Bills

Summary Offences (Reversal of Section 58 Amendments) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 14 June 2023.)

The Hon. T.A. FRANKS (17:11): I rise, unsurprisingly, to speak in support of the Summary Offences (Reversal of Section 58 Amendments) Amendment Bill put to this council for debate by my colleague the Hon. Robert Simms. The Greens wholeheartedly support the repeal of the retrograde Peter Malinauskas rushed anti-protest laws of exactly a year ago now. We think that the government has had time to reflect on the folly of their ways and we hope that they will listen to not just the voices of the Greens today but other voices, such as Amnesty International, the Australian Conservation Foundation, the Australian Democracy Network, the Australian Education Union, the Australian Services Union, the Human Rights Law Centre, Human Rights Watch, the National Tertiary Education Union, SACOSS and The Australia Institute.

I note that, while we are here inside debating this repeal bill, outside on the steps there are several hundred protesters and they come from the environment movement, the human rights movement and the union movement and they are people out there fighting for democracy because when you ban protest, you ban progress. It is well put by Astra Taylor in her book, Democracy May Not Exist, But We'll Miss It When It's Gone. I will quote her:

…structural change follows social unrest. There would be no minimum wage, workplace health-and-safety protections, eight-hour workday, or the weekend without the labor organisers and trade unionists who went on strike; there would be no gay rights without the legendary riots at Manhattan's Stonewall Inn; there would be no Americans with Disability Act of 1990 without decades of direct action from impaired activists, who blocked inaccessible buses, pulled their bodies up unwelcoming Capitol Hill steps, and even—

then a word for urination starting with P—

…in public to make a point that they couldn't use regular washroom facilities.

The forward march of democracy resembles a kind of two-step move: rule making trails open revolt, like sedimentation hardening into rock after a storm.

Indeed, this beautiful stone building is based on protest. We would not have a parliament had there not been protest. We would not have a Westminster system had there not been protest, or a Washminster system. We would not have progress without protest and by banning protest in this state, sending a chilling message to those who seek a better world, the Malinauskas government a year ago now made a mistake. Today is their opportunity to correct that mistake and to support progress and democratic protest in a healthy democracy. With that, I commend the bill.

The Hon. F. PANGALLO (17:14): The last time I spoke on this bill I think it was about 5½ hours, and you will be pleased to know—

The PRESIDENT: We remember, the Hon. Mr Pangallo, we remember.

The Hon. F. PANGALLO: You interrupted me, Mr President, because it is going to be less than a minute. I am only rising to say that I will support this bill and the intent of the bill, much the same way as I did last time it was here.

The Hon. C. BONAROS (17:15): I rise to speak wholeheartedly in support of this bill and commend the member for bringing it to this place and echo the sentiments that have already been expressed almost a year ago. We all stood here in the early hours of the morning in vehement opposition to a reprehensible piece of legislation, hastily pushed through the parliament following a captain's call by our Premier. Those laws were rushed into existence, aimed at strangling one of the most sacred rights in any democracy—the right to protest.

I also assure honourable members that my remarks will be brief. I will refer to my previous contribution and confirm my position and my outrage, which remains unchanged. I will say again for the record that, thankfully, at the eleventh hour, and after unprecedented pressure on the government, we were lucky enough at that point to remove what were referred to as the most chilling aspects of the government's bill in terms of the recklessness insertions, which I think shook the community in terms of what the government was trying to do.

I think it is only because of the sort of unprecedented pressure that we are seeing outside today in those protests, none of which any of us take for granted and have ever taken for granted, and also the pressure amongst the Labor government from its own rank and file in the union movement—and I extend my heartfelt thanks again to that movement and to every other group, organisation and association, including the legal profession who backed them, to get those changes made, because they were the most chilling aspect of the government's bill. Overall, it was a crappy bill and I am very pleased that we are back here seeking to reverse all those other equally unacceptable measures.

I extend my gratitude to the Hon. Rob Simms and the Hon. Tammy Franks of the Greens for their unwavering commitment to undoing that harm inflicted on our democratic fabric. I recognise the inherent futility in asking the government and the opposition to admit how wrong they were. I think they recognise how wrong they were. However, no such admission would ever be made, but as Harper Lee eloquently penned in To Kill a Mockingbird, real courage is 'when you know you're licked before you begin but you begin anyway and you see it through no matter what'. So here we are.

Once again, I thank the Hon. Rob Simms and the Hon. Tammy Franks for bringing this bill back before us nonetheless. It is the courage of ordinary individuals determined to stand up and speak out that ignites the flames of change always, and I thank absolutely everybody here now, and every day since these laws were introduced, who have spoken out on them, and I look forward to the committee stage of the debate, if there is one. I refer back to that quote, but remain silently optimistic that perhaps the government has seen the error of its ways and will make up for it today.

The Hon. N.J. CENTOFANTI (Leader of the Opposition) (17:19): I rise to make some comments on behalf of the opposition regarding this bill. As the party that initiated the drafting of the original amendments, we stand by our former position that many people in our community view section 58 as an essential balance and safeguard. I admit that we are perplexed that this amendment bill has come on so soon after it has been debated and passed. Despite commentary to the contrary, the Liberal Party of South Australia supports the right to protest as an essential right in our community and as part of our democracy; we must be able to express our opinions on matters that are important to us.

Protest rallies, marches and demonstrations are organised by quadrants of our community that hold beliefs close to their hearts, and people with standard views gather as much in celebration as they do in outrage. However, it is crucial to remember that the rights of one group must not infringe on the rights and freedoms of others, and the amendments we passed addressed a growing concern in our community about obstructing public places during protests. This decision was not taken lightly, but made after extensive consultation and consideration of the impacts of all members of our society.

The original amendments to section 58 were introduced to ensure that, while people have the right to protest, they do not do so at the expense of public safety and order. The change in the wording from 'wilfully' to 'intentionally' or 'recklessly' aimed to cover a broader scope of disruptive behaviours causing significant inconvenience and danger to the public. Increasing the penalties was necessary to deter actions that could harm individuals and disrupt essential services. The new bill proposes to reverse those changes, reducing penalties and narrowing the scope of the law. This would send a message that disruptive and potentially dangerous behaviours are acceptable if they are part of a protest. We believe this undermines the rule of the law and the safety of our community.

The amendments as they stand provide a balanced approach to managing public order, they recognise the importance of protest while ensuring that such actions do not unduly infringe on the rights of others to move freely and safely in public spaces. The severe penalties were a necessary deterrent against the increasing trend of obstructive protests that have had real and harmful impacts on our community.

We must consider the broader implications of this reversal. Returning to a lesser penalty and narrower definition of obstruction risks encouraging those who use protests to disrupt rather than to constructively express their views. It risks public safety and undermines the rule of law. While we respect the right to protest, it must be balanced against the rights of the broader community to safety and freedom of movement. The amendments to section 58 provided this balance and we believe that reverting these changes would be a step backward for public safety and order. We therefore oppose this bill and stand by the original amendments as a necessary measure to maintain this balance.

The Hon. E.S. BOURKE (17:22): I rise on behalf of the government in relation to the Summary Offences (Reversal of Section 58 Amendments) Amendment Bill to indicate that the government will not be supporting the honourable member's bill. The intention behind the Summary Offences (Obstruction of Public Places) Amendment Bill, which the honourable member's bill directly undoes, was that it would be aimed at the most extreme of circumstances where a protest disproportionately and unfairly obstructs and disrupts public life.

A year down the track, that has indeed been the case. I am advised that recent data highlights that just one person has been charged with an offence under the amended section. There has been no chilling effect on protests, and I am glad to see that South Australians, over the past 12 months, have continued to exercise their right to protest. Protest is an essential feature of our democracy and we look forward to many productive protests continuing in the years to come.

The Hon. R.A. SIMMS (17:23): I am reminded, hearing the Hon. Jing Lee's speech about St. Francis of Assisi, one of St. Augustine's quotes, and he said something to the effect of: 'To err is human but to persist in error is devilish.' It is very disappointing to see that the two major parties in this place have not changed their ways. They have not reflected on the public backlash, the outrage that we saw in not only the public gallery—the community that came and watched the debate in this chamber—but also what we saw on the steps of Parliament House, because people were rightly outraged at what they saw. It is an affront to our democracy.

It is really disappointing to see this affront to our democracy being led by a Labor government, a party that was actually founded on protest: the strikes of workers and the action of workers to demand fair pay. It is a real affront to those fundamental principles that underpin the Labor Party that they take their marching orders on this issue not from the union movement but from David Speirs and the Liberals.

An honourable member interjecting:

The Hon. R.A. SIMMS: The Hon. David Speirs and the Liberals, who just listened to shock jocks and crafted a highly reactionary policy on the run. What the government should have done is actually subject that to some level of scrutiny and take a cold shower, but instead they rushed it through the parliament in the other place at record speed—20 minutes, less time than it takes to do a load of washing. It was outrageous, absolutely outrageous, and a slap in the face for all South Australians who care about our democracy.

Luckily, in this chamber it was subject to scrutiny. I want to acknowledge the leadership of my colleagues, the Hon. Tammy Franks and also the Hon. Connie Bonaros and the Hon. Frank Pangallo, who fought really hard alongside the Greens to try to resist this affront to our democracy. They have stayed true to the principles that they advocated for on that night and are standing with us in supporting this repeal bill tonight. I do not propose to revisit the lengthy speech that I gave 12 months ago—nearly 12 months to the day—you will be relieved to know, Mr President.

The PRESIDENT: Thank you, the Hon. Mr Simms, because you are supposed to be concluding the debate.

The Hon. R.A. SIMMS: I traversed in that speech the origins of our democracy, going back to Ancient Greece. What I will do, though, is make some brief remarks about some of the changes we have seen since we last discussed this matter. Since this bill was passed, a declaration of our right to protest has been signed by 60 organisations. I will read a few elements from that in the hope that it might convince some of my colleagues to change their position on this bill.

The PRESIDENT: The Hon. Mr Simms, this is the conclusion of the debate. This is not a second reading speech, is it?

The Hon. R.A. SIMMS: No, but it is relevant in terms of some of the comments that have been made—

The PRESIDENT: Okay.

The Hon. R.A. SIMMS: —and I think for people to understand the changes that have happened. Sixty organisations have signed on to a declaration that begins with:

The right to peaceful protest is a fundamental human right that allows us to express our views, shape our societies and press for social and legal change.

It states:

All Australian governments have an obligation to guarantee the right to protest and to protect protesters. However, state governments around the country have passed harsh, repressive and undemocratic anti-protest laws.

This declaration, grounded in human rights law, asserts the fundamental right to protest and offers practical steps to safeguard the right from further erosion.

This has been signed by a range of organisations: Amnesty International, Australian Democracy Network, Australian Lawyers for Human Rights, Australian Services Union, Human Rights Law Centre, Rights Resource Network of South Australia and SACOSS. These are leaders in their field and they have come out in advocating for the right to protest to be protected in our democracy.

I also note, in responding to the comments of the Hon. Emily Bourke, that in many jurisdictions we have seen similar laws to the ones we passed here in South Australia have a chilling effect and produce some really adverse outcomes. Indeed, in New South Wales, in 2022 when they saw legislation passed, there was a maximum penalty of $22,000, which was condemned by the Council for Civil Liberties.

At that time, we saw Violet Coco sentenced to two years in prison for blocking a lane of traffic. Danny Lim was peacefully protesting with a sign when he was assaulted by New South Wales police when they slammed him to the ground face first; he ended up in hospital. Cherish Kuehlmann was arrested at her home in the middle of the night, 12 hours after she engaged in lawful assembly. Members of the community who camped on private property in Colo in New South Wales were arrested and accused of planning protests.

In Tasmania we have seen their laws subject to a High Court challenge, and in Queensland they have recently passed legislation that deals with 'locking on'. Indeed, members might reflect that that was the practice that Muriel Matters engaged in when she chained herself to the grate in the women's gallery in Westminster. Yet this is precisely the kind of action that members in this place have sought to quell.

Might I say it is a really sad thing in our democracy when we have the people who are belling the cat on the climate emergency and speaking out against the climate crisis being subject to fines and the threat of jail, while we have the fossil fuel industry getting huge subsidies in the federal budget over in Canberra and getting huge handouts from the state government here in South Australia—slaps on the back rather than being held to account for the impact they have on driving the climate crisis.

It is disgraceful. I urge members of this place to revisit their position, to think again, to turn away from their phones, turn their minds away from their devices, and instead turn their minds to the people they represent and ask themselves what they think, what people in the union movement think, what people in the civil rights organisations think, about this attack on our democracy. With that, I conclude my remarks and I will be bringing this matter to a vote so that all members of the community can see the views of their elected members.

The council divided on the second reading:

Ayes 4

Noes 16

Majority 12

AYES

NOES

Second reading thus negatived.