Human rights? Different interpretations for protesters versus mining and petroleum industry

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Human rights? Different interpretations for protesters versus mining and petroleum industry

As widely reported, the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016 (‘Bill’) passed the NSW Parliament last night.

The Legislation Review Committee (‘Committee’) reviews all Bills introduced into Parliament and reports on the impact of these Bills on human rights (as defined in s 8A of the Legislation Review Act 1987). The Review Committee had some interesting thoughts on the Bill and also the Mining and Petroleum Industry Political Donations Legislation Amendment (Corruption Risk Reduction) Bill 2016 (‘anti-corruption Bill’).

The Legislation Review Committee considered that the Bill might trespass unduly on personal rights and liberties via the ‘search and seizure without a warrant’ and the ‘right to a peaceful assembly’. In relation to ‘search and seizure without a warrant’, the Committee noted that while that power trespasses on a person’s right to privacy and property, the objective of the Bill requires that police have adequate powers to prevent certain protester behaviour which may place the safety of other people at risk and therefore required no further comment.

In regards to a ‘right to peaceful assembly’, the committee found that it may trespass on the personal right of peaceful assembly and should only be used where there are sufficient checks available and only utilised when public safety is at risk. The Committee noted that the Law Enforcement (Powers and Responsibilities) Act 2002 provides safeguards for police conduct such as providing information and warnings before making a direction and therefore required no further comment.

These findings can be juxtaposed to the Committee’s deliberation over the anti-corruption Bill. Essentially, this Bill is aimed at banning mining and petroleum industry from making political donations in NSW. There are similar bans on property developers, gambling and tobacco which were upheld in the High Court case of McCloy v New South Wales [2015] HC 34 and that the anti-corruption Bill is modelled on. With respect to the anti-corruption Bill, by prohibiting ‘individuals’ from making political donations the Committee noted the Bill may ‘impermissibly burden’ the implied freedom of political communication in the Commonwealth Constitution and recommended that the NSW Parliament further consider the relevant provisions.

At its most basic, it is curious that the human rights committee were so quick to dismiss human rights impacts on actual people for a bill that has drawn widespread condemnation from many areas of society (including the legal profession) yet identify, apparently, that the ‘human’ rights of the mining or petroleum industry may be breached. It will be interesting to follow the progression of the anti-corruption Bill in the NSW Parliament considering the events of this week.


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