Brown v Tasmania

The High Court has determined a special case on Tasmanian forestry protest laws and the implied freedom of political communication, holding that the central anti-protest provisions of the challenged legislation were invalid because they impermissibly burdened the freedom of political communication implied in the Commonwealth Constitution.

The Workplaces (Protection from Protesters) Act 2014 (Tas) contains a range of provisions that prohibit persons from engaging in protest activities. Section 4 defines protest activities as activities taking place on a business premises or an ‘access area’ in relation to a business, that is ‘in furtherance of’ or ‘for the purposes of promoting awareness of or support for’ an ‘opinion, or belief’ about a ‘political, environmental, social, cultural or economic issue’. Business premises also include forestry land and land on which forestry operations are being carried out, and ‘access areas’ include the areas around and outside those premises. Section 6 provides that a protester must not enter or do an act on a business premises that prevents, hinders or obstructs the carrying on of a business activity. Section 6(4) makes it an offence to disobey a police officer’s order, made under s 11, to leave the premises, directed at a person that the officer reasonably believes has committed, is committing or is about to commit a contravention of s 6. Section 8(1) makes it an offence to re-enter an area near where that person received a s 11 direction to leave, within four days of receiving that direction. That area is not limited to the area in which the direction was issued: it extends to any area outside ‘forestry land’. Section 11 also contains police powers to direct groups to leave areas, and s 13 contains powers for police to make warrantless arrests for contraventions of the Act for specified purposes.

The plaintiffs were present in the Lapoinya Forest while forestry operations were being carried out there, and engaged in raising public and political awareness about the logging operations and voicing protests against it. They were arrested and charged under the Act for offences against s 8(1) and s 6(4), though the charges were ultimately not proceeded with and dismissed. Before the High Court, they challenged the validity of provisions of the Act noted above (ss 6, 8, 11, 13 and pt 4 of the Act). While the stated Special Case contained a first question on the standing of the plaintiffs to seek relief, the defendants conceded that the plaintiffs had standing and the question no longer needed to be answered (see [5], and see below for the full order).

The High Court held, by majority (Kiefel CJ, Bell and Keane JJ, Gageler J, Nettle J) that the impugned provisions did impermissibly burden the implied freedom of political communication and were thus invalid. Gordon J held that only s 8 was invalid, and Edelman J held the Act was valid in its entirety.

The Joint Judgment (Kiefel CJ, Bell and Keane JJ)

After reviewing the background to the matter, the history of the Act, and the impugned provisions (see [11]–[60]), the joint judges (Kiefel CJ, Bell and Keane JJ) turned to analyse the terms, operation and effect of the Protesters Act. The impugned provisions together had a significant deterrent effect on protestors, which extends to protestors who would not actually affect forest operations or whose presence would be excluded by the Forest Management Act 2013 (Tas) (at [84], and see analysis at [61]–[83]).

Moving to the first limb of the test in Lange v Australian Broadcasting Corporation [1997] HCA 25 — whether the statute in fact burdens the implied freedom of political communication — the joint judges held that the provisions did so. While examining the burden involves considering how the statute affects the freedom generally, its operation on the plaintiffs here show clearly that the freedom is burdened: ‘Even if the plaintiffs were not on business premises or in a business access area the police officers who arrested and removed them were unable to correctly determine whether they were on those premises or in that area. As a result of their error the plaintiffs’ protests and their communications to others about the forest operations were silenced.’ (at [91] and see [88]–[90], and see further [92]–[95] on discriminatory effect). Turning then to consider the purpose of the Act, the joint judges held that ss 6 and 7 indicate that it is directed to prevent conduct that may damage a business or disrupt its activities, and to deter protesters as a potential source of that harm (at [99]ff).

Moving to analyse the legitimacy of the burden and its purpose as being compatible with the constitutionally prescribed system of representative government, the joint judges held that the Act’s general purpose was not incompatible with the freedom. Their Honours took up the Attorney-General for the Commonwealth’s invitation to re-word the summary of these steps as contained in McCloy v New South Wales [2015] HCA 34 (see [102]–[104]) as they ‘should’ have been stated:

The commencing words of Questions 2 and 3 stated in McCloy should read:

  1. If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

  2. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

The joint judges then rejected Tasmania’s contention that any burden created by the Act would be, at most, slight, because it largely covers the same areas which the FMA operates to exclude people from (at [105]). Contrary to that argument, the definitions in the Protesters Act suggest that it is intended to apply more widely than exclusions under the FMA, and there is nothing the Act to suggest it is coextensive with FMA designations (see at [109]ff and especially [115]). Consequently, the Protesters Act does add new excluded areas, which, combined with the powers to exclude people and bring protests to an end, immediately and into the future, indicates a significant indirect burden on the implied freedom of political communication (at [117]–[118]). The joint judges then rejected the plaintiffs’ contention that because the Act is directed at the content of political communications it requires a ‘compelling justification’ (see [119]ff): in its operation the Act is aimed not at the content of protesters’ opinions (despite the references to those opinions in defining ‘protesters’) but rather their conduct (at [122]).

Having concluded that the general purpose of the Act met compatibility requirements, the joint judges then turned to consider whether the measures adopted to achieve that purpose were compatible with the implied freedom (at [123]). After noting various parties’ arguments on the proportionality requirements (see [124]ff), the joint judges reiterated that the enquiry here is whether the provisions have ‘a rational connection to their purpose’: if they do not, they burden the freedom without justification (at [132]). Section 6 ‘clearly enough’ reflects the purposes of the Act: removing and arresting protesters are aimed at preventing harms to forest operations: at [134]. Section 8, however, does not share that purpose because it does not require that a person constitute a threat of damage or disruption or be reasonably considered to have contravened s 6: ‘[t]he inference to be drawn is that it is directed solely to the purpose of deterring protesters. Accordingly, it fails the test of suitability’: at [135]. Likewise, ss 11(7) and (8), which allow blanket exclusions at the direction of the police that are not based on an officer forming views on whether each person has or is about to contravene the Act fail the test of suitability: at [136].

Whether s 6 and the remaining challenged provisions could be justified required an examination of ‘whether they can be said to be necessary’ (at [138]), which requires determining if there are alternative, reasonably practicable means of achieving the same object but with a less restrictive effect on the freedom (at [139]). Comparing the Protesters Act with the FMA, the joint judges noted that while they share similar purposes, the Protesters Act operates more widely than this shared purpose because it is directed at preventing protesters from being present within ill-defined areas near forest operations (at [140]). It goes beyond the FMA by adopting measures that will have substantial deterrent effects, largely by ‘extending the areas of its operation, creating further consequences for non-compliance with directions including special offences and heavy penalties’ and, ‘more importantly’ that deterrent is ‘achieved by the uncertainty which surrounds the areas within which the Act applies.’ (at [144]). These measures are likely to ‘deter protests of all kinds’, thus going ‘far beyond’ those reasonably necessary for its purpose (at [145], [146]), and cannot be considered compatible with the implied freedom (see [152] and orders at [154]). (The joint judges also rejected any suggestion that this reasoning incorporate the ‘void-for-vagueness’ approach taken in US First Amendment jurisprudence: see [147]ff).

Gageler J

Gageler J agreed with the answers proposed by the joint judges. His Honour first addressed the ‘analytical framework’ to be applied here, and, like the joint judges, endorsed the Attorney-General for the Commonwealth’s submission that the approach of the plurality in McCloy should be reformulated to comply with the second step in Lange as refined in Coleman v Power [2004] HCA 39, (at [155]), namely:

  1. Does the law effectively burden freedom of political communication?
  2. Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of government?
  3. Is the law reasonably appropriate and adapted to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government?

Where the first question is answered ‘yes’ and either of questions two or three answered ‘no’, the law is invalid. Gageler J then emphasised that the third question may sometimes be answered by applying a three-staged proportionality test which, he reiterated is ‘at best, a tool’ (at [159]). Gageler J underscored that this is not an algorithmic approach (at [161]), and that the framework ‘needs to be understood as a reflection of the underlying reason for the implied freedom of political communication’, namely, protecting political communication to ensure the efficacy of electoral accountability through the constitutionally prescribed system of representative and responsible government (at [162], and see [163]–[166]).

After reviewing the text and operation of the impugned provisions (at [167]ff), Gageler J turned to the burden imposed by the Act, which required considering the practical ability of people to engage in political communication with the law, and their ability without it (at [181]); its ‘incremental effect’ on the ‘real-world ability’ of people to make and receive communications bearing on electoral choice (at [188]). Consequently, in this matter, nothing turns on whether protesters hold legally enforceable rights to enter or remain on Crown Land (at [189]) or the details of Forestry Tasmania’s statutory powers to manage access to areas of timber production (at [190]). Instead, the nature and intensity of the burden of the Protesters Act falls against the historical and continuing public access to areas of timber production and the historical and continuing on-site protests aimed at changing environmental regulation (at [191]–[192]). Here, that burden falls almost exclusively onto on-site political protests at particular locations, and given these locations and the history of on-site forest protests in Tasmania, that burden is clear (at [193]). Gageler J noted that the intensity of this burden cannot be gauged by treating the provisions in s 6 as if they were self-executing and the other challenged provisions as merely ancillary to enforcing s 6 (at [194]). Instead, the wide discretions given to police by ss 11 and 13 to direct groups to leave areas and end protests reflect a direct, substantial and discriminatory burden, both against political communication generally, and more specifically ‘against political communication expressive of a particular political view’ (at [195]–[199]).

Moving to consider the law’s calibration, Gageler J reiterated his emphasis in Tajjour v New South Wales [2014] HCA 35 that judicial scrutiny of justifications for a burden ought to lie on a spectrum of scrutiny, and that laws operating against particular political viewpoints require very close scrutiny (at [201]–[203]): ‘in my opinion, the purpose of the impugned provisions must be able to be seen to be compelling and the provisions must be able to be seen to be closely tailored to the achievement of [a law’s legitimate] purpose in the sense that the burden they impose on political communication in pursuit of the purpose can be seen to be no greater than is reasonably necessary to achieve it.’ (at [204], and see [205]–[206]). That purpose must protect an important public interest, and is not what the law does on its terms, but what it is designed to achieve in fact (at [207], [209]). After noting the disagreements in the arguments of the plaintiffs and other parties on the purpose of the law (see [210]ff), Gageler J stated that protecting Forestry Tasmania from conduct that seriously interferes with forestry operations or access to forestry lands was a ‘plausible’ purpose, and that resolving the precise operation of the law may ‘more profitably left’ to the stage of examining whether its means are reasonably appropriate and adapted to that purpose (at [217], and see [216]).

Turning to that stage, Gageler J then formulated the ‘determinative’ question here as being:

whether the impugned provisions can be justified as compatible with maintenance of the constitutionally prescribed system of representative and responsible government on the basis that the burden they impose on freedom to engage in political communication constituted by on-site political protests is no greater than is reasonably necessary to achieve the postulated legislative purpose of protecting Forestry Tasmania from conduct that seriously interferes with carrying out forest operations on forestry land or that seriously interferes with access to forestry land on which those forest operations are being carried out.

Noting that there are many different ways in which this question might be addressed, Gageler J first considered the ways in which the provisions might be ‘underinclusive’ before considering the ways in which they were overbroad (on which, see [219]). Here, the definition of protestor is narrowly underinclusive, in that a group protesting timber production would be covered, but groups of school children, supporters of forestry, or workers taking industrial action would not, despite similar adverse effects on operations in the area (see [220]–[221]). While this underinclusiveness is not necessary fatal, it does point to a burden that is not reasonably necessary to achieve the law’s purpose (at [222]). For Gageler J, it is especially problematic when combined with breadth and severity of consequences aimed at a segment of the population, namely, protesters (at [223]). Further, the breadth of the police directions provisions reflect a number of instances in which an officer might make a direction based on a reasonable belief that is, nonetheless, wrong in the sense of lacking an actual contravention of s 6 (see examples and details at [224]ff). The powers to exclude people from wide, vague areas for long periods of time are not fitted to purpose, and ‘nothing short of capricious’ (at [230], see [228]ff). Consequently, the burden is greater than is reasonably necessary to protect Forestry Tasmania from conduct seriously interfering with forestry operations or access (at [232]).

Nettle J

Nettle J also agreed with the orders of the joint judges and ‘substantially agree[d]’ with their Honours’ conclusions (at [236]).

After reviewing the history of forestry protests in Tasmania and laws restricting them (see [238]ff), and the provisions of the Protesters Act and their effect on protests (see [248]ff), Nettle J noted that identifying the burden on communication requires considering both the range and extent of the restriction as well as the role of restricted protest activities in communicating a protester’s message (at [258]). On the other hand, the implied freedom is also ‘not a licence to do what is otherwise unlawful’ (at [259]).

Beyond prohibiting what would be otherwise unlawful conduct, the impugned provisions operate to allow police to direct people to leave, whether or not the person’s conduct is preventing, hindering or obstructing forestry operations, if the officer forms a reasonable belief that that is the case, will be the case, or has been the case ‘at some unspecified time in the past’ (at [263]). For Nettle J, it was quite possible, given the history of Tasmanian forestry protests, that a situation could arise where an officer might form that belief where the protester has not and does not intend to prevent, hinder or restrict forestry operations (at [264]). Combined with the offence in s 8(1) of refusing to leave or returning within four days, the discretionary ban for up to three months, and the group direction (see [265], [266] and [268]), these restrictions on protest are a substantial restriction on otherwise lawful protests, conferring on police a broad-ranging discretionary power that is ‘unconfined by practically examinable and enforceable criteria’ (at [269]).

Turning to whether this restriction is reasonably appropriate and adapted to serve a legitimate purpose (see [271]), Nettle J emphasised that preventing protesters from damaging business premises and assets was a legitimate governmental purpose: putting aside ‘trivial or transient disruptions to business’ (such as a march blocking a road temporarily: see [274]). For Nettle J

There should also be no doubt that the purpose of ensuring that protesters do not substantively prevent, impede or obstruct the carrying out of business activities on business premises and do not damage business premises or business-related objects is a purpose compatible with the system of representative and responsible government. The implied freedom of political communication is a freedom to communicate ideas to those who are willing to listen, not a right to force an unwanted message on those who do not wish to hear it, and still less to do so by preventing, disrupting or obstructing a listener’s lawful business activities. Persons lawfully carrying on their businesses are entitled to be left alone to get on with their businesses and a legislative purpose of securing them that entitlement is, for that reason, a legitimate governmental purpose.

Nettle J noted that the means of achieving this purpose involves ‘different considerations again’ and agreed with Kiefel CJ, Bell and Keane JJ that this should be left to the stages of analysis proposed in McCloy as restated by the joint judges (see [277]). That analysis involves examining whether the law is suitable, necessary, and adequate in its balance (see [278]–[280]).

Addressing those stages, Nettle J noted that suitability requires that the law have a rational connection with the purpose of the law and is capable of realising that purpose: here, the Protesters Act has a rational connection with preventing damage or obstruction to business and is capable of realising that purpose (at [281]). While much of what is ‘necessary’ is largely within Parliament’s exclusive purview, necessity requires examining whether there is an obvious and compelling alternative with a significantly lesser burden that implies the law was enacted for an ulterior purpose incompatible with the system of responsible and representative government (see at [282]). For Nettle J, while the plaintiffs submitted a number of alternatives (see [283]ff), these alternatives did not point to an ulterior purpose behind the present Act, and this conclusion was reinforced by the fact that the provisions are aimed at protest activities affecting business (at [289]).

For Nettle J, the law was not, however, adequate in its balance. On His Honour’s reading, while the idea of adequacy of balance is ‘not yet fully resolved’ in Australia, it is understood as an ‘outer limit’, beyond which the burden is manifestly excessive or grossly disproportionate when compared to the demands of the legitimate purpose (at [290]). Taken together, the Protesters Act restrictions go far beyond those in the FMA and are substantial (at [291]) and a ‘far-reaching’ means of achieving the Act’s stated purpose (see details at [292]). The breadth of the discretion given to police officers to remove and prevent people from returning to forestry areas provided ‘little by way of a clear standard’ for exercising those powers means the freedom of lawful protests ‘at the mercy’ of officers’ attempts to apply the act (at [294]). Insofar as other laws, such as the FMA and common law, empower the Forest Manager to protect forest operations, the impact of the Protesters Act is lessened; but even at that lessened level of importance, the challenged provisions remain grossly disproportionate to the purpose of the legislation (at [295]). Noting that the provisions cannot be severed (at [296]), Nettle J concluded that he agreed with the orders proposed by the joint judges (at [298]).

Gordon J

Gordon J dissented, holding that each of the challenged provisions were valid, with the exception of s 8(1)(b) (on which see [310]).

Her Honour began with six ‘basic propositions’. First, that, besides s 8(1)(b), no challenged provision makes unlawful what would otherwise be lawful: they create and enforce rules of conduct that overlap with existing laws that prohibit that conduct, and to the extent that the burden methods of communication those methods are, for all practical purposes, otherwise unlawful (at [304]). Secondly, identifying the challenged provisions as aimed at protesters or increasing penalties ‘presents the question about the limitations the implied freedom places on legislative power — it does not provide the answer’ (at [305]). Thirdly, that these provisions are complicated or may leave a person ‘unsure of their effect’ does not answer the points above: statutes are assumed to retain a definite legal meaning (at [306]). Fourthly, the starting point of the analysis is the legal effect and practical operation of the provisions, beginning with statutory construction, and the ‘deterrent effect’ of the laws is to be evaluated on the legal effect and practical operation, ‘not some operation hypothesised on there being some misapplication or misconstruction of the provisions or any one of them’: at [307]. Fifthly, the purpose, legal effect and practical operation can only be determined by detailed reference to the challenged provisions (at [308]). Sixthly, observations about past protest activity only identifies the kind of conduct to which the provisions are directed; it cannot be assumed that they were lawful, and if they were not they do not give rise to something resembling a right to protest unlawfully (at [309]).

After laying out the requirements of the Lange test as restated and developed in Coleman and McCloy, among other cases (at [312]–[325]), and reviewing the text and effect of the challenged provisions (at [326]–[356]) and the wider legal framework in the FMA, criminal law and common law (at [357]–[394]), Gordon J turned to the constitutional validity arguments.

First, Gordon J noted that Tasmania had conceded that the challenged provisions would burden the implied freedom, and that that concession was properly made, though the manner and extent of that burden could be analysed in dealing with the next question of whether the law is reasonably appropriate and adapted to serve a legitimate end in a manner that is not incompatible with the constitutionally prescribed system of representative and responsible government (at [395]–[396], [397]). For Gordon J, the legal effect and practical operation of the challenged provisions ‘prescribe norms or punish classes of conduct which are addressed by the wider legal framework’ (at [398]). Sections 6(1) and (2) on obstructing businesses identify conduct that is contrary to Tasmania’s criminal law and the common law, and s 6(3) on preventing access or exit identifies conduct contrary to the common law (at [399], [400]). The police powers under s 11 prevent and enforce prohibitions on conduct that is unlawful under ss 6 and 7, in relation to individuals and groups (see [403]–[404]). On Gordon J’s analysis, these powers do not confer an unfettered discretion to police, but rather the exercise of a discretion necessarily subject to the subject matter, scope and purpose of the Act (at [405]). For Gordon J, the same analysis applied to s 13 (at [407]).

Gordon J then reiterated that the validity of a law must be tested against its legal effect and practical operation, and not against the possibility that it might be applied unlawfully or wider than it permits: ‘it is not relevant to observe that the geographical bounds of the area within which the provisions operate may be difficult to determine or that there may be cases where a power is said to be exercised unlawfully’ (at [408]). While it is possible that an officer might form a reasonable but factually wrong belief about matters in ss 11 and 13, but that direction will remain lawful even absent an actual contravention (at [409]). Further, the belief’s reasonableness is determined by reference to factual circumstances, and the existing legal framework, against which these provisions must be assessed, already provides for similar exercises of powers condition on states of mind: the new and old provisions substantially overlap (at [409]–[411]).

Moving then to the legitimate object or purpose of the Protesters Act, Gordon J held that it is to prevent or terminate conduct that involves the presence of protesters in business areas that aim to promote an opinion or belief on a political, environmental, social or cultural issue, ‘but only where’ an officer has reasonable grounds to believe that a person is engaging in a protest activity, and that activity would prevent, hinder or obstruct business operations or damage a business premises or object (at [412], emphasis in original). The broader object is to protect the productivity, property and personnel of forestry operations, an object that is ‘no more incompatible’ with the constitutionally prescribed system of representative and responsible government than the present framework, within which the new Act operates (at [413]).

Gordon J then held that the law is reasonably appropriate and adapted to serve that end. As the Act’s purpose was not the prohibition of ‘protest activity’, but rather protecting forest operations from activities that prevent, hinder or obstruct those operations or damage business or property, the Act adopted means that were directed at what the legislature saw as the causes of those hindrances and obstructions (at [418]). While the law applies only to protesters and not persons generally, that does not mean that it is not reasonably appropriate and adapted: ‘It is open to the Parliament to “respond to felt necessities” and to target only some activities — here, protest activity where the conduct has significant adverse consequences for the carrying out of a business activity or access to business premises.’ (at [422]). Gordon J concluded by stating that because the provisions impose a minimal burden, they only regulate the time, place and manner of a particular kind of political communication, they seek to serve a legitimate end and are rationally connect to that end, ‘it is difficult to see how the provisions are not reasonably appropriate and adapted to serving that end in a manner which is compatible with the system of government established by the Constitution‘ (at [426]). Gordon J then noted that, in the circumstances of this matter, it was neither necessary nor helpful to consider whether there were ‘obvious and compelling’ or ‘reasonably practicable’ alternatives to the Act (at [427]), or the consider whether they were ‘adequate’ in their ‘balance’: Gordon J then explored the controversy and vagueness around this approach raised by McCloy (see details at [428]–[438]).

Gordon J next addressed what her Honour held to be the only invalid provision: s 8(1)(b). Section 8(1)(b)’s prohibition on entering a business premises within four days after an officer directs a person to leave does not, on its terms, prohibit conduct for a legitimate purpose ‘other than for the suppression of political communication’ and lacks an object compatible with the maintenance of the constitutionally prescribed system of government: ‘Why four days? Why prohibit a person from entering a business access area in relation to business premises irrespective of what that person intends to do by way of conduct in that area?’ (at [441]). Unlike s 6, which is enlivened by and aimed at specific conduct that affects businesses and was unlawful, s 8 goes beyond penalising what was unlawful before the enactment of these provisions, and the burden it places on communication is beyond what is reasonably appropriate and adapted to serve the legitimate object of the Protesters Act (at [441]–[442).

Dealing with the remaining matters, Gordon J then rejected the plaintiffs’ arguments that the provisions were ‘vague and uncertain’, noting that attempted comparisons with US jurisprudence on vagueness had no such equivalent in Australian constitutional law (see [443]ff), nor did the US doctrine of ‘chilling effect’ have any applicability to our implied freedom of the political communication (at [457]ff). Finally, Gordon J gave her reasons for declining to re-open McCloy, emphasising that the plurality’s method of analysis in that case was ‘a tool of analysis, not a constitutional doctrine. It is not a “precedent-mandated analysis”. And, if only for that reason, it is not necessary or appropriate to apply all aspects of that approach in every case’ (at [473], emphasis in original, and see [474]–[482]).

Edelman J

Edelman J also dissented, holding that, properly construed, all challenged provisions of the Protesters Act were valid, and merely regulate conduct that is already unlawful under the FMA. Edelman J emphasised that a court’s primary duty is to construe relevant legislation, and that where a statute is consistent with the Constitution, it should not be held invalid ‘even if it is perceived to be opaque, fudged, or irrational’: at [484].

For Edelman J, there were two possible constructions of the Act. The first was that it was ‘so hopeless vague, that it is impossible for any court to give it a construction that would permit the court to explain, and therefore any individual to know, whether and when many contraventions of the Protesters Act would occur’, namely by extending business areas widely and vaguely, by making it unclear whether an individual were committing an offence, and by not affording a court any rule to determine the boundaries of the Act’s application (at [489]). The second is that the Act applies only to conduct that is already unlawful under the FMA, and applies in areas that are marked by signs, barriers and other notices prohibiting entry, placed by authorised officers exercising powers under the FMA (at [490]).

After reviewing the facts behind the application (at [493]ff) Edelman J applied the Act to the plaintiffs’ conduct here, emphasising that the challenged provisions applied to activities that involve criminal trespass, contrary to the FMA, specifically, moving into areas that were delimited as forestry operations areas and timber production zone land, into which people may not enter (at [500]ff, illustrating this with reference to the two plaintiffs here). Edelman J then turned to why uncertainty does not have any constitutional effect, namely that the meaning of the text is revealed by the reasoning of courts applying the text in practice, and it is the province of the judiciary to construe statues (at [505]–[506]). Edelman J reiterated that Australia has no ‘vagueness’ doctrine, contrary to the United States (at [507]ff).

Edelman J then turned to construing the Protesters Act with the FMA (at [510]ff), emphasising that the many questions around the meaning of a ‘business access area’ in the Protesters Act that would arise if it were ‘[r]ead in a vacuum’ and ‘appear rife with uncertainty in their application to forest land’ (for which see [533]–[534]), can be answered with reference to the FMA (at [535]). First, the text of the Protesters Act ’employs a technique borrowed from, and operating consistently with’ the FMA in linking forest operations areas to business areas (see [536]ff). Secondly, the Protesters Act limits the meaning of ‘forest operations’ to areas where the Forest Manager has denied access under the FMA (see [541]ff). Thirdly, general principles of statutory construction support the narrow approach to interpreting the Protesters Act to ‘create a regime which is intelligible and capable of practical operation’ (see [542]ff). And finally, the legislative context and background to the Act supports this reading (see [548]–[549]). Edelman J then reiterated that offences and enforcement mechanisms under the Protesters Act require that a person be on a business premises or business access area, noting two possible limited exceptions (see [550]–[555]).

For Edelman J, the above reasoning showed that the Protesters Act, in the circumstances of this case, applied only to independently unlawful activity: at [556]. As the constitutional freedom of political communication is a constraint on legislative power, there cannot be a burden on the freedom where the conduct is independently unlawful (at [557]):

the constraint only applies to State or Commonwealth legislative power if there is a ‘burden on the freedom’. This phrase is not entirely apt but it signifies that the constitutional implication only constrains legislative power where that power is exercised to impede legal freedom to communicate about government and political matters. If the conduct about which legislation is concerned is independently unlawful, so that there was no legal freedom to communicate about government or political matters, then there can be no “burden” on the freedom. The implied constraint upon legislative power cannot operate.

Edelman J stated that this conclusion is ‘unassailable’, and illustrated in a range of earlier cases (on which see [558]–[560]). Edelman J then made three clarifications to this general point. First, that while the underlying law making the conduct unlawful might itself contravene the implied freedom, that was not the case here: no party or intervener suggested that the FMA was contrary to the implied freedom, and such an argument would be difficult to make given that any purported burden would need to be assessed against the ‘fragility of the liberty of the public to enter forestry land’, which can be withdrawn by the Crown or the possesser of the land (see [561]). Secondly, while subsequent challenged legislation might, as part of a single scheme and together with the initial legislation lead to a ‘wider common purpose’ that burdens the freedom, no such argument was made (see [562]). Thirdly, while the common law must develop consistently with the constitution, which might mean acts unlawful under the common law are in need of ‘development’ to be in step with the implied freedom, no such argument can be made that the common law prohibitions on trespass ought to be modified to allow trespass for the purposes of political communication (at [563]).

Finally, Edelman J held that Tasmania had not made any ‘concession’ in its submissions that there was a burden imposed by the Act: Tasmania’s note that there might be ‘some circumstances’ was not a real concession because the validity of the Act falls to be assessed against the existing set of facts, in this matter, specifically in relation to forestry operations (at [564]–[565]). Further, had Tasmania made that concession, Edelman J nonetheless would not have accepted the concession without first construing the Act itself, which, in his Honour’s reading, involved no burden (at [566]).

Consequently, Edelman J would have answered Question 2, ‘no’ (at [568]).

High Court Judgment [2017] HCA 43 18 October 2017
Result Impugned provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) are invalid
High Court Documents Brown
Full Court Hearings [2017] HCATrans 94 3 May 2017
[2017] HCATrans 93 2 May 2017
Directions Hearings [2016] HCATrans 271 14 November 2017
[2016] HCATrans 152 7 July 2016

ORDER

Question 2 of the Special Case dated 9 December 2016 be amended and the questions stated in the Special Case (as so amended) be answered as follows:

Question 1

Do either or both of the plaintiffs have standing to seek the relief sought in the Amended Statement of Claim?

Answer

The defendant abandoned its challenge to the plaintiffs’ standing. Question 1 therefore need not be answered.

Question 2

Is the Workplaces (Protection from Protesters) Act 2014 (Tas), either in its entirety or in its operation in respect of forestry land or business access areas in relation to forestry land, invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?

Answer

Section 6(1), (2), (3) and (4), s 8(1), s 11(1), (2), (6), (7) and (8), s 13 and Pt 4 of the Workplaces (Protection from Protesters) Act 2014 (Tas) in their operation in respect of forestry land or business access areas in relation to forestry land are invalid because they impermissibly burden the implied freedom of political communication contrary to the Commonwealth Constitution.

Question 3

Who should pay the costs of the Special Case?

Answer

The defendant should pay the plaintiffs’ costs.

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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

10 thoughts on “Brown v Tasmania

  1. My impression,from a very quick scan of the judgment, is that this legislation would have survived if it made it unlawful for protesters to be on the land in all circumstances.
    Am I incorrect in that impression?

  2. “A bit” incorrect I think Malcolm. If the law made it unlawful for anyone at all except forestry workers to be on the land – ie, made it like private land – that would probably be valid. The “freedom” does not generate rights to protest that override ordinary laws such as the law of property ownership and trespass. (Contrast the shopping center cases in the US where the courts have held (sometimes) that in some towns the only way you can reach a large audience is to demonstrate in a corporate-owned plaza of a shopping center.)

    However, if the law let everyone else picnic on the forestry land but prohibited protesters – and had the overreach that the challenged law did – that would surely be seen as aimed at suppressing discussion of political and governmental affairs.

    • Hello John Pyke! I have a line of thought. What if it’s a national park/nature reserve type forest where bushwalkers and daytrippers and overnight campers with permits use admittedly vast open spaces because of the natural beauty and, perhaps, solitude value? That is, can it be ‘legitimate’ (for want of a better expression) to protect certain natural values by getting the pesky protestors out of the frame? It might be approproiate explicity and avowedly to supress discussion of political affairs and governmental affairs in certain ways and certain domains in a reasonable way? Perhaps I am misleading myself a bit in that persumably there is not great solitude value in spaces where the chainsaws are roaring in any event!!!

  3. Hello yourself Kevin. I think you’ve answered your own question at the end there. Of course the gov can make regs that stop protesters actually getting in the way of the loggers, but what protesters like to do (and the court recognised in Levy and confirmed in Brown that it’s a legit thing to do) is get close enough so that the noise and visuals can be in the background of the protest. So yes, the picnickers and campers wouldn’t be terribly happy in that area anyway.

  4. Your blogger John Pyke, Martin, is, I think, one of my old much-admired lecturers (constitutional law and elementary jurisprudence — I think) from 25 years ago so you understand, I post with some trepidation. I still believe I might well fail. Perhaps Mr Pyke will give me a conceded a pass out of his considerable charity and brusque kindness? I’ve got to get to these scary tut’s and try to contribute even if the other kids think I am attention seeking, I must, I must. (Apologies — it is all coming back…)

    But I am groping toward this idea. Increasingly many of us will want to avoid political and public affairs’ discussion. It is just too inane. What a better place than say Maiala National Park (formerly Brisbane Forest Park), a stone’s through from Brisbane where there are mysterious ferny glens, delightful brooks and low water falls, ancient antartic beeches…and fortunately, in practice, no protestors or persons discussing affairs of state. But it occurs to me now — having seen protestors on the TV somewhat near these beautiful protected places — if there is any risk at all, or in fact none at all, would it not be highly desirable to pass a law banning their presence along with their signs and their generally untidy appearance and strident sounds from the walking trails, and even the car park? Can it be done constitutionally? I am happy enough to lie down in front of any logging trucks which might appear in national parks, but they are not going to so appear; neither are the protestors — but just on the off chance — can’t each category of trespasser (so to speak) be banned?

  5. Ummm, Kevin… think! (Did I ever say that to you in tutes?) If everthing in the forest is peaceful, except for a few people in the lotus pose saying “ommm”, no protesters will have any reason to be there. So there would be no need for any laws stopping protesters. If there is some noisy activity like logging (Brown) or duck shooting (Levy) the protesters will want to be near it so the cameras can show them in the foreground and also show the beastly environmental harm going on. And in such cases there is a real matter of “political and governmental affairs” at issue and a law against protest would have to have a legit purpose (public safety including that of the protesters is a good one) and be appropriate and adapted/proportional to that purpose. So go and enjoy the Maiala Park in peace, brother!

  6. Love the new webpage format. I still can’t get out of my mind the problem of accommodating the citizen who wants to avoid the white noise of our inane political debate. We have trains in Brisbane with quiet carriages which have signs asking people to refrain from loud conversation esp on their cell phones. Very popular. Suppose a railway reg says there is to be no conversation about matters of government affairs involving more than 2 persons who consent…and they must converse in quiet tones. Is it inconceivable that such a law might be constitutionally valid? Bet you would actually find plenty of commuters in favour of it.

  7. he said are you a religious man do you kneel down
    in forest groves and let yourself ask for help
    when you come to a waterfall
    mist blowing against your face and arms
    do you stop and ask for understanding at those moments
    I said not yet but I intend to start today

  8. Hmmm Kevin – that’s from a poem about a man who’s just been told he has cancer. Let me respond with something from another poet (it’s actually a piece of his prose writing but it sounds poetic – he couldn’t help it) – “No man is an island, entire of itself; every man is a piece of the continent, a part of the main.” And why does he not ask for whom the bell tolls? Because “I am involved in mankind”.

    So I think Mr Donne would agree that you really should spend *some* of your time listening to political debate. And the Lange principle says that those who want to break into your peace to try to make you think about political issues should have an opportunity to do it, and can only be regulated by laws that are proportionate to the place and the occasion. So they probably can’t disrupt the peace of your forest grove with the waterfall mist unless the loggers are there first. What would *you* do when the loggers turn up? Just run to another, quieter, grove and hope they don’t turn up there next – or join the protest? I guess it depends on whether you think you’re an island or not.

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