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Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4146 ..

MR STANHOPE (continuing):

participation a person can't be charged with sabotage. Certainly, that has been the case in New South Wales now for 18 months or so, and the provision, of course, in New South Wales has not been used in relation to protestors or strike action or anything like that.

Sabotage offences are directed at those who cause, or threaten to cause, damage to important public facilities and infrastructure-with the intention. Once again, we always have to go to the force of the criminal law. The provision talks about committing an offence with the intention of causing "major disruption to government functions; or major disruption to the use of services by the public; or major economic loss". It is the intention of doing these things.

The intention of the legitimate protestor, the intention of the industrial campaigner, is to raise public or political awareness of an issue or to express an opinion on a particular issue. The intention of the protestor, the intention of the legitimate industrial campaigner, is not to cause major disruption or major economic loss. The terms "major disruption"and "major economic loss"derive their meaning from the context of the offences in which they appear.

In the context of sabotage offences, these terms would be understood by the courts as something comparable to catastrophic disruption or economic loss because of what sabotage entails. We can use this debate, and we can use it now-we need to make this crystal clear-to point out that major disruption and major economic loss are intended to be understood in this way, and the courts have to take cognisance of that. It is the intention of this legislature and it is the intention of the government that we are talking here about major economic loss and major disruption in the context of these offences as they appear in the legislation. The disruption or economic loss caused by a typical rowdy protest or sitting, involving police, minor damage to property and the usual scuffles, does not fall within the requirements of any of these offences.

It is also fanciful to suggest that a prosecution would be brought under these provisions to punish or stop peaceful protest and industrial campaigns. First, the police and the DPP would have to be satisfied that the elements of the offence were made out and, as I have said, that in itself would present a major hurdle because protestors would not have the relevant intent-it would not be what they intend. Secondly, the DPP would have to be satisfied, in accordance with the prosecution guidelines, that such a prosecution was in the public interest and that there are reasonable prospects of a conviction. Thirdly and finally, in the highly unlikely event that a prosecution is brought to court, the court would have to be satisfied of all the elements of the offence and that all the elements were made out.

To establish the sabotage offence, it must be shown that the defendant caused damage or disruption to a public facility by committing a property offence or committing or causing an unauthorised computer function, and that the defendant intended to cause major disruption to government functions, or major disruption to the use of services by the public, or major economic loss. There is an imposed potential penalty of 25 years imprisonment. This is a very serious offence. This is not about protests or strike action.

It is important, too, that we need to understand the context of the sabotage provisions in relation to terrorism and our response to terrorism. I think, in that regard, we need to be clear about the fact that these provisions were agreed on by model criminal code officers

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