ABSTRACT Australian state Parliaments have recently enacted legislation responding to direct action protests in which protesters have disrupted forestry and mining activities by blocking roads, building tree houses, and locking themselves to machinery and structures. The High Court of Australia, in Brown v Tasmania  HCA 43 considered a challenge to one of these Acts, the Workplaces (Protection from Protesters) Act 2014 (Tas), and determined that its primary provisions were invalid in their application to forestry land for being in breach of the constitutional freedom of political communication. This analysis piece examines Brown v Tasmania by reference to two features of its context: the direct action protests that prompted the Tasmanian Parliament to enact this legislation and the documentary activism that occurred on the facts of Brown v Tasmania. It highlights that broad and uncertain protest laws risk being characterised as insufficiently adapted to the protection of political communication in Australian constitutional law. Australia has a long history of environmental protests that in some cases have succeeded in stopping forestry activities, mines, dams and urban developments in heritage areas.1 Environmental protests have not only prevented such developments but have also been the catalyst for legal reforms, such as the introduction of public participation requirements in environmental planning legislation2 and constitutional principles concerning the adoption of international law in domestic law.3 One of the interesting contributions made by the Australian High Court in Brown v Tasmania to environmental law was to recognise the contribution of protests, particularly onsite environmental protests, to political communication. The judges in the majority accepted that publicity generated by protests has led to the introduction of legislative and regulatory measures promoting environmental protection.4 Brown v Tasmania required the High Court to test legislation aimed at restricting environmental protests, the Workplaces (Protection from Protesters) Act 2014 (Tas) (the Protesters Act), for its consistency with the implied freedom of political communication in the Australian Constitution. The freedom of political communication is an implication drawn from the provisions of the Constitution that guarantee representative government (requiring members of the two houses of Parliament to be directly chosen by the people).5 A majority of the High Court in Brown v Tasmania determined that the primary provisions of the Protesters Act were invalid for breaching this constitutional freedom. Its primary contribution to environmental protests can be seen in the majority judges’ insistence that restrictions on political communication must be closely confined to a legitimate competing purpose. The case also contributes to Australian constitutional law; particularly in relation to the judges’ proportionality-based reasoning. Analysis of that aspect of Brown v Tasmania can be found in other publications.6 The plaintiffs, Bob Brown and Jessica Hoyt, were arrested at different times in the Lapoinya Forest in north-western Tasmania according to powers in the Protesters Act. Bob Brown is Australia’s most well-known environmental activist. He was arrested for failing to leave the Forest after being directed by police to leave.7 Jessica Hoyt is a local resident and member of a local action group. She was arrested for returning to the Forest in breach of the Protesters Act as she had previously been directed by police to leave.8 The charges were subsequently dropped for both of them as it was recognised that they were not within areas in which the Protesters Act applied at the times that police issued directions against them. However, this development occurred only after they commenced litigation challenging the Protesters Act.9 The important point to note about Bob Brown and Jessica Hoyt’s protests is that they did not disrupt forestry activity. The facts of the protests are stated very briefly in the judgments, but we are told that Jessica Hoyt stayed clear of the path of an excavator when requested by a forestry official.10 Bob Brown videoed the results of forestry activity and while doing so described the environmental impacts and political context.11 His protests took the form of documenting environmental harm for the purpose of publicising it. I will refer to it as ‘documentary activism’, a form of protest that has been particularly prominent in Australia in recent years in relation to animal welfare. Animal welfare activists have secretly filmed cruel practices relating to greyhound racing and live exports of cattle, which were then broadcasted in news programmes.12 1. TASMANIAN PROTESTER LEGISLATION IN CONTEXT Bob Brown and Jessica Hoyt’s protests were different to other protests that have led to recent legislative reforms. The Protesters Act and similar legislation in other states focus on disruptive, ‘direct action’ protests. This is suggested in the Protesters Act’s title, and was emphasised in Parliamentary debates and the Fact Sheet that accompanied the Act.13 Evidence was submitted to the High Court of protests in Tasmania prior to the enactment of the Protesters Act in which protesters have occupied tree houses, blocked roads in forestry areas, and attached themselves to machinery and structures.14 In its purest form, direct action involves protestors seeking to prevent particular activities directly, rather than through political processes and advocacy.15 Other forms of direct action protest disrupt businesses and other activities for the purpose of publicising the protesters’ campaign, thus raising issues as to how such disruption can be balanced against free speech protections. The Protesters Act was the Tasmanian Parliament’s response to direct action protests. New South Wales has recently passed similar legislation, the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Act 2016 (NSW) in response to mining protests.16 A Bill was introduced into the Western Australian Parliament that was intended as a response to direct action protests but was not passed.17 There are three features of the Tasmanian Protesters Act that were particularly important for the High Court’s decision in Brown v Tasmania. First, the Act regulates protests on business premises by prohibiting protesters hindering, obstructing, threatening or risking safety to businesses.18 However, it also goes further than such disruptive actions. The Act defines ‘protest activity’ as being on business premises ‘for the purposes of promoting awareness of or support for – an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue’.19 Accordingly, the Act applies to protests that are primarily directed to attracting media attention, raising political debate and potential legal change, when there is minimal, or no, direct physical disruption to businesses. Secondly, the Act grants police officers broad discretionary powers to issue directions to leave business premises. The relevant provision grants police power to issue such directions if the officer ‘reasonably believes that the person has committed, is committing, or is about to commit, an offence, against a provision of this Act’.20 This provision enables police to prevent protests when no disruption has occurred. It is engaged when police have a reasonable belief that a person is ‘about to’ hinder or obstruct a business. This aspect of the Act exposed protesters in Bob Brown and Jessica Hoyt’s position (that is, protesting but not disrupting or obstructing business activity) to a direction, and the legality of the provisions authorising this type of direction was challenged in this case. Thirdly, the Act includes harsh penalties. It requires a person to leave premises or business areas immediately when directed by a police officer and not enter again within four days or risk a fine of $10,000.21 Failure to comply is punishable by fines of up to $10,000 and imprisonment for a maximum term of four years.22 A person convicted of an offence could also be issued an order to compensate a business for repair of any damage.23 The Act does little expressly to ensure that peaceful protests and political communication can continue. Political communication was referred to in Parliamentary debates and the accompanying Fact Sheet as being factored into the legislation along with protecting business activities and safety.24 However, the Act’s only express reference to its purpose focuses exclusively on protecting businesses. The long title of the Act states: An Act to ensure that protesters do not damage business premises or business-related objects, or prevent, impede or obstruct the carrying out of business activities on business premises, and for related purposes. The only means by which political communication is permitted in the Protesters Act is by a provision allowing processions or marches passing by business premises ‘at a reasonable speed, once on any day’.25 In Parliament, the Minister emphasised that this was intended as the measure enabling political speech.26 The provision was ridiculed in the High Court by Justice Gageler, who referred to it as having ‘Pythonesque absurdity’.27 Beyond this token concession to political speech, the Protesters Act is otherwise aimed at protecting business from protest action. The challenge to the Protesters Act raised different issues to previous cases concerning protests and the constitutional freedom of political communication. In previous cases, the challenged legislation was upheld due to being sufficiently confined to legitimate purposes, such as preserving public safety28 and public order,29 and preventing menacing and offensive use of postal services.30 2. PROTESTERS’ UNLAWFUL CONDUCT: PROTECTED BY FREEDOM AND POLITICAL COMMUNICATION? One of the key issues in Brown v Tasmania concerned the lawfulness of protesters’ action independently of the challenged legislation. It raises an important question for the relationship between onsite environmental protests and the constitutional freedom of political communication. In particular, farmers have complained that animal activists’ documentary activism involves intrusion on their property and privacy rights.31 Can the constitutional freedom protect unlawful access to private land? The question was relevant in Brown v Tasmania as Tasmania argued that the implied freedom of political communication ‘cannot be set up to authorise a person to trespass on the property of another, even if the property belongs to the government’ and cannot permit protests that amount to nuisance or besetting of business premises.32 The majority of the judges disagreed with this argument. They focused on Brown and Hoyts’ protests being in forestry areas where members of the public generally have access entitlements. Their protesting actions were not directly disrupting business activities in these areas. Kiefel CJ, Bell and Keane JJ emphasised that Tasmanian forestry legislation operates on the premise that members of the public are entitled to access such land unless forestry officials exercise powers under forestry legislation to exclude them.33 For Gageler J, whether or not protesters were entitled to access forestry areas of Crown land was not relevant. For him the question for the Court related to the relationship between the freedom of political communication with ‘compatible yet competing public interests, including but not limited to the protection of property, of safety, of reputation, of amenity and of privacy’.34 This approach suggests that some unlawful activity might be sanctioned by the constitutional freedom of political communication. The dissenting judges agreed with Tasmania that the freedom of political communication could not be engaged to justify unlawful conduct. Justice Gordon focused on the Protesters Act engaging primarily with conduct that was already unlawful and that the Act merely added criminal sanctions and increased penalties.35 She determined that the one provision of the Protesters Act that in her view went beyond regulating already unlawful conduct was invalid for not being reasonably appropriate and adapted to the purpose of the Act.36 Justice Edelman also determined that the constitutional freedom of political communication did not apply to constrain legislative power for conduct that is independently unlawful.37 For him the Protesters Act applies only to independently unlawful activity38 and the freedom of political communication was not engaged. The independent unlawfulness of protest activity was one of the primary issues in the case; however, the case does not make a straight-forward contribution on this point. This is because of the differing judicial approaches outlined above, and because of the uncertainty over whether Bob Brown’s and Jessica Hoyt’s actions were unlawful in the circumstances of the case. This uncertainty was due to the indeterminacy of the statutory provisions that founded the police action against them (as explored in the following section), and explains why the charges against them were subsequently dropped. No doubt the issue of how political communication relates to unlawful activity will arise in a more direct manner in the future in circumstances involving protests on private land, which is often the case for direct action protests against mining and documentary activism against farming methods. In that kind of case, the courts will have to provide a more direct answer to whether the constitutional freedom of political communication can protect unlawful conduct. 3. THE INDETERMINACY OF THE PROTEST PROVISIONS: STRIKING DOWN OR READING DOWN? The primary reasoning of the majority of the High Court as to why the Protesters Act was invalid involved application of proportionality-based reasoning. This has developed into a three-step test that can be summarised in the following manner: whether the challenged Act burdens the freedom of political communication; whether the challenged Act’s purpose is compatible with representative and responsible government; and whether the challenged Act advances its purpose in a manner that is compatible with representative and responsible government.39 The issue in this aspect of the case related to the third step. The majority determined that the central provisions of the Protesters Act were not proportionate to the Act’s purposes, largely due to their indeterminacy and for that reason they were determined to be invalid. The dissenting judges determined not to strike down the provisions but adopted techniques of statutory interpretation to resolve the indeterminacy. The majority examined the indeterminacy of the provisions of the Protester Act in two ways. The first concerned the provisions of the Act defining the sites to which the Act applied. This was a particular problem on the facts. It was unclear whether Bob Brown and Jessica Hoyt were on land that is subject to the Protesters Act when they were arrested, meaning that their arrests under the Act were potentially unauthorised. The uncertainty arose primarily because of the terminology used in the definitions of ‘business premises’ or in a ‘business access area’ in the Act. The definition of ‘business premises’ refers to many kinds of businesses, including ‘forestry operations’.40 ‘Business access areas’ is defined as ‘land … that is outside the business premises, as is reasonably necessary to enable access to an entrance to, or to an exit from, the business premises’.41 It was accepted by the judges that together these provisions cover a great deal of Tasmania. The agreed facts provided to the High Court established that there is approximately 800,000 hectares of forestry land in Tasmania that members of the public are generally entitled to access.42 The joint judgment of Kiefel CJ, Bell and Keane JJ highlighted the indeterminacy of these provisions when analysing the operation and effect of the Protesters Act. They referred to the ‘principal problem’ as being that it ‘will often not be possible to determine the boundaries of “business premises” or a “business access area”’.43 They noted that forestry operations are not conducted within particular premises or enclosures. They are carried out progressively at different locations within a larger area. The boundaries of forestry operations are not specifically indicated. They could be identified by signs or barriers but this was not required by the Protesters Act.44 Kiefel CJ, Bell and Keane JJ said that this meant that it would be difficult for the police and protesters to determine whether protest action is on the land that engages the provisions of the Protesters Act.45 The practical impact of the indeterminacy of these provisions was clear. The agreed facts stated that charges had been dropped not only for Bob Brown and Jessica Hoyt, but also in every other case in which persons had been charged under the Protesters Act since its commencement. In each case, the charges were withdrawn because the protesters were not within business premises or a business premises area as defined under the Protesters Act.46 Kiefel CJ, Bell and Keane JJ drew from this assessment of the practical effect of the provisions that they would stifle lawful protests and political communication.47 This provided the basis for their conclusion that the Protesters Act utilised disproportionate means for achieving its purpose. Uncertainty as to the sites to which the Act would apply had the effect of stifling protest.48 The second issue related to the Protesters Act empowering police to issue directions to protesters based on their ‘reasonable belief’ that the provisions in the Act had been breached or were about to be breached. Nettle J was concerned that the provisions would provide little guidance for the police when deciding whether to issue directions.49 He interpreted the provision empowering police to issue directions as arising when the officer has formed a ‘reasonable, but plausibly mistaken, belief’ as to the protesters’ conduct50 and that this meant a person’s entitlement to lawfully protest on forestry land was ‘at the mercy of police officers’ attempts to apply the Protesters Act’.51 He concluded that the provisions granting powers to police to issue directions were ‘grossly disproportionate’ means for achieving the stated purposes of the Protesters Act.52 Gageler J also focussed on this feature of the Protesters Act. For him, the power granted to police to issue directions, and the exposure of those subject to such directions to criminal liability, placed a burden on the freedom of political communication that was greater than necessary to protect forestry operations from disruption.53 The dissenting judges, Gordon J and Edelman J, accepted that the provisions were indeterminate but took a different approach to how it should be resolved. In separate judgments, each judge stated that the indeterminate features of the Protesters Act were not reasons to invalidate the provisions but were matters for the Court to resolve as a matter of statutory interpretation.54 Edelman J explained his particular approach in the terms of judicial minimalism: that it is preferable for courts to resolve issues according to accepted principles of statutory interpretation rather than constitutional principles and remedies.55 He would have resolved the indeterminacy of the sites to which the Act applied for forestry operations by limiting them to areas marked by signs, barriers prohibiting entry or oral notice from an authorised officer under related forestry legislation.56 According to this approach, the Protesters Act was not engaged when the police officer issued a direction to Jessica Hoyt but it may have been engaged for Bob Brown.57 The dissenting judges therefore took a different approach to this issue. While Edelman J was right to recognise that Australian courts have interpreted legislation narrowly to minimise interference with free speech and that this may lead to constitutional issues being avoided,58 there is a question over whether this approach was appropriate in Brown v Tasmania. His interpretation of the Protesters Act was particularly complex. It involved reading it by reference to other legislation, the Forest Management Act 2013 (Tas), and in the shadow of the constitutional freedom of political communication. This would have resulted in provisions that were on their face indeterminate having quite specific meanings. Edelman J understood that such interpretation would filter down to police on the ground according to some form of instruction.59 He did not refer to the other stakeholders, environmental protesters. For them, the text of the Protesters Act would have little connection with their legal obligations as interpreted by the dissenting judges. Ascertaining such obligations would require sophisticated, potentially expensive, legal research and advice. The indeterminacy of the provisions of the Protesters Act was, therefore, recognised by all of the judges. The differences between the majority and the dissenting judges concerned how it should be resolved. The majority judges resolved it according to constitutional principles and remedies, leaving it to Parliament to try again. The dissenters, particularly Edelman J, resolved it through statutory interpretation. 4. FACTORING POLITICAL COMMUNICATION INTO PROTEST LAWS: THE CONSTITUTIONAL LEGITIMACY OF ENVIRONMENTAL PROTESTS While the development of the Protesters Act indicates that it was aimed at direct action protests, Bob Brown and Jessica Hoyt’s protests cannot be characterised in this way. Their breed of activism highlights that the Protesters Act was applied by police beyond direct action protests. This was not merely a misapplication of the Protesters Act. The broad discretionary powers granted to police enabled the Act to be used to prevent protests that did not disrupt business in a direct physical sense. Although Bob Brown’s protest in this case involved documentary activism, the case does not say a great deal about how such protests can be regulated. Kiefel CJ, Bell and Keane JJ suggested that prohibiting that form of protest would be a significant restriction on political communication.60 The concerns expressed by the dissenting judges regarding unlawful conduct, such as trespassing, suggest that there is unlikely to be a straightforward answer as to how property laws and political communication are balanced in laws aimed at this form of protest. Brown v Tasmania highlights that the constitutional freedom of political communication in Australian law can have a significant impact on protest laws. Broad and uncertain laws risk being characterised as insufficiently adapted to the protection of political communication in Australian constitutional law. Brown v Tasmania may also mark a shift in judicial understanding of protests: from minimal acceptance that is commonly overwhelmed by other interests, to a feature of representative government that is protected by the Commonwealth Constitution. Footnotes 1 Drew Hutton and Libby Connors, A History of the Australian Environment Movement (CUP 1999). 2 Amelia Thorpe, ‘Public Participation in Planning: Lessons from the Green Bans’ (2013) 30 EPLJ 93. 3 Commonwealth v Tasmania (the Tasmanian Dams case) (1983) 158 CLR 1. 4 Brown v Tasmania  HCA 43 – (Kiefel CJ, Bell and Keane JJ),  (Gageler J),  (Nettle J). 5 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (legislation must not burden the freedom of political communication unless ‘reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’: 567). 6 See Tony Blackshield, ‘Green in Judgement’ (Inside Story, 26 October 2017) <http://insidestory.org.au/green-in-judgement/> accessed 17 January 2018; Shipra Chordia, ‘The Trajectory of Structured Proportionality in Implied Freedom of Political Communication Cases: Brown v Tasmania’ (AUSPUBLAW, 2 November 2017) <https://auspublaw.org/2017/11/the-trajectory-of-structured-proportionality/> accessed 17 January 2018. See also William Bartlett, ‘The Raised Spectre of Silencing ‘Political’ and ‘Environmental’ Protest’ (2017) 36 Univ Tasmania LR 1. 7 Brown (n 4) . 8 ibid  (Kiefel CJ, Bell and Keane JJ),  –  (Edelman J). 9 ibid . 10 ibid  (Kiefel CJ, Bell and Keane JJ),  (Edelman J). 11 ibid  (Kiefel CJ, Bell and Keane JJ),  –  (Edelman J). The video can be found at <https://www.youtube.com/watch?v=xF23kq8Ti9U> accessed 17 January 2018. 12 Regarding greyhound racing see, ABC Four Corners, ‘Making a Killing’ (16 February 2015) <http://www.abc.net.au/4corners/making-a-killing/6127124> accessed 22 March 2018. Regarding live cattle exports, see ABC Four Corners, ‘A Bloody Business’ (8 August 2011) <http://www.abc.net.au/4corners/a-bloody-business—2011/2841918> accessed 22 March 2018. 13 House of Assembly, Tasmanian Parliament, Workplaces (Protection from Protesters) Bill 2014 (No 15), Second Reading Speech, 26 June 2014; Workplaces (Protection from Protestors) Bill 2014, Fact Sheet <http://www.parliament.tas.gov.au/bills/Bills2014/15_of_2014.htm> accessed 17 January 2018. 14 Brown (n 4)  (Kiefel CJ, Bell and Keane JJ),  –  (Nettle J). Evidence was also provided to the Court indicating that forestry protests had succeeded in prompting expansion of the Tasmanian Wilderness World Heritage Area: . 15 Helen Fenwick and Gavin Phillipson, ‘Direct Action, Convention Values and the Human Rights Act’ (2001) 21 Legal Stud 535, 538; David Mead, The New Law of Peaceful Protest: Rights and Regulation in the Human Rights Act Era (Hart Publishing 2010) 237. 16 Legislative Assembly, New South Wales Parliament, Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016 Second Reading Speech, 8 March 2016. 17 Parliament of Western Australia, Progress of Bills, Criminal Code Amendment (Prevention of Lawful Activity) Bill 2015 <http://www.parliament.wa.gov.au/parliament/bills.nsf/BillProgressPopup?openForm&ParentUNID=1E00CF48C52EF57848257DF6000AA4DF> accessed 17 January 2018. 18 Protesters Act, ss 6–7. 19 ibid s 4(2). 20 ibid s 11(1). 21 ibid ss 8(1)(b), 11(1), (2). 22 ibid ss 6(4), 17(2). 23 ibid s 18. 24 House of Assembly (n 13). 25 Protesters Act, s 6(5). 26 House of Assembly, Second Reading Speech (n 13). 27 Brown (n 4) . 28 Levy v Victoria (1997) 189 CLR 579; O’Flaherty v City of Sydney Council (2014) 221 FCR 382; Gibson v Commissioner of Police  NSWCA 251. 29 Coleman v Power (2004) 220 CLR 1. 30 Monis v The Queen (2013) 249 CLR 92. 31 Tom Gotsis and Lenny Roth, ‘Farm Trespass, Surveillance and the Biosecurity Bill 2015’ (NSW Parliamentary Research Service, August 2015) 1–3 <https://www.parliament.nsw.gov.au/researchpapers/Documents/farm-trespass-surveillance-and-the-biosecurity-b/Farm%20trespass,%20surveillance%20and%20the%20Biosecurity%20Bill%202015.pdf> accessed 22 March 2018. 32 Defendant’s written submissions (21 March 2017)  <http://www.hcourt.gov.au/cases/case_h3-2016> accessed 17 January 2018. 33 Brown (n 4) –, . See also  (Nettle J). 34 ibid –. 35 ibid , –,  – . 36 ibid . 37 ibid –, . 38 ibid . 39 ibid –. 40 Protesters Act, s 5(1). 41 ibid s 3. 42 Brown (n 4) . 43 ibid . 44 ibid . 45 ibid . 46 ibid . 47 ibid . 48 ibid –. 49 ibid –, . 50 ibid . 51 ibid . 52 ibid . 53 ibid –. 54 ibid – (Gordon J); – (Edelman J). 55 ibid . 56 ibid . 57 ibid –. 58 ibid . See eg Evans v New South Wales (2008) 168 FCR 576. 59 ibid . 60 ibid –. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For permissions, please email: email@example.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Journal of Environmental Law – Oxford University Press
Published: May 10, 2018
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