Thursday, 23 June 2022
Bills
Sustainable Forests Timber Amendment (Timber Harvesting Safety Zones) Bill 2022
Sustainable Forests Timber Amendment (Timber Harvesting Safety Zones) Bill 2022
Introduction and first reading
The PRESIDENT (17:28): I have a message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Sustainable Forests (Timber) Act 2004 in relation to enforcement and other matters relating to timber harvesting operations and for other purposes’.
I advise the house that the Office of the Chief Parliamentary Counsel has advised that the explanatory memorandum of the Sustainable Forests Timber Amendment (Timber Harvesting Safety Zones) Bill 2022 has been updated since the printing of the bill. The explanatory notes for clauses 7 to 9 have been corrected. The updated explanatory memorandum can be found on the legislative website.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Mr LEANE: I move, by leave:
That the second reading be taken forthwith.
Mr Ondarchie: On a point of order, President, would the minister like to explain the alterations to the explanatory memorandum prior to us granting leave?
The PRESIDENT: Minister, you do not have to.
Mr LEANE: President, I think your explanation was quite comprehensive and I understood it, so I think I will rely on that.
Motion agreed to.
Statement of compatibility
Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (17:29): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Sustainable Forests Timber Amendment (Timber Harvesting Safety Zones) Bill 2022 (Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.
Overview
The Bill amends the Sustainable Forests (Timber) Act 2004 to strengthen the enforcement framework for timber harvesting safety zones so as to reduce the risks to public safety and disruption of timber harvesting safety zones and to better deter activities that create risks to public safety in timber harvesting safety zones.
It achieves this by:
• Increasing penalties for existing offences
• Expanding what is a ‘prohibited thing’ in a timber harvesting safety zone
• Providing appropriate search and seizure powers for prohibited things; and
• Creating a framework for banning notices.
Human Rights Issues
The human rights protected by the Charter that are relevant to the Bill are:
• Freedom of movement (section 12); and
• Property (section 20).
For the following reasons, I am satisfied that the Bill is compatible with the Charter, and if any rights are limited, those limitations are reasonable and demonstrably justified having regard to the factors in section 7(2) of the Charter.
The measures in the Bill are designed to improve the enforcement framework to better manage the safety risks presented by protest activity in timber harvesting safety zones. Timber harvesting safety zones are intended to be closed, controlled spaces in which the safety risks inherent in work involving heavy machinery can be safely managed. The protest activities targeted by the Bill create an unacceptable risk of serious injury or death for workers, authorised officers and the protesters themselves.
Banning notices
Section 12 of the Charter provides that every person within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live. The Bill engages the right to freedom of movement by providing a framework of banning notices. The framework for the banning notice regime closely mirrors those of the Wildlife Act 1975.
An authorised officer or a police officer who suspects on reasonable grounds that a person has committed or is committing a specified offence may give the person a notice banning the person from any or all specified timber harvesting safety zones for a period specified in the banning notice which does not exceed 28 days.
The officer may only give the banning notice if he or she believes on reasonable grounds that giving the notice may be effective in preventing or deterring the person from continuing to commit the specified offence or committing a further specified offence, and where the continuation of the commission of the specified offence may give rise to a risk to the safety of any person or may hinder or obstruct a person engaged in timber harvesting operations in a timber harvesting safety zone.
It is an offence to contravene a banning notice.
A banning notice may be varied or revoked by the Secretary of the Department of Jobs, Precincts and Regions or a police officer of or above the rank of sergeant. The information to be provided within a banning notice is prescriptively outlined in the Bill, so a person handed a notice can know their rights, how to avoid breaching the notice and that the notice may be varied or revoked.
The banning notice regime provides an additional enforcement tool, which is only available where a person has entered a timber harvesting safety zone and an officer suspects on reasonable grounds the person has committed or is committing a specified offence. The effect of the notice is to ban a person from an area they have no lawful reason to be, and where their continued presence is an unacceptable risk to safety.
Given the narrow application of the banning notice and the safety risks being managed, I consider any limitations on the right to movement are reasonable and justified.
Search and seizure of prohibited items.
The bill engages the right to property at section 20 of the Charter by providing for the search and seizure of certain property within timber harvesting safety zones.
The Act already prohibits in timber harvesting safety zones certain things which can be used to disrupt timber harvesting such as bolt cutters. The Bill expands the prohibited things to include polyvinyl chloride (PVC)/metal pipes, to reduce the chance of this equipment being used to prolong protest duration in ways that risk harm to protesters and contractors and reduce the likelihood that protesters will place themselves in hazardous areas that risk the safety of both protesters and contractors.
The Bill creates specific search powers (new section 88A) to allow Authorised Officers and Police Officers to search and seize prohibited things in timber harvesting safety zones where the officer believes on reasonable grounds that a person has committed, is committing, or is about to commit an offence against the Act or the regulations.
These powers go no further than necessary to adequately manage the safety risks these items create for protesters, Authorised Officers and Police Officers, Search and Rescue personnel, and timber harvesting workers within the timber harvesting safety zone. The power is limited to searches of vehicles, bags, containers and other receptacles. It does not permit body searches. There is no valid reason for unauthorised vehicles to enter and remain in a timber harvesting safety zone.
Any seizure is subject to the existing framework for the return of seized items (section 88), retention and return or forfeiture of certain seized items (section 89A), a right for a person to recover a seized item and compensation (section 90) and arrangements for forfeiture to the Crown (sections 91 and 92).
The new search and seizure power is a relatively narrow tool which is only enlivened within a timber harvesting safety zone. It is specifically targeted at managing the risk presented by prohibited items and in those zones. For these reasons I consider that any limitation on the right to property is reasonable and justified.
The Hon. Gayle Tierney
Minister for Training and Skills
Minister for Higher Education
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Mr LEANE: I move:
That the bill be now read a second time.
Incorporated speech as follows:
All Victorians deserve to have a safe working environment. Forestry workers, like other workers, are entitled to be mentally and physically safe as they go about their work regardless of how people may view that work. This same principle applies to authorised officers and police officers as they go about performing their duties.
The Sustainable Forests Timber Amendment (Timber Harvesting Safety Zones) Bill will deliver safer workplaces for Victorian forestry workers and authorised officers and polices officers assisting in these workplaces, by making a set of targeted reforms aimed at reducing the use of dangerous forest protest tactics in Timber Harvesting Safety Zones (THSZs) and closing existing gaps in the law which allow them to occur.
Since the announcement of the Victorian Forestry Plan in late 2019, not only has forest protest activity increased in Victoria but protesters have developed dangerous new tactics to deploy at these protests. These tactics are continuing to evolve. These activities create an unacceptable risk to the safety of workers, authorised officers and police officers and the protesters themselves.
As a result, this shift in protest tactics has had a significant and detrimental impact on the mental health of some native forestry contractors and their families who are placed at risk of hurting themselves or others by these tactics.
This government supports the right to protest. However, this right does not extend to putting the safety of others at risk or harming them physically or mentally. The Bill therefore contains a set of targeted reforms aimed at reducing the most dangerous forest protest tactics and closing existing loopholes which allow them to occur.
Importantly, these reforms are limited in application to Timber Harvesting Safety Zones (THSZs) which are relatively small, restricted areas where forestry activities are being undertaken and are inherently dangerous for members of the public to be due to, amongst other things, the use of heavy machinery. Active THSZs are identified in the forest by signs on roads which may provide access to the THSZ and via notices on VicForests’ website and members of the public are excluded from them for safety reasons.
The three most common and dangerous tactics which have emerged in forest protests in THSZs are:
• The erection and occupation of ‘tree-sits’ at hazardous heights. These ‘tree sits’ have been built at heights where falls can cause death and with structures that are intentionally built to collapse if they are attempted to be removed.
• Protesters locking onto or attaching themselves to active timber harvesting machinery. Due to the nature and size of this machinery this can cause significant safety issues.
• ‘Black wallaby’ tactics, which involve camouflaged, masked protesters running in and out of THSZs and back into the surrounding bush. This can cause significant safety issues as it can be very hard to detect their presence.
This Bill aims to reduce the use of each of these tactics and to deter the development and deployment of further dangerous tactics by:
• Increasing penalties for most offences related to THSZs;
• Expanding the scope of what things are prohibited in THSZs;
• Providing for search and seizure powers within THSZs;
• Explicitly providing for offences for obstructing or hindering authorised persons and machinery in THSZs;
• Providing for banning notices which ban individuals from THSZs under certain circumstances.
The Bill increases penalties for various offences related to THSZs, including hindering, obstructing or interfering with authorised officers, threatening or abusing authorised officers, entering or remaining in THSZs and failure to comply with various directions in relation to THSZs. This broadly aligns with reform trends in other jurisdictions aimed at addressing dangerous forest protest behaviour.
This will have a deterrent effect on protesters and will help reduce the overall number of protesters committing these offenses. The increases align with an increased acknowledgement of the importance of workplace safety matters, particularly relating to the psychological safety of workers and the need to deter dangerous behaviour in workplaces such as THSZs.
The Bill expands on the definition of prohibited item, to remove more items used in dangerous protest tactics from THSZs and does this in two ways.
Firstly, it directly prevents the possession of PVC and metal pipes, which protesters use in locking themselves onto each other protesters or machinery, in THSZs. These types of pipe have been deployed to prevent the use of bolt cutters to easily and safely break the locks or chains attaching protesters to each other or machinery, rendering the chains dangerous to remove.
Secondly, the Bill provides the Governor-in-Council with a power to prescribe further prohibited items that are banned in THSZs. This allows the legislation to be more responsive to the continued evolution of forest protest tactics by allowing for additional items used in future protests to be banned.
A related reform addresses the search and seizure of prohibited items in THSZs. Even though individuals are currently prohibited from being in possession of a prohibited item in a THSZ, authorised officers and police officers do not currently have the power under the Act to search vehicles, bags, containers or other receptables for prohibited items or other items used in or about to be used in the commission of an offence.
The Bill addresses this deficit by creating a specific power allowing officers to conduct searches for prohibited items or items that the officer reasonably believes have been or are about to be used in the commission of an offence, where that officer reasonably believes that someone is in possession of them. This power has been narrowly crafted, only being able to be exercised in a THSZ and not extending to body searches. This minimises the risk of it unduly interfering with the rights of protesters.
The Bill also corrects another shortcoming of the current legislation. Currently, the offence of intentionally hindering, obstructing or interfering with timber harvesting operations does not always address individual offenders if they aren’t considered to be interfering with overall harvesting operations.
The Bill amends the offences related to interference with timber harvesting operations to explicitly include interfering with a person who is engaged in timber harvesting operations or with timber harvesting machinery being used in a THSZ. This will ensure that the offence is fit for purpose to address interfering with the work being conducted in a THSZs.
The Bill also includes a framework for the issuance of banning notices which will enable more immediate and effective action to be taken to prevent forest protesters from repeatedly engaging in protest activity and placing themselves and others at risk of death or injury.
The banning notice framework is modelled on similar notices that can be issued under Division 2 of Part 7A of the Wildlife Act 1975. Once issued, a banning notice will ban an individual from entering one or more THSZs for a period of up to 28 days.
Banning notices will only be able to be issued when the officer believes on reasonable grounds that the banning notice will prevent or deter the person from continuing to commit an offence or from committing a further offence or believes that the continuation of an offence may involve or give rise to a risk to safety of any person or hinder or obstruct a person engaged in timber harvesting operations in a timber harvesting safety zone.
In each instance, a banning notice can only be issued when an authorised officer or police officer believes on reasonable grounds that the person has committed or is committing a specified offence. For a banning notice to be valid, an authorised officer must provide evidence of their identity, and in the case of a police officer, proof of identity and official status will be required (unless they are in uniform).
Each of the reforms contained in the Bill will reduce the risks and harms that dangerous protest tactics have been causing and continue to cause for forestry workers, authorised officers and protesters alike.
I commend the Bill to the house.
Mr ONDARCHIE (Northern Metropolitan) (17:30): I thank the minister for his comprehensive response. I move, on behalf of my colleague Ms Bath:
That debate on this matter be adjourned for one week.
Motion agreed to and debate adjourned for one week.