Talking Point: Big questions over WorkSafe response to Bob Brown protesters

Article by Greg Barnes, as seen in The Mercury – March 2, 2020

THE media release could not have been more unambiguous.

There it was, in black and white. A statement by the Attorney-General Elise Archer and the Resources Minister Guy Barnett dated February 21, and available on the Tasmanian Government website a week later advising the “Government is aware and concerned that the unsafe workplace behaviours of the Bob Brown Foundation have caused significant angst in the community and referred the matter to WorkSafe Tasmania.” No matter how you choose to read this statement you can only come to one conclusion.

So why did Mr Barnett, interviewed by Lucy Breaden on the ABC that very same day (this columnist was interviewed on the same issue) contradict the statement about referral by stating that it had come from a member of the community? And why has Ms Archer done the same?

Now that the workplace regulator has had its misuse of power exposed last week with the Magistrates Court in Hobart declaring the notice issued to the Bob Brown Foundation only six days earlier declared to be unlawful, it is time to get some answers on what looks like a troubling development in this democracy.

The Greens have referred Mr Barnett, Ms Archer and WorkSafe CEO Mark Cocker to the Integrity Commission. As the NSW experience shows, politicians’ referrals of opponents to anti-corruption bodies is often just an attempt to smear. But in this case the referral is warranted.

There is no suggestion any of the parties referred have committed any type of criminal or civil wrongdoing, it’s the murkiness of the process deserves some independent scrutiny.

The question of the referral to WorkSafe Tasmania is critical. If a lobby group or individual who represents a particular political interest in the forestry and environmental debate space referred the matter, then a dangerous precedent has been set.

If a government minister or adviser sought the intervention of a regulator to close down the right to protest and wound a political opponent, that is a turn of events for the worst. Why stop at the Bob Brown Foundation? Perhaps regulatory bodies could be used to silence unions, other environmental groups and NGOs?

And allied to this is the fact that despite Mr Barnett and Ms Archer telling the media the media release is wrong on the issue of referral, the release he and Ms Archer released remains, as noted above, on the Government’s media site with no amendment made to it to reflect what Mr Barnett says is the truth. Surely it is not suggested that the Government’s spin doctors have simply forgotten to amend the release to ensure it accords with what two senior ministers in the Government say is the truth?

Then there is the issue of the mysterious “member of the public” whom Mr Barnett says referred the matter to WorkSafe Tasmania. Who is that person? And when did Mr Barnett know the referral came from a member of the public when both he, and the head of WorkSafe Tasmania Mark Cocker, denied talking with each other before the latter issued the unlawful notice?

The conduct of WorkSafe Tasmania should also be examined. Its notice to the Bob Brown Foundation was so poorly drafted that it was clear, even to a lay person, it was beyond the scope of the regulator’s powers. The state of Tasmania is not a workplace.

So given Mr Cocker must have anticipated that the recipient of the notice, the foundation and its founder would go public and litigate, how did he let such shoddy work see the light of day? What legal advice did he have to say the notice was lawful and if so which lawyer or lawyers gave that advice? And is it really the case that Mr Cocker had no contact with Ms Archer and Mr Barnett before issuing the notice? It beggars belief that such a sensitive and political initiative as serving a notice on the Bob Brown Foundation would not have been something Mr Cocker and his team alerted their minister, Ms Archer, even if just to let her know it was happening. Oh and did Mr Cocker tell Ms Archer and Mr Barnett that their media release was wrong? That the referral had come from a member of the public and the ministers might like to amend their release?

But stepping back from these important questions about process there is something more dangerous that emerged from this affair. The role of WorkSafe Tasmania is to regulate the health and safety aspects of work sites.

When it ought be spending its limited resources on ensuring government and private sector workplaces, such as prisons, hospitals, and manufacturing plants are safe, it is seeking to close down protest activities. How is this an appropriate use of power?

– Greg Barns 


Hobart barrister Greg Barns is a human rights lawyer who has advised state and federal Liberal governments.


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