Brown v Hariss
[2025] TASSC 32
•12 June 2025
[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production zone (PTPZ land) – Where the magistrate found permission to enter and remain on PTPZ land had been lawfully withdrawn pursuant to s 22(3) of the Forest Management Act 2013 (Tas) – Where the magistrate found the applicant did not have a reasonable excuse for remaining on land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 [1997] IEHC 71; [1999] 1 IR 12
Phillips v Arnold (2009) 19 Tas R 21
R v AM [2010] ACTSC 149
R v Bacon [1977] 2 NSWLR 507
Taikato v R [1996] HCA 28; 186 CLR 454
Traynor v McCullough [2011] TASSC 41
Webster v White [1991] TASSC 75
Xiong v McCarthy [1994] TASSC 77
REPRESENTATION:
Counsel:
Applicant: K Foley SC, J R Murphy Respondent: L Fox
Solicitors:
Applicant: Fitzgerald & Browne Respondent: Director of Public Prosecutions
| Judgment Number: | [2025] TASSC 32 |
| Number of paragraphs: | 153 |
Serial No 32/2025 File No 2453/2024
ROBERT JAMES BROWN v CONSTABLE DEBRA HARISS
| REASONS FOR DECISION | CUTHBERTSON J 12 June 2025 |
| Introduction |
1 The applicant, Robert James (Bob) Brown, is a well-known environmentalist, a former Greens politician and founder of the Bob Brown Foundation (BBF). On 7 November 2022, the applicant travelled with Jenny Weber, an employee of the BBF, to a forestry coupe known as SH045A located in the Eastern Tiers region of Tasmania (coupe). The coupe was owned by Sustainable Timber Tasmania (STT) and was permanent timber production zone (PTPZ) land within the meaning of the Forestry Management Act 2013 (FM Act). Forestry operations were being undertaken in the coupe, with harvesting of timber having commenced on 24 October 2022. Protest activity, described by the applicant in his evidence as a "defence of the forest", was occurring in the coupe at the time of the applicant's attendance. That activity was directed at attempting to bring about a cessation of forestry activities in the coupe due to concerns about its impact on the natural values of the area, principally the critically endangered swift parrot.
2 On 8 November 2022, Dion McKenzie, an employee of STT and an authorised officer under s 22(2) of the FM Act, requested that the applicant "immediately leave all permanent production zone land". The applicant was present in a part of the coupe at the time the request was made, having camped in the area overnight. He refused to leave the area and was arrested by a police officer. The applicant was charged with one count of trespass pursuant to s 14B(1) of the Police Offences Act 1935. The particulars of the complaint allege that on "8 November 2022, at Royal George in Tasmania, [the applicant] without reasonable or lawful excuse, remained on land situated (sic) MacKays Road, Royal George, without the consent of the owner, occupier or the person in charge of the said land".
3 The applicant pleaded not guilty to the charge. A hearing was conducted before Magistrate Hartnett on various dates between 4 December 2023 and 8 May 2024. On 5 August 2024, the magistrate found the complaint proved. There was no question (and there has been no argument to the contrary in this Court) that the applicant remained on land situated at MacKays Road, Royal George after Mr McKenzie's request to leave. The issues for the magistrate were whether the prosecution proved beyond reasonable doubt that the applicant remained in the coupe without the consent of the owner, occupier, or the person in charge of the land (in this case STT), or whether the applicant proved on the balance of probabilities that he had a lawful or reasonable excuse for remaining in the coupe. The magistrate rejected arguments that Mr McKenzie's request was not legally effective to withdraw consent due to the unlawfulness of the harvesting operations being undertaken in the coupe. She also found the applicant had not established a reasonable or lawful excuse to remain in the coupe subsequent to the direction being given. Relevantly to this review, the applicant argued he had a reasonable excuse to remain as he mistakenly believed the area of land he was on was outside the logging coupe. Alternatively, he argued he had a lawful excuse to remain on the land as his conduct was an expression of his deeply held and enduring beliefs (or conscience) and protected under s 46(1) of the Constitution Act 1936 (Tas). The applicant was sentenced on 14 August 2024 and ordered, without recording a conviction, to pay a $500 fine and court costs.
4 By notice to review, the applicant challenges his conviction on four grounds. Those grounds raise the following issues:
2 No 32/2025
•
Was Mr McKenzie's request beyond the power provided by s 22(3) of the FM Act and, therefore, legally ineffective to revoke consent for the applicant to remain in the coupe?
•
Was Mr McKenzie's request incapable of revoking consent because it was made for the purpose of facilitating the effective and efficient performance of harvesting operations which were unlawful?
•
Was it open to the magistrate to conclude that the applicant's belief he was in an area that was outside the logging coupe was not objectively reasonable?
•
Was it open to the magistrate to conclude that the freedom of conscience protection under s 46(1) of the Constitution Act was not engaged in the circumstances of this case so as to amount to a lawful excuse to the charge of trespass?
Background
The Forest Practices Plan
5 It is uncontroversial that the applicant was in the coupe on 8 November 2022 at the time of Mr McKenzie's request. It is not disputed the coupe is PTPZ land and owned by STT. It was also an agreed fact in the court below that the coupe was the subject of a certified forest practices plan which remained in force as at 8 November 2022 (FPP). The evidence established that forestry operations were being conducted within the coupe under the authority of the FPP.
6 Division 1 of Part 3 of the Forest Practices Act 1985 (Tas) (FP Act) concerns forest practices plans. Section 17(4) of the FP Act relevantly prohibits the harvesting of timber on PTPZ land unless a certified forest practices plan authorising that activity exists in respect of that land when that activity is being carried out. Pursuant to s 20 of the FP Act, a certified forest practices plan authorises forest practices, and any operations associated with those forest practices, to be carried out on the land specified in the plan in accordance with the provisions of that plan during the period specified in the plan. "Forest practices" is defined in s 3 of the FP Act and relevantly means the processes involved in harvesting timber and works (including the construction of roads) connected with harvesting timber. "Harvest" is also defined as meaning to cut and remove timber from a forest when used in relation to timber. "Forest" is defined as meaning an area containing trees. "Trees" is relevantly defined as meaning any woody plants with a height or potential height of 5 metres or more, whether or not living, dead, standing or fallen, that are native to Tasmania or introduced into Tasmania and used for the processing or harvesting of timber. "Timber" is defined as including the trunk, branch and any other part of a tree or fallen tree, whether or not it is cut up, sawn, hewn, split or otherwise dealt with. Broadly speaking, it is an offence contrary to s 21(1) of the FP Act to contravene or fail to comply with the provisions of a forest practices plan.
7 The FPP which applied to the coupe was in evidence. It was certified on 15 June 2022 and expressed to remain in force from 1 July 2022 to 30 August 2026. It included the following statement reflecting the requirements under s 20 of the FP Act:
"This Forest Practices Plan authorises forest practices and operations to which it refers on the land specified in the Plan and during the period specified in the Plan, provided that the operations are carried out in accordance with the Plan."
8 The operations identified in the plan were timber harvesting, reforestation and reforestation assessment. The FPP identified that the total area of operation in the coupe was 138.90 hectares. Of that, 109.50 hectares was to be harvested and reforested. The remainder of the operational area was designated as areas to be reserved from harvesting. The FPP set out a number of requirements. The specific requirements set out in the FPP were expressed to be mandatory.
3 No 32/2025
9 Part D of the FPP is titled "Conservation of Natural and Cultural Values" and is further described as "Prescriptions to manage flora, fauna, geomorphic, cultural heritage, landscape and soil and water values". It includes the following prescription relating to the swift parrot (prescription):
"Swift Parrot
• Report Immediately to the Sustainable Timber Tasmania Officer any evidence of a Swift Parrot nesting site and/or Swift Parrots being present (heard or seen) Inside or within 500 m of the FPP area during September to February. For Swift Parrot sightings within the FPP area, immediately cease felling operations within 500 m of the sighting until evidence of a Swift Parrot nesting site and/or Swift Parrots being present (heard or seen) has been assessed."
10 STT's compliance with the prescription was the principal focus of the applicant's argument concerning the legality of the operations being conducted in the coupe and the consequent lawfulness of Mr McKenzie's request in the court below.
The circumstances leading to Mr McKenzie's request and the applicant's arrest
11 The applicant travelled to the coupe with Ms Weber on Monday, 7 November 2022. It was a long weekend in northern Tasmania and forestry operations were not being undertaken in the coupe at that time. The evidence established there were no representatives of STT or forestry workers at the coupe when the applicant arrived. There were, however, a number of people associated with the BBF camping at the coupe. A Citizen Science Survey event, organised by the BBF, had been undertaken in the preceding days. Dr Searle was one of those present in the coupe; she spent the night of 7 November in a large tree which remained standing in an area which had been logged. Ms Weber gave evidence that forestry workers were expected to return to the coupe on Tuesday, 8 November 2022 and that this had been the subject of discussion with those present on the Monday evening. By the morning of 8 November 2022, two others associated with the BBF had attached themselves to harvest machinery located in the coupe.
12 Mr McKenzie arrived at the coupe at approximately 10.00am. As at that date, he was a Forest Officer at STT and was an Authorised Officer pursuant to s 22(2) of the FM Act. When he arrived at the coupe, he saw approximately 10 people there who he described as not being authorised to be on the site. Two of those people were attached to some of the harvest machinery. His evidence was that these protesters were at a location described as "Landing 1". He also saw a person (Dr Searle) on an elevated platform in a tree tied off to machinery. He gave evidence that he assessed the site from a safety point of view and deemed the presence of these people as unsafe and preventing harvesting operations from continuing. Police had also arrived at the coupe.
13 At about 10.38am, Mr McKenzie, in the presence of police, approached the applicant in the coupe. Prior to doing so, Mr McKenzie spoke with Ms Weber. The exchange was captured by body worn camera. The relevant part of the footage was an exhibit in the hearing. It depicts Mr McKenzie speaking with Ms Weber and shows a number of motor vehicles parked on a road in the vicinity of large piles of harvested timber. Two of the vehicles visible in the initial part of the footage are parked in such a way that access to the road beyond them (other than by foot) is obstructed. The following discussion occurred:
"Jenny Weber (JW):' … and your stakeholder role is now with us here in the forests ....'
Dion McKenzie (DMcK): 'what fun ... '
JW: 'Amazing, hi there'
DMcK: 'um ... what's going on?'4 No 32/2025
JW: 'Well, I would love to know that you are not going to keep logging in this coupe here ... we have an extraordinary number of swift parrots in this coupe ... we have written to you guys, have you got the letter? Has someone got the letter and addressing the letter?'
DMcK: 'Ahh, I assume someone has the letter, but anyhow that's not what I want to know about, how many people have you got here?'
JW: 'What's your role?'
DMcK: 'How many people have you got here?'
JW: 'Well you will be able to see as you go. But what is your role if it is not to answer to the fact that the swift parrots are in here? No comment is the answer.'"
14 The exchange between the applicant, Mr McKenzie, and police was also captured on body worn camera. The relevant portion was also an exhibit in the hearing. It depicts Mr McKenzie walking up a road for a period. In the background, a female voice can be heard stating, "Well, we have been out here with the swift parrots for the last couple of days". About 90 seconds later, Mr McKenzie approaches the applicant standing in an area which appears to have been partially harvested. In his evidence, Mr McKenzie identified the approximate location of the applicant on a map. It shows the applicant in the vicinity of areas identified as "Landing 2" and "Landing 3". Mr McKenzie gave evidence that landings are an area where a lot of the harvesting machinery is located, where timber is processed and cut to length before being loaded onto log trucks to be transported from the site. The applicant's location as identified by Mr McKenzie is also in the vicinity of a number of arrows on the map which the key to the map describes as "Extraction Direction". Mr McKenzie gave evidence the arrows on the map are "general indications of… the route of travel from the harvested area of forest, to take the harvested trees to the landings for processing". The following exchange occurred, with a good deal of the latter part involving the applicant and a police officer talking over the top of each other:
"Bob Brown (BB): 'Good morning gentlemen.'
Unknown male voice: 'Robert'
BB: 'How are you?'
DMcK: 'My name is Dion McKenzie. I am an authorized officer appointed under s 22(2) of the Forest Management Act 2013.
It is my opinion that the effective and efficient performance of the functions of Forestry Tasmania trading as Sustainable Timber Tasmania are being prevented because of your presence restricting the use of machinery for harvesting.
I am requesting that you immediately leave all Permanent Timber Production Zone land that was proclaimed as "state forest" pursuant to s 14 of the Forestry Act 1920 and is now Permanent Timber Production Zone Land pursuant to s 38 of the Forest Management Act 2013.
If you choose not to comply with my request you will be committing an offence under s
22(5) of the Forest Management Act 2013.
Will you leave now and comply with my request?'
BB: 'Dion, can you show me the Forest Practices Plan?'
Police Officer (PO): 'Oh, Bob, Bob, Bob'
BB: 'I have a right to ask a question…'5 No 32/2025
PO: 'No, no. Let's not…'
BB: '…that shows that this logging is legal'.
PO: 'We've seen the plan… You can take it up in another forum...'
BB: '... the plan is not available. I don't want to be…'
PO: 'Robert, Robert, listen to me.'
BB: 'No, you listen to me.'
PO: 'Robert, you are not in parliament now. Listen to me. You have been given a direction. Do you plan on leaving the area?'
BB: 'Can you show me that this logging…'
PO: 'Will you plan on leaving the area now?'
BB: 'I don't want to be falsely arrested by you two officers or you Dion.'
PO: 'We've seen the plan. It's authorised. You leave now and take it up with someone else.'
BB: 'Will you show me the plan that you have seen?'
PO: 'No.'
BB: 'Because I have not seen a plan showing that this logging…'
PO: 'Rubbish, rubbish. Bob Brown Foundation would have applied and received the plan.'
BB: 'No, Bob Brown….' PO: 'Leave the area now.' BB: 'Let me tell you. Bob Brown Foundation asked for the plan but has been refused it by
Forestry Tasmania.'
PO: 'Right, well you take it up with Forestry Tasmania directly.'
BB: 'I'm taking it up with you, officer.'
PO: 'Take it up with Forestry Tasmania.'
BB: 'No, you must, you must (inaudible) that this…'
PO: 'Robert, are you prepared to leave the area?'
BB: '…. That this is legal logging?'
PO: 'Robert, are you prepared to …? Robert, are you prepared to leave the area?'
Unknown male voice: 'We are. We are. We've answered your question. Yes we are.'
BB: 'I am not prepared to leave these swift parrots and this destruction, this international disgrace of this logging.'
PO: 'Bob, Bob, Bob. We are not interested in your propaganda. You are not interested in the swift parrots. You are interested in stopping logging.'
6 No 32/2025
BB: 'Well you should be… you, you should be for your own children's sake. And so should you
Dion.'PO: 'Robert. Robert. If you are interested in the swift parrot then you can organise with parks to remove the non-indigenous species of sugar gliders which feed on swift parrots. Leave the area now or be arrested.'
Unknown male voice: 'Are you going to leave?'
BB: 'The swift parrots have just flown over me, I haven't seen a sugar glider anywhere here…'
PO: 'Are you going to leave this area? Are you going to leave this area?'
BB: 'But if you are (indecipherable) for Forestry Tasmania, be that on your head.'
PO: 'Robert, Robert, are you in parliament?'
BB: 'I believe if you arrest me here it will not be legal. I put that on your head.'
PO: 'Are you intending to leave…'
BB: 'I am intending to stay here in defence of the swift forest, the swift parrots, the masked owls, and this forest.'
PO: 'Bob Brown, you are under arrest for trespass. Tottle out.'
BB: 'Fine Officer, you don't need to manhandle me.'PO: 'I need to put my hand on you to effect the arrest.'"
Section 22 of the FM Act
15 Mr McKenzie's request that the applicant "immediately leave all PTPZ land" was said to have been made pursuant to s 22(3) of the FM Act. According to its long title, the FM Act provides "for the management of permanent timber production zone land". An important feature of the management of PTPZ land under the FM Act is the requirement that the Forest Manager perform its functions and exercise its powers so as to allow access to PTPZ land for such purposes as are not incompatible with the management of PTPZ land under the FM Act: see s 13(1). That requirement is subject to s 13(2) which provides that s 13(1) does not prevent the Forest Manager from exercising its powers under s 22 of the FM Act.
| 16 | Section 22 of the FM Act relevantly provides as follows: "22. Request to leave, &c., permanent timber production zone land (1) In this section – |
authorised officer means a person appointed as an authorised officer
under subsection (2).
(2) The Forest Manager may appoint any of its employees to be an authorised officer
for the purpose of this section.
(3) An authorised officer may request a person –
(a) not to enter permanent timber production zone land or a forest road; or
(b) to leave permanent timber production zone land or a forest road; or7 No 32/2025
(c) to cease to undertake an activity conducted, or to cease to engage in conduct,
on that land or road –
if the authorised officer is of the opinion that the entry or presence of that person, or the activity conducted, or the conduct engaged in, by that person on the land or road is preventing, has prevented or is about to prevent the Forest Manager from effectively or efficiently performing its functions.
…
(5) A person who fails to comply with a request from an authorised officer
under subsection (3) or (4) is guilty of an offence.
Penalty: Fine not exceeding 20 penalty units.
(6) A person must not, without lawful excuse, undertake an activity or engage in conduct on permanent timber production zone land or a forest road contrary to the directions of a police officer.
Penalty: Fine not exceeding 20 penalty units.
(7) A police officer may arrest, without warrant, any person who fails to comply with
a direction under subsection (6).(8) In any proceedings under subsection (5), a certificate purporting to be signed by a person authorised, in writing, by the Forest Manager stating that at a particular time a person was an authorised officer is admissible as evidence that, the person was, at that time, an authorised officer."
17 The functions of the Forest Manager are set out at s 8 of the FM Act. Relevantly, they are: (a) to manage and control all PTPZ land; and (b) to undertake forest operations on PTPZ land for the purpose of selling forest products. "Forest operations" is defined in s 3 of the FM Act as meaning:
"…
work connected with –
(a) seeding and planting trees; or
(b) managing trees before they are harvested; or(c) harvesting, extracting or quarrying forest products –
and includes any related land clearing, land preparation, burning-off or access
construction."
"Forest product" is also a defined term meaning, relevantly, vegetable growth that is on or from PTPZ land or a product of growing or dead trees, shrub, timber or other vegetable growth that is on or from PTPZ land.
18 In Brown v Tasmania [2017] HCA 43, 261 CLR 328, these aspects of the FM Act were described by Kiefel CJ, Bell and Keane JJ at 365-366 [110]-[111], 366 [114] and 372 [141] as follows:
"[110] …the premise of the [FM Act] is that persons are able to access forest areas unless the Forest Manager exercises its powers to exclude them. The Forest Manager may only exercise those powers in order to perform its functions effectively or efficiently, or in the interests of safety. It is not necessary to determine the nature of the right of public access which is recognised by the [FM Act], for example, whether it is some kind of conditional licence. It is sufficient to appreciate that the scheme of the [FM Act] is that persons will not be impeded in their access to forestry land or in their use of such land for any purpose so long as their presence or the activity which they undertake is not incompatible with the management of the forestry land, which would
8 No 32/2025
include forest operations conducted on that land. It is difficult to comprehend that every
form of protest will necessarily be incompatible with this purpose.[111] …Under the [FM Act], persons may lawfully be excluded from certain areas of land or from roads from time to time and this will be so even if a person wishes to be in the area in order to make a protest about what is taking place there….
[114] A person authorised under the [FM Act] may direct a person not to enter or remain on land… But the direction given under the [FM Act] is only for statutory purposes related to actual operations and safety. The authorised person can be expected to have this clearly in mind just as they would have in mind the object of s 13 of the [FM Act]. The area of exclusion would be limited to no more than is necessary for the operations and to ensure continued public access.
[141] The powers given by the [FM Act], in the context of PTPZ land, are directed to the protection of Forestry Tasmania's property, to its functions and operations and to the safety of its employees and the public."
The nature of the review
19 The nature of a review pursuant to s 107 of the Justices Act 1959 (Tas) is well-settled. Relevantly, a notice to review shall allege "an error or mistake on the part of a magistrate on a matter or question of fact alone, or of law alone, or of both fact and law": s 107(4). As explained by Crawford CJ in Phillips v Arnold (2009) 19 Tas R 21 at 31, [46] (Blow and Porter JJ agreeing):
"A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VicRp 48; [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."
20 Two grounds relied upon by the applicant allege errors on the part of the magistrate in concluding that Mr McKenzie's request was effective at law or capable of revoking consent for him to remain on the land. The remaining grounds allege the magistrate erred in rejecting the applicant's arguments that he had a lawful or reasonable excuse to remain on the land. All grounds concern alleged errors of fact and law.
Ground 1A – Was Mr McKenzie's request to the applicant to leave overbroad and invalid?
21 This ground of review is as follows:
"Ground 1A
The learned Magistrate erred in finding (J[11], [33]-[34]) that the Prosecution had proved the absence of consent for the Applicant to remain on the land in circumstances where the request made by Dion McKenzie, which purported to revoke that consent, was beyond the power conferred by s 22(3) of the Forest Management Act 2013 (Tas), and therefore was ineffective at law to revoked consent.
Particulars
(i) It was an element of the charged offence that the Applicant did not have the consent to remain on the land from the owner, occupier or person in charge of the land.
(ii) The Prosecution case was that consent to remain on the land was withdrawn by
a request made by Mr McKenzie pursuant to s 22(3) of the Forest Management Act
2013 (Tas).
9 No 32/2025
(iii) The power to make a request in s 22(3) of the Forest Management Act is directed to ending a current interference with the duties of the Forest Manager, or preventing an imminent or immediate interference with the duties of the Forest Manager in a particular location.
(iv) Mr McKenzie's request was beyond power because it purported to be of
indefinite duration and was stated to apply to the entirety of permanent timber
production zone land and every forestry road in Tasmania.
(v) Because the request was beyond power, it was ineffective at law to revoke consent for the Applicant to remain on the land."
22 This ground was not contained in the original notice to review filed on 22 August 2024. The applicant sought leave pursuant to s 108 of the Justices Act to amend his notice to advance this new ground. It was acknowledged by the applicant in his outline of contentions that the issue raised by this ground was not raised in the court below. Argument in support of this ground relied heavily on orders made by another judge of this Court in different proceedings on 24 July 2024, that is after the evidence and submissions had been completed in this matter and the decision was reserved. The applicant argued that as the ground raises a question of law founded on uncontested evidence, it was in the interests of justice for leave to be granted to raise the new issue in this review. The respondent did not object to the amendment and I granted leave accordingly.
The reasons
23 The magistrate identified at [6] of her reasons for decision (reasons) that an issue for determination was "whether prosecution has established, absence of consent of the owner, occupier, or the person in charge of the land to remain on the land". At [7] to [9] of the reasons, the magistrate referred to the FM Act, including the access allowed pursuant to s 13, noting this was subject to s 22(3). She noted that the Forest Manager's functions included undertaking forest operations, which included harvesting. She observed that harvesting had commenced in the coupe on 24 October 2022. At [10] of the reasons, the magistrate noted Mr McKenzie was an employee of STT and an authorised officer under s 22(2) of the FM Act as at 8 November 2022. Consequently, she observed "he had the authority to act as the owner of the land, [STT], and to revoke the right of the [applicant] to be on [the coupe] within the scope of s 22(3) of the [FM Act]". The applicant takes no issue with this analysis. At [11] of the reasons, the magistrate set out that Mr McKenzie, in the presence of police, approached near where the applicant was in the coupe and made the request set out in bold at [14] above.
24 At [16] of her reasons, the magistrate noted the preconditions for a request to leave are that an authorised officer forms the opinion that the presence of the person may prevent the Forest Manager from effectively or efficiently performing its functions. In the context of another issue, the magistrate set out at [52]-[54] of her reasons the following evidence and findings related to Mr McKenzie's formation of the relevant opinion:
"52
On 8 November 2022, the defendant was close to landing 1 within the coupe. A landing is where a lot of harvest machinery is located, and they process the timber. It is here the timber is cut to length and loaded onto log trucks to be transported from the site. The defendant was in an area of three landings, on the edge of a logged area. He was not sitting or near any machinery. However, he was sitting in a lawfully operating logging area, and the evidence is that Mr McKenzie had assessed the site from a safety point of view and deemed it unsafe (and incompatible with the performance of the forest manager's functions).
53
The defendant's presence also saw the presence of at least one other a photographer running around in the background capturing images of the defendant. It is inconceivable with the defendant in the area that the operations could continue for the workers as normal (with or without his camera person
10 No 32/2025
entourage). The operations in the area of the defendant involve the movement of large machinery, the felling of trees and the movement of felled trees from the area of felling to the landings (the defendant accepted in cross examination that where he was forestry may not have finished and may want extract more timber or even cut more remnant trees) From a safety point of view the defendant's presence was neither safe (for him and/or workers) nor non- obstructive to the operations in the area. The defendant in cross examination said, 'what I did know was they would not do that [extract timber or even cut trees down) while there was any member of the public present.' It was his intention to be obstructive. Logging operators have statutory duties and obligations to ensure, as far as reasonably practicable, the health and safety of persons from the operations [citing the Work Health and Safety Act 2012]. The defendant was not engaged in a safe, non-obstructive protest. His conduct, or protest action, was incompatible with the Forest Manager preforming his functions ….
54 That finding would be sufficient. However, for completeness I refer to one further matter raised on the evidence relevant to this issue. The defendant during his evidence tendered footage of a conversation he had on the day with Dr Searle (an employee of his foundation). It was footage and in the same area, Dr Searle was engaged in protest action, she was situated high in the canopy of a tree, on or in a structure (perhaps a tent) suspended by ropes which were tied off to various pieces of machinery. The defendant in his evidence sought to distance himself from being perceived as involved in an organised or coordinated protest. I totally reject the defendant's evidence that he was acting independently of the foundation and other persons activities in the area as lacking credibility given the footage before the court and is also inconsistent at the very least [sic] Mr Hayward's evidence of an organised gathering. The defendant was clearly part of a group engaged in a protest in the area - including Ms Weber, Dr Searle, and others... It is inconceivable that the operations could continue for the workers as normal with the defendant, Dr Searle, and others in the vicinity. It was neither a safe nor unobstructive protest."
The applicant's grounds of review do not refer to these findings.
25 At [33]-[34] of her reasons, her Honour stated:
[1] Identified by her Honour at [3] of the reasons as "Without the consent of the owner, occupier, or the person in charge of
| ||||
| The evidence |
26 In addition to the evidence set out at [12]-[14] above, Mr McKenzie gave further evidence relevant to his opinion. He was asked whether logging was able to proceed with "all of the people in the area". His evidence was that
11 No 32/2025
"it would've been unsafe to do so with so many people wandering around where the operators were not sure where they were… it was also impossible for them to use… those pieces of machinery that the … people were attached to… and I mentioned before there was a tree-sit, so someone was in an elevated platform. That platform was fastened off to all of the machinery on site. So there was a third piece of machinery that… was tied to, so it couldn't move".
The applicant's submissions
27 The applicant argues that Mr McKenzie's request was invalid, of no effect, and therefore ineffective at law to revoke consent for the applicant to remain on the land. In support of that submission, the applicant principally relied on what was described as the "reasoning" of Porter AJ in Scott Jordan v Forestry Tasmania (No 299 of 2024) (Jordan proceedings). The Jordan proceedings challenged the validity of 19 notices purportedly issued under s 22(3) of the FM Act. On 19 July 2024, the parties to the Jordan proceedings issued a consent memorandum in which the respondent conceded the notices were not authorised by s 22(3). On 23 July 2024, Porter AJ endorsed those orders.
28 The applicant submitted that "this Court would follow Porter AJ's reasoning unless convinced it was 'plainly' or 'clearly' wrong". Reliance was placed on a number of decisions in support of this proposition, including Motor Accidents Insurance Board v Young [2011] TASSC 86, 20 Tas R 89 (MAIB) at 93-94 [8], per Blow J.
29 The orders made in the Jordan proceedings were included in the applicant's list of authorities. They are in the following terms:
"THE COURT ORDERS BY CONSENT:
1. The Court declares that each of the 19 notices, in substantially identical terms, purportedly issued to each of the Applicants between 11 January 2024 and 1 February 2024, was not authorised by s 22 of the Forest Management Act 2013 and was at all times invalid.
…..
AND THE COURT NOTES:
The Respondent concedes that the notices were not authorised by the enactment under which they purported to be made. Each notice purported to be a request to leave permanent timber production zone ('PTPZ') land and forestry roads pursuant to s 22(3)(b) of the Forest Management Act 2013 ('FM Act'), and not to enter PTPZ land or forestry roads again, pursuant to s 22(3)(a) of the FM Act. Each notice was stated to be of indefinite duration and was stated to apply to the entirety of PTPZ land and every forestry road throughout Tasmania, being an area of more than 800,000 hectares.
The Respondent concedes that a direction to leave all of PTPZ land and all forestry roads throughout Tasmania, and/or a direction not to enter any PTPZ land or any forestry road for an indefinite period, is beyond the scope or purposes of the power in s 22(3) of the FM Act, which is directed to ending a current interference with the duties of the Forest Manager or to preventing an imminent or immediate interference with the duties of the Forest Manager in a particular location.
The Court is satisfied that each of the 19 notices issued to the Applicants was not authorised by the FM Act and was at all times invalid for the reasons noted in these orders."
30 The orders were endorsed by Porter AJ as follows: "I make a declaration and orders in terms of the above, and note the matters set out".
12 No 32/2025
31 The applicant submits that the threshold question raised by this ground is: what is the scope of the power in s 22(3)? The applicant submits a statutory power can only be exercised for the purpose for which that power is conferred and to the extent that is fairly and reasonably necessary to achieve that purpose: Johns v Australian Securities Commission [1993] HCA 56, 178 CLR 408 at 423 per Brennan J. On that basis, the applicant argues that when regard is had to the purpose of s 22(3) of the FM Act, it follows that a request to leave must be tailored to the circumstances as they present themselves and cannot simply purport to apply indefinitely and to all PTPZ land throughout the State. The applicant argues the request made by Mr McKenzie was relevantly identical to the requests the subject of Porter AJ's 'reasoning' in that it was indefinite and purported to apply to all PTPZ land in Tasmania. As such, it was overbroad and beyond the conferral of power.
32 The applicant notes that the respondent's concession in the Jordan proceedings that the direction was beyond the scope of the power in s 22(3) referred to both the direction to leave all of PTPZ land and the direction not to enter any PTPZ land for an indefinite period. It was submitted that Mr McKenzie's direction fell foul of the first aspect of that concession.
33 In oral argument, the applicant relied on the decision of French J (as he then was) in Kovalev v Minister of Immigration and Multicultural Affairs [1999] FCA 557, 100 FCR 323. That case concerned minutes of proposed consent orders setting aside a decision of the Refugee Review Tribunal and remitting it for determination according to law. His Honour was not prepared to make the order in the terms sought until the error of law grounding the decision to set aside the decision was specified and the court was satisfied there was a proper basis for the orders. His Honour considered it was appropriate to set out his reasons for adopting that course. At 326 [7] he observed that "[i]n making a consent order, the Court exercises judicial power….Its exercise is a public function and operates to bind the parties". At 326 [8], he stated "[a]n order disposing of proceedings by consent must be self-explanatory as must any order. It is not appropriate to make an order of uncertain content or the content of which is to be derived from materials which are not on the public record." At 327 [11], and in the context of the particular rules of court, his Honour stated the following:
"The question whether a consent order is to be made, is not concluded by a finding that it is formally within the power of the Court. In the exercise of its power the Court is not merely giving effect to the wishes of the parties, it is exercising a public function and must have regard to the public interest in doing so… It is important therefore that the Court itself addresses and is satisfied of the basis upon which its order is to be made and in particular where the order sets aside the decision of an official decision-maker or a tribunal."
34 The applicant submitted this Court was able to identify what lead Porter AJ to accept there was a sufficient basis to make the orders. During the hearing of the motion to review, Ms Foley SC submitted this was so on the following basis:
"…we say his Honour has taken care to indicate what features of the notices led to his decision. We don’t look at the decision and think, what is the basis for which his Honour made that decision or agreed to make those consent orders. His Honour clearly sets out the relevant features and two things are identified in particular. The fact that it applied broadly to all land and also the indefinite duration. If his Honour felt that matters of context were relevant then we say, yes it would’ve been included in the consent memorandum.
His Honour has acted on the basis of a concession. The concession is clearly stated in the memorandum, and no one has identified any matters of context. So, the concession was made on a particular basis. His Honour has considered that and has clearly indicated that on the basis of those matters his Honour was satisfied. So, we say that the consent order is relevantly a decision. Not only was the Court satisfied but the Court has clearly explained a basis for the decision. So, on the basis of the Kovalev authority, we say that it is an exercise of judicial power.
13 No 32/2025
It is capable of being understood and applied because Porter AJ properly explained the basis for his decision in making the consent order."
35 On that basis, the applicant argues the request made of him to leave all PTPZ land suffers from the same vice identified in the Jordan proceedings and Porter AJ's decision. The applicant argues that it is the language of Mr McKenzie's request that falls to be considered when assessing whether it is within the scope of the power of s 22(3). That assessment is not to be made by reference to context, particularly where criminal consequences are involved and certainty is required as to what is being requested or directed. The applicant argues a reading down of the request by reference to the circumstances is not the correct approach.
The respondent's submissions
36 The respondent did not object to the applicant relying on the orders made in the Jordan proceedings or their inclusion in the applicant's list of authorities. The respondent, however, argues the orders did not constitute a "decision" of the type discussed by Blow J in MAIB as "no legal principle or rule of law was stated or could be said to have been logically considered".
37 The respondent notes the orders made in the Jordan proceeding do not record the exact wording of the invalid notices. It is submitted that a decision falling into the category of one that should be followed by a judge of the same Court (unless it is decided it is plainly wrong) must be one including sufficient information regarding the basis of the decision and the material facts that led to it in order for the Court to make an informed decision as to whether or not it is clearly wrong: Vunilagi v The Queen [2023] HCA 24, 411 ALR 224 at 308 [155] per Edelman J. In this case, the respondent argues it is decidedly unclear whether the declaration was made on the basis that the terms of the notices were overbroad or because they went beyond what was required to end a current, or prevent an imminent, or immediate interference with the duties of a Forest Manager in a particular location. The respondent also argues the terms of Mr McKenzie's request and the Jordan proceedings notices (to the extent they are able to be discerned from the terms of the notations) are relevantly distinct. Mr McKenzie requested the applicant "immediately leave all PTPZ land". The notices in the Jordan proceedings were said to have applied to the entirety of PTPZ land, and every forestry road, and for an indefinite period. They are expressed to have required the recipients to leave PTPZ land and forestry roads and not to enter any PTPZ land or any forestry road "again".
38 The respondent accepts that a statutory power is limited by the statute that creates it and should only interfere with a person's rights and freedoms to the extent necessary to give effect to the purpose of the power. The respondent also conceded that a direction made under a power such as that granted under s 22(3) of the FM Act, which invokes a criminal penalty if not followed, should be given with enough clarity for the person to understand what they need to do or not to do. In this case, the respondent argues Mr McKenzie's request did not exceed the purpose of the power. It was a request to "immediately leave all PTPZ land". As the request was to "leave" it could only have applied to the land the applicant was then on. It was not open to conclude it applied more generally to any other PTPZ land, as the applicant was not on that land at the time of the direction.
The request was not beyond power
39 The issue raised by this ground is whether the applicant's statutory right of access to the coupe, recognised under s 13(1) of the FM Act, had been effectively withdrawn such that remaining on the land particularised in the complaint ("land situated McKays Road, Royal George") was without STT's consent. In my view, that consent had been validly withdrawn.
40 I do not accept I am bound to follow the outcome reflected in the orders made in the Jordan proceedings. I cannot be satisfied the terms of the notices are "relevantly identical", as the applicant argues, or sufficiently similar to warrant taking the same approach. The notices are not set out verbatim
14 No 32/2025
in the notations. On the face of the notations, it is apparent that Mr McKenzie's request was more confined than the notices in the Jordan proceedings. Contrary to the particulars of this ground, it did not purport to apply to every forestry road in Tasmania. It also did not include a request not to enter PTPZ land at all, let alone "again". Further, the notations identify that the notices in the Jordan proceedings were considered beyond the power of s 22(3) of the FM Act which is "directed to ending a current interference with the duties of the Forest Manager or to preventing an imminent or immediate interference with the duties of the Forest Manager in a particular location". It is not readily apparent from the information before me whether the concession made by the respondent in that case, or Porter AJ's exercise of judicial power in endorsing the consent memorandum, were based only on the wording of the notices, or the absence of a relevant interference, or a combination of the two. The use of the conjunction "and/or" in the second paragraph of the notations contributes to the lack of clarity. Is it the direction to leave or the direction not to enter or a combination of the two that brings the notices beyond the scope of the power under s 22(3) of the FM Act? Simply put, there is insufficient information discernible from the orders and notations in the Jordan proceedings for me to be confident the outcome should be the same in this case.
41 Ultimately, the relevant question for this Court is whether it was open to the magistrate as a reasonable person to conclude that consent for the applicant to remain on the land situated at McKays Road had been withdrawn. It was conceded by the respondent that this required proof beyond reasonable doubt that Mr McKenzie's request was a lawful exercise of power pursuant to s 22(3) of the FM Act. Her Honour clearly concluded it was a lawful exercise of power, although she did not have cause to consider this issue in the present context given it was not argued. If the magistrate erred, it is arguable it was an unwitting error, and not amenable to review pursuant to s 107(4)(a) of the Justices Act, as a reviewable error must be one which appears from the materials before the magistrate: see Webster v White [1991] TASSC 75 per Zeeman J; Traynor v McCullough [2011] TASSC 41 at [17]-[36] per Crawford CJ.
42 In any event, no error in the context of this issue is apparent on the materials before the
magistrate.
43 An exercise of the power pursuant to s 22(3) must be for the purpose of the power. The purpose of that power is as explained by Kiefel CJ, Bell and Keane JJ in Brown at [141]: for the protection of STT's property, its functions and operations and to the safety of its employees and the public.
44 The material before the magistrate included the evidence set out at [11]-[14] and [26] above. The applicant also gave evidence that the area he was in when police located him was "a small area of logged forest, not cleared but logged forest, which had been logged in preceding days". He agreed that there were trees which had been logged still sitting in the area where he was located and that debris and smaller branches were still around. He further stated he believed the area had been logged "and that the logs the contractors wanted had been taken and put in a log pile". He conceded that STT may not have finished with the area and may have wanted to extract more timber or even cut down remnant trees. He also gave evidence that he felt at the time they (as in STT) were not going to bring machinery back into that area. Based on that evidence, the magistrate's findings at [52]-[54] of her reasons (set out at [24] above) were open on the materials before her. It was, therefore, open for her to conclude that Mr McKenzie's request was one made for the purpose of the power under s 22(3) of the FM Act.
45 Further, in my view, it was open for the magistrate to conclude the request did not exceed the scope of the power. It is important to recognise that Mr McKenzie's request made to the applicant set out in bold at [14] above was followed by the further words: "Will you leave now and comply with my request?" The request that the applicant "immediately leave all PTPZ land" is not to be considered in isolation from that context. The word "immediately" clearly conveyed that the applicant was to leave the land he was then on "immediately" or "now", namely the land particularised in the complaint. The request could not reasonably be viewed as one that he "immediately" leave any PTPZ land he happened
15 No 32/2025
to find himself on at some indefinite time in the future. It is significant there was no direction issued to the applicant not to enter PTPZ land. The magistrate concluded at [33] of her reasons (see [25] above) that the applicant heard and understood he was being asked to leave by someone who had authority to revoke consent. The applicant's indication that he intended to stay put in defence of the swift parrot, the masked owl and "this" forest, supports that conclusion. In my view, it is not correct to characterise the request as one purporting to be of indefinite duration and applying to the entirety of PTPZ land as was the case with the notices in the Jordan proceedings.
46 This ground is not made out.
Ground 1 – did her Honour err in concluding Ms Weber's statement was not a 'sighting', 'report' or 'any evidence' for the purposes of the prescription
47 This ground also asserts Mr McKenzie's request was incapable of revoking consent, in this instance due to the operation of the prescription. The ground of review is as follows:
"Ground 1
The learned Magistrate erred in concluding that Jenny Weber's statement to Dion McKenzie that 'we have an extraordinary number of swift parrots in this coupe' was not a 'sighting', 'report' or 'any evidence' for the purposes of the swift parrot prescription in the Forest Practices Plan for coupe SHO45A, such that a direction to leave for the purpose of harvesting operations thereafter was incapable of revoking consent for the defendant to remain on the land.
Particulars
(i) Her Honour referred to evidence at [11] that the request to the defendant to leave was purportedly made for the purposes of 'forest harvesting'.
(ii) Her Honour accepted at [16] that a request to the defendant to leave could only be made for the purposes of lawful logging activities.
(iii) Her Honour accepted at [16] that the harvesting of timber was unlawful unless authorised by a certified forest practices plan.
(iv) Her Honour accepted at [18]-[20] that to be compliant with a forest practices plan, and thus lawful, felling operations would have to cease within 500m of the relevant sighting.
(v) Her Honour concluded at [23] that Ms Weber's statement to Mr McKenzie was not and could not amount to 'any evidence' of a swift parrot being seen or heard so as to engage the requirement in the swift parrot prescription that felling operations immediately cease.
(vi) Accordingly, her Honour concluded at [33] that the request to the defendant to leave was legally effective to withdraw consent.
(vii) Her Honour adopted an overly narrow construction of the words 'any evidence' in the swift parrot prescription.
(viii) Her Honour failed to take into account the surrounding circumstances, including the 2 November 2022 letter from the Bob Brown Foundation."
The reasons and related evidence
48 The magistrate's analysis of this issue is not confined to the paragraphs referred to in the particulars of this ground. At [13] of the reasons, her Honour identified the applicant's argument that the request was not legally effective (or that she should be left with a doubt about that) because it was exercised for the purposes of commencing harvesting operations that would have been unlawful at the
16 No 32/2025
time they were anticipated to commence. It was alleged those operations would be unlawful due to non- compliance with the FPP. At [16] of the reasons, the magistrate accepted that the preferable interpretation of s 22(3) was that the power to request a person to leave PTPZ land can only be made for the purposes of "lawful logging activities" in light of its terms when read in conjunction with s 20 of the FP Act. Accordingly, it was a necessary precondition for a valid request to leave for the authorised officer to form the opinion that the presence of the person may prevent the Forest Manager from effectively or efficiently performing lawful functions.
49 At [17] of the reasons, the magistrate set out the applicant's contention that Mr McKenzie had received evidence of swift parrots in the coupe at the time he made his request. The applicant argued the FPP required immediate cessation of felling within 500 metres of the sighting. The magistrate set out the prescription. She then stated at [20] of the reasons, the following:
"The later provision is broad enough that anyone could report to a Sustainable Timber Tasmania Officer, including a member of the public. The provision refers to any evidence. Evidence is a broad concept. The Macquarie Dictionary defines evidence to be a ground for belief; that tends to prove or disprove something; something that makes evident; an indication or a sign. The broadness of the term is qualified in the provision by the inclusion of the words ''present (heard or seen)'. The reported evidence must be more than mere supposition, guess, intuitive hypothesis, or rumour. Because felling must immediately cease within 500m of a sighting the report must give at least a general location of where the Swift Parrot was seen or heard." (emphasis in the original)
50 The magistrate then set out part of the exchange between Ms Weber and Mr McKenzie at [22] of the reasons. At [23]-[24] of the reasons, her Honour stated:
"23 Ms Weber is rather convivial in her manner. She simply states, 'we have an extraordinary number of swift parrots in this coupe'. It is an area of just over 109 hectares. There is no material provided by Ms Weber as to who saw or heard the swift parrots or where exactly. In and of itself, without more, is not any evidence of the presence of a Swift Parrot (heard or seen). It could not rationally be viewed as a report by her. Nor is the oblique reference 'to a letter' a report for the purposes of the provision, which required or triggered any action by Mr McKenzie. Mr McKenzie could have asked further questions. But that omission, does not change what Ms Weber chose to reveal. It is a provision that is often required to be used in the field and a dynamic environment. In my view, what Ms Weber said to Mr McKenzie does not and could not amount to any evidence of swift parrot being present (seen or heard) that would require any action by Mr McKenzie. 24 It is implicit in Mr McKenzie's response to Ms Weber that he did not view what she told him as a report for the purposes of the forest practices plan provision, with his focus on an assessment of whether the presence of the persons including the defendant was inhibiting the effective and efficient functions of the Forest Manager and causing safety concerns. Mr McKenzie acknowledged in his evidence an understanding of the Forest Practices Plan provision and what was to be done on a report being made. Mr McKenzie was asked in cross examination "that if you had been concerned about the swift parrot, you would have asked more questions of Ms Weber? He responded 'Yes'. In my view, his response is consistent with him not receiving a report or any evidence from Ms Weber for the purposes of the Forest Practices Plan provision. Mr McKenzie was asked by Ms Foley SC in further cross examination, 'When you spoke about seeking to verify a sighting, there's a cessation of logging in the meantime before the verification takes place, isn't there?' Mr McKenzie responded, 'If we think it is a genuine sighting perhaps there would be'."
51 The magistrate then addressed the 2 November 2022 email relied upon by the applicant during the hearing as a "report" for the purposes of the prescription. That email was sent by Ms Weber and
17 No 32/2025
addressed to Premier Rockliff, Peter Volker of the Forest Practices Authority and Steve Whiteley of
Forestry Tasmania. It is in the following terms:
"URGENT ATTENTION REQUIRED
To the Premier, FPA and STT,
Logging has commenced in another area of forests that have critically endangered Swift parrots in the trees. We have not received a response to our previous urgent letter of the 20 October 2022, we write again to seek urgent cessation of the newly commenced logging activity in Eastern Tiers forest area SH045A.
This particular coupe is documented to contain a high concentration of hollow-bearing trees suitable for SP breeding.
Logging is occurring right now in this Swift parrot habitat as the parrots return for their eighth breeding season since they were listed as critically endangered.
We write to request that you cease logging in all Swift parrot habitat and transfer all public land that is Swift parrot habitat into secure conservation reserves. This was the IUCN recommendation in 2015.
In the Eastern Tiers we have monitored logging in current Swift parrot foraging habitat.
It is urgent and essential that the areas in which the Swift parrot forages, the habitat in which it resides and the places it frequents to breed, are placed in reserve systems that are adequate, immediate, and long lasting.
…
In the currently active SH045A there are recordings of Swift Parrots during previous breeding seasons here:
SP sightings inside boundary coupe 2021:
10/2021: - (147.86661033642400298 -41.8971004546187018)
10/2021:- (147.868956515724989 -41.894984159323201)
And this year again in 2022 here within the coupe boundary:
Week beginning 31 October 2022: -41.90226, 147.87810
The qualifications of the people who witnessed the presence of this critically endangered species in an active logging area are scientists and concerned citizens.
We urge you to confirm that this information has been received and that the contractor and machinery have been removed from the coupe immediately.
In accordance with the provision of the forest practices plan and the FPA's protocol for responding to Swift parrot sightings in active logging operations all works must cease and a thorough and extensive survey of the entire area must be undertaken.
These surveys and ceasing logging need to have the purpose of securing the area's secure protection in a conservation reserve.
Reminding you that IUCN recommended in 2015 protection of all Swift parrot habitat on public lands needs to be placed in secure conservation reserves.
Coupe SH045A clearly contains and is habitat for and is a breeding area of the critically endangered Swift parrot. It is advised that the coupe be removed from the 3year plan, and this area be given formal protection for the survival of this species and others.
18 No 32/2025
Our Foundation has requested Forest Practices Plans for the coupes in the Eastern Tiers and others across the state. We have not received these documents that should be made available to the public. Again, we request our list of forest practices plans from Forestry Tasmania.
Again, we call on you as Premier to act urgently to protect the Swift parrots from the destruction of habitats essential to their survival.
From Jenny Weber Campaigns Manager Bob Brown Foundation
Erik Hayward Campaigner Bob Brown Foundation"
52 At [27], her Honour recorded the applicant's argument that the court should draw the inference that inaction following the receipt of the email was evidence of a breach of the FPP. Her Honour stated that to "draw such an inference, the evidence before the court must be of a quality or substance to provide a ground for belief of non-compliance with the relevant forest practices plan provision. The evidence before the court does not have that quality." She then set out some evidence of Mr Sing, a Senior Forest Officer with STT, who was cross-examined in respect of BBF correspondence but not the 2 November email. That evidence was to the effect that he had nothing to act on at the time with reference to the prescription. The magistrate continued:
"29 The defendant argues given there was no attempt to cease felling and conduct an assessment after 2 November 2022 the logging that continued was in plain contravention of the [FPP] and unlawful. This conclusion, however, would require the court to engage in speculation as to where the coordinates set out in [the email] are, and then determine and conclude they were within 500 metres of the operations on the day and therefore the Forest Practices Authority inaction is evidence of noncompliance. There is no evidence before the court as to where the coordinates in [the email] are, let alone whether they are within 500m of the felling operations occurring on 8 November 2022 to lay the foundation for the inference being asked to be drawn by the court.
30 The [FPP] does not require all felling within the coupe to cease. The coupe is comprised of 109.5 hectares. The continuation of felling operations therefore does not, in and of itself, evidence a contravention of the [FPP]. From the coupe notes, landing 11 was not open or operating on 8 November 2022. It is possible that the coordinates were at or near landing 11, there would be no felling to cease, and harvesting or felling at landing 1 and 2 would be permitted under the [FPP]. Mr Sing's unchallenged evidence was he had nothing to act on.
31 Further, there is evidence before the court of the Forest Practices Authority acting on a report, ceasing felling, and providing advice 'crew can resume working outside of 500 metres from reported sighting' on the 14 November 2022. There is nothing to suggest the Forest Practices Authority would not act on a report and a lack of a direction does not on the evidence equate to a contravention of the [FPP]."
53 The reference to the coupe notes in the reasons refers to the Operational Coupe Notes tendered during the hearing. Those notes were described in evidence as an electronic diary kept by STT of attendances at the coupe. Mr McKenzie had made one of the entries, with the rest made by Mr Sing, who also gave evidence. Relevantly, those notes set out the following:
•
Mr Sing attended the coupe on 3 November 2022. He records reminding "the bush boss to stay vigilant on tracks and to report any swift parrot sightings." No swift parrots were sighted during the visit and crews had not seen or heard swift parrots since commencing operation. Mr Sing spoke with two people who had entered the site looking for swift parrots. Surveillance cameras had also captured the vehicles driven by these two people
19 No 32/2025
entering an area after the bush crew left of an afternoon and remaining for up to 3 hours
at a time, sometimes well after dark.
• Mr Sing conducted a visit on 7 November 2022, noting a number of protesters at the site. The operation was not working that day. One of the protesters attempted to engage Mr Sing about swift parrot habitat. Vehicles were blocking access. • Mr McKenzie was at the site on 8 November 2022 and recorded his observations of the BBF protest action and arrests. He reported that the tree-sit tree and a close neighbouring tree were removed, with the area being checked for unauthorised persons prior to falling. • Mr Sing visited the site on 9 November 2022. Crews were required to fix logs vandalised by spray paint over the log tags. Mr Sing undertook a larger inspection of the coupe for any remaining protesters while also looking and listening for swift parrots. None were heard or seen during his visit from 6.40am to 11.45am. Forest Practices Authority and STT personnel attended to conduct "on-site for swift parrot surveys". The tree felled the day before had been the tree-sit tree and had been left behind for a habitat tree by the faller. • Mr Sing visited the site on 14 November 2022. The Friday crew ceased felling after a confirmed swift parrot sighting. Advice was received from FPA that the crew can resume working outside 500 metres from reported sightings as referenced within the FPP. It was noted that "crew will still monitor for swift parrots". Reference was made to opening up landing 11 next, noting it was well outside the 500 metre zone. There is also a reference to the crew "keeping up with progressive restoration". • Mr Sing visited the coupe on 24 November 2022. He referred to "emails today of more swift parrot sightings near landing 11. Crew are processing remainder of wood on ground with no additional falling at this landing". He noted landing 14 was outside the 500 metre range of the most recent sightings and was workable for the prescription. A hand drawn map of the 500 metre boundary was sent to the bush boss of the site. It was noted that "Likely remove crew from this site next week as current ground conditions will not allow further harvesting along with swift parrot sightings".
54 As noted above, the magistrate concluded at [33] that Mr McKenzie's request was legally effective to withdraw consent.
Applicant's submissions
55 The applicant noted the magistrate appeared to accept the applicant's submission it would be unlawful to commence or continue logging activity in the coupe after a 'sighting', 'report' or 'any evidence' of a swift parrot, until evidence of a swift parrot nesting site, or swift parrots being present (seen or heard) had been assessed. I note here that reference was made in the applicant's written outline to the magistrate recording that submission at [17] of her reasons. That is not how the magistrate recorded the submission (see [49] above) and is inconsistent with what her Honour said at [30] of her reasons (see [52] above).
56 The applicant submitted the magistrate erred in rejecting the argument that Ms Weber's statement "I would love to know that you are not going to keep logging in this coupe here… we have an extraordinary number of swift parrots in the coupe… we have written to you guys, have you got the letter, has someone got the letter and addressing the letter" amounted to a sighting, report or any evidence for the purposes of the prescription.
20 No 32/2025
57 First, the applicant argues the magistrate adopted un unduly narrow interpretation of the words 'any evidence' in the prescription. The applicant agreed with the magistrate's conclusion at [20] of the reasons that "the reported evidence must be more than mere supposition, guess, intuitive hypothesis, or rumour". It was also acknowledged her Honour accepted the term "any evidence" was broad. The applicant argued, however, the word "any" also had work to do, emphasising the broad ambit of the phrase "any evidence". Giving the term a broad interpretation also advanced the obvious purpose to protect the critically endangered swift parrot from logging activities that might otherwise harm them or destroy their nesting sites. It was submitted the magistrate did not pay due regard to the "expansive work being done by the word 'any'". The applicant argues her Honour ignored the relevance of the word ''any'' in her analysis.
58 In this respect, the applicant also submits the magistrate erred at [20] of the reasons in considering the phrase ''any evidence'' was qualified by the fact the swift parrot must be ''present (heard or seen)''. The applicant argues those words are better understood as confirming the width of the concept of 'any evidence' such that it not be equated with a 'sighting' but extends to non-visual evidence of swift parrot presence. The applicant emphasised the prescription is the only one in the FPP triggered by non- visual evidence. In this way it is tailored to the species, noting its "swift" flight pattern, and telltale call which immediately identifies it. The applicant argues it is a prescription to be applied in practice out in the field, emphasising the notion that "any evidence" is not to be equated with evidence in a trial or like proceeding.
59 The applicant also argued her Honour erred in reading the words "inside or within 500 metres of the FPP area" as requiring that the "report must give at least a general location of where the Swift Parrot was seen or heard". On this basis, it was submitted her Honour appeared to have "held that it was not enough for there to be evidence of the presence of a swift parrot within a forest practices plan area… but that the evidence had to specify precisely where the swift parrots were within that area". The applicant argued this was a misreading of the prescription by which any evidence of a swift parrot required the cessation of logging inside a forest practices plan area and within 500 metres of the forest practices plan area. As a result, the only geographic specificity implicit in the prescription is that the evidence of the swift parrot be referable to a particular forest practices plan area. Ms Weber's communication to Mr McKenzie satisfied that requirement as it was referable to the coupe.
60 Second, the applicant argued in his written outline that the magistrate failed to adequately take the email of 2 November 2022 into account or give it weight in assessing whether Ms Weber made a report to Mr McKenzie. It was submitted the contents of the letter and Ms Weber's reference to it when speaking with Mr McKenzie make plain she was reporting the presence of swift parrots within the coupe. It was argued the magistrate's approach to Ms Weber's statement was dismissive. Reference was made to the description of Ms Weber's manner being "rather convivial" during that conversation. The applicant took issue with this observation being an appropriate basis to support the magistrate's conclusion that Ms Weber's statement was not a report. The applicant also argues the magistrate failed to take into account Ms Weber's position as a campaign manager for the BBF, her evidence that in her position she had received information about swift parrot sightings and the references to the letter she made to Mr McKenzie. It was submitted these factors support the conclusion her statement was a report, not a throw-away line, as Ms Weber was a person with relevant knowledge and experience and came to the coupe in her role as campaign manager armed with information about swift parrot sightings. On that basis the applicant submits the magistrate should have concluded that Ms Weber's statement was a report.
61 The applicant did not press at the review hearing that the substance of the 2 November email fell to be considered in the context of this ground. It was the reference to the letter in Ms Weber's conversation with Mr McKenzie which was of significance when the whole of what she said was considered in a holistic way. The multiple references to the letter were said to give weight to what she was conveying.
21 No 32/2025
62 Finally, the applicant argues the magistrate erred in apparently relying on Mr McKenzie's own opinion that Ms Weber's communication was not a report. The applicant submits Mr McKenzie's opinion was irrelevant to the question which was whether, objectively, the communication met the definition of a sighting, report or any evidence within the meaning of those terms in the prescription.
63 The applicant submits that if these errors had not been made, the magistrate would have concluded Ms Weber's communication to Mr McKenzie was sufficient to engage what was described as the "prohibition of logging activity" such that Mr McKenzie's request to the applicant was unlawful (as it was for the purposes of what would have been unlawful logging activity) and thus ineffective to withdraw consent. The practical operation of the prescription required the immediate cessation of logging. If an officer was unable to ascertain the area in which logging was to cease, it was incumbent to ask further questions. What was not open to Mr McKenzie was to ignore the statement completely. It was for prosecution to prove the operations contemplated at the time of the request were or would be lawful. At the very least, the magistrate would have had to find that a reasonable doubt remained as to this element of the offence.
The respondent's submissions
64 The respondent first addressed the 2 November 2022 email. It was conceded it referenced a sighting in the coupe "in the week beginning 31 October". There was no evidence that Mr McKenzie was aware of the letter or of its contents. The respondent submits the magistrate did not err in finding Ms Weber's statement was not evidence. It was not cogent. It provided no detail or basis for further investigation. The respondent observed that no indication was given as to whether swift parrots were seen or heard or both, when they were seen or heard, who saw or heard them, where they were seen or heard, or how many, or whether there was a basis for concluding that what was seen or heard was a swift parrot. The respondent also argues that it would have been necessary to identify where the sighting had occurred to enable Mr McKenzie to take the steps set out in the prescription as the cessation of felling was confined to an area within 500 metres of the sighting. In addition, the respondent also highlighted the evidence from the coupe diary which indicated forestry workers were keeping a lookout for swift parrots both before and after the protest activity on 8 November 2022.
65 The respondent also focussed on the terms of the prescription, noting that it triggered the cessation of the "felling" of trees, not forestry or harvesting operations more broadly. Accordingly, it was open to the magistrate to conclude that the anticipated activity was lawful and that Mr McKenzie's request was effective.
Ms Weber's statement did not invalidate Mr McKenzie's request for the applicant to leave the coupe
66 In resolving this ground, it is helpful to articulate the question arising in respect of this issue, bearing in mind the nature of the review the Court is conducting. In my view, it is this: was it open to the magistrate on the materials before her to find that consent for the applicant to remain on the land described in the particulars of complaint had been validly withdrawn? This articulation of the question is consistent with the issue the magistrate considered she was called upon to determine which she set out at [6] of her reasons: "whether the prosecution has established absence of consent of the owner, occupier or the person in charge of the land to remain on the land".
67 This issue is referable to the elements of the offence of trespass pursuant to s 14B(1) of the Police Offences Act and the particulars of the charge preferred against the applicant. The magistrate properly identified at [7] of the reasons that the applicant has the benefit of a statutory right of public access to PTPZ land pursuant to the FM Act, but noted that right was limited to such purposes as are not incompatible with the management of PTPZ land under the FM Act and was subject to s 22(3) of the FM Act. At [9]-[10] of her reasons, the magistrate set out the evidence supporting the conclusion that Mr McKenzie was an authorised officer and had authority to revoke the applicant's permission to
22 No 32/2025
remain on the coupe. At [12], she recorded she was satisfied Mr McKenzie had formed the opinion the applicant's presence was preventing STT from effectively or efficiently performing its function of harvesting. That conclusion was clearly open on the evidence set out at [11]-[14] and [26] above. The request to leave was noted at [11] of the reasons, with the magistrate recording she was satisfied the applicant heard the request to leave and remained. She accepted at [16] that any request pursuant to s 22(3) of the FM Act can only be made for the purpose of the Forest Manager effectively or efficiently performing lawful functions.
32 No 32/2025
115 Of the authorities referred to by the applicant during his submissions, there were three that were the subject of particular focus. The first of those, a decision of Refshauge J in R v AM [2010] ACTSC 149, concerned a defendant charged with breaching a protection order by attending on her parents' residence in breach of that order. The defendant claimed to be permitted to defend the charges she was facing on the grounds that her actions were taken in accordance with her conscience. Section 14 of the Human Rights Act 2004 (ACT) provided that everyone has the right to freedom of thought, conscience and religion. Refshauge J considered the operation of that provision in the context of s 43 Criminal Code 2002 (ACT) which provided that a person is not criminally responsible for an offence if the conduct required for the offence is justified or excused under law. His Honour found that the alleged beliefs of AM did not meet the description of "conscientious". In addition, he concluded that the right to freedom of conscience was not a defence under the criminal law. In reaching that conclusion, he noted that the Human Rights Act did not invalidate any legislation. The decision ultimately did not expressly address how the right to freedom of conscience might feed into a lawful excuse defence, although his Honour considered that "in the event a human right of AM protected under the Human Rights Act had been breached, there may be an argument that this would provide a justification" under s 43 of the Criminal Code (ACT). It appears from the decision that he did not hear argument to that effect.
116 The applicant argues that AM ought not be followed in a particular respect. Following a review of cases dealing with the meaning of "conscience", Refshauge J noted at [46] "there is a strong sense that freedom of conscience, unlike freedom of religion, is limited to the beliefs and mental processes of an individual and that it does not necessarily protect any action motivated by the conscience of the person". That, the applicant, argues is a hollow guarantee as it provides no protection to a person who acts in a way consistent with their conscience.
117 The applicant also referred to the decision of Kyrou J in Magee v Delaney. This case concerned an appeal against conviction on charges of damaging property and of possessing materials for the purposes of damaging property. The appellant did not dispute he had painted over an advertisement in a bus shelter with paint and also possessed a bucket of paint and paintbrushes for the purpose of painting over more advertisements. He sought, however, to escape criminal liability by contending that his acts engaged the right to freedom of expression in s 15(2) of the Charter of Human Rights and Responsibilities Act (2006) (Victorian Charter) and that his exercise of that right and furtherance of his philosophical opposition to advertising constituted a "lawful excuse". Notably, s 15(3) of the Victorian Charter provides that special duties and responsibilities are attached to the right of freedom of expression and also provided that the right might be subject to lawful restrictions "reasonably necessary … for the protection … of … public order …or public morality".
118 The applicant relied particularly on Kyrou J's conclusion at 60 [39] that:
"'Lawful excuse' is an expression of wider import than 'lawful authority'. The defence of 'lawful excuse' can be sufficiently proved even though no 'lawful authority' exists for the conduct the subject of the charges. In proving a 'lawful excuse', it is an excuse or exculpatory reason put forward by the accused, rather than the conduct the subject of the charges, that must be shown to be lawful."
119 The argument in Magee v Delaney had proceeded on the agreed basis that "another statute may expressly or by necessary intendment establish a lawful excuse" for the purposes of the particular offence provisions in play: at 59 [36]. Ultimately, Kyrou J concluded the appellant's act in painting over the advertisements was conduct capable of imparting information or ideas but not his possession of the bucket of paint and brush. Further, his Honour found the relevant offence provisions were reasonably necessary to respect the rights of other persons. Consequently, a breach of those provisions was not protected by s 15(2) of the Victorian Charter.
33 No 32/2025
120 In respect of this aspect of Kryou J's ruling, the applicant argues that a better analysis was the one undertaken by the UK Court of Appeal in Attorney-General's Reference (No 1 of 2023) [2022] EWCA Crim 1259, [2023] KB 37. This reference concerned four protestors charged with criminal damage who caused significant damage to a statue during a protest. Each of the defendants was acquitted by a jury. While a range of defences was run at trial, the question in issue in the reference was whether a conviction for the damage done to the statue was a disproportionate interference with the defendants' right to protest. The damage was caused during an otherwise peaceful protest promoted by the Black Lives Matter movement. Causing damage to property was a criminal offence subject to the defence of lawful excuse. The protesters had argued that rights pursuant to the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) were engaged. Relevant to this case, one of those rights included the following:
"Article 9, Freedom of thought, conscience and religion
1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others"
121 The Court of Appeal confirmed at 65 [52] that:
"a defence of lawful or reasonable excuse will provide a route by which a proportionality assessment may be carried out if the prosecution must prove that a conviction would be a proportionate interference with Convention rights. That becomes necessary only if (a) Convention rights are engaged in the circumstances of the case and (b) the ingredients of the offence do not themselves strike the appropriate balance so that a case-specific assessment is required".
122 The applicant submits that the guarantee pursuant to the Constitution Act would be denuded of almost all force if the terms of s 46(1) justified a manifestly disproportionate response to an expression of conscience in the name of public order or morality. Rather, a proportionality assessment is involved when considering the freedom of conscience guarantee through the lens of lawful excuse. The applicant submitted that there is no relevant textual distinction between the instruments considered by the UK Court of Appeal and the terms of s 46(1). The applicant argues his incursion into the rights of others by remaining on the already logged land was very limited and that conviction for trespass was a disproportionate response in the circumstances.
The respondent's submissions
123 The respondent submits that there is no suggestion the applicant cannot have and express his deeply held beliefs about the environment. The expression of those beliefs is, however, subject to public order and morality. The respondent submits the very purpose of a law such as that prohibiting trespass is to maintain public order. Without such a law, people would be able to enter other people's houses, land or vehicles without authority or permission which would result in fear, lack of safety, lack of privacy and, in short, a lack of order.
124 The respondent referred to the decision in Magee v Wallace [2014] VSC 643 (another case where Mr Magee sought to establish a defence to charges involving painting over advertisements by reference to the Victorian Charter) and particularly Ginnane J's conclusion that the appellant's conduct in that case was capable of interfering with the maintenance of public order. This was because his Honour found that the capacity of individuals or businesses to obtain access to property to advertise
34 No 32/2025
their products or services was a feature of Australian society. His Honour also noted that the appellant's conduct may lead to some form of public disturbance if someone attempts to stop those actions. A reference was made to the decision in Coleman v Power [2004] HCA 39, 220 CLR 1 where Kirby J stated at 93 [242]:
" it is evident that public order includes the following: 'prescription for peace and good
order', public 'safety' and 'prevention of disorder and crime'."
125 In relation to the definition of public order, the respondent highlights that the concerns giving rise to Mr McKenzie's request included ones related to safety. As to the proportionality argument relied upon by the applicant and based on the Attorney General's Reference (No 1 of 2023), the respondent argues that it does not reflect the law in Australia and is not relevant to the operation of s 46(1) of the Constitution Act. In any event, the respondent submits that any proportionality argument would not succeed in affording the applicant a lawful excuse to remain on the land. Remaining on the PTPZ land in defiance of a request to leave affects the ability of the forest manager's employees or contractors to undertake the work and conduct the business they are lawfully entitled to engage in. The applicant's conduct required the attendance of police. His presence on the land created a workplace hazard.
Discussion
126 Not only is the law "underdeveloped" in this area, but the applicant's argument was "underdeveloped" in the court below. This aspect of the defence was described by the applicant's counsel at the hearing in the court below as "the most exotic or esoteric". While the magistrate was directed to authorities dealing with the meaning of "conscience" in what were said to be analogous contexts, the applicant provided no authorities in support of his argument that the guarantee provided a lawful excuse for the purposes of s 14B(1) of the Police Offences Act. No proportionality argument was raised.
127 The magistrate did not find it necessary to consider whether the applicant's conduct was an expression of his "conscience" as it is understood in the context of s 46(1) of the Constitution Act in light of her conclusion the guarantee did not provide a lawful excuse in respect of a charge pursuant to s 14B(1) of the Police Offences Act. The argument in this Court proceeded from a basis that there was no real dispute that the applicant's convictions were deeply held and durable, and capable of being described as conscientious. There is, however, authority to suggest that the meaning of "freedom of conscience" as it appears in s 46(1) is narrower than has been assumed by the parties.
128 In McGee v Attorney-General [1974] IR 284, the Irish Supreme Court was called upon to consider the identically worded s 2(1) of Article 44 of the Constitution of Ireland. The issue arose in the context of an action brought by the plaintiff seeking a declaration that a provision prohibiting the sale, or import into Ireland for sale, of any contraceptive was inconsistent with provisions of the Constitution of Ireland including s 2(1) of Article 44. The plaintiff claimed that her decision to practise contraception was in accordance with the dictates of her conscience and that the relevant provision prevented her from leading her private life in accordance with those dictates. Two of the five judges of the Supreme Court, FitzGerald CJ and Walsh J, directly considered the freedom of conscience guarantee, as did the judge at first instance, O'Keeffe P. O'Keeffe P held at 291-292 that, although the plaintiff's decision to practise contraception was "a serious and conscientious one made in the interests of her family", it did not "make the matter one of conscience" in the context of Article 44. In his view:
"Freedom of conscience in that context means freedom to choose a religion and to act in accordance with its precepts; it does not mean freedom to arrive at decisions on matters of one's private welfare and to act accordingly."
35 No 32/2025
129 On appeal, FitzGerald CJ arrived at a similar conclusion, holding at 303 that "conscience" can not be taken out of its context in Article 44 and applied to the decision of a married couple as to whether they should or should not have children.
130 Walsh J also rejected that the argument that social conscience fell within the ambit of Article 44. He observed that the "whole context in which the question of conscience appears in Article 44 is one dealing with the exercise of religion and the free profession and practice of religion". Accordingly, he held that the meaning of s 2(1) of Article 44 is:
"that no person shall directly or indirectly be coerced or compelled to act contrary to his conscience in so far as the practice of religion is concerned and, subject to public order and morality, is free to profess and practise the religion of his choice in accordance with his conscience. Correlatively, he is free to have no religious beliefs or to abstain from the practice or profession of any religion. Because a person feels free, or even obliged, in conscience to pursue some particular activity which is not in itself a religious practice, it does not follow that such activity is guaranteed protection by Article 44. It is not correct to say, as was submitted, that the Article is a constitutional guarantee of a right to live in accordance with one's conscience subject to public order and morality. What the Article guarantees is the right not to be compelled or coerced into living in a way which is contrary to one's conscience and, in the context of the Article, that means contrary to one's conscience so far as the exercise, practice or profession of religion is concerned." (emphasis added)
131 The entire text of Article 44 of the Constitution of Ireland which supplied the context referred to by each of these judges is as follows:
"RELIGION ARTICLE 44
1 The State acknowledges that the homage of public worship is due to Almighty God.
It shall hold His Name in reverence, and shall respect and honour religion.
2 1° Freedom of conscience and the free profession and practice of religion are,
subject to public order and morality, guaranteed to every citizen.
2° The State guarantees not to endow any religion.
3° The State shall not impose any disabilities or make any discrimination on the ground
of religious profession, belief or status.4° Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to affect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.
5° Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious or charitable purposes.
6° The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation."
132 In a similar vein, s 46 of the Constitution Act is entitled 'Religious Freedoms' and the balance of the provision is directed to the practice and exercise of religion. Section 46(2) picks up matters analogous to those addressed in s 2(3) of Article 44 of the Irish Constitution, providing:
36 No 32/2025
"(2) No person shall be subject to any disability, or be required to take any oath on account of his religion or religious belief and no religious test shall be imposed in respect of the appointment to or holding of any public office. "
133 The decision of Walsh J in McGee was referred to by Tracey J in Corneloup v Launceston City Council [2016] FCA 974 where he dealt with an argument that the Council's prohibition of preaching in the city's malls was ultra vires the "guarantee of the free profession and practice of religion afforded by s 46" of the Constitution Act. Like Walsh J, Tracey J stated at [38] the provision prevented "coercion in relation to the practise of religion" and guaranteed "a freedom to profess and practise a person's religion of choice", but did not "confer any personal rights or freedoms on citizens". Tracey J, however, observed that no authority to which he had been referred determined the "practical effect of the 'guarantee'".
134 The judgment of Walsh J in McGee has more recently been referred to with approval by Goeghegan J in Murphy v Independent Radio and Television Commission [1997] IEHC 71; [1999] 1 IR 12 at [6]-[8]. In A M v Refugee Appeals Tribunal [2014] IEHC 388, McDermott J observed at [33] that freedom of individual conscience was "not recognised as a separate fundamental right under the Constitution".
135 While in Corneloup, Tracey J was dealing with arguments based on the practice of religion, the Irish Supreme Court in McGee was not. Section 46(1) of the Constitution Act is identical in its terms to s 2(1) of Article 44 of the Irish Constitution; the context of each of those provisions is relevantly analogous. In light of the statements in McGee, the applicant's beliefs may not be captured by the 'guarantee' as they do not concern the exercise, profession or practice of religion.
136 Section 46 has not been amended since the Constitution Act was enacted in 1936. It has its origins in the Roman Catholic Relief Act 1829 (Imp) (10 Geo IV c 7) which was adopted by Tasmania's colonial Legislative Council in 1830: see Mortenson, "The Unfinished Experiment: A Report on Religious Freedom in Australia," (2007) 21: 1 Emory Int'l L Rev 167 at 185. Importantly, s 46 is not entrenched. Consequently, it can be amended by Tasmanian Parliament simply by passing an ordinary law amending or repealing the provision. Such a law does not even have to express an intention to amend s 46; it can do so impliedly: Hobbs and Williams, "Protecting Religious Freedom in a Human Rights Act", (2019) 93 ALJ 721 at 726; Mortensen at 185-1866. According to George Williams and David Hume, s 46 "offers no protection against an Act that properly construed infringes any of the listed rights. At best, it offers only a political impediment": Williams and Hume, Human rights under the Australian Constitution: Second Edition, Australia, 2013 at p 12.
137 It is well settled that while a State Constitution Act should be interpreted in accordance with the ordinary principles of statutory construction (see Cooper v Commissioner of Income Tax for the State of Queensland (1907) 4 CLR 1304, 1321 per O'Connor J), they should "as far as it is legitimate to do so… be interpreted by the courts in a dynamic fashion so that they remain relevant and appropriate for the changing realities, needs and aspirations of the societies whose structure and affairs they control. However, this does not give the courts any warrant to ignore clear language or to abandon the often long-accepted principles upon which they are based": Ellis v Atkinson [1998] 3 VR 175, at 177 per Vincent J. See also Herzfeld and Prince, Statutory Interpretation Principles: Second Edition, Australia 2021 at [16.20]. Nevertheless, in my view, the text, context and purpose of s 46(1), noting its origins, does not favour an interpretation of the "freedom of conscience" guarantee covering matters standing outside of the religious context for the reasons expressed by Walsh J in McGee, even acknowledging the requirement to interpret the provision in a "dynamic fashion". Interpreting "freedom of conscience" in this way means the guarantee is not, as the applicant argues, "hollow" in the sense of being limited to the beliefs and mental processes of a person as the outward manifestations of those religious beliefs and mental processes are protected by the further words of s 46(1).
37 No 32/2025
138 In the context of human rights legislation and instruments in other jurisdictions, the notion of "freedom of conscience" has been accepted as being broader than "freedom of religion", even where those freedoms are addressed in the same provision: see discussion in AM at [30]-[45]. In that case, however, Refshauge J surveyed human rights instruments which included express rights to freedom of religion (in combination with freedom of conscience and other freedoms). It is notable that s 46(1) is not expressed in terms of guaranteeing "freedom of religion" but guarantees "freedom of conscience and the free profession and practice of religion". The latter part of that phrase is directed to the outward manifestations of religious beliefs (or conscience).
139 Even accepting that "freedom of conscience" is broader than "freedom of religion" and is capable of "protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organised religious principles"[2], and that the applicant's conduct gave expression to those conscientious beliefs, in my view, the magistrate did not err in finding that the applicant's reliance on s 46(1) of the Constitution Act did not provide a lawful excuse.
[2] Roach v Canada (Minister for State of Multiculturalism and Citizenship) (1994) 113 DLR (4th) 67 at [25] per Linden JA140 The magistrate appeared to reach that view on two separate bases. First, she concluded that s 14B(1) of the Police Offences Act placed no burden on the applicant's freedom to believe deeply in environmental matters and did not restrict his freedom of conscience. Although the magistrate was not referred to McGee or the decision in Corneloup, that conclusion derives support from both of those decisions. No aspect of s 14B(1) compels or coerces the applicant into living or behaving in a way which is contrary to his conscience. Section 14B(1) and s 22(3) of the FM Act in combination do, however, control his ability to engage in conduct he says gives expression to those beliefs on PTPZ land, but only in certain circumstances. It would not limit his ability to engage in conduct to highlight his concerns about the environment and the threat to the swift parrot posed by logging elsewhere, or in a manner that did not impact the effective and efficient operations of STT in the coupe. This aspect of the magistrate's decision does not appear to be the subject of complaint in the particulars of this ground of review.
141 The second basis for the magistrate's rejection of the applicant's lawful excuse defence flowed from her conclusion the applicant's conduct interfered with the rights of others that are protected by s 14B(1) of the Police Offences Act. The magistrate noted the purpose of s 14B(1) was to protect owners or occupiers or persons in charge of land from entry to that land (or interference with that land by remaining on it) without their consent. Her Honour considered that freedom of conscience did not positively excuse the infringement of other's rights or their protection from intrusion which is provided by s 14B(1). It is this aspect of the reasons which is the focus of the particulars of this ground. Those particulars assert that her Honour erred in holding that "the freedom of conscience was incapable of positively excusing conduct that infringed the rights of other persons". In my view, this misconstrues the magistrate's decision. It is clear that she confined her conclusion to the rights which are sought to be protected by s 14B(1) of the Police Offences Act.
142 In any event, the applicant's argument is that his conviction (strictly speaking in this case, the finding of guilt) is a disproportionate response to the manifestation of his conscience by remaining in the coupe. This argument depends on acceptance that the analysis engaged in by the UK Court of Appeal in Attorney General's Reference (No 1 of 2022) applies to the application of s 46(1) in the context of a lawful excuse defence.
143 The issue of proportionality has been further considered by the UK Supreme Court in Abortion Services (Safe Access Zones), Reference by the Attorney General for Northern Ireland [2022] UKSC 32; [2023] AC 505. At 533-534 [54]-[58], Lord Reed, with whom Lord Kitchin, Lord Burrows, Lady
38 No 32/2025
Rose, Lord Lloyd-Jones, Lord Carloway, and Dame Siobhan Keegan agreed, explained the circumstances in which a proportionality assessment arises as follows:
"54. Where a defendant relies on article 9, 10 or 11 Convention rights as a defence to a protest-related offence with which he is charged, the first question which arises is whether those articles are engaged. The conduct in question will fall outside the scope of those articles altogether if it involves violent intentions, or incites violence, or otherwise rejects the foundations of a democratic society…., or if article 17 of the Convention applies (article 17 provides that the Convention does not confer any right on a person to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set out in the Convention or at their limitation to a greater extent than is provided in the Convention). A recent domestic example is Attorney General’s Reference (No 1 of 2022) …where conduct causing significant damage to property, contrary to section 1(1) of the Criminal Damage Act 1971, was held by the Court of Appeal to fall outside the scope of articles 9, 10 and 11. Equally, if a protester were physically to assault another person, knowing that the assault, being newsworthy, would provide him with an opportunity to communicate to the public his views on a matter of public concern, Convention rights would not shield him from the criminal law.
55. If articles 9, 10 or 11 are engaged, the second question which arises is whether the offence is one where the ingredients of the offence themselves strike the proportionality balance, so that if the ingredients are made out, and the defendant is convicted, there can have been no breach of his or her Convention rights. If the offence is so defined as to ensure that any conviction will meet the requirements of proportionality, the court does not have to go through the process of verifying that a conviction would be proportionate on the facts of every individual case... Indeed, many commonly encountered criminal offences, such as offences of violence, and offences concerned with damage to property, are likely to be defined in such a way as to make an assessment of proportionality unnecessary, either because the conduct in question falls outside the scope of protection under the Convention or because proportionality is inherent in the ingredients of the offence. In considering whether the ingredients of the offence ensure the proportionality of a conviction, it is also necessary to bear in mind that decision-makers enjoy a margin of appreciation in relation to interferences with rights protected by articles 9, 10 and 11…. Courts therefore have to accord appropriate respect to the assessment made by the decision-maker, whether that be Parliament in the case of primary legislation or, in the case of offences created by subordinate or devolved legislation, the government or the devolved legislatures or executives.
56. Where the conduct in question falls within the scope of articles 9, 10 or 11, and proof of the ingredients of the offence does not in itself ensure the proportionality of a conviction, then the possibility arises that a conviction might be incompatible with the Convention rights. Given the court’s general duty not to act incompatibly with Convention rights under section 6(1) of the Human Rights Act, subject to the exceptions set out in section 6(2), it is accordingly necessary to consider a third question: whether there is a means by which the proportionality of a conviction can be ensured.
57. If the offence is statutory, the interpretative duty imposed by section 3 of the Human Rights Act may enable the court to construe the relevant provision in a way which renders it compatible with the Convention rights, either by interpreting it in such a way that a conviction will always meet the requirements of proportionality, or by interpreting it so as to allow for an assessment of the proportionality of a conviction in the circumstances of individual cases. For example, a defence of lawful or reasonable excuse may provide a route by which a proportionality assessment can be carried out, where the defence can properly be interpreted, having recourse if need be to section 3 of the Human Rights Act, as including the exercise of Convention rights.
58. But the mistake should not be made of assuming that the presence of a reference to lawful or reasonable excuse in the definition of an offence necessarily means that a proportionality assessment in respect of Convention rights is appropriate. As has been explained, offending conduct may fall outside the scope of articles 9 to 11, with the consequence that no proportionality assessment is required, even though the ingredients
39 No 32/2025
of the offence may include the absence of lawful excuse. That was held to be the case, in relation to section 1(1) of the Criminal Damage Act 1971, in Attorney General’s Reference (No 1 of 2022)… Further, where the ingredients of the offence in themselves do strike the appropriate balance, there is no need for a Convention proportionality assessment when considering the lawful excuse defence. That defence can be relied on in other circumstances that do not raise Convention issues, such as where the defendant asserts that he acted in self-defence or out of necessity, or had been lawfully authorised to engage in the conduct alleged."
144 Even if a proportionality assessment was called for in circumstances where a defendant sought to rely on the constitutional freedom of conscience guarantee, in my view, it is open to conclude that proportionality is inherent in the elements of the offence of trespass where it flows from a request made pursuant to s 22(3) of the FM Act. The purpose of s 14B(1) of the Police Offences Act in combination with s 22(3) of the FM Act is, as identified by the magistrate, to protect the owners, occupiers and persons in charge of PTPZ land from unwanted incursions upon that land. Further, the power to withdraw consent to enter or remain on PTPZ land is premised on enabling STT as forest manager to perform its functions effectively or efficiently or in the interests of safety of its workers and the public and to protect its property: see Brown v Tasmania at 372 [141] per Kiefel CJ, Bell and Keane JJ. By limiting the circumstances in which consent to remain on PTPZ land can be withdrawn, it cannot be said the consequences flowing from a failure to comply with such a request are incompatible with the freedom of conscience guaranteed to the applicant.
145 More importantly, it is readily apparent that a proportionality assessment is one that flows from the particular statutory and human rights contexts at play in the UK. As Lord Reed highlights in Abortion Services (Safe Access Zones) at [56] and [57], it is the terms of the Human Rights Act itself which introduce the requirement for a proportionality assessment. Those provisions, ss 3, 6(1) and (2) are as follows:
"3 Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read
and given effect in a way which is compatible with the Convention rights.
(2) This section–
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any
incompatible primary legislation; and(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
6 Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention
right.
(2) Subsection (1) does not apply to an act if–
(a) as the result of one or more provisions of primary legislation, the authority could
not have acted differently; or(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
40 No 32/2025
(3) In this section 'public authority' includes–
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection
with proceedings in Parliament.
(4) In subsection (3) 'Parliament' does not include the House of Lords in its judicial capacity.
(5) In relation to a particular act, a person is not a public authority by virtue only of subsection
(3)(b) if the nature of the act is private.
(6) 'An act' includes a failure to act but does not include a failure to–
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order."
146 Each of the rights in articles 9-11 of the European Convention are qualified rights. Article 9, for example, concerns freedom of thought, conscience and religion and is "subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others" (emphasis added). Similarly, the restrictions on the freedoms set out in articles 10 and 11 (freedom of expression and freedom of assembly and association respectively) incorporate a test of necessity. It is evident that the proportionality of legislated restrictions on a convention right is linked to the necessity requirement: see Lord Reed in Abortion Services (Safe Access Zones) at 548 [116] where he identified that the issue of "whether the restriction is 'necessary in a democratic society' to achieve the legitimate aims pursued" is "in other words, whether the restriction is proportionate".
147 There is no textual support in s 46(1) or any other provision of the Constitution Act to warrant the introduction of a proportionality assessment. In my view, the terms of s 46(1) are very different: the guarantee is "subject to public order and morality". "Subject to" is not to be equated with a concept of necessity. The text of s 46(1) clearly provides that the guarantee is conditioned by, or subordinate to, public order or morality where they are in conflict.
148 "Public order" is not defined in the Constitution Act. In Magee v Delaney, Kyrou J considered the meaning of the expression "protection of… public order" in the Victorian Charter. He considered at 79 [150] that the "best guide to the meaning of the expression" was the Victorian Charter itself. It was relevant that the term public order was used in conjunction with "national security", "public health" and "public morality" which "focus on the collective welfare of society rather than the rights of individuals". This was consistent with the preamble to the Victorian Charter. In light of those matters, he concluded at 79 [151] the expression:
"means in broad terms, giving effect to rights or obligations that facilitate the proper functioning of the rule of law. This is a wide and flexible concept and includes measures for peace and good order, public safety and prevention of disorder and crime. Without limiting the lawful restrictions that may be reasonably necessary for the protection of public order, they obviously include laws that enable citizens to engage in their personal and business affairs free from unlawful physical interference to their person or property".
149 In this case, the guarantee is contained in the Constitution Act and the meaning of the term "public order" is informed by that context. The Constitution Act itself provides few direct indicators of what is meant by the expression "public order and morality" in s 46(1). The preamble references the enactment of the Australian Constitutions Act 1850 (Imp) (13 & 14 Vic c 59) "for the purpose of
41 No 32/2025
securing the peace, welfare and good government" of the Colony of Van Diemen's Land and that the Constitution Act consolidates that Act and its amendments. It principally provides for the establishment of the legislative arm of government. The parliament's law-making power is still derived from the Australian Constitutions Act which authorises it to make laws for the peace, welfare and good government of the State.
150 Although the Constitution Act is textually distinct from the Victorian Charter, there is much to recommend Kyrou J's conception of the expression "protection of … public order". It is clear that the term "public order and morality" in the context of legislation concerned with "peace, welfare and good government" embraces notions of "collective welfare". In my view, "subject to public order and morality" means that the guarantees provided by s 46(1) are subordinate to legislation introducing measures for peace, good order and public safety generally. The purposes of s 22 of the FM Act and s 14B(1) of the Police Offences Act are each are directed at such matters. The guarantee of freedom of conscience does not provide a lawful excuse for a breach of those provisions; rather it is subordinate to, or subject to, the restrictions imposed by those provisions on the applicant's rights to enter and remain on PTPZ land. Those restrictions directed at the protection of the rights of owners and occupiers of land to the quiet enjoyment of their land including to conduct their business without unlawful interference or compromise to the safety of those at the site.
151 It follows that the magistrate's conclusion that the guarantee did not excuse the infringement of others' rights or their protection from intrusion to the extent they are protected by s 14B(1) of the Police
Offences Act was reasonably open on the evidence.
152 This ground is also not made out.
| Conclusion |
153 As none of the grounds of the applicant's motion to review as amended on 3 April 2025 are made out, it is dismissed.
the land".
cited in AM at [35].
0
18
1