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Brown v Hariss

Brown v Hariss

Case [2025] TASSC 32 12 June 2025

Guarantee of Freedom of Conscience

Criminal Law

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[2025] TASSC 32

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Brown v Hariss [2025] TASSC 32
PARTIES:	BROWN, Robert James
v
HARISS, Constable Debra
FILE NO:	2453/2024
DELIVERED ON:	12 June 2025
DELIVERED AT:	Hobart
HEARING DATE/S:	3 and 4 April 2025
JUDGMENT OF:	Cuthbertson J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Applicant found guilty of trespass on permanent timber production zone (PTPZ land) – Where the magistrate found permission to enter and remain on PTPZ land had been lawfully withdrawn pursuant to s 22(3) of the Forest Management Act 2013 (Tas) – Where the magistrate found the applicant did not have a reasonable excuse for remaining on land based on an erroneous belief he was on land that was outside the logging coupe – Where the magistrate found the applicant did not have a lawful excuse for remaining on the land derived from the guarantee of freedom of conscience pursuant to s 46(1) of the Constitution Act 1936 (Tas) – Findings of the magistrate reasonably open – A magistrate acting reasonably could have found the complaint proved.

Aust Digest Magistrates [1349]

Statutes – Acts of parliament – Interpretation – Particular words and phrases - Constitution Act 1936 (Tas) –
Section 46(1) - Freedom of conscience and the free profession and practice of religion guaranteed to

every citizen - Meaning of "freedom of conscience" – Meaning of "subject to public order and morality".

Aust Digest Statutes [1086]

Legislation cited:

Australian Constitutions Act 1850 (Imp) (13 & 14 Vic c 59)
Charter of Human Rights and Responsibilities Act (2006) (Vic)
Constitution Act 1936 (Tas)
Constitution of Ireland
European Convention for the Protection of Human Rights and Fundamental Freedoms
Forest Practices Act 1985 (Tas)
Forestry Management Act 2013 (Tas)
Human Rights Act 1998 (UK)
Human Rights Act 2004 (ACT)
Justices Act 1959 (Tas)
Police Offences Act 1935 (Tas)
Roman Catholic Relief Act 1829 (Imp) (10 Geo IV c 7)

Cases cited:

A M v Refugee Appeals Tribunal [2014] IEHC 388
Abortion Services (Safe Access Zones), Reference by the Attorney General for Northern Ireland [2022] UKSC
32; [2023] AC 505
Attorney-General's Reference (No 1 of 2022) [2022] EWCA Crim 1259, [2023] KB 37
Brown v Tasmania [2017] HCA 43, 261 CLR 328
Coleman v Power [2004] HCA 39, 220 CLR 1
Cooper v Commissioner of Income Tax for the State of Queensland (1907) 4 CLR 1304
Corneloup v Launceston City Council [2016] FCA 974
Ellis v Atkinson [1998] 3 VR 175
Johns v Australian Securities Commission [1993] HCA 56, 178 CLR 408
Kovalev v Minister of Immigration and Multicultural Affairs [1999] FCA 557, 100 FCR 323
Magee v Delaney [2012] VSC 407, 39 VR 50
Magee v Wallace [2014] VSC 643
Mark v Henshaw (1998) 85 FCR 555
McGee v Attorney-General [1974] IR 284
Motor Accidents Insurance Board v Young [2011] TASSC 86, 20 Tas R 89
Murphy v Independent Radio and Television Commission

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Hariss

Details

AGLC: Brown v Hariss [2025] TASSC 32
Case: [2025] TASSC 32
Decision Date: 12 June 2025

CaseChat Overview and Summary

In the matter of Brown v Hariss, the appellant, Mr Brown, contested the conviction of trespass on permanent timber production zone land in Tasmania. Mr Brown was found guilty by a magistrate and subsequently sought a review of the decision. The nature of the dispute was rooted in the interpretation and application of sections of the Forest Management Act 2013 (Tas) and the Constitution Act 1936 (Tas). The court was tasked with determining whether the magistrate's findings were reasonable and if the complaint of trespass was properly proven.

The primary legal issues before the court were whether the magistrate correctly determined that the appellant's permission to be on the permanent timber production zone land had been lawfully withdrawn and whether the appellant had a reasonable or lawful excuse for remaining on the land. Specifically, the court had to examine the validity of the magistrate's decision that the appellant's belief that he was on land outside the logging coupe did not constitute a reasonable excuse and that the guarantee of freedom of conscience did not provide a lawful excuse under the circumstances.

The court found that the magistrate's decision was reasonable and properly based on the evidence presented. The court held that the magistrate's findings were open to them, as a reasonable magistrate could have concluded that the appellant's permission had been lawfully withdrawn and that he lacked a reasonable or lawful excuse for his presence on the land. The court dismissed the appeal, affirming that the magistrate's findings were within the bounds of reasonableness.

As a result of the court's decision, the appeal was dismissed and the original conviction for trespass on permanent timber production zone land was upheld. Mr Brown's motion to review the magistrate's decision was unsuccessful.

Orders