Brown v Hariss [2025] TASSC 32 | Case summary | Zoe

TASTASSC

Brown v Hariss [2025] TASSC 32

[2025] TASSC 32

Supreme Court of Tasmania|2025-06-12|Before: Cuthbertson J

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Source facts

Court

Supreme Court of Tasmania

Decision date

2025-06-12

Before

Cuthbertson J

Source

Original judgment source is linked above.

Judgment (207 paragraphs)

[1]

The applicant, Robert James (Bob) Brown, is a well-known environmentalist, a former Greens politician and founder of the Bob Brown Foundation (BBF). On 7 November 2022, the applicant travelled with Jenny Weber, an employee of the BBF, to a forestry coupe known as SH045A located in the Eastern Tiers region of Tasmania (coupe). The coupe was owned by Sustainable Timber Tasmania (STT) and was permanent timber production zone (PTPZ) land within the meaning of the Forestry Management Act 2013 (FM Act). Forestry operations were being undertaken in the coupe, with harvesting of timber having commenced on 24 October 2022. Protest activity, described by the applicant in his evidence as a "defence of the forest", was occurring in the coupe at the time of the applicant's attendance. That activity was directed at attempting to bring about a cessation of forestry activities in the coupe due to concerns about its impact on the natural values of the area, principally the critically endangered swift parrot.
On 8 November 2022, Dion McKenzie, an employee of STT and an authorised officer under s 22(2) of the FM Act, requested that the applicant "immediately leave all permanent production zone land". The applicant was present in a part of the coupe at the time the request was made, having camped in the area overnight. He refused to leave the area and was arrested by a police officer. The applicant was charged with one count of trespass pursuant to s 14B(1) of the Police Offences Act 1935. The particulars of the complaint allege that on "8 November 2022, at Royal George in Tasmania, [the applicant] without reasonable or lawful excuse, remained on land situated (sic) MacKays Road, Royal George, without the consent of the owner, occupier or the person in charge of the said land".

[2]

It is uncontroversial that the applicant was in the coupe on 8 November 2022 at the time of Mr McKenzie's request. It is not disputed the coupe is PTPZ land and owned by STT. It was also an agreed fact in the court below that the coupe was the subject of a certified forest practices plan which remained in force as at 8 November 2022 (FPP). The evidence established that forestry operations were being conducted within the coupe under the authority of the FPP.
Division 1 of Part 3 of the Forest Practices Act 1985 (Tas) (FP Act) concerns forest practices plans. Section 17(4) of the FP Act relevantly prohibits the harvesting of timber on PTPZ land unless a certified forest practices plan authorising that activity exists in respect of that land when that activity is being carried out. Pursuant to s 20 of the FP Act, a certified forest practices plan authorises forest practices, and any operations associated with those forest practices, to be carried out on the land specified in the plan in accordance with the provisions of that plan during the period specified in the plan. "Forest practices" is defined in s 3 of the FP Act and relevantly means the processes involved in harvesting timber and works (including the construction of roads) connected with harvesting timber. "Harvest" is also defined as meaning to cut and remove timber from a forest when used in relation to timber. "Forest" is defined as meaning an area containing trees. "Trees" is relevantly defined as meaning any woody plants with a height or potential height of 5 metres or more, whether or not living, dead, standing or fallen, that are native to Tasmania or introduced into Tasmania and used for the processing or harvesting of timber. "Timber" is defined as including the trunk, branch and any other part of a tree or fallen tree, whether or not it is cut up, sawn, hewn, split or otherwise dealt with. Broadly speaking, it is an offence contrary to s 21(1) of the FP Act to contravene or fail to comply with the provisions of a forest practices plan.
The FPP which applied to the coupe was in evidence. It was certified on 15 June 2022 and expressed to remain in force from 1 July 2022 to 30 August 2026. It included the following statement reflecting the requirements under s 20 of the FP Act:

[8]

The applicant travelled to the coupe with Ms Weber on Monday, 7 November 2022. It was a long weekend in northern Tasmania and forestry operations were not being undertaken in the coupe at that time. The evidence established there were no representatives of STT or forestry workers at the coupe when the applicant arrived. There were, however, a number of people associated with the BBF camping at the coupe. A Citizen Science Survey event, organised by the BBF, had been undertaken in the preceding days. Dr Searle was one of those present in the coupe; she spent the night of 7 November in a large tree which remained standing in an area which had been logged. Ms Weber gave evidence that forestry workers were expected to return to the coupe on Tuesday, 8 November 2022 and that this had been the subject of discussion with those present on the Monday evening. By the morning of 8 November 2022, two others associated with the BBF had attached themselves to harvest machinery located in the coupe.
Mr McKenzie arrived at the coupe at approximately 10.00am. As at that date, he was a Forest Officer at STT and was an Authorised Officer pursuant to s 22(2) of the FM Act. When he arrived at the coupe, he saw approximately 10 people there who he described as not being authorised to be on the site. Two of those people were attached to some of the harvest machinery. His evidence was that these protesters were at a location described as "Landing 1". He also saw a person (Dr Searle) on an elevated platform in a tree tied off to machinery. He gave evidence that he assessed the site from a safety point of view and deemed the presence of these people as unsafe and preventing harvesting operations from continuing. Police had also arrived at the coupe.
At about 10.38am, Mr McKenzie, in the presence of police, approached the applicant in the coupe. Prior to doing so, Mr McKenzie spoke with Ms Weber. The exchange was captured by body worn camera. The relevant part of the footage was an exhibit in the hearing. It depicts Mr McKenzie speaking with Ms Weber and shows a number of motor vehicles parked on a road in the vicinity of large piles of harvested timber. Two of the vehicles visible in the initial part of the footage are parked in such a way that access to the road beyond them (other than by foot) is obstructed. The following discussion occurred:

[78]

The defendant's presence also saw the presence of at least one other a photographer running around in the background capturing images of the defendant. It is inconceivable with the defendant in the area that the operations could continue for the workers as normal (with or without his camera person entourage). The operations in the area of the defendant involve the movement of large machinery, the felling of trees and the movement of felled trees from the area of felling to the landings (the defendant accepted in cross examination that where he was forestry may not have finished and may want extract more timber or even cut more remnant trees) From a safety point of view the defendant's presence was neither safe (for him and/or workers) nor non-obstructive to the operations in the area. The defendant in cross examination said, 'what I did know was they would not do that [extract timber or even cut trees down) while there was any member of the public present.' It was his intention to be obstructive. Logging operators have statutory duties and obligations to ensure, as far as reasonably practicable, the health and safety of persons from the operations [citing the Work Health and Safety Act 2012]. The defendant was not engaged in a safe, non-obstructive protest. His conduct, or protest action, was incompatible with the Forest Manager preforming his functions ....
That finding would be sufficient. However, for completeness I refer to one further matter raised on the evidence relevant to this issue. The defendant during his evidence tendered footage of a conversation he had on the day with Dr Searle (an employee of his foundation). It was footage and in the same area, Dr Searle was engaged in protest action, she was situated high in the canopy of a tree, on or in a structure (perhaps a tent) suspended by ropes which were tied off to various pieces of machinery. The defendant in his evidence sought to distance himself from being perceived as involved in an organised or coordinated protest. I totally reject the defendant's evidence that he was acting independently of the foundation and other persons activities in the area as lacking credibility given the footage before the court and is also inconsistent at the very least [sic] Mr Hayward's evidence of an organised gathering. The defendant was clearly part of a group engaged in a protest in the area - including Ms Weber, Dr Searle, and others... It is inconceivable that the operations could continue for the workers as normal with the defendant, Dr Searle, and others in the vicinity. It was neither a safe nor unobstructive protest."

[90]

The orders were endorsed by Porter AJ as follows: "I make a declaration and orders in terms of the above, and note the matters set out".
The applicant submits that the threshold question raised by this ground is: what is the scope of the power in s 22(3)? The applicant submits a statutory power can only be exercised for the purpose for which that power is conferred and to the extent that is fairly and reasonably necessary to achieve that purpose: Johns v Australian Securities Commission [1993] HCA 56, 178 CLR 408 at 423 per Brennan J. On that basis, the applicant argues that when regard is had to the purpose of s 22(3) of the FM Act, it follows that a request to leave must be tailored to the circumstances as they present themselves and cannot simply purport to apply indefinitely and to all PTPZ land throughout the State. The applicant argues the request made by Mr McKenzie was relevantly identical to the requests the subject of Porter AJ's 'reasoning' in that it was indefinite and purported to apply to all PTPZ land in Tasmania. As such, it was overbroad and beyond the conferral of power.
The applicant notes that the respondent's concession in the Jordan proceedings that the direction was beyond the scope of the power in s 22(3) referred to both the direction to leave all of PTPZ land and the direction not to enter any PTPZ land for an indefinite period. It was submitted that Mr McKenzie's direction fell foul of the first aspect of that concession.
In oral argument, the applicant relied on the decision of French J (as he then was) in Kovalev v Minister of Immigration and Multicultural Affairs [1999] FCA 557, 100 FCR 323. That case concerned minutes of proposed consent orders setting aside a decision of the Refugee Review Tribunal and remitting it for determination according to law. His Honour was not prepared to make the order in the terms sought until the error of law grounding the decision to set aside the decision was specified and the court was satisfied there was a proper basis for the orders. His Honour considered it was appropriate to set out his reasons for adopting that course. At 326 [7] he observed that "[i]n making a consent order, the Court exercises judicial power....Its exercise is a public function and operates to bind the parties". At 326 [8], he stated "[a]n order disposing of proceedings by consent must be self-explanatory as must any order. It is not appropriate to make an order of uncertain content or the content of which is to be derived from materials which are not on the public record." At 327 [11], and in the context of the particular rules of court, his Honour stated the following:

[97]

The respondent did not object to the applicant relying on the orders made in the Jordan proceedings or their inclusion in the applicant's list of authorities. The respondent, however, argues the orders did not constitute a "decision" of the type discussed by Blow J in MAIB as "no legal principle or rule of law was stated or could be said to have been logically considered_"._
The respondent notes the orders made in the Jordan proceeding do not record the exact wording of the invalid notices. It is submitted that a decision falling into the category of one that should be followed by a judge of the same Court (unless it is decided it is plainly wrong) must be one including sufficient information regarding the basis of the decision and the material facts that led to it in order for the Court to make an informed decision as to whether or not it is clearly wrong: Vunilagi v The Queen [2023] HCA 24, 411 ALR 224 at 308 [155] per Edelman J. In this case, the respondent argues it is decidedly unclear whether the declaration was made on the basis that the terms of the notices were overbroad or because they went beyond what was required to end a current, or prevent an imminent, or immediate interference with the duties of a Forest Manager in a particular location. The respondent also argues the terms of Mr McKenzie's request and the Jordan proceedings notices (to the extent they are able to be discerned from the terms of the notations) are relevantly distinct. Mr McKenzie requested the applicant "immediately leave all PTPZ land". The notices in the Jordan proceedings were said to have applied to the entirety of PTPZ land, and every forestry road, and for an indefinite period. They are expressed to have required the recipients to leave PTPZ land and forestry roads and not to enter any PTPZ land or any forestry road "again".
The respondent accepts that a statutory power is limited by the statute that creates it and should only interfere with a person's rights and freedoms to the extent necessary to give effect to the purpose of the power. The respondent also conceded that a direction made under a power such as that granted under s 22(3) of the FM Act, which invokes a criminal penalty if not followed, should be given with enough clarity for the person to understand what they need to do or not to do. In this case, the respondent argues Mr McKenzie's request did not exceed the purpose of the power. It was a request to "immediately leave all PTPZ land". As the request was to "leave" it could only have applied to the land the applicant was then on. It was not open to conclude it applied more generally to any other PTPZ land, as the applicant was not on that land at the time of the direction.

[98]

The issue raised by this ground is whether the applicant's statutory right of access to the coupe, recognised under s 13(1) of the FM Act, had been effectively withdrawn such that remaining on the land particularised in the complaint ("land situated McKays Road, Royal George") was without STT's consent. In my view, that consent had been validly withdrawn.
I do not accept I am bound to follow the outcome reflected in the orders made in the Jordan proceedings. I cannot be satisfied the terms of the notices are "relevantly identical", as the applicant argues, or sufficiently similar to warrant taking the same approach. The notices are not set out verbatim in the notations. On the face of the notations, it is apparent that Mr McKenzie's request was more confined than the notices in the Jordan proceedings. Contrary to the particulars of this ground, it did not purport to apply to every forestry road in Tasmania. It also did not include a request not to enter PTPZ land at all, let alone "again". Further, the notations identify that the notices in the Jordan proceedings were considered beyond the power of s 22(3) of the FM Act which is "directed to ending a current interference with the duties of the Forest Manager or to preventing an imminent or immediate interference with the duties of the Forest Manager in a particular location". It is not readily apparent from the information before me whether the concession made by the respondent in that case, or Porter AJ's exercise of judicial power in endorsing the consent memorandum, were based only on the wording of the notices, or the absence of a relevant interference, or a combination of the two. The use of the conjunction "and/or" in the second paragraph of the notations contributes to the lack of clarity. Is it the direction to leave or the direction not to enter or a combination of the two that brings the notices beyond the scope of the power under s 22(3) of the FM Act? Simply put, there is insufficient information discernible from the orders and notations in the Jordan proceedings for me to be confident the outcome should be the same in this case.
Ultimately, the relevant question for this Court is whether it was open to the magistrate as a reasonable person to conclude that consent for the applicant to remain on the land situated at McKays Road had been withdrawn. It was conceded by the respondent that this required proof beyond reasonable doubt that Mr McKenzie's request was a lawful exercise of power pursuant to s 22(3) of the FM Act. Her Honour clearly concluded it was a lawful exercise of power, although she did not have cause to consider this issue in the present context given it was not argued. If the magistrate erred, it is arguable it was an unwitting error, and not amenable to review pursuant to s 107(4)(a) of the Justices Act, as a reviewable error must be one which appears from the materials before the magistrate: see Webster v White [1991] TASSC 75 per Zeeman J; Traynor v McCullough [2011] TASSC 41 at [17]- [36] per Crawford CJ.
In any event, no error in the context of this issue is apparent on the materials before the magistrate.
An exercise of the power pursuant to s 22(3) must be for the purpose of the power. The purpose of that power is as explained by Kiefel CJ, Bell and Keane JJ in Brown at [141]: for the protection of STT's property, its functions and operations and to the safety of its employees and the public.
The material before the magistrate included the evidence set out at [11]-[14] and [26] above. The applicant also gave evidence that the area he was in when police located him was "a small area of logged forest, not cleared but logged forest, which had been logged in preceding days". He agreed that there were trees which had been logged still sitting in the area where he was located and that debris and smaller branches were still around. He further stated he believed the area had been logged "and that the logs the contractors wanted had been taken and put in a log pile". He conceded that STT may not have finished with the area and may have wanted to extract more timber or even cut down remnant trees. He also gave evidence that he felt at the time they (as in STT) were not going to bring machinery back into that area. Based on that evidence, the magistrate's findings at [52]-[54] of her reasons (set out at [24] above) were open on the materials before her. It was, therefore, open for her to conclude that Mr McKenzie's request was one made for the purpose of the power under s 22(3) of the FM Act.
Further, in my view, it was open for the magistrate to conclude the request did not exceed the scope of the power. It is important to recognise that Mr McKenzie's request made to the applicant set out in bold at [14] above was followed by the further words: "Will you leave now and comply with my request?" The request that the applicant "immediately leave all PTPZ land" is not to be considered in isolation from that context. The word "immediately" clearly conveyed that the applicant was to leave the land he was then on "immediately" or "now", namely the land particularised in the complaint. The request could not reasonably be viewed as one that he "immediately" leave any PTPZ land he happened to find himself on at some indefinite time in the future. It is significant there was no direction issued to the applicant not to enter PTPZ land. The magistrate concluded at [33] of her reasons (see [25] above) that the applicant heard and understood he was being asked to leave by someone who had authority to revoke consent. The applicant's indication that he intended to stay put in defence of the swift parrot, the masked owl and "this" forest, supports that conclusion. In my view, it is not correct to characterise the request as one purporting to be of indefinite duration and applying to the entirety of PTPZ land as was the case with the notices in the Jordan proceedings.
This ground is not made out.

[132]

The reference to the coupe notes in the reasons refers to the Operational Coupe Notes tendered during the hearing. Those notes were described in evidence as an electronic diary kept by STT of attendances at the coupe. Mr McKenzie had made one of the entries, with the rest made by Mr Sing, who also gave evidence. Relevantly, those notes set out the following:
- Mr Sing attended the coupe on 3 November 2022. He records reminding "the bush boss to stay vigilant on tracks and to report any swift parrot sightings." No swift parrots were sighted during the visit and crews had not seen or heard swift parrots since commencing operation. Mr Sing spoke with two people who had entered the site looking for swift parrots. Surveillance cameras had also captured the vehicles driven by these two people entering an area after the bush crew left of an afternoon and remaining for up to 3 hours at a time, sometimes well after dark.
- Mr Sing conducted a visit on 7 November 2022, noting a number of protesters at the site. The operation was not working that day. One of the protesters attempted to engage Mr Sing about swift parrot habitat. Vehicles were blocking access.
- Mr McKenzie was at the site on 8 November 2022 and recorded his observations of the BBF protest action and arrests. He reported that the tree-sit tree and a close neighbouring tree were removed, with the area being checked for unauthorised persons prior to falling.
- Mr Sing visited the site on 9 November 2022. Crews were required to fix logs vandalised by spray paint over the log tags. Mr Sing undertook a larger inspection of the coupe for any remaining protesters while also looking and listening for swift parrots. None were heard or seen during his visit from 6.40am to 11.45am. Forest Practices Authority and STT personnel attended to conduct "on-site for swift parrot surveys". The tree felled the day before had been the tree-sit tree and had been left behind for a habitat tree by the faller.
- Mr Sing visited the site on 14 November 2022. The Friday crew ceased felling after a confirmed swift parrot sighting. Advice was received from FPA that the crew can resume working outside 500 metres from reported sightings as referenced within the FPP. It was noted that "crew will still monitor for swift parrots". Reference was made to opening up landing 11 next, noting it was well outside the 500 metre zone. There is also a reference to the crew "keeping up with progressive restoration".
- Mr Sing visited the coupe on 24 November 2022. He referred to "emails today of more swift parrot sightings near landing 11. Crew are processing remainder of wood on ground with no additional falling at this landing". He noted landing 14 was outside the 500 metre range of the most recent sightings and was workable for the prescription. A hand drawn map of the 500 metre boundary was sent to the bush boss of the site. It was noted that "Likely remove crew from this site next week as current ground conditions will not allow further harvesting along with swift parrot sightings".
As noted above, the magistrate concluded at [33] that Mr McKenzie's request was legally effective to withdraw consent.

[133]

The applicant noted the magistrate appeared to accept the applicant's submission it would be unlawful to commence or continue logging activity in the coupe after a 'sighting', 'report' or 'any evidence' of a swift parrot, until evidence of a swift parrot nesting site, or swift parrots being present (seen or heard) had been assessed. I note here that reference was made in the applicant's written outline to the magistrate recording that submission at [17] of her reasons. That is not how the magistrate recorded the submission (see [49] above) and is inconsistent with what her Honour said at [30] of her reasons (see [52] above).
The applicant submitted the magistrate erred in rejecting the argument that Ms Weber's statement "I would love to know that you are not going to keep logging in this coupe here... we have an extraordinary number of swift parrots in the coupe... we have written to you guys, have you got the letter, has someone got the letter and addressing the letter" amounted to a sighting, report or any evidence for the purposes of the prescription.
First, the applicant argues the magistrate adopted un unduly narrow interpretation of the words 'any evidence' in the prescription. The applicant agreed with the magistrate's conclusion at [20] of the reasons that "the reported evidence must be more than mere supposition, guess, intuitive hypothesis, or rumour". It was also acknowledged her Honour accepted the term "any evidence" was broad. The applicant argued, however, the word "any" also had work to do, emphasising the broad ambit of the phrase "any evidence". Giving the term a broad interpretation also advanced the obvious purpose to protect the critically endangered swift parrot from logging activities that might otherwise harm them or destroy their nesting sites. It was submitted the magistrate did not pay due regard to the "expansive work being done by the word 'any'". The applicant argues her Honour ignored the relevance of the word ''any'' in her analysis.
In this respect, the applicant also submits the magistrate erred at [20] of the reasons in considering the phrase ''any evidence'' was qualified by the fact the swift parrot must be ''present (heard or seen)''. The applicant argues those words are better understood as confirming the width of the concept of 'any evidence' such that it not be equated with a 'sighting' but extends to non-visual evidence of swift parrot presence. The applicant emphasised the prescription is the only one in the FPP triggered by non-visual evidence. In this way it is tailored to the species, noting its "swift" flight pattern, and telltale call which immediately identifies it. The applicant argues it is a prescription to be applied in practice out in the field, emphasising the notion that "any evidence" is not to be equated with evidence in a trial or like proceeding.
The applicant also argued her Honour erred in reading the words "inside or within 500 metres of the FPP area" as requiring that the "report must give at least a general location of where the Swift Parrot was seen or heard". On this basis, it was submitted her Honour appeared to have "held that it was not enough for there to be evidence of the presence of a swift parrot within a forest practices plan area... but that the evidence had to specify precisely where the swift parrots were within that area". The applicant argued this was a misreading of the prescription by which any evidence of a swift parrot required the cessation of logging inside a forest practices plan area and within 500 metres of the forest practices plan area. As a result, the only geographic specificity implicit in the prescription is that the evidence of the swift parrot be referable to a particular forest practices plan area. Ms Weber's communication to Mr McKenzie satisfied that requirement as it was referable to the coupe.
Second, the applicant argued in his written outline that the magistrate failed to adequately take the email of 2 November 2022 into account or give it weight in assessing whether Ms Weber made a report to Mr McKenzie. It was submitted the contents of the letter and Ms Weber's reference to it when speaking with Mr McKenzie make plain she was reporting the presence of swift parrots within the coupe. It was argued the magistrate's approach to Ms Weber's statement was dismissive. Reference was made to the description of Ms Weber's manner being "rather convivial" during that conversation. The applicant took issue with this observation being an appropriate basis to support the magistrate's conclusion that Ms Weber's statement was not a report. The applicant also argues the magistrate failed to take into account Ms Weber's position as a campaign manager for the BBF, her evidence that in her position she had received information about swift parrot sightings and the references to the letter she made to Mr McKenzie. It was submitted these factors support the conclusion her statement was a report, not a throw-away line, as Ms Weber was a person with relevant knowledge and experience and came to the coupe in her role as campaign manager armed with information about swift parrot sightings. On that basis the applicant submits the magistrate should have concluded that Ms Weber's statement was a report.
The applicant did not press at the review hearing that the substance of the 2 November email fell to be considered in the context of this ground. It was the reference to the letter in Ms Weber's conversation with Mr McKenzie which was of significance when the whole of what she said was considered in a holistic way. The multiple references to the letter were said to give weight to what she was conveying.
Finally, the applicant argues the magistrate erred in apparently relying on Mr McKenzie's own opinion that Ms Weber's communication was not a report. The applicant submits Mr McKenzie's opinion was irrelevant to the question which was whether, objectively, the communication met the definition of a sighting, report or any evidence within the meaning of those terms in the prescription.
The applicant submits that if these errors had not been made, the magistrate would have concluded Ms Weber's communication to Mr McKenzie was sufficient to engage what was described as the "prohibition of logging activity" such that Mr McKenzie's request to the applicant was unlawful (as it was for the purposes of what would have been unlawful logging activity) and thus ineffective to withdraw consent. The practical operation of the prescription required the immediate cessation of logging. If an officer was unable to ascertain the area in which logging was to cease, it was incumbent to ask further questions. What was not open to Mr McKenzie was to ignore the statement completely. It was for prosecution to prove the operations contemplated at the time of the request were or would be lawful. At the very least, the magistrate would have had to find that a reasonable doubt remained as to this element of the offence.

[136]

In resolving this ground, it is helpful to articulate the question arising in respect of this issue, bearing in mind the nature of the review the Court is conducting. In my view, it is this: was it open to the magistrate on the materials before her to find that consent for the applicant to remain on the land described in the particulars of complaint had been validly withdrawn? This articulation of the question is consistent with the issue the magistrate considered she was called upon to determine which she set out at [6] of her reasons: "whether the prosecution has established absence of consent of the owner, occupier or the person in charge of the land to remain on the land".
This issue is referable to the elements of the offence of trespass pursuant to s 14B(1) of the Police Offences Act and the particulars of the charge preferred against the applicant. The magistrate properly identified at [7] of the reasons that the applicant has the benefit of a statutory right of public access to PTPZ land pursuant to the FM Act, but noted that right was limited to such purposes as are not incompatible with the management of PTPZ land under the FM Act and was subject to s 22(3) of the FM Act. At [9]-[10] of her reasons, the magistrate set out the evidence supporting the conclusion that Mr McKenzie was an authorised officer and had authority to revoke the applicant's permission to remain on the coupe. At [12], she recorded she was satisfied Mr McKenzie had formed the opinion the applicant's presence was preventing STT from effectively or efficiently performing its function of harvesting. That conclusion was clearly open on the evidence set out at [11]-[14] and [26] above. The request to leave was noted at [11] of the reasons, with the magistrate recording she was satisfied the applicant heard the request to leave and remained. She accepted at [16] that any request pursuant to s 22(3) of the FM Act can only be made for the purpose of the Forest Manager effectively or efficiently performing lawful functions.
The focus of the applicant's argument on this ground concerned whether the prescription had been triggered such that any purported withdrawal of consent was rendered ineffective. As noted above, and in contrast with the way this issue appears to have been run at the hearing in the court below, the applicant confined his argument to Ms Weber's statement which included reference to the 2 November 2022 email but not its substance.
The magistrate's conclusions at [21]-[23] of the reasons that Ms Weber's statement to Mr McKenzie was not a report for the purposes of the prescription, proceeded from the starting point that "any evidence", although a broad term, "must be more than mere supposition, guess, intuitive hypothesis, or rumour". The applicant does not cavil with her Honour's reasons in this regard. The magistrate, however, also noted that the practical consequence of the prescription requiring a cessation of felling within a 500 metres radius of the sighting meant that "the report must give at least a general location of where the Swift Parrot was seen or heard". The magistrate's analysis of Ms Weber's statement referred to her role with the BBF. The conclusion that it was not a report noted no information was provided as to "who saw or heard the swift parrots or where exactly". The reference to the letter was described as "oblique". It was observed that the fact Mr McKenzie did not ask any further questions did not change what "Ms Weber chose to reveal".
I consider that it was open to her Honour to conclude that Ms Weber's statement (viewed holistically) did not have the effect of rendering Mr McKenzie's request ineffective.
First, the phrase "any evidence" in the prescription cannot be divorced from the words which follow; as a whole, the phrase under consideration reads "any evidence of ... Swift Parrots being present (heard or seen) inside or within 500 metres of the FPP area". Ms Weber's statement did reference the coupe, that is the FPP area. But it otherwise lacked the quality of being evidence of the swift parrot being present (whether seen or heard) at a relevant location. Nothing said gave any indication of the basis for the statement. No attempt was made to identify if the assertion "we have an extraordinary number of swift parrots in this coupe" was based on seeing or hearing parrots, let alone at a time or place relevant to the activity then being undertaken in the coupe and the requirements of the prescription. Ms Weber's reference to the 2 November 2022 email, the substance of which was not explained to Mr McKenzie, added little. What was required to activate the trigger was evidence of the swift parrot being seen or heard (the means by which presence is established) inside the coupe. Ms Weber's statement does not amount to a statement that the swift parrot has been seen or heard in the coupe, let alone evidence of seeing or hearing it.
I do not accept that the meaning of the term "any evidence" is to be divorced from the practical consequences that flow from the prescription being triggered. The applicant, of course, relies on the purpose of the prescription in protecting the swift parrot and its habitat. That is, undoubtedly, an important context. This is why "any", as in all, evidence of the presence of the swift parrot inside the coupe or within 500 metres of the FPP area must be reported to a STT Officer. But it is abundantly clear that the prescription is also framed in a way to further the purpose of enabling the ongoing conduct of forestry operations in the coupe within the terms of the prescription. Once triggered, it requires cessation of felling only, and only in an area within 500 metres of a sighting until the evidence is assessed. There is obviously some tension between these contextual matters, however, both are important to the overall operation of the prescription. The essence of the applicant's argument would appear to be that any bald claim of presence of the swift parrot in the coupe would suffice to trigger action under the prescription. This cannot be correct. It would render ongoing operations at the coupe, or any forestry coupe subject to the same or similar prescription, impractical. That is not the purpose or intent of the prescription.
Whether Mr McKenzie considered what Ms Weber told him was a report for the purposes of the prescription is not a relevant consideration. Nor is it relevant to consider whether Mr Sing believed he had "nothing to act on" or the evidence that the "Forest Practices Authority" had subsequently acted on reports. To the extent the magistrate relied on those matters in support of her finding that the contemplated forestry operations were not unlawful, or that Ms Weber's statement did not constitute "any evidence" for the purposes of the prescription, that was an error. I accept the applicant's submissions in that regard. It is, however, clear her Honour based her conclusion that Ms Weber's statement was not "any evidence" or a "report" or a "sighting" for the purposes of the prescription independently of those considerations. So much is apparent from her analysis at [23] of the reasons.
In any event, there was further material before the magistrate which was capable of supporting the ultimate conclusion that the contemplated forestry operations were not unlawful. At [30], the magistrate observed that the prescription does not require all felling within the coupe to cease. It is clear from the analysis at [30] to [31] of the reasons that she was alive to the fact the prescription required the cessation of felling only and only in an area within 500 metres of a sighting, but not the cessation of other forestry operations or other aspects of harvesting.
In my view, it was therefore open to her Honour to conclude the prosecution had proved beyond reasonable doubt that Mr McKenzie's request was not vitiated by Ms Weber's statement, even if it was evidence of a swift parrot being present in the coupe. The triggering of the prescription did not mean that the purpose of Mr McKenzie's request was rendered unlawful. As Mr McKenzie made clear, the request was made because he formed the belief that STT's functions were being prevented because the presence of the applicant was restricting the use of machinery for forest harvesting. STT's statutory functions included "undertaking forest operations" on PTPZ land for the purpose of selling forest products. The definition of forest operations is broader than harvesting and is capable of capturing activities associated with reforestation (for example, seeding and planting trees and related land preparation) which were also approved by the FPP. Harvesting, as is apparent from the definitions in the FP Act and the terms of the FPP, also includes activities other than felling, most notably the removal of timber from a forest. The evidence demonstrated there were logs which had already been felled awaiting removal from the site. The applicant's evidence and the footage of his arrest showed that fallen trees remained at the site where he was located by Mr McKenzie and police. It was open to the magistrate to be satisfied beyond reasonable doubt that the forest harvesting contemplated by Mr McKenzie at the time of his request and the applicant's subsequent arrest was not confined to felling.
Another difficulty for the applicant is that no felling operations were actually being conducted at the time of Mr McKenzie's request and the applicant's refusal to leave. It could not be said that unlawful forest harvesting was occurring at that point in time. As for the forest harvesting contemplated at the time of the request, an assessment that it was unlawful could only be a matter of speculation as at the time of Mr McKenzie's request or the applicant's refusal to leave. As I have already noted, not all harvesting activities would have been precluded by the activation of the trigger under the prescription. Not all felling activity would be precluded either. The applicant relied on the evidence of the felling of the tree-sit tree and the neighbouring tree on 8 November 2022 to support his assertion that the contemplated forest operations were unlawful. Whether that particular felling was contemplated at the time of the request was not a matter of evidence. That activity occurred well after the applicant engaged in the conduct the subject of the charge.
In short, it was open to her Honour on the material before her to be satisfied beyond reasonable doubt that the applicant's permission to remain on the land had been validly withdrawn. This ground is not made out.

[141]

As I have already noted, it was an agreed fact at the hearing that the FPP in respect of the coupe remained certified as at 8 November 2022. The FPP authorised STT to carry out forest practices and any operations associated with those forest practices in accordance with the FPP. It further provided that harvesting of timber was only to occur within the harvest boundary as indicated on the map attached to the FPP. During the hearing, Mr McKenzie identified the approximate location of where he encountered the applicant and issued his request pursuant to s 22(3) of the FM Act. It is apparent from the map that the area in which the applicant was located was well within the harvest boundary of the coupe. Constable Richardson, one of the police officers in attendance at the coupe on 8 November 2022, gave evidence that he met STT personnel, including Mr McKenzie, at the intersection of the Lake Leake Highway and McKays Road before travelling to the coupe. He was working with Constable Purcell, the officer who arrested the applicant. Constable Richardson gave evidence that he was shown Mr McKenzie's authority under "the Act" that "entitled him to ask people to leave when they were unlawfully on [STT's] land or land to be logged".
The applicant gave evidence that he had been informed by people from the BBF that some illegal logging had taken place in the coupe. He said this understanding was based on an "available map that we had" which was shown to him; the map indicated an area of land adjacent to an area proposed to be logged was an informal reserve (the BBF map). He understood that the map had come from Forestry Tasmania and was a map of proposed logging before the finalised forest practices plan was produced. The applicant's evidence was to the effect that a belief had been formed that the informal reserve had been logged instead of being reserved. A surveillance camera had been set up by the BBF in that area of the forest and had been lost in the process of it being logged. He gave evidence that he believed he had seen the BBF map before he attended the coupe and that it was a major factor in wanting to go to the area. He also gave evidence of his belief that the logging going on in the area he understood was an informal reserve was illegal. He understood that an informal reserve is an area protected from logging and that logging should not occur there. At the time of his visit to the coupe, the applicant understood that the BBF had not been provided with a copy of the FPP for the coupe. So much is apparent from his exchange with Mr McKenzie and police prior to his arrest: see [14] above.
The BBF map was in evidence. It was attached to an email sent by Erik Hayward, another employee of BBF, to Ms Weber, the applicant, and Charley Gros on 5 November 2022 (5 November email). The 5 November email has the subject line "SH045A Illegal logging". The body of the email refers to "Swift Parrot Illegal Logging". There is reference to the logging being unlawful but no clear reference to it being unlawful because it was occurring in an "informal reserve". It does, however, state that "scientific sound recording equipment placed on a tree inside a reserve cluster outside of the logging area inside an informal reserve was removed and a cluster of habitat outside of the blue boundary has been clear felled". This is potentially a reference to logging occurring in an area believed to be "informal reserve". The email alone does not clearly identify any basis for the belief that the area was illegally logged or an informal reserve.
The applicant gave evidence that when he attended the coupe he asked Charley Gros if he could show him the area that was logged that should not have been. He was taken to the area that was identified in the BBF map as being illegally logged. The applicant explained that Charley Gros was a scientist who worked for the BBF.
The applicant gave evidence that he chose to sit in the place where he was located by Mr McKenzie and police on 8 November 2022 because he believed it was outside the proposed logging coupe. He stated: "All the evidence before me was that it was outside the logging coupe, and I was very disturbed by the fact that nevertheless it had been flattened and there ...during the course of that time in that logged informal reserve the other swift parrots flew over from the north to the south_"._ He also gave evidence that as far as the area that he was standing in was concerned, "my long understanding is that public forests are available for the public to enter upon and that is a legislated right .. therefore, I felt that it was my right to be there. As far as that area was concerned, I felt that I was rightfully as a member of the public in an area that was outside what was lawfully to be logged". In cross-examination, the applicant conceded he did not communicate his belief that he was on an informal reserve during his interaction with Mr McKenzie.
Ms Weber also gave evidence at the hearing. She said that the "informal reserve" and area described as being "illegally logged" on the BBF map had been identified from a gap noted on the Forestry Tasmania map online between what she understood showed the coupe boundaries. She gave further evidence that BBF had not received a certified forest practices plan for the coupe. There was evidence that requests had been made of STT for copies of a number of forest practices plans. Correspondence from BBF to that effect was in evidence. According to that evidence, a request was made by Mr Hayward on behalf of BBF on 25 July 2022 for access to all the forest practice plans for coupes listed in the new three-year plan. It is not in dispute that the coupe was one of those listed in the new three-year plan. A number of specific coupes were identified in the email, 30 in total, but did not include the coupe. On 24 August 2022, the STT engagement team requested that BBF identify a small selection of priority coupes to initiate the disclosure process. Mr Hayward responded that same day with the same list of 30 coupes, none of which included the coupe. Similarly, the email sent by Ms Weber on 2 November 2022 and referred to at [51] above repeated a request to be sent "our list of forest practices plans from Forestry Tasmania". That list did not include the coupe. The first express request for the forest practices plan in respect of the coupe was not made until 9 November 2022, that is after the applicant's arrest. It was then provided by STT on 14 November 2022. None of the correspondence in evidence indicates that STT or anyone refused to provide the FPP or any other forest practices plan to BBF. A fair reading of the relevant correspondence in evidence indicates that STT requested that priority areas be identified, at least initially, to commence the process given the administrative requirements involved in redacting personal identification, such as details of employees and contractors, from the documents. The BBF did not accommodate that request.
Mr Hayward gave evidence during the hearing. He was the person who created the BBF map and confirmed it was derived from publicly available maps on the STT website and his own attendance at the coupe on 5 November 2022. As already noted, Mr Hayward was the author of an email sent to STT on 25 July 2022 seeking the provision of forest practices plan. In that email, he states "[t]here has been no attempt to include FPPs in this year's STT interactive map". This statement was repeated in his email to STT of 24 August 2022. These statements would tend to suggest that Mr Hayward was aware that the STT interactive maps did not incorporate data from forest practices plans.
Dr Gros also gave evidence confirming he had advised the applicant that an area outside the logging coupe had been logged which corresponded with the area outlined in yellow on the BBF map.

[142]

The magistrate first recorded at [43] of the reasons that she was satisfied on the balance of probabilities the applicant believed (albeit mistakenly) that the area in which he was standing on 8 November 2022 was outside the coupe when he was approached by Mr McKenzie and the police officers. That belief was reinforced by the applicant's knowledge that the relevant FPP had not been provided to the BBF and the other witnesses who gave evidence of their own beliefs and understanding of the boundaries of the harvest area which they had conveyed to the applicant. Her Honour then identified at [44] of the reasons the applicant had to satisfy the court he had a reasonable excuse for remaining on the land, that is, one that was objectively reasonable. In this regard, her Honour referred to the decision in Mark v Henshaw (1998) 85 FCR 555 at 558 where a Full Court of the Federal Court of Australia noted that whether an excuse for a trespass is reasonable "will always come from an objective assessment of the particular facts of each case; that assessment requires a consideration of not merely the trespassers' beliefs and state of mind: it requires the application of community standards. In particular, it requires the trier of fact to determine whether the trespassers' conduct is acceptable to the community".
Applying those principles, her Honour found at [45] that the applicant's excuse for remaining on the land was not objectively reasonable. She noted that it was "not correct that the only information [the applicant] had available at the time he remained was provided to him by trusted employees of the organisation he had founded". Her Honour referred to the footage of the interaction between Mr McKenzie, the police officers and the applicant, noting that a police officer told the applicant that he had seen the "plan". The same officer also told the applicant "we have seen the plan and it is authorised". On that basis, the magistrate concluded that there "was nothing unlikely or unbelievable in what the officer said given that he was there in his capacity to execute an arrest, if necessary, that he would have ascertained he had the power". I take her Honour to be saying here that it was not inherently unlikely or unbelievable that the officer would have ascertained he had the power to execute an arrest in the coupe in the event that became necessary and his assertions that he had seen the FPP were, accordingly, not inherently unlikely or unbelievable.

[143]

First, the applicant argues that relying on what the police officer told the applicant about having seen the plan and that it authorised the logging was not a matter put to the applicant in cross-examination. The applicant argues that he was therefore denied the opportunity to explain how what the police officer said bore upon his belief at all. It was asserted that this was a breach of the rule in Brown v Dunn and a matter that at least ought to have been taken into account by her Honour in weighing up the evidence related to the issue of the reasonableness of the applicant's belief: citing Police Member 1 (a pseudonym) v Mokbel [2025] VSCA 34, [76].
Second, the applicant argued it was inherently unlikely a police officer would study a forest practices plan. In addition, the police officer called by the prosecution (albeit not the one who arrested the applicant), did not refer to having reviewed any forest practices plan. He gave evidence of having seen Mr McKenzie's authorisation. The fact the arresting officer did not give evidence at the hearing of having reviewed the FPP was not considered at all by the magistrate in drawing her conclusion that the applicant's excuse was not objectively reasonable.
Third, the applicant also relied on the fact the police officer disputed the applicant's assertion that the BBF had not seen the FPP. In circumstances where the applicant knew that to be true, he argued it is difficult to see how he could be expected to place any weight on the other assertions made by the police officer, including that he had seen the FPP and that it authorised logging in that area. The applicant submitted that those "somewhat off-hand comments in the context, including that they were made together with comments that were demonstrably wrong were insufficient .... to render [the applicant's belief] incapable of being a reasonable excuse".
Fourth, the applicant argues that it is to be expected the applicant would treat with circumspection the police officer's repeated assertions that he had "seen the plan" authorising logging of the particular area when neither the police officer or anyone else would produce the plan to the applicant or the BBF despite requests for it to be provided. The applicant also asserts the police officer's comments were general; he did not suggest he had studied the plan and compared it with the geographic coordinates on it to the area which had been logged and in which the applicant had been standing. This was said to be in contrast with the close analysis engaged in by Dr Gros in producing the BBF map. I note the evidence suggested it was Mr Hayward who produced the BBF map, not Dr Gros. Dr Gros gave evidence about producing another map which was tendered during the trial. It appears to be an annotated copy of the map attached to the FPP which describes the relative location of the applicant and other protesters arrested by reference to an area of the coupe in which some photos of the swift parrot had been taken.
Finally, the applicant argued that in circumstances where the FPP was not produced by the police officer when requested, the only documentary evidence the applicant had to go on was the BBF map.
In all of those circumstances, the applicant submits the finding that the applicant's belief was not reasonable was neither open nor correct. The applicant argues that her Honour should have found that his genuine belief he was standing outside the coupe on illegally logged land afforded him a reasonable excuse for remaining on the land.

[148]

The relevant question in respect of this ground is whether the magistrate's conclusion that the applicant's erroneous belief he was outside the coupe in an area that was illegally logged was not objectively reasonable was open on the evidence. In her reasons, the magistrate clearly relied on the police officer's statement that he had seen the plan and was satisfied that the area in which the applicant was standing was covered by that plan. Throughout that exchange, the applicant had been positively advised on more than one occasion that he was in area covered by the relevant FPP. Nevertheless, the applicant submits that it was reasonable for him to maintain his erroneous belief in the face of what the police officer told him because of the manner and context in which the exchange occurred. In my view, it was not. The context of the applicant's belief and the exchange with Mr McKenzie and the police officer included the following:
- in forming his belief, the applicant was relying on information from others he knew did not have access to the FPP;
- he had not seen the FPP himself and was consequently in no position to authoratively contest that it did not cover the area of the land he was in;
- forestry operations had been undertaken in the area he was in;
- Mr McKenzie's request was one that asserted the land the applicant was on was PTPZ land. It also asserted that the applicant's continued presence was interfering with the performance of STT's functions and specifically forest harvesting. Such a statement implies a lawful basis for the undertaking of activities on that area of land including the existence of a certified forest practices plan;
- Mr McKenzie's role with STT and status as an authorised officer gives weight to those implications.
In that context, it was clearly open to the magistrate to conclude that the diversion of police resources to the aid of STT in the coupe was based on them being satisfied there was a lawful basis for doing so. The assertion that the FPP had been sighted informed that conclusion. It was therefore open to her Honour to find that the police officer's statement in the context of all of the other evidence rendered the applicant's adherence to his erroneous belief he was outside the logging coupe unreasonable.
This is so even in light of the police officer's erroneous assumption that the applicant had seen a copy of the FPP. There is no merit to the applicant's argument in that respect. It is not reasonable to approach the police officer's assertion he had seen the FPP from a place of distrust on that basis. The police officer's claim to have seen the FPP was something within his personal knowledge; he could only have assumed that BBF had access to the FPP. As explained by Street CJ in Bacon, reasonableness must be present at every stage and step leading up to the ultimate mistake.
Further, the applicant's argument based on Brown v Dunn does not assist. It ignores the objective nature of the relevant enquiry. The submission also ignores the onus of proof to establish a reasonable excuse rested with the applicant.
In my view, the magistrate's conclusion that the applicant's mistake was not reasonable was open on the evidence and for the reasons she gave. This ground is not made out.

[155]

The magistrate held at [56] of the reasons that a "lawful excuse includes a reason that is not forbidden by the law, or which the law recognises as a valid excuse". She indicated she accepted the law as to "lawful excuse" was as set out in the applicant's written submissions filed in relation to the hearing. In summary, it was accepted the term "lawful excuse" was of broad ambit, with its meaning depending on the statutory context. Often it means an excuse supported by law or one the law recognises as a valid excuse. It is not necessary to prove the charged conduct was positively authorised by the law, but the excuse must be lawful. Usually, a defendant will rely on some other statute to show the excuse is lawful. These principles were discussed by Kyrou J in Magee v Delaney [2012] VSC 407, 39 VR 50 at 59-60 [36]- [39].
The applicant's deeply held and longstanding beliefs about environmental issues was the subject of evidence during the hearing. The applicant explained he had been an environmentalist all his life. He described being concerned about protecting species from extinction since his childhood. His background as a medical practitioner gave him an awareness from an early stage of the importance of nature to the good health of humankind. He became involved in environmental activism during the Lake Pedder protest in 1972. He was the Director of the Tasmanian Wilderness Society from 1978 and a member of State parliament from 1983. He explained his move to become a member of parliament was motivated by environmental concerns, including the desire to stop the damming of the Franklin River and the rapid loss of Tasmanian forests due to export wood chipping. His was elected to the Senate in 1996. He had an active part in the formation of the Australian Greens as a political party to promote environmental issues. He was the leader of the political party from 2005 until 2012.
The applicant gave evidence of campaigning to save Tasmanian forests since 1976. He was the plaintiff in proceedings in the High Court relating to the right to protest in Tasmanian forests against logging. This was a reference to the litigation the subject of the decision in Brown v Tasmania. He gave extensive evidence of his belief in the effectiveness of environmental protest as a means of causing positive change for the protection of the environment. He referred to historical campaigns such as that which saved the Franklin River. He believes it is important to protest on site to allow nature to speak for itself. A paper he had authored entitled "Protest As A Political Strategy" was tendered during the hearing. The paper was apparently presented at a conference in the 1980's.
The applicant agreed it was these beliefs and understandings which motivated his attendance at the coupe on 7 and 8 November 2022, or as he expressed it: "Absolutely and fundamental". He stated "I felt, when I heard about the swift parrots being present and the logging occurring, included in particular of an informal reserve but of the forest generally that it's contrary to my own morality, if you like, to say well other people can look after that. It is my job to be with other people who are making a stand to defend the forest and this species_._"
In rejecting the applicant's argument that he had a lawful excuse to remain on the land subsequent to Mr McKenzie's request "because it was an exercise of his freedom of conscience, or morality", the magistrate said the following:

[158]

The applicant conceded that this was "an underdeveloped area of law, at least in Australia". The applicant first observed that the magistrate did not appear to doubt that the applicant's conduct in remaining on the land was an expression of his deeply held beliefs about environmental issues. It was submitted, however, that the magistrate's reasoning was in error. The applicant argued that the parliament of Tasmania had built lawful excuse into the offence provision thus making clear what would otherwise be a trespass would be justified or excused where the conduct was supported by another statutory provision.
The applicant argues that the correct approach to the question was first to ask whether the conduct was a manifestation of the applicant's conscience in the sense that term is used in s 46(1) of the Constitution Act. If that question is answered in the affirmative, the applicant argues there may then arise a further question as to the proportionality of the conduct. The applicant acknowledged that the law is not clear on this issue and may be unnecessary to resolve for the purposes of this review. The applicant argued that a lawful excuse provided by the freedom of conscience guarantee can extend to conduct infringing the rights of others, or conduct that would intrude upon others. In reasoning to the contrary, the magistrate erred, and that reasoning infected the rejection of the applicant's lawful excuse defence.
At the review hearing, the applicant emphasised that there was one matter animating the applicant's presence in the coupe and remaining there after being directed to leave and that was concern for the swift parrot and the destruction (whether lawful or unlawful) of its habitat. This was against a background of the applicant's long held concerns about habitat destruction and species extinction in general. It was submitted that it could be accepted the applicant was motivated to attend at the place where he thought the swift parrots were being endangered. The matters animating his presence at the coupe were evident from the footage which captured the exchange between the applicant, Mr McKenzie and the police officer. It was submitted that the beliefs animating the applicant were deeply held and durable beliefs about matters that qualify as conscience.
Of the authorities referred to by the applicant during his submissions, there were three that were the subject of particular focus. The first of those, a decision of Refshauge J in R v AM [2010] ACTSC 149, concerned a defendant charged with breaching a protection order by attending on her parents' residence in breach of that order. The defendant claimed to be permitted to defend the charges she was facing on the grounds that her actions were taken in accordance with her conscience. Section 14 of the Human Rights Act 2004 (ACT) provided that everyone has the right to freedom of thought, conscience and religion. Refshauge J considered the operation of that provision in the context of s 43 Criminal Code 2002 (ACT) which provided that a person is not criminally responsible for an offence if the conduct required for the offence is justified or excused under law. His Honour found that the alleged beliefs of AM did not meet the description of "conscientious". In addition, he concluded that the right to freedom of conscience was not a defence under the criminal law. In reaching that conclusion, he noted that the Human Rights Act did not invalidate any legislation. The decision ultimately did not expressly address how the right to freedom of conscience might feed into a lawful excuse defence, although his Honour considered that "in the event a human right of AM protected under the Human Rights Act had been breached, there may be an argument that this would provide a justification" under s 43 of the Criminal Code (ACT). It appears from the decision that he did not hear argument to that effect.
The applicant argues that AM ought not be followed in a particular respect. Following a review of cases dealing with the meaning of "conscience", Refshauge J noted at [46] "there is a strong sense that freedom of conscience, unlike freedom of religion, is limited to the beliefs and mental processes of an individual and that it does not necessarily protect any action motivated by the conscience of the person". That, the applicant, argues is a hollow guarantee as it provides no protection to a person who acts in a way consistent with their conscience.
The applicant also referred to the decision of Kyrou J in Magee v Delaney. This case concerned an appeal against conviction on charges of damaging property and of possessing materials for the purposes of damaging property. The appellant did not dispute he had painted over an advertisement in a bus shelter with paint and also possessed a bucket of paint and paintbrushes for the purpose of painting over more advertisements. He sought, however, to escape criminal liability by contending that his acts engaged the right to freedom of expression in s 15(2) of the Charter of Human Rights and Responsibilities Act (2006) (Victorian Charter) and that his exercise of that right and furtherance of his philosophical opposition to advertising constituted a "lawful excuse". Notably, s 15(3) of the Victorian Charter provides that special duties and responsibilities are attached to the right of freedom of expression and also provided that the right might be subject to lawful restrictions "reasonably necessary ... for the protection ... of ... public order ...or public morality".
The applicant relied particularly on Kyrou J's conclusion at 60 [39] that:

[168]

Not only is the law "underdeveloped" in this area, but the applicant's argument was "underdeveloped" in the court below. This aspect of the defence was described by the applicant's counsel at the hearing in the court below as "the most exotic or esoteric". While the magistrate was directed to authorities dealing with the meaning of "conscience" in what were said to be analogous contexts, the applicant provided no authorities in support of his argument that the guarantee provided a lawful excuse for the purposes of s 14B(1) of the Police Offences Act. No proportionality argument was raised.
The magistrate did not find it necessary to consider whether the applicant's conduct was an expression of his "conscience" as it is understood in the context of s 46(1) of the Constitution Act in light of her conclusion the guarantee did not provide a lawful excuse in respect of a charge pursuant to s 14B(1) of the Police Offences Act. The argument in this Court proceeded from a basis that there was no real dispute that the applicant's convictions were deeply held and durable, and capable of being described as conscientious. There is, however, authority to suggest that the meaning of "freedom of conscience" as it appears in s 46(1) is narrower than has been assumed by the parties.
In McGee v Attorney-General [1973] IESC 2; [1974] IR 284, the Irish Supreme Court was called upon to consider the identically worded s 2(1) of Article 44 of the Constitution of Ireland. The issue arose in the context of an action brought by the plaintiff seeking a declaration that a provision prohibiting the sale, or import into Ireland for sale, of any contraceptive was inconsistent with provisions of the Constitution of Ireland including s 2(1) of Article 44. The plaintiff claimed that her decision to practise contraception was in accordance with the dictates of her conscience and that the relevant provision prevented her from leading her private life in accordance with those dictates. Two of the five judges of the Supreme Court, FitzGerald CJ and Walsh J, directly considered the freedom of conscience guarantee, as did the judge at first instance, O'Keeffe P. O'Keeffe P held at 291-292 that, although the plaintiff's decision to practise contraception was "a serious and conscientious one made in the interests of her family", it did not "make the matter one of conscience" in the context of Article 44. In his view:

[181]

The decision of Walsh J in McGee was referred to by Tracey J in Corneloup v Launceston City Council [2016] FCA 974 where he dealt with an argument that the Council's prohibition of preaching in the city's malls was ultra vires the "guarantee of the free profession and practice of religion afforded by s 46" of the Constitution Act. Like Walsh J, Tracey J stated at [38] the provision prevented "coercion in relation to the practise of religion" and guaranteed "a freedom to profess and practise a person's religion of choice", but did not "confer any personal rights or freedoms on citizens". Tracey J, however, observed that no authority to which he had been referred determined the "practical effect of the 'guarantee'".
The judgment of Walsh J in McGee has more recently been referred to with approval by Goeghegan J in Murphy v Independent Radio and Television Commission [1997] IEHC 71; [1999] 1 IR 12 at [6]- [8]. In A M v Refugee Appeals Tribunal [2014] IEHC 388, McDermott J observed at [33] that freedom of individual conscience was "not recognised as a separate fundamental right under the Constitution".
While in Corneloup, Tracey J was dealing with arguments based on the practice of religion, the Irish Supreme Court in McGee was not. Section 46(1) of the Constitution Act is identical in its terms to s 2(1) of Article 44 of the Irish Constitution; the context of each of those provisions is relevantly analogous. In light of the statements in McGee, the applicant's beliefs may not be captured by the 'guarantee' as they do not concern the exercise, profession or practice of religion.
Section 46 has not been amended since the Constitution Act was enacted in 1936. It has its origins in the Roman Catholic Relief Act 1829 (Imp) (10 Geo IV c 7) which was adopted by Tasmania's colonial Legislative Council in 1830: see Mortenson_,_ "The Unfinished Experiment: A Report on Religious Freedom in Australia," (2007) 21: 1 Emory Int'l L Rev 167 at 185. Importantly, s 46 is not entrenched. Consequently, it can be amended by Tasmanian Parliament simply by passing an ordinary law amending or repealing the provision. Such a law does not even have to express an intention to amend s 46; it can do so impliedly: Hobbs and Williams, "Protecting Religious Freedom in a Human Rights Act", (2019) 93 ALJ 721 at 726; Mortensen at 185-1866. According to George Williams and David Hume, s 46 "offers no protection against an Act that properly construed infringes any of the listed rights. At best, it offers only a political impediment": Williams and Hume, Human rights under the Australian Constitution: Second Edition, Australia, 2013 at p 12.
It is well settled that while a State Constitution Act should be interpreted in accordance with the ordinary principles of statutory construction (see Cooper v Commissioner of Income Tax for the State of Queensland [1907] HCA 27; (1907) 4 CLR 1304, 1321 per O'Connor J), they should "as far as it is legitimate to do so... be interpreted by the courts in a dynamic fashion so that they remain relevant and appropriate for the changing realities, needs and aspirations of the societies whose structure and affairs they control. However, this does not give the courts any warrant to ignore clear language or to abandon the often long-accepted principles upon which they are based": Ellis v Atkinson [1998] 3 VR 175, at 177 per Vincent J. See also Herzfeld and Prince, Statutory Interpretation Principles: Second Edition, Australia 2021 at [16.20]. Nevertheless, in my view, the text, context and purpose of s 46(1), noting its origins, does not favour an interpretation of the "freedom of conscience" guarantee covering matters standing outside of the religious context for the reasons expressed by Walsh J in McGee, even acknowledging the requirement to interpret the provision in a "dynamic fashion". Interpreting "freedom of conscience" in this way means the guarantee is not, as the applicant argues, "hollow" in the sense of being limited to the beliefs and mental processes of a person as the outward manifestations of those religious beliefs and mental processes are protected by the further words of s 46(1).
In the context of human rights legislation and instruments in other jurisdictions, the notion of "freedom of conscience" has been accepted as being broader than "freedom of religion", even where those freedoms are addressed in the same provision: see discussion in AM at [30]-[45]. In that case, however, Refshauge J surveyed human rights instruments which included express rights to freedom of religion (in combination with freedom of conscience and other freedoms). It is notable that s 46(1) is not expressed in terms of guaranteeing "freedom of religion" but guarantees "freedom of conscience and the free profession and practice of religion". The latter part of that phrase is directed to the outward manifestations of religious beliefs (or conscience).
Even accepting that "freedom of conscience" is broader than "freedom of religion" and is capable of "protecting views based on strongly held moral ideas of right and wrong, not necessarily founded on any organised religious principles"[2], and that the applicant's conduct gave expression to those conscientious beliefs, in my view, the magistrate did not err in finding that the applicant's reliance on s 46(1) of the Constitution Act did not provide a lawful excuse.
The magistrate appeared to reach that view on two separate bases. First, she concluded that s 14B(1) of the Police Offences Act placed no burden on the applicant's freedom to believe deeply in environmental matters and did not restrict his freedom of conscience. Although the magistrate was not referred to McGee or the decision in Corneloup, that conclusion derives support from both of those decisions. No aspect of s 14B(1) compels or coerces the applicant into living or behaving in a way which is contrary to his conscience. Section 14B(1) and s 22(3) of the FM Act in combination do, however, control his ability to engage in conduct he says gives expression to those beliefs on PTPZ land, but only in certain circumstances. It would not limit his ability to engage in conduct to highlight his concerns about the environment and the threat to the swift parrot posed by logging elsewhere, or in a manner that did not impact the effective and efficient operations of STT in the coupe. This aspect of the magistrate's decision does not appear to be the subject of complaint in the particulars of this ground of review.
The second basis for the magistrate's rejection of the applicant's lawful excuse defence flowed from her conclusion the applicant's conduct interfered with the rights of others that are protected by s 14B(1) of the Police Offences Act. The magistrate noted the purpose of s 14B(1) was to protect owners or occupiers or persons in charge of land from entry to that land (or interference with that land by remaining on it) without their consent. Her Honour considered that freedom of conscience did not positively excuse the infringement of other's rights or their protection from intrusion which is provided by s 14B(1). It is this aspect of the reasons which is the focus of the particulars of this ground. Those particulars assert that her Honour erred in holding that "the freedom of conscience was incapable of positively excusing conduct that infringed the rights of other persons". In my view, this misconstrues the magistrate's decision. It is clear that she confined her conclusion to the rights which are sought to be protected by s 14B(1) of the Police Offences Act.
In any event, the applicant's argument is that his conviction (strictly speaking in this case, the finding of guilt) is a disproportionate response to the manifestation of his conscience by remaining in the coupe. This argument depends on acceptance that the analysis engaged in by the UK Court of Appeal in Attorney General's Reference (No 1 of 2022) applies to the application of s 46(1) in the context of a lawful excuse defence.
The issue of proportionality has been further considered by the UK Supreme Court in Abortion Services (Safe Access Zones), Reference by the Attorney General for Northern Ireland [2022] UKSC 32; [2023] AC 505. At 533-534 [54]- [58], Lord Reed, with whom Lord Kitchin, Lord Burrows, Lady Rose, Lord Lloyd-Jones, Lord Carloway, and Dame Siobhan Keegan agreed, explained the circumstances in which a proportionality assessment arises as follows:

[202]

Each of the rights in articles 9-11 of the European Convention are qualified rights. Article 9, for example, concerns freedom of thought, conscience and religion and is "subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others" (emphasis added). Similarly, the restrictions on the freedoms set out in articles 10 and 11 (freedom of expression and freedom of assembly and association respectively) incorporate a test of necessity. It is evident that the proportionality of legislated restrictions on a convention right is linked to the necessity requirement: see Lord Reed in Abortion Services (Safe Access Zones) at 548 [116] where he identified that the issue of "whether the restriction is 'necessary in a democratic society' to achieve the legitimate aims pursued" is "in other words, whether the restriction is proportionate".
There is no textual support in s 46(1) or any other provision of the Constitution Act to warrant the introduction of a proportionality assessment. In my view, the terms of s 46(1) are very different: the guarantee is "subject to public order and morality". "Subject to" is not to be equated with a concept of necessity. The text of s 46(1) clearly provides that the guarantee is conditioned by, or subordinate to, public order or morality where they are in conflict.
"Public order" is not defined in the Constitution Act. In Magee v Delaney, Kyrou J considered the meaning of the expression "protection of... public order" in the Victorian Charter. He considered at 79 [150] that the "best guide to the meaning of the expression" was the Victorian Charter itself. It was relevant that the term public order was used in conjunction with "national security", "public health" and "public morality" which "focus on the collective welfare of society rather than the rights of individuals". This was consistent with the preamble to the Victorian Charter. In light of those matters, he concluded at 79 [151] the expression:

[204]

In this case, the guarantee is contained in the Constitution Act and the meaning of the term "public order" is informed by that context. The Constitution Act itself provides few direct indicators of what is meant by the expression "public order and morality" in s 46(1). The preamble references the enactment of the Australian Constitutions Act 1850 (Imp) (13 & 14 Vic c 59) "for the purpose of securing the peace, welfare and good government" of the Colony of Van Diemen's Land and that the Constitution Act consolidates that Act and its amendments. It principally provides for the establishment of the legislative arm of government. The parliament's law-making power is still derived from the Australian Constitutions Act which authorises it to make laws for the peace, welfare and good government of the State.
Although the Constitution Act is textually distinct from the Victorian Charter, there is much to recommend Kyrou J's conception of the expression "protection of ... public order". It is clear that the term "public order and morality" in the context of legislation concerned with "peace, welfare and good government" embraces notions of "collective welfare". In my view, "subject to public order and morality" means that the guarantees provided by s 46(1) are subordinate to legislation introducing measures for peace, good order and public safety generally. The purposes of s 22 of the FM Act and s 14B(1) of the Police Offences Act are each are directed at such matters. The guarantee of freedom of conscience does not provide a lawful excuse for a breach of those provisions; rather it is subordinate to, or subject to, the restrictions imposed by those provisions on the applicant's rights to enter and remain on PTPZ land. Those restrictions directed at the protection of the rights of owners and occupiers of land to the quiet enjoyment of their land including to conduct their business without unlawful interference or compromise to the safety of those at the site.
It follows that the magistrate's conclusion that the guarantee did not excuse the infringement of others' rights or their protection from intrusion to the extent they are protected by s 14B(1) of the Police Offences Act was reasonably open on the evidence.
This ground is also not made out.