Richard Griggs writes an open letter [Open letter in support of free speech and reform in Tasmania, TT here] “…in support of free speech and reform in Tasmania” to ask that State Parliamentarians “…not rely on the existence of discussion and protest in the community as a basis to rescind forest reserves currently before Parliament.”
He adds that “Such an approach would set Tasmania back by diminishing the principle of free speech but also, at a practical level, setting the bar to reform in this State impossibly high.” He then cites the TFA Act 2013, writing, inaccurately, that the Act “…enables either House of Parliament to make a determination that there has been protest in the Tasmanian community and that proposed forest reserves should not proceed as a result.”
I respect Richard Griggs’ concern for civil liberties and I acknowledge the concern that exists among some Tasmanians that the durability provisions of the TFA represent an attack on our right to free speech. We saw such concern well up when the TFA Act 2013 was finally passed in the Parliament, when Richard Flanagan penned his impassioned I don’t agree ( TT here ). And there followed various other writers and many commenters who expressed concern with those provisions. Some others disagreed, but here on TT, many of ‘the regulars’ identified the Act as an attack on our right to free speech. We have to, according to their view, remain silent, or we will have the promise of the Forest Reserves taken from us.
Is this the case? Quite simply, the answer is No!
Richard Griggs urges our Parliamentarians not to use “discussion and protest in the community” as a basis for rescinding the the forest reserves “…currently before Parliament”. And in doing so he misrepresents what the Act actually provides. ‘Discussion’ is not, under the Act, a trigger for rescission. Nor is ‘protest’ a trigger. The trigger is failure of durability, which now includes the Mulder/Wilkinson additions: of substantial active protests or substantial market disruption and their definitions.
If readers go to the endnotes, they’ll see the Mulder amendment and the inept Wilkinson definitions and they’ll understand that what is commonly understood as ‘freedom of speech’ is not held hostage to the provisions of this Act. Clearly, if the loss of a substantial contract with the Japanese can be linked to some activity of Peg Putt and Markets for Change, that can be used by the Parliament to trigger a rescission of the intended Reserves and ultimately, in the first instance, of the Act. In the same way, so too can an active protest such as a SWST lock-on to machinery within a workplace thus causing a substantial loss of money to a company, be identified in the same way. Free speech is about the right to express and communicate one’s ideas. The right to self-expression, the right to hold opinions and to express them publicly does not entail a right to be able to enter a workplace, to lock on to equipment and to thus cause financial damage to a company and to its workers.
Our freedom of speech, an essential liberty, as envisaged by John Stuart Mill, always had qualifications. The High Court of Australia first found a ‘derived’ right to free speech in our Constitution, notably in July 1997, (Lange v the ABC) and in the same month Justice Kirby (Levy v Victoria) dealt with issues of limits to free speech and to protest. There, the High Court, decided, reasonably in my view, that in effect free speech is not free activism. It was a unanimous decision of the Court, though I shrink from presenting a view which could be portrayed as a ‘might is right’ endorsement. It is significant, in my view, simply because I feel the HJ and the 6 JJ s actually were honestly trying to come to terms with the question of to which areas of action can a person advance, under the banner of ‘free speech’.
Here is a fraction of what Kirby JJ had to say:
“A rudimentary knowledge of human behaviour teaches that people communicate ideas and opinions by means other than words spoken or written. Lifting a flag in battle, raising a hand against advancing tanks, wearing symbols of dissent, participating in a silent vigil, public prayer and meditation, turning away from a speaker, or even boycotting a big public event clearly constitutes political communication although not a single word is uttered. The constitutionally protected freedom of communication in Australia must therefore go beyond words. But where may the boundary be set to put limits so that the constitutional protection is not debased by extending it to every activity of ordinary life?”
His words do hit strongly and I acknowledge him for it and I say that Kirby’s question is central to the issue of the durability provisions of our sordid Tasmanian Forests Agreement Act 2013.
Kirby then went on to offer as a principle that
“Even in terms of individual human rights, freedom of expression, however important, is not absolute. International statements of human rights themselves acknowledge other rights or considerations which may conflict with free expression and which should also be respected and upheld”
‘All right’, one might say in reply. ‘But so much for the law … the High Court deals with matters legal, but what about matters moral?’
I’m not arguing Jenny’s and Miranda’s actions aren’t ethical. That Miranda wasn’t within her rights to protect the Observer Tree from FT’s subversion of the round-table forest principles moratorium. She was morally, ethically and legally within her rights to sit in that tree, in that place at that time – without any qualification. So too Jenny’s protests and representations. So too Peg Putt and Bob as they try to influence the markets. Our cause is our world and our environment in which we can all live. However, I ask, what is the best way forward? How to protect the forests? The TFA and the Act helped deliver that long sought after protection, for some of our native forests. It is now agreed, following now-ex Minister of Environment Burke’s recommendation, pursuant to the TFIGA, pursuant to the TFA and the round-table Statement of Principles to Lead to an Agreement and following Bob and Christine with the many other environmentalists, that a large chunk of our previously unprotected HCV forest shall become a part of the World’s Heritage Areas. In 10 months time another larger chunk will also become part of our reserve estate, providing in the name of higher purpose, forest activists don’t sink it and thus activate the cancellation of the Reserves and so too, the automatic repeal of the Act.
I urge readers, if they have got this far, to continue into my notes. And there they may see, that the truth and the devil, are the both in the detail. Most of our c.500,000Ha of High Conservation Value public native forest will be reserved under the Act. Jenny, Miranda, Peg and Bob: give these reserves a chance, please. It’s only 10 more months till the most of them will come into being, and till the Act can no longer be torpedoed by the Upper House. Read my notes, read Note 4. The Floz is now protected. So too the Observer Tree. But what about the Blue Tier on the way to Lotta, for which many, including Leslie Nicklason have campaigned for so many years? 10 more months? That’s less time than Miranda spent in our Watchtower, as it was first named. Come on comrades, ‘the forests first’!
NOTES:
1 Tasmanian Forest Agreement 2012
Clause 42 of the TFA: All elements of this agreement should be reviewed as part of each durability report, with key elements to be considered including progress with recognition of the agreed vision in legislation, implementing the reserve gazettals; achievement of wood supply commitments including specialty timbers; agreed transition plan and its implementation; short, medium and longer term residue solutions; ongoing public and proactive support for the outcomes of this agreement, including in markets for Tasmanian forest products; support for the recommendation that governments assess the World Heritage nomination; adequate progress with the achievement of certification, adequate and satisfactory outcomes in respect of this agreement, including but not limited to the clauses about Institutional Arrangements for Parks and Production Forest Management; equitable implementation of the industry restructuring and assistance packages; and support by governments for implementation of this agreement.
2 Tasmanian Forests Agreement Act 2013
Section 24 TFA Act 2013: Determination of substantial active protests or substantial market disruption
(1) Either House of Parliament may make a determination that there has been a failure of durability including, but not limited to, substantial active protests or substantial market disruption since the previous durability report or, if there is no previous durability report, since the commencement of this Act.
(2) The determination of a House of Parliament made under subsection (1) may be revoked by the House of Parliament that made the determination.
3 Tasmanian Forests Agreement Act 2013 (Section 3 – Interpretation)
substantial active protest means an activity that has a negative material impact on forest operations legally carried out or on any processing of timber legally carried out;
substantial market disruption means an activity that has a negative material impact on the sale of legally harvested Tasmanian timber;
4 Tasmanian Forests Agreement Act 2013 (Section21. Making of proposed reserve order)
(10) If –
(a) the Minister fails to make the initial proposed reserve order within the time specified in column 8 of the table set out at the end of clause 2 of Schedule 1 in respect of the future reserve land, this Act is repealed on the day after the date by which the initial proposed reserve order is to be made as specified in that column; or
(b) either House of Parliament does not accept the initial proposed reserve order, this Act is repealed on the date on which a House does not accept the order.
(11) If the Minister fails to make a proposed reserve order (other than the initial proposed reserve order), within the time specified in column 8 of the table set out at the end of clause 2 of Schedule 1, in respect of the future reserve land, Schedule 1 is repealed.
