Every now and then a court decision comes along that requires us to stand up and take notice. The role of courts in our democracy is extremely important and, arguably is becoming more and more important as the years pass. Courts do not just determine disputes between people or determine whether people have committed criminal offences. A more fundamental and arguably important role of courts is to determine the limits on the power exercised by our governments and by our Parliaments in a federal system. As our governments and parliaments are increasingly captured by well-resourced lobby groups - aided and abetted by large multinational news corporations - the role of courts on checking overreach by state parliaments has grown.
And so the seeds were sewn for the High Court challenge brought by Bob Brown and Jessica Hoyt against the Workplaces (Protection from Protesters) Act 2014. Bob Brown and Jessica Hoyt were arrested in January 2016 at Lapoinya in Northern Tasmania. They were charged with offences against the Act, arising from their presence in or near a coupe where forestry operations were occurring.
The genesis for this legislation, however, went back several years. The Labor Government in 2013 had secured an agreement to protect high conservation forests in exchange for timber supplies. The Forest Peace Agreement, while the end result of a lengthy political negotiation, was based on science. The science unequivocally recognised the important values of the forests in question. And therein lay the problem for the extreme forest industry groups. They were not able to win the forestry argument on the basis of the science. They lost that debate. Their objective was to eliminate any protest activity to give those interest groups monopoly control over Tasmania’s high conservation value forests. No Protesters in forests meant no media coverage. No media coverage and the debate was ended. The liberal Government obliged and in 2014 the Act was passed through the Tasmanian Parliament.
In March 2016 Bob Brown commenced a proceeding in the High Court and by May of that year had been joined in that proceeding by Jessica Hoyt. They challenged the Act and claimed that it infringed the Commonwealth Constitution’s implied protection of communications on government and political matters. Two decades earlier, the High Court had recognised that the exchange of information was a fundamental aspect of a democratic system because to enable somebody to vote in a meaningful way they needed to be informed on issues that were relevant to the exercise of their vote. The High Court ruled that any law that interfered with that exchange of information and was not reasonable or was not appropriately adapted for its purpose was invalid. Over the next two decades, the High Court has ruled invalid some criminal laws that interfered with the freedom of communication. The High Court has ruled that it is a defence to a claim in defamation if the words spoken constituted a communication on government and political matters. And the High Court has invalidated legislation that interfered with media coverage of elections.
Fast forward to October 2017. After a hearing over two days in May 2017, the High Court ruled in October by a majority of five justices that the Act was invalid as it applied to forestry land. In a nutshell, the High Court ruled that the core mechanisms of the Act as they apply to forestry land are invalid. The effect is that the act is inoperative and cannot be utilised. The act still applies, in theory, to aquaculture or mining areas, because that part of the Act has not been ruled valid. However, any attempt to use the Act in its current form – for example at a protest at a fish farming site – will be met with a further High Court challenge that will be highly likely to succeed.
The High Court commented that the Act was an instance of “overreach”. It was regarded as a triumph of ends over means. It was resoundingly rejected by five of the Justices and partially rejected by a sixth. The Act was regarded as not an attempt to limit or restrain the impact of protests (as the government had claimed). It was regarded as an attempt to silence any protest under any circumstances on forestry land.
As the High Court has invalidated those parts of the Act relating to forestry land, the police are not able to use or enforce the Act in relation to forestry land. Tasmania Police’s powers under the Act do not exist any longer. Tasmania Police would need to use existing powers under the Police Offences Act or the Forest Management Act to deal with a protest on forestry land.
Significantly, the High Court has recognised the role of protest in the protection of the environment. The court had before it a lengthy history of protest across Australia that has led to the protection of the Australian environment, principally forest areas. The protest history went back to Terania Creek in the late 1970s, which protests led to those forests in the Nightcap Range becoming a national park and later part of the World Heritage Area. The High Court was able to note nearly over 1,200 arrests as part of the Franklin dam blockade, which again saw that area given the protection of World Heritage status. The High Court was able to note that these protests were peaceful, and were part of the political process in this country. It may be that one day scholars will look back at the decision in Brown & Hoyt v. The State of Tasmania and argue that the High Court has recognised a “right to be arrested” for the protection of the environment. This is the hidden significance of this case.
The more palpable significance is that corporate forestry and other resource extraction interests have had the wind taken out of their sails. The High Court has drawn a line and regarded the Act as having crossed it. The High Court was unimpressed that a State Parliament was attempting to obliterate the right to protest, especially in circumstances where there are other existing statutes that give police powers to deal with protests. The Act will never see the light of day again.
The State Government has promised to re-write the Laws. When they do so, they will need to be mindful of two things. Firstly, that the High Court will not tolerate a State Parliament attempting to silence protest directed to protection of the environment. Secondly, if it crosses the line it can expect further challenges in the High Court.
Article by Roland Brown - Hobart lawyer and solicitor acting for Bob Brown and Jessica Hoyt in the High Court challenge