Brown & Anor v Tasmania: Freedom of Speech and Political Expression

This paper provides an analysis of Brown & Anor v State of Tasmania, focusing on its constitutional significance. The case examines whether the Protection from Protesters Act infringes upon the implied freedom of speech and political expression under the Australian Constitution, as established in Australian Capital Television v Commonwealth. The essay explores the Act's provisions, particularly sections 3, 6, and 7, and their impact on protest activities. It also discusses the implications for the Commonwealth of Australia v The State of Tasmania (1983) case, specifically concerning the World Heritage Conservation Act. The paper highlights the importance of freedom of speech in a democratic society and the High Court's role in interpreting constitutional rights, concluding that the Protection from Protesters Act raises significant constitutional issues regarding the balance between public order and the right to express political views.

Constitutional Significance of Brown & Anor v State of Tasmania
Name of Student

This paper seeks to examine the constitutional significance of a case by the name of
Brown & Anor v The State of Tasmania. This is a case that sought to argue that the Protection
from Protesters Act was unconstitutional, and it violated the implied right to freedom of political
speech and expression. Moreover, this paper examines the manner in which the Protection from
Protesters Act could be used to determine the 1983 case of the Commonwealth of Australia v
The State of Tasmania. This was a case that raised a number of constitutional issues, including
the validity of the World Heritage Conservation Act1.
Brown & Anor v The State of Tasmania (2017) is an important case that raises weight
constitutional issues touching on the freedom of speech on political matters and issues of
government. Note that, any democracy in the world; value this element of freedom of speech and
association. This is an important element that characterizes a democratic government. Australia
is one of the major democracies. However, the Australian constitution does not expressly provide
for the freedom of speech on political issues and matters of government. It is based on this fact
that the Australian High Court, under the 1992 case of Australian Capital Television v
Commonwealth, came up with a decision that freedom of speech on matters of politics and
government is implied in the Australian constitution2.
In this leading case, the challenge was on the constitutional validity of the 1991 Act of
Political Broadcasts and Disclosures, and whether this law violated the provisions of the
Australian constitution. This law was enacted to regulate the process of advertising during the
elections time, and it made it mandatory for media organizations to provide a free broadcast of
political activities at designated times. Based on these provisions, the Australian Capital
1 Commonwealth of Australia v The State of Tasmania (1983).
2 Australian Capital Television v Commonwealth (1992) HCA

Television was challenging the provisions of this law, and it wanted them to be declared invalid.
Upon close examination of this act of parliament, the Australian High court declared it to be
invalid. This is because the acted violated the implied right to the freedom of speech that is
guaranteed by the constitution. While making this act of parliament to be invalid, the High Court
was of the opinion that people have a right to express themselves, if it involves issues touching
ion governance, political matters and public issues. These rights are implied by the Australian
constitution.
In the view of the High Court, freedom of expression and speech is a fundamental
requirement of a democratic society, without which, the principles of democracy cannot hold.
The Australian constitution promotes the principles of democratic governance, thus, it can be
implied that the freedom of speech and expression are part and parcel of the constitution. There
have also been a number of subsequent cases that are talking about the constitutionality of the
freedom of speech and expression on matters relating to governance and political affairs. These
rulings have been used for purposes of determining the scope of implied freedom of speech and
expression. On this note, the scope normally extends to:
 Discussion of political issues and government affairs.
 Performance of government officials and members of parliament.
 Discussion of the performance of government officials, their conduct and whether they
are fit for service.
 The constitutionality of the various acts of parliament.
On this note, the freedom of speech on political matters and affairs of government only extends
to areas where political issues are involved.

Basing on these facts, it is important to denote that Brown & Anor v The State of
Tasmania (2017) HCA raises the constitutional issues of freedom of speech on political
governance and affairs3. This case challenges the constitutionality of an act of parliament called
Protection from Protesters Act that was enacted in 2014. According to the petitioner, the act is
invalid and this is basically because it contravenes the implied freedom of speech and expression
as outlined in the leading case of Australian Capital Television v Commonwealth.
The case aims at challenging whether the act passes the constitutional test. This law
places on spot fines to people who are caught violating it, and repeat offenders are given tougher
penalties if caught. Brown and Anor argue that the law violates their right to freely express
themselves, because it limits their capability to protest against political activities that touches on
environmental issues. Note that, while challenging this law, the plaintiffs were arrested in 2016,
for protesting against the proposed logging activities at the Lapoinya Forest. This is a forest that
is found in Tasmania.
While building up their case, Brown & Anor uses 3 of the Protection from Protesters Act.
Section 3 of the act identifies the powers of the police in relation to preventing protesters from
engaging in their right to expression and speech4. For instance, the act gives powers to police
officers to arrest and prevent any person or group of people from engaging in a political protest.
This is in case the protests will hinder or prevent the commencement of a business activity in
Tasmania.
Moreover, this section provides powers to police officers to be able to direct protesters
away from the business premises for a period of up to three months, failure to which, they are
likely to face criminal charges. From the provisions of section 3 of the act, it is possible to denote
3 Brown & Anor v The State of Tasmania (2017) HCA
4 Protection from Protesters Act 2014

that it raises weighty issues of the constitution, regarding on the role of the police in promoting
freedom of speech. Obviously, threatening an individual with arrest or prohibiting them from
protesting because of a government policy violates their implied right to freedom of speech and
expression, as contained in the case of Australian Capital Television v Commonwealth.
Another important constitutional issue that the case raises is on section 7 and 6 of the
Protection from Protesters Act. According to the Brown and Anor, the provision of these sections
makes this act to be invalid. This is because it gives powers to police officers to punish on-site
protests without considering the implications of those punishments on political communication.
This is a weighty constitutional issue, since it seeks to examine the role of law enforcement
officers in preserving and protecting the constitution. Moreover, Brown and Anor in this case
argue that the provisions of the act do not outline any measures that have been put in place, with
the aim of protecting the freedom to political communication that is implied in the constitution.
Note that, for any law to be valid it should not breach the constitution, thus, the major
arguments of Brown and Anor is for the courts to declare the Protection from Protesters Act
invalid, since it breaches the provisions of the constitution. Despite these weight constitutional
issues that are raised by the plaintiff, the government of Tasmania argue that the act is narrow in
scope, and is only limited in business premises and the aim is to prevent the obstructions of a
business activity that happens in the area.
Based on the arguments that are presented by the government of Tasmania regarding the
constitutionality of the Protection from Protesters Act, we are able to use it to make a ruling
regarding the constitutionality of the World Heritage Properties Act that was enacted in 1983.
Under this act, the Federal Government got authority to prevent the State of Tasmania from
building a dam along the River Franklin. The passage of this law was enacted for purposes of

protecting World Heritage sites5. The High Court of Australia in its ruling observed that the
Federal Government did not surpass its authority over heritage sites, but it aimed at protecting
the sites from destruction, thus the enactment of the act. On this note, the heritage act was
enacted in good faith, and within the authority of the Federal Government.
Moreover, by using the Protection from Protesters Act, the most viable ruling in this case
of Commonwealth of Australia v The State of Tasmania is upholding the law. This is because the
aim of the protesters act is to protect the environment from disruption: that is the main aim of the
heritage act. Moreover, the scope of environmental; protection is low, and it is limited to World
Heritage Sites. The same is applicable with the introduction of the Protection from Protesters
Act, which limits the protection to identified sites, such as business organizations and
environmental places. On this basis, the ruling based on the state law, is the upholding of the
World Heritage Site.
Finally, Brown & Anor v The State of Tasmania raises weighty constitutional issues,
regarding the freedom of speech. The case law concerns itself whether the Protection from
Protesters Act is constitutional, since it breaches the implied freedom of speech on issues
regarding political affairs and governance. The case seeks to nullify the act, with the notion that
it is unconstitutional.
5 World Heritage Properties Conservation Act (1983)

Bibliography
A. Cases
Australian Capital Television v Commonwealth (1992) HCA
Brown & Anor v The State of Tasmania (2017) HCA
Commonwealth of Australia v The State of Tasmania (1983) 158 CLR 1
B. Legislation
Political Broadcasts and Disclosures Act (1992)
Protection from Protesters Act (2014)
World Heritage Properties Conservation Act (1983)