Constitutional Law 3016LAW Essay: Implied Freedom and Protest

This essay critically analyzes the 'implied freedom of political communication' within the Australian Constitution, focusing on its role in ensuring informed choices by citizens. It examines the limitations this freedom places on legislative and executive powers, as highlighted in the case of Levy v Vict...Read More

Running head: CONSTITUTIONAL LAW
CONSTITUTIONAL LAW
Name of the Student
Name of the University
Author Note

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Introduction
The ‘implied freedom of political communication’ is in the existence in order to make
sure that the individuals in the nation of Australia have the ability and the entitlement to
implement a free, conversant and cognizant choice as the constituents or electors. The ‘implied
freedom’ performs in order to forward restriction in relation to the powers regarding the
legislature and the executive. This ‘implied freedom’ is not any kind of a private right that is
granted to the individuals of the nation. As stated in the case of Levy v Victoria (1997) 189 CLR
579, such ‘implied freedom’ involves not only speech; it also includes non-verbal
communication in relation to matters relating to government and politics1. According to
Coleman v Power (2004) 209 ALR 182 it may be said that even though, the law of the Australian
nation does not consider an express guarantee regarding free speech, it has been recognized and
acknowledged by the High Court of the nation of Australia in several decisions that there is an
existence of an ‘implied freedom of communication’ regarding the Constitution of the nation in
connection to the matters of politics and government2. This paper has discussed the cases Robert
James Brown & Anor v The State of Tasmania [2017] HCA 433 and Clubb v Edwards [2019]
HCA 114 in relation to the matter regarding ‘implied freedom of communication’. This paper
aims to forward a critical analysis in relation to the ‘implied freedom of communication’ in
connection to the nation of Australia.
1 Levy v Victoria (1997) 189 CLR 579
2 Coleman v Power (2004) 209 ALR 182
3 Robert James Brown & Anor v The State of Tasmania [2017] HCA 43
4 Clubb v Edwards [2019] HCA 11

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Background
The case of Brown v Tasmania is considered to be an important case in the nation of
Australia regarding ‘implied freedom of communication’5. This decision of this case was
forwarded in the High Court of the nation of Australia. The decision was forwarded on the 18th
day of the month of October in the year of 2017. In this particular case, it was held by the
majority that the provisions as provided in the Tasmanian Protestors Act were not acceptable and
invalid. The majority in this particular case forwarded the argument that the provisions in the Act
mentioned above were acting as a burden regarding the ‘implied freedom of political
communication’. Such burden was in a manner, which could not be considered as rationally and
practically acceptable in relation to the protection of the businesses and the operations of the
businesses. The test that was applied in the aforementioned case, was extracted from the case
of Lange v Australian Broadcasting Corporation [1997] HCA 256. Three questions were
considered in relation to the test. The first question was that whether any kind burden is created
regarding the ‘freedom of political communication’. Secondly, it was considered that whether the
purpose and objective regarding the law is legitimate. Thirdly, it was considered that whether the
law was rationally and practically adequate, and whether it was compatible with the structure of
the government that is constitutionally recommended. The reformulated versions of the
aforementioned questions were also utilized as the test or the barometer in the case of Clubb v
Edwards [2019] HCA 117 and its appeal case of Preston v Avery [2019] HCA 118. The
reformulation of the aforementioned questions was done in the case of McCloy v New South
Wales [2015] HCA 349.
5 Robert James Brown & Anor v The State of Tasmania [2017] HCA 43
6 Lange v Australian Broadcasting Corporation [1997] HCA 25
7 Clubb v Edwards [2019] HCA 11
8 Preston v Avery [2019] HCA 11
9 McCloy v New South Wales [2015] HCA 34

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Relevant Issues
According to S Chordia, the decision that was forwarded in Brown v Tasmania, has
importance in connection to three capacities. Firstly, the furtherance of the environmental
protests in the forests of Tasmania. Secondly, questioning the validity regarding similar
legislations in the states of Western Australia and New South Wales. Thirdly, the utilization of
the proportionality notion as an assessment or a test regarding constitutional legitimacy or
validity. Hence, as per Chordia, it may be said that the utilization of proportionality as an
assessment or a test regarding constitutional legitimacy begins from the perception or viewpoint
that the liberty and freedom in relation to political communication may not be considered as
unrestricted. It has also been stated by Chordia that the several parliaments of the nation of
Australia have been permitted to establish valid and effective laws, which affect the
implementation of political communication10.
According to Tony Blackshield and George Williams, it was originally found that
‘implied freedom’ in relation to the terms ‘implied freedom of communication’ has been
extracted from the idea and idea relating to representative democracy. However, in the Lange
case, it was stated by the court that the text and the structure regarding the Constitution that
caused the ascending of the implication.
According to Patrick Emerton and Maria O’Sullivan, it may be stated that the provisions
as provided in the Protestors Act have been considered by the court as those that prohibit or
restrict the individuals who all are involved in the activities relating to protest, from performing
any kind of actions that may obstruct, hinder or prevent the access to the premises where
10 Bartlett, William. "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." (2017) U. Tas. L. Rev. 36: 1.

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business is conducted. The actions that may obstruct the continuation of business activities are
also prohibited. However, it may be mentioned that definition regarding terms relating to
prevention or obstruction has not been provided in the legislation. It has been conceded by the
government of Tasmania that such terms would not prolong to inconsequential, unimportant or
fleeting disturbances in relation to business and shall comprehend or include only the substantive
obstructions, hindrances and preventions in relation to business activities11.
According to Gageler J, in the case of Brown v Tasmania, the test shall include the three
questions as mentioned earlier. Before answering the third question, the first and the second
question must be answered in ‘yes’. If any of the question is ‘no’, then the law shall be
considered as invalid or illegitimate. However, it has been mentioned that the second step as
provided in the Lange case, may include problematic matters regarding judgment, in classifying
the objective and determination in relation to a disputed law, in evaluating the correctness and
validity of such determination in connection to its compatibility with the structure of the
government as prescribed by the Constitution, and in determining or defining that whether the
methods and sources that are adopted by the law are adequate and modified12.
According to Patrick Emerton and Maria O’Sullivan, in the case of Brown v Tasmania,
the court restrained and limited its thought and deliberation, regarding the validity and legitimacy
in relation to the Protesters Act, to the operation of the Act in connection to ‘forestry land’.
‘Forestry land’ is considered as the land where ‘forest operations’, like harvesting, managing and
planting trees, are being performed and supported. Therefore, due to such confined status, it was
held by a majority regarding the High Court that provisions as provided in the Protestors Act
11 Heath, Mary, and Peter Burdon. "Protest and Political Communication after Brown v Tasmania." (2018) Bulletin
(Law Society of South Australia) 40.1: 10.
12 Wood, Chloe, and Emily Howie. "Protest rights: Brown v Tasmania: How the high court struck down Tasmania's
anti-protest laws." (2018) Bulletin (Law Society of South Australia) 40.11: 28.

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created a burden in relation to the ‘implied freedom of political communication’, and hence were
considered to be invalid regarding the operations, which have been performed. However, it must
be mentioned that the explanations and causes, which gave rise to the situation where the
majority judges in relation to the conclusion varied in manners, which may forward certain kind
of the uncertainties, just illustrated and distinguished in connection to the test forwarded in the
Lange case, and hence such illustration leave the legitimate and constitutional contemplation and
understanding in relation to the importance of any particular place for protesting,
underdeveloped13.
According to Gageler J, the identification of the purpose of the law is not limited or
restricted to ascribing connotation or meaning in relation to the text of the statute. It has been
stated by him that instead the precise understanding and contemplation is that the degree of
characterization or classification that is mandated by the legitimate or constitutional standard
relating to purpose or object is nearer to that engaged or in employment, when it seeks to classify
and recognize the mischief in relation to the redress, regarding which any particular law is
focused and directed. The objective and resolution of any particular law is considered to be the
welfare of the populace and the public interest, which are pursued to be safeguarded, protected as
well as enhanced with the help and assistance of the law. The purpose or objective may be
considered to be not what is done by the law in relation to the terms stated, instead how and in
what manner the law has been structured and intended in order to realize and accomplish in
datum. However, it has been stated that the identification regarding a purpose or an objective is
not limited or restricted to the classification or identification in relation to the meaning of the
statutes does not give rise to the fact that the identification regarding the meaning, process and
13 Barrie, George. "Freedom of expression and campus protests." (2017) Obiter 38.3: 623-631.

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functioning of any particular law shall not be considered to be a vital step in relation to the
identification and recognition of objective or purpose.
According to the joint judgment as forwarded in the case of Unions NSW v New South
Wales [2019] HCA 1, it may be said that the identification and recognition regarding the purpose
of the statute in relation to the implementation of the test forwarded in the case of Lange, is
reached and attained by the regular procedures regarding construction of the statutes. Where the
overall or universal purposes or objectives regarding a statute are trusted upon in order to
substantiate and validate the obstructive or preventive methods regarding a specific section in
relation to that particular statute, that specific section should be comprehended, with the help and
assistance of a procedure relating to construction, to be associated to such objectives and
purposes and to supplement them in a certain manner. However, in certain cases, under specific
circumstances, it has been stated that the objective or purpose regarding a law does not prolong
or spread outside the legal operation. In the judgment in connection to the case mentioned above,
such conclusion was arrived at in connection to two provisions. Even though the bigger and
wider scheme relating to the statutes did devise and contain a reasonable and genuine purpose or
objective, it was not possible to link the concerned provisions, in the functioning in a legal
manner, to such objective or purpose, and never, in relation to the functioning, attend or oblige
any other legitimate objective or purpose that might be ascertained. Hence, such provisions were
considered to be unconstitutional.
According to the decision forwarded in the case of Clubb v Edwards, it was held by
Gordon J that while the provision of the Tasmanian statute did create a burden in relation to the
‘implied freedom of political communication’, however, this particular burden was not

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considered as significant or considerable because it associated with a specific constraint or
limitation regarding political communication in lieu of place, manner and time14.
Make Brisbane’s Streets Safe Again Act
It may be mentioned that in the Preston v Avery case, the test as forwarded in McCloy
had been applied. It was held by the justices that the prohibition regarding protest created a
burden in relation to the ‘implied freedom of political communication’. A legitimate purpose or
objective existed in relation to the protest prohibition in order to provide protection to the
wellbeing, safety and privacy of the individuals. It was also mentioned that prohibition regarding
protest had a reasonable link to the objective of enabling effective admittance to termination
amenities and services. Even in the case of Brown v Tasmania, similar test was followed by
applying the test that was forwarded in Lange case15. Hence, it may be said that in the case of the
given law (statute), that is, the Make Brisbane’s Streets Safe Act, the test that have utilized in the
two cases mentioned above must be applied. The test shall include the three questions. The first
question was that whether any kind burden is created regarding the ‘freedom of political
communication’. Secondly, it was considered that whether the purpose and objective regarding
the law is legitimate. Thirdly, it was considered that whether the law was rationally and
practically adequate, and whether it was compatible with the structure of the government that is
constitutionally recommended. The answers to these questions shall determine the validity of the
given law (Make Brisbane’s Streets Safe Act). Another point that must be utilized in order to
determine the validity of the mentioned law is the utilization of proportionality as a particular
test in relation to constitutional validity. This particular point was stated in the case of
14 Morris, Shireen, and Adrienne Stone. "Abortion Protests and the Limits of Freedom of Political Communication:
Clubb v Edwards; Preston v Avery." (2018) Sydney L. Rev. 40:395.
15 Edgar, Andrew. "Environmental Protests and Constitutional Protection of Political Communication: Brown v
Tasmania." (2018) Journal of Environmental Law 30.2: 333-341.

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McCulloch v. Maryland, 17 U.S. 316 (1819)16. According to Chief Justice Marshall, in the
aforementioned case, it may be said that while determining the validity of a specific law or
statute one should keep in mind that the end result of a law must be legitimate, the law should be
within the ambit of Constitution, and it should be in consistency with the spirit in relation to the
Constitution. The Make Brisbane’s Streets Safe Act should be appropriately balanced and in
conformity with the spirit relating to Constitution.
In this paper, it has been mentioned that the case of Robert James Brown & Anor v The
State of Tasmania [2017] HCA 4317 as well as the case of Clubb v Edwards [2019] HCA 1118
forwarded the vital test in relation to any specific law. In the both the cases mentioned above, the
statute or the legislation was determined with the help and assistance of the test that has been
mentioned in the both the cases mentioned above. Therefore, based on the findings of the court
in the cases mentioned above, the Make Brisbane’s Streets Safe Act should be determined.
Conclusion
In the conclusion, it may be stated that the law provided in the question, that is, The
Make Brisbane’s Streets Safe Act should be determined on the basis of the test forwarded in the
cases of Brown v Tasmania and Clubb v Edwards. After the application of the test, when the
answers to the questions are determined, then it may be comprehended that whether this
particular law is appropriately balanced. This paper has forwarded discussion in relation to the
case of Robert James Brown & Anor v The State of Tasmania [2017] HCA 43 as well as the case
of Clubb v Edwards [2019] HCA 11 in connection to the matter regarding ‘implied freedom of
communication’. This paper has forwarded a critical analysis in relation to the ‘implied freedom
16 McCulloch v. Maryland, 17 U.S. 316 (1819)
17 Robert James Brown & Anor v The State of Tasmania [2017] HCA 43
18 Clubb v Edwards [2019] HCA 11

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of communication’ in connection to the nation of Australia. This paper has discussed that a law
should be in conformity to the constitutional validity. It has been mentioned in this paper that the
‘implied freedom of political communication’ is in the existence in order to make sure that the
individuals in the nation of Australia have the ability and the entitlement to implement a free,
conversant and cognizant choice as the constituents or electors. This paper has discussed the
manner and methods that might be utilized in case of the provided law in the question. In this
paper, it has been mentioned that the case of Robert James Brown & Anor v The State of
Tasmania [2017] HCA 43 as well as the case of Clubb v Edwards [2019] HCA 11 forwarded the
vital test in relation to any specific law. In the both the cases mentioned above, the statute or the
legislation was determined with the help and assistance of the test that has been mentioned in the
both the cases mentioned above.

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Bibliography
Barrie, George. "Freedom of expression and campus protests." (2017) Obiter 38.3: 623-631.
Bartlett, William. "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." (2017) U. Tas. L. Rev. 36: 1.
Clubb v Edwards [2019] HCA 11.
Coleman v Power (2004) 209 ALR 182.
Edgar, Andrew. "Environmental Protests and Constitutional Protection of Political
Communication: Brown v Tasmania." (2018) Journal of Environmental Law 30.2: 333-341.
Heath, Mary, and Peter Burdon. "Protest and Political Communication after Brown v Tasmania."
(2018) Bulletin (Law Society of South Australia) 40.1: 10.
Lange v Australian Broadcasting Corporation [1997] HCA 25.
Levy v Victoria (1997) 189 CLR 579.
McCloy v New South Wales [2015] HCA 34.
McCulloch v. Maryland, 17 U.S. 316 (1819).
Morris, Shireen, and Adrienne Stone. "Abortion Protests and the Limits of Freedom of Political
Communication: Clubb v Edwards; Preston v Avery." (2018) Sydney L. Rev. 40:395.
Preston v Avery [2019] HCA 11.

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Robert James Brown & Anor v The State of Tasmania [2017] HCA 43.
Wood, Chloe, and Emily Howie. "Protest rights: Brown v Tasmania: How the high court struck
down Tasmania's anti-protest laws." (2018) Bulletin (Law Society of South Australia) 40.11: 28.