Tasmanian Times

The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. No price is too high for the privilege of owning yourself. ~ Friedrich Nietzsche

The individual has always had to struggle to keep from being overwhelmed by the tribe. If you try it, you will be lonely often, and sometimes frightened. No price is too high for the privilege of owning yourself. ~ Friedrich Nietzsche


What Bob Brown’s High Court challenge is all about …

*Pic: Brendan Gogarty’s pic of a protest … ‘Criminals the lot of them: that is what people who stand against government plans ‘to rebuild Tasmania’s forestry industry’ could become under the new anti-protest law.’

*Pic: The moment of environmentalist Bob Brown’s arrest in 2016.

Criminalising dissent: anti-protest law is an ominous sign of the times

The Workplaces (Protection from Protesters) Bill – locally known as the “anti-protest” bill – was passed by Tasmanian parliament late on Tuesday night (This article is from November 2014). The law was introduced as part of the government’s intention to “re-build Tasmania’s forestry industry”. That is a source of controversy and division in Tasmanian society.

To achieve its aim, the government has committed itself to a wide legislative agenda. This includes: amending the uniform Defamation Act 2005 to allow large companies to sue protesters; defunding community and conservation organisations; and tearing up a “peace deal” between foresters and conservationists, which had been enacted into law before the 2014 election.

Recognising the potential return to hostilities, the government said it would “not try and appease” protesters, but would rather “toughen the law to deter them”.

The anti-protest law is its chosen mechanism of deterrence. While such hard-line policies on political opposition are not new, the severity and breadth of the law to enforce such a policy arguably is.

The shift from hard-line policy to hard-line law is worrisome in a constitutional democracy. The spread of state anti-bikie laws in Australia illustrates why this law is not just of concern for Tasmanians.

The business of silencing protests

The new law covers all acts on, or acts inhibiting access to, a business premises (all public and private land, including forestry and mining lands) which are:

… 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.
Any such protest is subject to significant penalties if they interrupt “business activity”. While originally such sanctions were mandatory, the government agreed in the upper house to exchange these for discretionary penalties.

However, the government agreed to this only on condition that the subsequent maximum penalties would be significantly increased. This was to “send a strong message” to protesters and the courts charged with punishing them. As a consequence, protesters who repeatedly interrupt business face fines of up to A$10,000 and four years in jail.

From its inception, the law has been criticised by domestic and international lawyers. Three United Nations human rights rapporteurs considered the bill to breach international law, one describing it as “shocking”. They considered the legislation, as originally envisioned, to be:

… disproportionate and unnecessary [creating a] chilling effect of silencing dissenters … [who are] key to raising awareness about human rights, political, [and] social concerns … holding not just governments, but also corporations accountable.
A wide range of legal professionals have voiced similar criticisms. While the removal of mandatory penalties alleviated some concerns, the larger concern about a law designed solely to punish people for protesting against controversial business activities – especially publicly supported and funded ones – remains.

Right to protest? What right?

Australia is the only western democracy to lack an entrenched bill or charter of rights. Nor do we enjoy a strict separation of powers doctrine to keep governmental power in check. Our civil rights are entirely the product of our parliamentary process – and entirely vulnerable to it.

The only thing that ensures this process operates in the public interest is the ability of electors to openly exchange criticism of governmental action, free of pressure or retribution, so that government remains representative and responsible. As High Court justice Brennan said:

It would be a parody of democracy to confer on the people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgements.
Tolerance of divergent ideas and expressions is important in any democracy, but in Australia, where we have few other protections, it is vital. That principle extends beyond mere words, but to acts and places too.

If the government controls where or how people say things it can greatly inoculate the strength of a political message, if not extinguish its impact altogether. In a society awash with information, individuals must adopt varying – perhaps sensational – approaches and measures to publicise dissent and disagreement with mainstream policies. That is not least because their message may not accord with the views of those who control dominant public forums.

That is not to say all speech should be unfettered; the government has a duty to regulate actions that undermine the public interest. It must also protect people’s business from criminal activities. However, such legal protections must be tailored and balanced against the constitutional obligation to ensure freedom of political expression.

Law turns protest into a crime

Unfortunately, the anti-protest law does not seek to engage in such a balancing process at all. Despite being pitched as “protecting workers’ rights”, the Tasmanian law makes no mention of industrial, political or other civil rights – it solely focuses on sanctioning protest. Nor does it provide legislative direction on how such rights and duties should be balanced.

In fact, workers’ rights and business interests are already protected by a wide range of civil and criminal laws. The anti-protest law seeks to do something more, specifically to scare people off protesting – that is, “expressing objection to or dissent” about matters of public interest – by turning protest into a crime. It does so without providing any commensurate recognition of the constitutional importance of political protest, expression or dissent.

Previous protest and assembly laws have tended to be written cautiously, reinforcing rights as much as taking them away – for example, the Peaceful Assembly Act 1992 (Qld). The Tasmanian law is, simply put, brutal. It does not appear to once engage with the responsibility of government to foster all forms of political expression, even the types it doesn’t like; especially those types.

The anti-protest law indicates a move away from self-imposed governmental restraint towards a “get things done at all costs” attitude, even if the costs are disproportionate, unjustified and antithetical to Australia’s constitutional system. This law raises serious questions about the current attitudes and commitment to representative and responsible government in this country.

First published, November 2014, in The Conversation here

Bob Brown confident on forest protest law win ahead of High Court hearing in Canberra

Bob Brown urges High Court to overturn Tasmanian protest laws

Author Credits: [show_post_categories parent="no" parentcategory="writers" show = "category" hyperlink="yes"]


  1. Robin Charles Halton

    May 13, 2017 at 10:17 pm

    #33 jonboy Its what hypocrites do

  2. TGC

    May 12, 2017 at 12:44 am

    #14 “Thankyou Bob for having the courage to shoulder the burden of democracy.”
    I looked it up- there is no burden in democracy.

  3. jonboy

    May 11, 2017 at 9:37 pm

    I find it somewhat hypocritical of Bob Brown going on about free speech and the right to protest even if it is on a workplace and placing both protesters and workers at risk of harm from machinery and yet the Greens were the ones who brought in legislation preventing a peaceful protest within 150 metres of an abortion clinic.
    Depends on whether you are pro abortion and anti forestry. Someone can be 149 metres from a clinic and be charged and convicted of just standing on a street with a placard, no disruption to what is going on at the clinic or preventing or harassing anyone from entering or leaving. Has everyone conveniently forgotten this law in the free speech and protest debate.

  4. garrystannus@hotmail.com

    May 11, 2017 at 2:27 pm

    It chews them up,
    they froth and bubble
    with nasty words
    they ever trouble…

    Demented, senile, apoplectic rage
    they write and scorn on every page
    One day they’ll pass and we’ll have peace
    from angry dotards and squawking geese.

  5. Robin Charles Halton

    May 11, 2017 at 11:33 am

    The courts system should just let this attention seeking time wasting deluded Bob Brown’s claim drag on until his natural demise.

    The State Government is pretty good when it comes to letting things drag on, could ask Peter Gutwein for his advice on the matter!

    We also should be aware in two years time the 357,000ha of State Forest currently in a limbo status “will” be freed up for Production in accordance with the terms of the TFA legislation 2013!

    The Lower House Liberals already have new Legislation ready preempting an earlier start, but that is unlikely now the latest numbers in the Upper House would not support the change until 2019-20

    By then there should be nothing to scream about, HVC areas will be non existent as the Forest Practice Code should determine which areas should be reserved as production returns to the areas, some of which are pre roaded and registered as production coupes.

    There is no doubt the nuisances will return to the forests crying out “rape of HVC forests ect”!

    Police should just bundle them off charge them and leave it to the kangaroo court system decide to let them wallow like fools without any further proceedings.
    “Time shall weary their numbers”

  6. max atkinson

    May 10, 2017 at 10:25 pm

    It is an interesting question but I am not sufficiently familiar with Continental systems to give a confident answer.

    I cannot, however, see how the problem can be avoided if it is inherent in the use of general terms to describe a class of acts, because there will always be argument at the edges as to what is within the class.

    Take a by-law which prohibits ‘vehicles’ in the park. Everyone knows this excludes trucks, cars, buses and motorcycles, but what about prams, wheelchairs, bicycles, scooters, hovercraft etc?

    A sensible approach is to define ‘vehicle’ in this degree of detail in advance, but this is not practicable in all cases so it is left to the judge to interpret the law.

    The question is how should a judge decide these borderline cases, and the conventional answer is that she has a ‘discretion’ to legislate to fill in the gap, which means she is free to decide by considering, as a politician would, what is in the best interests of the community.

    When it comes to the abstract language of a bill of rights, this theory allows judges to rule for or against rights (which have not been clearly settled in past decisions) by citing their own opinion of what is in the best interests of the nation.

    The case against a bill of rights for Australia rests largely on a belief that rights cannot and must not be decided in this utilitarian fashion because they have nothing to do with what benefits or is a cost to the nation.

    Their role, rather, is to protect individualist values such as fairness, freedom and human dignity against majoritarian interests and utilitarian goals.

    In summary, I agree that judges do not have a quasi-legislative discretion to decide what rights we have under a bill of rights, but disagree with the claim that this is what they must be doing when they decide unclear cases under such a bill.

    As John Hayward says, ‘this is a furphy worthy of Trump himself’.

    Max Atkinson

  7. Leonard Colquhoun

    May 10, 2017 at 1:32 am

    This University of California (Berkeley) article may be helpful in thinking about the question in Comment 26:


  8. TGC

    May 10, 2017 at 1:17 am

    #25 One assumes #23 drives to “the supermarket”
    anyway. But maybe not-Walk? Pedal?

  9. garrystannus@hotmail.com

    May 9, 2017 at 11:58 pm

    Well that’s an interesting question, Simon (#26): I was chatting once to Barbara Etter (referring to Evan Whitton’s promotion of a move to the inquisitorial (French) legal system, and she noted that there were perhaps some problems – apart from our own Anglo deficiencies – also in that judicial system. I await, with interest, a reply from Max.

  10. Simon Warriner

    May 9, 2017 at 9:31 pm

    re 15, Max, to what extent would the issue you raise in your last para be resolved by a move to a napoleonic legal system? Not trying to be clever, just looking for a legal academic’s take on the issue.

  11. Leonard Colquhoun

    May 9, 2017 at 2:06 pm

    Could 24’s “Shop where service is the only choice” lead to ethical dilemmas (whether real, faux, celebriste, vanity or look-at-me), as in driving to such a shop uses up more (boo! hiss!) fossil fuels?

    Such pee-cee angst!

    Much like all those Green worthies, their flunkeys, their cheer squads and their pawns, and their pet pollies flying tens of thousands of miles to get to their latest “Save Gaia!!!!!” yadda-yaddathon.

  12. TGC

    May 9, 2017 at 12:30 am

    #23 “I will use the self check out at the supermarket only when there is no other choice”
    A good example of ‘compromises are always a necessity’- except in the example given it doesn’t have to be if one is ‘fair dinkum’
    Shop where service is the only choice.

  13. philll Parsons

    May 8, 2017 at 6:37 pm

    #19. I will use the self check out at the supermarket only when there is no other choice.

  14. Dave Parsell

    May 8, 2017 at 2:29 pm

    Isn’t it really about Bob Brown just trying to draw attention to himself,the same as it always is!

  15. philll Parsons

    May 8, 2017 at 2:53 am

    #16. I just love your description of wind power, solar pv and battery storage as cottage industries. It shows you up.

  16. Jon Sumby

    May 8, 2017 at 1:14 am

    Re #18, PHilip Lowe, did David Bellamy tell you how he is convinced that Global Warming (Climate Change), is a fake and a lie based on his research that was funded by oil companies?

  17. TGC

    May 8, 2017 at 12:26 am

    #12 “No one seems to care a rats arse (as you put it) to stop the rise of machinery taking jobs.”
    Much as ‘machinery’ has done in retail.

    #18 Apparently not fatal

  18. PHilip Lowe

    May 6, 2017 at 8:58 pm

    I ran into David Bellamy in Cumbria this week.We remembered the Franklin Dam and he sends his regards to you all.He said,”we won”.

  19. john hayward

    May 6, 2017 at 6:49 pm

    The argument that both a bill of rights and an implied freedom of political communication amounts to according legislative powers to “unelected judges” is a furphy worthy of Trump himself.

    Australia is unique among developed democracies in having no bill of rights. A Court which has the duty of reviewing the validity of legislation can do no more than interpret the legislation, which, if invalid, goes back to the legislature. Our federal A-G has demonstrated that he has a very uncertain grasp of the law or its principles, while the Fed Parliament has repeatedly demonstrated a shaky understanding of a constitution which no one has described as a work of genius.

    If you want a simple, expeditious, and unambiguous system, elect Abbott, Lennon, or Abetz as king.

    John Hayward

  20. Robin Charles Halton

    May 6, 2017 at 12:19 pm

    Too much attention seeking by our enemies the Greens who do little to contribute anything reasonable to society.

    Pests, nuisances however one labels them they now contribute little to society as a whole.

    They grizzle and complain about progress and expect we exist within a cottage industry framework and open our borders to anybody who wishs to come to Australia to harvest welfare.

  21. max atkinson

    May 5, 2017 at 11:02 pm

    Garry Stannus takes the debate to a more interesting level in his comments, and by highlighting the summary of Bob Brown’s appeal to the High Court.

    His reference to George Williams’ article is also useful for anyone interested in the brief but complex history of the implied freedom of political communication. Although the High Court insists this freedom does not confer a ‘right’ it is the closest we have to the right of free speech in the American bill of rights.

    Williams’ article, however, dates back to 1996/7 and there have been important decisions by the High Court since then, notably Unions NSW v NSW in 2013 and McCloy v NSW in 2015. The latter both clarifies and reaffirms the elaborate process of reasoning set out in Lange v ABC in 1997 to determine whether a law is invalid because it unduly restricts the implied freedom; it is now the leading authority on this modern foundation stone of Australian constitutional democracy.

    There is a useful summary of the McCloy test in a recent Tasmanian case in which the implied freedom was argued in defence to a charge arising from a protest conducted within a zone prohibited by laws aiming to protect persons seeking abortion services.

    That case (Police v Preston and Stallard) was decided in favour of the prosecution in July 2016 by magistrate CJ Rheinberger, and an appeal was taken to the Supreme Court, but adjourned until the High Court ruling in the Bob Brown appeal. The relevant passage is sections 30 to 32 inclusive on pp. 9 and 10 of the judgment. (I tried to download these into MS Word for TT but without success). They give readers an idea of just how qualified and technical the test has become.

    There is, however, a reason why the test has been so carefully stated and hemmed in by qualifications. It is an attempt by the High Court to address the concern Garry raises (which is probably shared by most practising as well as academic lawyers) that the implied freedom has ‘opened a can of worms’. Garry puts it in simple and clear terms:

    ‘in my view, the justices of this land are often willing to make use of their statutory discretions, or (in the case of the High court) their interpretive abilities, in order to give effect to their own societal predilections. And in the case of the High Court, in my view, they have improperly attempted to take on the role of a de facto legislature.’

    This goes to the heart of a debate which has shaped a great deal of legal and political philosophy for at least fifty years. For the same criticism is also the main reason why proposals for an Australian Bill of Rights have never got off the ground and are unlikely to do so. It would, conservative critics agree, mean a wholesale transfer of legislative power to unelected judges.

    While I believe this skepticism is ultimately misconceived, it does raise fascinating questions about the responsibility of judges when interpreting the abstract terms and concepts found in a bill of rights.

    Max Atkinson

  22. John Hawkins

    May 5, 2017 at 1:48 pm

    I suggest that the reason for dropping the charges was that the slip sliding Green haters in the Tasmanian Government did not want see its new laws being tested before the High Court?

    It will be interesting to see how this pans out.

    You cannot beat a right wing Facist Tasmanian Government out to jail its citizens without a challenge from those who respect our freedom to protest in a good cause.

    Thankyou Bob for having the courage to shoulder the burden of democracy.

  23. garrystannus@hotmail.com

    May 5, 2017 at 12:34 pm

    Thanks John Hayward, though the subject matter is grim, your post (#11) brought a smile to my face. A lovely way to start the day! And yes, they don’t want us to have a Bill of Rights, do they!

    Look, I tried to sort out my ideas on that implied freedom of political expression, and I think I failed to point out that the discovered implied freedom is qualified…

    For a law to be inconsistent with the implied freedom of political discussion it must first be shown that it impinges upon political discussion and secondly that it does not adequately serve, or is disproportionate in its impact upon political discussion in serving, some other legitimate purpose. It is obviously very difficult to determine exactly when speech falls within the ambit of political discussion. [See George Williams’ discussion paper: Here< ]

    And further, in my view, the justices of this land are often willing to make use of their statutory discretions, or (in the case of the High court) their interpretive abilities, in order to give effect to their own societal predilections. And in the case of the High Court, in my view, they have improperly attempted to take on the role of a de facto legislature.

    In my view, we need something like a Bill of Rights – written in strong, simple terms – which guarantees us our civil liberties, and safeguards us from the predations of our government and judiciary.

    There is one issue remaining, that I should mention: Were the Lapoinya protests* acts of political communication … and are acts of protest, such as forest protests, necessarily ‘acts of political communication’? There were protesters lining the road into the coupe who were not arrested, while those inside the coupe were. Were those inside the coupe engaging in acts of political communication, or were they trying simply to prevent the logging from occurring? Were they trying to do both? That is, was the fact of stopping work at the site by walking into it, their means of political communication and thus, an ‘act of political communication? Does ‘political communication’ include acts which are designed to get a political message across to the general public, via the media attention – the attention that arrests usually bring?

    *by the way, the charges against Bob Brown and Jessica Hoyt were dropped. In Bob Brown’s case, this was because he, when arrested, had been in a forest reserve. I’m not sure, but I think it likely that Jessica Hoyt’s charges were dropped for the same reason. Charges against others who were arrested at the protest site were also dropped, because police had failed to give proper instructions to those they arrested.

  24. Pete Godfrey

    May 5, 2017 at 12:28 pm

    #10 Robin, good that you mention the ever shrinking workforce in the forest harvesting industry.
    I remember Paul Lennon was asked to stick to the agreement the government made, with the Tasmanian people under the Tasmanian Together process.
    When asked to end the old growth logging, he claimed that 10,000 jobs would be lost if he did.
    The premier of Western Australia had just stopped old growth logging and took Lennon to task on his statement.
    So now with Bunch Harvesters, B double trucks, Cable Logging machinery, Hew saws, computer controlled sawmills, chainsaws and such the workforce has shrunk considerably.
    No one seems to care a rats arse (as you put it) to stop the rise of machinery taking jobs.
    It is not an industry anyway it is a subsidy collection agency.

  25. john hayward

    May 5, 2017 at 2:31 am

    I am probably wasting my time, but Stannus #7+8 and Colquhoun # 9, seem unaware that arbitrary power conferred on Australian government agencies not subject to a democratic bill of rights contravenes the most basic principles of democracy.

    Tas laws are composed by Tas politicians, with all their ethical wisdom and integrity.

    John Hayward

  26. Robin Charles Halton

    May 5, 2017 at 12:41 am

    #9 Bob Brown is only trying to get the attention of the High Court to create an exclusive zone of reassurance for him and his supporters so they can create a bloody nuisance as Forest Minister Guy Barnett is ready to release the 357,000 ha of State forest currently held in suspension as future production forests.

    His mob will do everything to stop timber production from native forests as they couldnt give a rats arse about local timber production and the workforce dependent on the native forests for employment for producing timber products in particular quality sawn timber.

  27. Leonard Colquhoun

    May 4, 2017 at 2:35 pm

    Re the claim in Comment 5 about “some forms of protesting [being] no more than an economic time wasting bloody nuisance value”: relatively true (especially with its intelligent use of “some”) as some protests are little more than look-at-us acting out for the ‘true believers’ and / or for media headlines – regardless of any negative responses among the general population.

    Consider these two recent Tasmanian campaigns, the Greens one against ‘forestry’ (a useful one-word identifier) and the one led by (the late and much lamented) Bob McMahon against the Tamar pulp mill: the first continues to fail (as shown by ongoing protests, for one thing), the other succeeded (as shown by the abandonment of that enterprise). And consider why.

  28. garrystannus@hotmail.com

    May 4, 2017 at 2:33 pm

    …/The High Court has now reserved its decision. I’ve struggled with some of the issues pertaining to the case, but I’d like to offer my prediction as to a possible outcome. Federal law over-rides state law … that’s an established fact. The Constitution of Australia is a Federal law. The High Court says that in our Constitution, there exists an implied freedom of political communication. The State of Tasmania seeks in its Workplace (Protection from Protesters) Act 2014 (Tas) to proscribe an act of political communication if it is preventing, hindering or obstructing or is about to prevent, hinder or obstruct a “business activity” at any “business premises” or “business access area”. If I was a gambler, I’d have ‘two bob each way’ on the outcome, but I would think that the crunch point might be whether an act of political protest, of knowingly hindering a business etc can be viewed as an act of political communication. I would also opine that the HCA will seek to establish limits to such acts of ‘political communication’. If the Court doesn’t, then the ramifications, in my opinion, are wide. Would not all ‘political communication’ (for example the trespass protests at the pulp mill site) thus be allowed under the implied right to ‘freedom of political communication’? When, in my opinion, the HCA found that implied right to exist, they opened a can of worms. I have a literal (conservative) approach to the interpretation of the law, and I think the High Court goofed up in finding that implied right. I also think that the Court will find a way out of the ‘law and order’ problem they created for themselves. And there will be no stopping them – they are the highest court in the land and for even the Federal Government to contradict the Court’s decision, would require a change to our Constitution. It’s an interesting case…

  29. garrystannus@hotmail.com

    May 4, 2017 at 2:32 pm

    How did it go in the High Court? What legal argument did Roland Browne put to the Court on behalf of the Bob Brown Foundation? And what were the legal arguments in reply? Implied right of free speech v worker / employer workplace rights v public forests and citizens rights to peaceful protest in public forests & the Australian Constitution … the implied right to free speech.

    Well, even if the media seem to be ‘under-reporting’ the case, I’ve just found on the HCA’s website (current cases – submissions [Here]) access to the transcripts/various documents … here is a copy of the particulars of the case:


    Date Special Case referred to Full Court: 13 December 2016

    The issue in this proceeding is whether the Workplace (Protection from Protesters Act)
    2014 (Tas) (‘the Act’), in whole or in part, contravenes the implied freedom of political
    communication in the Commonwealth Constitution.

    The plaintiffs were each arrested and charged, purportedly under the Act, in early 2016
    as a result of their onsite political protest against the proposed logging of the Lapoinya
    Forest in Tasmania. The respective criminal proceedings against them were
    abandoned by the police after the commencement of this proceeding. The plaintiffs
    contend that the Act is either wholly invalid or, at the least, is invalid in so far as it
    applies to forestry operations on forestry land as defined in s 3 of the Act.

    The Act allows police officers to prevent the commencement or continuation of an onsite
    political protest that they reasonably believe is preventing, hindering or obstructing or is
    about to prevent, hinder or obstruct a “business activity” at any “business premises” or
    “business access area” as defined in s 3 of the Act, anywhere in Tasmania. The key
    provisions empower police officers to prevent the commencement or continuation of
    onsite political protests by directing the protesters to leave and stay away from business
    premises and business access areas for up to three months under pain of arrest and of
    criminal penalties if they do not do so.

    The plaintiffs contend that ss 6 and 7 of the Act target and single out for prevention and
    punishment onsite political protest and protesters without any broader purpose of
    preserving, enhancing or protecting political communication. Further, they contend that
    no reasonable provision has been made in the Act to preserve or protect political

    The defendant contends that the Act protects (amongst other things) business activity
    lawfully carried out on land in the lawful possession of a business operator, and that the
    plaintiffs are seeking to prevent, hinder or obstruct activity of that nature. They submit
    that the Act does not restrict protest activity on land other than business premises or
    business access areas; it has a narrow operation and effect; it is compatible with the
    freedom and is in any event reasonably and appropriately adapted to the fulfilment of a
    legitimate purpose.

    On 13 December 2016 Gordon J referred the Special Case for consideration by the Full
    Court. Notices of Constitutional Matter have been served. The Attorneys-General for
    the Commonwealth, Victoria, New South Wales, Queensland, and South Australia have
    filed Notices of Intervention. The Human Rights Law Centre has been granted leave to
    appear as amicus curiae, limited to submissions in writing.

    The question in the Special Case is:

    • Is the Workplace (Protection from Protesters) Act 2014 (Tas), either in its entirety
    or in its operation in respect of forestry land, invalid because it impermissibly
    burdens the implied freedom of political communication contrary to the
    Commonwealth Constitution?


  30. Robin Charles Halton

    May 4, 2017 at 12:20 pm

    In other words the High Court should ignore Bob Browns dribble as the days of his followers creating a nuisance in the forests is over.

    The Tamar Valley Pulp Mill is no longer an issue nor is the Gunns Triabunna Mill, its finished so can we please move on.

    Big issues facing this country are national security, reliable electricity infrastructure, affordable housing, immigration cautions, and of cause jobs, jobs, jobs and reasonable access to education and health care.

    Bob Brown has entered the dinosaur status, forget him, he is history and the sooner he fades away the better.

  31. Robin Charles Halton

    May 4, 2017 at 4:48 am

    What are we going to do with these idiots when it comes time for Australia to wake up to itself and enforce national service upon those fit and able to be prepared to defend democracy in this vast country of ours with our coalition partners, the US, NZ and Japan against the continues threats of nuclear war by North Korea.

    As far as I am concerned the High Court should continue to remain as our top kangaroo with its proceeding as some forms of protesting remains no more than an economic time wasting bloody nuisance value!

  32. john hayward

    May 3, 2017 at 9:24 pm

    It should be remembered that free speech in Australia is only an “implied” right confined to political speech pursuant to the constitutional prescriptions for representative democracy.

    It is thus subject to the discretion of judges who, like Dyson Heydon, already tend toward the conservative end of the spectrum, even without the possible, even likely, addition of new judges on the order of Geo Brandis.

    If Aussie democracy, without any bill of rights, were a frog in a pot of water, it would probably be already starting to simmer.

    John Hayward

  33. philll Parsons

    May 3, 2017 at 7:34 pm

    #1. As the media champions freedom of speech whenever it suits their agenda, one would think they would do so now.

    To put the responsibility for the defence of free speech onto one group is to deny that each and every citizen, and especially those who make their living from it, are responsible for it’s defence.

    Not only is it an inalienable right in a democracy, provided any security needs of the State are not breached, it is essential for it’s function.

    It is not a divisible item where there is some free speech for some, a little for others and none for those you don’t like or agree with.

    The High Court may fail to defend protest as a form of free speech but that will reduce its standing in the community and be to its everlasting shame.

  34. max atkinson

    May 3, 2017 at 7:20 pm

    Thanks to TT for keeping its eye on the ball.

    This is an excellent article on one of the most important questions to come before the High Court in recent years. It is important because it will determine the right of governments, of whatever persuasion, to shut down dissenting opinions as well as access to, and a better understanding of, the evidence they are based on.

    The case will almost certainly turn on a difficult and complex question of constitutional law viz., what is the proper scope of the implied freedom of political communication, and more particularly whether the test as restated by the High Court in McCloy’s case in October 2015 is not merely the right test but the only test.

    It will be interesting to see whether the Court will take the same balanced approach it took in McCloy, when it ruled that the implied freedom of political communication (which had been relied on by real estate developers to defeat NSW laws banning donations to councils and politicians) was in effect trumped by a countervailing implied principle viz., the principle of equal access to political power.

    In the present case both principles are arguing in the same direction, because equal access to the exercise of political power is enhanced when the implied freedom is interpreted expansively (and realistically) to limit the huge financial power of corporations to enlist government in efforts to drown out or discredit dissent.

    Whatever happens, one hopes the author will in due course consider a review or summary of the High Court decision for TT readers.

    Max Atkinson

  35. john hayward

    May 3, 2017 at 3:08 pm

    This article is a re-print from Nov 2014. The Bill became Tas law and an even more grotesque legislative travesty the following month. The Fed Govt and all states bar WA are supporting the Tas LibLabs in the case.

    A few days ago saw the commencement of Bob Brown’s challenge to the PfP law in the High Court. Very few politicians understand or care about either jurisprudence or democratic principles.

    It’s disappointing that neither the Greens nor the Bob Brown Foundation seem to have done much to keep the public abreast of the free speech implications of the case.

    John Hayward

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