The challenge to the Tasmanian government's anti-protest laws is set to be heard by the full bench of seven High Court judges early in 2017.
On January 25, Bob Brown and Jessica Hoyt were arrested in north-west Tasmania while peacefully protesting against logging when they walked into the Lapoinya Forest exclusion zone. They were the first protesters to be arrested under the controversial Workplaces (Protection from Protesters) Act 2014.
Although police dropped the charges in May, Brown and Hoyt mounted a High Court challenge against the act on the grounds that it contravenes the constitutional rights of citizens to peaceful protest and freedom of speech. Brown told a Hobart Town Hall meeting on December 14 the laws cut across Tasmanians' rights to political expression and should be struck down as unconstitutional.
United Nations special rapporteur Michel Forst has condemned the Tasmanian anti-protest legislation.
“From my discussions with the Tasmanian government, it has become clear that the government had prioritised business and government resource interests over the democratic rights of individuals to peacefully protest,” he said.
“I reminded the government that human rights defenders have a legitimate right to promote and protect all human rights, including the right to a healthy environment, regardless of whether their peaceful activities are seen by some as frustrating development projects.
“I therefore recommend that the laws criminalising peaceful protests are urgently reviewed and rescinded.”
As logging and mining corporations come under increasing fire for encroaching on farmland and places of high natural or cultural heritage value, a key strategy is to have governments outlaw political and environmental protest. Why should these corporations take legal action against citizens for defamation or trespassing if they can get compliant governments to crush dissent on environmental, social, cultural and Indigenous issues?
Victoria’s Cain Labor government introduced targeted penalties against protesters who were trying to save native forests and wildlife, including the state’s endangered faunal emblem Leadbeater’s possum. The West Australian government has legislated draconian anti-protest laws to assist mining. In New South Wales, the government has adopted harsh anti-protest laws at the same time as it cuts penalties for illegal behaviour by mining and coal seam gas extraction companies.
Only the Australian Capital Territory has passed legislation introduced by the Greens to ensure people’s rights to take part in the political discourse without the threat of being entangled in the courts and the huge costs those actions entail.
In Tasmania, the Workplaces (Protection from Protesters) Act passed with Labor’s support in 2014. It threatens peaceful protesters with initial $10,000 fines and with four years in jail for repeat on-site protests. The government assured the electorate that the legislation was aimed at “radical protesters” and not “mums and dads”.
Had it been enacted in 1982, the World Heritage-listed Franklin River, now a prime attraction for Tasmania’s booming tourism industry, would have been dammed because far fewer people would have joined the peaceful blockade. That blockade of the dam succeeded because it alerted the nation to the Franklin’s imminent peril. It changed votes and helped elect the anti-dam Hawke government in 1983.
The Lapoinyan community ran a public campaign about the imminent logging of its forest: it letterboxed leaflets, held film nights, wrote letters to politicians and newspapers and, when the minister for forests refused to go to Lapoinya, sent a delegation to Hobart to appeal to him.
The community was sure its case for saving its little patch of native forest, with its rare and endangered wildlife species, was compelling. When logging began regardless the forest protest began and Brown and Hoyt, among others, were arrested.
In November, NSW, which had just proclaimed its own anti-protest law, intervened in the challenge on the Tasmanian government’s side. Other state governments are likely to follow.
In early December, the Tasmanian government dropped its claim that Brown and Hoyt were trespassing when they were arrested. Tasmania had originally intended to argue they did not have standing to take the action before the court. Brown and Hoyt had maintained they were in a forest reserve when arrested.