A world in which it is not OK for Bob Brown to stand in a Tasmanian forest clearing and decry its destruction is my definition of a police state. Thanks to the High Court, we’ve taken a rare step back from that awful brink.
The cause for celebration is the High Court’s judgment yesterday in Brown v The State of Tasmania. By 5-2 majority, it found invalid a controversial Tasmanian law designed to get the tree-huggers out of the forests, to allow logging to carry on unmolested and, more importantly, unobserved.
It’s always best to start with a reminder that, in Australia, we have no human rights. In particular, we do not have a right protected by law to free speech, association or action. All we have to save us from our politicians’ zeal for intrusive law-making is the so-called implied freedom of political communication, which the High Court discovered in between the words of the constitution in 1997 — and has been tinkering with ever since.
The basic idea is that, if we the people are to be sovereign and fully able to exercise our power to make and unmake governments, then we must have a society that is free enough to allow us to be both well informed and outspoken.
Among the activities that the implied freedom encompasses is protest action. Marching, chanting, placarding, sitting, camping and tree-climbing are all valid and powerful forms of communication in the forum of political thought, discussion and advocacy.
In the Brown case, the court spends much of its 183-page judgment agonising over the mechanics of the test for determining when a particular law does or doesn’t offend the implied freedom.
Some quick backstory: Bob Brown and others got themselves arrested by Tassie cops in the Lapoinya Forest while protesting logging operations. They weren’t impeding or obstructing the forestry operations, just seeking public attention by their presence and that of the attendant media.
They were arrested under a law called the Workplaces (Protection from Protesters) Act 2014, the title of which should suffice to tell us that we’re in the territory of policing overreach hiding behind euphemistic bullshit.
The long title of the act says it was passed “to ensure that protesters do not damage business premises … or prevent, impede or obstruct the carrying out of business activities on business premises”.
As the court pointed out, it was a pretty awkward fit for “business premises” to be defined to include an actual forest, but that’s what the act attempted to do. It turned Lapoinya Forest into a business premises and created all sorts of criminal offences, which might be committed by people who turned up there, or on the roads leading to it, wanting to protest the forestry operations.
The technical problem with the act, and main reason why the court knocked it over, was the impossibility of anyone being able to determine whether they’re standing in a “business premises” when they’re surrounded by trees. You don’t commit an offence under the act unless a police officer has ordered you to move on, but they can’t do that unless you’re on the premises and there’s no way they can know where the premises start and end. In fact, the Tasmanian DPP has dropped all of its prosecutions under the act (including against Brown) because of this problem.
The court’s majority fastened on this practical issue. Although Brown hadn’t, in fact, broken the law, he had been arrested and removed, which was a devastatingly effective deterrent to all protest activity, lawful or not. So, this law placed a pretty extreme practical burden on the freedom of communication by physical protest.
It wasn’t a long leap from that to determining that the act was stupidly excessive in its pursuit of the purpose for which it was supposedly made. Remember, the whole idea, allegedly, was to prevent protesters from obstructing the ordinary operation of businesses or damaging business premises. That’s a legitimate reason to make a law. But this law went way beyond what it said it aimed to do; its design and practical operation prevented peaceful protest altogether, including protest which wasn’t even in contravention of its provisions. Throw in the huge potential penalties — four years in prison and $10,000 fines — and the chilling effect is obvious.
When legislators practise to deceive, they do weave a tangled web but they’re never so smart as they think they are and it’s not particularly difficult for a switched-on court to call them out (not that they don’t sometimes get away with their rubbish).
So, this Tasmanian law, which was ostensibly about protection from protestors but was really about preventing protest altogether, is history. We don’t often get to celebrate a victory for our tiny and precious freedoms but, thanks to the High Court, here’s one for the good guys. Into the forest!