The following is not legal advice, or intended to be relied upon as such. The purpose of this article is to be informative regarding the impending legislative changes in Queensland, following the several 'anti-extinction' protests in Brisbane's CBD.
The story (so far...):
If you weren't already aware, the Queensland government were seeking to amend legislation to provide the Queensland Police Service ("QPS") with greater power to search protesters suspected of possessing 'locking devices'. This was in response to alleged tactics of protestors gluing themselves to roads, locking themselves to trailers, boats and cars left on thoroughfares within the CBD, and locking themselves to barricades within the CBD.
The rhetoric increased in late-August and early-September, when Premier Annastacia Palaszczuk, on advice from the Commissioner of Police, told the Queensland Parliament protestors utilised 'booby traps' either within or about the locking devices to prevent their ease of removal by first-responders. The Premier was quoted as remarking:
"These protesters put their arms in steel cylinders and drums filled with concrete [...] Inside these cylinders and drums are glass fragments — even butane gas containers — so that anyone trying to cut a protester free will be injured or worse."
There was significant furore from both sides of Parliament, and a number of stakeholders as to the proposed amendments. Queensland Law Society President, Bill Potts, succinctly summarised:
Suspending people over train tracks for mine trains, or putting derailment devices on those tracks, is simply a tragedy waiting to happened; shutting down Brisbane in peak hour punishes the very people the protesters want to support their cause. The irony is that it is impossible to imagine that such stunts have swung any doubters to the cause of Extinction Rebellion, although many will have been turned off by them.
A similar irony exists in the government’s proposed response, the curtailing of the right to protest. That has actually prompted even people who are sick of extinction Rebellion’s antics to get out and protest for the right to protest; by trying to curtail protests, the government has created more of them. Does anyone think we are getting anywhere with this?
Mr Potts, in his President's Update (17 September 2019) cautioned against legislative overreach, contrasting the recent protests and government response with the Bjelke-Petersen era.
So - What are the proposed changes to Queensland's protesting laws?
On 19 September 2019, The Honourable Mark Ryan MP, Member for Morayfield, Minister for Police, and Minister for Corrective Services introduced the Summary Offences and Other Legislation Amendment Bill 2019 (Qld). Legislation, he said, that was to amend the Police Powers and Responsibilities Act 2000 (Qld) ("PPRA"), the State Penalties Enforcement Regulation 2014 (Qld) ("SPER"), and the Summary Offences Act 2005 (Qld) ("SOA").
The 'mischief' identified was summarised as such [at 3024-5]:
"In recent times, a small cohort of people have decided to engage in deliberately unlawful behaviour with potentially dangerous outcomes. We have seen bespoke devices designed to fix people to a place, a thing or each other. These devices are purposely built to resist attempts to remove them. [...] "
Items identified included "sleeping dragons", "dragon's dens", tripods on rail lines, and the use of glass and gas cartridges within or about these devices. There were four heads of proposed amendments identified:
1 - 2: Amendments to the PPRA:
First, the PPRA would be amended to provide the QPS with power, where there was reasonable suspicion a person has, or a vehicle contained, a 'dangerous attachment device' that has been used or is to be used to disrupt a 'relevant lawful activity', to search that person or vehicle (to amend PPRA s. 30 Prescribed circumstances for searching persons without warrant; and, s. 32 Prescribed circumstances for searching a vehicle without warrant)
Disrupting a 'relevant lawful activity', under the proposed amendments is where a person "unreasonable interferes with the ordinary operation of transport such as our roads or railways; or if the person stops a person from entering or leaving a place of business; or causes the ordinary operation of equipment or plant to be halted due to the safety concerns of a person".
Second, under similar amendments to the PPRA, the QPS would be empowered to deactivate, disassemble or seize any dangerous attachment device found; with any seizures resulting in forfeiture of the device to the State (inserting new section: PPRA s 53AA Seizure and disposal of dangerous attachment devices; amending s 720 Application of div 7; and Schedule 6 - Dictionary).
3: Amendments to the SOA:
Third, under amendments to the SOA, two new offences would be implemented:
The first offence (Inserting a new offence, SOA s 14C(1) Use of dangerous attachment device to disrupt lawful activities) elementised as: [1] Any person who; [2] without reasonable excuse; [3] uses a dangerous attachment device [4] to unreasonably interfere with the ordinary operation of transport infrastructure; [5] will be liable to a maximum penalty of 50 penalty units (note: a Penalty unit, as of 1 July 2019 is $133.45, making the maximum fine liability $6,672.50 for this offence) or two years imprisonment.
The second offence (Inserting a new offence, SOA s 14C(2) Use of dangerous attachment device to disrupt lawful activities), elementised, is: [1] Any person who; [2] without reasonable excuse; [3] either: (i) stops a person from entering or leaving a place of business, or (ii) halts the ordinary operation of equipment; [4] because of safety concerns for any person through the use of a dangerous attachment device; [5] will be liable to a maximum penalty of 20 penalty units ($2,669.00) or one year's imprisonment.
The second offence excludes tripods or monopoles unless those devices incorporated a dangerous substance or thing (new section: ss 14C(3)).
4: Amendments to the SPER:
Finally, the SPER would be amended to provide the QPS ability to issue infringement notices for the proposed offences under the SOA up to five penalty units ($667.25) for the first offence, and two penalty units ($266.90) for the second (Inserting SOA s 14C(1) & (2)).
But what is a (dangerous) attachment device?
The proposed amendments to the Summary Offences Act include definitions of an attachment device (s 14A) and a dangerous attachment device (s 14B).
An attachment device is: a device that reasonably appears to be constructed or modified to enable a person using the device to resist being safely removed from a place or safely separated from a thing (s 14A(1)); but does not include, on their own, any of the following: glue, a bike lock, a padlock, a rope or a chain.
A dangerous attachment device is: an attachment device that either:
reasonably appears to be constructed or modified to cause injury to a person who attempts to interfere with the device (s 14B(1)(a)); or
reasonably appears to be constructed or modified to cause injury to a person if another person interferes with the device (s 14B(1)(b)); or
incorporates a dangerous substance or thing (s 14B(1)(c)); or,
is a sleeping dragon, dragon’s den, monopole and tripod (s 14B(2)).
The terms 'sleeping dragon', 'dragons den', 'monopole' and 'tripod' are further defined between pages 10-11 of the bill, available here.
Where are we up to now?
The Summary Offences and Other Legislation Amendment Bill 2019 (Qld) was (on 19 September 2019) referred to the Legal Affairs and Community Safety Committee, consisting of:
Mr Peter Russo MP, Member for Toohey, Chair
Mr James Lister MP, Member for Southern Downs, Deputy Chair
Mr Stephen Andrew MP, Member for Mirani
Mr Jim McDonald MP, Member for Lockyer
Mrs Melissa McMahon MP, Member for Macalister
Ms Corrine McMillan MP, Member for Mansfield
Submissions were called for, and were closed on 8 October 2019. On 11 October 2019, the Committee conducted a public hearing (an archived broadcast available here and a transcript available here). The Committee's report is due to be tabled on 4 November 2019, and with the last parliament sitting dates scheduled between 26 - 28 November 2019, the proposed amendments may well become law before the end of 2019.
Conclusion
The proposed legislative amendments seek to curtail a specific mischief, however the effect of the amendments may (and indeed, are likely) to go beyond responding to this specific mischief and impact the ability to peacefully protest - a staple right of any functioning democracy.