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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2023-05-18 Daily Xml
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Bills

Summary Offences (Obstruction of Public Places) Amendment Bill

Introduction and First Reading

The Hon. P.B. MALINAUSKAS (Croydon—Premier) (12:06): Obtained leave and introduced a bill for an act to amend the Summary Offences Act 1953.

Second Reading

The Hon. P.B. MALINAUSKAS (Croydon—Premier) (12:07): I move:

That this bill be now read a second time.

The bill I introduce today is the Summary Offences (Obstruction of Public Places) Amendment Bill 2023. The bill amends the obstruction offence in section 58 of the Summary Offences Act 1953. The current offence provides:

…a person who wilfully obstructs the free passage of a public place is guilty of an offence.

The current penalty is a fine of $750.

Irrespective of the causes that protests are aimed at, the way that the protests are increasingly conducted puts the safety of the public at risk and means our emergency services personnel are tied up dealing with these persons who choose to put themselves at risk. Because of the increase in these types of action, the adequacy of the current obstruction offence has been examined and it is clear that improvements can be made to make the offence more effective in being able to deal with the type of conduct we are seeing, as well as making clear that obstruction of a kind that forces our emergency services to close roads and other public places to deal with it falls within the ambit of the offence. The current penalty for the offence is also plainly inadequate and has been in place since the 1990s.

The bill I introduce today makes four changes to the obstruction offence. Firstly, the bill increases the penalty of the offence to a maximum fine of $50,000 or imprisonment for three months. This provides a much stronger deterrent to those who may consider engaging in this type of conduct. They will be at risk of a much larger fine, and may find themselves with a sentence of imprisonment.

Secondly, the bill inserts provisions that will allow the prosecution to apply to the court for an order that the defendant pay the reasonable costs and expenses of the emergency services who are required to deal with their conduct. This provides a strong financial disincentive to those persons who might be considering engaging in this type of conduct to think again because they may be required to outlay a significant sum to cover the costs of the emergency response to their actions.

In looking at the language of the offence, the term 'wilfully' obstructing a public place has been amended to read 'intentionally or recklessly'. 'Wilfully' is now an outdated term to describe the mental element of an offence; it does not include conduct that is reckless. The language has been updated to ensure that the offence covers not only conduct that is intentional but also conduct that is reckless.

In addition, the offence has been amended to make it very clear that the obstruction can be caused directly or indirectly. This is important to ensure that the offence covers conduct where it does not itself cause an obstruction but it forces our emergency services to shut down or close off roads, footpaths or other public places in order to deal with the conduct in a safe way and also to ensure the safety of the general public.

The government considers that protest and speaking up about issues is an integral part of our vibrant democracy, and the government does not seek to prevent members of the community from having their say. However, the recent activities have seen people being put at risk, the disruption of members of the community while trying to go about their daily lives, the interruption of businesses unnecessarily and the tying up of the resources of our emergency services personnel unreasonably. This bill will ensure that our criminal law is fit for purpose and is able to be utilised when the actions taken go too far and will provide a strong deterrent to those who may be considering engaging in this type of conduct in the future.

There are a few things within our community in recent days that have caused genuine anxiety amongst law-abiding citizens, citizens who value the liberal democracy in which we live. Many in our community—and I count myself as one of them—were disappointed at reports this morning that a small business that seeks only to provide coffee, cakes and sandwiches to their customers were unreasonably and materially impacted as a result of an obstruction to their business, including, it has been reported, paint being thrown across those businesses' windows.

More than that, yesterday we saw the actions of protests go above and beyond a standard demonstration that would seek to project a message into the community, to the extent that it dramatically disrupted traffic in an unexpected way and put people at risk, including emergency services personnel.

There are few things more important within our liberal democracy than the freedom of association, the ability for people to be able to protest peacefully, to express their point of view for or against the government of the day, for or against a particular policy principle, or even simply to advocate a cause that people believe in deeply. It is an essential formulation to the way that we govern ourselves. It is an essential component of the functioning of our democracy.

But that is a very different thing from someone or a group of people who conduct themselves in such a way that puts other people's safety at risk or imposes an unreasonable, unplanned and unlawful action upon a business or an individual in a way that compromises their capacity to be able to work and enjoy the privilege of living in an economy such as ours. That is an important balance to achieve.

What is important for the parliament to appreciate in this particular piece of legislation is that nothing that this legislation does seeks to infringe upon someone's right to protest or engage in a demonstration of any description that is compliant with the law as is the case today. There is simply an adjustment to the penalty regime and its application to ensure that some of the conduct that we have seen over the course of recent months is not able to occur with impunity.

This parliament has a fundamental responsibility to achieve the preservation at all costs of freedom of association and the capacity for people to be able to protest but also maintain the ability of other citizens to be able to go about their lives, and essential workers to be able to go about their service to our community, without it being compromised. This bill seeks to maintain an important balance: the preservation of fundamental principles but also allowing people to exercise their lives safely in a meaningful and purposeful way.

In respect of the recent protests that we have seen from Extinction Rebellion, they are entitled to their point of view. In fact, when it comes to the cause of decarbonisation, many in this place, myself amongst them, see this as an important thing that needs to be addressed with a degree of urgency within our society—and not just here in South Australia but indeed globally—but it is my honest assessment that these protests do that cause harm.

That does not mean in my view that their particular way of advocating their cause should allow their ability to express their cause to be infringed upon—quite the opposite. I understand that today at Parliament House there will be a protest. That protest is welcome. That protest may indeed be important but, if it transgresses in such a way that it infringes upon others unreasonably or unlawfully as the law stands today, notwithstanding the outcome of this bill, there is a responsibility for the parliament to act.

Without speaking for the opposition, I would like to acknowledge the opposition's advocacy for this change and what I understand to be a willingness to work in a bipartisan way on this. I think we all believe in the right to protest, but we also believe in the right to do so lawfully and protect the rights of others in the process. I commend this bill to this place and seek leave to have the explanation of clauses inserted in Hansardwithout my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

Part 2—Amendment of Summary Offences Act 1953

2—Amendment of section 58—Obstruction of public places

This clause amends section 58 to provide for reckless conduct, to make it clearer that conduct may be captured by the offence even if it only indirectly causes obstruction of the public place, to increase the penalty for the offence and to provide a mechanism for recovery of costs of police and other emergency services required to deal with the obstruction.

The Hon. D.J. SPEIRS (Black—Leader of the Opposition) (12:16): I rise briefly to provide some comments on the Summary Offences (Obstruction of Public Places) Amendment Bill 2023 as moved a moment ago by the Premier and continue on from the Premier's remarks in a somewhat seamless way to indicate absolutely that there will be bipartisan support for the contents of what is contained within this bill but also, importantly, for the process of quickly and efficiently moving this legislation through the House of Assembly and on to consideration within the Legislative Council.

The opposition has been involved for some 24 hours or so in advocacy for legislative reform in this area because we, along with members opposite and along with the people we all represent across South Australian communities, were deeply concerned by the way that protesters hijacked the lives of many, many South Australians as they sought to go about their business, whether they were going to work yesterday or whether they were returning home from work. If they were returning home from work at that time of day, of course that meant that they had very likely worked many hours serving South Australians during the night on night shift.

We know that people lost money yesterday as a consequence of not being able to get to jobs that are paid at hourly rates and not necessarily salaried, unlike so many people in this place who are privileged to have a salaried occupation. We know that people had to cancel appointments that they had waited on for quite some time, such as day surgery at both public and private hospitals across our city but particularly in the central business district. In my view, that level of disruption is unthinking on behalf of people protesting in that way.

The consequences of what they did had an unthinking element to it, and the knock-on effect—as the Premier highlighted in his view and in the view shared certainly by me—is that it diminishes the value of the cause that those protesters are fighting for in the eyes of the broader South Australian community. When you represent communities in the way that we are privileged to do, you do tend to pick up a particular vibe in terms of how the broader community are thinking about an issue. While I think the majority of South Australians want action on climate change and environmental matters, that sort of intervention is not what the majority of South Australians are after.

Similar to the Premier's sentiments, I want to express the opposition's strong belief in the place for free protest in our state, sensible protest, planned and informed protest, protest in a way that should be celebrated as a fundamental part of our system of democracy. We should acknowledge that many of the great environmental and social progressive actions that this state and this nation have taken in recent years, decades and centuries have been based and followed on from peaceful and sensible protests.

Protest has a critical part in our democracy. It should and will be celebrated, but what we saw yesterday should not be. What we saw yesterday unnecessarily interfered with people's lives, impacted the livability of our city at a point in time, cost people money and may have impacted people's health and we should not stand for this.

The amendments to the laws before the House of Assembly this morning are quite clear: they extend the threshold for the penalty that is put in place. It is not a penalty that is fixed. It will give our judiciary, our magistrates, our judges, the opportunity to have in their toolkit a more stringent penalty that they can choose to hand down should they see the need for it. It creates a much higher ceiling and I think that makes the Summary Offences Act more fit for purpose should this amendment be passed today.

I thank the Premier and his team for working with the opposition on this legislation and I look forward to its speedy passage. I commend the amendment to this house.

Mr TEAGUE (Heysen) (12:21): I rise to endorse the passage of this bill. As I understand, that can occur now without delay. In doing so, I wish to endorse and amplify the observation that has been made in the course of the debate by the Premier and the Leader of the Opposition.

It is, of course, central to our democracy, central to community and society in this place and throughout the country that people who hold sincere views are able to express them including by way of public protest. What we saw yesterday took us away from the subject matter of the debate, took us away from the subject matter of the concern and left all of us focused on not the subject matter of a public debate but rather the unfair, reckless and disruptive effect that irresponsible actions were having on patients, on clinicians, on frontline workers, and on those of us going about our daily lives.

As has been observed, that was done in completely the wrong way. Dare I say, it took us away entirely from whatever subject matter was the subject of those actions and, to whatever extent people were aware of what actions were being taken, I would rather suggest the effect of such advocacy was counterproductive, if any at all.

I briefly want to recognise the extraordinary capacity and good work of parliamentary counsel in this regard as well. In working up this legislation yesterday, I found tremendous capacity, as is well known to all of us, in parliamentary counsel. So in circulating this draft then only in the early hours of this morning, it has been possible for the government to do what is the responsible step, and that is to pick up this legislation and bring it to the house as government business—and without delay. I commend the government for doing that. There is only so much that members on this side can do, of course, without the cooperation of the government, so I commend the government for picking up that work, which I again emphasise was made possible by the good work of parliamentary counsel yesterday as we were working towards this.

Can I say in the prospect of the day-to-day actions going forward, we have occasion just about every day in South Australia to recognise that we live in the best place in the world. We know that we have a unique capacity in our sturdy and longstanding democracy to engage in debates, to have difference of view, and to do so in any one of the variety of ways that we do. That does not include what we saw yesterday. Sometimes when legislation can serve as a means by which to prevent such action, then we are doing precisely what we are meant to be doing as elected representatives in this place, so I commend the bill.

Bill read a second time.

Third Reading

The Hon. P.B. MALINAUSKAS (Croydon—Premier) (12:26): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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