Brown & Anor v The State of Tasmania

[2017] HCATrans 94

[2017] HCATrans 094

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart   No H3 of 2016

B e t w e e n -

ROBERT JAMES BROWN

First Plaintiff

JESSICA ANNE WILLIS HOYT

Second Plaintiff

and

THE STATE OF TASMANIA

Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 3 MAY 2017, AT 10.15 AM

(Continued from 2/5/17)

Copyright in the High Court of Australia

KIEFEL CJ:   Before you continue, Mr Solicitor, Mr Merkel, the Court would be assisted by your response to some questions that arise from the note that the Solicitor‑General for Tasmania has provided to the Court about the circumstances relating to the plaintiffs.  It may be seen from that note that neither of the plaintiffs was in an area which fell within the purview of the Protesters Act.

MR MERKEL:   Your Honour, that note was sent up – and we do not criticise our learned friends – prior to us seeing it.  Our learned friend now has an amended note which makes changes that will provide a different complexion, which I would ask my learned friend to explain.  If there is any question arising out of that, I can explain it, your Honours.

KIEFEL CJ:   The matter that the Court is concerned with is if the facts relating to the plaintiffs are not relevant to the operation of the Workplace Protesters Act, on what scenario is the Court to operate when it considers the operation of the Act?  What factual scenario do we take as a given that shows us a true factual position which could really arise?

MR MERKEL:   Does your Honour have the amended note before you?

KIEFEL CJ:   Yes.  Mr Solicitor, do you wish to speak to that note first?

MR O’FARRELL:   It might of assistance, your Honour.

KIEFEL CJ:   Yes, thank you.

MR O’FARRELL:   Your Honours, I apologise for the late amendment.  We were a little too hasty on producing the first one.  The relevant amendments, your Honours, are at paragraph 5.  In the first sentence it now refers to the eastern boundary of Broxhams Road prior to its widening.  It was within the forest coupe.

KIEFEL CJ:   I am sorry, where are you?

MR O’FARRELL:   Paragraph 5, the third sentence, third line.  The eastern boundary of Broxhams Road prior to its widening was within the forest coupe.  So that is the material difference.

KIEFEL CJ:   So therefore ‑ ‑ ‑

MR O’FARRELL:   That is on page 1.  On page 2, paragraph 6, after the words in the second line “Dr Brown was” we inserted “on the widened section of Broxhams Road which was in the Flowerdale Rivulet Forest Reserve” and then deleted all of the words after that to the references to the defence in reply.

KIEFEL CJ:   Does that unambiguously put that section of the widening of Broxhams Road – does that bring it within the operation of the Workplace Protesters Act?  Is that accepted between the parties?

MR O’FARRELL:   It is certainly not, your Honour.  But there is a factual dispute about which I must say ‑ ‑ ‑

KIEFEL CJ:   Special cases are not meant to operate like this.

MR O’FARRELL:   No, no, your Honour, I accept that.  But I must say my apprehension was that after the amended defence to the amended statement of claim and the amendments that were made to that which appears in the special case book that, in fact, Dr Brown was within the reserve, that is, within the reserve immediately adjacent to Broxhams Road. 

GORDON J:   So, does that mean, on your case, the Act would not apply to him in relation to that conduct?

MR O’FARRELL:   Correct, your Honour. 

GORDON J:   That is in relation to Dr Brown.

MR O’FARRELL:   Yes, your Honour.

GORDON J:   Because at that point the reserve is not part of either a business premises or a business access area.

MR O’FARRELL:   Correct, your Honour. 

GAGELER J:   Does that contradict your paragraph 5?

MR O’FARRELL:   No, your Honour.  We would say that Broxhams Road is within business premises for the purposes of the forestry coupe.  If I can take your Honours to the map that my learned friend showed you yesterday at page 88 of the special case book?

KIEFEL CJ:   I am not sure that that is going to help us very much.

MR O’FARRELL:   Your Honour, it might show the situation a little more graphically.  Your Honours will see in the top right‑hand corner there is a reference to Broxhams Road.  That road runs effectively to the left of the red line right to the bottom of the map.  The red line, your Honours, is the FPP boundary, so it is the boundary to the forest practices plan, and represents the forestry coupe in which the works were to take place.  The blue line, on the other hand, within the red line relates to the harvest boundaries.  Then within the map, as my learned friend, I think, explained to you yesterday, there are parts of the land which are reserved from harvesting operations.

Our position, your Honours, is that Broxhams Road is within the forestry coupe.  The map, to the extent that it can be seen, the dotted line that appears on the map in between the red and the blue lines is Broxhams Road.

KIEFEL CJ:   That means it is under the Forest Management Act.

MR O’FARRELL:   Yes, within the Forest Management Act.

KIEFEL CJ:   I do not think there is any dispute about that.

MR O’FARRELL:   No, your Honour; it is within the coupe. 

KIEFEL CJ:   Yes.

MR O’FARRELL:   When the widening operations were undertaken, the point that is made in paragraph 6, perhaps a little obliquely, is that the widened section of Broxhams Road was within the Flowerdale Rivulet Forest Reserve.

KIEFEL CJ:   What effect does that have?  It still means that it is under the Forest Management Act.

MR O’FARRELL:   We would say no, your Honour.  We would say it is reserved land under the – I think it is probably the Nature Conservation Act.

GORDON J:   Your short point about paragraph 6, is it, is that it is not subject to the Workplace Protesters Act?

MR O’FARRELL:   That is correct, your Honour.  We would say that Broxhams Road was always there.  There were widening works on it but those widening works did not amount to within the relevant definition – so where Dr Brown was standing, he was not standing on an area of land that was reasonably necessary to enable access to, an entrance to or an exit from the business premises.

KIEFEL CJ:   Is this the point made at paragraph 7 of the special case?  Well, not the point made but the area that you have identified:

The south eastern boundary of the forest abuts the Flowerdale River Forest Reserve (“Reserve”), which is declared as reserved land under the Nature Conservation Act 2002 (Tas).

MR O’FARRELL:   Yes, your Honour, that is right.

KIEFEL CJ:   And you are saying that the widening of Broxhams Road brought it within that.

MR O’FARRELL:   It strayed, your Honour, into that area.

KIEFEL CJ:   While I have the special case opened, paragraphs 9 and 10, paragraph 9 it is said:

The coupe is and was Crown land within the meaning of the Crown Lands Act 1976 (Tas).

MR O’FARRELL:   Yes, your Honour.

KIEFEL CJ:   In a discussion which took place between you and Justice Gordon yesterday afternoon, I think you accepted that it was not Crown land.

MR O’FARRELL:   I am sorry, your Honour, if I did accept that.  I apologise for that.  It is Crown land but it is subject – it is carved out of the operation of the Crown Lands Act in ‑ ‑ ‑

KIEFEL CJ:   Because it comes under the Forest Management Act, the specific Act.

MR O’FARRELL:   That is correct, your Honour.  Yes, your Honour.

KIEFEL CJ:   That is clearer, thank you.  Well, from Tasmania’s point of view then neither plaintiff was subject to the Workplace Protesters Act.

MR O’FARRELL:   That is correct, your Honour.  We make no allegation, in fact, that they were and do not feel able to make that allegation.

KIEFEL CJ:   All right.  So then, we are proceeding – the Court is then asked to proceed upon the basis that whilst - as standing has been conceded, or at least taken out of issue, the Court is now asked to proceed upon the basis that some other person might in the future be in a position where they are subject to the Act and the Court then needs to attempt to determine this case on the basis of a person being in that position. 

The difficulty that we are having is we do not have a clear scenario about that – I will not say hypothetical person but it is not a hypothetical situation.  It is one that the parties must necessarily be taken to concede will occur in the future, but the Court cannot be left in the position of determining for itself what that might be in a case such as this where there are some complexities about the operation of the Act.  So I think, given your position, Mr Merkel might suggest how the Court should proceed. 

MR O’FARRELL:   If your Honour please.

KIEFEL CJ:   Would you like some time to consider this question, Mr Merkel?

MR MERKEL:   We would, your Honour, but can I just explain the problem that has arisen because ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR MERKEL:   ‑ ‑ ‑ the parties have turned their mind to this in the way the special case was formulated and I will have to be very precise and maybe it is best if I give your Honours a note but if I can just articulate what we see as the problem arising from the discussion that your Honours had with my learned friend.

KIEFEL CJ:   Yes.

MR MERKEL:   Broxhams Road was widened as part of the operations to enable logging in the coupe.  The widening of the road took the road into the reserve.

KIEFEL CJ:   Yes.

MR MERKEL:   The way in which the police approached the case, and your Honours are conscious of the fact that the exercise of power is founded on reasonable belief not on the ultimate fact, police took the view that being on the widened section of the road, where Dr Brown was when given a direction, was in a business access area and he was charged with being on a business access area.  So, that was the reasonable belief and no one is suggesting that there could not have been a basis for that reasonable belief.  

Later on, the police formed the view, as I understand it, but it is in the special case book, that the forestry operations included the widening of the road and that meant that widened section of the road was part of business premises.  So they dropped the charge against Dr Brown on the basis that he was on business premises, not on the access area.

KIEFEL CJ:   We do not have any of this information before us, Mr Merkel.

MR MERKEL:   No, it is all in the special case book, your Honour.  So what then happened is if one removes one oneself from the way the police exercised the power - and we found this whole case on the formation of the reasonable belief and it is not in issue that that was not capable of being formed - when the special case came to be put together and argued, on the point my learned friend now makes, if we are wrong on him being in a business access area because the belief was there, if it is wrong that he was in business premises because, for a reason my learned friend has not been able to state why the road widening operation was not a forestry operation, he was in an access area because he was on the side of the road which gave you access to business premises.

So, on any view of those three scenarios, he was within the rubric of the Act and was arrested, charged and subject to the exercise of power under the Act, on the basis of a reasonable belief, which gives this Court a very sound and probably the only sound basis on which this matter can be approached.  It is no longer a question of objective fact.  It is the reasonable belief of the policeman. 

With Ms Hoyt the position is even clearer.  We do not understand how our learned friend says she was not on business premises because when given the direction she was in the coupe which was part of the permanent timber production zone and forestry operations were occurring in the coupe.  So, as far as we understand it, she was on business premises and the direction was given to her, again on the basis of a reasonable belief that she was on business premises.

So the fact that the police determined – and your Honours have heard how there is no fine‑line boundary between access and business premises, which is one of the problems of the Act.  Your Honours have heard already how this, being founded as it is, on reasonable belief, if this Court or another court were asked to find whether they were truly on business premises, a business access area or outside the ambit of the Act altogether, that Court would not be directing itself to the question which founds jurisdiction and power, which is the reasonable belief of the policeman, which may ultimately transpire to be wrong.

So we way that this question in truth is a distraction and the special case has been put together and the issue of standing has been dropped because the allegation that was initially made that they were trespassers has been taken out of the ring and Tasmania has accepted the exercise of power was – it has not put in issue that it was other than a valid exercise of power.  We have not put in issue the validity of the exercise of power. 

The question then raises fairly and squarely a fact situation that enables this Court to determine the case not on any hypothetical basis but on the real and substantive basis that we have always presented to this Court, that the pathway into the exercise of power of this Act is this reasonable belief scenario about a contravention that is about to occur.  So far from anything being hypothetical, as far as we can understand ‑ ‑ ‑

KIEFEL CJ:   You misunderstand, I think.  It is not being suggested that the special case ought to fail because it raises only a hypothetical question.  The difficulty presented by the way in which Tasmania appeared to be approaching it is that instead of a real factual scenario we were asked to proceed, as the Court has done in the past, on the basis that, while these plaintiffs may not have been subject to the Act there will be people in the future who are.  The difficulty is discerning, when you are talking about the reasonable belief of policemen who may be factually incorrect, that that factual scenario is not a solid one.

MR MERKEL:   Your Honour, the factual scenario that Tasmania put forward we say is irrelevant because power was exercised on the basis of them being subject to the Act and they were subject to the Act.  So putting aside ‑ ‑ ‑

KIEFEL CJ:   But we are not in the area of criminal prosecution.

MR MERKEL:   No, your Honour.

KIEFEL CJ:   We are trying to assess how the Act actually operates on people in particular areas.

MR MERKEL:   And, your Honour, what I have put to your Honours is a perfect example of the complexity of the Act operating which will rarely be clear or may often be quite unclear but the power is exercised, which is part of the factual scenario before you.  But there is nothing unrealistic or hypothetical about the situation.  We do emphasise - we understand Ms Hoyt was in the coupe, which was a business premises, so we do not quite understand what Tasmania is putting forward on that.

GORDON J:   Could I ask you about paragraphs 55 and 56 of the special case in that context.  Is that addressed to a Croome type question and, if it is, what are the facts and matters we are to take into account in dealing with that issue?  It talks about entry into the coupe as well as the forest, which themselves bring about a distinction having regard to the terms.

MR MERKEL:   I think it is a standing issue that it is addressing, your Honour.

GORDON J:   So, are they to come out of the special case book?

MR MERKEL:   Sorry?

GORDON J:   Are they to come out?

MR MERKEL:   I think so, your Honour.  Can I ‑ ‑ ‑

GORDON J:   I am just raising it because it begs the question about what it is we are to deal with in relation to 55 and 56 and on what basis we are to approach the question in terms of the factual scenario.

KEANE J:   Are we supposed to regard those paragraphs as an indication of an intention on the part of Ms Hoyt and Dr Brown that it is their intention that unless they are effectively prohibited by the Act they will continue to enter upon business premises in the forest?

MR MERKEL:   That is correct.  If they are lawfully able to, they would wish to do so.

KEANE J:   So this is asserting – is this the actual live question that gives rise to standing – that unless constrained by the Act this is how they would wish to conduct themselves, à la Croome v Tasmania?

MR MERKEL:   Yes, your Honour.  But, Croome – and that is what these two paragraphs were directed to when standing was in issue – but there is also the other aspect of Wragg’s Case which related to standing.  In Wragg, there was a challenge to section 92 in respect of certain, I think, potato regulations.  The potato regulations were repealed and it was argued in the High Court that the repeal meant there was no longer standing to bring the matter because the regulations under challenge had been repealed.  Their Honours dealt with it, very summarily, saying the plaintiffs were entitled to know if the regulations were valid because they could be regulated.

KEANE J:   Because what had been done might be repeated.

MR MERKEL:   Yes, and our first point on standing here, which we have set out in our submissions in reliance on Wragg, is that what had been done in respect of Dr Brown and Ms Hoyt would be repeated but that is not the point.  The withdrawal of charges after exercise of powers cannot take away the court’s jurisdiction any more in respect of standing and in respect of there being a matter - any more than the repeal of the regulations. 

So, initially, what Tasmania did is when they withdrew the charges they said no standing.  Of course, they have been subject – not only the exercise of power but were on bail.  So we say that the standing arises in two stark ways.  Paragraphs 55 and 56 – Croome - and the charges being brought and power being exercised which is enough to both give standing and create a matter.  So there is nothing hypothetical about it and that is the Wragg’s pathway to standing.

Tasmania, once it ceased to claim we were trespassers, agreed to take trespass out of the special case because the facts agreed did not have Dr Brown or Ms Hoyt as a trespasser when subjected to the exercise of power under the Act and the case has proceeded on that basis, as it did in Levy.  Justice McHugh did not pursue the trespass point in Levy because the case was conducted on the basis ‑ ‑ ‑

KIEFEL CJ:   All right.  I do not think we need to go any further. The Court will proceed upon the basis that you have indicated this morning.

MR MERKEL:   Thank you, your Honour.

KIEFEL CJ:   I am sorry; there is a question from Justice Gageler.

GAGELER J:   I just want to relate the facts fairly precisely to the statutory definitions.  Business premises are, relevantly, premises that are forestry land.  Section 5(1)(b) is the relevant definition of “business premises” - “premises that are forestry land”.  That takes us to the definition of “forestry land” in section 3, relevantly, “an area of land on which forest operations are being carried out”.  “Forest operations” are defined to mean certain sorts of work.  Given that in the facts concerning the two plaintiffs there was work being carried out, on what area of land was that being carried out for the purpose of the definition of forestry land?  Was it the entirety of the coupe or the forest?  What are we to understand about the land?

MR MERKEL:   I think, your Honour, what had happened was forestry harvesting was being conducted nearby where Ms Hoyt and Dr Brown were.  I think if your Honours look at the video you will see a machine close by and the police had indicated to Dr Brown that he was impinging on the operation of that machine conducting operations.  So that takes you to the definition of any related land clearing, land preparation, burning off areas.  The coupe area is a way of looking at the boundaries of the area where operations were being carried out.

GAGELER J:   It is one way.  There is something else called a harvest area.  There is the coupe area and there is the forest.  I just have to get a sense of what sort of dimensions we are talking about.

MR MERKEL:   The whole coupe is the area within which forestry operations will be carried out, including related land clearing, land preparation.  What is fairly clear is that the widening of the road was either a business access area or business premises, because the road was widened to give clearer access to where these machines were being worked.  To that extent, by extending into the reserve, it did not disentitle it from being a business access area.

GAGELER J:   You say the whole coupe is a business area.

MR MERKEL:   We would say, on the face of it, it would appear to be ‑ ‑ ‑

MR GAGELER:   Or business premises, I am sorry.

MR MERKEL:   ‑ ‑ ‑ whole coupe.  Yes, your Honour, the whole coupe sets the boundaries of the business premises because that is the area within which business operations are being conducted.  But I want to give a little consideration to whether, if no operations are being conducted, the whole coupe is business premises for the purposes of the Act when nothing is happening there.

KIEFEL CJ:   Can I just ask you with respect to that:  in paragraph 9 of the special case it says that “part of the forest to be cut down”, which I take to be that part of the forest which was part of the forestry plan that is certified, was part of the forestry coupe, not the whole of it.  That tends to indicate that the operations in question were part of the forestry coupe, does it not, not the whole?

MR MERKEL:   That is why I wanted to consider by reference to these definitions whether business premises are premises where an operation is being ‑ ‑ ‑

GORDON J:   May I add one factor to that?  The definition of “forest land” is forest operations are being carried out.  So it would seem to be something which is not static.

MR MERKEL:   Correct.

GORDON J:   So that it may very well be, given paragraph 9 of the special case, that it is not the whole of the coupe. 

MR MERKEL:   One would have to go to the management plan because, for example, certain areas of the coupe were not permitted to be used for forestry operations. 

GORDON J:   That is my point.

MR MERKEL:   If we could give your Honours a more precise answer in reply, it is correct that what is intended is business premises be where forestry operations are being carried out having regard to its broadened definition.  It may be, and it probably is, that, for example, those waterway areas and areas that were not permitted to be the subject of forestry operations within the coupe could not be business premises.  But then you have the business access area, and the business access area does not, of course, have to be in the coupe.

One of the points we make about Dr Brown – I do not want to go backwards - but even if he was in the reserve that was an access area because he was about a metre away from what the police ultimately finished up calling business premises.  Can we deal with this more precisely in reply, if we might?

KIEFEL CJ:   Yes.  We will proceed upon the basis, such as it is, as has been explained.  Yes, Mr Solicitor.

MR O’FARRELL:   Your Honours, if I can start by attempting to answer Justice Nettle’s question yesterday about section 24 of the Forest Management Act.  Justice Nettle, that is effectively a provision which operates in relation to a restricted aspect of the definition of “forest road” in section 3.  It is limited to forest roads on land that has the status of permanent timber production zone land.  So the definition makes it something more limited than a forestry road in the definition as it is used in other sections in the Act.

Having regard to the definition of “forest road” in section 3, section 24 appears to apply to, firstly, roads that are constructed or maintained by or for the forest manager inside, but not outside, permanent timber production zone land; and, secondly, any other road on permanent timber production zone land, which excludes State highways, subsidiary roads and local highways - as a result, that excludes most, if not all, public roads from the equation - and, thirdly, other roads on Crown land and managed by a person for the purposes of timber production, provided they are on land with the status of permanent timber production zone land. 

So, the clear indication, we say, from section 24 is that forest roads are not public roads.  Its purpose is to allow forest roads to be become public roads, either under the provisions of the Roads and Jetties Act 1935 or the Local Government (Highways) Act 1982.

So, the upshot of all of that, and I think this then goes to answer Justice Keane’s question about public roads yesterday, is that a forest road on permanent timber production zone land is subject to the same limitations and, to the extent that section 13 might create a right to be on or operate in a way such that the public has access to permanent timber production zone land, they would have access to those roads for the purposes of the Forest Management Act provided that that is not incompatible with the Forestry Corporation’s operations.  However, we would say that, consistent with section 13, where the operations of Forestry Tasmania are incompatible with public access and the issue is foreclosed, that is, Forestry Tasmania has a right to exclude people.

If I can then attempt to answer Justice Gageler’s question about trespass on Crown lands, which was put to me yesterday.  I believe, your Honour, that the Commonwealth has passed up a note which addresses this issue in part.  Can I just give your Honours also some references - firstly, in the Crown Lands Act 1976 (Tas), section 11 relates to bailiffs on Crown lands and gives them, for example, under subsection (2)(a) the ability to:

prevent intrusion, encroachment and trespass on Crown land or assigned land –

So, clearly the Crown Lands Act recognises that there could be a trespass on Crown lands. So far as our researches go, we have found that an ancient case, Wiseman v Ogilvie (1843) NSWSupC 22 ‑ I think that is the medium neutral citation on It was a judgment of the New South Wales Court of Appeal consisting of Chief Justice Dowling and Justices Burton and Stephen and there is a faint reference ‑ I would not put it any higher than that – it was a case in which a preliminary point was taken that the question of trespass ought not to be considered until the matter had been heard by the Commissioner of Crown Lands.  The Court found that that was the correct way to go about the case but the Chief Justice in the judgment for the whole Court said:

The merits of the case may have been with the plaintiffs, but on that account we are not called upon to given any opinion.

Clearly the judges in that case had thought that perhaps the trespass on Crown land was open.

There is another case, Borthwick v Bingle which is 1847 – your Honours, I will give you the citation for that in due course.  That was a case which related to Crown lands in possession of a plaintiff, not in possession of the Crown, but which were also subject to a de‑pasturing licence from the Crown and it was held that the licence trumped the plaintiff’s right of possession.  We do not say that advances the question all that far. 

However, in a case in the Northern Territory called Step v Hinton [2012] NTCA 3, the Court of Appeal in that case considered it a case under section 7(1) of the Trespass Act (NT) in relation to a person who was claiming possessory title – he had not quite got to the limitation period but he was asserting that he had a better title than anyone else and claimed that the Crown, in coming onto the land to eject him, or the Crown’s agent coming onto the land to eject him was trespassing.

The Court of Appeal held that the Crown was not trespassing and that in fact he was the trespasser on Crown lands by asserting possessory title against the Crown with better title.  The Crown Lands Act in the Northern Territory prevents any claim being made against the Crown for adverse possession.  That is the extent of our researches, your Honours.

EDELMAN J:   The essential point, or the core of the point here is the point that is made by Justice Windeyer in Randwick v Rutledge 102 CLR at 74, that subject to specific limited exceptions there is no general public “ius spatiandi”.

MR O’FARRELL:   Yes, correct, if your Honours please.  Finally, or not quite finally, in dealing with matters that arose yesterday, could I, your Honour Justice Bell, address the example about hunting and shooting.  Your Honour, we say that if we set aside just for the moment business access areas and confine attention to business premises, which are of course areas of land which are in the lawful possession of a person, we say that our case says that the distinction between hunters and shooters and protesters is really one without difference because no constitutional issue arises in relation to - implied freedom arises in respect of a person who is unable to assert a right or entitlement to be on that land in order to carry out that activity.

So far as that is concerned, the hunter and shooter might be there on the land and they might be ejected and, perhaps, not under the Workplace Protesters Act ‑ ‑ ‑

KEANE J:   But under the Forest Management Act.

MR O’FARRELL:   Yes, your Honour.

KEANE J:   But if that were to happen, they might be fined $200?

MR O’FARRELL:   Yes, your Honour. 

KEANE J:   Is not what is being put against you, though, that if they were not just common garden variety trespassers - hunters and shooters – if they were there engaging in political communication they would be exposed by the Workplace Act to much higher fines and penalties of imprisonment.

MR O’FARRELL:   It would.

KEANE J:   In that sense it is said that because of that very fact, the very fact and the sole fact that they were engaging in political communication they are subject, not to the forest management regime but to this regime that imposes much greater penalties for - precisely for the act of political speech.  That is really one way in which the case against you is put.

MR O’FARRELL:   We would accept that, your Honour.  If the implied freedom – I am not sure that I am going to put this entirely comfortably – but if the implied freedom, as it was understood in Levy, effectively bites the Act when it relates to business premises, whether there is any legislative restriction or whether there is anything the person who is trespassing on the land can do to invoke the implied freedom in order to defeat the Act.  That is the only point we make about this, so far as business premises go.

So far as business access areas go, we make a different point and it is that there is really no – we would submit that it is unlikely in the extreme that a hunter or a fisher would find themselves on a business access area asserting a right to conduct that activity in a way that hinders, prevents or obstructs business activity.  They are more likely, with respect, to be found in the woods or by a stream depending on what their activity is proposed. 

So, in practical terms, it is unlikely that you would find a hunter or a shooter standing at the access to a business premises asserting that they had a right to fish or hunt.  We deal with it in that way, just on a practical level.  The Borthwick v Bingle citation, your Honours, is (1847) 1 Legge 384.

Your Honours, last night I was addressing our outline from paragraphs 3 to 5.  We relied on the purposes in our written submissions at paragraph 49.  We say that each of the purposes identified there are purposes within a system of responsible government and we say that that arises in much the same way as his Honour Justice Dawson said in Levy at page 608 that it is a legitimate purpose in order to advance the interests of the system in the interests of an ordered society.

I was then dealing with the circumstances within which the Act came into existence.  It is following an election at which it was an election policy.  The second reading speech which my learned friend has kindly passed me his copy said – there are a number of references to the government’s commitment that it had made but under the conclusion the following was said:

This Bill is consistent with the policy commitment that the Government presented to the Tasmanian people at the last State election.

But the government is resolute in deterring:

protests that seek to intentionally shut down and harm Tasmanian businesses –

and is committed to ensuring that Tasmanians are able to –

go to work and run their businesses in a safe manner free from interference and disruption -

Now, in my submission, your Honours, the circumstances of the Act immediately following – effectively being legislated for, immediately following a State election, perhaps we cannot put it as high as a mandate but it is certainly a policy that was put squarely before the people at the election and the government carried the day.

KIEFEL CJ:   How does that assist us, Mr Solicitor?

MR O’FARRELL:   Well, in a system of responsible government, your Honour, we submit that the final say ‑ ‑ ‑

KIEFEL CJ:   The question is whether it is responsible.

MR O’FARRELL:   Well, your Honour, it is responsible in the terms – in the systemic term – that is, that ‑ ‑ ‑

KIEFEL CJ:   The question is whether or not the legislation that is passed is compatible with the system of responsible government.

MR O’FARRELL:   Well, yes, your Honour, I understand that but we say that this is a factor that can be taken into account in assessing whether or not there is a legitimate purpose because ‑ ‑ ‑

GAGELER J:   The fact that the majority of electors are in favour of silencing a minority of electors.

MR O’FARRELL:   Well, your Honour, with respect, that puts the legislation – the legislation’s operation far too widely.  The legislation does not operate to silence a minority.

KIEFEL CJ:   Perhaps you might be best moving to your next point.

MR O’FARRELL:   Perhaps, your Honour, but – I will move to my next point.  Your Honours, that then brings us to paragraphs 6 to 9 of our outline and this really relates to the issue of a rational connection between purpose and means and ends.  If I can just – I really do not want to labour the Act too much further but if I can just make the following points. 

We would submit that if your Honours accept our analysis of the legitimate purpose then your Honours will see, firstly, in section 6(1) to (3) a realisation of that purpose – a restrained realisation of that purpose – on the basis of both a positive act and a relevant intention. When one goes to section 11(1) and (2), we would submit, contrary to the plaintiff’s submissions yesterday, that these powers are not extraordinary. They reflect what we would submit is a well‑recognised formula for police to exercise their powers ‑ that is, a reasonable belief, and we refer the Court to George v Rockett about that.

KIEFEL CJ:   But they are not directed to the whole of the population.

MR O’FARRELL:   That is correct.

KIEFEL CJ:   Police powers of this kind are usually directed more generally.

MR O’FARRELL:   They are directed, your Honour, to people who would contravene the Act by undertaking the relevant protest activity, in much the same way as powers of arrest are directed to those who decide to steal something.

KIEFEL CJ:   But there is only a particular class of person who can contravene the Act.  That is the point put against you, is it not?

MR O’FARRELL:   No, your Honour.  I submit that that is not the case.  It is a question of a person making a conscious decision, in terms of our purpose, to engage in conduct which would amount to interrupting business activity.  We submit that that standard of reasonable belief is not an arbitrary standard and it is well recognised.

KIEFEL CJ:   But put at a simple level, if you are not a protester, as defined by the Act, you are not subject to any of these police directions.  You might be subject to direction under the Forest Management Act but you are not subject to this Act.

MR O’FARRELL:   Correct, your Honour.  That is correct.  I go back to the answer to that in respect of Justice Bell.  The implied freedom has nothing to say about people on another person’s premises asserting a personal right to protest.

KIEFEL CJ:   But this Act will operate, will it not, not only in relation to land in respect of which there might be a trespass?  It will operate with respect to land under the Forest Management Act, in respect of which there might otherwise be access unless there is something to prevent that access.  It will operate with respect to access points where there is no trespass but the question would otherwise be whether or not there is a nuisance.  A person standing there, depending on what they were doing, may or may not be a nuisance.  It will operate with respect to public roads, where people usually move around.  The difficulty is that the Act is going to have a much wider operation than just the scenario that you are focusing upon.

MR O’FARRELL:   Your Honour, if I can attempt to answer it this way:  the answer to the width of the operation of the Act is to be found, we would submit, in the definition of “business access area”.  We made the submission yesterday, your Honour, that that definition is appropriately limited.

KIEFEL CJ:   That is probably best focused – as I think Mr Merkel indicated, the focus of the plaintiff’s case is, I think, narrowed to forestry areas.  If we take away the business area where there might be machinery and there are large questions, the access area perhaps presents the real questions which might arise here in relation to a protest – because it is not a black and white trespass; it is not necessarily requiring permission.  The question would simply be whether or not a person was otherwise guilty of something amounting to a nuisance, a real obstruction.

MR O’FARRELL:   That is correct, your Honour.  We accept that.  It is at that point where access is being gained for the purpose of business activity.  The purpose of focusing on it on a business access area is to vouchsafe the conduct of activity on the business premises, effectively, so that people can get in and out.  It is limited to that.  It is for no other purpose. 

So that a protester standing, as I mentioned yesterday, on the footpath or on the verge of the road, say a forestry road where a truck can get by – so they stand on the verge and they make their point in whatever way they choose; they make their point that the environment is being destroyed in a way that they would want the public to see – then the Act says nothing about that conduct. 

What it says is that they cannot do things like form a line of human chain across the road or throw objects which might deter people from coming in.  They cannot do a physical act which would prevent a person who required access to or egress from the business premises to lawfully exercise that right to access or egress.  That is where we say the Act operates, and that is only where it operates.

BELL J:   If you look at the purposes of the Act on which Tasmania relies in its defence to the amended statement of claim – this is at page 127 of the special case book, in paragraph 44 – six purposes are identified.  Four of them have nothing to say about protesters.  They are purposes concerned with ensuring the safety of business operators in business premises, the maintenance of economic opportunities for business operators, the protection of business operators going about their business activities without disruption, and the preservation of public order.

The first two purposes incorporate the notion of protesters, ensuring that protesters do not do damage and ensuring that protesters do not impede, hinder or obstruct, but it is just the question of - if the purpose of the legislation is to ensure that business operators can exploit the economic opportunities of their business activities without disruption it is not entirely clear why the target is confined to people engaged in protest as distinct from other ways in which people may interfere with the exploitation of business opportunities in business areas and business access areas by business operators.

MR O’FARRELL:   Yes, your Honour.  The Act is perhaps unashamedly open about the purposes to which it is directed and as I submitted to your Honours yesterday, the existence of a protester, engaging in political communication, is a sufficient but not necessary condition and I think I put appropriate qualifications around that.  It is more likely certainly that there will be political communication engaged in.

So, we come to this, your Honour.  This is the point where we would submit that the Parliament has a legitimate legislative choice having regard to the conditions it finds prevalent in its community to determine who (a) requires the protection of the Act, and (b) who should be its subject.

KIEFEL CJ:   But here, we are dealing with a case which says that the freedom of communication necessary for responsible government is being unduly burdened.  It is conceded by Tasmania that there is some burden upon the freedom understood more widely, not as an individual right.  But what we do not see in the special case are facts which indicate some factual, some basis for targeting protesters in relation to say, forestry incidents.

Now, there is certainly a history of protests referred to but unlike say, in the factual background in the McCloy Case where there were reports and specific instances of corruption upon which one could say the legislative purpose was directed, here there is a dearth of information for the Court to understand that if there is said to be more than one purpose or an overriding purpose to protect businesses in addition to targeting protesters, how the Court is to discern that the purpose is not as narrow as the plaintiff has put it to be.

Your Honours, perhaps I had better go back to page 127.  As I submitted, your Honours, the Act is quite unashamed about how it deals with the problem.  We would say that its focus is on activity which the Parliament has identified will, as the second reading speech says, interrupt business activity and each of the purposes to which even (i) and (ii) of paragraph 127 focus, or have as their focus the carrying out of business activities in a space – in the area in which there is an immunity, effectively, from protest action. 

That is the Parliament says in order for people in mining, forestry, other agricultural and horticultural pursuits who may be the subject of protest activity which impedes them in going about their business, then they are deserving of protection.  That, we say, is the focus of the Act.  That is the limited way in which these provisions are engaged and put into operation.  It is only, your Honour, in that it is an identifiable geographical area, in any given case, where there will be a piece of land, so much of a piece of land which is required for reasonable access to business premises.

KIEFEL CJ:   Mr Solicitor, are you able to identify in the special case, the problem that you say the legislation addresses? 

MR O’FARRELL:   Only by reference, your Honours, to the paragraphs – 64 to 67 and, your Honour, we also rely on the second reading speech. 

KIEFEL CJ:   Yes.

MR O’FARRELL:   But we also rely on the text of the Act itself, your Honour.  We say that it is a highly limited response to what can be perceived in cases involving protest activity which either does have or potentially has the effect of interrupting a lawful business activity.  We say that is a fair legislative response and a restrained legislative response, having regard to the freedom.

Your Honours, I addressed section 8(1)(b) yesterday. I simply mention that section 7(1) and (2) were put into issue at the end of my learned friend’s address yesterday. It is now put to the Court that it is not a fair legislative response, if I can use those words again, to potential protest action that somebody’s property, either premises or personal property, should be protected from this sort of activity in cases where, relevantly, there is a mental element required to put that act into effect, that is, required to do a physical act which would be likely to cause damage to premises or a business‑related object.

We simply say that section 7(3) and (4) are addressed to intimidatory conduct and conduct which has the propensity to distract and disrupt business activities in operation.  All of it goes, in our submission, to the legitimate object of the Act to keep a person’s business operating free from this activity.

So far as the arrest provisions go, your Honours, we submit again that these provisions are powers which are well understood by the Court.  Firstly, they are conditioned, as is the power of direction, on somebody being physically present on business premises or in a business access area and then they repose in the police officer a necessity to form a reasonable belief – again, the well‑worn standard. 

We say that they are not extraordinary powers.  They are unremarkable and they are, with respect, a perfectly rational way of providing the police with appropriate procedures to administer the Act.  We would submit that the compensation provisions are again, in cases where somebody damages personal property or real property, unremarkable. 

We also rely, your Honours, in completion of this aspect of the case, on section 6(5) of the Act that a person is - we say that they are entitled to go past a business premises which recognises that a business premises will be in lawful occupation of somebody or they can go along a business access area once a day at a reasonable speed in order to voice their opposition and communicate politically about the perceived issue.  We say all of those of – section 6(5) has an ameliorating effect which we say is a rational response to the freedom.

Your Honours, now can I turn to the slightly more difficult issue of the majority judgment in McCloy?  Your Honours, it is our submission that McCloy should be reopened.  We say that with the greatest respect.  We have outlined, in our written submissions, at paragraph 54 to paragraph 61 our reasons for making those submissions.  We cannot really elaborate on the matter further.  We would submit that those reasons are sufficient.  We also call in support of that submission, the submissions of the State of Queensland at paragraphs 10 to 13. 

We would submit the issue of proportionality, your Honours, if I can just address it briefly, is one – we do not say that proportionality does not exist as a concept in Australia, but we say that there are two aspects of it which call for some attention because of their close association with other constitutional settings which require, in our submission, attention when compared to the system of representative and responsible government.

Your Honours will understand from our outline how we put this aspect of the case overall.  We submit that, firstly, necessity can only really be tested when regard is had to not only the damage that might occur to the implied freedom but how that damage resonates throughout the whole system which we say is larger than the freedom and that is the system to be protected.

In electoral regulation cases – if I can lump them into that broad category – ACTV and McCloy – it may be easy to see why there could be obvious and compelling alternatives which would have less impact on the system, merely because electoral regulation cases strike at the very heart of the issue of how the people will elect their representatives and respond in that endeavour to political communications. 

In a case like this, your Honours, bearing in mind that your Honours will have to decide what the impact of this particular legislation might be – but in a case like this, we would submit if you accept our formulation of the purpose then it is really – it is not a direct assault on the freedom.  It is more a rippling effect of how it will impinge on the freedom and we say at the margins and then how that will, as I have submitted, resonate with the whole of the system. 

Considerations such as what is a reasonable legislative response in an ordered society we would say are matters which are significantly different than simply a response to what could be described as a more direct attack on the freedom itself or a blatant and direct infringement of the freedom.  We say that is not this case.

There are two points that my learned friend made yesterday about necessity, I think under the heading of “Necessity”.  The first ‑ which is at transcript page 52, line 2326 – is a contention that there is some historical what was suggested as a “trade‑off” between the rights of people engaging in business and those seeking to engage in political communication.  We, with respect, reject that contention.

We say that if there was such a trade‑off the Act says nothing about protest activity unless it is on business premises which, we submit, the freedom does not impact on or a business access area which, as we have described to your Honours, is a limited geographical space.

The second point that my learned friend made was effectively that a contention that somehow the residue of practical alternatives put to your Honours ‑ you may know about alternative legislative provisions – even though it was insufficient, at least in his first analysis, to amount to an obvious and compelling case for an alternative, that the requirement should somehow cascade into the next level of proportionality and become part of the balancing.  We submit that while there might be some support in European jurisprudence for that possibility, it has enjoyed no such operation in Australia to date and it should not be accepted.

When we come then, your Honours, to balancing aspects – and here we are at paragraph 17 of the outline – firstly, your Honours, in the alternative case we would rely on our submissions at paragraphs 74 to 85, but for the purpose of the immediate problem we simply say that the point has not been reached with this Act where it requires any balancing exercise.

We would submit that once you pass through the hoops which the Lange analysis recognises – so you accept that there is a burden and then you establish a legitimate object and you establish that there is a rational connection – the question about whether or not there is a balancing exercise to be done should only arise, and the Commonwealth makes this point far more eloquently in its written submissions than I can, in the most egregious of cases where it is plain, with respect, that the burden of the Act is so great, perhaps in the sense that it has not been understood by any of the other possible tests that might arise in order to find out whether it is reasonably appropriately adapted, in much the same way as perhaps the final condition in how House v The King operates – that we cannot really put our finger on this, but there is just something wrong and it is having an effect; we can see the effect and we are not quite sure about the cause, then, in my submission, that may be an appropriate case for a balancing exercise to be done. 

But we would say in respect of this Act that we have not nearly reached that point and we rely on our submissions about the purpose of the Act and its rational operation in support of that contention.

Your Honours, I will just lastly mention, before I sit down, the question of potential severance, seeing as it arose yesterday.  Were your Honours to come to the conclusion that perhaps the Act in its application to forestry was to be invalid then your Honours would need to look no further than the definitional provisions in section 3 as to forest operations, forest products, forestry land – paragraph (a) of the definition of “owner”, the definition of “process” and the definition of “timber” – and also to section 5(b), which specifically mentions “forestry operations”.  That is how the Act engages the question of forestry.  As to the second point ‑ ‑ ‑

KIEFEL CJ:   What are you seeking to convey by that, that severance is not ‑ ‑ ‑

MR O’FARRELL:   No, your Honour.  We are saying severance would be permissible, but those are the relevant sections that your Honours would

need to consider.  We are not urging by any means that your Honours should sever anything.

KIEFEL CJ:   No, but this is your alternative position if the Court reaches that position.

MR O’FARRELL:   Yes.  The key is the definitional provisions.  Were your Honours to have some difficulty about my learned friend’s – well, not “difficulty” but were you to accept that the scope of section 8(1)(b), which relates to the four‑day period were to alleviate any issue then we would submit that that could easily be severed without doing violence to any other provision in the Act.

KIEFEL CJ:   On what basis could it be severed?

MR O’FARRELL:   Because, your Honour, section 8(1)(a) would remain.  A person could still contravene the Act, could still be directed to leave - would not be permitted to remain.  They would be permitted to come back.  However, if a direction was given under 11 – if a requirement was added to the direction under 11(6) then they may be caught by section 6(4).  We note the ameliorating effect of section 6(5).  There is nothing further, your Honours.

KIEFEL CJ:   Thank you, Mr Solicitor.  Solicitor for the Commonwealth.

MR DONAGHUE:   Your Honours, the Commonwealth’s oral submissions will focus on the issues of constitutional principle that arise from the decision of this Court in McCloy.  Our starting point is that it is clear from the judgments of every member of the Court in McCloy that the holding in that case does not alter the questions that have to be asked in order to determine whether an impugned law contravenes the implied freedom.

So, to adopt the words of the plurality at paragraph 23, that I do not need to take your Honours to, the plurality there say Lange is the authoritative statement of the test to be applied to determine whether a law contravenes the freedom and one finds words to the same effect in the judgments of Justice Gageler at paragraph 98, Justice Nettle at paragraph 220 and Justice Gordon at paragraphs 306 and 311.

It follows from the fact that McCloy does not change the questions from Lange that it does not jettison the reasonably appropriate and adapted formula used in Lange and, indeed, those words are used as part of the third stage of the structured test set out in McCloy.  That formula, the reasonable, appropriate and adapted formula, is a formula that this Court has developed over many years in an endeavour to capture or identify the line between legitimate judicial scrutiny on the one hand, and impermissible judicial encroachment into a legislative function, on the other.

KIEFEL CJ:   What is the test for it?

MR DONAGHUE:   Your Honour, rather than trying to answer that immediately, can I develop the answer because ‑ ‑ ‑

KIEFEL CJ:   Certainly, I am sure you will come to it.

MR DONAGHUE:   ‑ ‑ ‑ that is really the whole weight of the submissions that I am going to make to your Honours now.  But the endeavour was to recognise that there is a line and to capture a formula that will give effect to it and that point was made in very clear terms by Chief Justice Gleeson in Mulholland v Australian Electoral Commission (2004) 220 CLR 181. If I could ask your Honours to go to that briefly and if your Honours turn then to page 197 in paragraph 33, his Honour the Chief Justice uses almost exactly the words that I just used. The last five lines at paragraph 33:

For a court to describe a law as reasonably appropriate and adapted to a legitimate end is to use a formula which is intended, among other things, to express the limits between legitimate judicial scrutiny, and illegitimate judicial encroachment upon an area of legislative power.

That is picking up an idea his Honour expressed back on the same page in paragraph 32 in the second sentence:

Judicial review of legislative action, for the purpose of deciding whether it confirms to the limitations on power imposed by the Constitution, does not involve the substitution of the opinions of judges for those of legislators upon contestable issues of policy.

His Honour then goes on, in paragraph 34 through to about 39 to discuss proportionality or language of proportionality and he identifies in paragraph 34 that it has both advantages and disadvantages; an advantage being that it is:

used in other jurisdictions in similar fields of discourse –

the disadvantage being that because of that, it may import sub silentio considerations of a kind foreign to a traditional Australian constitutional analysis.

KIEFEL CJ:   Of course the phrase “reasonably appropriate and adapted” is borrowed as well from a slightly different context.

MR DONAGHUE:   I accept that that is so, your Honour, and ultimately Chief Justice Gleeson’s point at paragraph 39 was that it did not actually matter what word was chosen provided that focus is maintained directly on what the question is and why it is being asked, what the task that is being undertaken is.  So his Honour says on page 200 in the last five or six lines of paragraph 39:

I have no objection to the use of the term proportionality, provided its meaning is sufficiently explained, and provided such use does not bring with it considerations relevant –

That, of course, is what the plurality judgment in McCloy was directed to do, sufficiently explaining and identifying the nature of the test.  So while we start by emphasising that Lange sets the test and that the test recognises the line, and that it is important that if there is a change in language the change in language does not change the test, we do not suggest that the plurality in McCloy were not alive to that set of considerations and, indeed, one sees recognition of some of those matters in McCloy itself. 

If your Honours could turn to McCloy 257 CLR 178, you see that perhaps most clearly in paragraph 4 of the reasons. Paragraph 2 sets out the structure proportionality test, and I will not take your Honours through it, but at paragraph 4, the plurality stress, in my submission, that the utility of the criteria as a tool does not involve importing into the Australian constitutional context the same criteria applied in other jurisdictions, does not involve acceptance of the way the criteria have been applied as correct in other jurisdictions and your Honours said in the last sentence:

The utility of the criteria is in answering the questions defining the limits of legislative power relevant to the freedom which are derived from Lange.

So it is evident that there was no intention to change any of that.  There are then a number of passages a little later in the plurality judgments, starting perhaps most clearly at paragraph 68 on page 213, where the point is made that the proportionality analysis summarised in paragraph 2 of the judgments is advanced as an analytical tool.  So in paragraph 68, the last five lines, it is said:

The difference between the test of compatibility –

which is step 2 in McCloy:

and proportionality testing –

step 3:

is that the latter –

proportionality testing:

is a tool of analysis for ascertaining the rationality and reasonableness of the legislative restriction, while the former is a rule derived from the Constitution itself.

So that distinction between rules derived from the Constitution on the one hand and tools of analysis to be deployed in answering though that question is one that is found in a number of places in the plurality judgment. One sees it there, in paragraph 72 over the page on 215. In the middle of paragraph 72 it is said:

Nevertheless, it is not to be expected that each jurisdiction will approach and apply proportionality in the same way, but rather by reference to its constitutional setting and its historical and institutional background.  This reinforces the characterisation of proportionality as an analytical tool rather than as a doctrine.

In my submission, that is the same distinction.  In paragraph 77 of the plurality judgment there has been a recognition, by reference to the quotation from the former member of the Federal Constitutional Court of Germany, that proportionality reasoning could do two things.  It said three lines down in the quote:

Now lastly, just to deal with one aspect of the submissions that have been made about the structured proportionality approach in McCloy, a number of those submissions have questioned the wisdom or application of the steps outlined in paragraph 2 of the joint reasons and the concern seems to be that those steps will involve a refined kind of analysis unfamiliar to the Court and, in our submissions, the plaintiffs’ case does not depend on

any such refined analysis unfamiliar to the Court.  First, that is because we say that we are in the territory of an Act that imposes a direct or discriminatory burden and on the authorities that must be met with a compelling justification.

We have set out the authorities for that at paragraph 19 of our outline of oral submissions.  One might address that at the necessity stage of McCloy, for example, by perhaps – I am not sure that it is appropriate to talk about a reversal of onus but when one looks at, say, Chief Justice Mason in North Eastern Dairy, when he talks about reasonable necessity, his Honour says – I cannot remember the statement in that case which imposed a discriminatory burden but he talks about that State not having satisfied him of the reasonable necessity of the measures. 

So that would be one approach to fit compelling justification within the McCloy steps, or again it could be at the balancing stage because one of the plaintiffs’ complaints is the absence of any demonstration of what might be termed a pressing social need for the measures in this Act.

Again, just returning to the familiar forms of analysis in which proportionality might fit, it might come up at the purpose stage, in the sense that it is a recognised function of proportionality to understand whether the putative purpose is in fact the true purpose.  We have set out authorities for that at footnote 7 of our reply submissions.  So it has got a recognised role there. 

Lastly, your Honours, if I could finish with an observation made by your Honour Justice Keane in Unions, which, with respect, we found particularly illuminating when looking at this Act.  It is the passage at paragraph 141, where your Honour said what the second Lange limb contemplates is:

a calibrated balancing of legitimate ends –

In our submission, when one looks at the Protesters Act, that calibrated balancing is absent.  May it please the Court.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns until 10.15 am tomorrow.

AT 4.21 PM THE MATTER WAS ADJOURNED