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. 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.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

11 thoughts on “News: Forest challenge stumbles into a factual thicket

  1. Thanks for trying to clarify what is an interesting set of ‘non’ circumstances?

    I wonder how this case intersects (or not) with the ‘medical facilities’ zones in Tas, Vic and ACT and pending in NSW and potentially Queensland.

    Noting the related Victorian case that has redefined ‘obscenity’ to include foetal pictures and its potential HC destination, are protest laws – in general under attack from certain quarters such as business v environmentalists and pro-life v abortion – an unlikely intersection point in the political speech debate?

    Of course, if this is the case it is interesting the Green/Left being ‘protagonist’ on both opposing fronts!

    The worst outcome may well be the selective application of a revised “Lange’ position?

    • This is probably more something Adrienne Stone could (and, we hope, will) address once the decision comes out. A surprising aspect (to me) of the High Court’s political communication cases is how little the court has engaged to date with traditional political protests – basically, there’s just Levy. By contrast, the US has developed a whole set of principles for such situations, including in abortion zone cases. This case could be an opportunity to do something similar here (with ramifications for the other cases you mentioned), but I suspect it won’t, both because of the other factual and legal distractions in this case, and because developing new principles to deal with future problems is not the preferred style of the current court.

      • “and because developing new principles to deal with future problems is not the preferred style of the current court.” Save for the 2013 marriage decision?

  2. Maybe they should have just flown Bob down to the forest, had him wander through both an alleged “business access area” and “business premises”, re-arrest him and start from there.

    I understand the Court’s rationale for not wanting to adjudicate hypothetical test cases, but surely this was far enough from hypothetical and a big enough matter of public important to just hear and adjudicate it without requiring all this rigmarole on standing- and the above suggestion of flying Bob back down to the forest should demonstrate exactly why it is rigmarole. If your standing issue can be solved in such a way, there shouldn’t be a standing issue.

    • I agree with all that. I don’t even know if Brown was in Canberra. They could have just phoned him (or his co-accused) and told him to stand in the right spot then and there.

      A complication is that there seems to be enormous uncertainty about where exactly is covered by which parts of the challenged legislation (and other Tasmanian laws that bear on the trespass issue), and all of that may vary from moment to moment depending on whether logging is carried out. (There is even an argument that the clearing Brown was standing in was a ‘business premises’, because the clearing was part of road clearing carried out to facilitate logging in the coupe!)

      More broadly, as a colleague of mine recently noted, the High Court is hamstrung by its own strict approaches to standing, hypotheticals and advisory opinions, and constantly has to go through dances like this. Most comparative jurisdictions wouldn’t face anything like these difficulties.

  3. I understand the court’s views about deciding disputed facts. It’s not sensible for all 7 to hear and determine the facts. So in Day, for example, a single judge decided the facts in advance of the Full Court hearing.

    But if you are just going to have a single judge do it, why not get a single Federal Court judge to do it, by remitting? The facts and law phases will already be bifurcated, so it need not cause any greater delay.

    That seems like a more sensible use of court resources than having High Court judges conduct various factual hearings, which are time-intensive. As the highest court, their time is better spent on resolving difficult and important issues of legal principle. (The Court of Disputed Returns jurisdiction is different, and much more rarely engaged).

    As for comparative jurisdictions, I agree that the Court should permit advisory opinions – but not all comparative jurisdictions allow them. And of course many comparative jurisdictions don’t have their highest constitutional court exercising federal jurisdiction – you only get to the US Supreme Court, for example, after lower courts have decided facts and law. But I think it is quite efficient to go straight to the High Court in constitutional cases, rather than waiting for years for a case to work its way up the appellate hierarchy.

    • I agree that a single judge is the way to find facts, and that any judge will do. (It’s the parties who are loathe to go on remitter.) My scepticism is about the preference for (often hurried) agreed facts.

      But the difficulty comes when the legal tests are so unclear that the significance of the facts is impossible to gauge. What I don’t agree with is the view (stated expressly by Gordon J) that the full court should only hold one hearing, never two. Maybe that shouldn’t happen often, but yo say it should never happen is capricious, especially when the court insists that facts are fundamental to any of its rulings, including on the validity of legislation. (Indeed, I suspect that it’s this issue – the risk that the federal court judge will get the law ‘wrong’ – that is behind the parties’ dislike of remittal.)

      • I don’t think the aversion to remittal is because of a fear that a Fed Ct judge will get the law “wrong”. It’s more a combination of the following: (1) a contested factual hearing is more burdensome, especially for a pro bono legal team; (2) remittal will delay the final resolution of the issue because (a) it may have to work its way back up the appellate structure; and (b) there is a real risk of the Federal Court reserving for more than 12 months, when the High Court will take no more than 6 months.

        • And re (2)(b), that’s not even taking into account the time between filing/remittal and a hearing, which will also be longer in the Federal Court.

          • Thanks Anon. I wonder, though, if the fed court would be so tardy on a remittal (as opposed to its own regular docket?) I’m not sure of any instances of remittals (as opposed to refusals to remove) off the top of my head.

  4. To any interested readers, I wish to say that I have had a double-blind peer reviewed article published with the University of Tasmania Law Review (UTLR) that analyses the impugned legislation in Brown. Given that the judgment will be handed down soon, the UTLR agreed to publish the article online ahead of the Volume 36(1) print edition. It can be accessed here:

    It is foremost an analysis of the constitutional validity of the impugned legislation, but it also considers at length the relatively unlitigated question of what constitutes a legitimate legislative purpose in the implied freedom jurisprudence.

    Many thanks,
    William Bartlett

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