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. Although Brown was arrested, charged and bailed after he failed to comply with a direction under the challenged legislation, the charge was dismissed after the police offered no evidence at his trial. This left the High Court without any adjudicated facts to consider, a problem resolved when the parties agreed on a special case. As well, Tasmania initially argued that Brown lacked standing to challenge the legislation, but then conceded that issue before the Court, seemingly on the basis that Brown could still be arrested if he repeated his actions. Nevertheless, after the High Court and the twenty or so barristers in the case spent a while peering at a cryptic map of Lapoinya forest, Tasmania revealed that Brown’s protest took place in a roadside clearing that was part of a reserve, rather than the part of the state forest marked for the chop, and accordingly was neither in a ‘business access area‘ (as the police initially thought) nor a ‘business premises‘ (as Tasmania initially thought.) This meant, as Tasmania observed in a note it hurriedly penned overnight, that not only wasn’t Brown covered by the challenged legislation, he wasn’t even trespassing. On the hearing’s second day, Brown’s counsel Ron Merkel suggested several ways the Court could now proceed: it could focus on Brown’s co-plaintiff (who was in the forest coupe, although her prosecution was also dismissed); it could focus on the fact that Brown was actually arrested and charged under the challenged legislation, albeit wrongly; or it could focus on the fact that Brown is likely to fall within the challenged legislation one way or another when he resumes his protest. The Chief Justice replied (somewhat ambiguously): ‘The Court will proceed upon the basis that you have indicated this morning’.
While the discussion during this week’s hearing seemingly resolved the problem (albeit at the cost of several hours of the time of seven judges and several dozen lawyers and, as Gageler J pointed out, no clarity on which part of Lapoinya is covered by which Tasmanian statute), it brings into question how the High Court deals with factual matters in constitutional challenges. The Court generally prefers that the parties agree on disputed facts in advance by producing a ‘special case’. (In this case, the public has no idea what the parties agreed, as the special case was not settled in open court, is not published on the High Court’s case page and is not detailed in any of the parties’ submissions. Nor has Tasmania’s ‘note’ been published.) As this case shows, one problem with special cases is that there is no guarantee that the document the parties produce will settle all the necessary facts or even be accurate – as Kiefel CJ said at the hearing, ‘Special cases are not meant to operate like this.’ These difficulties may be inherent in Court’s case management procedures, because the Court expects parties to agree on the facts before any legal questions are resolved – Gordon J rejected out of hand Merkel’s suggestion that the High Court hold two separate hearings, one to settle the law on standing and trespassing so that the parties could know the basic situation before they agree on facts, another to determine the constitutional challenge – and puts significant pressure on them to do so – in this case, as in many, Gordon J threatened to send the whole matter to a lower court if there was no agreement. It is worth asking why the Court is so adverse to receiving evidence and resolving factual disputes itself in constitutional challenges (as it did in the dispute over Bob Day’s election.) Interestingly, some of the legal discussion this week concerned how resolving factual disputes (e.g. about the disruption posed by protests, alternative ways of protesting and the Tasmanian government’s motivations in passing its law) might be essential to resolving whether legislation is compatible with the constitutional freedom of political communication.