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WORKPLACES (PROTECTION FROM PROTESTORS) 2014
CLAUSE NOTES
PART 1 PRELIMINARY
Clause 1 - Short title
This clause provides the short title to be used when citing the Act for any legal
purpose.
Clause 2- Commencement
The Act will commence on the day or days on which it is proclaimed.
Clause 3 - Interpretation
This clause defines certain words and terms for the purposes of the Act and, in
particular, defines key terms and words such as "business access area", "business
activity", "business occupier", "business operator", "business related object",
"business worker", "forestry land", "owner", "premises", "protester" and "works".
Clause 4 Meaning of protestor and engaging in protest activity
Subclause (1) establishes the meaning of a protestor for the purposes of the Act.
Subclause (2) specifies what constitutes a protest activity for the purposes of the Act.
Subclause (3) specifies when a person is engaging in a protest activity, and provides
that a person who is bystander to a protest activity is not engaging in a protest
activity.
Subclause (4) provides that all acts, whether lawful or not, done in a protest activity
are subject to the relevant offence provisions of this Act.
Subclause (5) provides that subclauses (3) and (4) do not limit the generality of
subclause (1).
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Subclause (6) provides that a person engaging in a protest activity where the
business occupier is prepared to consent to the protest activity on their premises is
not engaging in a protest activity for the purposes of this Act.
Subclause (7) provides that a business operator or a business worker with the
consent of the business operator can conduct a protest activity on business
premises or a business access area and not contravene this Act.
Subclause (8) provides that a person undertaking protected industrial action under
the Fair Work Act 2009 or a State Service employee or officer participating in lawful
industrial action is not taken to be engaging in a protest activity.
Subclause (9) provides that regulations can set out that a class of activities are not
protest activities and a person taking part in those activities would not be engaging in
protest activity. A person is not to be taken to be engaging in a protest activity if the
activity is within a class of activities prescribed by regulations not to be protest
activities.
Clause 5 - Meaning of business premises
Subclause (1) defines "business premises" for the purposes of this Act. There is
ability to prescribe in regulations places that are business premises where the
premises are related to carrying out of a business activity.
Subclause (2) specifies what constitutes use or intended use of premises for the
purposes of subclause (1)(h).
Subclause (3) provides that a public road, public footpath or public place is not taken
to be business premises for the purposes of this Act, except under the specified
circumstances.
Subclause (4) specifies the premises which are not to be taken as business
premises for the purpose of this Act.
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PART 2 PROTECTION OF BUSINESS PROTESTORS
Clause 6 Protestors not to invade or hinder business, &c.
Subclause (1) prohibits a protestor from entering business premises or a part of
business premises if entering or remaining on those premises would prevent, hinder
or obstruct carrying out of a business activity by the business occupier of those
premises, and the protester knows, or ought reasonably be expected to know, that
their action would likely prevent, hinder or obstruct carrying out of that business
activity.
Subclause (2) prohibits a protestor from doing an act on business premises, or on a
business access area, if the act would prevent, hinder or obstruct carrying out of a
business activity on the premises by the business occupier of those premises, and
the protester knows, or ought reasonably be expected to know, that their action
would likely prevent, hinder or obstruct carrying out of that business activity.
Subclause (3) prohibits a protestor from doing an act that would prevent, hinder or
obstruct a business occupier's access to an entrance to, or exit from, the business
premises or business access area related to those business premises, if the
protester knows, or ought reasonably be expected to know, their act would likely
prevent, hinder or obstruct that access.
Subclause (4) prohibits a person from doing an act for the purposes specified on a
road, footpath, public place or another area of land that prevents, hinders and
obstructs the movement of a vehicle, vessel or aircraft by a business occupier in
relation to business premises, and the protester knows, or ought reasonably be
expected to know, their act would likely prevent, hinder or obstruct that movement.
Subclause (5) prohibits a protestor from remaining on business premises, in
contravention of a police officer's direction under clause 12 to leave. This subclause
also prohibits a protestor from entering business premises within 4 days after being
directed by a police officer under clause 12 to leave the premises or a business
access area of the business premises.
Subclause (6) creates an offence if a person does not comply with subclause (1), (2),
(3), (4) or (5).
Subclause (7) provides that if a person is part of a procession, march or event that
passes business premises or a business access area at a reasonable speed once
on any day, that person does not commit an offence against section 6(6).
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Subclause (8) provides a defence of lawful excuse to an offence against clause 6(6).
Subclause (9) specifies the non-limiting circumstances under which an act prevents,
hinders, or obstructs the carrying out of a business activity on business premises or
a business access area and includes acts that prevent, hinder or obstruct the use by
a business occupier in relation to the business premises of a business related object
on the business premises, or causes a risk to the safety of a business occupier in
relation to the business premises.
Clause 7 Protestors not to cause damage or threaten damage or risk to
safety
Subclause (1) creates an offence if a protestor does an act causing damage to
business premises and the protestor knows, or ought reasonably be expected to
know, their act would likely cause that damage.
Subclause (2) creates an offence if a protestor does an act that causes damage to a
business related object that is on business premises, or on a business access area
being taken to or from the business premises, and the protestor knows, or ought
reasonably be expected to know, their act would likely cause that damage.
Subclause (3) creates an offence if a person issues a threat of damage in relation to
business premises in the furtherance of, or for the purposes of promoting awareness
of, or support for, an opinion or belief in respect of a political, environmental, social,
cultural or economic issue.
This subclause refers to a threat issued by a person, as the definition of a `protestor'
is limited to activities on roads, footpaths, public places, business premises or
business access areas and a threat may not necessarily be issued from one of these
areas.
A threat to damage in relation to business premises is not limited to those places
where protest activity as defined in clause 4(2) can take place.
Subclause (4) specifies what constitutes a threat of damage in relation to business
premises.
Subclause (5) establishes a defence of lawful excuse to an offence against
subclause (1) or (2).
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Subclause (6) specifies the circumstances under which an act causes damage to
business premises or a business-related object.
Clause 8 Protestors must, at direction of police officer, leave and stay away
from business access area
Subclause (1) creates an offence if (1) a person remains on, a business access area
or an area of land, if directed by a police officer under clause 12 to leave or (2)
enters a business access area in relation to business premises within 4 days after
having been directed by a police officer under clause 12 to leave; or (3) remains on
an area of land or enters the area within 4 days, after having been directed by a
police officer under clause 12 to leave the area of land.
Subclause (2) establishes a defence of lawful excuse to an offence against
subclause (1).
Clause 9 - Prevention of removal of obstruction
Subclause (1) creates an offence to prevent, hinder or obstruct a police officer from
taking action to remove objects in accordance with the provisions of clause 13.
Subclause (2) provides it is a defence to an offence under subclause (1) if the
person provides that they had a lawful excuse.
Clause 10 - Incitement to commit an offence
Subclause (1) creates an offence if a body corporate or an individual incites a person
to commit an offence against clause 6.
Subclause (2) creates an offence if a body corporate or an individual incites a person
to commit an offence against clause 7.
Subclause (3) establishes a defence of lawful excuse to an offence against
subclause (1) or (2).
Subclause (4) establishes an additional defence to an offence against subclause (1)
and (2) if the inciting person can prove that the person they incited to commit the
offence also has a defence against that offence under this Act.
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PART 3 POWERS OF POLICE
Clause 11 - Police officer may demand proof of identity, &c.
Subclause (1) empowers a police officer to require a person to provide the specified
information relating to the person's identity where they reasonably believe that the
person has committed, is committing, or is about to commit an offence against the
provisions of this Act.
Subclause (2) creates an offence if the person fails or refuses to comply with a
requirement under subclause (1) or provides false information in response to a
requirement under subclause (1), and specifies the penalty for the offence.
Subclause (3) empowers a police officer to search a person if the police officer
reasonably believes the person has failed to provide evidence of identity that the
person has in his or her possession.
Clause 12 Police officer may direct person to leave business premises or
business access area
Subclause (1) provides that a police officer can direct that a person leave without
delay a business premises where the police officer reasonably believes that the
person has committed, is committing or is about to commit an offence on or in
relation to the business premises or business access area.
Subclause (2) provides that a police officer can direct that a person leave without
delay a business access area where the police officer reasonably believes that the
person has committed, is committing or is about to commit an offence on or in
relation to the business premises or business access area
Subclause (3) provides that a police officer can direct that a person leave without
delay an area of land where the police officer reasonably believes that the person
has committed, is committing or is about to commit an act in contravention of clause
6(4) on the area of land.
Subclause (4) provides that a police officer can issue a direction to leave to a group
of persons.
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Subclause (5) provides that a direction under subclause (4) is taken to be given to
each and every member of the group who ought to reasonably be expected to hear
it.
Clause 13 - Police officer may remove obstructions
Subclause (1) provides a police officer may remove, or have removed, from an area
of land any object that the officer reasonably believes is hindering, obstructing or
preventing business activity.
Subclause (2) provides a police officer may carry out, or have carried out, activity on
an area of land the officer reasonably believes are necessary to make good any
damage caused to an area of land by a person, in contravention of Part 2 of this Act.
Clause 14 Arrest without warrant and removal of persons
This clause empowers a police officer to arrest a person without warrant, detain an
arrested person and to remove a person from a specified location, under the
specified circumstances and for the specified purposes.
Clause 15 Use of force
This clause provides that a police officer may use reasonable force in relation to a
person, object or premises when exercising powers or performing functions under
this Act.
Clause 16 Infringement Notice
Subclause (1) authorises a police officer to issue and serve an infringement notice
on a person where the police officer reasonably believes that a person has
committed or is committing an offence under clauses 6(6) or 8(1).
Subclause (2) provides that the infringement notice must be in accordance with
clause 14 of the Monetary Penalties Enforcement Act 2005 and cannot relate to
more than one offence.
Subclause (3) specifies the respective penalties payable by a body corporate or an
individual under an infringement notice for an offence against clauses 6(6) or 8(1).
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PART 4 COURT PROCEEDINGS
Clause 17 - Certain offences to be indictable
This clause provides that offences against provisions of this Act are indictable
offences.
Clause 18 Conviction must be recorded
This clause provides that if a person to found guilty of an offence under Part 2 a
court must convict that person of the offence.
Clause 19 Mandatory penalties for invading or hindering business
Subclause (1) provides for penalties of not less than $50,000 and no more than
$100,000 to be imposed by a court on a body corporate convicted of an offence
against clause 6(6).
Subclause (2) provides that where a court convicts an individual of an offence
against clause 6(6) for a first offence the penalty is to be not less than $5000 and no
more than $10,000; and if a further offence is committed by an individual after the
person is convicted of an offence against clause 6(6) the court must impose a term
of imprisonment of not less than 3 months and not more than 2 years on that person.
Clause 20 Compensation for loss
Subclause (1) provides that where a person has caused damage to a business
premises, a court may order the person to pay, to the business operator of the
business premises, the amount determined by the court to be the costs of repairing
the damage.
Subclause (2) provides a court may order a convicted person to pay to a business
operator of the business premises the relevant amount in relation to a business
related object where an offence under clause 6 or 7 has caused damage to a
business related object in relation to the business premises.
Subclause (3) provides how the court may determine what the relevant amount is in
relation to a business related object.
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Subclause (4) defines references in this section to causing damage to a business
related object and the relevant amount in relation to a business related object.
Subclause (5) provides that a person convicted of an offence under clause 6 may be
ordered by a court to pay to the Crown the removal and repair costs in relation to the
object or act.
Subclause (6) provides where the removal and repair costs in relation to the object
or act are reasonably incurred for the purposes of subclause (5).
Subclause (7) provides where a court may order the payment of costs to the Crown
reasonably incurred in hiring or obtaining and operating equipment in order to effect
the arrest or removal of persons.
Subclause (8) provides that a court may order a person convicted of an offence
under clause 6 or 7 to pay a business operator an amount determined by the court to
be equal to the amount of the financial loss suffered by the business operator as the
natural, direct and reasonable consequence of the offence.
Subclause (9) provides where a court convicts 2 or more persons of offences under
clauses 6 or 7 in relation to the same business premises or business access area
and the offences each contribute to part, or all of the same damage to premises or
business related object, or to the same incidence of financial loss of the business
operator, the court may apportion between the convicted persons so much of the
cost, or amount of the financial loss, in proportions that the court thinks just in all the
circumstances.
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PART 5 MISCELLANEOUS
Clause 21 Regulations
Subclause (1) provides the Governor with the power to make regulations for the
purposes of this Act.
Subclause (2) provides for general regulation making powers.
Clause 22 Administration of Act
This clause assigns the administration of the Act to the Treasurer and nominates the
Department of Justice as the responsible agency until such time as provision is
made by an order under the Administrative Arrangements Act 1990.
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