in our criminal law.

Slightly less old-fashioned lawyers might point out that this is one reason why we need stronger protections in Australian law of the human rights which Australian governments have sworn to uphold and which most Australians take for granted.

In 2014, former Australian Rugby captain David Pocock was one of those arrested for “locking on” to mining machinery in protests against destruction of the Leard State Forest (home to endangered species and important Aboriginal cultural sites) for the purpose of development of a coal mine near Narrabri NSW.

People like David Pocock can be seen as acting in a long and honourable tradition of protest: breaking the law – and submitting themselves to the consequences – to draw attention to, and combat, larger injustices.

Think, say, Rosa Parks refusing to give up her seat on a bus to fight racial segregation. Think marchers on a bridge in Selma, Alabama. Think suffragettes chaining themselves to railings in London for women’s right to vote.

There are also real issues about how far environmental protestors are actually breaking the law at all.

The common law of Australia (including Western Australia) recognises the right of self defence, and the defence of necessity, as fundamental to the just operation of the criminal law (even if, in this as in other respects, the drafting of Western Australia’s Criminal Code is less than ideal and possibly misleading).

The accelerating pace of extinctions around us, and because of us, is becoming clearer. Threats to human activity and welfare that are posed by environmental degradation, and the climate crisis in particular, are also becoming clearer.

It appears highly likely that environmental activists will increasingly seek to advance defences of necessity and self defence when facing charges for actions which would otherwise be unlawful.

Moreover, it appears likely not only that that they will increasingly succeed in such claims, but that they will succeed in recovering damages against those who presently claim to have the law on their side in despoiling the environment.

The NSW authorities appear to have made a surprisingly wise decision not to pursue prosecutions against the Pacific Warriors who brought their canoes to blockade the Port of Newcastle for a day recently.

They came to draw attention to Australia’s responsibilities to our Pacific neighbours. Fossil fuel burning, including Australian coal, is driving the unnatural greenhouse gas levels which are driving global warming. Meanwhile, Australian climate policy – at home and internationally – is going backwards.

Pacific nations face not only increased risks from cyclones supercharged by warmer air and water, but loss of their land itself from rising seas. Anyone want to bet against their chances of winning in court at some point?

But putting all that aside, lets assume Western Australia’s Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 is actually capable of creating a law on which valid prosecutions could be based. This still leaves the question: should it?

The Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 would insert in Western Australia’s Criminal Code provisions including subsection 68AA(2) as follows:

A person must not, with the intention of preventing a lawful activity that is being, or is about to be, carried on by another person, physically prevent that activity.

So back to where we began. Would a football tackle be illegal under this Bill? If not why not?

The numerous tackles that, say, David Pocock has carried out wearing the green and gold on football fields for Australia have clearly been intended (and fequently have been successful) to “physically prevent” the “lawful activity” of an opponent seeking to score.

Now, despite risks of injury, a tackle within the rules is not an assault: the ordinary law, developed over centuries, recognises that participants in the game consent to reasonable actions, and this prevents those actions being unlawful.

The existing provisions of Western Australia’s Criminal Code likewise attempt to deal with some of the complexities of when physical actions are and arent lawful.

No such provision though in this Bill. No need for complexity apparently when you are crusading against those conservationists – err, ecoterrorists.

How about the other examples we started with – the child or distracted pedestrian about to step into the path of a car?

Sorry, under this Bill there goes any  right of parent or concerned bystander to put any physical barrier in the way, like putting an arm out.

Unless our child or distracted pedestrian in danger is going to be trespassing or doing something else unlawful during their hazardous journey of course. Let’s call some lawyers for advice. Oh dear too late, let’s call an ambulance.

Are these examples what this Bill is aimed at? No, of course not.

So why is the ridiculously broad potential application of this Bill a problem?

It’s a problem because vague and excessively broad laws give authorities too much discretion about when to enforce them and when not to, and give citizens no certainty that they can go about their lives in a reasonable way.

Laws which give reasonable certainty to the people who have to enforce them, and the people who are meant to comply with them, are an essential element of what we mean by the rule of law.

In the United States, the Supreme Court has long had a “void for vagueness” doctrine. Not perfect in preventing arbitrary or discriminatory enforcement (as generations of Black Americans could tell you) but still an important element in ensuring the rule of law.

The present Attorney-General of the Commonwealth, Senator Brandis, has spoken (particularly prior to taking office) about the importance of the rule of law. One looks forward to his possible intervention in the matter of the Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 (WA).

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