Bob Brown's lawyer argues Tasmania's anti-protest laws designed to stop free speech
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Version 0 of 1. The “true purpose” of Tasmanian anti-protest laws is not to protect businesses but to stop political communication such as environmental campaigns, Bob Brown’s lawyers have told the high court. On Tuesday the high court held the first day of the full hearing of Brown’s challenge to the controversial Tasmanian anti-protest laws after he was arrested in January 2016 at Lapoinya state forest near Burnie in Tasmania’s north-west. The Workplaces (Protection from Protesters) Act 2014 prohibits protesters from “preventing, hindering or obstructing” businesses, even in public areas such as state forests or the access points to areas where commercial activities are conducted, if they ought to have known the impact their political activity would have on the business. Brown’s counsel, Ron Merkel, told the court the law discriminated against protesters by allowing companies to give consent to certain political activities, in effect silencing only those opposed to logging. Merkel described the law as “unusual” and without precedent in Australia because police powers to order protesters to move on and the automatic ban on them returning for four days were only enlivened when they agitated “political, environmental, social, cultural or economic issues”. He said this was “content-based criterion” that meant the law directly targeted political communication, which is protected by an implied freedom in the commonwealth constitution. Merkel said the law lacked a “rational connection” to preventing disruption of business which revealed its true purpose was to stop environmental protests. Brown’s case was tested by questions from the bench about whether the act did anything more than give police powers to protect common law rights against trespass or “besetting”. Merkel responded that the law went further than that, noting the regime relied on the police’s assessment of whether protesters were interfering with a business not if they were trespassing. Merkel said forests were crown land and the Forestry Management Act allowed the public to access them. Although the crown and forest managers could revoke a licence for the public to enter, they could not do so for a purpose incompatible with the implied freedom. He said Brown and the other plaintiff, Jessica Hoyt, were not trespassing when they were arrested. Charges were dropped against both after the constitutional challenge. Speaking outside the court before the hearing, Brown, the former Greens leader, said laws such as Tasmania’s would have prevented campaigns that saved the Franklin River in Tasmania, Terania Creek in New South Wales and the tropical rainforest in Queensland. Inside the courtroom, Merkel relied on those successes to argue that the burden on political communication by restricting protesters from accessing the sites they sought to protect was “significant”. Drawing an analogy to an earlier case about the broadcast of political ads, Merkel said in the age of YouTube, Instagram and Facebook, the Bob Brown Foundation was a broadcaster that relied on the ability to “photograph and film what [activists] are doing” and to show the impact of logging. “The world of today has drones too – that may render it less necessary to be there,” chief justice Susan Kiefel quipped. Merkel submitted the law was not proportionate because it made no endeavour to balance the competing interests of business and freedom of political communication, which he called “startling”. Michael O’Farrell, the solicitor general of Tasmania, explained to the court that charges against Brown had been dropped because police had “misapprehended” the legal status of the area he had been found in, and it was not a business premises or access area. O’Farrell submitted the law was not designed to ban protests per se but only those that intended to, or could be imputed to have intended, to stop or hinder lawful business activity and successfully had that effect. He suggested there would be nothing unlawful about protesters holding signs outside a logging area and standing aside to allow vehicles to enter. O’Farrell accepted the public is allowed to use state forests where their use is “not incompatible” with forestry uses but said that “doesn’t mean Brown and Hoyt have some sort of freestanding right to protest” in the area. The high court adjourned on Tuesday afternoon, with the hearing to continue on Wednesday. The commonwealth, and states of Queensland, NSW, Victoria and South Australia have intervened in the case. The states will argue that the law should be read such that any hindrance to business must be “serious” or “substantial” . |