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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-10-19 Daily Xml
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STATUTES AMENDMENT (PUBLIC ASSEMBLIES AND ADDRESSES) BILL

Introduction and First Reading

The Hon. S.G. WADE (19:49): Obtained leave and introduced a bill for an act to amend the Public Assemblies Act 1972 and the Summary Offences Act 1953. Read a first time.

Second Reading

The Hon. S.G. WADE (19:50): I move:

That this bill be now read a second time.

I rise to speak to the second reading of the Statutes Amendment (Public Assemblies and Addresses) Bill 2011. The member for Adelaide, Ms Rachel Sanderson, is moving an identical bill in the other place tomorrow.

Over recent years a group of aggressively evangelistic preachers, commonly referred to as the 'street preachers', has been in conflict with the Adelaide City Council and increasingly with retailers and other citizens in Rundle Mall. A loose coalition of counter-protesters, bringing together a Facebook-based group, Love not Hate, and more established left-wing groups—which, I understand, include Resistance and Socialist Alliance—has formed more recently. The counter-protestors are trying to counter the activities of the street preachers, usually by creating enough noise to drown out their preaching and also by shielding the public from the preachers.

I make no judgement on the merits of either group; in fact, I support the right to freedom of speech of both the preachers and the counter-protesters, but their freedoms are freedoms which should be exercised in an orderly and respectful manner. The combined impact of both groups is a significant disruption of Rundle Mall as a family and retail precinct. Rundle Mall is a key state asset, our largest retail precinct. We need to respect the investment of businesses large and small in terms of capital, time and effort, and I am very disturbed about reports of businesses losing thousands of dollars due to disorderly preaching and related protests.

The Rundle Mall precinct is also a cultural hub of the CBD and of the state as a whole. The precinct showcases the diversity of the South Australian community, and any group that dominates the space inhibits the opportunity for others to participate in the state's life. So often it seems to me that the disrespectful use of freedom of speech undermines the willingness of the public to tolerate and listen to the messages being conveyed.

Freedom of speech does not involve the right to interfere with the right of other people to exercise other rights such as freedom of movement and freedom of social intercourse. Freedom of speech does not involve the right to stop other people exercising their right to speak. Freedom of speech does not involve the right to break other laws of the state. In the opposition's view, the state government and the Adelaide City Council need to be involved in a three-pronged response. Firstly, we believe that we need mediation; secondly, enhanced law, whether council by-laws or state law; and, thirdly, we need coordinated enforcement. Let me first address the issue of mediation.

The opposition is calling on the council and the state government to support mediation between the key protagonists including key stakeholders such as the Rundle Mall Management Authority. We consider that a mediator could help the parties to better understand each other's objectives and the extent to which those objectives are not mutually exclusive and are consistent with Rundle Mall's primary role as a family and retail precinct. I note that last week the council sought a court-supervised mediation between the council and the street preachers. It is our view that that mediation needs to go further and include the counter-protestors and the traders.

Secondly, the opposition considers that we need enhanced law, whether council by-law or state law. The council has been unable to control the situation for more than two years. By-law No. 6—Rundle Mall is a new by-law which provides additional powers in relation to Rundle Mall, in particular to require landowners to maintain their properties and an improved clause relating to controlling amplification.

When the by-law was introduced in February 2011, the conflict continued. The disallowance of by-law 6 last month means that the Adelaide City Council is relying on the general pre-existing by-laws to control the Mall. It has returned to the situation before by-law 6 was promulgated. The original by-laws have amplification control provisions. By-law No. 6, which was, as I said, disallowed, had been in place for seven months since 10 February 2011, and the amplification control element had not proven to be the silver bullet. If it was going to be effective, why was it not vigorously enforced? If it was vigorously enforced, why was it not more effective?

In the view of the opposition, the police and the Rundle Mall Management Authority, amplification control will help restore order to Rundle Mall, but it will not solve the problem. When Adelaide City Council told me that by-law 6 was part of the council/police strategy to target amplification, I discussed the issue with members of South Australia Police. They advised me that amplification control could only be one tool in addressing the problem. They noted that on some nights the preachers have not used amplification for their preaching. In fact, last Friday night, when I was in the mall, both the preachers and the counter-protestors were using megaphones, not sound systems.

The street preachers have been a challenge for two years, and I understand they have only been using amplification in recent months. I indicate that the amplification control provisions of the proposed model by-law is no more likely to fix the situation than by-law 6 did in the past. We also need to remember that council does not have the authority to enforce any offence-type provisions anyway, whether it is by-law No. 6 or the proposed model by-law. The council needs police support, and police say that it is not a priority for them to enforce council by-laws.

Police have indicated that, whilst council officers can seek the name and address of a person for a breach of a council by-law, if a person refuses the council officer would need to call the police in to enforce the by-law, and police will not do so. Police also made this point to a parliamentary committee recently. Similar comments were made by the Lord Mayor on ABC 891 radio on 14 September 2011. In that context, he was talking about the inability of the council to enforce the smoking by-law. Police advised that they do not enforce council by-laws; it is not a priority for them. Council stressed the need for police engagement in a meeting on 6 August 2011 with the member for Adelaide, Rachel Sanderson, and in an email to me from the council on 29 July 2011.

As an opposition, we are concerned about having laws that work, not just laws that sound good on paper. I find it baffling why the council attacked the opposition for a disallowance which removed a provision that they could not enforce and that police were not willing to enforce. The council has worked with the government to the exclusion of the opposition to restore a by-law of limited usefulness. I hope they also have been insisting that the state government provide active enforcement of state law and commit to supporting the council and enforcing the council by-laws to restore order in the mall. As recently as yesterday in this council, the minister clearly supported the police not engaging in maintaining order in the mall.

Council had plenty of notice of the disallowance. I met with the council twice in the first half of the year to discuss the situation in Rundle Mall and by-law 6. In late July, the council confirmed in writing that, while it was disappointed, it accepted that the opposition would continue to move ahead with the disallowance motion. The by-law was not disallowed until mid-September. The council did not mention any operational issues that would arise, including amplification. The fallback by-law includes an amplification clause.

For its part, the council has repeatedly failed to honour undertakings. Earlier this year, the council advised the opposition that it was already reviewing by-law 6 in the context of the proposed smoking ban and that a recommendation would go to a committee meeting in August recommending that the by-law be changed to address opposition concerns and form a working group, including the opposition. The issue was not even raised at the committee meeting.

At a meeting with council officers with me on 16 September, it was agreed that there would be a roundtable meeting with stakeholders to discuss options. No meeting was ever held. Instead, the council distributed a letter widely that demanded that the opposition support an option—an option that was not even legally feasible. Further, I was advised that the opposition would be consulted on the wording of the model regulation. The first we saw of it was when it was gazetted last Thursday.

What drives me is outcomes. I hope that the council comes to the realisation that it has a duty to work with the whole parliament and that that approach will bring the best outcomes for its constituents. For the sake of balance, I would thank the council for its comments on the bill that I have tabled tonight. The changes it suggested, particularly in relation to consultation with local government, have been incorporated.

Minister Wortley claims that because by-law No. 6 is not available, council cannot deal with the breaches of the peace, offensive and disorderly behaviour and jostling which are occurring in the Rundle Mall. Interestingly, by-law No. 6 does not cover any of these matters, but they are all contrary to state law and enforceable by police. We believe that state laws need to be actively policed, including the laws of assault, trespass and breaching the peace. If minister Wortley truly believes that the council cannot do anything in the Rundle Mall because of the lack of by-law No. 6, then it is his duty, and in fact an ideal opportunity, to engage the police and enforce state law.

Thirdly, the opposition considers that we need coordinated enforcement. I appreciate that the optimal response is likely to be an interaction of state law and council by-laws and a blend of police enforcement and council enforcement. There needs to be active cooperation between the police and the council to maintain public order. While the primary responsibility to manage the mall and enforce council by-laws are matters for local government, we consider that council does need greater support from the police, particularly where situations are threatening to escalate.

The South Australian police have told the member for Adelaide and myself that it is not a priority for police to enforce council by-laws. While police respond to complaints they are not proactively enforcing state laws. In my view, there may well be value in the development of a memorandum of understanding between the council and the South Australian police as to their respective roles in the enforcement of council by-laws and state law.

I now turn to the details of the bill. The bill addresses a deficiency that we have identified in the second prong of the response; that is, the law. The bill is an attempt to strengthen state law so that it might complement the operation of council by-laws. The opposition has come to the view that it is appropriate, particularly in light of the Supreme Court judgement in Corneloup, that state law be strengthened.

To highlight the need for police engagement, to enhance police powers to respond to the misuse of amplification and to provide for an incentive for orderly conduct, this bill proposes amendments to two acts. Firstly, the Summary Offences Act. The bill would provide police with the power to control the use of public address systems in a prescribed area in four ways.

Firstly, it would empower police to direct a person not to use a public address system in a prescribed area where relevant authorisation had not been granted. Secondly, it would give police the power to confiscate a public address system if a person fails to comply with a direction. The public address system would be returnable to the person on the payment of a prescribed fee. Thirdly, it would empower police to request the name and address of a person to whom a direction is issued and it would be an offence to refuse to provide those details to a police officer.

Fourthly, it would empower police to charge a person with an offence under the act if they breach a direction issued to that person, unless the person has the relevant authorisation. Relevant authorisation is defined in the bill as the landowner or occupier, the Commissioner of Police or the local government authority in that area. Authorisation would only be required by one of the relevant authorities to avoid an effective veto by one party over the others.

We recognise that it may not always suit all respective parties for an action to take place, but our proposals are permissive rather than restrictive. The proposals are consistent with our commitment to freedom of speech, and they acknowledge the need to ensure that those freedoms are exercised in a way which is orderly and does not unreasonably interfere with the rights of others.

The offence is not device specific. A range of devices can be used, and with the sophistication of modern technology those devices can be relatively small. You only need to walk down the mall any day of the week to hear a mobile phone ring at some distance. Relatively small devices can be used as quite invasive devices, so it was considered that it was best not to try to define 'devices' by a list of devices that the provisions would apply to. That would involve the government listing potentially thousands of devices and needing to keep updating the list endlessly but, rather, it was considered wise to concentrate on the use to which those devices were being set.

If a person was using a ghetto-blaster for their own personal enjoyment as they walked along—and if I could pause and thank the Hon. Tammy Franks for explaining to me how to properly call it a ghetto-blaster rather than a gecko-blaster—that device would not infringe the act because it is being used for the personal enjoyment of the person rather than as a public address system.

It is also designed so that it relates to the use, not to the sound level. One of the problems with the enforcement of excessive noise in the context of motor vehicles is that it requires not only being able to identify the person as they are driving by, but also to get some reading of the level of noise. This is not sound level related but rather purpose related.

The act of using a device as a public address system in a prescribed area without the relevant authorisation satisfies the threshold required for police action. I should say that that is not a prerequisite for police action; it is not a mandate for police action. We would expect the police to work with council officers to identify when a public address system was being used in an aggressive or invasive way.

The offence is not simply to use a device as a public address system: it is to use a device after being directed not to do so by a police officer. Police action is not limited to being able to charge a person with the offence. The officer may deem it inappropriate to charge a person in the first instance, so the provisions allow an officer to confiscate the public address system itself. Neither the offence or the confiscation are necessarily required to be used together in relation to any particular case. The offence does not stop a person making a public address using a public address system but it gives the police the opportunity to minimise disruption in a prescribed area.

Secondly, the bill proposes changes to the Public Assemblies Act in two ways. First, it provides for speakers' corners. Under the bill, the government can prescribe areas within which councils can gazette places within which a gathering secures the civil and criminal protection available under the Public Assemblies Act and that gatherings can do so without prior notice. That is particularly important because, under the Corneloup decision, councils will no longer be able to require people involved in political and governmental communication to seek a permit.

The second aspect of the bill in relation to public assemblies is to establish a new offence of disrupting or obstructing an assembly under the Public Assemblies Act. The provisions do not apply to those who disrupt an assembly with a lawful excuse or police officers or other authorised persons carrying out their official duties and functions.

This particular offence is reflective of the distress caused to people who were involved in two marches earlier this year which, I understand, were both promoting marriage equality. South Australian citizens were exercising their freedom of speech to support marriage equality and were extremely upset at not only the disruption which I understand was undertaken by the street preachers but certainly by a group of people espousing so-called Christian values. I think that contributed significantly to the counter-protests that are now being experienced in Rundle Mall.

As I said earlier, we believe that freedom of speech should be supported and encouraged in our community, but freedom of speech does not extend to the freedom to repress other people from exercising their freedom of speech. In an environment where the courts have said that you cannot require political communicators to seek permits, both of these provisions are trying to provide incentives for people to work cooperatively with the authorities.

Without the ability to issue a permit, if a public assembly follows the processes of the Public Assemblies Act—which are actually quite permissive in that you do not need to get approval by authorities, you just need to put forward a proposal which is not disallowed by the authorities or objected to by the authorities and, even if the authorities object, you can still appeal to the courts. The original act, the Public Assemblies Act, is quite an old act. This is, if you like, a modernisation to pick up the particular experiences we have had recently. I know that we had very traumatic experiences in Adelaide in the 1960s and 1970s with Vietnam moratorium marches, but it seems that we have much more recent experience of, shall we say, head-on-head rallies—

The Hon. J.M.A. Lensink interjecting:

The Hon. S.G. WADE: Yes, and I think that's extremely unhealthy—

The ACTING PRESIDENT (Hon. I.K. Hunter): The Hon. Mr Wade might cease playing to the gallery.

The Hon. S.G. WADE: I am just concerned about my grasp of history, so I am relying on my learned colleagues. I am told that the Vietnam War was indeed in the 1960s.

The Hon. J.M.A. Lensink: And the 1970s.

The Hon. S.G. WADE: —and the 1970s. The opportunity in this bill is to update, if you like, an established act to provide additional incentives for people who no longer require permits to cooperate with the authorities to facilitate orderly dialogue. Yesterday, the minister called for a bipartisan approach on matters in relation to Rundle Mall. That followed his baseless and vigorous attack on me in the last parliamentary sitting. I must confess I am not a great fan of bipartisanship. Too often they see it as an avoidance of accountability founded on an abdication of responsibility, and this government has shown a consistent reluctance to negotiate, compromise or accept alternative views. So when it talks about bipartisanship, it usually means, 'Just accept our position.'

The government tries to use the term 'bipartisan' to weasel out of scrutiny, but I suppose, nice as I ever am, I am willing to be open to the possibility. The opposition stands willing to work with stakeholders on a real collaborative approach to improving the situation, and I would put to the minister that the test of the bona fides of the government in relation to bipartisan approach is the bill that I table today. If it believes that an amplification control provision would help, supporting this bill could see such an enhanced provision on the books in a matter of weeks.

The model by-law would see enhanced provisions in place by February at the earliest, so if the government is really serious about delivering an urgent solution for more users, and really serious about taking a bipartisan approach, it will come to the table and work cooperatively to support this bill, with or without amendments. From the opposition's point of view, we welcome the input of all interested parties to develop the best bill possible: the government, the crossbenchers, the preachers, the counter-protesters, the traders, the police and the council. We commit ourselves to work collaboratively, and we commend the bill to the house.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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