Robert James Brown and Another(Plaintiffs) v The State of Tasmania

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Keane JJ.,Gageler J.,Nettle J.,Gordon J.,Edelman J.
• Judgment Date: 18 October 2017
• Neutral Citation: [2017] HCA 43
• Docket Number: H3/2016
• Court: High Court
• Date: 18 October 2017

[2017] HCA 43

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon AND Edelman JJ

H3/2016

Robert James Brown & Anor

Plaintiffs

and

The State of Tasmania

Defendant

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)

Forest Management Act 2013 (Tas), ss 8, 9, 13, 21, 22, 23.

Workplaces (Protection from Protesters) Act 2014 (Tas), ss 6, 8, 11, 13 and Pt 4.

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 stay away from business premises and business access areas under pain of arrest and criminal penalties — Where business premises include forestry land — Where Act allows police officers to give such directions if they reasonably believe protester is preventing, hindering or obstructing business activity, has done so, or is about to do so — Where Forestry Tasmania authorised to undertake forest operations in Lapoinya Forest — Where plaintiffs protested in vicinity of forest operations — Where plaintiffs directed to leave and stay away from forestry land — Where plaintiffs arrested and charged, purportedly under Act, as result of protest activity — Whether Act restricts otherwise lawful protest activity — Whether implied freedom burdened — Whether Act, or provisions thereof, impose impermissible burden on implied freedom in their operation in respect of forestry land and related business access areas — Whether provisions suitable, necessary and adequate in balance.

Constitutional law (Cth) — Where plaintiffs charged under Workplaces (Protection from Protesters) Act 2014 (Tas) — Where charges not pursued — Where plaintiffs intend to engage in conduct unless conduct validly proscribed by Act — Whether plaintiffs have standing to challenge validity of Act.

Words and phrases — “burden”, “business access area”, “discriminatory effect”, “implied freedom of political communication”, “proportionality testing”, “protest activity”, “protester”, “reasonably appropriate and adapted”.

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.

1 Kiefel CJ, Bell AND Keane JJ. In 2014 the Parliament of Tasmania enacted the Workplaces (Protection from Protesters) Act 2014 (Tas) (“the Protesters Act”), the title of which reads:

“An Act to ensure that protesters do not damage business premises or business-related objects, or prevent, impede or obstruct the carrying out of business activities on business premises, and for related purposes”.

2 A “protester” is defined in the Protesters Act to mean a person engaging in a “protest activity”, namely, an activity that takes place on business premises or a business access area in relation to business premises in furtherance of, or for the purposes of promoting awareness of or support for, an opinion or belief in respect of a political, environmental, social, cultural or economic issue 1. A person engages in protest activity if the person “participates, other than as a bystander, in a demonstration, a parade, an event, or a collective activity, that is a protest activity” 2. A person is not to be taken to be engaging in a protest activity if they have the consent of a business occupier to be on the premises and to there engage in the protest activity 3.

3 The definitions of “business premises” and “business access area, in relation to business premises” (“business access area”) and their place in the Protesters Act will be discussed in more detail later in these reasons. It suffices presently to note that the definition of “business premises” includes “forestry land” 4, which is relevantly “an area of land on which forest operations are being carried out” 5.

4 The two plaintiffs were present at different times in the Lapoinya Forest for the purpose of raising public and political awareness about the logging of the forest and voicing protest to it. They were each arrested and charged with offences under the Protesters Act. The charges against the plaintiffs were not proceeded with and were ultimately dismissed when no evidence was tendered by the prosecution with respect to them.

5 The plaintiffs challenge the validity of certain provisions of the Protesters Act, and to that end invoke the test for invalidity stated in Lange v Australian Broadcasting Corporation6 as explained in McCloy v New South Wales7 with respect to laws which restrict the freedom of communication about matters of politics and government which is implied in the Constitution. The first question stated by the parties in the Special Case asks whether either or both of the plaintiffs have standing to seek the relief sought. There is now no dispute concerning the plaintiffs' standing because the defendant has conceded that the plaintiffs have standing. That question therefore need not be answered. It is necessary also to amend the second question so that it refers to business access areas in relation to forestry land, in addition to forestry land. Accordingly the two remaining questions stated by the parties for the determination of the Court should read as follows:

(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?

(3) Who should pay the costs of the Special Case?

6 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

7 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 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...