While seemingly a win for freedom of speech, the High Court’s decision highlights why we shouldn’t rely on the judiciary to resolve contentious public policy questions.
Two weeks ago the court partially invalidated Tasmania’s Workplace (Protection from Protestors) Act 2014 following a challenge by former Greens leader Bob Brown.
Dr Brown was briefly arrested in January last year for failing to comply with a police order to move on from an area in Tasmania’s Lapoinya Forest where forestry operations were taking place in a declared “permanent timber production zone land”.
This was land that was vested by the government to Forestry Tasmania, and was at the time restricted to the public. The Tasmanian law prohibited protest behaviour on business areas or “business access areas” that obstructed or impeded business activities.
Charges against Dr Brown under the 2014 law were later dropped, but his challenge to the constitutionality of the law proceeded to the High Court. Dr Brown’s argument that the 2014 law breached the implied right to freedom of political communication was accepted by the court, who found that it was invalid in respect to protest activity on forestry land. Arguably, this decision is inconsistent with the court’s past decisions. In 2015, for example, the court had no problems with New South Wales laws that prohibited property developers from making political donations, clearly restricting their ability to participate in public debate.
Then, the court decided the interests of the NSW government in banning donations outweighed the rights of certain groups from participating fully in the political process.
And yet now, by a majority of 6 to 1, the court has decided that the right for people to protest in forests outweighs the interests of possessors of land — in this case a state forestry enterprise — to enjoy the use of that land without nuisance or trespass.
It is hard not to see the decision as carving out a special exemption for environmentalists to protest in forestry areas.
The court’s position on this issue risks being perceived as arbitrary, protecting only those interests to which members of the court are sympathetic.
Justice James Edelman noted in his dissenting opinion the anti-protest laws threatened to apply penalties to conduct that in this case was unlawful under a separate piece of legislation anyway.
Justice Edelman observed that the implied freedom of political communication cannot “extend to persons whose conduct is independently unlawful”. The court’s willingness to overlook this point is difficult to explain.
That’s the problem when judges read between the lines of the Constitution to create rights. You don’t get consistent results. Ever since the court conceived of the implied right to freedom of communication in the 1990s, its scope has been constantly redefined. Now the scope has apparently been expanded again.
The court decided that laws that are not “proportionate” to the “legitimate purpose” of that law are not compatible with “the system of representative and responsible government that the Constitution requires”.
This throws into doubt the validity of a litany of state and federal laws currently on the books.
Section 18C of the Racial Discrimination Act would fit into this category.
The prohibition in that Act of conduct that offends or insults a person because of their race is on its terms disproportionate to the law’s purpose of outlawing racial hatred.
But those who support freedom of speech cannot take too much comfort in this. Maybe this time it is a win for free speech. Next time though it is anyone’s guess how the court will come to its decision.
This is because the implied freedom the court has created is inherently subjective.
Decisions about laws passed by Parliament involve a consideration of competing interests.
Sometimes this is easy: laws like section 18C are wrong because it gives too much weight to the protection from offensive speech, and too little weight to the fundamental individual liberty of free speech.
Parliament frequently gets it wrong, the inconsistent decisions of the courts have shown they are not necessarily better placed to make these decisions either.
Given the inherent trade-offs involved in making these decisions, they are decisions that should be made by Parliament, which is accountable to voters at election, rather than an unaccountable panel of seven men and women on the High Court.
Ultimately, it is the Australian people who must take responsibility for protecting our own fundamental rights. We cannot rely on anyone else.
(Image: Chris Crerar 2017)