This article was first published in Open Democracy
This article is part of Right to Protest, a partnership project with human rights organisations CELS and INCLO, with support from the ACLU, examining the power of protest and its fundamental role in democratic society.
Bob Brown, leader of the Australian Greens, and Jessica Hoyt made history when they won a High Court challenge to Tasmania's anti-protest laws in October 2017 – a clear articulation of how protest is protected by the Constitution.
It was not Bob Brown’s first arrest, but it’s probably the one he’ll remember best.
In January last year, the 71-year-old former Australian Senator and leader of the Australian Greens was walking in a small group through the Lapoinya Forest, in the north-west of the island state of Tasmania. The year before, to the dismay of local residents and environmentalists, Forestry Tasmania had announced a plan to clear-fell 49 hectares of the forest, and the machinery had rolled in that month. Brown was there to object to the logging and draw attention to the natural beauty and wildlife that would be lost. After the group came upon the first Forestry Tasmania bulldozer, two police officers approached and told them to leave the area.
“I thought of the Tasmanian devils and quolls which will die in the operation,” Brown later wrote. “I also thought of the potential penalty of five years in jail. But at what stage do we human beings get out of our comfort zone for the planet’s beleaguered wildlife, which is now going extinct at the greatest rate in human history?”
Brown refused to leave. Footage from the day shows him being told he is under arrest, and quietly agreeing to accompany the officer to his car so he could be charged at a local police station.
Five days earlier, another Tasmanian had been arrested and charged while engaging in peaceful protest in the Lapoinya. Jessica Hoyt, a 35-year-old nurse and mother who grew up in the Lapoinya area and now lives in Tasmania’s capital, had been part of a group that had entered the forestry area and then been escorted away. When Hoyt returned to the logging area the next day, she was arrested.
Brown and Hoyt were among the first people to be charged under laws that significantly clamped down on environmental protest in Tasmania, introducing harsh penalties for peaceful protesters. A year and a half on, they would end up making constitutional history when they successfully challenged those laws in Australia’s High Court.
Tasmania’s anti-protest laws
The controversial laws passed by Tasmania’s Parliament just over a year earlier were not subtle in their targeting of protest. It was right there in the legislation’s name: the ‘Workplaces (Protection from Protesters) Act’. The government argued that it needed to protect businesses operating in Tasmania’s forests from the inconvenience visited on them by protesters.
Importantly, the laws did not only target protesters – they only applied to protesters. The restrictions on movement the law provided for applied only to people engaged in any activity that promoted “awareness of or support for … an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue” taking place on business premises. Despite the government’s promises that “mum and dad-type protesters” would not be captured by the law, there was no carve-out for peaceful protesters.
Of particular concern were the law’s heavy penalties and apparent arbitrariness. For causing or threatening damage to a business, an activist could go to prison for five years. For refusing to leave an area when directed to by police, a protester might have to pay AUD 10,000 (around £5,650). When directing a person to leave an area, a police officer could also ban them from returning for the next three months. Most curiously, a person would not contravene that three-month exclusion order if they took part in a procession that passed through the area “at a reasonable speed, once on any day.” The statute provided no guidance for police or protesters to work out what a ‘reasonable speed’ might be.
Ahead of the legislation’s passage, United Nations experts urged the Tasmanian Parliament to reconsider. “The bill would have the chilling effect of silencing dissenters and outlawing speech protected by international human rights law,” said the U.N. Special Rapporteur on freedom of opinion and expression David Kaye. Those international voices joined those of domestic civil society groups rejecting the law as a disproportionate burden on freedom of expression.
A “business premises”: the Lapoinya Forest
Consistently with the Tasmanian government’s pro-business rationale, the law applied to protest activities on “business premises” and “business access areas”. As the High Court would later observe, “the term ‘business premises’ does not evoke images of forest lands”. But the term was defined to include “forestry land” where work like logging or planting is being carried out, and “business access areas” was defined to mean land, like a road, that enabled access to a premises.
Brown and Hoyt did not see the Lapoinya as a “business premises”. For them, the Lapoinya was a unique ecosystem, home to the largest freshwater invertebrate in the world, the endangered Giant Tasmanian Freshwater Crayfish, a lobster that – remarkably – can live for 60 years and grow to the size of medium dog. Also lurking in the Lapoinya is a disease-free population of Tasmanian devils, a marsupial which was totally wiped out on mainland Australia.
That wildlife and the forest’s beauty motivated residents, including Jessica Hoyt and her parents, to form the Forests of Lapoinya Action Group after Forestry Tasmania announced its plan to start logging. Hoyt’s journey into Lapoinya that Monday was her first ever protest. But, she later said, she was “left with no other choice.”
The Action Group was just the latest iteration of a strong legacy of environmental activism in Tasmania. Bob Brown, a seasoned activist, shot to prominence after he was arrested for blockading the damming of Tasmania’s wild Franklin River in the 1980s. The huge social movement opposing the dam led the river to be declared a world heritage area and for the federal government to intervene and prevent the construction of the dam, over the objection of the Tasmanian government. Ten years ago, environmentalists (including Brown) successfully mobilised against a proposed pulp mill in Tasmania’s Tamar Valley that was supported by both major parties in the Tasmanian Parliament. On several occasions thousands of people marched in Tasmania to protest the mill, and the government withdrew its support. Environmental activism has become an integral part of Tasmanian politics, and a celebrated part of Australia’s history.
Environmentalism under attack
Alongside this history of environmentalism, a new and disturbing trend is emerging Australia-wide: at the urging of big business, governments are seeking to clamp down on environmental activism.
Tasmania’s anti-protest laws were not a standalone development. In response to protests against coal seam gas, the New South Wales state parliament fulfilled a promise made by the Premier to the mining industry and passed similar laws in 2016, beefing up police powers and penalties for people who interrupted mining operations. Along similar lines, in early 2015 the Western Australian government proposed anti-protest laws to stop what they described as “extreme protest movements”. However, the United Nations Human Rights Office said the Western Australian bill would “result in criminalising lawful protests and silencing environmentalists and human rights defenders.” The law was abandoned after the conservative government lost office in 2017.
And the assault on environmental activism is not just coming from Australian state governments. Developments at the national level have also made it harder for civil society organisations to advocate for positive change in Australian society. Governments have used funding agreements with community organisations to deter or wholesale prevent them from engaging in public debate. Since 2015, community legal centres have been prohibited from using Australian government funding to do law reform, policy or advocacy work. Similar gag clauses and conditional funding have been used by other government and in other contexts to prevent civil society groups from speaking out against government policy.
Tax law is another vehicle that the government is threatening to use to shrink the space for civil society advocacy. Politicians and industry bodies like the Minerals Council of Australia have argued that charities with ‘Deductible Gift Recipient’ tax status, a vital tool to attract donations, should only conduct limited advocacy. Somewhat arbitrarily, a majority of a parliamentary environment committee recommended last year that DGR status only be available to environmental organisations that spend 25 per cent of their annual expenditure on remediation work, like planting trees. A more recent Treasury paper has suggestedincreasing that to 50 per cent. The Australian government has also suggested that non-government organisations engaging in advocacy be banned from accepting international donations.
To the High Court
After Brown and Hoyt were arrested under the Tasmanian anti-protest laws, they were supposed to face their charges in the local court in Tasmania. Instead, they decided to go to Australia’s highest court and challenge the law under the Australian Constitution. The attacks on civil society by government and business were a motivating factor. “The Tasmanian anti-protest laws are part of the global purchase of democracy by corporations. Corporations lobby weak politicians to legislate against the time-honoured rights of the people,” Bob Brown later said.
It was to be an uphill battle: unlike other Western democracies, Australia does not have comprehensive human rights protection at the national level. Instead of a Bill of Rights, constitutional rights protection can be described as patchwork at best. Brown and Hoyt had to rely on something called the implied freedom of political communication: the idea developed by the High Court that Australia’s political system of representative government requires voters to be able to express and hear ideas. Accordingly, governments and laws can’t disproportionately restrict communication on political matters. However, it is a freedom, rather than a freestanding right; it is doctrinally complicated; and compared to other constitutional courts, the High Court has traditionally been reluctant to intervene and overrule policy decisions of elected politicians. On top of that legal background, Brown and Hoyt were opposed not just by Tasmania, but also by the Australian government and all but one state. (The Human Rights Law Centre filed an amicus curiaebrief supporting Brown and Hoyt.)
But the principle was too important. Speaking outside court in May this year, Brown said: “Had these laws been in place a couple of decades ago the Franklin River would be dammed. The tropical rainforest of Queensland would be largely cut up … We’re here to defend the right of all Australians into the future to be able to show environmental destruction where it takes place.”
A constitutional right to protest
In October 2017, the seven judges of the High Court announced their verdict: it was a victory for Bob Brown and Jessica Hoyt, and for protesters throughout the country.
Three judges, including Chief Justice Susan Kiefel, found that the ambiguity of the law would deter protesters. They found that it would be difficult for protesters and police officers alike to work out whether a particular area was a “business premises” or a “business access area”, and therefore whether the law applied or not. That difficulty was aptly demonstrated by the fact that the charges against Brown and Hoyt were dropped in June because prosecutors determined that, at the time of their arrests, neither of them were in an area to which the law applied. Those judges accepted that protecting forest operations from disruption from protest was a legitimate legislative purpose, but several of the law’s measures had nothing to do with preventing damage and disruption, and the rest were unnecessary in light of existing, less draconian law.
The other four judges said their piece in solo judgments. Justice Stephen Gageler agreed with the result, but for different reasons. He was particularly concerned that protesters, and a particular political viewpoint, were singled out. For example, if a protest group entered an area of forest operations, they would be treated differently to a school group walking through the exact same place, even if the disruption to the logging were the same. (Other judges did not think that the element of discrimination was so important.) The breadth of discretion awarded to police created a substantial burden on political communication, and was not necessary to protect against conduct that interfered with forest operations.
Justice Geoffrey Nettle agreed that the extent of the powers granted to police meant the freedom was burdened, and that preventing obstruction of business activities was a legitimate purpose. However, the measures were not adequately balanced to that purpose.
Justices Michelle Gordon and James Edelman departed from the majority in finding the law mostly and completely constitutional, respectively. Justice Gordon found one aspect of the law irrational – the ban on entering a “business access area” for four days after being directed to leave it. However, the rest of the law only made unlawful what was already unlawful under a different Tasmanian law. Justice Edelman similarly wrote that the law only applied to conduct that was already illegal.
Where to from here?
Brown v Tasmania is a landmark decision for the right to protest in Australia. The court’s decision is the clearest articulation ever of how protest is protected by the Constitution. Themes across the judgments will probably prove important in future cases and when governments are contemplating introducing protest-restricting legislation. Brown and Hoyt argued that it was necessary that they be on site for their protest to be effective – so they could broadcast images of the environmental destruction they opposed. As Justice Nettle put it: “Media coverage, including social media coverage, of on-site protests enables images of the threatened environment to be broadcast and disseminated widely, and the public is more likely to take an interest in an environmental issue when it can see the environment sought to be protected.” That meant that legislation, like the anti-protest laws before the court, which prevented them from going near logging posed a bigger challenge to the right to protest.
The justices also took into account the significant history of political protests in Tasmania in bringing about the change needed to protect now treasured wilderness areas. The fact that protest had been an important tool to creating that change added to the burden that these laws placed on political communication.
Another notable theme across the judgments was the general acceptance that protecting business interests was a legitimate purpose for the law to pursue. Where other governments have sought to justify laws that restrict protest by citing safety, the Tasmanian government was more forthright in its rhetoric, talking about the rights of business to be free of interference.
In the immediate future, the High Court’s decision could lead to a challenge to New South Wales’ anti-protest laws. The Environmental Defenders Organisation has stated that it’s seeking advice on how the Brown decision affects prospects of success.
In the longer term, the court’s decision will be a boon to activists. A flashpoint for the fight against climate change in Australia is the controversial Carmichael coal mine, which the company Adani is pursuing in the state of Queensland. So far, legal and financial hurdles have stalled the construction of the mine, which critics say will drive climate change, threaten groundwater systems, and disregard the rights of Indigenous Australians to their traditional lands. The project promises to turn environmental direct action into a major battle ground in Australia in the near future. With strong incentives for politicians and business to try to stifle environmentalists’ dissent, the High Court’s ruling will give protesters some protection from overreach.
Bob Brown thought as much in the wake of the judgment. “Today is a great day for the forests, wildlife and all of nature in Tasmania and around Australia and a great day for the fundamental right of Australians to peaceful protest,” he told the media. “Those calling for harsh penalties against peaceful citizens protesting Adani mine have been put back in their place by the High Court.”
Jessica Hoyt said that she planned to marry her partner of 11 years in the forest the following week.
“I take some comfort that even though we lost our beautiful forest, Lapoinya meant something,” Hoyt said. “It meant that this law could be challenged. It is not OK to create legislation that only serves corporate business interests and it’s time for politicians to start listening to the people, to community. Never let fear stand in the way of what is right. Lapoinya, this was for you.”
Emily Howie is a Director of legal Advocacy and Hannah Ryan is lawyer with the Human Rights Law Centre