Brown v Tasmania  HCA 43
The High Court of Australia has held that key provisions of a Tasmanian law restricting protest are invalid because they violate the implied freedom of political communication in the Australian Constitution.
The Workplaces (Protection from Protestors) Act 2014 (Tas) (the Act) includes a range of provisions that prohibit people from taking part in protest activities in or around business premises, including on forestry land. Section 6 provides that a protestor must not enter or do an act on business premises or a “business access area” that prevents, hinders, or obstructs the carrying out of a business activity. Section 11 empowers police officers to issue directions to leave to persons they believe have committed contraventions of section 6. Failure to comply with such a direction is an offence. Section 8 makes it an additional offence to re-enter the same area within 4 days of receiving the direction to leave. Section 13 sets out powers for police officers to make warrantless arrests in certain circumstances.
In January 2016 former Senator and Australian Greens leader Dr Bob Brown was arrested whilst walking with three others near forestry operations in the native Lapoinya Forest in Tasmania. Dr Brown was filming a video in the area to promote public awareness of the logging of the forest and was charged under the Act with failing to comply with a police direction to leave the area. A local nurse and activist named Jessica Hoyt was also arrested and charged under the Act in similar circumstances.
Dr Brown and Ms Hoyt (the plaintiffs) commenced proceedings in the High Court of Australia to challenge the validity of the Act on the basis that it infringes the implied freedom of political communication in the Australian Constitution (the Implied Freedom). The charges against both plaintiffs were subsequently withdrawn but the High Court proceedings continued.
A majority of the High Court held that the impugned provisions impermissibly burdened the Implied Freedom insofar as the provisions apply to protests on forestry land. Justice Gordon found that only section 8 burdened the Implied Freedom. Justice Edelman dissented, holding that the Act was valid in its entirety.
The majority justices held that the test for whether a law violates the Implied Freedom should be framed as three questions (reflecting the principles developed in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and Coleman v Power  HCA 39):
- Does the law effectively burden freedom of political communication?
- Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of government?
- 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?
If the first question is answered yes and either of questions two or three is answered no, the law is invalid.
Chief Justice Kiefel and Justices Bell and Keane delivered a joint judgment. Their Honours found that the Implied Freedom was burdened to a significant extent, noting that the Act was likely to have significant deterrent effects on protestors and that directions made under the Act could mean protesters do not return to forestry areas for days or even months. The purpose of the Act, protecting business from damage and disruption occurring as a result of protest activity, was compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. However, it could not be said that the provisions of the Act were reasonably appropriate and adapted to advance that purpose.
In reaching this conclusion, their Honours considered arguments as to the appropriateness of importing a model of assessment of proportionality into the third limb of the test set out above, as suggested by the plurality of judges in McCloy v New South Wales (2015) 257 CLR 178 (McCloy). Their Honours rejected arguments that McCloy should be reconsidered and held that the process of justification commences with the issue of compatibility and continues with enquiries as to proportionality.
Their Honours ultimately found that there was a lack of rational connection between the purpose of the Act (protecting business from damage and disruption) and the broad-reaching police powers conferred in sections 8 and 11, namely powers that would prevent people being on public land in a “business access area” or would exclude a broad group of people returning to the area. Those provisions were found to be invalid. That left the question of whether the remaining provisions could be considered "reasonably necessary", one test of which is whether there are alternative, reasonably practicable, means of achieving the same object which have a less restrictive burden on the Implied Freedom. Their Honours found that such less restrictive means are embodied in the Forest Management Act 2013 (Tas) (FMA), which empowers forestry officials to exclude persons whose presence or activities are likely to interfere with forest operations. Their Honours concluded that the remaining provisions of the Act go far beyond what is reasonably necessary for its purpose and would create substantial deterrence effects of all kinds. Those provisions were therefore invalid.
Justices Gageler and Nettle delivered separate judgments in which they substantially agreed with the conclusions of the majority. Justice Gageler found that the law required close scrutiny given that it targeted political communication and imposed a significant burden on a particular viewpoint. That meant that the provisions must be compelling and closely tailored to the achievement of purpose. He found that the law was not appropriate and adapted because it was both under-inclusive and over-inclusive – school children could walk through the zone disrupting business unaffected by the law, whereas environmental protesters faced the breadth and severity of criminal consequences that go well beyond protecting business interests. Justice Nettle found that the law was not adequate in its balance because it goes far beyond what is reasonably perceived as justified. The Act placed freedom of people to lawfully protest on forestry land at the mercy of police officers attempts to apply the Act, risking the free exchange of political communication.
Their Honours both examined the utility of McCloy proportionality testing, with Justice Gageler remarking that it is at best a tool of analysis in some circumstances. Justice Nettle, utilised the proportionality criteria in his assessment of the impugned provisions, finding that the Act was not lacking in necessity but rather failed to satisfy the criterion that it be "adequate in its balance". Justice Nettle noted that this concept is not yet fully resolved in Australian constitutional law and emphasised that it should function as an "outer limit", whereby a law will not be adequate in its balance if the extent of the burden on the Implied Freedom is manifestly excessive by comparison to the demands of the legitimate purpose.
Justice Gordon held that all of the impugned provisions, except for section 8, were directed to forms of protest that were already unlawful by reference to other laws. This meant that the nature of the burden the Act imposed on the Implied Freedom was small. Her Honour also found that the means chosen to regulate the conduct in question were reasonably appropriate and adapted to serving a legitimate end. Only section 8, by imposing a blanket four day exclusion from a business access area, went beyond penalising what was unlawful prior to the enactment of the Act.
In his dissenting judgment, Justice Edelman focused on the proper construction of the Act, holding that the preferred construction was that it only applies to conduct that is already unlawful under the FMA. Although his Honour acknowledged that the Act imposed "additional consequences" on protestors, he found that they were imposed on independently unlawful conduct. As the Implied Freedom does not apply to independently unlawful conduct, the Act imposes no burden and is valid.
The Brown decision is a strong statement by the High Court that peaceful protests are an important form of free political expression and play a significant role in representative democracy, and cannot be subjected to uncertain and excessive restrictions. It is a strong endorsement of the importance of environmental protests held on-site to bear witness to environmental destruction. The decision has potentially important implications for the continued development of the law relating to the Implied Freedom.
The decision has implications for other states. The Brown decision could mark a shift in the willingness and ability of states to enact legislation of this kind. New South Wales has made it an offence for a person to enter or remain on inclosed lands without consent or to interfere with business activity on those lands. The Environmental Defenders Office of New South Wales is considering whether to launch a High Court challenge to the NSW anti-protest laws.
The full text of the decision can be found here.
Chloe Wood is a lawyer at Ashurst Australia.
The Human Rights Law Centre intervened in support of the plaintiffs in this case. We thank DLA Piper and Bret Walker QC, Jonathon Redwood and Prue Bindon for their pro bono assistance on this case.