Brown v Tasmania

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

ROBERT JAMES BROWN & ANOR  PLAINTIFFS

AND

THE STATE OF TASMANIA  DEFENDANT

Brown v Tasmania

[2017] HCA 43

18 October 2017

H3/2016

ORDER

Question 2 of the Special Case dated 9 December 2016 be amended and the questions stated in the Special Case (as so amended) be answered as follows:

Question 1

Do either or both of the plaintiffs have standing to seek the relief sought in the Amended Statement of Claim?

Answer

The defendant abandoned its challenge to the plaintiffs' standing.  Question 1 therefore need not be answered.

Question 2

Is the Workplaces (Protection from Protesters) Act 2014 (Tas), either in its entirety or in its operation in respect of forestry land or business access areas in relation to forestry land, invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?

Answer

Section 6(1), (2), (3) and (4), s 8(1), s 11(1), (2), (6), (7) and (8), s 13 and Pt 4 of the Workplaces (Protection from Protesters) Act 2014 (Tas) in their operation in respect of forestry land or business access areas in relation to forestry land are invalid because they impermissibly burden the implied freedom of political communication contrary to the Commonwealth Constitution.

Question 3

Who should pay the costs of the Special Case?

Answer

The defendant should pay the plaintiffs' costs.

Representation

R Merkel QC and F I Gordon with C J Tran for the plaintiffs (instructed by Fitzgerald & Browne)

M E O'Farrell SC, Solicitor-General of the State of Tasmania with S K Kay for the defendant (instructed by Solicitor-General's Office (Tas))

Interveners

S P Donaghue QC, Solicitor-General of the Commonwealth with P D Herzfeld for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

P J Dunning QC, Solicitor-General of the State of Queensland with A D Keyes and P D Mott for the Attorney-General of the State of Queensland, intervening (instructed by Crown Solicitor (Qld))

R M Niall QC, Solicitor-General for the State of Victoria with M A Hosking for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

C D Bleby SC, Solicitor-General for the State of South Australia with T N Golding for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

S E Pritchard SC with J E Davidson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))

B W Walker SC with J A Redwood and P M Bindon for the Human Rights Law Centre, as amicus curiae (limited to written submissions) (instructed by DLA Piper)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Brown v Tasmania

Constitutional law (Cth) – Implied freedom of political communication – Workplaces (Protection from Protesters) Act 2014 (Tas) – Where Act empowers police officers to direct protesters to leave and stay away from business premises and business access areas under pain of arrest and criminal penalties – Where business premises include forestry land – Where Act allows police officers to give such directions if they reasonably believe protester is preventing, hindering or obstructing business activity, has done so, or is about to do so – Where Forestry Tasmania authorised to undertake forest operations in Lapoinya Forest – Where plaintiffs protested in vicinity of forest operations – Where plaintiffs directed to leave and stay away from forestry land – Where plaintiffs arrested and charged, purportedly under Act, as result of protest activity – Whether Act restricts otherwise lawful protest activity – Whether implied freedom burdened – Whether Act, or provisions thereof, impose impermissible burden on implied freedom in their operation in respect of forestry land and related business access areas – Whether provisions suitable, necessary and adequate in balance.

Constitutional law (Cth) – Where plaintiffs charged under Workplaces (Protection from Protesters) Act 2014 (Tas) – Where charges not pursued – Where plaintiffs intend to engage in conduct unless conduct validly proscribed by Act – Whether plaintiffs have standing to challenge validity of Act.

Words and phrases – "burden", "business access area", "discriminatory effect", "implied freedom of political communication", "proportionality testing", "protest activity", "protester", "reasonably appropriate and adapted".

Forest Management Act 2013 (Tas), ss 8, 9, 13, 21, 22, 23.
Workplaces (Protection from Protesters) Act 2014 (Tas), ss 6, 8, 11, 13 and Pt 4.

1. KIEFEL CJ, BELL AND KEANE JJ.   In 2014 the Parliament of Tasmania enacted the Workplaces (Protection from Protesters) Act 2014 (Tas) ("the Protesters Act"), the title of which reads:

   "An Act to ensure that protesters do not damage business premises or business-related objects, or prevent, impede or obstruct the carrying out of business activities on business premises, and for related purposes".

2. A "protester" is defined in the Protesters Act to mean a person engaging in a "protest activity", namely, an activity that takes place on business premises or a business access area in relation to business premises in furtherance of, or 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[1].  A person engages in protest activity if the person "participates, other than as a bystander, in a demonstration, a parade, an event, or a collective activity, that is a protest activity"[2].  A person is not to be taken to be engaging in a protest activity if they have the consent of a business occupier to be on the premises and to there engage in the protest activity[3].

   [1]Workplaces (Protection from Protesters) Act 2014 (Tas), ss 4(1), 4(2).

   [2]Workplaces (Protection from Protesters) Act 2014 (Tas), s 4(3).

   [3]Workplaces (Protection from Protesters) Act 2014 (Tas), s 4(5).

3. The definitions of "business premises" and "business access area, in relation to business premises" ("business access area") and their place in the Protesters Act will be discussed in more detail later in these reasons. It suffices presently to note that the definition of "business premises" includes "forestry land"[4], which is relevantly "an area of land on which forest operations are being carried out"[5].

   [4]Workplaces (Protection from Protesters) Act 2014 (Tas), s 5.

   [5]Workplaces (Protection from Protesters) Act 2014 (Tas), s 3.

4. The two plaintiffs were present at different times in the Lapoinya Forest for the purpose of raising public and political awareness about the logging of the forest and voicing protest to it. They were each arrested and charged with offences under the Protesters Act. The charges against the plaintiffs were not proceeded with and were ultimately dismissed when no evidence was tendered by the prosecution with respect to them.

5. The plaintiffs challenge the validity of certain provisions of the Protesters Act, and to that end invoke the test for invalidity stated in Lange v Australian Broadcasting Corporation[6] as explained in McCloy v New South Wales[7] with respect to laws which restrict the freedom of communication about matters of politics and government which is implied in the Constitution. The first question stated by the parties in the Special Case asks whether either or both of the plaintiffs have standing to seek the relief sought. There is now no dispute concerning the plaintiffs' standing because the defendant has conceded that the plaintiffs have standing. That question therefore need not be answered. It is necessary also to amend the second question so that it refers to business access areas in relation to forestry land, in addition to forestry land. Accordingly the two remaining questions stated by the parties for the determination of the Court should read as follows:

   (2)Is the Workplaces (Protection from Protesters) Act 2014 (Tas), either in its entirety or in its operation in respect of forestry land or business access areas in relation to forestry land, invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?

   (3)Who should pay the costs of the Special Case?

   [6](1997) 189 CLR 520 at 561-562; [1997] HCA 25.

   [7](2015) 257 CLR 178 at 193-195 [2]; [2015] HCA 34.

6. The Protesters Act has a wider application than to business premises that are forestry land. Indeed the definition of "business premises" in s 5 of the Protesters Act extends to various business premises as that term might be ordinarily understood, and to business activities conducted upon them. However, the facts in the Special Case are limited to operations conducted on forestry land and protests with respect to them. There is also a particular historical, social and legislative background to forest operations and public access to forests in Tasmania, and demonstrations in forests appear to have been the catalyst for the Protesters Act. In the course of argument the plaintiffs effectively restricted their case to key provisions of the Protesters Act so far as they concern forestry land. The Court should not speculate about the operation and effect of the Protesters Act in other contexts. These reasons are therefore limited to the question of the validity of the relevant provisions of the Protesters Act in their operation with respect to forestry land or business access areas in relation to forestry land, namely, ss 6, 7, 8, 11 and 13 and Pt 4 of the Protesters Act.

   Background facts

7. The Lapoinya Forest is situated near the township of Lapoinya in North West Tasmania.  It is some 89 hectares in size.  Part of the forest was identified as Forestry Coupe FD053A ("the coupe") in a Forest Practices Plan ("the FPP") which was submitted by Forestry Tasmania to the relevant authority in December 2015 to obtain authorisation to conduct forest operations[8].  That authorisation was provided.  Those operations included tree felling in the coupe.

   [8]See Forest Practices Act 1985 (Tas), Pt III, Div 1, which sets out the requirements applying to Forest Practices Plans.

8. Forestry Tasmania is the "Forest Manager" as defined by the Forest Management Act 2013 (Tas) ("the FMA") and has the management and control of all land which is "permanent timber production zone land" ("PTPZ land")[9]. The land in the coupe was PTPZ land within the meaning of the FMA. If forest operations are occurring on PTPZ land, that land is "forestry land" for the purposes of the Protesters Act.

   [9]Forest Management Act 2013 (Tas), ss 7 and 8.

9. The map which accompanied the FPP identified the boundaries of the coupe and the boundaries of the "harvest area" within it in which tree felling was permitted.  The land which the FPP so identified did not include any land declared as reserved land under the Nature Conservation Act 2002 (Tas). Land of this kind abutted the south eastern boundary of the forest ("the Reserve").

10. The work undertaken by Forestry Tasmania in the coupe involved clearing old forest roads and constructing new roads in preparation for logging. Forestry Tasmania decided to close two forest roads – that part of Maynes Road which was within the coupe, and Broxhams Road, which bounded the south eastern boundary of the coupe. It did so by erecting signs advising of the closure of the roads to all unauthorised vehicular and pedestrian traffic and by suspending chains across the roads a short distance from the signs, as it is entitled to do under the FMA. Some of the operations undertaken by Forestry Tasmania involve the use of heavy machinery. It is accepted that it has statutory duties and obligations to ensure, so far as reasonably practicable, the health and safety of persons from those operations[10].

    [10]Work Health and Safety Act 2012 (Tas).

    The plaintiffs

11. The announcement by Forestry Tasmania of its intention to fell trees in the coupe in the Lapoinya Forest resulted in public protests, including by a public action group formed by the Lapoinya community.  The group wrote letters to politicians and newspapers, sent a delegation to the relevant Minister and distributed information amongst local residents.

12. The second plaintiff, Ms Jessica Hoyt, grew up in Lapoinya and was a founding member of the public action group referred to above.  The first plaintiff, Dr Bob Brown, was formerly a Senator for Tasmania and a founding member and leader of the Australian Greens.  He has been involved in environmental campaigns and protests since the 1970s.

13. On the first occasion Ms Hoyt was present in the Lapoinya Forest, she entered the Lapoinya Forest at Broxhams Road, passing the signs referred to above.  She walked through the forest to Maynes Road.  An employee of Forestry Tasmania asked her to wait whilst an excavator moved away, to which request she acceded.  Ms Hoyt then walked to a point in the forest on the south western side of Maynes Road where she received a direction from a police officer to leave the area.  When she refused to do so she was removed to the junction of Maynes Road and Lapoinya Road.

14. The following day Ms Hoyt returned to the forest with other members of the community who wished to protest against logging in the coupe, in order to show them what had taken place.  She was walking some five to ten metres from, and to the south of, Maynes Road when she was instructed by a police officer to stop, which she did.  She was then arrested and taken to Maynes Road.

15. On the date the subject of the charge against him, Dr Brown entered Broxhams Road and walked along a section of it with three other persons.  He was then filmed speaking about environmental issues and calling upon the relevant Minister to protect the forest against a background which showed preparatory work for logging being undertaken.  The footage included works being undertaken by a bulldozer.  When Dr Brown was approached by two police officers he was standing on a cleared part of Broxhams Road which was in the Reserve.  After a conversation with one of the officers he was directed to leave the area.  When he failed to do so, he was arrested.

16. After the commencement of this proceeding by Dr Brown, the defendant, the State of Tasmania, decided not to pursue the charge made against him under the Protesters Act. Likewise, after Ms Hoyt had applied to be joined to this proceeding, it was decided not to pursue the charges made against her. Tasmania now accepts that Dr Brown was not within an area to which the Protesters Act applied when he was arrested and does not allege that Ms Hoyt was in such an area, even though she contends that she was.

17. These matters may be put to one side for present purposes. They assume more importance with respect to difficulties relating to the identification of "forestry land" to which the Protesters Act applies than they do with respect to the question of the plaintiffs' standing, which Tasmania now concedes. That concession is appropriate. Standing is not lost because charges are withdrawn after the exercise of powers under a statute. As Dixon CJ observed[11] in Wragg v State of New South Wales[12], what has been done may be repeated. Furthermore, the plaintiffs have a "real interest" in the question of the validity of the Protesters Act because, unless constrained by it, the plaintiffs intend to engage in conduct which it proscribes. They are therefore interested to know whether they are required to observe the law[13].

    The background to the Protesters Act

    [11]Wragg v State of New South Wales (1953) 88 CLR 353 at 371; [1953] HCA 34.

    [12](1953) 88 CLR 353.

    [13]Croome v Tasmania (1997) 191 CLR 119 at 137-139; [1997] HCA 5; Kuczborski v Queensland (2014) 254 CLR 51 at 101 [152]-[153]; [2014] HCA 46.

    The FMA, access and powers

18. When the Protesters Act was enacted, the FMA and its predecessor statutes had been in operation for some time. The FMA provides Forestry Tasmania, its authorised officers and police officers with powers to ensure that forest management and operations, with which Forestry Tasmania is charged, are not impeded. It contains provisions with respect to public access to PTPZ land. There is no suggestion that there have been any real difficulties associated with its operation. The validity of its relevant provisions is not questioned in these proceedings.

19. As Forest Manager under the FMA[14], Forestry Tasmania has functions which include the management and control of all PTPZ land in Tasmania, including forest operations on that land for the purposes of selling forest products[15].

    [14]Forest Management Act 2013 (Tas), s 7.

    [15]Forest Management Act 2013 (Tas), s 8.

20. Section 13(1) of the FMA provides:

    "The Forest Manager must perform its functions and exercise its powers so as to allow access to permanent timber production zone land for such purposes as are not incompatible with the management of permanent timber production zone land under this Act."

21. A similar provision was introduced in 1991 as s 20B(1) of the statute which preceded the FMA, the Forestry Act 1920 (Tas), which was concerned with the functions of the Forestry Commission[16]:

    "The Commission must exercise its powers so as to afford members of the public access to State forest for such recreational purposes as are not incompatible with the management of State forest under this Act."

    [16]Public Land (Administration and Forests) Act 1991 (Tas).

22. The original s 20B, which had been inserted in 1984, was in somewhat different terms[17]:

    "The Minister may ... by notice in the Gazette, declare an area of State forest to be an area into which persons may not enter and in which persons may not remain without the authorization in writing of the Commission."

    [17]Forestry Amendment Act (No 2) 1984 (Tas). 

23. It would appear from the Second Reading Speech to the 1984 Amendment Bill that it was thought necessary to include such a provision because the existing legislation was inadequate to deal with situations arising from recent demonstrations.  The demonstrations referred to were those relating to the construction of the Franklin Dam[18].  It was said that[19]:

    "[t]he effect of the bill is to amend the Forestry Act to provide for a situation of trespass.  The powers of arrest which follow from the amendment will enable the removal of person or persons causing the problem or the obstruction in the forests."

    [18]See The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1; [1983] HCA 21.

    [19]Tasmania, Legislative Council, Parliamentary Debates (Hansard), 6 December 1984 at 2782.

24. The inference presently to be drawn from the original s 20B is that the Tasmanian Parliament considered it to be necessary to make express provision for notifying the public when they might not access forest areas. That provision, like the later s 20B(1) and the current s 13(1), recognises that there is an expectation on the part of the public in Tasmania, residents and visitors alike, that they may access forest areas and that that expectation should, so far as reasonably practicable, be met.

25. In the Second Reading Speech to the Bill which became the FMA it was said[20]:

    "Under this bill the people of Tasmania will still be able to access and use permanent timber production zone land for the range of purposes and activities they currently enjoy and undertake in their public forest estate.  The provisions of the 1920 [A]ct are essentially maintained to ensure the right to access the land continue, so long as the access does not interfere with the management of the land."

    [20]Tasmania, House of Assembly, Parliamentary Debates (Hansard), 24 September 2013 at 40.

26. Forestry Tasmania accepts many activities to be compatible with its strategic objectives with respect to PTPZ land.  In the FPP concerning the forest operations here in question, it is said that such activities include "recreation sites, organised events, recreational vehicle use, hunting and firearm use, fossicking and prospecting, firewood collection, indigenous rights use, commercial or private access, apiary sites, mineral exploration and mining and tourism".

27. The access recognised as available to the public by s 13(1) of the FMA is qualified by s 13(2), which provides that nothing said in s 13(1) prevents the Forest Manager from exercising its powers under ss 21, 22 and 23.

28. Section 21(1) provides that the Forest Manager may erect signs on or in respect of forest roads or on PTPZ land for the purposes of discharging its responsibilities or in the interests of safety. Section 21(2) provides that it is to erect signs stating that a particular road is a "forest road" within the meaning of the FMA. By s 21(3) a person must not, without lawful excuse, undertake an activity or engage in conduct on a forest road or other land in PTPZ land contrary to the direction of the Forest Manager as expressed on a sign authorised by the Forest Manager.

29. The Forest Manager, under s 22(2), may appoint an employee to be an authorised officer. An authorised officer may, under s 22(3), request a person not to enter PTPZ land or a forest road, to leave that land or road or to cease to undertake an activity or engage in conduct on them. The request may be made if the authorised officer is of the opinion that the entry or presence of that person, activity conducted or conduct engaged in may prevent the Forest Manager from effectively or efficiently performing its functions. An authorised officer may also, under s 22(4), prohibit a person from entering, or remaining in, an area of PTPZ land in particular circumstances, including when it is in the interests of the person's safety.

30. Section 23(2) provides that the Forest Manager may close a forest road or any section thereof, either permanently or temporarily, to all traffic if it considers that closure is necessary or expedient for the purposes of discharging its responsibilities or in the interests of safety. Closure may be signified or effected by signage or signage in conjunction with barricades or trenches or any combination of them. Section 23(4) provides that a person must not drive a vehicle on or otherwise use a forest road that has been closed in accordance with the section.

31. Sections 21 and 22 also provide for action to be taken by police officers. Section 21(5) provides that a police officer who reasonably considers that a person is offending against s 21(3) may direct the person to leave the forest road or other land in PTPZ land. Section 21(6) requires a person given such a direction to comply with it. Section 22(6) provides that a person must not, without lawful excuse, undertake an activity or engage in conduct on PTPZ land or a forest road contrary to the directions of a police officer. The penalty for a contravention of each of ss 21, 22 and 23 is a fine not exceeding 20 penalty units, which currently amounts to $3,180. Further, under ss 21(7) and 22(7), a police officer may arrest a person who fails to comply with a direction given under ss 21(5) and 22(6).

    Protests and the Protesters Act

32. The parties agree that there is a long history of political protests in Australia, including protests concerning environmental issues, in spaces accessible to the public and on Crown land.  In Dr Brown's experience, which is stated in the Special Case, the primary means of bringing environmental issues to the attention of the public and politicians is to broadcast images, including by the use of social media, of that part of the environment sought to be protected and which is said to be threatened.

33. The parties agree that, historically, protests have been a means of bringing about political and legislative change on environmental issues.  Onsite protests have been a catalyst for granting protection to the environment in particular places and have contributed to governments in Tasmania and throughout Australia granting legislative and regulatory environmental protection to areas not previously protected.  Since 2006, some 37 protests have taken place in Tasmania in areas that, at some later time, have been provided with legislative or regulatory protection.

34. It is accepted that public debate about environmental issues generally is relevant to both State and federal politics.  Public debate about environmental issues in Tasmania has featured prominently in previous federal campaigns.

35. It is an agreed fact that some protests have involved blocking the entry of machinery to forests and interfering with tree felling activities. Protest activity has included protesters placing themselves so as to render tree felling impossible. Prior to the enactment of the Protesters Act, there were prosecutions of protesters who had prevented equipment being used in forest operations; locked themselves to a boom gate and a vehicle; occupied tree houses; blocked forest roads; and locked themselves onto various devices whilst sitting in trees in order to prevent themselves being removed from the area.

36. A "Fact Sheet" was prepared with respect to the Workplaces (Protection From Protesters) Bill 2014 (Tas) ("the Protesters Bill"). It is a document provided to members of the Tasmanian Parliament for the purpose of debate and is said to be capable of constituting extrinsic material for the purpose of s 8B(3)(e) of the Acts Interpretation Act 1931 (Tas). The Protesters Bill is referred to in the Fact Sheet as "designed to implement the Tasmanian Government's election policy commitment to introduce new laws to address illegal protest action in Tasmanian workplaces". It says that the Bill creates indictable offences but does not seek to prohibit the right to peaceful protests. It says that it "does seek to regulate inappropriate protest activity that impedes the ability of businesses to lawfully generate wealth and create jobs". The Bill is said to send "a strong message to protest groups that intentionally disruptive protest action that prevents or hinders lawful business activity is not acceptable to the broader Tasmanian community".

37. It is not suggested that the plaintiffs were engaged in protest action of the kind referred to above. It is not explained how the relevant police officer came to the view that the presence of the plaintiffs could have the effect of preventing, hindering or obstructing forest operations, as the Protesters Act requires. It is, however, to be inferred from the conversation that one police officer had with Dr Brown (which will be referred to later in these reasons) that it was thought that Dr Brown was on land which was "business premises" or a "business access area" to which the Act applied. The charges against Ms Hoyt under the Protesters Act must necessarily have been based on the same assumption. The uncertainty created by these terms is an important aspect of the operation and effect of the provisions of the Protesters Act, as will be explained.

    The provisions of the Protesters Act

    The prohibitions in s 6

38. The prohibitions which are central to the Protesters Act are contained in ss 6 and 7 of the Act. The plaintiffs direct attention to s 6 and its associated provisions, namely, ss 7, 8, 11 and 13 and Pt 4 of the Act.

39. Section 7 prohibits protesters from doing acts which cause damage to business premises or a "business-related object" and it prohibits threats of damage in relation to business premises for the purpose of promoting awareness of or support for an opinion or belief in respect of political, environmental or other issues. Section 7 is not engaged on the facts of the Special Case and no substantial argument was addressed to it. Save for the question of the purpose of the Protesters Act, to which s 7 may be relevant, it will not be further considered with respect to the principal question on the Special Case.

40. Section 6(1) to (3) provide:

    "(1)A protester must not enter business premises, or a part of business premises, if –

    (a)entering the business premises or the part, or remaining on the premises or part after entry, prevents, hinders or obstructs the carrying out of a business activity on the premises by a business occupier in relation to the premises; and

    (b)the protester knows, or ought reasonably to be expected to know, that his or her entry or remaining is likely to prevent, hinder or obstruct the carrying out of a business activity on the premises by a business occupier in relation to the premises.

    (2)A protester must not do an act on business premises, or on a business access area in relation to business premises, if –

    (a)the act prevents, hinders or obstructs the carrying out of a business activity on the premises by a business occupier in relation to the premises; and

    (b)the protester knows, or ought reasonably to be expected to know, that the act is likely to prevent, hinder or obstruct the carrying out of a business activity on the premises by a business occupier in relation to the premises.

    (3)A protester must not do an act that prevents, hinders, or obstructs access, by a business occupier in relation to the premises, to an entrance to, or to an exit from –

    (a)business premises; or

    (b)a business access area in relation to business premises –

    if the protester knows, or ought reasonably to be expected to know, that the act is likely to prevent, hinder or obstruct such access."

41. A "business activity" is defined, inter alia, as a lawful activity carried out for the purposes of profit or by a Government Business Enterprise[21].

    [21]Workplaces (Protection from Protesters) Act 2014 (Tas), s 3.

42. Section 6(7) provides that an act "prevents, hinders or obstructs the carrying out of a business activity on the business premises by a business occupier" if the act:

    "(a)prevents, hinders or obstructs the use, by a business occupier in relation to the business premises, of a business-related object on the business premises; or

    (b)causes a risk to the safety of a business occupier in relation to the business premises."

43. The definitions of a "protester" and of "protest activity" have been referred to at the outset of these reasons.

    "Business premises" and "business access areas"

44. The term "business premises" does not evoke images of forest lands, but the scheme of the Protesters Act applies that definition to places where protests might affect activities which involve economic interests, including those of a Government Business Enterprise such as Forestry Tasmania[22].

    [22]Government Business Enterprises Act 1995 (Tas), Sched 1.

45. The term "business premises" is defined relevantly to mean premises that are "forestry land"[23].  "Forestry land" is defined relevantly to mean "an area of land on which forest operations are being carried out"[24].  "Forest operations" are defined widely to mean work comprised of, or connected with, seeding and planting trees; managing trees prior to harvest; or harvesting, extracting or quarrying forest products, and includes any related land clearing, land preparation, burning-off or access construction[25].

    [23]Workplaces (Protection from Protesters) Act 2014 (Tas), s 5(1)(b).

    [24]Workplaces (Protection from Protesters) Act 2014 (Tas), s 3.

    [25]Workplaces (Protection from Protesters) Act 2014 (Tas), s 3.

46. A "business access area" is relevantly defined to mean[26]:

    "so much of an area of land (including but not limited to any road, footpath or public place), that is outside the business premises, as is reasonably necessary to enable access to an entrance to, or to an exit from, the business premises".

    [26]Workplaces (Protection from Protesters) Act 2014 (Tas), s 3.

    Directions and requirements

47. A contravention of s 6(1), (2) or (3) does not itself give rise to an offence, at least not in the first instance. The relevant offences are provided for in ss 6(4) and 8(1). They require, in the first place, that a direction be given by a police officer under s 11 that a person leave business premises or a business access area without delay. For the offence under s 6(4), the requirement referred to in s 11(6) must also be specified in the direction[27].

    [27]Section 11(3), (4) and (5) of the Workplaces (Protection from Protesters) Act 2014 (Tas) relate to directions to a business operator and are not presently relevant.

48. Section 11(1) and (2) provide:

    "(1)A police officer may direct a person who is on business premises to leave the premises without delay, if the police officer reasonably believes that the person has committed, is committing, or is about to commit, an offence, against a provision of this Act, or a contravention of section 6(1), (2) or (3), on or in relation to –

    (a)the business premises; or

    (b)a business access area in relation to the business premises.

    (2)A police officer may direct a person who is in a business access area in relation to business premises to leave the business access area without delay, if the police officer reasonably believes that the person has committed, is committing, or is about to commit, an offence, against a provision of this Act, or a contravention of section 6(1), (2) or (3), on or in relation to –

    (a)the business premises; or

    (b)a business access area in relation to the business premises."

49. Section 11(6) provides:

    "A direction issued under this section to a person may include a requirement that the person must not, in the period of 3 months after the date on which the direction is issued –

    (a)commit an offence against a provision of this Act; or

    (b)… contravene section 6(1), (2) or (3)."

50. Section 11(7) provides that a direction may be issued to either a person or "a group of persons" and s 11(8) provides that if a direction is given to a group of persons it is taken to have been issued to each person:

    "(a)who is a member of the group to whom the direction is issued; and

    (b)who ought reasonably to be expected to have heard the direction."

    The offences:  s 6(4) and s 8(1)

51. It is necessary then to return to s 6(4), which is in these terms:

    "A person commits an offence if he or she contravenes a requirement, specified in accordance with section 11(6) on a direction issued to the person under section 11(1) or (2), that the person must not, in the period of 3 months after the date on which the direction is issued, contravene subsection (1), (2) or (3) of this section."

52. An offence is committed under s 6(4) when a direction is given under s 11(1) or (2) to leave forestry land, or the business access area in relation to it; that direction is accompanied by the requirement in s 11(6) that the protester not commit an offence under the Protesters Act or contravene s 6(1), (2) or (3) in a period of three months from the date of the direction; and the person does commit an offence or contravene s 6(1), (2) or (3) in that period. No further direction is then necessary.

53. Section 6(4) applies to both "business premises" which is forestry land, and "business access areas". Section 8(1) is limited in its terms to business access areas. It provides that:

    "A person must not –

    (a)remain on a business access area in relation to business premises after having been directed by a police officer under section 11 to leave the business access area; or

    (b)enter a business access area in relation to business premises within 4 days after having been directed by a police officer under section 11 to leave –

    (i)       the business premises; or

    (ii)a business access area in relation to the business premises."

54. An offence under s 8(1)(a) is committed where a person fails to comply with a direction to remove themselves from a business access area. Section 8(1)(b) invites further attention. An offence is here committed where a person enters the business access area where they received the s 11 direction or enters a business access area in relation to business premises where they received such a direction, within four days of that direction. The area that the person may not enter is not limited to the area where the person was at the time of the direction but, effectively, includes any area that is outside the "forestry land" (namely, the area in which forest operations are then being conducted) as is reasonably necessary to enable access to an entrance to, or to an exit from, the forestry land. No more is required for the commission of an offence than the person's presence in such an area in that period of time.

55. Ms Hoyt received an infringement notice with respect to the first occasion on which she was present in a part of the Lapoinya Forest. It specified an offence under s 8(1). The offence with which she was later charged, concerning the second occasion she was present, was that under s 6(4). Dr Brown was charged with an offence under s 8(1). Both plaintiffs were arrested under powers given to police officers by the Protesters Act.

    Powers of arrest and removal

56. Section 13(1) provides that a police officer may arrest without warrant a person:

    "(a)     who is on business premises; and

    (b)who the police officer reasonably believes is committing, or has committed within the previous 3 months, an offence, against a provision of this Act, on or in relation to –

    (i)       the business premises; or

    (ii)a business access area in relation to the business premises."

57. Section 13(2) provides the same powers of arrest in relation to a person who is on a business access area. A police officer may also remove a person from business premises or a business access area if the police officer reasonably believes that the person is committing or has committed an offence against the Act, or a contravention of s 6(1), (2) or (3)[28].

    [28]Workplaces (Protection from Protesters) Act 2014 (Tas), s 13(3).

58. The powers of arrest and removal are exercisable only if the police officer "reasonably believes" that it is necessary to do so for specified purposes, which include ensuring the person's attendance at court; the preservation of public order; preventing the continuation or repetition of an offence; or the safety and welfare of the person or members of the public[29].

    [29]Workplaces (Protection from Protesters) Act 2014 (Tas), s 13(4).

    Penalties

59. The offences referred to above are indictable offences[30] but may, with the consent of the prosecutor, be heard and determined by a court of summary jurisdiction[31]. Relevantly, for an offence against s 6(4) or s 8(1) an individual may be fined up to $5,000 by a court of summary jurisdiction and up to $10,000 by other courts[32]. A further offence against s 6(4) may involve, as an alternative to that penalty, a term of imprisonment, to a maximum of 12 months in the case of a court of summary jurisdiction, and otherwise four years, or both penalty and imprisonment[33].

    [30]Workplaces (Protection from Protesters) Act 2014 (Tas), s 16(1).

    [31]Workplaces (Protection from Protesters) Act 2014 (Tas), s 16(2).

    [32]Workplaces (Protection from Protesters) Act 2014 (Tas), s 16(3)(b).

    [33]Workplaces (Protection from Protesters) Act 2014 (Tas), s 16(3)(b), s 17(2).

60. Where an infringement notice is issued to an individual by a police officer with respect to an offence under s 6(4) or s 8(1), a penalty of two penalty units ($318) may be imposed on that individual[34].

    [34]Workplaces (Protection from Protesters) Act 2014 (Tas), s 15(3).

    The terms, operation and effect of the Protesters Act

61. In order to answer the question whether a statute impermissibly burdens the implied freedom of political communication, it is necessary to consider in some detail the operation and effect of the statute[35].  That consideration assumes particular importance in this matter.

    [35]Unions NSW v New South Wales (2013) 252 CLR 530 at 553-554 [35]-[36]; [2013] HCA 58.

62. An obvious feature of the Protesters Act is that it is expressed to apply only to protesters. Other persons who might be present on, or remain on, land where forest operations are taking place and who do acts which affect forest operations in the ways mentioned in s 6(1), (2) and (3) are not subject to the Protesters Act or its consequences. The Protesters Act may be contrasted in this respect with the FMA, which applies to all persons.

63. Another feature is that the definition of "protester" in the Protesters Act refers expressly to matters about which protesters may be voicing opinions. Those matters and opinions receive no further mention in the Act, the operative provisions of which are addressed to the conduct of protesters as it may impact upon forest operations. It would seem that protesters are identified in this way because they, or some of them, are seen to be persons who are likely to engage in that conduct.

64. It may be accepted that protesters will seek to conduct protests concerning forest operations, such as clearing or tree felling, in the vicinity of those operations.  The plaintiffs refer to protests of this kind generally as "onsite protests".  It is important, however, to recognise that protests will take different forms and some will occur much closer to forest operations than others.  The Fact Sheet for the Protesters Bill itself distinguishes between protests which are intentionally disruptive of business activity and peaceful protests.  The former kind of protest might involve physical interaction between protesters and machinery being used in forest operations, the physical presence of protesters in or around trees due to be felled, physical confrontations with Forestry Tasmania personnel and blocking access to forest operations.

65. It is to be inferred from ss 6 and 7 that the Protesters Act is directed to protesters engaged in protests of that kind because it is the activities involved in such protests which are likely to damage or prevent, hinder or obstruct business activities conducted on forestry land. Not all protests can be assumed to be of that kind. Indeed, the facts in the Special Case do not suggest that activities resulting in such damage or harm have been common occurrences in protest actions which have been conducted over many years. To take one example similar to the facts of the Special Case, a protest may involve persons standing at a distance from, but within sight of, forest operations, holding placards, voicing their protests and being filmed. Protesters of this kind are also likely to be affected by the exercise of powers under the Protesters Act.

66. The powers given to police officers by the Protesters Act are conditioned upon a primary question of fact and law – whether a protester is in an area that is "business premises", here forestry land, or a "business access area" with respect to that land. This question must be addressed when a police officer is considering whether to direct a person to leave an area under s 11(1) or (2), whether a person has remained on or entered a business access area under s 8(1), whether a person is about to contravene s 6(1), (2) or (3) or commit an offence under s 6(4) and whether to remove or arrest a person under s 13.

67. The principal problem, practically speaking, for both police officers exercising powers under the Protesters Act and protesters is that it will often not be possible to determine the boundaries of "business premises" or a "business access area". That problem arises because the term "business premises" is inapt for use with respect to forestry land. The definition of "business premises" with respect to forestry land does not provide much guidance. The question simply becomes whether a protester is in an area of land on which forest operations (a widely defined term) are being carried out. The vagueness of the definition of "business access area" compounds the problem.

68. Forest operations might involve the use of sheds but not "business premises" as that term is ordinarily understood. Forest operations are not conducted in premises or even enclosures; the operations will not be located at one site, because they will be carried out progressively at different locations in the harvest areas of the coupe. There will be nothing to indicate the boundaries of these locations so that it is understood where a protester may not be present. Forestry Tasmania may identify such areas by signs or by physical barriers under the powers given by the FMA, but the Protesters Act does not identify the areas to which it applies as those designated under the FMA. It makes no connection with the FMA in this regard at all.

69. The boundaries of an FPP are surveyed.  They are marked by pink tape on vegetation or fixtures along the boundary, but these markings may not be visible to a person in a forest for a number of reasons.  In any event they do not designate business premises, which will not comprise the whole area of the FPP, or even the harvest area within it, but a smaller area where forest operations are being conducted from time to time.

70. It may be possible to identify as an area on which forest operations are being carried out, and therefore as "business premises", the exact location where machinery is being used, or where trees are being felled, or where roads or tracks for access are being constructed. Even in these cases, it may not be possible to discern whether a protester standing some distance from these activities is within or outside of the area to which the Protesters Act is intended to apply.

71. It might be thought that the consequences of the conduct of a protester, or of their presence, which are sought to be avoided by the Protesters Act, might provide some guidance as to the identification of the area the subject of the Protesters Act. Tasmania's initial position was that the phrase "prevents, hinders or obstructs" should not be read narrowly, but in the course of argument it accepted that it should be construed, consistently with the principle of legality and s 3 of the Acts Interpretation Act 1931 (Tas)[36], so as to apply only to the conduct or presence of a person which "substantially" or "seriously" hinders or obstructs business activities.

    [36]Section 3 of the Acts Interpretation Act 1931 (Tas) provides:

    "Every Act shall be read and construed subject to the limits of the legislative powers of the State and so as not to exceed such powers, to the intent that, where any enactment thereof, but for this provision, would be construed as being in excess of such powers, it shall nevertheless be a valid enactment to the extent to which it is not in excess of such powers."

72. The Protesters Act does not require a police officer, before exercising the powers it provides, to simply consider what the particular protest action involves and whether it is likely to have these effects upon business activities then being carried out on forestry land. Had it done so, attention would undoubtedly be directed to the kind of protest activity referred to earlier in these reasons, which is likely to have a direct, discernible impact upon those business activities.

73. In each case the primary focus in determining whether the Protesters Act applies is upon where a protester is situated. In this statutory scheme the further enquiries, as to what effects a protester's presence or conduct might have and their foresight of those effects, are of secondary importance. In many cases it will be difficult for a police officer to be able to correctly determine where a protester is situated and where the line around business premises and business access areas is to be drawn. A protester will be in no better position in making such determinations. But the powers exercised by police officers under the Protesters Act have important consequences for protesters and for protests generally and experience suggests that their exercise will not always be based upon a correct appreciation of whether the land in which a protester is situated is forestry land to which the Protesters Act applies. In its practical operation, the Protesters Act may bring protest activity to an end upon the mistaken, albeit reasonable, belief of a police officer, unless the protesters are disposed to resist a direction, and thereby risk a breach of the peace, in order to test the issue.

74. There can be little doubt that the determination of whether a protester is in an area of forestry land has proved difficult for police officers exercising powers under the Protesters Act. The circumstances surrounding the arrest of Dr Brown are revealing. The point is not that the police officer was unaware that Dr Brown was then standing on the Reserve, to which Tasmania now concedes the Protesters Act did not apply, but rather that he was addressing the question whether Dr Brown was present in an area where forest operations could be said to be carried out. His enquiry of Dr Brown reflects the difficulty police officers, and protesters, will experience in determining where the line is to be drawn. He asked: "Do you realise you are getting close to impinging on forestry operations?"

75. Information about the charges made under the Protesters Act, provided in the Special Case, is also illuminating. Since the commencement of the Protesters Act nine people, including the plaintiffs, have been charged under it: seven under s 8(1)(a) and two under s 6(4). All charges were discontinued because the direction given was not correctly referable to "business premises" or a "business access area".

76. This accords with the statement made by the Tasmanian Police Commissioner after the decision was made not to proceed with the charges against Dr Brown.  The Commissioner explained that the decision was based upon advice received from the Tasmanian Director of Public Prosecutions, who had observed that "it was difficult for police officers to determine whether a person was in a business access area or on business premises".  It is unlikely that the Director was referring to a difficulty in choosing between the two.

77. The point to be made is not that prosecutions of charges made under the Protesters Act are unlikely to succeed, if they do proceed. It is that the difficulty associated with identifying the area to which the Protesters Act applies in a given circumstance is likely to result in errors being made except in the clearest of cases. The result will be that some lawful protests will be prevented or discontinued and protesters will be deterred from further protesting. They will be deterred because it will come to be appreciated, if it is not already, that there is a real likelihood that if they are present on land in the vicinity of forest operations they may be subjected to a direction to leave the area and all the effects which flow from such a direction even if there is no basis in law for the direction because the area is not forestry land or a business access area in relation to that land.

78. The vagueness of the terms "business premises" and "business access area" is also likely to work against a protester in seeking a remedy by means of judicial review of a direction made to leave the area where they were protesting. It is one thing for lawyers advising the government to determine whether it can be proved that a protester was in an area to which the Protesters Act applied. It is another for protesters to have a direction ruled unlawful in time to return to continue their protest. The result will be that protests will be stifled when they should not be.

79. The foregoing observations reflect experience of the practical operation of the Protesters Act in relation to forestry land. That the Protesters Act may operate effectively to stifle political communication which it is not the purpose of the Act to stifle is not merely a function of the vagaries of the application of the concepts employed by the legislation to "facts on the ground"; it is a consequence of the design of the Act in its deployment of a possibly mistaken, albeit reasonable, belief of a police officer as the mechanism by which it operates. Protests may be effectively terminated in circumstances where it is not necessary that the protester has, in truth, contravened s 6(1), (2) or (3) of the Protesters Act, where it is not necessary to establish that any offence has been committed by the protester, and where judicial review of the mechanism whereby such a result is brought about is not practically possible before the protest is terminated.

80. In this regard, the directions contemplated by s 11 may be based on a mistaken, albeit reasonable, belief on the part of a police officer that a person has committed, is committing or is about to commit, inter alia, a contravention of s 6(1), (2) or (3) on or in relation to business premises or a business access area. A protester who, in truth, has not committed, is not committing and is not about to commit a contravention of s 6(1), (2) or (3) on or in relation to business premises or a business access area may be directed to leave an area which is not, in truth, business premises or a business access area. In this way, protesters who are not disposed to risk breaching the peace in order to test in court the reasonableness of the police officer's possibly mistaken belief may be moved on by the police, and their protest thereby terminated.

81. Section 8(1)(b) requires special attention. Together with s 13, it permits protesters to be physically removed and arrested without warrant if they are present in any "business access area", wherever that is thought to be, in the period of four days after they were directed to leave the area they were in when they were given the direction. They may be guilty of an offence and liable to a substantial penalty. This provision operates in that period to deter a person from being present in the area where they were present when given the direction under s 11(1) or (2), and also from being present in any "business access area" at all with respect to the relevant forestry land, with all the vagueness that that term implies. The area of forest operations may have moved as work within the coupe is carried out. Importantly, the offence with which the person may be charged is not based upon any foresight on the part of a police officer that the person's presence might have an adverse effect on forest operations. The person's presence in a business access area alone is sufficient for the offence to be committed.

82. The effect of these provisions should also be understood in light of their operation in conjunction with s 11(7) and (8). It will be recalled that under s 11(7), a direction under s 11(1) or (2) may be given to a group of persons, which, according to s 11(8), is taken to have been given to each person who is a member of the group and who ought reasonably to be expected to have heard the direction. The effect of s 11(7) and (8) is therefore to widen the effect of deterrence and to stifle the protest of a potentially large number of persons. All persons present in an area and within earshot of a direction given by a police officer, which may include by loudspeaker, will have to leave the area. They will be subject to s 8(1) even if most, or all, of the group are not undertaking any activity which might amount to a contravention of s 6(1), (2) or (3). A police officer is not required to even consider that prospect.

83. Where a requirement under s 11(6) is added to a direction under s 11(1) or (2), a person will be guilty of an offence under s 6(4) if they are considered by a police officer to contravene s 6(1), (2) or (3) in a period of three months from the time the direction is given. That consideration will be subject to the same vagaries about where the person is located as have been referred to above.

84. In summary, an exercise of the powers given under s 11(1) and (2) in combination with s 6(1), (2) and (3); the offences created under s 8(1) and s 6(4) (the latter in combination with s 11(6) and s 6(1), (2) and (3)); and the powers of arrest and removal given by s 13, are likely to have significant deterrent effects on protesters. Their effects will extend to protesters undertaking protest activities of a kind and in a place which would not affect forest operations and whose presence would not be excluded by the FMA. Their effects will extend beyond individual protesters to entire groups, because of the operation of s 11(7) and (8).

85. Protesters of this kind will be deterred from being present in the vicinity of forest operations for fear that they may be subject to a direction to leave, with all the consequences which flow from such a direction.  They will be deterred from protesting even though the direction may be based upon an erroneous view of where they are situated.

86. The combined effect of the provisions referred to above is immediate.  It can bring the protest of an entire group of persons to a halt and its effect will extend over time.  Protesters will be deterred from returning to areas around forest operations for days and even months.  During this time the operations about which they seek to protest will continue but their voices will not be heard.

87. The possibility that a protester might be liable to a substantial penalty should not be overlooked, but it may not loom so largely as a deterrent. This may be because no charge under the Protesters Act has been successfully prosecuted. There has been no successful prosecution for the reason that mistakes have been made about whether the Protesters Act applied. However, from the point of view of protesters, there is nothing to suggest that mistakes will not continue to be made. That circumstance will operate as a significant deterrent. That will occur as a practical matter whether or not a prosecution for an offence is pursued to a successful conclusion and without any occasion for the determination by a court of whether or not the operation of provisions infringes the implied freedom in the circumstances of the case[37].

    [37]Cf Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 144; [1992] HCA 45.

    A burden on the freedom?

88. It is necessary to keep firmly in mind that the implied freedom is essential to the maintenance of the system of representative and responsible government for which the Constitution provides. The implied freedom protects the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth. It operates as a limit on the exercise of legislative power to impede that freedom of expression. The enquiries posed by Lange are the indispensable means by which a legislative measure which is apt to impede the free flow of political communications may be justified.  The first enquiry is whether the freedom is in fact burdened.

89. Tasmania does not dispute that protesters to whom the Protesters Act applies may be taken to communicate about matters relating to politics or government. It concedes that the Protesters Act may burden the freedom. It does not accept that the Protesters Act has that effect with respect to the plaintiffs, for it did not apply to them or persons in their position who were protesting on public land adjacent to a site on which a business activity was being undertaken. Tasmania says the Protesters Act therefore had no relevant operation. It may be accepted that Dr Brown was on the Reserve, which was land to which Tasmania conceded the Protesters Act did not apply, but Tasmania did not explain how that conclusion was to be reached with respect to where Ms Hoyt was situated.

90. Where a statute is said to impermissibly burden the freedom, the first enquiry is whether the statute in fact burdens the freedom[38].  The extent of the burden is a matter which falls to be considered in relation to the assessments required by the second limb of Lange[39].  The first enquiry requires consideration as to how the statute affects the freedom generally[40].  It is not answered by reference to the operation of the statute in individual cases, although such evidence may provide useful examples of the statute's practical effect, and therefore of the burden the statute may have on the freedom[41].  This Court has said more than once[42] that the freedom spoken of is not a personal right or freedom.  The freedom is better understood as affecting communication on the subjects of politics and government more generally and as effecting a restriction on legislative power which burdens communications on those subjects[43].

    [38]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567-568; Unions NSW v New South Wales (2013) 252 CLR 530 at 555 [40]; McCloy v New South Wales (2015) 257 CLR 178 at 201 [24].

    [39]Unions NSW v New South Wales (2013) 252 CLR 530 at 555 [40].

    [40]Unions NSW v New South Wales (2013) 252 CLR 530 at 553 [35].

    [41]Wotton v Queensland (2012) 246 CLR 1 at 31 [80]; [2012] HCA 2.

    [42]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 150; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 149; [1994] HCA 46; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 327; [1994] HCA 44; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560; Wotton v Queensland (2012) 246 CLR 1 at 23-24 [54], 31 [80]; Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at 73-74 [166], 89 [220]; [2013] HCA 3; Monis v The Queen (2013) 249 CLR 92 at 189 [266], 192 [273], 206-207 [324]; [2013] HCA 4; Unions NSW v New South Wales (2013) 252 CLR 530 at 551 [30], 554 [36]; Tajjour v New South Wales (2014) 254 CLR 508 at 569 [104], 593 [198]; [2014] HCA 35; McCloy v New South Wales (2015) 257 CLR 178 at 202-203 [30].

    [43]Unions NSW v New South Wales (2013) 252 CLR 530 at 554 [36]; McCloy v New South Wales (2015) 257 CLR 178 at 202-203 [30].

91. In any event, Tasmania's argument that, with respect to the facts of the present case, it is not shown that the freedom is effectively burdened should not be accepted.  The circumstances relating to the plaintiffs show clearly how the freedom is burdened.  Even if the plaintiffs were not on business premises or in a business access area the police officers who arrested and removed them were unable to correctly determine whether they were on those premises or in that area.  As a result of their error the plaintiffs' protests and their communications to others about the forest operations were silenced.

92. The other aspect of the Protesters Act to be considered is its discriminatory effect, namely, that it imposes a burden on the freedom solely in relation to protesters. No decision of this Court holds that a law effecting a discriminatory burden is, for that reason alone, invalid and the plaintiffs did not contend for such an approach. Such an approach would seem to be at odds with the questions posed by Lange and, in particular, the second, which involves an enquiry as to whether the burden can be justified.

93. In Australian Capital Television Pty Ltd v The Commonwealth[44] ("ACTV"), Mason CJ held[45] that some provisions of the statute in question were discriminatory because they were weighted in favour of established political parties and against new and independent candidates.  His Honour did not say that they were invalid simply because they effected a discriminatory burden.  Rather, his Honour held them not to be "justified or legitimate" after considering, and rejecting, arguments about whether the regulatory regime introduced a "level playing field" and whether equality in sharing free broadcasting time was unattainable. 

    [44](1992) 177 CLR 106.

    [45]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 145-146.

94. A law effecting a discriminatory burden on the freedom does not necessarily effect a greater burden on the freedom.  It may effect a discriminatory burden but impose only a slight, or a less than substantial, burden on the freedom.  McCloy provides an example of such a law.  The provisions of the statute there in question included provisions prohibiting the making or accepting of a political donation by a "prohibited donor", where the definition of "prohibited donor" singled out certain groups, such as property developers.  The provisions were not considered to effect a substantial burden on the freedom because their effect was indirect, given that their direct effect was to enhance freedom of political speech generally by levelling the playing field, and there were many other available methods of communicating on matters of politics and government, including influencing politicians to a point of view[46]. 

    [46]McCloy v New South Wales (2015) 257 CLR 178 at 220-221 [93].

95. A discriminatory law does, however, serve to identify the group targeted by a law and informs the assessment of the restrictions imposed by the law upon the ability of those persons to communicate on matters of politics and government.  It is this assessment which must be undertaken in order to answer the question whether the freedom is burdened.  In the present case the answer is clear.  Protesters will be deterred from voicing their protests with respect to forest operations.  The freedom is burdened.

    The purpose of the Protesters Act

96. Once it is concluded that the freedom is burdened by a statute, the true purpose of that statute assumes importance with respect to each of the enquiries which follow, which are directed to whether the burden is justified.  The identification of that purpose is to be arrived at by the ordinary processes of construction[47].

    [47]Unions NSW v New South Wales (2013) 252 CLR 530 at 557 [50].

97. The plaintiffs submit that the purpose and practical operation of s 6 and associated provisions is to "prevent onsite protests that ... relate to 'political, environmental, social, cultural or economic issues', which are the key issues to which electors will have regard when choosing their representatives" and to "prevent, hinder or obstruct, or be about to prevent, hinder or obstruct, business activities at the site where private or governmental entities carry on business".

98. For its part, Tasmania says that the purpose of the Protesters Act is to "prevent people from damaging or threatening to damage real or personal property connected with a business; to ensure that protesters do not impede, hinder or obstruct the carrying out of lawful business activity on business premises or business access areas; and to protect business operators going about their business safely and without disruption. The objects of the Act are connected with the advantage of having a settled and orderly economic environment in which to conduct business."

99. The purpose of the Protesters Act is most clearly discerned from the sections which contain the relevant prohibitions, ss 6 and 7. Those provisions are directed towards the harm that the conduct of particular kinds of protest activities may cause. They are directed to conduct which may cause damage to the property of a business or disrupt its activities. They are directed towards protesters because protesters are seen as the potential source of such harm. It is not to be inferred that the purpose of the Act is to deter protesters more generally, even if that is the effect of some of the measures it employs in seeking to achieve its purpose of prevention of damage to and disruption of forest operations.

100. The plaintiffs' submissions elide the purpose of the Protesters Act with its operation and effect. In a later submission they recognise that it is the Act's operation in respect of onsite environmental protests which will stultify the effectiveness of protests. It is the measures for which the Act provides, and in particular the powers given to police, which affect the ability of persons to protest. But this is not to deny that those measures are directed to the protections it seeks to achieve.

101. Although protesters are targeted and discriminated against and special measures are directed towards them, it may be seen that the legislation was enacted against a background where protesters, or at least some of them, were perceived to be those persons, or groups, who would cause damage or disrupt economic activities during protests of particular kinds. It is important, however, to be clear about the purpose of the Protesters Act. It is not correctly stated simply as the protection of the interests of business just as it is not the prevention of protests. It is the protection of businesses and their operations, here forest operations, from damage and disruption from protesters who are engaged in particular kinds of protests. This is the mischief to which the statute is directed[48].

     [48]McCloy v New South Wales (2015) 257 CLR 178 at 232 [132] per Gageler J.

     Compatibility

102. In McCloy[49] it was said that the process for the justification of the burden the statute places on the freedom commences with the requirement, stated in Lange[50], that the purpose of the provisions in question be "compatible with the maintenance of the constitutionally prescribed system of representative and responsible government". Clearly enough, the purpose of the Protesters Act, understood in the way described above, could not be said to be incompatible with the freedom.

     [49]McCloy v New South Wales (2015) 257 CLR 178 at 212 [66].

     [50]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567.

103. In Coleman v Power[51] it was said that the adjectival phrase referred to above does not merely qualify the "legitimate end".  It qualifies the compound conception of the fulfilment of such an end.  That is to say, the manner of achieving the statute's purpose, as well as the purpose itself, must be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

     [51](2004) 220 CLR 1 at 50 [92]; [2004] HCA 39.

104. In its submissions in this matter the Commonwealth, intervening, drew attention to the summary version of this requirement of the Lange test which appears at the outset of the joint reasons in McCloy[52].  The Commonwealth said that it may be understood to suggest that a conclusion as to whether the means adopted to achieve the statutory object are "reasonably appropriate and adapted" or proportionate to a legitimate end is to be reached at a point before proportionality testing is undertaken.  Clearly the statute's purpose must be assessed for compatibility with the constitutionally prescribed system of government at this stage, but in practical terms the means adopted could not be.  The point is well made.  The commencing words of Questions 2 and 3 stated in McCloy should read:

     2.If "yes" to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

     3.If "yes" to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

     [52]McCloy v New South Wales (2015) 257 CLR 178 at 194 [2].

     A slight burden?

105. The submission that Tasmania puts is that where the Protesters Act does effect a burden, it will only be slight. In essence, it argues that in most cases protesters will not be able to lawfully be present in areas where forest operations are being carried out. It does not say how these areas are to be identified.

106. It will be recalled that the plaintiffs claimed that there is a need for persons to be able to make "onsite protests" in those parts of the natural environment which are considered to be under threat of damage or destruction.  The rationale for this view is that it is necessary to be present in order that images of forest operations together with protests concerning them can be communicated to the public at large.  For a reason not explained, images taken by equipment such as drones flown overhead were not seen to be practicable, at least at present.

107. The plaintiffs did not distinguish between protesters whose actions may directly affect operations and those simply present at a distance from those operations.  In either case Tasmania submits that persons have no right to be "onsite".  It says that there can be no right to carry out protests on the site of a business activity carried out by a business occupier in lawful possession of premises who does not consent to the presence of protesters.  In such a situation a protester is a trespasser and the protester's activity on the property may amount to a nuisance, and in neither case does the freedom alter this state of affairs.

108. Tasmania calls in aid the observations of McHugh J in Levy v Victoria[53].  In that case, a regulation prohibited persons other than holders of game licences from entering upon a permitted hunting area between certain hours and on specified dates.  His Honour observed[54] that the constitutional implication does not create rights and questioned whether, in the absence of the regulations, the protesters had the right to be present in the permitted hunting area.  Unless the common law or a statute gave them a right to enter the area, it might be said that the lack of that right, not the regulations, denied them the opportunity to protest.  The matter was taken no further for, as his Honour went on to explain, the argument for the parties assumed that, in the absence of the regulations, the plaintiff and others were entitled to enter the area.

     [53](1997) 189 CLR 579; [1997] HCA 31.

     [54]Levy v Victoria (1997) 189 CLR 579 at 625-626.

109. The question to which McHugh J adverted in Levy does not arise in this case. As has been seen, the Protesters Act may operate to stifle political communication on the mistaken, albeit reasonable, belief of a police officer as to the effect of protest activity whether or not it involves the presence of protesters on land where they have no right to be and where that question may never be determined by a court. As will be explained later in these reasons, it is in consequence of this overreach of means over ends that the Protesters Act operates more widely than its purpose requires. In this regard, it may be contrasted with the FMA. It may be accepted to be logical to approach the burden which a statute has on the freedom by reference to what protesters could do were it not for the statute. But in the context of forestry land, as opposed to other business premises, this does not involve questions of right of entry or trespass, unless the powers of the FMA are invoked. The relevant enquiry involves a comparison between the effect of the FMA and the effect of the Protesters Act upon the ability of people to access forest areas and undertake protest activities on them.

110. As earlier explained, the premise of the FMA is that persons are able to access forest areas unless the Forest Manager exercises its powers to exclude them. The Forest Manager may only exercise those powers in order to perform its functions effectively or efficiently, or in the interests of safety. It is not necessary to determine the nature of the right of public access which is recognised by the FMA, for example, whether it is some kind of conditional licence. It is sufficient to appreciate that the scheme of the FMA is that persons will not be impeded in their access to forestry land or in their use of such land for any purpose so long as their presence or the activity which they undertake is not incompatible with the management of the forestry land, which would include forest operations conducted on that land. It is difficult to comprehend that every form of protest will necessarily be incompatible with this purpose.

111. The validity of the FMA is not challenged. Under the FMA, persons may lawfully be excluded from certain areas of land or from roads from time to time and this will be so even if a person wishes to be in the area in order to make a protest about what is taking place there. The extent of the burden effected by the Protesters Act must be determined having regard to the restrictions already imposed on the freedom by the FMA.

112. When the powers under the FMA are exercised for the purposes of carrying out the Forest Manager's functions, the Forest Manager may be expected to designate an area at least in general terms. The Forest Manager may do so via the use of signs and physical barriers. This may be contrasted with the ambiguous definitions of "business premises" and "business access area", which, it may be inferred, were intended to operate more widely.

113. There are indications in the circumstances surrounding the arrests of the plaintiffs that steps of the kind mentioned had been taken under the FMA. There were signs concerning road closures and chains were placed across the roads. It may be assumed that the employee of Forestry Tasmania who requested Ms Hoyt to remain where she was when equipment was being moved was a person authorised under the FMA. However, neither plaintiff was requested to leave the area in which they were present in the vicinity of forest operations by an officer authorised under the FMA. As the charges later brought against them confirm, the police officers who directed them to leave, and arrested and removed them when they did not, were purporting to exercise powers under the Protesters Act.

114. A person authorised under the FMA may direct a person not to enter or remain on land[55]. That person therefore exercises a power similar to that given by the Protesters Act to police officers. But the direction given under the FMA is only for statutory purposes related to actual operations and safety. The authorised person can be expected to have this clearly in mind just as they would have in mind the object of s 13 of the FMA. The area of exclusion would be limited to no more than is necessary for the operations and to ensure continued public access.

     [55]Forest Management Act 2013 (Tas), s 22(4).

115. The area to which the Protesters Act applies and in which a protester may not be present will in many cases not be capable of identification, but the indications given by that Act, in particular by its definitions, are that it is intended to apply more widely than land which may be the subject of powers exercised under the FMA. There is nothing in the Protesters Act to suggest that the areas to which it is intended to apply are coextensive with those designated under the FMA as unavailable for public access and use.

116. It follows that there will be areas of forestry land which will not be the subject of the exercise of the powers of exclusion under the FMA but to which the Protesters Act will apply. It may reasonably be inferred that persons would be able to access these areas in order to effectively voice their protests were it not for the Protesters Act.

117. It can hardly be suggested that the provisions of the Protesters Act referred to above affect the freedom only slightly. This is so even though protests about forest operations may be communicated in other ways. Further, other methods of communication are less likely to be as effective as the communication of images of protesters pointing to what they claim to be damage to the natural environment.

118. It has been explained[56] that the exercise of powers given under the Protesters Act will likely result in persons wrongly being excluded from areas of a forest, their protests being brought to an end, and them being deterred from further protests in the foreseeable future. In its practical operation the Protesters Act indirectly burdens the freedom but it does so to a significant extent. Generally speaking, the sufficiency of the justification required for such a burden should be thought to require some correspondence with the extent of that burden[57].

     [56]At [77].

     [57]Tajjour v New South Wales (2014) 254 CLR 508 at 580 [151] per Gageler J.

     A compelling justification?

119. The plaintiffs submit that because the Protesters Act operates by reference to political and environmental protests, it is directed to the content of these political communications and a "compelling justification" is therefore required. The submission implies that measures which burden the freedom in this way will require a higher level of justification.

120. In ACTV, Mason CJ expressed[58] the view that laws which "target ideas or information" may require "a compelling justification".  His Honour was speaking of a law specifically directed at, and which prohibited, the broadcasting of matters relating to public affairs and political discourse.  It effected a direct burden on the freedom.  His Honour did not use the words "content-based" with respect to the laws in question.  In US jurisprudence concerning the First Amendment that term may refer to a law targeting speech based on its communicative content[59].  Under the doctrine of strict scrutiny such a law is regarded as "presumptively unconstitutional"[60] because it poses "the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information"[61].

     [58]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 143.

     [59]Reedv Town of Gilbert, Arizona 192 L Ed 2d 236 at 245 (2015).

     [60]Reedv Town of Gilbert, Arizona 192 L Ed 2d 236 at 245 (2015).

     [61]Turner Broadcasting System Inc v Federal Communications Commission 512 US 622 at 641 (1994).

121. In the context of the implied freedom and the test in Lange, what Mason CJ said in ACTV might be thought to require more by way of justification only at the balancing stage of proportionality analysis rather than justification operating presumptively at the outset of the analysis under the second limb.  The only basis given in Lange for the invalidation of a law at the threshold, which is to say before testing for proportionality, is when a law does not have a legitimate purpose, in other words, where the purpose of the law is not compatible with the maintenance of the scheme of representative and responsible government for which the Constitution provides[62].

     [62]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567-568.

551. An offence under s 6(4) of the Protesters Act occurs if a person contravenes a requirement of a direction by a police officer issued under s 11(1) or s 11(2). But the terms of ss 11(1) and 11(2) are such that any direction under s 11(1) or s 11(2) will be invalid if the person is not, respectively, on business premises or a business access area. The conditions imposed on a direction under either sub-section, and the consequences which flow from any non-compliance with those conditions, are dependent upon the person having been on the business premises or business access area when directed.

552. There are two arguable exceptions where the Protesters Act operates upon a person without the person being on business premises or a business access area. The first is that offences under s 7 can be committed outside business premises or a business access area. The core element of the offences in ss 7(1) and 7(2) is that the protester does an act that causes damage to business premises or a business-related object knowing, or where the protester could reasonably be expected to know, that the act is likely to cause damage to the business premises or business-related object. It may be doubted, however, whether this is really an exception. Sections 7(1) and 7(2) are only enlivened by acts of a protester. And, as explained above, the definition of protester includes an element which requires the person, in the present active tense, to be on business premises or a business access area in relation to business premises. Further, and in relation also to s 7(3), which deals with threats of damage in relation to business premises and applies to persons generally, s 7 is not engaged on the facts of the Special Case and no substantial argument was addressed to it, as Kiefel CJ, Bell and Keane JJ observe[562]. Indeed, when s 7(1) was addressed in oral argument, counsel for the plaintiffs in reply properly conceded that there were "other laws that already make that illegal and that would remain the position".

     [562]At [39].

553. The second possible exception where a duty is imposed on a person not being on business premises or a business access area is s 6(3), which provides that:

     "A protester must not do an act that prevents, hinders, or obstructs access, by a business occupier in relation to the premises, to an entrance to, or to an exit from –

     (a)      business premises; or

     (b)a business access area in relation to business premises –

     if the protester knows, or ought reasonably to be expected to know, that the act is likely to prevent, hinder or obstruct such access." 

554. Three points should be made about s 6(3).  First, to reiterate the point above, the sub-section is only engaged by acts of a protester, the definition of which requires the person to be on business premises or a business access area in relation to business premises.  This may mean that there is no exception for this sub-section at all.  Secondly, although this sub-section arguably imposes a duty upon a person who might be outside business premises or a business access area, it does not create an offence.  As the plaintiffs conceded, the enforcement of s 6(3) requires that the person be on business premises or a business access area.  For instance, a direction by a police officer under s 11 can only be given to persons who are on the business premises or on a business access area.  The consequences which follow from a direction under s 11 are premised upon the person first having been on business premises or a business access area.  Further, the criteria for an arrest without warrant under s 13 also include a requirement that the person is on business premises or on a business access area.  Thirdly, it is at least arguable that an impediment of the type described in s 6(3) would also be unlawful even if it does not involve a trespass.  The State of Tasmania submitted that the impediment would need to be substantial.  In Mogul Steamship Co v McGregor, Gow, & Co[563], Bowen LJ, in a passage in the Court of Appeal which was not doubted by the House of Lords, said that a tort would be committed by the impeding or threatening of workers.  This statement was cited with approval by Nicholas J in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor[564].  In OBG Ltd v Allan[565], Lord Hoffmann described the tort as an instance of causing loss by unlawful means.

     [563](1889) 23 QBD 598 at 614, citing Garret v Taylor (1620) Cro Jac 567 [79 ER 485].

     [564](1936) 37 SR (NSW) 322 at 341.

     [565][2008] AC 1 at 19 [6].

555. There is only one circumstance in which conduct prohibited by the Protesters Act, in a forestry context, might not be independently unlawful. Section 10 permits a police officer to require any person (not a "protester" as defined) reasonably believed to be about to contravene s 6(3) to state the person's name, date of birth and address, and to give the officer any evidence of the person's identity that the person has in his or her possession. That section will therefore apply to a person who is reasonably believed to be, or about to become, a protester (and therefore on business premises or in a business access area) even if the person is not actually, or does not become, a protester. It is an offence to fail, or refuse, to comply with this requirement of the police officer: s 10(2). Section 10 is broader than the police powers under s 55A of the Police Offences Act 1935 (Tas). But s 10 was not the subject of any submissions and, in oral argument, the plaintiffs did not include s 10 in their list of challenged provisions.

     E.  Was the freedom burdened?

556. The preceding section of these reasons has shown that the Protesters Act, in its relevant operation in the circumstances of this case, applies only to independently unlawful activity. Two essential issues arise. The first is whether the implied freedom of political communication in the Constitution applies to constrain legislative power over political communication which is independently unlawful. Put another way, can legislation burden freedom of political communication where the conduct it prohibits is independently unlawful? The second issue is whether the State of Tasmania conceded that it could.

     Legislation in relation to unlawful conduct cannot burden the implied freedom

557. The constitutional freedom of political communication that was unanimously confirmed by this Court in Lange v Australian Broadcasting Corporation[566] was held to be a constraint upon the exercise of State and Commonwealth legislative power.  However, the constraint only applies to State or Commonwealth legislative power if there is a "burden on the freedom".  This phrase is not entirely apt but it signifies that the constitutional implication only constrains legislative power where that power is exercised to impede legal freedom to communicate about government and political matters.  If the conduct about which legislation is concerned is independently unlawful, so that there was no legal freedom to communicate about government or political matters, then there can be no "burden" on the freedom.  The implied constraint upon legislative power cannot operate.

     [566](1997) 189 CLR 520; [1997] HCA 25.

558. This conclusion is unassailable.  In Australian Communist Party v The Commonwealth[567], Dixon J said that the rule of law forms an assumption of the Constitution. Whatever is meant by the "rule of law", and however the assumption might operate in relation to constitutional implications, it would be anathema if, in a society founded upon the rule of law, this Court could be required to assess the extent to which the Constitution implies that persons be free from legislative constraints upon unlawful conduct. The Constitution does not create spheres of immunity from unlawful activity. Put another way, if there is no freedom then there cannot be any burden upon that freedom.

     [567](1951) 83 CLR 1 at 193; cf Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 381 [89].

559. This point was made by McHugh J in Levy v Victoria[568].  That case was concerned with the validity of regulations that prohibited persons from entering a permitted hunting area without a licence at a certain time.  The plaintiff, who was charged with an offence under the regulations, claimed that the regulations were invalid because they prohibited him from protesting Victorian hunting laws.  Justice McHugh explained, as has now been confirmed on many occasions[569], that the implied freedom is not an individual right but is "a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution"[570] (emphasis in original).  As McHugh J explained, since the implication does not create any individual right this means that before the implied freedom can operate to restrain legislative action it must inhibit an existing right or privilege[571].  In Levy, that meant that "unless the common law or Victorian statute law gave [protesters] a right to enter that area, it was the lack of that right, and not the [r]egulations, that destroyed their opportunity to make their political protest"[572].  In Levy, it was not necessary for McHugh J to explore this point any further because the arguments of the parties assumed that, in the absence of the regulations, the plaintiff was entitled to enter the area. 

     [568](1997) 189 CLR 579 at 622, 625-626; [1997] HCA 31.

     [569]APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 451 [381]; [2005] HCA 44; Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at 89 [220]; Unions NSW v New South Wales (2013) 252 CLR 530 at 551 [30], 554 [36], 574 [119]; [2013] HCA 58; Tajjour v New South Wales (2014) 254 CLR 508 at 569 [104], 593-594 [198]; McCloy v New South Wales (2015) 257 CLR 178 at 202-203 [30]; [2015] HCA 34.

     [570]Levy v Victoria (1997) 189 CLR 579 at 622.

     [571]Levy v Victoria (1997) 189 CLR 579 at 622.

     [572]Levy v Victoria (1997) 189 CLR 579 at 626.

560. The reasoning of McHugh J was expressly adopted by five Justices of this Court in Mulholland v Australian Electoral Commission[573].  That case concerned a challenge to two rules in the Commonwealth Electoral Act 1918 (Cth). One rule, the 500 rule, permitted registration or continued registration of political parties without a parliamentary representative only if they had 500 members. A second rule, the no overlap rule, prohibited two or more parties from counting the same person as a member. Only registered political parties could be included on the ballot paper. Justice McHugh reiterated his views from Levy and held that there was no burden on the implied constitutional freedom because the political party, of which the appellant was the registered officer, did not have any right to be put on the ballot paper independently of the Commonwealth Electoral Act[574].Justices Gummow and Hayne[575], in a joint judgment, and Heydon J in a separate judgment[576], also quoted the passages from McHugh J in Levy described above, and concluded that no right or freedom, independent of the Commonwealth Electoral Act, had been identified by the appellant[577].  The point that the appellant had no right to be included on the ballot paper was also made succinctly by Callinan J, in terms which apply to this case[578]:

     "In argument, McHugh J drew an analogy:  protestors cannot complain about an interference with, or the prevention of their doing what they have no right to do anyway, for example, to communicate a protest on land on which their presence is a trespass.  As the appellant has no relevant right to the imposition of an obligation upon another, to communicate a particular matter, he has no right which is capable of being burdened."  (emphasis in original, footnote omitted)

     [573](2004) 220 CLR 181; [2004] HCA 41.

     [574]Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 223-224 [107]-[108].

     [575]Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 246 [184].

     [576]Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 303-304 [354].

     [577]Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 247 [186]-[187].

     [578]Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 298 [337].

561. There are three clarifications to the principle that the implied freedom of political communication does not apply to unlawful conduct. The first clarification applies where the conduct is unlawful due to a law which is, itself, invalid because it contravenes the implied freedom. No party or intervener in this case suggested that any provision of the Forest Management Act was contrary to the implied freedom. It is very difficult to see how they could have done so in circumstances in which the common law recognises no public ius spatiandi vel manendi[579]. In other words, the purported burden upon freedom of political communication imposed by the Forest Management Act must be assessed with regard to the fragility of the liberty of the public to enter forestry land. That liberty could be withdrawn at any time by the Crown or the relevant person in possession of the land. That would be so whether the liberty arose from custom or, more controversially, from some fictional implied licence. A further reason why no party or intervener raised any issue concerning the validity of the provisions of the Forest Management Act may have been the difficulty in seeing how the implied freedom should restrain legislation which permitted a protester to exercise a freedom to protest in the vast majority of 800,000 hectares but not in the vicinity of works involving significant safety concerns and the potential use of heavy machinery.

     [579]Randwick Corporation v Rutledge (1959) 102 CLR 54 at 74; [1959] HCA 63.

562. There is a second clarification to the principle that the implied freedom of political communication does not apply to unlawful conduct. The second clarification arises where the subsequent legislation which is challenged operates as part of a single scheme, together with the initial legislation which made the conduct unlawful. For a scheme to exist it is not enough that two statutes, such as the Forest Management Act and the Protesters Act, operate together. They must also have "a wider common purpose"[580] as Acts which need "to be read together as a combined statement of the will of the legislature"[581].  In those circumstances the burden upon a general freedom to engage in political communication might fall to be assessed by reference to the joint effect of the two statutes[582]. If so, it would be no answer to say that the subsequent legislation imposes only a further incremental burden upon conduct that is already unlawful. No party, and no intervener, suggested that the Forest Management Act and the Protesters Act were to be considered as part of a single scheme with a wider common purpose in this sense.

     [580]Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378 at 414 [97]; [2012] HCA 56.

     [581]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 354 [10], quoting Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 463; [1995] HCA 44.

     [582]Cf South Australia v The Commonwealth (1942) 65 CLR 373 at 411; [1942] HCA 14.

563. The third clarification to the principle that the implied freedom of political communication does not apply to unlawful conduct is the recognition in Lange that the common law, including common law rules that make acts unlawful, must develop consistently with the Constitution. This process of development of the common law, consistently with the Constitution, must occur by the common law analogical method. The need to develop the law of defamation in Lange was said to arise because a "different balance" was demanded by new circumstances including the "expansion of the franchise, the increase in literacy, the growth of modern political structures operating at both federal and State levels and the modern development in mass communications, especially the electronic media"[583].  In contrast, there is plainly no need, for example, to develop the common law in relation to assault to create a liberty by which persons can assault others for the purpose of political communication.  Nor is there a need, and no party contended, for the law concerning property rights to develop so that an individual has a liberty to trespass on the property of another for the purposes of political communication.   

     [583]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 565.

     No concession of any burden was made in relation to forest operations

564. In its written submissions, the State of Tasmania accepted that the Protesters Act "may impose a burden in some circumstances" (emphasis added). In oral submissions, the State of Tasmania explained the nature of this concession, saying that "there may be a burden imposed by the Act but it does not arise here". The State of Tasmania had earlier said that there would be no burden if the Act were only directed at permanent timber production zone land rather than including, for example, "a protest outside a shop". Similarly, the State of Victoria, whose submissions were the most focused upon the question of burden, and adopted by the State of South Australia, submitted that the "burden on the freedom" imposed by the Protesters Act was "slight or nil".

565. The "concession" by the State of Tasmania that there may be a burden in "some circumstances", although not in this case, was no real concession at all. The validity of the Protesters Act falls to be assessed against the existing state of facts[584]. Those facts, in this case, concern only the operation of the Protesters Act in relation to forestry. If there is no existing freedom of political communication in that context then the Protesters Act cannot be held invalid by reference to some hypothetical circumstance where a freedom might exist. Put another way, whether there is a burden upon an existing freedom imposed by the Protesters Act must be assessed in the context in which facts are before the Court (ie forestry) before turning to questions that are designed to test whether the freedom has been impermissibly infringed.

     [584]Lambert v Weichelt (1954) 28 ALJ 282 at 283; Duncan v New South Wales (2015) 255 CLR 388 at 410 [52]; [2015] HCA 13; Knight v Victoria (2017) 91 ALJR 824; [2017] HCA 29.

566. For these reasons, the State of Tasmania did not concede that the Protesters Act imposed any relevant burden in the circumstances of this case. But even if such a concession of law had been made, I would not accept it without first construing the meaning of the Protesters Act. My construction of that Act leads to the conclusion that, as the States of Tasmania, Victoria, and South Australia submitted, no burden is imposed by the Protesters Act.

     F.  Conclusion

567. The necessary first step before assessing constitutional validity is to determine the meaning of legislation. On the proper construction of the Protesters Act, in relation to forest operations and areas of access to those operations, the relevant provisions apply only to conduct which is already independently unlawful under the unchallenged provisions of the Forest Management Act. Any other construction would render the meaning of the Protesters Act unintelligible to those to whom the Act is directed. Within an intelligible narrow construction, which minimises the intrusion into freedom of speech, the Protesters Act still imposes penalties and other consequences on protesters for their unlawful conduct which go beyond the burdens imposed by the Forest Management Act. Those additional consequences are only borne by protesters. But the essential point is that the additional consequences are imposed on independently unlawful conduct. However high the value that one puts upon a freedom of political communication, the constitutional area of "immunity from legal control"[585] does not extend to persons whose conduct is independently unlawful.   

     [585]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560, quoting Cunliffe v The Commonwealth (1994) 182 CLR 272 at 327; [1994] HCA 44.

568. The substantive question remaining in the Special Case, concerning the alleged invalidity of provisions of the Protesters Act, should be answered, "no". The plaintiffs should pay the defendant's costs.