By Dr Caroline Henckels

Listen to our Have You Got That Right? podcast on the Tasmanian case

In January 2016, former Greens Senator Bob Brown was filming an anti-logging video in Tasmania’s Lapoinya Forest when he was directed by a police officer to leave the vicinity. He was arrested and charged for failing to comply. Tasmanian nurse Jessica Hoyt was charged on a separate occasion for returning to the forest after having previously been directed to leave. Both challenged the Act as unconstitutional, and on Wednesday, the High Court ruled 6:1 that certain provisions of the Act, as they pertained to protests in forestry areas, violated the implied freedom of political communication protected by the Australian Constitution.

The Tasmanian legislation

The Act, an election promise on the part of the Tasmania’s Liberal government to rebuild the logging industry, introduced several offences targeting protest activities and giving the police broad powers to prevent or disband protests. A police officer had the power to direct a protestor to leave an area if the officer reasonably believed that protestors were preventing, hindering or obstructing access to ‘business premises’ (including forestry land) or a ‘business access area’ (including roads and public places). A direction could also be issued to a person who was preventing, hindering or obstructing business activities. The power also applied where police believed that such acts had been or were about to take place.

After receiving a direction to leave, a protestor could not return to the location within four days—even where returning was not for the purpose of protesting. Police could also direct a person not to return to the location for up to three months. Failure to comply with a direction was an indictable offence, with fines of up to $10,000 and a four-year term of imprisonment for repeat offences.

The implied freedom of political communication

The Court found that the Act clearly burdened the implied freedom of political communication (‘implied freedom’) by giving police the power to dissolve and effectively prevent political protests. Laws that burden the implied freedom are valid only if the law’s objective is ‘compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’ and the law itself is ‘reasonably appropriate and adapted’ to achieve that objective (Lange). The purpose of the Act—to protect businesses and their operations (here, forest operations) from serious interference caused by certain types of protest activity—passed the first hurdle. However, the Court held that the operative provisions of the Act went too far.

In a joint judgment, Kiefel CJ, Bell and Keane JJ were concerned about the vague concepts of ‘business premises’ and ‘business access area’ as they related to forestry land. Forestry operations typically occur over a large area, but actual forestry activity may or not be occurring in a given place at a given time, meaning that it would not often be possible for either a police officer or a protestor to determine the boundaries of a relevant business premises or an access area at the time a protest is taking place. The arrest of the plaintiffs in a part of the forest that Tasmania later conceded was not a business premises or access area illustrates this difficulty. This vagueness, together with the police powers to issue directions and to arrest and remove protestors, had the effect not only of stifling lawful protests but also deterring protests on or adjacent to forestry land generally, including in locations that would not affect forestry operations.

Kiefel CJ, Bell and Keane JJ concluded that two of the statutory provisions—prohibiting the return of protestors to an area even where business operations are not disrupted, and giving police power to direct a group of people to disband even where not all of them were engaging in the action—lacked a rational connection to the purpose of the legislation and were invalid on that basis. Other provisions—the prohibition on entering or remaining on business premises or access areas, police powers to issue directions to leave, powers of arrest and the offences provisions—went too far by preventing and deterring all kinds of protests within areas of forestry land that were difficult to define.

The justices noted, by way of comparison, that existing legislation applicable to forestry lands—the  Forest Management Act 2013 (Tas)—permits access to and use of forestry land, subject to restrictions only for safety reasons or where a person’s conduct impedes the management of the forestry land. People can only be restricted from entering forestry land in relation to safety issues or the actual conduct of forestry operations, with the public continuing to have access to other areas. Unlike the vague concepts of ‘business premises’ and ‘business access area’, areas in which forestry operations actually are being carried out are usually designated using signage and barriers.

Gageler J and Nettle J (who concurred in separate judgments with the conclusions of the joint judgment) were concerned by the breadth of the discretion conferred on police officers, which allowed them to act based on a ’reasonable belief’—even where that belief was mistaken. The Act did not have explicit criteria to guide police, and the criminal consequences of the failure to comply with a direction were significant. For Gordon J, the only invalid provision was the blanket four-day exclusion period from a business access area on a person, regardless of whether the person might engage in protest activity at that location. Edelman J, dissenting, found that the relevant provisions of the Act only applied to activities involving criminal trespass and that there was no burden on the implied freedom.

Implications for other anti-protest laws in Australia

The plaintiffs’ argument focused on the Act as it related to forestry land, and the Court considered whether the Act was valid only in this respect. Although this case is likely to have broader application (and is the first time that individual plaintiffs have successfully had a law struck down on the basis of the implied freedom), it is difficult to make generalisations about its future impact because the objective of a law and the manner in which its provisions operate will be different in each case. This means that one can only speculate about whether the Act would be valid in other contexts, and how other state and territory laws regulating protests would be treated by the Court. However, the door remains open for those affected by these laws to challenge their constitutional validity.

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