Case Summary and Outcome

Two environmental activists challenged the Protesters Act, a law that placed several restrictions to protesters on forestry land. According to the plaintiffs, the law placed an undue burden on the freedom of political communication and prevented any form of political, environmental, social, cultural or economic protest. Tasmania, in turn, conceded that the Protesters Act may place a slight burden on the freedom, but that it did not apply to the facts in this case. The state also asserted that the Act’s sole purpose was to prevent any form of obstruction of a lawful business activity. The Court, however, deemed that the impugned sections of the Protesters Act were invalid and contrary to Australia’s Constitution. According to the Court, the law did place an undue burden on the freedom of political communication as its ambiguity granted excessive police powers and the law went further than was reasonably necessary.

Facts

Environmental activists Robert Brown and Jessica Hoyt challenged before the High Court of Australia the constitutionality of several provisions of the Workplaces (Protection from Protesters) Act 2014, known as the ‘Protesters Act’, alleging that it infringed the implied freedom of communication in the Australian Constitution.

Brown is a former senator and founder of Australian Greens – an environmental movement and political party – and has participated in public demonstrations since the 1970s. Hoyt, a native of Lapoinya, an area in Tasmania, founded a community group to protest the forest operations undertaken by Forestry Tasmania.

Brown was filming the operations in order to raise awareness about the environmental impact of logging in the forest. He was arrested after he was instructed by two police officers to leave the forest premises. Hoyt was also arrested after failing to leave the forest. Charges against them were dismissed.

Hoyt and Brown sought to impugn sections 6, 7, 8, 11 and 13 and Pt 4 of the Protesters Act. These provisions established prohibitions to protesters in business premises or forestry land.

Decision Overview

The main issue before the Court was if sections 6, 7, 8, 11, 13 and part 4 of the Protesters Act violated the implied freedom of political communication. The main decision was a joint judgment rendered by Justices Kiefel, Bell, and Keane. The justices discussed the constitutionality of the Protesters Act considering the following questions:

1. whether the disputed provisions of the Protesters Act burden the free flow of political communication, and the extent of the burden;
2. what is the purpose of the Protesters Act;
3. whether the purpose of the provisions in question is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government;
4. whether a “compelling justification” is required;
5. whether the provisions in questions are connected to the stated purpose of the Protesters Act;
6. whether the provisions of the Act are reasonably necessary to fulfil the purpose of the Act.

Firstly, the majority stated that “the implied freedom protects the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth. It operates as a limit on the exercise of legislative power to impede that freedom of expression.” [para. 88]

The justices rejected Tasmania’s contention that from the facts of the case it was not shown that the freedom was effectively burdened, holding instead that the facts did show a clear violation of the implied freedom of political communication because of the ambiguity of what constituted a business premise of business access area to the police. This, in turn, caused a deterrent effect on speakers.

The justices also rejected the notion that the provisions of the Protesters Act were only a slight burden on the implied freedom of political communication. They pointed out that the Protesters Act “operates more widely than its purpose requires” because of the excessive police power it grants; and that the “Protesters Act may operate to stifle political communication on the mistaken, albeit reasonable, belief of a police officer as to the effect of protest activity whether or not it involves the presence of protesters on land where they have no right to be and where that question may never be determined by a court.” [para. 109]

Moreover, they conveyed that “other methods of communication are less likely to be as effective as the communication of images of protesters pointing to what they claim to be damage to the natural environment.” [para. 117]

Even though the plaintiffs did not argue for such an approach, the justices also determined that the impugned provisions had a discriminatory effect, noting that the law “imposes a burden on the freedom solely in relation to protesters.” [para. 92] Whilst this did not in itself render the law unconstitutional, it did “identify the group targeted by [the] law and informs the assessment of the restrictions imposed by the law upon the ability of those persons to communicate on matters of politics and government.” [para. 92]

Regarding the second question, the purpose of the Act, the plaintiffs argued that section 6 and associated provisions’ only purpose was to prevent onsite protests that relate to ‘political, environmental, social, cultural or economic issues’, which are the key issues to which electors will have regard when choosing their representatives. For Tasmania, the purpose of the Act was to prevent people from damaging or threatening to damage real or personal property connected with a business, and to ensure that protesters do not impede, hinder or obstruct the carrying out of lawful business activity on business premises or business access areas.

The justices determined that the provisions in question were directed towards conduct which may cause damage to the property of a business or disrupt its activities. In other words, the purpose of the provisions was not to protect the interest of a particular business or to deter protests but to protect businesses and their operations, here forest operations, from damage and disruption from protesters who are engaged in particular kinds of protests.

The justices held that the purpose of the provisions in question, thus understood, was compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

As regards the fourth question, the justices disagreed that the Protesters Act was directed at the content of political communications, which would have required a higher level of justification. The justices held that neither the terms of the Protesters Act nor its purpose sought to affect the content of the opinion which a protester may seek to voice with respect to forest operations.

On the fifth question, the justices established that significant parts of the Act could not be justified in relation to the stated purpose. For example, the court held that the sole purpose of section 8(1)(b), which “deters a person being in any business access area on pain of arrest or penalty, even though they may not present any threat of damage or disruption”, was to deter protestors. The justices concluded similarly with regard to s 11(7) and (8), which impose the blanket exclusion of a whole group of persons from an area by a single direction of a police officer, even when the police officer can not conceivably have formed any view about whether each person is about to contravene the Protesters Act. These provisions were therefore unconstitutional.

The justices finally considered whether the remaining provisions could be considered ‘reasonably necessary’. They held that this “involves determining whether there are alternative, reasonably practicable, means of achieving the same object but which have a less restrictive effect on the freedom. Where such alternative measures are obvious and their practicability compelling it may be difficult for those arguing for the validity of the legislation to justify the legislative choice as necessary”. [para. 139]

The justices found that other legislation, the Forest Management Act (FMA), exists which seeks to ensure that only those persons, protesters included, whose presence or activities are likely to interfere with forest operations will be excluded from forestry land. This legislation does not burden freedom of political communication to the same extent as does the Protesters Act. By contrast, the Protesters Act operated more widely than its purpose requires and was directed at preventing protesters being present within ill-defined areas in the vicinity of forest operations. This could not be justified: “It is likely to deter protest of all kinds and that is too high a cost to the freedom given the limited purpose of the Protesters Act.” [para. 145]

The justices held that “[i]n the measures it adopts to deter protesters the Protesters Act goes far beyond those reasonably necessary for its purpose” [para. 146] and concluded: “The measures adopted by the Protesters Act to deter protesters effect a significant burden on the freedom of political communication. That burden has not been justified. The means adopted cannot be considered as compatible.”

For these reasons, the justices determined the invalidity of 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) in their operation in respect of forestry land or business access areas in relation to forestry land.