BY JOHN ELDRIDGE AND TIM MATTHEWS

The common law has historically been hostile to the importance of public protest. Indeed, A V Dicey, in his seminal An Introduction to the Study of the Law of the Constitution, was categorical in his denial ‘of such a thing as any specific right of public meeting’. By contrast, the High Court’s recent decision in Brown v Tasmania [2017] HCA 43 places welcome emphasis upon the centrality of the right to public assembly as an incident of the implied freedom of political communication in the Commonwealth Constitution. In this brief post, we explain the decision in Brown and place it in its broader context.  We will show that despite the positive aspects of the Court’s decision, the law’s continued lack of sensitivity to the significance of place and space in the context of protest significantly undermines the practical utility of protest as a mechanism for political communication.

Brown v Tasmania

 The plaintiffs were charged with offences under the Workplaces (Protection from Protesters) Act 2014 (Tas) (‘Protesters Act’). At the relevant time, they were each protesting against the logging of the Lapoinya Forest, in North Western Tasmania. The first plaintiff, former Senator for Tasmania and leader of the Australian Greens, Dr Bob Brown, was arrested while filming a campaign video in opposition to the logging, upon failing to leave an area of the forest after having been directed to do so by a police officer. The second plaintiff, Ms Jessica Hoyt, was arrested after entering an area of the forest with others who wished to protest against logging, after being removed from that area on a previous occasion.

The Tasmanian Parliament enacted the Protesters Act in response to a perception that protest activities caused unique and problematic disruptions to business activities in the state. Indeed, the Act applies only to the activities of “protesters”, defined with specific reference to their activities in furtherance of a political, environmental, social, cultural or economic issue. Section 6 of the Act places three distinct prohibitions on protesters. In broad terms, these prohibitions prevent protesters from engaging in conduct which “prevents, hinders or obstructs” the carrying out of a business activity by a business occupier, or access to an entrance of a business access area. Each subsection requires that such conduct be done in circumstances where the protester knows, or ought reasonably to be expected to know, that the conduct is likely to have that effect. Lexical difficulties notwithstanding, “business premises” and “business access area” are defined to include “an area of land on which forest operations are being carried out”.

Contravening any one of these prohibitions will not constitute an offence per se. The relevant offence depends on a failure to obey a direction given by a police officer under s 11 of the Protesters Act that the protester comply with the prohibitions. Such a direction may only be given where the officer “reasonably believes that the person has committed, is committing, or is about to commit” a contravention of the relevant prohibitions. Further, a person will commit an offence where they enter a business access area within 4 days after having been directed by a police officer to leave. These offences are punishable by a fine of up to $10,000. The plaintiffs challenged the validity of each of these provisions of the Protesters Act on the basis that they impermissibly burdened the implied freedom of political communication contrary to the Commonwealth Constitution.

The High Court, by majority, found the impugned provisions to be invalid. The majority concluded that the provisions were not reasonably appropriate and adapted to serve a legitimate purpose, though the members of the Court arrived at that conclusion in different ways.

Chief Justice Kiefel and Bell and Keane JJ, in a joint judgment, found that some provisions (ss 8(1)(b), 11(7) and (8)) were not referable to the purpose of the Protesters Act, and that the remaining impugned provisions were not “reasonably necessary”, in that they operate more widely than the purpose of the Act requires. Central to this conclusion were the significant uncertainties in the scope of the Protesters Act. The authors of the joint judgment conclude that the difficulties associated with identifying the geographic area to which the Act applies render it likely that some lawful protests will be halted due to errors by police officers in giving directions under s 11, or through the general deterrent effect of the Act (at [77]). Their Honours concluded that the impugned provisions are likely to have a significant deterrent effect extending beyond the intended purpose of the Protesters Act, and thereby impermissibly burden the implied freedom.

Justice Gageler did not consider that uncertainties in the scope of the legislation affected its validity in this way. Rather, his Honour held at [224] that the main overreach of the provisions is the breadth and severity of the consequences which flow not from contravention by a protestor of the prohibitions in s 6, but the exercise of the police discretions under, inter alia, s 11. Even where that belief is mistaken (though reasonably held), Gageler J pointed out at [225], the removal of the protesters remains lawful. Justice Nettle, at [292]-[295], arrived at a similar conclusion.

In dissent, Gordon J considered that all impugned provisions of the Protesters Act, with the exception of s 8(1)(b), were directed to serve a legitimate end, and did so by means which were reasonably appropriate and adapted. This conclusion was based principally upon her Honour’s view that the impugned provisions concerned conduct which was tortious (as amounting to a trespass or nuisance) or otherwise unlawful (such as refusing to follow the lawful direction of a police officer). The exception to her Honour’s conclusion, s 8(1)(b), provides for a blanket four-day exclusion from a business access area irrespective of whether the person might engage in prohibited conduct in that area. Justice Gordon considered that this provision alone impermissibly burdened the implied freedom of political communication.

Justice Edelman, also in dissent, considered that each of the provisions was valid. As a matter of construction, his Honour concluded at [539]-[549] that the provisions of the Protesters Act criminalised conduct which was already criminal by reason of certain provisions of the Forest Management Act 2013 (Tas), which the plaintiffs did not seek to suggest were invalid.

Why Is the Right to Protest Important?

Protest plays an essential role in a healthy democracy.  In addition to providing an effective mechanism for the expression and dissemination of political opinion, it facilitates the peaceful release of public anger and frustration in times of crisis. In a period marked by increasing economic inequality, public protest also has a leveling effect: though individually it is often only the wealthy who can avail themselves of effective platforms for the mass promulgation of their views, public protest can harness the expressive power of assembly to attract the attention of the media and the broader public. Though the emergence of social media has opened up new avenues for ordinary citizens to be heard on public matters, it would be wrong to think that this has diminished the importance of traditional public assembly.  Movements such as Occupy have instead demonstrated the use of social media to magnify the impact of traditional assemblies.

Despite the many important democratic functions fulfilled by protest, there has often been little attention paid to the need for robust protections of the freedom to assemble.  Indeed, the common law has historically had little regard for the importance of protest.  Many authoritative statements from the nineteenth and twentieth centuries vociferously deny the existence of a right of protest or public assembly at common law. Lord Hewart, in the infamous case of Duncan v Jones [1936] 1 KB 218, declared that ‘English law does not recognize any special right of public meeting for political or other purposes’ and that ‘[t]he right of assembly … is nothing more than a view taken by the Court of the individual liberty of the subject’.  Though recent decades have the common law gradually move towards recognition of the importance of protections for public assembly (see for example the contrast between Lord Hewart’s attitude and that evinced in DPP v Jones [1999] 2 AC 240, in which several members of the House of Lords evinced a willingness to accommodate peaceful protest within the law relating to trespassory assembly), there nonetheless remain many ways in which the law is unresponsive to the issues raised by protest and assembly.

If protest is to be adequately protected, it is essential that the law is sensitive to the significance of place and space, which are at the core of protest’s effectiveness.  As Timothy Zick has noted in Speech Out of Doors, it is quite wrong to view physical space as an inert container within which protests and assemblies simply happen to occur.  Instead, the particular physical space in which a protest occurs is inextricably tied up with that protest’s communicative function.  There are, for instance, powerful symbolic meanings associated with particular spaces – such as public squares and war memorials – which members of the public may wish to draw upon in crafting their message.  The upshot of these considerations is that protest cannot be adequately protected merely by ensuring that spaces exist within which members of the public can assemble.  Instead, it is necessary to ask whether the law strikes the right balance in permitting or proscribing protest in the particular places or spaces which protestors seek to utilize.

The importance of protest has been recognized in several formal rights instruments, and in such jurisdictions the protection of protest has been considerably amplified.  In the United Kingdom, for instance, protest is protected through the Human Rights Act 1998, which gives domestic effect to the rights recognized in the European Convention on Human Rights.  Article 11 of the Convention, which protects the ‘freedom of peaceful assembly’, has been instrumental in effecting a transformation in the law relating to protest in the United Kingdom.  As David Feldman has noted in Civil Liberties and Human Rights in England and Wales, it is now necessary to justify curtailments of the right to protest by reference to clear principles and criteria.  In the United States, the right to protest has traditionally been seen as part of the body of free speech protections conferred by the first amendment.  Though the United States Supreme Court has vacillated on the question of how far this protection extends, it has nonetheless been firm in recognizing the significance of protest as a mode of political communication.

The Importance of Place and Space to an Effective Right to Protest

The significance of place and space was apparent in Brown v Tasmania.  Indeed, the majority accepted a submission from the plaintiffs that protests conducted at the specific sites of logging activity would more successfully attract the attention of the public and of politicians (Kiefel CJ, Bell and Keane JJ at [117]; Gageler J at [191]; Nettle J at [240]). There was evidence before the Court that since 2006, 37 protests had taken place in Tasmania in areas that were subsequently subject to legislative or regulatory protection. To that end, it was accepted that access to certain parts of the Lapoinya Forest was central to the plaintiffs’ political communication. Yet despite this recognition, the protections afforded by the Court to those seeking to make symbolic use of particular public spaces is, in truth, fragile.

A majority of the Court considered that, given the implied freedom of political communication does not create positive rights, but merely operates as a limitation upon legislative power, it can confer no positive right of access to premises where that right is otherwise legally circumscribed.

As McHugh J posited in Levy v Victoria (1997) 189 CLR 579, the ability of protesters to make symbolic use of particular public spaces is therefore subject to the limitations imposed by private law causes of action such as trespass and nuisance. It is significant that, in Brown v Tasmania, several key limitations of this kind were not doubted by any of the members of the Court, and indeed not contested by the parties. These included that, where an action in trespass or nuisance is available, it is exercisable to curtail a right of expressive assembly – even where such an action is brought by the Crown. It was common ground between the parties that there was no need for the common law in relation to such private law actions to be developed so as to remedy an incompatibility with the implied freedom.

It is this failure to explore the interaction between the right of public assembly and private law rights and remedies which is the most concerning aspect of Brown v Tasmania. Though the Court’s silence on this point is largely a consequence of the way in which the parties framed their contest and the nature of the questions which arose for determination, the right to protest will remain a fragile one indeed if it is to be hemmed in by the unconstrained operation of private law causes of action.  This concern is ever more significant given, as David Mead has noted in The New Law of Peaceful Protest, the ever-growing tendency towards the privatisation of quasi-public spaces at which protesters may wish to congregate. The ‘town squares’ which would previously have been the site of significant expressive activity are frequently no longer in public hands, having been privatised and developed for commercial purposes. If the Court is to ensure that protesters are able to harness the expressive power of particularly important or symbolic places and spaces, it must follow the example set by Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and grapple with the ways in which private law causes of action may need to be moulded to meet the demands of the implied freedom.

We might be particularly concerned when those private law causes of action are exercised by public authorities. As Eric Barendt has argued in his leading work on free speech, a distinction may be drawn in principle between the property rights of public authorities and private citizens: ‘Government … enjoys property rights on behalf of the community; they are held to meet public interests, among which is the interest in free speech and protest.’ This distinction has influenced the approach to the right to protest in other jurisdictions. For instance, in Tabernacle v Secretary of State for Defence [2009] EWCA Civ 23, while not doubting the Secretary of State’s interest in land proximate to a nuclear weapons base, the Court of Appeal of England and Wales held that the Secretary of State’s capacity to exercise the power to exclude the members of the Aldermaston Women’s Peace Camp was circumscribed by reference to the protesters’ freedom of expression.

Indeed, in balancing the interests of property owners with those of protesters, the Court may well wish to look to the examples which can be found in some of the jurisdictions in which protest is protected in formal rights instruments. The approaches taken in these jurisdictions may be especially instructive in respect of the difficulties inherent in balancing the interests of private property owners with those of protestors.  In decisions such as Pruneyard Shopping Center v Robins 447 U.S. 74 (1980), for example (a matter which turned largely on the protections in the Constitution of the State of California), the courts developed a multifactorial analysis which examines, among other things, the ordinary use of the relevant property, the extent to which the public is customarily entitled to access it, and the degree to which the proposed activity would be consistent with the usual activities carried out on the property.  Though the adoption of such an approach undoubtedly throws up a number of difficult questions – many would be concerned about an attenuation of property rights by reference to such flexible criteria – it serves as at least one example of the ways in which courts can seek to balance the relevant competing interests.

Conclusion

Though the decision in Brown v Tasmania should in some respects be welcomed, the real task – that of grappling with the intersection of rights of public assembly and private law rights – remains to be undertaken.  It is only by taking up this task that the Court can ensure that protest is robustly and adequately protected.

 

John Eldridge is a Lecturer at the University of Sydney Law School. Tim Matthews is a sessional Lecturer at the University of Sydney Law School and a Teaching Fellow at the University of New South Wales Faculty of Law.

Suggested citation:  John Eldridge and Tim Matthews ‘The Right to Protest after Brown v Tasmania‘ on AUSPUBLAW  (2 November 2017) <https://auspublaw.org/2017/11/the-right-to-protest-after-brown-v-tasmania/>