The Court has made it clear that the implied freedom of political communication, in the context of protests, is essential to the maintenance of the system of representative and responsible government.

A controversial Tasmanian law granting police officers increased powers to deal with protesters on forestry land has been ruled unconstitutional.

The High Court, by a 6:1 majority, has ruled key provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) (Protesters Act) invalid for breaching the implied right to freedom of political communication (Brown v Tasmania [2017] HCA 43).

Although the legal challenge and decision focused on the Protesters Act as it applied to forestry land, the decision casts doubt on the validity of the Protesters Act more broadly.

At a time when protests are seen as a important risk for development projects, and State governments are considering laws to limit protest rights which would disrupt projects, the High Court's decision is also significant on a national scale.

Bob Brown arrested

Dr Brown and Ms Hoyt, the plaintiffs in the High Court challenge, were arrested at separate times in the Lapoinya Forest, in north west Tasmania while protesting against the logging of the forest.

They were charged with offences under the Protesters Act. The charges were subsequently dismissed as there was not enough evidence against them. They then challenged the validity of provisions in the Protesters Act relating to onsite protests on forestry land.

The scope of anti-protest laws and police powers

The purpose of the Protesters Act is to prevent damage and disruption to various commercial operations from the conduct of protesters. While the purpose of the Protesters Act is not significantly different from its predecessor, the Forest Management Act 2013 (Tas), it does increase police powers and creates indictable offences, and it applies to land used for other commercial activities .

A person is a "protester" for the purposes of the Protesters Act if engaging in a protest activity on "business premises or in a "business access area" for the purposes of promoting awareness of or support for, "an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue" (section 4(2) of the Protesters Act). These areas are very broadly defined.

The Protesters Act grants police officers increased authority to control protests that includes, for example, physically removing and arresting protesters without a warrant if they are present on the relevant land. The powers of arrest and removal are exercisable if the police officer "reasonably believes" that it is necessary to do so for purposes set out in section 13(4) of the Protesters Act which include, for example, the preservation of public order. Several of the offences within the Protesters Act are indictable offences, and the Court observed that the "possibility that a protester might be liable to a substantial penalty should not be overlooked".

The key issue and considerations

The key issue before the Court was whether the Protesters Act, either in its entirety or in its operation to forestry land (and associated "business access areas") was invalid because it impermissibly burdened the implied freedom of political communication contrary to the Constitution.

The majority judges considered the operation and effect of the statute. They took a pragmatic approach when considering the exercise of police officers' powers pursuant to the Protesters Act.

The Court noted that the primary focus for a police officer when deciding if they could use their powers under the Protesters Act is to determine if the protester is on relevant land as described in the provisions, and the protester's conduct is of secondary importance.

The ambiguity surrounding the enforcement of police powers and the discriminatory effect of the Protesters Act, as targeting specifically the freedom of protesters, led the majority judges to conclude the freedom was in fact burdened in a way which is unconstitutional. For most members of the Court consequences of the uncertainty in the Protesters Act provisions( particularly in identifying the area to which the Protesters Act applies) and extent of police powers pursuant to the Protesters Act (which included protesters being excluded from areas, their protests being brought to an end and them being deterred from further protests), led the conclusion that the freedom is indirectly burdened to a significant extent.

The majority judges considered the purpose of the Protesters Act, which they considered legitimate, concluded the measures adopted by the Protesters Act impose a burden on the freedom of political information that is not justified. In an interesting comment (and for the enjoyment of those who appreciate John Cleese et al), Justice Gageler viewed the relevant provisions as indicating a "Pythonesque absurdity".

As a result, the Court held that parts of section 6, 8, 11 13 and Part 4 of the Protesters Act were invalid.

What this means for you

The Court has made it clear that the implied freedom of political communication, in the context of protests, is essential to the maintenance of the system of representative and responsible government. This is a significant decision for the protection of implied constitutional human rights, a topic which has been hotly debated over many years, especially by those who advocate for a separate Bill of Rights in Australia.

For project proponents, the decision could mean that disruptive on site protests are viewed with more legitimacy.

For governments considering ways of curbing or regulating such protests, the decision may mean a re-think of how that should be done.