Bob Brown takes to High Court to test hardline anti-protest laws

The Conversation.

In a landmark case now before the High Court, former Australian Greens leader Bob Brown and fellow forestry protester Jessica Hoyt are arguing that Tasmania’s anti-protest laws unconstitutionally restrict freedom of speech.

The two-day hearing, which concludes today, focuses on Tasmanian legislation. But the case has implications for hardline laws introduced in New South Wales and Western Australia.

Standing outside the High Court, Brown summarised what is at stake:

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.

Critics see these laws in Tasmania as part of a deliberate effort to stifle environmental protest as the government pursues its stated aim of “rebuilding Tasmania’s forestry industry”.

Laws that some scholars say put corporate interests ahead of democratic rights have been legislated internationally. However, the issue now before the High Court is narrow. Does the Tasmanian legislation breach the constitutional implied right to freedom of political communication?

Tasmania’s laws

Under the Act, a protest is defined as any activity that promotes “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. Political expression is thus an explicit focus of the law. It creates numerous protest offences with serious penalties.

Protesters who do not leave a premises when directed by police face penalties of up to A$10,000 each. New offences of causing or threatening damage or risk to the safety of a business carry penalties of up to A$250,000 or 5 years’ imprisonment. The definition of “business premises” is very broad and includes land that may be publicly owned, such as “business access areas” and mining and forestry sites.

Tasmania’s former resources minister Paul Harriss, in a statement made when the bill was passed in 2014, said:

Tasmania will now have the strongest legislation in the country to protect the rights of workers to lawfully earn a living, while ensuring the right to free speech and legitimate protest have been protected… No longer will Tasmania tolerate the extremists; you may have your say but you may not stop workers from earning a living.

Two months earlier, the United Nations urged Tasmania to withdraw the legislation. UN Special Rapporteur David Kaye described the law and its penalties as “disproportionate and unnecessary”. His colleague Maina Kiai argued that the law impedes the basic democratic function of protest: to hold government and corporations accountable.

The High Court

In January 2016, Brown was arrested and charged at an anti-forestry protest in Tasmania’s northwest, for refusing a police order to vacate the Lapoinya Forest exclusion zone, a “business access area”. He faced a maximum fine of A$10,000.

Brown announced in March 2016 that he intended to challenge the laws in the High Court. Two months later the charges were dropped, although a statement by Tasmanian Police Commissioner Darren Hine suggested that this was due to a technical error in the charges rather than an issue with the law’s constitutional validity.

Brown opted to continue his challenge to the laws. To broaden the case and secure legal standing, Hoyt joined as a co-plaintiff. She had been arrested at Lapoinya for returning to the area (rather than refusing to leave), thereby triggering a different section of the legislation.

Crucial question

In the High Court, the key question is whether the Tasmanian legislation is consistent with freedom of political communication. Because Australia lacks a bill of rights, this freedom has been implied from the constitutional principle of representative government. The reasoning is that it would be illogical to empower a citizenry to elect members of parliament but fail to protect public discussion about politics.

The court will be required to decide whether the Tasmanian law burdens communication about government or political matters.

The second, and more interesting, question is whether the Tasmanian law is “reasonably appropriate and adapted” to fulfil its claimed purpose of protecting workers and business while remaining consistent with our system of representative and responsible government.

Peter Gutwein, formerly Tasmanian forestry minister and now Tasmanian treasurer, has expressed confidence that the legislation will stand up to a constitutional challenge. However, this is far from certain.

In late 2016, UN Special Rapporteur Michel Forst reported that Tasmania’s laws:

would contravene Australia’s … obligations under international human rights law, including the rights to freedom of expression as well as peaceful assembly.

The Human Rights Law Centre has criticised the law as placing business interests over democratic values. Spokesperson Emily Howie argued:

Governments can’t just sell off our democratic rights in order to appease vested business interests. This Tasmanian law is completely unbalanced; it puts business interests way ahead of our rights as individuals to engage in political communication or indeed protest.

Other governments, both in Australia and internationally, will be watching the outcome of the case with interest. Australian citizens, especially those who feel that successive governments have shown more interest in protecting the fossil fuel industry than in effectively responding to climate change, will be looking for a sign about the values that underpin our Constitution.

Source: The Conversation. Reproduced with permission.

Comments

12 responses to “Bob Brown takes to High Court to test hardline anti-protest laws”

  1. Andy Saunders Avatar
    Andy Saunders

    What has this got to do with renewable energy?

    1. Robin_Harrison Avatar
      Robin_Harrison

      It’s all of a piece. The energy transition is part of the greater transition we’re experiencing; towards a sustainable future.

      1. Andy Saunders Avatar
        Andy Saunders

        Bit of a long bow. Article is about the possible legal conflict between a Tasmanian anti-protest law and a federal constitutional implied right of free speech.

        Very marginal, imo.

        1. Adam Lucas Avatar
          Adam Lucas

          Andy, you have a very narrow view of what constitutes the politics of energy if you don’t recognize the importance of this issue to protesting against coal mining, fossil fuel powered electricity generation, or any number of other issues to do with reducing energy consumption and the adverse social and environmental effects of polluting energy sources. The NSW Govt has already used similar laws to crack down on anti-CSG protests and protesters, for example. Likewise, if you don’t think Campbell Newman as Premier of Qld had similar aims in mind when he introduced similar laws in that state, perhaps you should look deeper into the issue.

          1. Coley Avatar
            Coley

            “Very marginal, imo”

            At least he had the decency to omit the ‘h’

          2. Andy Saunders Avatar
            Andy Saunders

            Coley, in my experience, people who omit the ‘h’ don’t have much of it!

            Adam, as for Adani (or other coal mines), I’d advise concentrating on where they are weakest. Which is the economics (worse than current mines, for which the development cost is largely sunk) relative to renewables. That poor economics means they will struggle to be financed, so if I were you I’d concentrate on the financing banks. Various communications targeted early there will do way more than placards on a fairly empty road in rural Qld…

        2. Robin_Harrison Avatar
          Robin_Harrison

          This energy transition has some powerful enemies. As we rapidly approach the end of the fossil fuel age that wealthy and influential industry is fighting for its life. They own politicians and govts and are not above getting even dirtier as they get ever more desperate. These laws are part of their death throws so it’s important for the transition that we don’t allow them. Not for much longer though. Economically renewable energy is on the verge of being irresistible. Hope that explains the connection.

    2. D. John Hunwick Avatar
      D. John Hunwick

      Any protest on the Adani coal mining by ordinary people concerned about the impact of increased GHG emissions could be charge in much the same way as Bob Brown. I want the right to travel to the area of the mine and peacefully against it without having to be fined ANYTHING. Surely this is what the Anzacs were fighting for.

      1. Andy Saunders Avatar
        Andy Saunders

        To be honest, I doubt the ANZACs had a view on GHG emissions!

        I don’t think you’ll be in much danger from a Tasmanian law in Central Qld…

        1. Coley Avatar
          Coley

          No, the ANZACS wouldn’t have had a view on “GHG emissions” but they, and all the others that fought, had very strong views on Dictators and Fascists.
          The wolves may have changed their clothes, but the danger they represent to ordinary people hasn’t.

    3. wholisticguy Avatar
      wholisticguy

      This link is outlined here, http://www.smh.com.au/comment/nsw-antiprotest-laws-are-part-of-a-corrosive-national-trend-20160321-gno10h.html

      New anti-protesting laws which are rolled out at the state level, may violate the spirit of federal law. Protesting and other non violent political direct action are often the ‘frontline’ of people’s dissatisfaction with government protection of environmentally damaging industries. While this particular case is about logging, it’s the same laws that are applied in other states against mining. For example equivalent laws would almost certainly be applied if the Adani mine proceeds further.

      The article above links the roll out of these new laws which increase penalties for protesting on mining sites to up to 7 years in prison, while reducing penalities for environmental damage caused by mining companies from $1,000,000 to $5,000.

      If this high court challenge by Bob Brown is successful, it will set a powerful precedent to strike down other related laws that will almost certainly be applied to similar action that will be taken against new fossil fuel generation.

  2. Rob Avatar
    Rob

    very interesting though, and something that may have escaped some people’s attention up till now. Thanks for posting.

Get up to 3 quotes from pre-vetted solar (and battery) installers.