What has happened?

On 23 October 2017, a majority of the High Court of Australia ruled that key provisions of the Workplaces (Protection from Protesters) Act 2014 (Tas) (Protesters Act) impermissibly burden the implied freedom of political communication arising under the Constitution: see Brown v Tasmania [2017] HCA 43. 

Under the Protestors Act:

• a "protester" is a person engaging in a "protest activity"; 
• "protest activity" is an activity that takes place on "business premises" or "a business access area" 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; 
• a "business premises" is "forestry land" and on which forestry operations are being carried out and a "business access area" includes land required to access business premises; 
• a protestor commits an offence if they obstruct or hinder business activities on a business premises or business access area within 3 months of being directed not to do so; and
• the Police are empowered to direct persons to leave and stay away from business premises and business access land and it is an offence to contravene such a direction.

In response to an application brought by the plaintiffs, a majority of the Court held that:

• the Protestors Act has the legitimate purpose of preventing business activities from being obstructed or hindered; but
• the offence provisions contained in the Protestors Act:
  • burden the implied freedom of political communication; and
  • were not reasonably appropriate and adapted, or proportionate, to the pursuit of that purpose.

Implications

In June 2016 legislation was passed in NSW which shares some similarities with the Protestors Act.  In particular:

• the Inclosed Lands Protection Act 1901 was amended to include a new aggravated trespass offence applying to land where a business or undertaking is underway; and
• the Crimes Act 1900 was amended to make it an offence to interfere with the carrying out of CSG operations.

It remains to be seen what effect, if any, the High Court's decision in relation to the Protestors Act will have for this NSW legislation.

Further information

For further information on this judgment and its potential implications for you please contact Marcus Steele, Director, on (02) 8005-1411 or marcus.steele@steelelaw.com.au.