Do we have a constitutional right to protest?
On Wednesday the full bench of the High Court handed down their findings in Brown v Tasmania. The case was brought about after former Greens leader Bob Brown and a number of other people were arrested last year for protesting against logging in a Tasmanian forest. A majority of the High Court found that most of the legislation that the Tasmanian Government had implemented to make such protests illegal was invalid.
This week we examine the implied right to political communication and the importance of proportionality in legislation.
The Tasmanian Liberal Government was elected in March 2014 on the promise of rebuilding the State’s forestry industry. One of the first pieces of legislation passed by the Parliament was the Workplace (Protection from Protesters) Act 2014. This legislation criminalised some forms of protest that interfered with business activity at any business premises or business access areas on public or private land. Workplaces were already protected through existing legislation, but the new laws imposed much higher financial and criminal penalties (up to $250,000 and five years jail) and were easier for the police to enforce. The police were also given preventative powers where they could ask people to leave an area (for up to three months) if they believed they were about to commence an activity that might disrupt a business, rather than the normal practice of asking active protesters to move on. The penalty for not moving on when directed to by the police was $10,000 and up to four years jail.
In January 2016 about 70 people arrived at Lapoinya in the north-west of Tasmania to protest the clear felling of Forestry Tasmania’s 49-hectare regrowth forest. Bob Brown, Hobart nurse Jessica Hoyt and a number of others refused to leave the forest when directed to by the police. They were subsequently arrested using the State Government’s anti-protest laws. This was the first time the laws had been used and those arrested were faced with the prospect of jail time and/or significant fines.
Two months later Bob Brown announced that he was going to challenge the laws in the High Court on the basis that they breach the implied Constitutional right to political communication. Shortly afterwards the charges were dropped. This was viewed suspiciously by many as a way to prevent a challenge to the legislation, but this was denied by the Government and the police. However, the Tasmanian Government did attempt to have the case discontinued on the grounds that Bob Brown no longer had a special interest in the legislation and as such had no standing in the Court. Eventually the Tasmanian Government dropped the push to have the case discontinued on standing.
In the end, several other states and the Commonwealth joined the case on Tasmania’s side. It was suggested that whatever was decided by the High Court about the Tasmanian legislation may affect similar laws in the other states and the Commonwealth.
The High Court
The first question the High Court had to answer was about whether Bob Brown and Jessica Hoyt had standing. Since the push against standing was dropped, the High Court did not need to answer that question. The second question was:
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?
The High Court found that most of the Act was invalid (seriously, we went through the legislation with a marker pen and crossed out all the bits that were invalid. Apart from the definitions, there wasn’t much else left).
The final question asked was who should pay the costs of the case and the answer to that was the Tasmanian Government.
The implied freedom of political communication
The Australian Constitution contains very few written rights. It was a deliberate decision of the writers of our Constitution to trust the democratic process to protect our rights. You’ll find that we have property rights, the right to a trial by jury, the right to be treated equally by each State and religious freedoms all written directly in the Constitution.
The High Court, through its interpretation of the Constitution, has found that we have two implied democratic rights. These are the implied right to vote and the implied freedom of political communication. But these rights are limited. For instance, if a law infringes on the implied right to political communication, but the purpose of the law is reasonable and appropriate to achieve that purpose, then the law may be valid. An individual’s rights under the Constitution often must be balanced with the protection of others in the community.
As such, when determining whether the Tasmanian anti-protest laws may have breached the implied right of political communication, the Court examined the purpose of the law.
The majority of the High Court found that the legislation was excessive. The purpose of the law was to protect Forestry Tasmania from protests that interfere with their operations and access to forestry land. It was found that this is a reasonable purpose, but that the legislation was not reasonably appropriate or adapted to that purpose. The Justices found that the legislation went far beyond what was reasonably necessary to achieve its purpose and is not compatible with the implied freedom of political communication. Among other things, the legislation was considered too vague in its definition of the areas of forestry areas where people could not protest and the powers given to the police were found to be too wide.
The legislation gave the police the discretion to break up protests which was considered a discriminatory burden against political communication of a particular political view. Justice Gageler stated that laws that operate against particular political viewpoints require very close scrutiny.
So do we have a right to protest?
Not necessarily. This High Court decision may not affect other legislation that has been implemented that prevents some protests, as long as the purpose of the legislation is not broader than it needs to be to meet its purpose.
Some of the States have introduced legislation that prevents protests within a certain proximity to abortion clinics. These States will likely re-examine their legislation to ensure that it is reasonably appropriate and adapted for the purpose of protecting women and businesses to conduct lawful activities. Part of the judgement from Justice Nettle clarifies this:
The implied freedom of political communication is a freedom to communicate ideas to those who are willing to listen, not a right to force an unwanted message on those who do not wish to hear it, and still less to do so by preventing, disrupting or obstructing a listener’s lawful business activities. Persons lawfully carrying on their businesses are entitled to be left alone to get on with their businesses and a legislative purpose of securing them that entitlement is, for that reason, a legitimate governmental purpose.
The High Court decision on this case was split. Chief Justice Kiefel and Justices Bell and Keane wrote a joint judgement that found that 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 legislation was invalid. Justices Gageler and Nettle agreed with the invalidity of the same sections of the legislation, but wrote their own reasoning. Justice Gordon dissented and found that only one section of the legislation was invalid and Justice Edelman also dissented, finding that the legislation in its entirety was lawful.
This may mean that the implied freedom of political communication is not yet settled. As such, we may see more protesters challenging other anti-protest legislation in the High Court.