GORDON J.
Introduction
The Workplaces (Protection from Protesters) Act 2014 (Tas) ("the Protesters Act") is "[a]n Act to ensure that protesters do not damage business premises or business-related objects, or prevent, impede or obstruct the carrying out of business activities on business premises, and for related purposes".
Various provisions of the Protesters Act prohibit persons from engaging in certain conduct on business premises, or on a business access area in relation to business premises, that is conduct in furtherance of, or for the purposes of promoting awareness of or support for, an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue. Broadly stated, the prohibitions apply where the conduct prevents, hinders or obstructs business activity or access to business areas, and where the conduct damages (or involves a threat to damage) business premises or a business-related object. "[B]usiness premises" includes "forestry land" - relevantly, land on which "forest operations" are being carried out. A "business access area", in relation to business premises, relevantly means "so much of an area of land[] … that is outside the business premises, as is reasonably necessary to enable access to an entrance to, or to an exit from, the business premises".
The plaintiffs, Dr Robert Brown and Ms Jessica Hoyt, were each arrested and charged with offences under the Protesters Act in relation to their conduct in opposing the logging of part of a coupe in the Lapoinya Forest in North West Tasmania. While forest operations were being conducted, neither plaintiff was permitted or authorised to re-enter the coupe or the Lapoinya Forest. And it was not in dispute that, but for the Protesters Act, and to the extent permitted by other laws, the plaintiffs would go back to the Lapoinya Forest to see, and raise public awareness of, logging in that forest.
The plaintiffs challenge the validity of ss 6, 7, 8, 11 and 13(3) and Pt 4 of the Protesters Act on the basis that those provisions are beyond the legislative power of the State of Tasmania because they impermissibly infringe the implied freedom of political communication, contrary to the Commonwealth Constitution.
Validity
In its operation in relation to forestry land, each impugned provision, other than s 8(1)(b) of the Protesters Act, burdens the implied freedom and is valid. With the exception of s 8(1)(b), each impugned provision is directed to serve a legitimate end (to protect the productivity, property and personnel of forest operations), and the means adopted to achieve that end (penalising conduct that would prevent, hinder or obstruct the carrying out of a business activity or access to business premises, or cause damage to business premises, and that would, so far as revealed in argument in this case, otherwise be unlawful) are not incompatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
Six basic propositions
First, apart from s 8(1)(b), none of the impugned provisions makes unlawful what would otherwise be lawful. That is, the impugned provisions create and enforce rules of conduct that overlap with existing laws that prohibit the same conduct. To that extent, there is little or no change in what people may do. The impugned provisions prohibit particular methods of political communication: methods that, these reasons will show, are for all practical purposes otherwise unlawful. To hold the impugned provisions invalid would be to ignore the wider legal context in which the impugned provisions have their legal effect and practical operation.
Second, identifying that the impugned provisions are directed at protesters or that what was otherwise unlawful has been made the subject of criminal sanction or increased penalties presents the question about the limitations that the implied freedom imposes on legislative power - it does not provide the answer. The impugned provisions are directed, and apply, to unlawful forms of protest - protest by methods that are contrary to otherwise generally applicable laws.
Third, it is no answer to these observations to say that the impugned provisions are complicated or drafted in a way that may initially leave a person unsure of their effect. A fundamental assumption of the Australian legal system is that statutes have a definite legal meaning. Australia knows no doctrine of statutory uncertainty.
Fourth, the critical starting point is the legal effect and practical operation of the impugned provisions. That inquiry involves questions of statutory construction. The "deterrent effect" of the provisions, if relevant at all, is to be measured only by reference to the legal effect and practical operation of those provisions, not by reference to whether persons may choose through caution or ignorance to give the provisions an effect or operation wider than they permit, or by reference to an anticipation of some unlawful exercise of the powers conferred by those provisions. That is, the relevant practical operation of the provisions is the practical operation they have when applied according to their proper construction, not some operation hypothesised on there being some misapplication or misconstruction of the provisions or any one of them.
Fifth, the purpose and the legal effect and practical operation of the impugned provisions of the Protesters Act can properly be determined only by detailed reference to the impugned provisions. Further, as will later be explained, the intersection between the impugned provisions and the wider legal context in which the impugned provisions have their legal effect and practical operation can only be assessed after a detailed consideration of both the provisions and the context.
Sixth, to observe that there have been past political protests on Crown land in Tasmania serves only to identify the kind of conduct to which the impugned provisions (and much of the wider legal context) are directed. It cannot be assumed, without positive demonstration, that these protests were lawful. And if they were not lawful, the fact that they took place does not give rise to something resembling a right, acquired by prescription, to protest unlawfully.
Exception
There is one exception to the conclusion that the impugned provisions are valid in their operation in relation to forestry land: s 8(1)(b), which provides for a blanket four day exclusion from a business access area, regardless of whether the person might engage in conduct of a particular kind in that area. It impermissibly burdens the implied freedom of political communication, contrary to the Constitution. It goes beyond penalising what was unlawful before the enactment of the relevant provisions. And the resulting burden on political communication goes beyond what is reasonably appropriate and adapted to serve the legitimate object of the Protesters Act.
Structure of reasons
These reasons are structured as follows:
(1) the implied freedom of political communication;
(2) the Protesters Act, including its legal effect and practical operation;
(3) the wider legal framework in which the Protesters Act, in its operation in relation to forestry land, sits and operates;
(4) the constitutional validity of the impugned provisions; and
(5) whether McCloy v New South Wales should be reopened.
The facts are set out in the reasons of Kiefel CJ, Bell and Keane JJ. I gratefully adopt that summary.
Implied freedom of political communication
Freedom of communication on matters of government and politics is an indispensable incident of the system of representative and responsible government which the Constitution creates and requires. The freedom is implied because ss 7, 24 and 128 of the Constitution (with Ch II, including ss 62 and 64) create a system of representative and responsible government. It is an indispensable incident of that system because that system requires that electors be able to exercise a free and informed choice when choosing their representatives, and, for them to be able to do so, there must be a free flow of political communication within the federation. For that choice to be exercised effectively, the free flow of political communication must be between electors and representatives and "between all persons, groups and other bodies in the community".
The implied freedom operates as a constraint on legislative and executive power. It is a freedom from government action, not a grant of individual rights. The freedom that the Constitution protects is not absolute. The limit on legislative and executive power is not absolute. The implied freedom does not protect all forms of political communication at all times and in all circumstances. And the freedom is not freedom from all regulation or restraint. Because the freedom exists only as an incident of the system of representative and responsible government provided for by the Constitution, the freedom limits legislative and executive power only to the extent necessary for the effective operation of that system.
Further, the implied freedom operates on the common law. The common law, as an organic, developing body of substantive law, must be consistent with, and develop consistently with, the Constitution.
In determining whether a law impermissibly burdens the implied freedom, two questions must be answered.
First question
The first question asks: does the law effectively burden the freedom of communication about government or political matters either in its terms, operation or effect? Answering that question necessarily involves construing the law. That task is not a matter of evidence. It is a qualitative, not a quantitative, inquiry. And because of the integration of social, economic and political matters across federal, State and local politics, the freedom of political communication may be burdened by a State law.
Second question
The second question asks: if the law effectively burdens the freedom, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
There are two conditions that must be satisfied before the second question can be answered affirmatively.
(a) Legitimate end
The first condition is that there be an identifiable "legitimate end". The identification of a legitimate end is necessary to explain why the burden is imposed.
The "end" is the object or purpose of the law. That object or purpose must be "legitimate". To be legitimate, the end "must itself be compatible with the system of representative and responsible government established by the Constitution". But that does not mean that the end must itself be the maintenance or enhancement of that system.
Laws may, and often do, pursue objects unrelated to the system of representative and responsible government. It is therefore unnecessary, and often unhelpful, to identify a relationship between the object of the law and the maintenance of the system of representative and responsible government established by the Constitution. The question is whether the object of the law (whatever it is ascertained to be), and the means of achieving that object, are not incompatible with the maintenance of the system of representative and responsible government established by the Constitution. Identifying the object or purpose of the law is similar to identifying the "mischief" that the law is designed to address. The object or purpose will be disclosed by the text, the context and, if relevant, the history of the law.
Care must be taken not to identify the object or purpose of the law too narrowly. To do so would have flow‑on consequences for "the scope, utility and transparency" of the subsequent reasonably appropriate and adapted analysis, such that the reasoning process that might otherwise be undertaken at that later stage "is disguised in conclusions about statutory purposes". The two steps would "collapse into one". In other words, it is important to separate the means adopted by a law from the end that it is designed to pursue. As Gageler J explained in Tajjour v New South Wales:
"Means which come at too great a cost to the system of representative and responsible government established by the Constitution must be abandoned or refined. Means which are overbroad may need to be narrowed. This consequence of the implied freedom cannot be avoided by an analysis which seeks to circumvent its application by characterising means adopted by the law which burden communication on governmental or political matter as the end the law pursues."
In assessing this first condition, it is also relevant to determine whether the legal operation of the law is rationally connected to the end that it purportedly serves. If that connection is lacking, then the law will be invalid. If the law is not rationally connected to the identified legitimate end, then the burden imposed by the law will be inexplicable.
(b) Reasonably appropriate and adapted
The second condition is that the law be reasonably appropriate and adapted to serve the identified legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. If this condition is not satisfied, then the burden imposed by the law will not be justified.
In addressing this condition, the nature and the extent of the burden are relevant. Those considerations are relevant because they directly affect whether the law is reasonably appropriate and adapted to serve the identified end. Where, as here, the conduct that is burdened is otherwise not lawful conduct, then the required justification is less and the operation of the law is more readily justified.
The Protesters Act
As has already been said, it is necessary to give a detailed description of, and to construe, the relevant provisions of the Protesters Act. They are complicated both in their terms and in the way in which each provision operates in relation to other relevant legislation.
Key concepts and definitions
As seen earlier, the long title of the Protesters Act is: "An Act to ensure that protesters do not damage business premises or business-related objects, or prevent, impede or obstruct the carrying out of business activities on business premises, and for related purposes" (emphasis added).
Section 4(1) provides that, for the purposes of the Protesters Act, "a person is a protester if the person is engaging in a protest activity". Section 4(2) identifies what is "a protest activity" by providing that:
"For the purposes of this Act, a protest activity is an activity that -
(a) takes place on business premises or a business access area in relation to business premises; and
(b) is -
(i) in furtherance of; or
(ii) for the purposes of promoting awareness of or support for -
an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue." (emphasis added)
The balance of s 4 sets out circumstances in which a person is engaging in a protest activity or is not to be taken to be engaging in a protest activity.
The concept of "business premises" lies at the heart of the applicability and operation of the Protesters Act. Relevantly, it includes premises that are "forestry land", being an area of land on which "forest operations" are being carried out. "[F]orest operations" relevantly means "work comprised of, or connected with … harvesting, extracting or quarrying forest products", including "any related land clearing, land preparation, burning-off or access construction". But business premises are not limited to, or by reference to, specific industries; for example, "premises used as a shop, market or warehouse" are also business premises.
Another important and related concept is "business access area". A business access area, in relation to business premises, relevantly means "so much of an area of land[] … that is outside the business premises, as is reasonably necessary to enable access to an entrance to, or to an exit from, the business premises".
"[B]usiness activity" is defined to include a lawful activity carried out by a Government Business Enterprise, including Forestry Tasmania. Where the "business premises" comprise, as they did here, Crown land that is permanent timber production zone land within the meaning of the Forest Management Act 2013 (Tas), the Forestry corporation (namely, Forestry Tasmania) is defined as "owner". Here, in relation to those business premises, Forestry Tasmania is also a "business operator" on two separate bases: first, because it is "an owner, … or lawful occupier, of the premises"; and second, because it is "a government entity[] ... that has management or control of the premises". Because Forestry Tasmania is a business operator in relation to those business premises, it is also a "business occupier" in relation to the business premises.
The balance of the Protesters Act operates primarily by reference to those definitions. It is necessary to consider the impugned provisions in Pts 2, 3 and 4 separately. Those Parts deal with the protection of business from protesters, police powers and court proceedings respectively.
Part 2 - Protection of Business from Protesters (ss 6 to 9)
The plaintiffs challenged the validity of s 6 ("Protesters not to invade or hinder businesses, &c"), s 7 ("Protesters not to cause or threaten damage or risk to safety") and s 8 ("Persons must, at direction of police officer, leave and stay away from business access areas").
Section 6 places three distinct prohibitions on protesters. But it is not an offence to contravene any one of these prohibitions. The relevant offence (described later) depends on disobedience of a direction (in effect) to comply with the prohibition. The first two prohibitions are concerned with a protester engaging in certain conduct that "prevents, hinders or obstructs the carrying out of a business activity on [business premises] by a business occupier". The phrase "prevents, hinders or obstructs" is not defined.
The first prohibition concerns entry into business premises. Section 6(1) provides:
"A protester must not enter business premises, or a part of business premises, if -
(a) entering the business premises or the part, or remaining on the premises or part after entry, prevents, hinders or obstructs the carrying out of a business activity on the premises by a business occupier in relation to the premises; and
(b) the protester knows, or ought reasonably to be expected to know, that his or her entry or remaining is likely to prevent, hinder or obstruct the carrying out of a business activity on the premises by a business occupier in relation to the premises." (emphasis added)
The second prohibition concerns an act done on business premises or on a business access area in relation to business premises. Section 6(2) provides:
"A protester must not do an act on business premises, or on a business access area in relation to business premises, if -
(a) the act prevents, hinders or obstructs the carrying out of a business activity on the premises by a business occupier in relation to the premises; and
(b) the protester knows, or ought reasonably to be expected to know, that the act is likely to prevent, hinder or obstruct the carrying out of a business activity on the premises by a business occupier in relation to the premises." (emphasis added)
The third prohibition concerns a protester doing an act that prevents, hinders or obstructs access to business premises. Section 6(3) provides:
"A protester must not do an act that prevents, hinders, or obstructs access, by a business occupier in relation to the premises, to an entrance to, or to an exit from -
(a) business premises; or
(b) a business access area in relation to business premises -
if the protester knows, or ought reasonably to be expected to know, that the act is likely to prevent, hinder or obstruct such access." (emphasis added)
Section 7 also contains three prohibitions. Unlike the prohibitions contained in s 6(1), (2) and (3), contravention of any one of the prohibitions in s 7 is a criminal offence.
The first two prohibitions are contained in sub‑ss (1) and (2) of s 7, which are concerned respectively with protesters doing an act that causes damage to business premises or to a business‑related object:
"(1) A protester must not do an act that causes damage to business premises if the protester knows, or ought reasonably to be expected to know, that the act is likely to cause damage to the business premises.
…
(2) A protester must not do an act that causes damage to a business‑related object that -
(a) is on business premises; or
(b) is on a business access area in relation to business premises and is being taken to or from the business premises -
if the protester knows, or ought reasonably to be expected to know, that the act is likely to cause damage to such a business-related object."
A "business-related object", in relation to business premises, means "an object that belongs to, is in the possession of, or is to be used by, a business occupier in relation to the business premises". An act causes damage to business premises, or to a business-related object, if, as a consequence of the performance of the act, the use of any business-related object by a business occupier in relation to the premises causes, or would be likely to cause, damage to the business premises, the object or any other business-related object, or cause a risk to the safety of a business occupier in relation to the business premises. It is a defence to an offence against s 7(1) and (2) if the defendant proves that he or she had a lawful excuse for committing the offence.
The third prohibition, in sub-s (3) of s 7, must be read with sub‑s (4) of s 7. Sub‑sections (3) and (4) of s 7 are not concerned directly with "protesters". Those sub-sections make it an offence for a "person" to "issue a threat of damage in relation to business premises" in furtherance of, or for the purposes of promoting awareness of or support for, "an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue". They provide:
"(3) A person must not issue a threat of damage in relation to business premises -
(a) in furtherance of; or
(b) for the purposes of promoting awareness of or support for -
an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue.
…
(4) For the purposes of subsection (3), a threat of damage in relation to business premises is a threat to the effect that -
(a) damage to a business-related object that is on business premises has been, is being, or is to be, caused by a person; or
(b) damage to a business-related object that -
(i) is on a business access area in relation to business premises; and
(ii) is being taken to or from the business premises -
has been, is being, or is to be, caused by a person; or
(c) the use of a business-related object that is on business premises has been, is being, or is to be, prevented, hindered or obstructed by a person; or
(d) the use of a business-related object that -
(i) is on a business access area in relation to business premises; and
(ii) is being taken to or from the business premises -
has been, is being, or is to be, prevented, hindered or obstructed by a person; or
(e) a risk to -
(i) the safety on business premises; or
(ii) the safety on a business access area in relation to business premises -
of a business occupier in relation to the premises has been, is being, or is to be, caused by a person."
The penalty under s 7(1), (2) and (3) is, in the case of a body corporate, a fine not exceeding $250,000 and, for an individual, a fine not exceeding $50,000 or imprisonment for a term not exceeding five years, or both.
It will be necessary to return to s 8. Section 9, which provides that a person must not prevent, hinder or obstruct a police officer from removing obstructions, is not challenged by the plaintiffs.
Part 3 - Police Powers (ss 10 to 15)
Part 3, headed "Police Powers", confers several powers on police that are enlivened by reference to the prohibitions contained in Pt 2. Section 11, headed "Police officer may direct person to leave business premises or business access area", was purportedly relied on by the police in respect of each plaintiff.
Sub‑sections (1) and (2) of s 11 each confer a power on police to give certain directions to persons in certain circumstances. In each case, the power may be enlivened by reference to the prohibitions contained in s 6 and the offences created by s 7. Sections 11(1) and 11(2) provide:
"(1) A police officer may direct a person who is on business premises to leave the premises without delay, if the police officer reasonably believes that the person has committed, is committing, or is about to commit, an offence, against a provision of this Act, or a contravention of section 6(1), (2) or (3), on or in relation to -
(a) the business premises; or
(b) a business access area in relation to the business premises.
(2) A police officer may direct a person who is in a business access area in relation to business premises to leave the business access area without delay, if the police officer reasonably believes that the person has committed, is committing, or is about to commit, an offence, against a provision of this Act, or a contravention of section 6(1), (2) or (3), on or in relation to -
(a) the business premises; or
(b) a business access area in relation to the business premises." (emphasis added)
Sub-sections (7) and (8) of s 11, which concern directions to a group of persons, provide:
"(7) A direction may be issued under this section to a person or to a group of persons.
(8) If a direction is issued under this section to a group of persons, the direction is to be taken to have been issued to each person -
(a) who is a member of the group to whom the direction is issued; and
(b) who ought reasonably to be expected to have heard the direction."
Pursuant to s 11(6), a direction issued under s 11 "may include a requirement that the person must not, in the period of 3 months after the date on which the direction is issued", either commit an offence against a provision of the Protesters Act or contravene s 6(1), (2) or (3). Section 6(4) makes it an offence to contravene such a requirement. One of the plaintiffs, Ms Hoyt, was charged with an offence against s 6(4).
Failure to comply with a direction given under s 11 may constitute an offence against s 8, contained in Pt 2. Section 8 is titled "Persons must, at direction of police officer, leave and stay away from business access areas" and s 8(1) relevantly provides:
"A person must not -
(a) remain on a business access area in relation to business premises after having been directed by a police officer under section 11 to leave the business access area; or
(b) enter a business access area in relation to business premises within 4 days after having been directed by a police officer under section 11 to leave -
(i) the business premises; or
(ii) a business access area in relation to the business premises."
It is a defence to an offence against s 8(1) if the defendant proves that he or she had a lawful excuse for committing the offence. The penalty, in the case of a body corporate, is a fine not exceeding $100,000 and, for an individual, a fine not exceeding $10,000. Each plaintiff was charged with, or received an infringement notice for committing, an offence against s 8(1).
Under s 13(3), a police officer also has the power to remove a person from business premises, or a business access area in relation to business premises, if the police officer reasonably believes that the person is committing, or has committed, an offence against a provision of the Protesters Act, or a contravention of s 6(1), (2) or (3), on or in relation to the business premises or a business access area in relation to the business premises.
Part 4 - Court Proceedings (ss 16 to 18)
The plaintiffs also challenged the validity of Pt 4. Relevantly, it provides that the relevant offences are indictable but, with the consent of the prosecutor, can be heard and determined summarily. Section 16(3) prescribes the maximum fine that may be imposed if an offence is dealt with summarily.
In relation to convictions of an offence under s 6(4), s 17 provides that if a court convicts a body corporate, the court may impose a fine not exceeding $100,000. If the court convicts an individual, the court may impose a fine not exceeding $10,000 for a first offence and, in respect of a further offence, a fine not exceeding $10,000 or imprisonment for a term not exceeding four years, or both.
Section 18 empowers a court to order a person convicted of an offence against s 6 or s 7 to pay to a business operator the cost of repairing the damage to business premises and the cost of repairing the damage to, or restoring or replacing, a business-related object. Sub-sections (5) and (6) of s 18 empower a court to order a person convicted of an offence against s 6 to pay to the Crown the removal and repair costs in relation to an object that has been used, or an act that has been done, as part of the offence. Section 18(8) empowers a court to order a person convicted of an offence against s 6 or s 7 in relation to business premises or a business access area in relation to business premises to pay to a business operator the amount of financial loss suffered by that operator as "the natural, direct and reasonable consequence of the offence".
Legal effect and practical operation of the Protesters Act
What are the legal effect and practical operation of the Protesters Act?
First, s 6(1), (2) and (3) and s 7(1) and (2) of the Protesters Act proscribe particular conduct on the part of persons engaging in a "protest activity". But for a person to be engaging in a "protest activity" within the meaning of the Protesters Act, the activity must take place on business premises or a business access area in relation to business premises. As a result, a person does not contravene s 6(1), (2) or (3) or s 7(1) or (2) of the Protesters Act unless they are on or in such an area. And even if a person is on or in such an area, that person will not be taken to be engaging in a "protest activity" if they have the consent, whether express or implied, of a business occupier in relation to the business premises to be there and to engage in that activity.
Second, the prohibitions in s 6(1), (2) and (3) apply to conduct that "prevents, hinders or obstructs" particular activity on, or access to, business premises. The words "prevents, hinders or obstructs" are not defined. It is neither possible nor appropriate to define the outer limits of those words. However, as a matter of construction, those words - understood in their ordinary sense and in light of well‑established interpretive principles - do not refer to any conduct that might affect business activity or access in any way or to any extent, however trivial. That would be at odds with the nature and degree of the interference that each of those words naturally connotes. The words are limited in scope. As will be later explained, a consequence of those limits is that the words "prevents, hinders or obstructs" capture only what is otherwise unlawful.
Third, as the preceding analysis demonstrates, as a matter of statutory construction, the offences in ss 6(4) and 8(1) can only be committed after a police officer has given a valid direction under s 11. And an officer may only give such a direction to a person who is on business premises, or in a business access area. No valid direction can be given to a person who is not on, or in, one of those areas. Further, a police officer may only give such a direction if he or she has reasonable grounds to believe that a person has committed, is committing, or is about to commit, an offence against a provision of the Protesters Act, or a contravention of s 6(1), (2) or (3) of the Protesters Act, on or in relation to the business premises or a business access area in relation to the business premises. There may be cases where that power is said to be exercised unlawfully. Those questions are not answered by reference to the implied freedom. They are questions about construction and application. So much was made clear by the plurality in Wotton v Queensland:
"(i) where a putative burden on political communication has its source in statute, the issue presented is one of a limitation upon legislative power; (ii) whether a particular application of the statute, by the exercise or refusal to exercise a power or discretion conferred by the statute, is valid is not a question of constitutional law; (iii) rather, the question is whether the repository of the power has complied with the statutory limits; (iv) if, on its proper construction, the statute complies with the constitutional limitation, without any need to read it down to save its validity, any complaint respecting the exercise of power thereunder in a given case … does not raise a constitutional question, as distinct from a question of the exercise of statutory power."
Wider legal framework
The Protesters Act, in its legal effect and practical operation in relation to forestry land, sits alongside, and operates in conjunction with, a wider legal framework that cannot be ignored or dismissed as irrelevant to the application of the impugned provisions. That wider legal framework includes, but is not limited to, the Forest Management Act, the Forest Practices Act 1985 (Tas), the Criminal Code (Tas), the Police Offences Act 1935 (Tas) and the common law. An examination of that wider legal framework demonstrates that the conduct that is addressed by the impugned provisions was and remains substantially unlawful conduct. None of the laws constituting this wider legal framework was challenged as being an impermissible burden on the implied freedom. That framework was and remains a constitutionally valid baseline.
(1) The Forest Management Act
Under the Forest Management Act, Forestry Tasmania, as the Forest Manager, has functions to "manage and control all permanent timber production zone land" and to "undertake forest operations on permanent timber production zone land for the purpose of selling forest products".
Forestry Tasmania is a body corporate and may sue and be sued in its corporate name. It has such powers as are necessary to enable it to perform its functions. It also has powers as a Government Business Enterprise, including the power to acquire, hold, dispose of and otherwise deal with property. As the Forest Manager, Forestry Tasmania may also "construct and maintain forest roads, works and other facilities" in permanent timber production zone land or "for access to" permanent timber production zone land.
It is therefore necessary to consider what are "permanent timber production zone land", "forest operations" and a "forest road" under the Forest Management Act. "[P]ermanent timber production zone land" is, relevantly, Crown land declared to be permanent timber production zone land pursuant to s 10 of the Forest Management Act. Such land remains Crown land but is not subject to the Crown Lands Act 1976 (Tas).
"[F]orest operations" is defined in the Forest Management Act to mean:
"work connected with -
(a) seeding and planting trees; or
(b) managing trees before they are harvested; or
(c) harvesting, extracting or quarrying forest products -
and includes any related land clearing, land preparation, burning‑off or access construction". (emphasis added)
The phrase has substantially the same meaning in the Protesters Act. The nature, extent and timing of forest operations on particular permanent timber production zone land will be set out in a forest practices plan certified by the Forest Practices Authority under the Forest Practices Act. A certified forest practices plan contains, among other things, specifications of the forest practices to be carried out on the land in connection with the harvesting of timber or the clearing of trees. A certified forest practices plan authorises the specified forest practices and associated operations.
Under the Forest Management Act, a "forest road" relevantly means:
"(a) any road constructed or maintained by or for the Forest Manager either inside or outside permanent timber production zone land; or
…
(c) any other road that is -
(i) on Crown land; and
(ii) being managed by a person for the purpose of timber production …" (emphasis added)
The forest practices plan will identify the nature, extent and timing of work to be done in relation to a forest road for the purposes of forest operations.
The Forest Manager must perform its functions and exercise its powers "so as to allow access to permanent timber production zone land for such purposes as are not incompatible with the management of permanent timber production zone land" under the Forest Management Act (emphasis added). Far from assuming that the public has general access to forestry land, the Forest Management Act takes as its premise, and emphasises, that Forestry Tasmania controls access to the land it manages.
According to Forestry Tasmania's Forest Management Plan of January 2016, "[a]ctivities that are compatible with Forestry Tasmania's strategic objectives may be undertaken on [permanent timber production zone land]" and include the use of dedicated recreation sites, organised events, recreational vehicle use, hunting and firearm use, fossicking and prospecting, firewood collection, the exercise of Indigenous use rights, and commercial or private access in the exercise of property rights or for beekeeping, mineral exploration and mining and tourism.
The Forest Management Act goes on to state that the access requirement does not prevent the Forest Manager from exercising its powers under ss 21, 22 and 23 of the Forest Management Act.
Under s 21(1), the Forest Manager may erect signs on or in respect of forest roads or on permanent timber production zone land "for the purposes of discharging its responsibilities or in the interests of safety". And it was common ground that, having regard to the use of heavy machinery in conducting forest operations in issue in this matter, Forestry Tasmania was under a duty of care and had statutory duties and obligations under the Work Health and Safety Act 2012 (Tas) to ensure, so far as was reasonably practicable, that the health and safety of persons was not put at risk from work carried out as part of the conduct of its business or undertaking. Forestry Tasmania, as the person with management or control of a workplace, had like duties to ensure, so far as was reasonably practicable, that the workplace, the means of entering and exiting the workplace and anything arising from the workplace were without risks to the health and safety of any person. Forestry Tasmania, as the person with management or control of plant at a workplace, had like duties to ensure, so far as reasonably practicable, that the plant was without risks to the health and safety of any person. Finally, Forestry Tasmania had like duties to take reasonable care that its acts or omissions did not adversely affect the health and safety of other persons and a tortious duty to take reasonable care not to expose persons to risk of harm at its workplace.
Under s 21(3) of the Forest Management Act, a person "must not, without lawful excuse, undertake an activity or engage in conduct on a forest road or other land in permanent timber production zone land contrary to the directions of the Forest Manager expressed on a sign authorised by the Forest Manager". In other words, for the purposes of discharging its responsibilities or in the interests of safety, the Forest Manager has the ability, by direction, to control the activities and conduct of persons on forest roads and other land in permanent timber production zone land. And if a person contravenes s 21(3), the penalty is a fine not exceeding 20 penalty units.
In addition, a police officer who reasonably considers that a person is offending against s 21(3) may direct that person to leave the forest road or other land in permanent timber production zone land and a person given such a direction by a police officer must comply with that direction. If a person fails to comply with that direction, it is an offence and the police officer may arrest that person, without warrant.
Under s 22(3), the Forest Manager may also, through an authorised officer, request a person:
"(a) not to enter permanent timber production zone land or a forest road; or
(b) to leave permanent timber production zone land or a forest road; or
(c) to cease to undertake an activity conducted, or to cease to engage in conduct, on that land or road -
if the authorised officer is of the opinion that the entry or presence of that person, or the activity conducted, or the conduct engaged in, by that person on the land or road is preventing, has prevented or is about to prevent the Forest Manager from effectively or efficiently performing its functions." (emphasis added)
The Forest Manager's functions are primarily concerned with forest operations, which include work connected with harvesting, extracting or quarrying forest products as well as any related land clearing, land preparation, burning‑off or access construction.
In addition, under s 22(4), the Forest Manager may also, through an authorised officer, prohibit a person from entering, or remaining in, an area of permanent timber production zone land in certain circumstances, including in the interests of a person's safety. If a person fails to comply with a request under s 22(3) or (4), they are guilty of an offence.
Further, s 22(6) provides that "[a] person must not, without lawful excuse, undertake an activity or engage in conduct on permanent timber production zone land or a forest road contrary to the directions of a police officer". A person who fails to comply with such directions is guilty of an offence and may be arrested without warrant. Of course, the exercise of that power is not at large. The exercise is informed and constrained by the subject matter, scope and purpose of the Forest Management Act - an Act to provide for the management of permanent timber production zone land, which includes forest operations.
Under s 23(2), the Forest Manager may also close a forest road or a section of forest road either permanently or temporarily to all traffic, or to a class of traffic, if the Forest Manager considers that the closure is necessary or expedient for the purposes of discharging its responsibilities or in the interests of safety. And if a forest road or a section of forest road has been closed, a person must not drive or use a vehicle on it, or be on or otherwise use it. If a person contravenes those prohibitions, they are guilty of an offence.
The position that prevailed prior to the enactment of the Protesters Act may relevantly be summarised as one where Forestry Tasmania (as the Forest Manager), having possession of permanent timber production zone land, was required to carry out forest operations on that land consistently with the certified forest practices plan and, while doing so:
(1) was obliged to perform its functions and exercise its powers so as to allow access to that land for such purposes as were not incompatible with the forest operations on that land specified in the certified forest practices plan;
(2) could erect a sign on or in respect of a forest road or on permanent timber production zone land which contained directions that could restrict a person's activities or conduct;
(3) could request a person not to enter the land or forest road, to leave the land or road, or to cease to undertake an activity conducted, or to cease to engage in conduct, on that land or road, if an authorised officer was of the opinion that the entry or presence of that person on the land (not just where the forest operations were being conducted) or road, or the activity conducted or the conduct engaged in by that person on the land or road, "is preventing, has prevented or is about to prevent the Forest Manager from effectively or efficiently performing its functions" (emphasis added);
(4) could, through an authorised officer, prevent a person from entering, or remaining in, an area of permanent timber production zone land (not just where the forest operations were being conducted), "in the interests of a person's safety"; and
(5) could close a forest road or any section of forest road permanently or temporarily to all traffic or to a class of traffic if the closure was considered necessary or expedient for the purposes of discharging the Forest Manager's responsibilities or in the interests of safety.
The third matter - the power to make requests under s 22(3) - is instructive. A person who failed to comply with a request was guilty of an offence. The power in s 22(3), the evident purpose of which was to allow the Forest Manager to "effectively [and] efficiently perform[] its functions", would extend to preventing conduct that "prevents, hinders or obstructs the carrying out of a business activity" on the land.
At the same time, under s 22(6), a police officer could give directions that a person must not undertake an activity or engage in conduct on permanent timber production zone land or a forest road. And if, contrary to such directions, a person had undertaken an activity or engaged in conduct without lawful excuse, the police officer could arrest that person for failing to comply with a direction.
Police officers had other powers. A police officer who reasonably considered that a person, without lawful excuse, was undertaking an activity or engaging in conduct contrary to the directions on a sign authorised by the Forest Manager could direct that person to leave the forest road or the land and, if that person failed to comply with that direction, could arrest that person.
(2) Criminal law
It is next necessary to notice a number of relevant and generally applicable provisions of the criminal law of Tasmania including, in particular, those provisions of the Criminal Code and the Police Offences Act that create offences for:
(1) unlawfully destroying or injuring property;
(2) unlawful entry on any land, building, structure or premises;
(3) committing a common nuisance which endangers the lives, safety, or health of the public, or which occasions injury to the person of any individual;
(4) causing public annoyance in a public place, including: behaving in a violent, riotous, offensive, or indecent manner; disturbing the public peace; engaging in disorderly conduct; jostling, insulting, or annoying any person; and committing any nuisance;
(5) failing to comply with a direction given by a police officer to leave a public place and not return for a specified period of not less than four hours if the police officer believes on reasonable grounds that the person: has committed or is likely to commit an offence; or is obstructing or is likely to obstruct the movement of pedestrians or vehicles; or is endangering or likely to endanger the safety of any other person; or has committed or is likely to commit a breach of the peace; and
(6) organising or conducting various activities, including a demonstration or a procession, on a public street without a permit.
Under the Police Offences Act, police officers are given powers of arrest without warrant where a person is found offending against various provisions, including those described in points (4) and (5) above.
Although that list is necessarily incomplete, these provisions and powers demonstrate that the implied freedom, as a restriction on legislative power, does not protect all forms of communication at all times and in all circumstances. They illustrate that the freedom is not an absolute freedom from all regulation or restraint. They illustrate that some regulation is often necessary and beneficial for an end that is not the maintenance or enhancement of the constitutionally prescribed system of representative and responsible government but, at the same time, is not incompatible with the maintenance of that system.
(3) The common law and the implied freedom
The legal effect and practical operation of the impugned provisions must also be assessed against the background provided by the established principles of the common law, especially the law relating to trespass and nuisance.
The law of trespass and nuisance must exist and develop in accordance with the implied freedom of political communication because the common law, as an organic, developing body of substantive law, must be consistent with, and develop consistently with, the Constitution. No party or intervener suggested that the law of trespass and nuisance is inconsistent with the implied freedom. More particularly, the implied freedom does not permit, and is not to be understood as permitting, persons to trespass upon the land of others only because the person entering the land wishes to make some political point or statement. The rights of the public to enter upon and use Crown land will inevitably turn on the proper construction of the particular statutory regime for Crown land in each State and Territory.
Here, the coupe in the Lapoinya Forest was and remains Crown land. That Crown land was not reserved for any public purpose. It was permanent timber production zone land within the meaning of the Forest Management Act.
What rights of action would Forestry Tasmania have at common law?
In an action for trespass to land, there must be direct interference, either intentional or negligent, with possession of the land without the plaintiff's consent or without other lawful authority. The gist of the action is interference with possession. The right of possession of a freeholder (or a lessee) is sufficient, but is not necessary, to found an action in trespass. Actual possession of land (as distinct from mere occupation in the sense of physical presence or use and enjoyment) constitutes prima facie evidence of seisin in fee and is therefore sufficient to found a right of action in trespass against any person who is unable to show a better title: for instance, a defendant having no right of possession of their own.
Under the Forest Management Act, Forestry Tasmania had control over entry to the coupe sufficient for it to be in possession of the coupe and, in particular, the business premises on which it was conducting forest operations. It would have a right of action in trespass against any person whose conduct unlawfully interfered with that possession. That would capture conduct on those business premises that prevents, hinders or obstructs business activity or damages business premises.
An action for private nuisance may give a remedy to an occupier of land for certain interferences with the occupier's use or enjoyment of the land. The plaintiff must have a right over or an interest in the land that has been affected by the nuisance of which complaint is made. The plaintiff must be more than a mere licensee or a person merely present on the land. For example, the plaintiff may have a right over the land as "owner or reversioner, or be in exclusive possession or occupation of [the land] as tenant or under a licence to occupy". There must be a material interference, beyond what is reasonable in the circumstances, with the plaintiff's use or enjoyment of the land or of the plaintiff's interest in the land. The effect of the interference on that interest in land then provides a measure of damages regardless of whether the nuisance was by encroachment, direct physical injury or interference with the quiet enjoyment of the land. Again, in relation to its use and enjoyment of land on which it conducts forest operations, Forestry Tasmania would have a right of action in nuisance to deal with persons whose conduct on business premises prevents, hinders or obstructs - interferes with - that business activity.
A forest road outside the permanent timber production zone land may not attract the same rights of possession. On the other hand, depending on the nature, place and effect of a person's conduct within and outside the permanent timber production zone land, an action in nuisance may be available. At common law, picketing is not necessarily a nuisance and unlawful unless it becomes obstruction and besetting. So, for example, picketing outside a person's business premises which disrupts the operation of or supplies to that business, in order to compel the business operator to do or not to do what is lawful for that business operator not to do or to do respectively, would support an action for nuisance at common law. Again, in relation to its use and enjoyment of land on which it conducts forest operations, Forestry Tasmania would have a right of action in nuisance at common law to deal with persons whose picketing outside its business premises disrupted the operation of or supplies to those business premises in order to compel Forestry Tasmania not to do what is lawful - conduct forest operations.
Because Forestry Tasmania could bring an action for trespass or nuisance, it could sue for damages and, importantly, could seek an injunction to restrain threatened trespass or nuisance. If it obtained an order, breach of that order would attract serious penal consequences including, in an appropriate case, imprisonment.
In that context, it is useful to refer to Grocon v Construction, Forestry, Mining and Energy Union, a decision of the Supreme Court of Victoria. Three companies, part of a larger group of companies engaged in the business of commercial building and construction, obtained temporary restraining orders against a trade union. The orders restrained the union from "preventing, hindering or interfering with free access to, and free egress from", certain of the group's building sites by any person or vehicle, and from "causing, inducing, procuring or inciting any person to do or attempt to do" any of those prohibited activities. The underlying cause of action was one in nuisance. Charges of contempt of court were then brought against the union for allegedly breaching one or other of those orders on five separate days.
The Protesters Act is primarily concerned with conduct on business premises or a business access area in relation to business premises. The facts and circumstances considered in Grocon are instructive. The authorities relied upon by the primary judge concerned public nuisance, which in Tasmania is an offence under s 141 of the Criminal Code. It was observed in Grocon that an obstruction can be physical or can come in the form of intimidation and need not be total; and for something to be an obstruction, it would generally not need to be "tested" to see if it could be safely overcome. It was not doubted that the blocking by a third party of even one of multiple means of access to a building site could amount to preventing "free" access, especially when the entry point blocked was a normal entry point to the site, and there was no need for an attempt or a request to gain access to a site in order to establish an obstruction. Indeed, as the primary judge observed, "free" access may be prevented, hindered or interfered with if access is made more difficult by an obstruction, even if persons might still be able to access the site.
Those observations provide a useful reminder of three points. First, the implied freedom cannot be, and is not, an absolute freedom from all regulation or restraint. Second, conduct comprising a protest is not uniform; each case requires a fact‑specific inquiry.
Third, the observations also serve to reveal a deeper and more important point. Breach of the civil law may often, even usually, be remedied by an award of damages. But if an injunction to restrain a threatened breach of the civil law is granted, penal consequences will follow for contravention of that restraint. Observing that the impugned provisions engage penal consequences is, of course, important and relevant to the consideration of the implied freedom. But where, as here, the conduct that is penalised by the impugned provisions is conduct otherwise contrary to law and may be enjoined by court order, the impugned provisions (other than s 8(1)(b)), in practical effect, do no more than provide that a particular form of conduct is generally prohibited on pain of penalty. And no party or intervener submitted that an injunction could not or should not be granted to prevent trespass or nuisance simply because the trespasser or person committing a nuisance sought to make a political point by acting in breach of the rights of another, whether that other is a private individual or, as here, a Government Business Enterprise.
Hence, to ask whether a person has a right to be in a particular place at a particular point in time is to ask the wrong question. Any question about the lawfulness of a person's conduct requires consideration of the legal context in which that conduct takes place. The legal context will necessarily include the existing legal framework governing society.
Any challenge to the validity of legislation (including legislation that is targeted to a group, as the impugned provisions are) directs attention to what that law does over and above the existing legal framework. There may be cases where legislation or a set of provisions alters that framework in ways that are, or to an extent that is, not compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. That is not this case.
(4) Broader operation of the Protesters Act
As seen earlier, "business premises" are not limited to or by reference to specific industries. For example, "premises used as a shop, market or warehouse" are business premises, as are "premises used for manufacturing, building, or construction, for the purposes of a business activity", "premises used for agriculture [or] horticulture … or as an abattoir" and premises on which mining within the meaning of the Mineral Resources Development Act 1995 (Tas) is being or is authorised to be carried out under an Act. In relation to each of those business premises (and the business activity conducted on them), the Protesters Act will inevitably sit alongside, and operate in conjunction with, a different legal framework which cannot be ignored or dismissed as irrelevant. For those reasons, it is neither necessary nor appropriate to consider the constitutional validity of the Protesters Act other than in relation to forestry land.
Constitutional validity of the impugned provisions
First question
The first question asks: does the law effectively burden the freedom of communication about government or political matters either in its terms, operation or effect? A law will effectively burden the freedom of political communication if "the effect of the law is to prohibit, or put some limitation on, the making or the content of political communications".
At the hearing of the special case, Tasmania conceded that the legal effect and practical operation of the impugned provisions of the Protesters Act were to burden the implied freedom of political communication. That concession was properly made: in their operation in relation to forestry land, the impugned provisions burden the implied freedom and the first question should be answered "yes". Just how and to what extent the impugned provisions burden the implied freedom is conveniently identified and explained in the next section of these reasons.
Second question
In addressing the second question - whether the impugned law is reasonably appropriate and adapted to serve a legitimate end in a manner which is not incompatible with the maintenance of the constitutionally prescribed system of representative and responsible government - the nature and the extent of the burden are relevant. To the extent that the impugned law is congruent with the existing law, it is any incremental burden that needs justification.
Here, as the earlier analysis of the legal effect and practical operation of the impugned provisions demonstrates, the impugned provisions prescribe norms or punish classes of conduct which are addressed by the wider legal framework.
That proposition is made good in the following ways. Sections 6(1) and 6(2) - dealing with entry into business premises, and acts done on business premises or on a business access area in relation to business premises, where the conduct prevents, hinders or obstructs the carrying out of a business activity on the business premises by a business occupier in relation to those premises - identify conduct that was, and remains, unlawful and contrary to provisions such as s 14B of the Police Offences Act and the common law.
Section 6(3) - dealing with an act that prevents, hinders or obstructs access, by a business occupier in relation to business premises, to an entrance to or an exit from the business premises or a business access area in relation to the business premises - identifies conduct that was, and remains, unlawful and contrary to the common law.
Sections 7(1) and 7(2) - concerning damage to business premises or a business-related object - penalise conduct that was, and remains, unlawful and contrary to s 273 of the Criminal Code, s 37 of the Police Offences Act and the common law. Sections 7(3) and 7(4) - concerning threats of damage in relation to business premises - penalise conduct that was, and remains, unlawful and contrary to provisions such as ss 241 (blackmail) and 276 (written threats to property) of the Criminal Code.
It should be kept in mind that the prohibitions in s 6 are not themselves criminal offences. They merely enliven other provisions of the Protesters Act. For instance, a person may simply be given a direction under s 11, as the plaintiffs were. It is only a subsequent failure to comply with that direction that amounts to a criminal offence under s 8(1). And it is a defence to an offence against that provision if the defendant proves that they had a lawful excuse for committing the offence. That reflects the fact that the prohibitions in s 6 are capable of capturing a very wide range of conduct. In contrast, the prohibitions in s 7 are criminal offences, reflecting their more serious nature. And ss 7(1) and 7(2) both have a lawful excuse defence.
Sections 11(1) and 11(2) - which provide that a police officer may direct a person to leave business premises, or a business access area in relation to business premises, without delay if the police officer reasonably believes that the person has committed, is committing, or is about to commit, an offence under s 7 of the Act or a contravention of s 6(1), (2) or (3) on or in relation to the business premises or a business access area in relation to the business premises - prevent, and enforce prohibitions on, conduct that is unlawful under ss 6 and 7.
Similarly, ss 11(7) and 11(8) - which provide that a direction under s 11 may be issued to a group of persons - prevent, and enforce prohibitions on, conduct that is unlawful under ss 6 and 7. Although the sub-sections allow a direction to be issued to a group, such a direction would only be valid if the condition in s 11(1) or (2) was met - that is, if a police officer has a reasonable belief that every member of the group has committed, is committing, or is about to commit, an offence under s 7 of the Protesters Act or a contravention of s 6(1), (2) or (3). So much is clear from the text and structure of s 11. It is sub‑ss (1) and (2) which empower a police officer to issue a direction, provide for the content of the direction and identify the pre‑conditions to its lawful issue. Sub‑sections (7) and (8) confer no independent power to issue a direction: they do no more than clarify as a practical matter that, where a police officer forms the requisite reasonable belief about a group of persons, it is not necessary for the officer specifically to issue a direction to each person.
At first blush, these police powers under s 11 may appear to confer an unfettered discretion. They do not. The exercise of the discretion is necessarily limited by the subject matter, scope and purpose of the Protesters Act. As the section itself provides, the giving of a direction under s 11(1) or (2) is conditioned on the police officer holding a reasonable belief that a person has committed, is committing, or is about to commit, an offence under s 7 of the Protesters Act or a contravention of s 6(1), (2) or (3). If the officer holds that reasonable belief, the officer can issue a direction with or without the added requirement that the person not, "in the period of 3 months after the date on which the direction is issued", commit an offence against a provision of the Act or a contravention of s 6(1), (2) or (3). In practical terms, the discretion of the officer to include a requirement that the person not commit an offence against a provision of the Act or contravene s 6(1), (2) or (3) is no more than a discretion to direct that, in the next three months, the person must not do what the Protesters Act already says the person must not do.
If an officer does not hold a reasonable belief that a person has committed, is committing, or is about to commit, an offence under s 7 of the Protesters Act or a contravention of s 6(1), (2) or (3), then the officer cannot issue the direction (and therefore cannot impose the additional three month requirement). And if the concern is that the discretion is exercised (or capable of being exercised) by an officer on the basis of an erroneous belief, then the question on review, in each case, would be whether objective circumstances exist sufficient to induce that state of mind in a reasonable person. If such objective circumstances do not exist, then the direction would be held to be invalid.
The same analysis applies to s 13(3) - the power of a police officer to remove a person from business premises or a business access area - which is conditioned on the police officer forming a reasonable belief that the person is committing, or has committed, an offence against a provision of the Protesters Act or a contravention of s 6(1), (2) or (3) on or in relation to the business premises or the business access area.
As was pointed out at the start of these reasons, the validity of the law must be tested against the legal effect and practical operation of the law. It is not to be tested against the possibility that the law will be applied unlawfully, or against the possibility that persons may choose, for whatever reason, to give the law some effect or operation wider than the law permits. For that reason, it is not relevant to observe that the geographical bounds of the area within which the provisions operate may be difficult to determine or that there may be cases where a power is said to be exercised unlawfully. The provisions can lawfully apply only where all of the relevant pre-conditions are met. For example, as just seen, as a matter of statutory construction, the offences in ss 6(4) and 8(1) can only be committed after a police officer has given a valid direction under s 11. And an officer may only give such a direction to a person who is on business premises, or in a business access area. No valid direction can be given to a person who is not on, or in, one of those areas. Further, a police officer may only give such a direction if they have reasonable grounds to believe that a person has committed, is committing, or is about to commit, an offence against a provision of the Protesters Act, or a contravention of s 6(1), (2) or (3) of the Protesters Act, on or in relation to the business premises or a business access area in relation to the business premises. Identification of the bounds of the area within which the provisions operate involves questions about construction and application, as was made clear by the plurality in Wotton.
It may be accepted that it is possible for a police officer to form a reasonable but factually wrong belief about the matters identified in ss 11 and 13(3). For example, the police officer might issue a direction under s 11 on the basis of a reasonable but mistaken belief that a person has committed a contravention of s 6(1). The direction would be lawful even though the person had not in fact contravened any prohibition in the Protesters Act. But two points must then be made. First, the reasonableness of a police officer's belief is necessarily determined by reference to factual circumstances. That is, the factual circumstances, viewed objectively, must permit the formation of the belief. The requirement to form a reasonable belief does not grant to a police officer sweeping latitude to form factually wrong beliefs. Circumstances which are equivocal do not and will not permit the formation of the requisite belief.
Second, as already explained, any burden effected by ss 11 and 13(3) must be assessed against the existing legal framework. And the existing legal framework includes provisions which similarly condition the exercise of powers on the formation of a certain state of mind. For example, the power of an authorised officer to make a request of a person under s 22(3) of the Forest Management Act is conditioned on the "opinion" of the authorised officer about the effect or potential effect of the person's conduct on the ability of the Forest Manager to effectively or efficiently perform its functions. Similarly, under s 15B of the Police Offences Act, a police officer may direct a person to leave a public place if the officer "believes on reasonable grounds" that the person has engaged, or is likely to engage, in certain conduct.
The overlap between the conduct prohibited by the impugned provisions and the conduct prohibited by the existing wider legal framework may not be perfect. It is possible that there may be some marginal differences between what the impugned provisions prohibit and what was already prohibited under the existing wider legal framework (although none were identified in the course of argument). But the overlap not only exists; it is substantial and cannot be ignored. And because there is such an overlap, the incremental burden may be described as making what was otherwise unlawful the subject of criminal sanction or subject to increased penalties. If there are differences in the scope of the prohibitions, those may also be said to form part of the incremental burden, alongside the additional sanctions and increased penalties for existing prohibitions. What is presently relevant is that the incremental burden is small and it is the identification of that incremental burden that "serves to focus and to calibrate the inquiry" required in assessing the constitutional validity of a law.
Second question, first condition - legitimate end of the impugned law?
What then is the object or purpose of the Protesters Act? The Protesters Act (including the impugned provisions) creates a statutory scheme that may operate to prevent or terminate conduct that involves the presence of protesters on business premises or on a business access area and that has as its aim the promotion of an opinion or belief in respect of a political, environmental, social, cultural or economic issue, but only where:
(1) a police officer has reasonable grounds to believe, among other things, that a person is engaging in a "protest activity" as that phrase is defined in the Protesters Act; and
(2) the conduct would prevent, hinder or obstruct the carrying out of a business activity or access to business premises, or cause damage to business premises or a business-related object.
The object of the Protesters Act, in relation to forestry land, is to protect the productivity, property and personnel of forest operations; in particular, to protect forest operations from activity that prevents, hinders or obstructs business activity or causes damage on business premises or in areas necessary to access business premises. That object is no more incompatible with the constitutionally prescribed system of representative and responsible government than the pre‑existing wider legal framework alongside which the Protesters Act, in its operation in relation to forestry land, sits, and within which it operates.
The plaintiffs' contention that the "purpose and practical operation of s 6 and associated provisions … is to prevent onsite protests that … relate to 'political, environmental, social, cultural or economic issues', which are the key issues to which electors will have regard when choosing their representatives", should be rejected. It fails to consider both the text of and the context for the impugned provisions. It identifies the object or purpose of the impugned provisions too narrowly. It incorrectly focuses on one aspect of the impugned provisions and ignores that the conduct sought to be addressed must have certain consequences for the carrying out of a business activity or access to business premises. These matters are central to identification of the object of the impugned provisions. And if the object is identified too narrowly, there will be flow-on consequences for "the scope, utility and transparency" of the subsequent reasonably appropriate and adapted analysis.
Second question, second condition - is the law reasonably appropriate and adapted to serve that legitimate end?
(a) Provisions are reasonably appropriate and adapted
Conduct involving the physical presence of protesters on business premises can constitute political communication. But a law that prohibits conduct for a legitimate purpose other than the suppression of political communication is unaffected by the implied freedom "if the prohibition is [reasonably] appropriate and adapted to the fulfilment of that purpose".
In particular, where conduct has effects beyond the communication of ideas or information, there are likely to be legitimate reasons to regulate that conduct. The fact that a law may prevent protesting in a manner that would achieve maximum publicity, and to that extent may curtail the implied freedom to a degree, does not itself provide an answer to the constitutional question of validity.
So, are the impugned provisions reasonably appropriate and adapted to serve the legitimate end?
Here, the prohibition of "protest activity" was not the object of the Protesters Act. The Act's object was to protect, relevantly, forest operations from activity that prevents, hinders or obstructs business activity or causes damage on business premises or in areas necessary to access business premises. The Protesters Act adopted means that were directed at what the legislature identified as the immediate or likely causes of hindrance or obstruction.
As the earlier analysis demonstrates, each impugned provision (except s 8(1)(b)) is directed to regulating effects beyond the communication of ideas or information. The regulation of those effects is limited both in the location of its operation (business premises and business access areas) and in the conduct that it seeks to proscribe (conduct that "prevents, hinders or obstructs" the carrying out of business activity or access to business premises, or that causes damage to business premises or business-related objects). And, of course, it is not the impugned provisions but any incremental burden imposed by those provisions which must be justified.
To the extent that the incremental burden may be said to consist of the marginal extension of existing prohibitions, the impugned provisions (other than s 8(1)(b)) do no more than regulate the time, place and manner of a particular and narrowly confined form of political communication - a form of protest that is disruptive or causes damage. It is difficult to conceive of any form of political communication that is disruptive or causes damage, to the extent covered by the impugned provisions, but is nonetheless lawful.
To the extent that the incremental burden may be said to consist of making what was otherwise unlawful the subject of criminal sanction or subject to increased penalties, and to be discriminatory because those criminal consequences or increased penalties apply only to protesters and not to others who undertake similar unlawful conduct, that discriminatory operation is not decisive.
The fact that the impugned provisions apply only to protesters and not to persons generally does not mean that the law is not reasonably appropriate and adapted. "The Parliament is not relegated by the implied freedom to resolving all problems" relating to a particular class of activity that might disrupt business "if it resolves any". It is open to the Parliament to "respond to felt necessities" and to target only some activities - here, protest activity where the conduct has significant adverse consequences for the carrying out of a business activity or access to business premises.
Indeed, the plaintiffs' contention that the impugned provisions (especially Pt 4 of the Protesters Act) discriminate against protesters depends upon saying that the legislature has no power to target and deter particular kinds of unlawful conduct by prescribing criminal sanctions and punishment (or at least that such targeting is necessarily vulnerable to challenge). That premise is overbroad.
The law marks the boundary of what is, and what is not, permitted conduct. Lange itself shows that the demands of the implied freedom may modify the civil law: in that case, by modifying the defence of qualified privilege. In this case, no party or intervener suggested that the implied freedom requires some modification or qualification to the civil law of trespass or nuisance or the existing criminal law of Tasmania. Here, the legislative intervention is primarily directed to creating and enforcing rules of conduct that substantially overlap with existing laws that prohibit the same conduct. As said earlier, there is little or no change in what people may do. And the legislature has power to deter particular kinds of unlawful conduct by prescribing sanctions and penalties. Just because others engaging in similar unlawful conduct (but not protesting) are not subject to the same sanctions does not mean that this form of unlawful conduct cannot and should not attract the sanctions and penalties in Pt 4 of the Protesters Act.
Subject to s 8(1)(b), which is addressed later, the means adopted by the impugned provisions are both explained and justified by the Protesters Act's reasonable pursuit of a legitimate end - to protect the productivity, property and personnel of businesses from conduct that prevents, hinders or obstructs business activity or causes damage on business premises or in areas necessary to access business premises. The means adopted by the Protesters Act are capable of advancing that purpose: ss 6, 7, 8 (except for s 8(1)(b)) and 11 are directed to conduct of precisely that character. The other impugned provisions then go on to provide a means by which that conduct can be prevented or terminated. Each provision is rationally connected to that end: each advances the legitimate end of protecting the productivity, property and personnel of businesses from conduct that adversely affects business activity.
Once it is accepted that any burden imposed by the impugned provisions is minimal; that those provisions do no more than regulate the time, place and manner of a particular kind of political communication (specifically, a form of protest that is disruptive or causes damage); that those provisions seek to serve a legitimate end; and that those provisions are rationally connected to that end, it is difficult to see how the provisions are not reasonably appropriate and adapted to serving that end in a manner which is compatible with the system of government established by the Constitution.
(b) "Necessity"?
In the circumstances of this matter, it is not necessary (or helpful) to consider whether there are "obvious and compelling" and "reasonably practicable" alternatives to the Protesters Act. Indeed, there is a paradox in the plaintiffs' contention that the Forest Management Act - which contains wider, more general, less targeted prohibitions that, in some respects, have a greater potential to burden the implied freedom - is an alternative. The paradox lies in the suggestion that prohibitions wider than the impugned provisions are less constitutionally suspect. And the notion of necessity as a tool, or an aspect of a tool, of analysis is often imperfect. It cannot be, and is not, decisive of invalidity in every case in which it might be used.
(c) "Adequate in its balance"?
Nor is it necessary or appropriate to consider whether the impugned provisions are "adequate" in their "balance". It is necessary to say something further about this issue.
The plurality in McCloy said that "proportionality testing" in relation to an impugned law required asking three questions, the third being whether the law is "adequate in its balance". This was described as "a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom". It was said that, if the law does not satisfy this criterion, it "will exceed the implied limitation on legislative power".
Asking whether a law is "adequate in its balance" as part of an inquiry into its proportionality has always been controversial. Professor Barak has suggested that "[t]he basic rule of balancing is too abstract". Sir Anthony Mason has described structured proportionality, and the balancing that it entails, as "a rather cumbersome edifice which at the end of the day, at the last step, delivers nothing more than a value judgment". There is also controversy about the role, if any, that the concept of balancing has to play in the specific context of the implied freedom of political communication. On one view, the cases leading up to McCloy "seem to illustrate a balancing of the freedom with other social goals". On another view, "no question of ad hoc balancing is involved" when applying the Lange questions.
The controversy about the relevance of balancing to the implied freedom can be explained, at least in part, by different understandings of the concept of balancing. But this case does not require delving into those different understandings. The conclusion that the impugned provisions (save for one exception) are reasonably appropriate and adapted to serve a legitimate end can be, and is, reached without recourse to an assessment of their "balance". However, it is necessary to point to two fundamental difficulties with balancing as described in McCloy.
First, it remains unclear just how the value judgments that are a part of the balancing task described in McCloy are to be made. It is said that a balance must be struck between "the importance of the purpose and the extent of the restriction on the freedom". It is said that courts are permitted, and required, to "discern public benefits in legislation which has been passed". But what are the criteria for judging the importance of the legislative purpose? Without any principled answer to that question - and none is apparent - it is difficult to see how a court can undertake an objective analysis.
Second, the adoption of balancing does not account for the fact that the concept "has been developed and applied in a significantly different constitutional context". Unlike other countries in which "balancing" has been used, Australia does not have a Bill of Rights. The implied freedom of political communication is not a personal right. Those very basic propositions highlight the importance of adopting criteria that are "sufficiently focused adequately to reflect the reasons for the implication of the constitutional freedom". If the criteria are not closely anchored to the rationale for the implied freedom, there is a risk that "[t]he rules themselves [will] take over, ceasing to be a means to an end and becoming the end itself".
The implied freedom exists because it is an indispensable incident of the system of representative and responsible government for which the Constitution provides. The judicial role extends to ensuring that this system of government is not undermined by laws burdening political communication. But the judiciary faces a conundrum: that very role places a court in a position where it must exercise judgment about laws enacted by members of Parliament, who exercise legislative power as "representatives of the people" and who are "accountable to the people for what they do". Unless a court exercises that judgment with a proper appreciation of the rationale for the implied freedom, it risks overstepping the boundaries of its supervisory role and, in doing so, undermining the very system of representative government which it is charged with protecting.
It was said in McCloy that "[t]he fact that a value judgment is involved [at the balancing stage] does not entitle the courts to substitute their own assessment for that of the legislative decision‑maker". But a heightened danger of such encroachment is the precise consequence of an approach which requires the making of value judgments unguided by any clear principle.
In short, "[t]he balancing of the protection of other interests against the freedom to discuss governments and political matters is, under our Constitution, a matter for the Parliament to determine and for the Courts to supervise" (emphasis added). However, the approach to balancing described in McCloy invites a court "to sit in judgment on the legislative decision, without having access to all the political considerations that played a part in the making of that decision, thereby giving a new and unacceptable dimension to the relationship between the Court and the legislature". Courts are ill‑equipped to make judgments of that kind, not least because judges have different "skills and professional habits" from members of the legislative and executive branches.
Moreover, as the plurality in McCloy recognised, the balancing stage "is regarded by the courts of some legal systems as most important". It has been suggested that, in Germany, it is this stage that has become "the most decisive". If the same pattern were to emerge in the application of the McCloy approach in Australia, it would mark a fundamental shift in the nature of the inquiry as to whether a law infringes the implied freedom of political communication.
It may be that, as the Attorney-General of the Commonwealth suggested, "balancing" of some description is relevant where a law has as its object the promotion, protection or enhancement of the constitutionally prescribed system of government. In those circumstances, a court will be directly concerned with balancing positive and negative effects on the system. It will not be called upon to examine the "importance" of a distinct legislative object. But this is not such a case.
(d) Conclusion
Subject to the exception identified earlier - being s 8(1)(b) - the impugned provisions are not beyond Tasmania's legislative power in their legal effect and practical operation in relation to forestry land. Each permissibly burdens the implied freedom and is valid.
Invalid provision of the Protesters Act - Question 2
Section 8(1)(b) is in a different category. It effectively burdens the implied freedom of political communication. It goes beyond the legitimate object of the Protesters Act and has no rational connection to that object.
Section 8(1)(b) provides that a person must not enter a business access area in relation to business premises within four days after having been directed by a police officer under s 11 to leave the business premises or a business access area in relation to the business premises. Section 8(1)(b), in its terms, does not prohibit conduct for a legitimate purpose other than the suppression of political communication. Section 8(1)(b) cannot be said to be directed to regulating effects of conduct beyond the communication of ideas or information - it does not have an object compatible with the maintenance of the constitutionally prescribed system of government. Why four days? Why prohibit a person from entering a business access area in relation to business premises irrespective of what that person intends to do by way of conduct in that area? Its legal effect and practical operation stand in stark contrast with s 6(1) (directed at regulating entry into business premises) and s 6(2) (directed at regulating acts on business premises or on a business access area in relation to business premises), which are enlivened where the specified conduct (the entry or the act) is conduct that prevents, hinders or obstructs the carrying out of a business activity on business premises by a business occupier in relation to the business premises.
Section 8(1)(b) goes beyond penalising what was unlawful before the enactment of the relevant provisions. The resulting burden on communication is beyond what is reasonably appropriate and adapted to serve the legitimate object of the Protesters Act.
Impugned provisions are not vague and uncertain
Although not expressly articulated in this way, the plaintiffs sought to contend that the Protesters Act burdened the freedom of communication about government or political matters because it was vague and uncertain. They submitted that the prohibitions under the Protesters Act "operate in such a sweeping and uncertain fashion [because] [w]hat is a 'business access area' and what is a 'business [premises]' are by no means clear in practice".
Similarly, during the course of the hearing, the plaintiffs submitted that "the uncertain boundaries" that the Protesters Act drew between a business access area and that area beyond a business access area had the effect of "exacerbating the burden". The basis upon which the burden might be exacerbated by uncertainty was not explained by the plaintiffs. In particular, the plaintiffs did not, in oral or written argument, appeal to any notion of deterrence or deterrent effect.
A related complaint made by the plaintiffs was that the impugned provisions permit, perhaps even encourage, arbitrary and discriminatory enforcement. But if any statutory power, including any enforcement power, is so exercised, the exercise of that power will be subject to judicial review and would be found invalid. It is true, as the plaintiffs submitted, that by the time this process occurs, the "protest will have been quelled and the time for the protest may well have passed". On that view, political communication will have been "burdened" as a consequence of the unlawful exercise of an enforcement power.
Although the plaintiffs did not contend that the impugned provisions were vague and therefore invalid per se, the plaintiffs' contentions about uncertainty and unlawful exercise had echoes of principles developed in the context of constitutional jurisprudence in the United States relating to requirements of due process under the Fifth and Fourteenth Amendments to the United States Constitution. That body of jurisprudence stands for the proposition that laws, and in particular penal laws, that are defined without "sufficient definiteness" may be invalid due to vagueness.
Vagueness is a distinct doctrine in United States constitutional law that has no equivalent in Australian constitutional law. In the United States, "[t]o satisfy due process, 'a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.' The void‑for‑vagueness doctrine embraces these requirements". And the doctrine of vagueness applies to all penal statutes, not only those regulating freedom of speech or other constitutional rights. It operates to invalidate statutes independently from the First Amendment. But where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms", the context in which the law is considered includes that "important value[]".
There is no principle in Australian constitutional law that is equivalent to the United States constitutional law doctrine (or doctrines) about vagueness. And there is nothing to support the proposition that the assessment required by the Lange questions (or any modification of them) should take into account the notion that there is a chance a law might be enforced unlawfully. Unlike the United States, the Australian legal system does not consider that a vague law "impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application".
As Windeyer J said in R v Holmes; Ex parte Altona Petrochemical Co Ltd, "[c]ourts must wrestle, and are accustomed to wrestle, with difficult language. They are required to find its meaning, not permitted to abandon the task". Indeed, "[w]hatever the difficulties of construction may be, [a] [c]ourt is bound to give some meaning to the section, and upon no proper principles could a court ever hold that an Act of the legislature was to be regarded as a nullity because of the uncertainty of the language used".
In King Gee Clothing Co Pty Ltd v The Commonwealth, which concerned the validity of delegated legislation rather than primary legislation, Dixon J made the following relevant observations:
"I should have thought that, in this matter, [the regulations] stood on the same ground as an Act of Parliament and were governed by the same rules of construction. I am unaware of any principle of law or of interpretation which places upon a power of subordinate legislation conferred upon the Governor-General by the Parliament a limitation or condition making either reasonableness or certainty indispensable to its valid exercise. Our Constitution contains no due process clause and we cannot follow the jurisprudence of the United States by saying that uncertainty violates a constitutional safeguard."
In Cann's Pty Ltd v The Commonwealth, Dixon J reiterated the view that he expressed in King Gee and, in the course of doing so, said:
"The interpretation of all written documents is liable to be attended with difficulty, and it is not my opinion that doubts and misgivings as to what the instrument intends, however heavily they may weigh upon a court of construction, authorize the conclusion that an order made under reg 23 is ultra vires or otherwise void. If in some respects its meaning is unascertainable, then, no doubt, it fails to that extent to prescribe effectively rights or liabilities, but that is because no particular act or thing can be brought within the scope of what is expressed unintelligibly. But to resolve ambiguities and uncertainties about the meaning of any writing is a function of interpretation and, unless the power under which a legislative or administrative order is made is read as requiring certainty of expression as a condition of its valid exercise ... the meaning of the order must be ascertained according to the rules of construction and the principles of interpretation as with any other document." (emphasis added)
These observations accord with the well-established approach to statutory construction: "the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have". That duty remains constant, regardless of whether the words of a statutory provision are uncertain or unclear. Courts cannot abandon the task. "When inconsistencies or ambiguities appear they are dealt with by [c]ourts according to the established principles of statutory interpretation".
Once it is accepted, as it must be, that Australia knows no doctrine of statutory uncertainty, there is no legal basis for importing a doctrine of vagueness by speaking of a law having "that quality".
To reason that a statute is invalid by reference to the case of a police officer having a reasonable, but factually unstable, belief of the matters required by the statute is in truth to say that reasonable belief is an impermissible or unworkable criterion for imposing restrictions on conduct. If that were so (and it is not) it would mean a court could not enjoin future conduct having reached a conclusion about what is reasonably threatened or likely to occur.
Moreover, despite the First Amendment, laws in the United States that have used language similar to that in the Protesters Act have survived vagueness challenges. In Cameron v Johnson, a law which prohibited "picketing ... in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any ... county ... courthouses" was held to be valid. The Supreme Court concluded that the "statute clearly and precisely delineat[ed] its reach in words of common understanding".
In Grayned v City of Rockford, an impugned ordinance provided that "no person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof". The Supreme Court said:
"The words of the ... ordinance are marked by 'flexibility and reasonable breadth, rather than meticulous specificity,' ... but we think it is clear what the ordinance as a whole prohibits. Designed, according to its preamble, 'for the protection of Schools,' the ordinance forbids deliberately noisy or diversionary activity that disrupts or is about to disrupt normal school activities. It forbids this willful activity at fixed times - when school is in session - and at a sufficiently fixed place - 'adjacent' to the school."
The same kind of analysis can and should be adopted in relation to the impugned provisions.
Inapplicability of the United States "chilling effect" doctrine
In United States First Amendment jurisprudence, "[a] chilling effect occurs when individuals seeking to engage in activity protected by the first amendment are deterred from so doing by governmental regulation not specifically directed at that protected activity" (emphasis added). "The very essence of a chilling effect is an act of deterrence". The concept of the "chilling effect" is reflected in, and relevant to the application of, the doctrine of vagueness in the First Amendment context.
The danger of the chilling effect has been explained in the following terms:
"Deterred by the fear of punishment, some individuals refrain from saying or publishing that which they lawfully could, and indeed, should. This is to be feared not only because of the harm that flows from the non-exercise of a constitutional right, but also because of general societal loss which results when the freedoms guaranteed by the first amendment are not exercised." (emphasis added)
This explanation highlights, and reinforces, an important difference between the implied freedom of political communication under the Australian Constitution and the freedom of speech protected by the First Amendment to the United States Constitution. Because the implied freedom operates solely as a restriction on power and only to the extent necessary to maintain the constitutionally prescribed system of government, the notion of speech as an affirmative value has no role to play.
In United States jurisprudence, the chilling effect, as a "specific substantive doctrine lying at the very heart of the first amendment", acknowledges that the legal system is imperfect and that it is inevitable that errors will be made. It is this "possibility of error and the consequent uncertainty which create the chilling effect". However, there are various types of error and uncertainty.
First, the machinery of the law makes mistakes - for example, the facts may be incorrectly determined or the law may be incorrectly applied to the facts. In other words, the outcome of litigation can be unpredictable, and that might lead to persons being deterred from certain activity because they fear that conduct that is lawful may nonetheless be punished. And the degree of fear may be influenced by the harshness of the penalty.
Second, there may be uncertainty in the minds of individuals about whether their intended behaviour is protected. This uncertainty might arise from a number of causes; "perhaps the most important is that it is often difficult to determine whether the contemplated conduct is covered by a regulating rule".
As the Supreme Court of the United States has stated: "[u]ncertain meanings inevitably lead citizens to '"steer far wider of the unlawful zone" ... than if the boundaries of the forbidden areas were clearly marked'". It is this type of uncertainty that is "the chief vice of vagueness", which one commentator has described in these terms:
"If the terms of a statute or the concepts underlying a common-law principle are so amorphous as to create no crystalized view of what precise conduct is being regulated, an individual may be quite unsure whether his intended behavior is proscribed until after he has acted. Indeed, some legal concepts and language may be so incapable of precise definition and application that any real degree of certainty is unattainable."
The United States learning in this area then takes a further step - "to determine which of the various possible errors is the more harmful". This step assumes that one type of error is preferable to another type of error - in particular, it assumes that there is a preference for errors made in favour of free speech. One commentator has suggested that "a wrongful limitation of speech is a priori more serious than the erroneous overextension of free speech". The premise of that assumption is "the recognized preeminence of the first amendment".
The implied freedom of political communication in Australia stands in stark contrast at many levels. It does not give political communication "transcendent value" equivalent to individual liberty. It operates only to the extent necessary for the effective operation of the system of representative and responsible government established by the Constitution and as a limitation on legislative and executive power. It does not confer a personal right. Individual or personal reactions to a restriction may be relevant to the ambit of a personal freedom. Individual or personal reactions to a restriction are not relevant to determining the ambit of legislative or executive power.
The differences between the implied freedom of political communication under the Australian Constitution and the freedom of speech protected by the First Amendment to the United States Constitution are too great, and too deeply entrenched, for any doctrines of vagueness, uncertainty or "chilling effect" in United States jurisprudence to be adopted directly or indirectly.
Certainty and the implied freedom
That the impugned provisions are not vague and uncertain, and that the United States chilling effect doctrine has no application when considering the implied freedom, both reflect fundamental aspects of the constitutional relationship in Australia between the judicial and legislative branches of government.
There may be a point at which a law appears to be expressed with such indefinite width, or to delegate power to such an extent, that it invites judicial consideration of questions of the kind discussed by the plurality in Plaintiff S157/2002 v The Commonwealth, including whether the law truly provides for "a rule of conduct or a declaration as to power, right or duty". But such questions do not arise in the present case, and they are not the concern of the implied freedom.
By way of further comparison, particular species of uncertainty have been the subject of consideration in the United Kingdom. In AXA General Insurance Ltd v HM Advocate, which concerned the powers of a devolved legislature, it was accepted that some provisions of the European Convention on Human Rights direct attention to the degree of certainty when determining whether an interference with a right is "lawful". It is enough to say that no individual right or freedom is at stake in this case, and inquiries of that kind are not relevant to the implied freedom.
In R v Rimmington, which concerned the scope of the common law offence of public nuisance, lack of clarity in the definition of a criminal offence was identified as a basis, at common law, for questioning the safety of a conviction. Even then, it was recognised that absolute certainty was not possible and the question could only arise in "extreme" situations where the ingredients of the purported offence could not be discerned in advance. In that case, as well as AXA General Insurance, the type of legal uncertainty under consideration was uncertainty that involved retrospectivity.
Reopen McCloy?
In McCloy, no party or intervener challenged the decision in Lange or sought to have the Court discard or modify the substance of the two questions identified in Lange as the questions that must be asked and answered in deciding whether a statutory provision is beyond power because it infringes the implied freedom. They remain the questions to be asked and answered.
Indeed, as the Attorney-General of the Commonwealth submitted in this case, the McCloy approach does not alter the two questions identified in Lange that must be asked in determining whether an impugned law is contrary to the implied freedom of political communication. Those questions capture the limits between legitimate judicial scrutiny and impermissible judicial encroachment on the legislative function.
The method of analysis adopted by the plurality in McCloy is a tool of analysis, not constitutional doctrine. It is not a "precedent‑mandated analysis". And, if only for that reason, it is not necessary or appropriate to apply all aspects of that approach in every case.
The alternative view of the plurality's approach in McCloy - that, in each case involving the implied freedom, a cascading series of questions must be answered, and the wrong answer to any one of them will result in invalidity - suffers from at least two fundamental difficulties.
First, as Gageler J explained in McCloy, that approach assumes that "one size fits all". It is by no means apparent that a standardised formula of that kind is suitable to be applied to "every law which imposes a legal or practical restriction on political communication irrespective of the subject matter of the law and no matter how large or small, focused or incidental, that restriction on political communication might be".
A "one size fits all" approach does not reflect the common law method of legal reasoning; rather, it involves "an abstracted top‑down analysis" that reflects its civil law origins. Because the extent and the nature of the burden on the implied freedom will be case specific, any analysis must likewise be case specific.
Just as this Court has never previously adopted a rigid analysis of the kind suggested by McCloy, "[n]or has it overtly adopted a categorical approach of the kind used in the United States" in relation to the First Amendment. But there are elements of this approach latent in the existing authorities. This is not surprising - "[c]ategorisation is a traditional common law approach to the solution of legal problems".
For example, it has been recognised that some laws "have only an indirect or incidental effect upon communication about matters of government and politics. Others have a direct and substantial effect. Some may themselves be characterised as laws with respect to communication about such matters". Depending on the category, a law may be more or less difficult to justify. Relevantly to this case, laws imposing restrictions on the time, place and manner of political communication have been understood as forming a category that requires a lesser justification. However, it is neither necessary nor appropriate in any given case to seek to identify different categories exhaustively or the criteria that might apply to them. The common law approach "permits the development of different criteria for different constitutional contexts".
Second, to treat some of the "tools of analysis" identified in McCloy as determinative of the validity of a law would mark a departure from the existing stream of authority. The "necessity" of a restriction, insofar as that directs attention to reasonably available alternative measures, is a matter that may inform the analysis - but it has not been treated as a matter that is decisive in every case. And treating the "balancing" stage as decisive would only exacerbate the difficulties with that stage outlined earlier.
It is also necessary to say something about "compatibility testing" as that concept was described by the plurality in McCloy. As this case demonstrates, a time, place or manner prohibition on protest activity is not necessarily incompatible with the system of representative and responsible government for which the Constitution provides. The "legitimacy" of the means is determined not as part of a binary inquiry about "compatibility", but as part of a graduated inquiry involving "proportionality" to a legitimate end. The use of a structured approach to proportionality in McCloy must not shift or obscure those limits.
It is for that reason that, as the Attorney-General of the Commonwealth submitted, even if the McCloy approach is appropriate to be used as a tool of analysis, the second and third steps should be reformulated along the following lines:
Step 2: "… is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of [representative and responsible] government?"
Step 3: "… is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of [representative and responsible] government?"
In those circumstances, it is unnecessary to consider whether to grant leave to reopen McCloy.
Conclusion
For those reasons, I would answer the questions of law stated by way of special case for the opinion of the Full Court under r 27.08.1 of the High Court Rules 2004 (Cth) as follows:
Question 1: Do either or both of the plaintiffs have standing to seek the relief sought in the Amended Statement of Claim?
Answer: Tasmania abandoned its challenge to the plaintiffs' standing. Question 1 therefore need not be answered.
Question 2: Is [the Protesters Act], either in its entirety or in its operation in respect of forestry land or business access areas in relation to forestry land, invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?
Answer: In its operation in respect of business access areas in relation to forestry land, s 8(1)(b) of the Protesters Act is invalid. The Protesters Act is not otherwise invalid in its operation in respect of forestry land or business access areas in relation to forestry land.
Question 3: Who should pay the costs of the Special Case?
Answer: Tasmania.