Protesting laws in activists' sights after Bob Brown wins landmark High Court case

Protesting laws in activists' sights after Bob Brown wins landmark High Court case


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In a landmark decision, the court found the laws breached the constitution's implied freedom of political communication.

Bob Brown is no stranger to a pair of handcuffs. He saw the inside of a jail cell for blockading the Franklin River dam project in the 1980s - his political career began the day of his release, eventually leading the Australian Greens to become a major force in Canberra.

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Dr Brown was arrested last summer for failing to comply with a police move-on order while filming an anti-logging video in the Lapoinya state forest. The charges, laid under Tasmania's revamped anti-protesting regime, were eventually dropped - but Dr Brown didn't drop his anger.

His challenged the laws in the High Court and on Wednesday emerged victorious, with justices ruling 6-1 that parts of Premier Will Hodgman's anti-protesting crackdown breached the implied freedom of political communication protected by the constitution.

The court found the laws were not appropriate or proportionate for the legitimate purpose of protecting businesses' interests, and were not compatible with "the system of representative and responsible government that the constitution requires".

The landmark ruling has implications for similar laws around the country, particularly in NSW, where three people are before the courts charged with hindering the business of mining companies following a protest against the Wilpinjong coal mine in the Hunter Valley.

Bob Brown, 72, was arrested and charged with failing to comply with a directio to leave a business access area. The charges were later dropped. Photo: Forests of Lapoinya Action Group

Bob Brown, 72, was arrested and charged with failing to comply with a directio to leave a business access area. The charges were later dropped. Photo: Forests of Lapoinya Action Group

Sue Higginson, a solicitor at the NSW Environmental Defenders Office, told Fairfax Media her team was "looking much more closely" at a legal challenge as a result of the High Court ruling. "The NSW laws are quite different so it requires a forensic analysis," she said.

By telephone from Mexico, Dr Brown said he was "absolutely delighted" at the verdict, which upheld the "long tradition of peaceful protest that has made our democracy what it is".

"It's a great relief because most Australians are opposed to logging in Tasmania's forests, most Australians want wildlife protected, most Australians support peaceful protest," he said.

"The High Court has come down on the side of Australians against weak politicians doing the bidding of greedy and destructive corporations."

Dr Brown also predicted the decision would galvanise action against the giant Adani coal mine in Queensland, declaring it a "warning shot" to right-wingers who have called for the curtailing of peaceful protests.

The Tasmanian laws made it illegal for protesters to engage in certain conduct on "business premises" or "business access areas", including forestry land. Justice Stephen Gageler called it "Pythonesque absurdity" for the laws to allow protesters to "march along a forest road once a day, provided they do so at a reasonable speed", regardless of the impact on forestry operations.

Hugh de Kretser, executive director of the Human Rights Legal Centre, said it was a strong decision in favour of free speech and peaceful protest, and had stripped "the real guts" out of the Tasmanian laws.

"The overall effect of the law is that it goes too far and unreasonably stifles peaceful protest," he said. "In broad terms: it's too broad, too vague, too uncertain, it gives too much discretion."

The decision "will strengthen challenges against the NSW laws", Mr de Kretser said.

Tasmanian Resources Minister Guy Barnett said he accepted the court's verdict but made no apology for seeking to protect the rights of workers to earn a living free from disruption.

The free market Institute of Public Affairs, ordinarily staunch free speech advocates, accused the High Court arbitrarily creating constitutional rights for environmentalists.

Researcher Morgan Begg said the court had "changed its tune" from a 2015 decision to uphold state laws preventing property developers making political donations.

Greens senator Nick McKim, a former leader of the Tasmanian Greens, described the verdict as a "huge win for democracy" and a slap in the face for Mr Hodgman's "draconian laws".

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The story Protesting laws in activists' sights after Bob Brown wins landmark High Court case first appeared on The Sydney Morning Herald.

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