This blog provides opinion on the implied freedom of communication and outlines the protection it provides before applying the test developed in McCloy v New South Wales to the Workplaces (Protection from Protesters) Act 2014 (Tas) and considering whether or not a high court challenge would be successful.
The Freedom
In 1992 the High Court found in Nationwide News[1] and ACTV[2] that as the Australian constitution established a system of representative government there was, by implication, a degree of protected freedom of political communication necessary to sustain that system.[3] This finding was based on the idea, enunciated in Unions NSW[4] that “…the free flow of communication between all interested persons is necessary to the maintenance of representative government...”
The freedom is an invention of the court and cannot be found anywhere in the constitution.[5] It is not an absolute freedom[6] or a positive individual right[7] but a “…qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may ‘exercise a free and informed choice as electors’.”[8]
Protection by the Freedom
The Australian Constitution does not recognize a free standing right to protest[9] or the American equivalent of a freedom of assembly or association.[10][11] The constitutional protection does extend to political communication at the state level[12] and covers non-verbal forms of communication[13].
The Constitutional Protection rises only indirectly following on from a finding that a law effectively and impermissibly burdens the implied freedom. Recently in McCloy v New South Wales a majority of the High Court set out an amended three step version of the two step Lange test[14] to assist in determining when this occurs. The questions to be asked are as follows:[15]
1. Does the law effectively burden the freedom in its terms, operation or effect?
2. Does the law pass the “Compatibility” test? - Is the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government?
3. Does the law pass the “Proportionality” test? - Is the law reasonably appropriate and adapted to
advance that legitimate object?
If the answer to the first step is yes and the second or third steps is no then the law is invalid.
Applying the McCloy Test to Case
Step 1 – Burden the Freedom
The Workplaces (Protection from Protesters) Act (TAS) creates a number of offences that may be committed by protestors, including invading or hindering business; causing or threatening damage or risk to safety on business premises; not obeying police directions to leave and stay away from a business access area; and preventing the removal from obstructions.[16] These are indictable offences and significant penalties apply.[17]
The Act also includes additional police powers when dealing with protesters reasonably believed to have committed, to be committing or about to commit an offence, including powers to demand proof of identity, to direct persons to leave business premises, to remove obstructions, to arrest without warrant and to remove persons from business premises or a business access area.[18] The police are entitled to use reasonable force in exercising these powers.[19]
A protester is defined as a person “engaging in a protest activity”, which in turn is defined as an activity that “takes place on business premises or a business access area in relation to business premises” and is aimed at furthering or promoting “an opinion, or belief, in respect of a political, environmental, social, cultural or economic issue.
Maina Kiai, a United Nations Special Rapporteur[20] commented that in democratic societies, demonstrations and protests are key to raising awareness about human rights, political, social concerns, including regarding environmental, labour or economic issues, and of holding not just governments, but also corporations accountable. By targeting protest activity the act clearly impedes this critical function and hinders political communication. [21]
It follows that the creation of these new offences & the provision of extra police powers to enforce them prevents protesters, who by definition are involved in promoting political issues, from undertaking a number of protest activities and places limits on their ability to politically communicate. Therefore, it can be safely assumed that the law does burden the implied freedom of political communication and the answer to this stage of the test is yes.
Step 2 – Compatibility Test
The purpose of the Workplaces Act is 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.[22] It is clear from the previous decisions of the high court that this purpose would pass the compatibility test as the maintenance of public order[23] and public safety[24] and the prevention of obstruction of public roads[25] are legitimate objects or ends compatible with the maintenance of the constitutionally prescribed system of government[26].
Step 3 – Proportionality Test
This is the critical test for any successful high court challenge. The test requires consideration of the suitability, necessity and adequacy in its balance of the legislation.[27] It requires a value judgment, consistent 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.
The Tasmanian Government argues that the legislation is necessary to prevent businesses being disrupted by radical protesters and to allow “…Hard working Tasmanians … to go to work free from deliberate interference by protest action that obstructs and disrupts those businesses…”[28] The legislation strives to achieve a form of industry versus protestor balance with the Tasmanian Minister for Resources emphasizing that the legislation did not seek to remove the right to protest, but rather to “ensure that it is exercised responsibly and lawfully so that others rights are not negatively impacted”[29]
The legislation attempts to achieve this balance in four key ways[30]. Firstly, Section 6 applies only to activities taken out on business premises or in business access area’s. Secondly, section 6 and 7 apply only to protect the carrying out of business actives or access to business premises and specifically exempts marches and events that pass by business areas.[31] Thirdly, the Legislation requires the mens rea that the person must be aware or reasonably ought to know that they are negatively impacting a business.[32] Fourthly, the police powers conferred by s10, 11 and 12 can only be exercised where the police “reasonably believe” an offence against the act is about to be / has been committed.[33]
The Tasmanian government argues that these four key ways provide sufficient balance to pass this test with protest activity outside the designated area’s not subject to the provisions of the legislation. Some support for this position can be found in Mulholland[34] where McHugh J stated “…protestors cannot complain about interference with, or prevention of their doing what they have no right to do anyway, for example, to communicate a protest on land on which their presence is a trespass…”
A similar balance was also recently found to be successful in the Occupy Sydney[35] Federal court case when Justice Katzmann decided that, the city’s prohibition to stay overnight in a busy part of Sydney’s central business district did not violate the implied freedom of communication recognised in Lange v Australian Broadcasting Corporation (1997). According to the Federal Court decision, the prohibition struck an appropriate balance with the legitimate aim of protecting public health, safety and amenity in a public and busy part of the city where people access the railway station and that needs to be cleared for regular cleaning and maintenance.
The legislation reflects the view that protest activities should not involve direct interference with lawful business activities.[36] This view makes no allowance for peaceful protest and suggests the law would almost certainly run afoul of Australia’s human rights obligations[37].
Critics of the legislation, such as David Kaye, a United Nations Special Rapporteur argue that the legislation is not balanced and “…“The law itself and the penalties imposed are disproportionate and unnecessary in balancing the rights to free expression and peaceful assembly and the government’s interests in preserving economic or business interests…” [38].
However Aroney and Finlay argue that the legislation is likely to satisfy the proportional test as the court will take the position that whether or not the balance struck by the Tasmanian laws is appropriate as a matter of legislative policy and that members of the High Court have maintained that the fact that a value judgment is involved in this balancing exercise “does not involve the substitution of the opinions of judges for those of the legislators upon contestable issues of policy”[39]
Following consideration, It is difficult to determine the answer to this test as there are strong arguments for both sides. Each judge will be required to perform a value judgement and this will have an unpredictable impact on the outcome. However, the complete removal of a form of protest without replacement of a viable alternative does seem to indicate that the legislation would fail this test.
Will a challenge be successful
A challenge to the Workplaces (Protection from Protesters) Act 2014 (Tas) will be successful if the high court follows on from its previous decisions and confirms the existence of the implied right to freedom of political communication and then conducts some form of compatibility and proportionally testing which, based on each judges values, finds the Act impermissibly burdens the freedom and, as a result, invalidates the Tasmanian law.
Bibliography
A Articles / Books / Reports
Aroney Nicholas and Finlay Murdoch, ‘Protesting the anti-protest laws: will a constitutional challenge succeed?’ (2016) 67, Australian Environment Review 70
Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws Final Report, December 2015 ALRC Report 129 [6.23].
D McGlone “The Right to Protest” (2005) 30 Alternative Law Journal 274
Sarah Joseph and Melissa Castan, Federal Constitutional Law, Thomson Reuters 4th Edition 2014 490
Michael Coper, ‘The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?’ [1994] 16(2) Sydney Law Review 185
B Cases
Attorney-General (SA) v City of Adelaide [2013] HCA 3
Australian Capital Television v Commonwealth [1992] HCA 45
Coleman v Power [2004] HCA 39
Lange v Australian Broadcasting Corporation [1997] HCA 25
Levy v Victoria [1997] HCA 31
McCloy v New South Wales [2015] HCA 34
Mulholland v Australian Electoral Commission [2004] HCA 41
Nationwide News V Wills [1992] HCA 46
O’Flaherty v City of Sydney Council [2013] FCA 344
Unions NSW v NSW [2013] HCA 58
C Legislation
Workplaces (Protection from Protesters)Act 2014 (Tas)
D Treaties
E Other
Dr Joyce, D ‘Is there a right to protest in Australia?’ 12 February 2016, Museum of Applied Arts & Sciences Blog, Accessed at www.law.unsw.edu.au/news/2016/02/there-right-protest-australia.
Paul Harriss , Protecting Workers from Radical Protesters, 22 October 2014 Tasmanian Government, Accessed at http://www.premier.tas.gov.au/releases/protecting_workers_from_radical_protesters
Tasmania Workplaces (Protection from Protesters) Bill 2014: Second Reading speech, Hansard (House of Assembly), 26 June 2014, p 1 (The Hon Paul Harriss MP (Minister for Resources).
United Nations, UN experts urge Tasmania to drop its anti-protest bill, 9 September 2014 - Accessed at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15002&LangID=E#sthash.pRpVR7Rv.dpuf
[1] Nationwide News V Wills [1992] HCA 46.
[2] Australian Capital Television v Commonwealth [1992] HCA 45.
[3] Sarah Joseph and Melissa Castan, Federal Constitutional Law, Thomson Reuters 4th Edition 2014 490.
[4] Unions NSW v NSW [2013] HCA 58.
[5] Michael Coper, ‘The High Court and Free Speech: Visions of Democracy or Delusions of Grandeur?’ [1994] 16(2) Sydney Law Review 185.
[6] Ibid n 2.
[7] Nicholas Aroney and Finlay Murdoch, ‘Protesting the anti protest laws: will a constitutional challenge succeed?’ (2016) 67, Australian Environment Review 70.
[8] McCloy v New South Wales [2015] HCA 34; at [2].
[9] Dr Joyce, D ‘Is there a right to protest in Australia?’ 12 February 2016, Museum of Applied Arts & Sciences Blog, Accessed at www.law.unsw.edu.au/news/2016/02/there-right-protest-australia.
[10] D McGlone “The Right to Protest” (2005) 30 Alternative Law Journal 274.
[11] Australian Law Reform Commission, Traditional Rights and Freedoms — Encroachments by Commonwealth Laws Final Report, December 2015 ALRC Report 129 [6.23].
[12] Ibid n 3; at [25]–[27].
[13] Levy v Victoria [1997] HCA 31.
[14] Lange v Australian Broadcasting Corporation [1997] HCA 25.
[15] Ibid N 7; at [2].
[16] Workplaces (Protection from Protesters)Act 2014 (Tas),s 6–9, read with s 10–11.
[17] Ibid n 15 s 16(1).
[18] Ibid n 15, s 10-13.
[19] Ibid n 15 s 14.
[20] Maina Kiai, United Nations Special Rapporteur on the rights to freedom of peaceful assembly and association
[21] United Nations, UN experts urge Tasmania to drop its anti-protest bill, 9 September 2014 - Accessed at: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15002&LangID=E#sthash.pRpVR7Rv.dpuf.
[22] Workplaces (Protection from Protesters)Act 2014 (Tas), Long Title.
[23] Coleman v Power [2004] HCA 39.
[24] Levy v Victoria [1997] HCA 31.
[25] Attorney-General (SA) v City of Adelaide [2013] HCA 3.
[26] Ibid 23.
[27] [27] McCloy v New South Wales [2015] HCA 34.
[28] Paul Harriss , Protecting Workers from Radical Protesters, 22 October 2014 Tasmanian Government, Accessed at http://www.premier.tas.gov.au/releases/protecting_workers_from_radical_protesters.
[29] Tasmania Workplaces (Protection from Protesters) Bill 2014: Second Reading speech, Hansard (House of Assembly), 26 June 2014, p 1 (The Hon Paul Harriss MP (Minister for Resources).
[30] Nicholas Aroney and Finlay Murdoch, ‘Protesting the anti protest laws: will a constitutional challenge succeed?’ (2016) 67, Australian Environment Review 70.
[31] Ibid n 29 at 70.
[32] Ibid 21 S6,
[33] Ibid n 29 at 70.
[34] Mulholland v Australian Electoral Commission [2004] HCA 41.
[35] O’Flaherty v City of Sydney Council [2013] FCA 344.
[36] Aroney Nicholas and Finlay Murdoch, ‘Protesting the anti protest laws: will a constitutional challenge succeed?’ (2016) 67, Australian Environment Review 70.
[37]http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15002&LangID=E#sthash.Bv6JDU1S.dpuf
[38] http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15002&LangID=E
[39] Ibid 33, at [32]