Brown v Tasmania (2017) 261 CLR 328: A special case on the laws of the Tasmanian forestry protests and the implied freedom of communication

CONSTITUTIONAL LAW
CASE STUDY ASSESSMENT TASK
Brown v Tasmania (2017) 261 CLR 328.
Brown v Tasmania can be seen as a ‘special case’ on the laws of the Tasmanian forestry
protests and the implied political freedom on communication. Its significance lies in the fact that
the main issue in the case is whether the numerous anti-protesting provisions were burdening the
implied freedom of the political communication1. It was found by the majority judges that the
provisions were invalid, one of the judges was seen to be partially dissenting by finding only one
provision invalid and one judge was seen to be fully dissenting.
The plaintiffs (Browns) were present in the forest of Lapoinya and were engaged in
voicing protests and raising both political and public awareness against the logging operations at
the time when the forestry operations were carried out. The plaintiffs had been arrested and
charged under the sections 8(1)2 and 6(4)3 of the Workplace (Protection from Protesters) Act
2014 (Tas). Although the charges were dismissed, yet the plaintiffs were seen to be challenging
the validity of the anti-protest provisions of the Act.
A certain range of provisions are laid down by the Workplaces (Protection from
Protesters) Act 2014 (Tas) for prohibiting any person from engaging in activities relating to any
kind of protest. In the section 4 of the Act4 protest has been defined as activities that have been
taking place on any business premises or any access area relating to any business which is also
seen to be including forestry lands where the forestry operations are carried out for the purpose
1 Bartlett, W. (2017). The Raised Spectre of Silencing Political and Environmental Protest: Will the High Court Find
the Workplaces (Protection from Protesters) Act 2014 (Tas) Impermissibly Infringes the Constitutionally Implied
Freedom of Political Communication in Brown v. The State of Tasmania. U. Tas. L. Rev., 36, 1.
2 Workplace (Protection from Protesters) Act 2014 (Tas),s.8(1)
3Ibid, s.6(4)
4 Ibid, s.4

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of the promotion of awareness any belief or opinion about any issue related to the political,
social, economic, environmental, or cultural problems. As per section 65 of the Act it has been
prevented for the protesters to be entering or doing any act on a business premises that would be
preventing, hindering or obstructing the ongoing business activities. Disobeying police officer’s
orders for leaving any premises under section 11 is considered an offence under section 6(4) of
the Act. Disobeying police officer’s orders by re-entering any area where the direction for
leaving the premises under section 116 was issued, is considered an offence under section 8 of
the Act. Under the provisions of section 137 police are given powers for making warrantless
arrests if any contravention of the Act is done.
In this ‘special case’ a first question was raised on the stand of the plaintiffs for seeking
relief, where it was conceded by the defendants that the standing of the plaintiffs was clear and
there was no need for the question to be answered. There were seven judges in the case and the
majority (Kiefel CJ, Bell, Keane JJ and Nettle J, Gageler J) agreed that the provisions were
invalid as they provide burden on the implied freedom of political communication. According to
Gordon J section 8 was only invalid and according to Edelman J none of the sections of the Act
were invalid.
The analysis of the terms, operation and effect of the Act was done by the joint judges
(Kiefel CJ, Bell and Keane JJ) after the review for the background matters; history of the Act and
the disputed provisions was done. The disputed provisions were found to be having significantly
deterring effect on the protesters, extending even to those protestors whose presence would not
5 Ibid, s.6
6 Ibid, s.11
7 Ibid, s.13

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be affecting the forest operations or even to those protestors whose presence have been excluded
by the Forest Management Act 2013(Tas).
It was held by the joint judges that the first limb of the test in the case Lange v Australian
Broadcasting Corporation8, whether the provision is in fact burdening the implied freedom of
the political communication, was affirmative. For examination of the burden it involves the
consideration for how the statute would generally affect thee freedom. In examining the statute,
it was seen clearly that the operations of the provisions of the statute on the plaintiffs it can
clearly be seen that the freedom has been burdened. The judges reasoned that the police officers
arresting and removing the plaintiffs were unable to determine correctly if the plaintiffs were
present on those premises or in that area, even when the plaintiffs were neither on the business
premises nor in the business access area. As a result of the errors of the police the protests and
the communications of the plaintiffs to the others about the forest operations had been silenced.9
The joint judges held while considering the purpose of the Act that- “sections 6 and 7
indicate that it is directed to prevent conduct that may damage a business or disrupt its activities
and to deter protesters as a potential source of that harm”.
The test adopted that had been in McCloy v NSW10 was restated in the case by the joint
judges. Whether a law can impermissibly be burdening the implied freedom of political
communication was determined by referring to the following questions:
1. Can the law be seen to effectively burden the implied freedom of the political
communication?
8 Lange v Australian Broadcasting Corporation [1997] HCA 25.
9 High Court of Australia, Brown v Tasmania2017 (Tas).
10 McCloy v NSW (2015) 257 CLR 178 at [2].