LSB February 2018_Web_LSSA

POLITICS AND THE LAW
Protest and Political Communication
after Brown v Tasmania
PROF MARY HEATH, DEAN (EDUCATION), COLLEGE OF BUSINESS, GOOVERNMENT & LAW, FLINDERS UNIVERSITY,
& DR PETER BURDON, ASSOCIATE PROFESSOR, ADELAIDE LAW SCHOOL
personal right to political
A communication has never been a
vibrant part of Australian law. In the
absence of a Bill of Rights or other
express legislative protection, those wishing
to assert such a right have creatively argued
for the existence of an implied right
in the Constitution. In Ansett Transport
Industries (Operations) Pty Ltd v Commonwealth
(1977) 139 CLR 54 [13] Justice Lionel
Murphy argued that our system of
representative government required
“freedom of movement, speech and other
communication, not only between the
States, but in and between every part of
the Commonwealth [13]”.
Murphy’s argument was debated and
adapted over the next 20 years. However,
in Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520 the High Court
unanimously affirmed the implied freedom
of political communication. To determine
whether a piece of legislation contravened
the implied freedom, the High Court
developed a test (the Lange test) which
was refined most recently in McCloy v New
South Wales [2015] HCA 34. The test poses
three questions.
1. Is the freedom burdened? Is political
communication deterred or limited by
the Act? (“burden”)
2. Is the purpose of the Act compatible
with the maintenance of responsible,
representative government?
(“justification”)
3. Is the burden the Act imposes
proportionate to the purpose the
legislation seeks to achieve? Is there
a realistic way of achieving that
purpose with less restriction of the
freedom of political communication?
(“proportionality”) 1
This was the legal position when the state
of Tasmania introduced The Workplaces
(Protection from Protesters) Act in 2014. The
legislation specifically targeted protest,
defined in s 4 to include any activity
promoting “awareness of or support for
… an opinion, or belief, in respect of a
political, environmental, social, cultural or
economic issue” taking place on business
premises. The very broad s 5 definition
of “business premises” included publicly
owned land, such as “business access
areas” and mining and forestry sites. The
new laws dramatically increased penalties
for conduct which was already penalised
by the general criminal law. For example,
under s 8, protesters who failed to “move
on” from a business premises after a lawful
direction faced a $10,000 fine.
The Act was immediately controversial.
While the Tasmanian government
announced that it would “[n]o longer …
tolerate the extremists”, 2 rapporteurs from
the United Nations argued that the Act
“would contravene Australia’s…obligations
under international human rights law”. 3
The stage was set for a challenge. In
January, 2016, Bob Brown and Jessica
Hoyt were arrested while protesting in
the Lapoinya State Forest. Brown was
charged with refusing a police order
to leave a “business access area” while
Hoyt was charged with returning to a
“business premises” after being ordered
to leave. Although the charges against
Brown and Hoyt were dropped, they went
to the High court to argue that the Act
unconstitutionally restricted freedom of
political communication. The Tasmanian
government was joined by the Federal
Government and several states to fight the
challenge.
After two days of argument and five
months of deliberation, the majority of
the High Court (Kiefel CJ, Bell and Keane
JJ, Gageler J, Nettle J) found that sections
of The Workplaces (Protection from Protesters)
Act were unconstitutional. Gordon J took
a more restrictive approach, holding that
only s 8 of the Act was invalid. Edelman
J up held the validity of the Act. We will
focus on the joint judgement of Kiefel CJ,
Bell and Keane JJ and their application of
the Lange test.
First, the justices considered whether
freedom of political communication was
burdened by the Act. In doing so, they
focused on the vagueness of terms like
“business premises” and “business access
area” and noted that it would be very
difficult for protesters and police alike
to tell with certainty when an individual
was in breach of the legislation. Indeed,
it was uncertainty over this very point
that led Tasmanian police to drop the
charges against Brown and Hoyt. The
justices argued:
The point to be made is not that prosecutions
of charges made under the Protesters Act are
unlikely to succeed, if they do proceed. It is
that the difficulty associated with identifying the
area to which the Protesters Act applies in a
given circumstance is likely to result in errors
being made….The result will be that some
lawful protests will be prevented or discontinued
and protesters will be deterred from further
protesting [77].
The plurality found that this impact
“burdened” political communication within
the meaning of the Lange test. They then
found that the Act could be justified by a
legitimate purpose – namely the “protection
of businesses and their operations, here
forest operations, from damage and
disruption from protesters who are engaged
in particular kinds of protests [101]”.
Further, Tasmania was entitled to burden
the freedom of political communication in
its efforts to achieve a legitimate purpose.
However, under Lange, any burden must
be reasonably proportionate to the purpose
of the legislation. The justices held that
provisions prohibiting protesters from
returning to a business area for four days
after a direction and provisions excluding
“whole groups of persons” [136] were not
consistent with the Act’s stated purpose.
Rather, the Court held: “[t]he inference
to be drawn is that [the Act] is directed
solely to the purpose of deterring
protesters [135]”.
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THE BULLETIN February 2018