Brown & Anor v The State of Tasmania [2017] HCA 43: Freedom of Political Communication

Wednesday 18 October 2017 @ 11.59 a.m. | Legal Research

Today (18 October 2017) the High Court handed down its judgement in the case of Brown & Anor v The State of Tasmania [2017] HCA 43. The issue in this appeal was whether the Workplaces (Protection from Protesters) Act 2014 (Tas) (‘the Act’) contravened the implied freedom of political communication in the Constitution.

Facts of the Case

In early 2016, the plaintiffs Bob Brown and Jessica Hoyt were arrested and charged under the Act whilst in Tasmania’s Lapoinya Forest, and were charged with offences under the Act in relation to their opposition to the logging in the forest. The Act empowers police officers to prevent the commencement or continuation of an onsite political protect that they reasonably believe is preventing, hindering or obstructing a business activity at any business premises, as defined in the Act, and police officers are allowed to direct the protesters to leave and stay away from business premises for up to three months. These provisions are set out in Part 2 of the Act.

The matter was referred as a Special Case for consideration by the High Court. The plaintiffs challenged the validity of the relevant provisions of the Act on the basis that the provisions impermissibly burdened the freedom of political communication as implied in the Constitution.

High Court Decision

The majority of the High Court held that in their operation, the provisions of the Act, namely sections 6, 7 and 8, burdened the implied freedom of political communication. It was held that the Act pursued the legitimate purpose of protecting businesses and their operations by ensuring that protesters do not prevent, hinder or obstruct the carrying out of business activities. However, the majority held that the provisions relating to forestry operations and business  were not reasonably appropriate and adapted, or proportionate to the pursuit of the specified purpose in a manner that is compatible with the maintenance of a system of representative and responsible government as required by the Constitution. Therefore, the impugned provisions were declared as invalid in their operation in respect of forestry land and business areas. 

After the judgement was handed down, Mr Brown said to The Guardian:

"The High Court has said ‘there is a right to political expression and we will uphold it’. You can’t just start jailing people on account of their political beliefs or peaceful actions they might take to uphold those beliefs."

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Brown & Anor v The State of Tasmania [2017] HCA 43, and judgement summary.

Michael Slezak, 'Bob Brown wins high court challenge to Tasmanian anti-protest laws,' (The Guardian Australia) 18 October 2017.

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