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Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4149 ..

MR STEFANIAK (continuing):

I do have some sympathy with what she is trying to achieve, although I just do not think that it is really necessary to do so. I think the Chief Minister is quite right in saying that the intention of this provision is such that it would never be used for a proper, bona fide, peaceful strike, protest, demonstration or whatever. Also, it is rather hard to draft something to meet what she is trying to achieve. About a week back I gave her a couple of hints as to how to do so with another bill, but they probably were not terribly helpful. I must say that I do not necessarily think that the second draft totally achieves the purpose, either. Accordingly, the opposition will not be supporting this amendment, but appreciates that, obviously, the numbers are there for it to go through.

The Chief Minister mentioned that it really would not change anything at all. I have one little reservation about that which I will mention. But let me say at this stage that there are ample laws already in existence in terms of property that might get damaged during a strike or industrial action. There is a series of offences there. There are offences under the Commonwealth Crimes Act, for example, which are occasionally invoked in terms of Commonwealth property damaged during demonstrations. There are a number of offences which would be invoked under our own Crimes Act-for example, the offence of malicious damage. If, say, a demonstration got out of hand or if individuals at a demonstration which began peacefully then started smashing windows, that would not be an act of sabotage; it would be malicious damage.

The prosecution authorities in this country-in every single state and territory and the Commonwealth-would not, I would think, contemplate using these two provisions in terms of any damage done during a demonstration, even a demonstration that got out of hand. It has not happened so much in Australia, but I recall some of the damage done on occasions in strikes and industrial unrest in England. Perhaps one could argue that if a person intended to do such damage as to cause a major disruption to the use of services by the public such provisions could apply, and that may not be unreasonable in the circumstances. But I cannot think of an instance in Australia where any strike, industrial action or protest has led to damage that would invoke clause 123 or any threats to do such damage that would invoke clause 124.

The law as it stands in those areas-I have mentioned the Commonwealth Crimes Act, the offence of malicious damage under our own Crimes Act and several other offences-could be brought against a demonstrator or someone involved in a strike who went too far and damaged property. Those are the provisions that probably would be used. If the DPP in the ACT were silly enough to bring a charge under this provision, I think that they would fail because it would be an improper charge to bring unless the circumstances were such as to amount to actual sabotage. In my experience, that just does not happen in most demonstrations, pickets and strikes. I cannot think of its happening in this country. The coalminers strike of 1949 is a possibility, but even then I do not think it was so much a case of damage to property as one of people not working and taking industrial action.

The Chifley government sent in the troops just to get the coal moving, but I cannot recall mines being trashed then or anything like that. I really do not think that this amendment is necessary. If Ms Tucker wanted to cover that possibility which would probably never arise, I wonder whether this provision would actually do the job there. I suspect, just having had a quick look at it, that it may not. The Chief Minister says that it is totally innocuous and does not mean anything.

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