Brown v Tasmania [2017] HCA 43 (18 October 2017) Action Applying the Implied Freedom of Political Communication

Brown v Tasmania [2017] HCA 43 (18 October 2017) Action Applying the Implied Freedom of Political Communication

Constitutionality of Tasmanian Protest laws

The plaintiffs, Bob Brown and Jessica Hoyt, were protesting in the Lapoinya Forest against commercial logging activities. Police officers directed Mr Brown and Ms Hoyt to leave the Lapoinya Forest at separate times and arrested the plaintiffs under the Workplaces (Protection from Protesters) Act 2014 (Tas.) (‘Protesters Act’) for refusing to do so. The charges were ultimately dismissed. The plaintiffs subsequently challenged the validity of certain provisions of the Protesters Act.

The Protesters Act provided for increased police powers to prevent disruption to commercial operations from the conduct of protesters on land specified in the provisions, including the physical removal and arrest of protesters without a warrant.

The key issue the Court had to consider was whether these provisions of the Protesters Act infringed upon the implied right to freedom of political communication contrary to the Commonwealth Constitution. The Court held 6:1 that the provisions were invalid (Edelman J dissenting).

In their joint majority judgment, Kiefel CJ, Bell and Keane JJ first considered the test in Lange v Australian Broadcasting Corporation1 for the implied freedom of political communication:

  1. Does the law effectively burden the freedom in its terms, operation or effect?

  2. If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government?

3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object?

In Brown, the plurality found that the freedom was clearly burdened. In considering the legitimacy of the burden and its compatibility with the constitutionally prescribed system of representative government, their Honours applied the proportionality test set out in McCloy v NSW.2

In Brown, the joint judges re-worded steps 2 and 3 in the McCloy test to the following:

  1. If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

  2. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

1 (1997) 189 CLR 520 2 (2015) 257 CLR 178

In applying the proportionality test, the plurality held that the provisions legitimately prevented damage and disruption to commercial activities but did not meet the criteria for suitability and necessity.3 The measures prescribed in the Act were held to have imposed a significant and unjustified burden4 on the freedom due to t

he ambiguity5 surrounding the increased police powers

and the effect of the provisions which prevented the freedom of protesters.

Gageler and Gordon JJ also concluded that the provisions were invalid but criticised the proportionality test in McCloy. The Court all found that the proportionality test in McCloy is not a strict test of validity in every circumstance but rather a tool for analysis.

Stephen Keim SC Beatrice Hamburg 15 March 2018

3 [139]-[146] 4 [152]-[153] 5 [115]-[117]

Garth O'Rafferty