Colin Barnett Is Trying To Criminalise A ‘Thing’. Literally.


West Australia’s Barnett government is in the process of criminalising the possession of a “thing”. What kind of “thing”? Well, it could be any “thing” really.

Under anti-protest laws currently before the parliament the police need only suspect a “thing” may be used “for the purpose of preventing a lawful activity”, and the onus is on the ‘thing-haver’ to prove that’s not the case.

The bill also criminalises the creation of “a physical barrier to carrying on the lawful activity”.

If they can’t prove their innocence, offenders will face a year in the slammer or a $12,000 fine – and two years or $24,000 in certain circumstances.

It’s pretty savage, which is why over 50 organisations and community groups, including legal heavy-hitters like the WA Law Society and The Human Rights Law Centre, have spoken out against the laws.

The West Australian government says the laws are designed to target ‘extremist’ protestors using devices like ‘thumb-locks’ and ‘barrel-locks’, “things” which protestors use to lock themselves to other “things” like roads and barrels of concrete, normally to prevent the lawful activities of big developers.

These sorts of “things” are being deployed with increasing gusto around the nation, and have been used in WA to protest against the James Price Point gas hub and the clearing of native forests in the state’s south west.

Nobody’s really debating that move-on orders from the police are pretty useless when the point of these “things” is to make it physically impossible to move on. Specialist tools and expertise are required to detach protestors from these devices, which takes its toll on police resources.

But if that’s what the Barnett government wants to address – says virtually everyone who’s not a part of it – why not write laws that actually address those issues?

The legislation is so broadly drafted that literally any “thing” which could be used to prevent “a lawful activity” – as judged by the police – can trigger the offence.

Picket lines and many other forms of industrial action are covered by the legislation, because they involve creating a physical barrier to prevent a lawful activity. According to the Conservation Council of Western Australia, a pair of shoes could be a relevant “thing”.

Perhaps even more worryingly, the bill reverses the onus of proof – an aspect which WA Law Society President Mathew Keogh says “may erode fundamental aspects of our criminal justice system”.

“In criminal matters,” says Keogh, “it is for the State, with its resources, to prove beyond reasonable doubt that a crime has been committed.

West Australian Premier Colin Barnett.

“This has been the bedrock of our successful criminal justice system for hundreds of years.”

Possessors of a “thing” could also be liable for the cost of policing, and while we don’t charge rapists or murderers for the cost of policing activities, heaven help you if you possess a thing!

“This bill is further confirmation of the trend of eroding fundamental democratic freedoms in Australia,” said The Human Rights Law Centre’s Executive Director, Hugh de Kretser.

“Over the past 18 months, we’ve seen the excessive Queensland G20 anti-protest laws, Tasmanian laws that unjustifiably prioritise business over human rights and overly broad Victorian [police]move on powers.”

One of the other things about this legislation that has people up in arms is that farmers preventing, or even suspected of being about to prevent, the technically “lawful activity” of a coal seam gas or mining company accessing their land against their will could fall foul of the legislation.

This is significant because, given the coalition government controls both houses of parliament, the bill is bound to pass unless the Nationals split from their Liberal colleagues and oppose it.

WA Farmers President Dale Park and Labor MLC Darren West – himself a farmer – have been driving home their concerns over how farmers could be affected.

“It would have been better had it been targeted only at protesters who chain themselves to pieces of equipment or lock their thumbs together with thumb locks,” West said in parliament.

“I do not think the government needed to bring me, as a landholder, into this piece of legislation.

“What I will say is that if a person is in a high-visibility outfit on a coal seam gas fracturing rig, I think I would go up to the gate and say, ‘Boys, out you go; you’re not coming in. I don’t care whether you reckon you’re supposed to be here. This is my farm; I’m not having you here drilling near my water points.’

“If I lock my gate and park a truck or a piece of heavy earthmoving equipment in front of the gate and tell people they are not coming onto my land, to get lost and go and find their gas somewhere else, I will now be a criminal.”

New Matilda understands the Nationals support the bill. We asked Terry Redman, the Nationals leader, if he shared any of West’s concerns.

He responded, in a statement issued late yesterday, with this impressive non-sequitur: “No reasonable person would think these laws would apply to farmers going about their normal, everyday business.

“To suggest that farmers could be arrested for locking their gate is ludicrous.”

While the government has consistently dismissed concerns over how the legislation would apply to groups other than its ostensible target – ‘extremist’ protestors using thumb locks and similar devices – the fact is that farmers preventing access to their land would be breaking the law.

And that’s one of the problems with “very general criminal laws” like this one, Mathew Keogh said, “they are applied in an inconsistent way, which is unfair on those that are charged compared to those that are not as well as the entire community.”

“Laws that are applied inconsistently mean the community does not know how the law applies to them,” Keogh said.

“This represents a breakdown of the rule of law, that the law applies to all people.

“The legislation is so broad that it is almost impossible to say how they may be applied down the track.”

Thom Mitchell is New Matilda's Environment Reporter.