News: Forest challenge stumbles into a factual thicket

This week, the full bench of the High Court heard a challenge by ex-politician Bob Brown to Tasmanian laws giving police new powers to protect ‘workplaces’, including part of the Lapoinya forest¬†where a logging operation has been occurring. Apart from its immediate political significance, the case is of enormous legal interest because the Court is being asked to revisit both ‘limbs’ of 1997’s Lange test on the operation of the Constitution’s implied freedom of political communication: what counts as a burden on the freedom (Tasmania argues that the new law cannot impose a burden on people who were, it claimed, already trespassers) and the test for when a law that burdens the freedom is invalid (some of the State parties have asked the Court to rethink the three-step proportionality test adopted by a bare majority of the Court in 2015’s decision on political donations.)

But these political and legal issues have long risked being sidelined by factual concerns. Continue reading