Brown v Tasmania
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''Brown v Tasmania'',. was a significant
Australia Australia, officially the Commonwealth of Australia, is a Sovereign state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...
n
court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
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, decided in the
High Court of Australia The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution. The High Court was established fol ...
on 18 October 2017. The case was an important decision about the
implied freedom of political communication Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed. Background Constitution ...
in the
Australian Constitution The Constitution of Australia (or Australian Constitution) is a constitutional document that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the ...
in which the majority held that provisions of the Tasmanian ''Protesters Act''. were invalid as a burden on the implied freedom of political communication in a way that was not reasonably appropriate and adapted, or proportionate, to the legitimate purpose of protecting businesses and their operations.


Background

In 2014 there was a change of government in Tasmania, under
Liberal Liberal or liberalism may refer to: Politics * a supporter of liberalism ** Liberalism by country * an adherent of a Liberal Party * Liberalism (international relations) * Sexually liberal feminism * Social liberalism Arts, entertainment and m ...
Premier Premier is a title for the head of government in central governments, state governments and local governments of some countries. A second in command to a premier is designated as a deputy premier. A premier will normally be a head of governm ...
Will Hodgman William Edward Felix Hodgman (born 20 April 1969) is an Australian diplomat and former politician who has been the High Commissioner of Australia to Singapore since February 2021. He was the 45th Premier of Tasmania and a member for the Division ...
. Their pre-election legislative agenda included "rebuilding the forest industry" by "cracking down on illegal and dangerous protests in our forests". The purpose of the Protestors Act was to implement that policy and was intended to send a message to protest groups that intentionally disruptive protest action that prevents or hinders lawful business activity was not acceptable. The ''Protestors Act'' applied to protest activity which was defined as activity 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. Meaning of protester and engaging in a protest activity. A Tasmanian legal academic described the ''Protesters Act'' as being intended to silence protestors by turning protest into a crime.
Bob Brown Robert James Brown (born 27 December 1944) is a former Australian politician, medical doctor and environmentalist. He was a senator and the parliamentary leader of the Australian Greens. Brown was elected to the Australian Senate on the Tasman ...
, the former parliamentary leader of the Greens had a long history with the Tasmanian
environmental movement The environmental movement (sometimes referred to as the ecology movement), also including conservation and green politics, is a diverse philosophical, social, and political movement for addressing environmental issues. Environmentalists a ...
, being involved in the 1972 campaign to save
Lake Pedder Lake Pedder, once a glacial outwash lake, is a man-made impoundment and diversion lake located in the southwest of Tasmania, Australia. In addition to its natural catchment from the Frankland Range, the lake is formed by the 1972 damming of the ...
, and blockading the
Franklin Dam The Franklin Dam or Gordon-below-Franklin Dam project was a proposed dam on the Gordon River in Tasmania, Australia, that was never constructed. The movement that eventually led to the project's cancellation became one of the most significant e ...
project in 1982 for which he spent 19 days in prison.


Facts

Brown, Jessica Hoyt and others were opposed to logging in the forest surrounding
Lapoinya Lapoinya (pronounced La-poin-ya) is a small agricultural centre on the north-west coast of Tasmania west of Wynyard. The name is Tasmanian Aboriginal word for "fern tree", a plant that abounds in those surviving untouched parts of the original ...
in North West Tasmania and were protesting in the forest when forestry operations were being conducted. In January 2016 they were arrested and charged with offences under the ''Protesters Act'', however those charges were later dropped. Despite the charges being dropped Brown and Hoyt sought to challenge the validity of the ''Protesters Act'' in the High Court. The Attorneys-General for the Commonwealth, NSW, Queensland, South Australia and Victoria intervened.


Judgment

In applying the decision in ''
Lange v Australian Broadcasting Corporation ''Lange v Australian Broadcasting Corporation''. is a High Court of Australia case that upheld the existence of an implied freedom of political communication in the Constitution of Australia, Australian Constitution, but found that it did not n ...
'',. the High Court had to consider three issues
# 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?


Burden on political communication

Six of the judges held that the law was a burden on political communication. The joint judgement of Kiefel CJ,
Bell A bell is a directly struck idiophone percussion instrument. Most bells have the shape of a hollow cup that when struck vibrates in a single strong strike tone, with its sides forming an efficient resonator. The strike may be made by an inter ...
and Keane JJ noted that all 9 charges laid under the ''Protesters Act'' were discontinued "because the direction given was not correctly referable to 'business premises' or a 'business access area.'", with the result that "some lawful protests will be prevented or discontinued and protesters will be deterred from further protesting." The deterrence of protesters from voicing their protests with respect to forest operations meant that the freedom of political communication was burdened. The basis of the dissent by Edelman J was that the conduct was already prohibited, within his construction of the act; which through the principle of legality, he reached independently of the 6 other judges. The implied freedom of political communication does not apply when an action is already independently unlawful, hence Justice Edelman held that the ''Protesters Act'' did not impose a burden on the freedom. Edelman J emphasised that the court's primary duty is to construe relevant legislation, and it is possible for a statute to be construed consistently with the constitution, it should do so in preference to a construction that would result in the act being held, invalid ‘even if it is perceived to be opaque, fudged, or irrational’: at 84


Purpose of the law

All of the judges held that the ''Protesters Act'' had a legitimate purpose being ensuring that protesters do not obstruct the carrying out of business activities.


Reasonably appropriate and adapted

Kiefel CJ, Bell and Keane JJ held that the principal problem was a practical one, in that the definition of areas to which the ''Protesters Act'' applied were so vague that it would often not be possible for police or protesters to determine the boundaries of a prohibited area. The implication for the freedom of political communication was not that the charges were unlikely to succeed, but rather that "lawful protests will be prevented or discontinued and protesters will be deterred from further protesting" because of the police direction, "even if there is no basis in law for the direction". Kiefel CJ, Bell and Keane JJ held that two provisions were not for the legitimate purpose of preventing damage or disruption, but for the purpose of deterring protest. The two provisions were the four day exclusion following a direction from a police officer and the capacity of a police officer to exclude a group of people from an area without having to consider whether each person was about to contravene the ''Protestors Act''. The test applied by Kiefel CJ, Bell and Keane JJ as to whether the law was reasonably appropriate was to consider the proportionality of the law in relation to the burden, by use of criteria of suitability, necessity and balance. The Forestry Management Act already achieved the legitimate purpose of preventing damage and disruption and therefore the additional burden on the freedom failed the criteria of suitability and necessity without the need to consider the criteria of balance. Gageler J agreed with the result but gave very different reasons, disagreeing that the proper test was proportionality. The practical difficulty he found with the provisions was not that they were vague or imprecise, but that the practical ability of a person to express a particular political view was significantly burdened by the broad discretion conferred on police officers, based on the formation of a reasonable belief, emphasising "the breadth and severity of the consequences". Nettle J substantially agreed with the joint judgment and applied the same test of proportionality. He was not persuaded that the significantly heavier penalties were themselves a burden on the freedom. Like Gageler J, Nettle J focused on the police powers that arose from a reasonable belief, merely because a person could be required to leave the forestry land because the police officer believed they had been obstructive in the past or seemed likely to be in the future, a direction that was awful even if the police officer was wrong. While Gordon J concurred with the majority that the law was a burden on the freedom and that the blanket four day exclusion was not appropriate and adapted to the purpose, her dissent was that the burden was slight, doing "no more than regulate the time, place and manner" of protest activities and thus satisfied that the law was for the most part reasonably appropriate and adapted to the purpose.


Significance

The decision is significant in at least three areas: # the continuation of environmental protests in Tasmanian forests; # calling into question the validity of similar legislation in NSW, and Western Australia; and # the use of proportionality as a test of constitutional validity. The origin of the test of proportionality can be traced, to the 1819 decision of the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
in '' McCulloch v Maryland'' where Chief Justice
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said that it was a matter for
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to choose how its powers were exercised, within the limits of the constitution, stating:
Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
The use of proportionality as a test of constitutional validity starts from the perspective that the freedom of political communication is not unlimited and that the various Australian parliaments may make valid laws that affect the exercise of political communication and it is generally up to the parliament to exercise the value judgment as to whether it should make that valued judgment. The question therefore involves the High Court itself making a value judgement about whether the pursuit of a legitimate purpose goes too far. In this regard the debate is the extent to which the High Court defers to the value judgment made by the parliament.


References

{{Implied freedom of political communication cases High Court of Australia cases 2017 in Australian law Australian constitutional law Rights in the Australian Constitution cases 2017 in case law