Brown v Tasmania

Case [2017] HCA 43

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

ROBERT JAMES BROWN & ANOR  PLAINTIFFS

AND

THE STATE OF TASMANIA  DEFENDANT

Brown v Tasmania

[2017] HCA 43

18 October 2017

H3/2016

ORDER

Question 2 of the Special Case dated 9 December 2016 be amended and the questions stated in the Special Case (as so amended) be answered as follows:

Question 1

Do either or both of the plaintiffs have standing to seek the relief sought in the Amended Statement of Claim?

Answer

The defendant abandoned its challenge to the plaintiffs' standing.  Question 1 therefore need not be answered.

Question 2

Is the Workplaces (Protection from Protesters) Act 2014 (Tas), either in its entirety or in its operation in respect of forestry land or business access areas in relation to forestry land, invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?

Answer

Section 6(1), (2), (3) and (4), s 8(1), s 11(1), (2), (6), (7) and (8), s 13 and Pt 4 of the Workplaces (Protection from Protesters) Act 2014 (Tas) in their operation in respect of forestry land or business access areas in relation to forestry land are invalid because they impermissibly burden the implied freedom of political communication contrary to the Commonwealth Constitution.

Question 3

Who should pay the costs of the Special Case?

Answer

The defendant should pay the plaintiffs' costs.

Representation

R Merkel QC and F I Gordon with C J Tran for the plaintiffs (instructed by Fitzgerald & Browne)

M E O'Farrell SC, Solicitor-General of the State of Tasmania with S K Kay for the defendant (instructed by Solicitor-General's Office (Tas))

Interveners

S P Donaghue QC, Solicitor-General of the Commonwealth with P D Herzfeld for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

P J Dunning QC, Solicitor-General of the State of Queensland with A D Keyes and P D Mott for the Attorney-General of the State of Queensland, intervening (instructed by Crown Solicitor (Qld))

R M Niall QC, Solicitor-General for the State of Victoria with M A Hosking for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

C D Bleby SC, Solicitor-General for the State of South Australia with T N Golding for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

S E Pritchard SC with J E Davidson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))

B W Walker SC with J A Redwood and P M Bindon for the Human Rights Law Centre, as amicus curiae (limited to written submissions) (instructed by DLA Piper)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Brown v Tasmania

Constitutional law (Cth) – Implied freedom of political communication – Workplaces (Protection from Protesters) Act 2014 (Tas) – Where Act empowers police officers to direct protesters to leave and…

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Details
AGLC
Brown v Tasmania [2017] HCA 43
Case
[2017] HCA 43
Decision Date

CaseChat Overview and Summary

In *Brown v Tasmania*, the plaintiffs challenged the constitutional validity of certain provisions of Tasmania's *Workplaces (Protection from Protesters) Act 2014* (the Protesters Act). The plaintiffs, who had protested forestry operations on forestry land, were directed to leave and stay away from the land under the Act, and were subsequently arrested and charged, though these charges were not pursued. The case was heard by Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ.

The central legal issue before the High Court was whether the Protesters Act, particularly in its operation concerning forestry land and related business access areas, impermissibly burdened the implied freedom of political communication guaranteed by the Commonwealth Constitution. The plaintiffs contended that the Act restricted their otherwise lawful protest activities, and they sought a declaration of invalidity. A preliminary question regarding the plaintiffs' standing to bring the challenge was rendered moot as the defendant abandoned its objection.

The Court determined that specific provisions of the Protesters Act, namely ss 6(1)-(4), 8(1), 11(1)-(2), (6)-(8), 13, and Pt 4, were invalid in their operation concerning forestry land or business access areas in relation to forestry land. This invalidity arose because these provisions impermissibly burdened the implied freedom of political communication. The Court reasoned that while the Act targeted "protesters" and their conduct, its broad application and the powers it conferred on police officers to direct individuals to leave and stay away from business premises, under threat of arrest and criminal penalties, extended beyond what was reasonably appropriate and adapted to serve a legitimate purpose. The Court found that the Act, in its application to forestry land, imposed an undue restriction on the capacity for political communication concerning matters of public interest, such as forestry practices.

The Court ordered that sections 6(1), (2), (3) and (4), s 8(1), s 11(1), (2), (6), (7) and (8), s 13 and Pt 4 of the *Workplaces (Protection from Protesters) Act 2014* (Tas) were invalid in their operation in respect of forestry land or business access areas in relation to forestry land. The defendant was ordered to pay the plaintiffs' costs of the Special Case.

Orders

Orders of the court

Question 2 of the Special Case dated 9 December 2016 be amended and the questions stated in the Special Case (as so amended) be answered as follows:

Question 1

Do either or both of the plaintiffs have standing to seek the relief sought in the Amended Statement of Claim?

Answer

The defendant abandoned its challenge to the plaintiffs' standing. Question 1 therefore need not be answered.

Question 2

Is the Workplaces (Protection from Protesters) Act 2014 (Tas), either in its entirety or in its operation in respect of forestry land or business access areas in relation to forestry land, invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?

Answer

Section 6(1), (2), (3) and (4), s 8(1), s 11(1), (2), (6), (7) and (8), s 13 and Pt 4 of the Workplaces (Protection from Protesters) Act 2014 (Tas) in their operation in respect of forestry land or business access areas in relation to forestry land are invalid because they impermissibly burden the implied freedom of political communication contrary to the Commonwealth Constitution.

Question 3

Who should pay the costs of the Special Case?

Answer

The defendant should pay the plaintiffs' costs.

Background

Background to the litigation

The Protesters Act has a wider application than to business premises that are forestry land. Indeed the definition of "business premises" in s 5 of the Protesters Act extends to various business premises as that term might be ordinarily understood, and to business activities conducted upon them. However, the facts in the Special Case are limited to operations conducted on forestry land and protests with respect to them. There is also a particular historical, social and legislative background to forest operations and public access to forests in Tasmania, and demonstrations in forests appear to have been the catalyst for the Protesters Act. In the course of argument the plaintiffs effectively restricted their case to key provisions of the Protesters Act so far as they concern forestry land. The Court should not speculate about the operation and effect of the Protesters Act in other contexts. These reasons are therefore limited to the question of the validity of the relevant provisions of the Protesters Act in their operation with respect to forestry land or business access areas in relation to forestry land, namely, ss 6, 7, 8, 11 and 13 and Pt 4 of the Protesters Act. Background facts The Lapoinya Forest is situated near the township of Lapoinya in North West Tasmania. It is some 89 hectares in size. Part of the forest was identified as Forestry Coupe FD053A ("the coupe") in a Forest Practices Plan ("the FPP") which was submitted by Forestry Tasmania to the relevant authority in December 2015 to obtain authorisation to conduct forest operations[8]. That authorisation was provided. Those operations included tree felling in the coupe.[8]See Forest Practices Act 1985 (Tas), Pt III, Div 1, which sets out the requirements applying to Forest Practices Plans. Forestry Tasmania is the "Forest Manager" as defined by the Forest Management Act 2013 (Tas) ("the FMA") and has the management and control of all land which is "permanent timber production zone land" ("PTPZ land")[9]. The land in the coupe was PTPZ land within the meaning of the FMA. If forest operations are occurring on PTPZ land, that land is "forestry land" for the purposes of the Protesters Act. [9]Forest Management Act 2013 (Tas), ss 7 and 8. The map which accompanied the FPP identified the boundaries of the coupe and the boundaries of the "harvest area" within it in which tree felling was permitted. The land which the FPP so identified did not include any land declared as reserved land under the Nature Conservation Act 2002 (Tas). Land of this kind abutted the south eastern boundary of the forest ("the Reserve"). The work undertaken by Forestry Tasmania in the coupe involved clearing old forest roads and constructing new roads in preparation for logging. Forestry Tasmania decided to close two forest roads – that part of Maynes Road which was within the coupe, and Broxhams Road, which bounded the south eastern boundary of the coupe. It did so by erecting signs advising of the closure of the roads to all unauthorised vehicular and pedestrian traffic and by suspending chains across the roads a short distance from the signs, as it is entitled to do under the FMA. Some of the operations undertaken by Forestry Tasmania involve the use of heavy machinery. It is accepted that it has statutory duties and obligations to ensure, so far as reasonably practicable, the health and safety of persons from those operations[10].[10]Work Health and Safety Act 2012 (Tas).The plaintiffs

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ, BELL AND KEANE JJ
For these reasons, the State of Tasmania did not concede that the Protesters Act imposed any relevant burden in the circumstances of this case. But even if such a concession of law had been made, I would not accept it without first construing the meaning of the Protesters Act. My construction of that Act leads to the conclusion that, as the States of Tasmania, Victoria, and South Australia submitted, no burden is imposed by the Protesters Act. F. Conclusion The necessary first step before assessing constitutional validity is to determine the meaning of legislation. On the proper construction of the Protesters Act, in relation to forest operations and areas of access to those operations, the relevant provisions apply only to conduct which is already independently unlawful under the unchallenged provisions of the Forest Management Act. Any other construction would render the meaning of the Protesters Act unintelligible to those to whom the Act is directed. Within an intelligible narrow construction, which minimises the intrusion into freedom of speech, the Protesters Act still imposes penalties and other consequences on protesters for their unlawful conduct which go beyond the burdens imposed by the Forest Management Act. Those additional consequences are only borne by protesters. But the essential point is that the additional consequences are imposed on independently unlawful conduct. However high the value that one puts upon a freedom of political communication, the constitutional area of "immunity from legal control"[585] does not extend to persons whose conduct is independently unlawful. [585]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560, quoting Cunliffe v The Commonwealth (1994) 182 CLR 272 at 327; [1994] HCA 44. The substantive question remaining in the Special Case, concerning the alleged invalidity of provisions of the Protesters Act, should be answered, "no". The plaintiffs should pay the defendant's costs.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL AND KEANE JJ

Where an infringement notice is issued to an individual by a police officer with respect to an offence under s 6(4) or s 8(1), a penalty of two penalty units ($318) may be imposed on that individual[34].[34]Workplaces (Protection from Protesters) Act 2014 (Tas), s 15(3).The terms, operation and effect of the Protesters Act In order to answer the question whether a statute impermissibly burdens the implied freedom of political communication, it is necessary to consider in some detail the operation and effect of the statute[35]. That consideration assumes particular importance in this matter.[35]Unions NSW v New South Wales (2013) 252 CLR 530 at 553-554 [35]-[36]; [2013] HCA 58. An obvious feature of the Protesters Act is that it is expressed to apply only to protesters. Other persons who might be present on, or remain on, land where forest operations are taking place and who do acts which affect forest operations in the ways mentioned in s 6(1), (2) and (3) are not subject to the Protesters Act or its consequences. The Protesters Act may be contrasted in this respect with the FMA, which applies to all persons. Another feature is that the definition of "protester" in the Protesters Act refers expressly to matters about which protesters may be voicing opinions. Those matters and opinions receive no further mention in the Act, the operative provisions of which are addressed to the conduct of protesters as it may impact upon forest operations. It would seem that protesters are identified in this way because they, or some of them, are seen to be persons who are likely to engage in that conduct. It may be accepted that protesters will seek to conduct protests concerning forest operations, such as clearing or tree felling, in the vicinity of those operations. The plaintiffs refer to protests of this kind generally as "onsite protests". It is important, however, to recognise that protests will take different forms and some will occur much closer to forest operations than others. The Fact Sheet for the Protesters Bill itself distinguishes between protests which are intentionally disruptive of business activity and peaceful protests. The former kind of protest might involve physical interaction between protesters and machinery being used in forest operations, the physical presence of protesters in or around trees due to be felled, physical confrontations with Forestry Tasmania personnel and blocking access to forest operations. It is to be inferred from ss 6 and 7 that the Protesters Act is directed to protesters engaged in protests of that kind because it is the activities involved in such protests which are likely to damage or prevent, hinder or obstruct business activities conducted on forestry land. Not all protests can be assumed to be of that kind. Indeed, the facts in the Special Case do not suggest that activities resulting in such damage or harm have been common occurrences in protest actions which have been conducted over many years. To take one example similar to the facts of the Special Case, a protest may involve persons standing at a distance from, but within sight of, forest operations, holding placards, voicing their protests and being filmed. Protesters of this kind are also likely to be affected by the exercise of powers under the Protesters Act.