“My salad days, when I was green in judgement, cold in blood.”
— Shakespeare, Antony and Cleopatra
The destruction of Tasmania’s pristine wilderness areas, first by dams and then by logging, has been a focus for environmental protests at least since the flooding of Lake Pedder in 1972. Bob Brown, the founding leader of the Greens, has been a central figure in much of that history, as he was again in January 2016 when he was arrested after refusing to leave the Lapoinya Forest. Along with another protester, Jessica Hoyt, who had been arrested five days earlier, he was charged with an offence under Tasmania’s Workplaces (Protection from Protesters) Act 2014. Although the charges against them were dropped, they went to the High Court to argue that the relevant provisions were unconstitutional.
Last week a majority of the High Court held that they were right. At that point, the environmental history merged with constitutional history.
Unlike the US Constitution, among others, Australia’s founding document does not contain a judicially enforceable Bill of Rights. But almost from the moment he joined the High Court in 1975, Justice Lionel Murphy began to argue that guarantees of basic personal rights were implied in the Australian Constitution. Most of his suggestions fell on deaf ears. But in 1977 — not quite forty years before last week’s decision — he argued that “the system of representative government” established by the Constitution gave rise to “an implication of a constitutional guarantee” of “freedom of movement, speech and other communication.” And in 1992, at least regarding “speech and other communication” relating to political matters, his argument was accepted.
From the beginning, the High Court insisted that the guarantee of systemic “freedom” did not protect individual “rights”: its focus was on the necessary conditions for representative government, not on the rights of individual citizens. Even so, the 1992 decision was immediately controversial — so much so that it looked as if it might soon be overturned. Instead, in Lange v Australian Broadcasting Commission — which was decided in 1997, twenty years before last week’s decision — “the implied freedom of political communication” was reaffirmed by a unanimous court.
To determine whether legislation interfering with the freedom was invalid, the Lange judgement formulated two questions that have since evolved into three. As Justice Gageler simplifies their excessively laborious language, the questions now read as follows:
Does the law effectively burden [in other words, limit or hamper] freedom of political communication?
Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of government?
Is the law reasonably appropriate and adapted to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government?
The language of this last test has itself been controversial. Though “reasonably appropriate and adapted” is a traditional High Court formula, some judges have preferred a test of “proportionality,” which itself comes in many different versions. The version currently most in favour is among those commonly referred to as “structured proportionality,” and is again broken down into three questions:
Is the law suitable, in the sense that it has a rational connection to its purpose?
Is it necessary, in the sense that there is no obvious and reasonably practicable way of achieving the same purpose with a less restrictive effect on the freedom?
Is it adequate in the balance it strikes between the importance of its purpose and the extent of its restriction on the freedom?
The last question relating to “balance” has been particularly controversial.
The Brown case and environmental protest
The Workplaces (Protection from Protesters) Act of 2014 was a sequel to the Forest Management Act of 2013, and the relationship between the two became the subject of intense and sometimes conflicting analysis. The Forest Management Act already contained elaborate provisions for the “management” of entry to forest areas, including liability to arrest and fine for failure to comply with a police officer’s directions. But the Protesters Act went further, and was aimed specifically at “protesters” (defined, in part, as those participating in “a demonstration, a parade, an event, or a collective activity, that is a protest activity”). Section 6 prohibited any entry to “business premises,” or action on “business premises” or “a business access area,” which might “prevent, hinder or obstruct” the conduct of “a business activity.” “Business premises” were defined to include “forestry land.”
Under section 11, if a police officer “reasonably believes” that a person on “business premises” or “in a business access area” has committed an offence under the Act or might be about to do so, the officer can direct the person to leave. The direction could include a “requirement” not to contravene the Act within the next three months, and if the direction was to a group, it was binding on every member of the group who could reasonably be expected to have heard it.
Under section 8, any person who remained on “a business access area” after being directed to leave was guilty of an offence; and so was any person who entered “a business access area” within four days of having received a direction under section 11.
Business premises? Chief Justice Susan Kiefel and two other judges found the concept vague. Mick Tsika/AAP Image
Section 13 authorised the immediate arrest (without warrant) of any person whom a police officer “reasonably believes” to be contravening the Act or to have done so within the past three months. Part 4 allowed offences to be prosecuted either summarily (with individual fines up to $5000) or by indictment (with individual fines up to $10,000).
The joint judgement delivered by Chief Justice Kiefel (joined by Justices Bell and Keane) focused primarily on the fact that the concepts of “business premises” and “business access areas” were so vague when applied to forestry land that it would “often not be possible” for either protesters or police to know whether particular areas were subject to the legislation or not. The vagueness was underlined by the fact that all of the nine charges so far laid under the Act (including those against Bob Brown and Jessica Hoyt) had been discontinued “because the direction given was not correctly referable to ‘business premises’ or a ‘business access area.’” In short, the absence of any clear definition meant “that some lawful protests will be prevented or discontinued” for no legitimate reason; that “protesters will be deterred from further protesting”; and “that protests will be stifled when they should not be.”
This unnecessary deterrence of protest was what the joint judgement saw as a “burden” on political communication. The fact that the Act was discriminatory (applying only to protesters) was not seen as a “burden” in itself; but it did serve to focus attention on the consequences for their political communication.
The joint judgement conceded that the legislation had a legitimate purpose (to protect “forest operations” against “damage and disruption from protesters”). As to whether the statutory prohibitions and penalties were an acceptable way of achieving that purpose, the judgement moved to the trilogy of criteria associated with “proportionality” — suitability, necessity and balance. Two of the specific provisions failed at the first of these hurdles — the prohibition under section 8 of entry into “a business access area” within four days after receiving a direction; and the possibility under section 11 of “blanket exclusion of a whole group of persons from an area by a single direction of a police officer.” These provisions had nothing to do with a risk of “damage and disruption”; their only effect was the deterrence of protest.
The remaining provisions failed at the second hurdle (“necessity”). Primarily this was because the prevention of “damage and disruption” had already adequately been achieved by the Forest Management Act, which was clearly “less restrictive of the freedom.” While the Protesters Act no doubt achieved an additional level of deterrence, it did so primarily by “extending the areas of its operation” and by the “uncertainty” surrounding those areas. Given the limited legislative purpose (already largely achieved by the Forest Management Act) this was “too high a cost to the freedom.”
Accordingly, the joint judgement found the criteria of “suitability” and “necessity” sufficient to dispose of the case. The question of “balance” was never reached.
Justice Gageler reached the same result, but for very different reasons — not only because of his resistance to an approach through “proportionality,” but also because his perception of the “burden” imposed on political communication had nothing to do with the “imprecision” of the “metes and bounds” of “business premises” and “business access areas.” In his view, the extent of a legislative “burden” on the freedom should be measured simply by the difference it made to “the practical ability of a person or persons to engage in political communication.” Here, primarily because of “the ambit of the discretions conferred on police officers” and “the consequences which flow from the exercise of those discretions,” the burden was “direct, substantial and discriminatory” — not only against “political communication,” but also “more particularly against political communication expressive of a particular political view.”
As to whether the legislative purpose was deliberately repressive (“the prevention of on-site protests”) or protective (against “conduct that seriously interferes with… forest operations”), Justice Gageler was willing to assume the latter. But if that was the purpose, the provisions went far beyond what was reasonably necessary to achieve it — primarily because of “the breadth and severity of the consequences” flowing from the exercise of police discretions based on no more than “reasonable belief.”
In particular, the penalties for breach of a “requirement” not to contravene the Act within the next three months were “nothing short of capricious in their temporal duration of three months and nothing short of punitive in their geographical coverage and intensity.” Under section 6 of the Act, such a requirement would be relaxed to allow participation in “a procession, march, or event… along a business access area… at a reasonable speed, once on any day.” But far from relaxing the severity of the provisions, Justice Gageler saw this as a “Pythonesque absurdity.” The fact that the provisions applied only to protesters (“a targeted segment of the population”) was not in itself decisive; but it was “a factor which weighs against the conclusion that a law is reasonably necessary to achieve its postulated purpose.”
Justice Nettle’s approach was different again. In his view, the mere fact that the Protesters Act reinforced the prohibitions in the Forest Management Act, both by repetition and by heavier penalties, did not constitute a “burden”; but a “burden” did arise, for example, from the fact that directions under section 11 could be given simply on the basis of a police officer’s “reasonable belief.” This was particularly so in the light of Tasmanian history:
[G]iven the history of protests against forest operations…, it is by no means unlikely that… a protester who is otherwise lawfully on forestry land or a related business access area, and is not preventing, hindering or obstructing forest operations or access thereto, could be required to leave the forestry land or business access area because a police officer forms a reasonable belief that the protester has at some unspecified time in the past prevented, hindered or obstructed forest operations…, or seems likely to do so… And that could be so even if the protester has never in fact done so and has no intention of doing so.
So he, too, held that there was a “burden”; and he, too, held that prevention of “hindrances and obstructions of business activities” was a legitimate legislative purpose. But in order to decide whether the Protesters Act was a reasonable means to that purpose, he relied (unlike Justice Gageler) on the trilogy of criteria associated with “proportionality” (suitability, necessity and balance); and he found (unlike the joint judgement) that the issue could not be disposed of simply on grounds of “suitability” and “necessity.” Instead, he found it necessary to proceed to the question of “balance.”
The “suitability” test was not enough because the Protesters Act “does have a rational connection” with its purpose; the “necessity” test was not enough because, although there was “some force” in the argument that the purpose was already adequately covered by the Forest Management Act, the court should not be led into comparing “the relative merits of competing legislative models.” In the end it could not be said “that there are such obvious and compelling alternatives of significantly less restrictive effect as to signify that the Protesters Act was enacted for an ulterior purpose.”
Accordingly, he alone addressed the controversial question of “balance.” But whereas this sometimes seems to refer to a kind of sliding scale — the more urgent the purpose, the greater the permissible degree of incursion on “freedom” — Justice Nettle saw it rather as postulating “an outer limit,” beyond which the degree of incursion should be seen as “manifestly excessive,” “grossly disproportionate,” or going “far beyond” what might be acceptable. The State of Queensland (intervening in the proceedings) had argued that the test should be simply whether legislation goes “too far”; and that suggestion found little favour. But Justice Nettle’s test seems to be a more elegant version of the same idea.
In any event, he held that the test was satisfied. In particular, the four-day prohibition under section 8 of entry into “a business access area,” and the three-month prohibition under section 11 of any infraction (which “might comprise no more than failing to comply” with a direction based on a police officer’s “reasonable, but conceivably false, belief”) were “on any reasonable view… a very broad-ranging and far-reaching means of achieving the stated purposes.” Moreover, the degree of incursion must be weighed against “the apparent public importance of the purpose”; and given the protections already available under the Forest Management Act and under “existing common law causes of action,” “the importance of the Protesters Act is considerably lessened.” Accordingly, the relevant provisions in sections 8 and 11 were “grossly disproportionate.”
Justice Gordon agreed with the majority view that the “blanket four-day exclusion” under section 8 was irrational, and therefore invalid; but otherwise she dissented. Early in her judgement she asserted — as a “fundamental assumption of the Australian legal system” — “that statutes have a definite legal meaning.” The assertion is not as naive as it sounds: she was not asserting that every statute does have “a definite legal meaning,” but only our assumption that, in order to apply a statutory provision, judges must necessarily begin by ascribing a meaning to it.
Even that assumption might be thought to belong in the Begriffshimmel (the heaven of juristic conceptions). But Justice Gordon’s point was more practical. As against the insistence in the joint judgement on the indeterminacy of whether a forested area should be treated as “business premises” or “a business access area,” she was arguing that, in any individual case, the question whether the area in question fell within those descriptions would be judicially determined once the case came to trial; and if those descriptions did not apply, the case would be dismissed. Thus, whatever the initial uncertainties might be, no one could in fact be convicted of an offence unless “business premises” (or “access areas”) were judicially found to be involved.
This, of course, is no answer to the problem that a police officer and a protester, encountering each other in a forest clearing, might have no way of knowing whether they were in “business premises” or not — so that a police officer might mistakenly direct a protester to abandon a legitimate protest, or a protester might mistakenly be deterred from pursuing his or her legitimate plans. The prospect of criminal prosecution might act as a deterrent, even if the prosecution was ultimately destined to fail.
Accordingly, Justice Nettle sought to answer the argument by insisting that what matters is the law’s effect “in its legal or practical operation.” Granted the assumption “that, properly construed, the legal effect… is certain,” it was nevertheless true that the terms of this Act “are of such breadth that the likelihood of them so operating in practice as to burden the implied freedom to a significant extent cannot be discounted.” But Justice Gordon had an answer to that objection, too:
[T]he relevant practical operation of the provisions is the practical operation they have when applied according to their proper construction, not some operation hypothesised on… some misapplication or misconstruction of the provisions or any one of them.
Having thus excluded any extended operation of the Protesters Act through “uncertainty,” she was able to argue that the Act applied only to activities that were already unlawful — not only under the Forest Management Act, but also under the Criminal Code and the Police Offences Act 1935, and the common law of trespass and nuisance. Thus, the additional “burden” imposed on political communication was only “incremental,” confined to “making what was otherwise unlawful the subject of criminal penalties.” If this involved any “marginal extension” of the existing legal provisions, it was only to regulate “the time, place and manner” of activities that were already unlawful.
Accordingly, her final conclusions were confined to the three Lange questions: there was a “burden,” but its purpose, like that of the existing provisions and prohibitions, was confined to controlling activity “that is disruptive or causes damage,” and was therefore “no more incompatible” with representative and responsible government “than the pre-existing wider legal framework.” Any additional “marginal extension” or “incremental burden” was so slight as to be “reasonably appropriate and adapted” to that purpose.
Justice Edelman also insisted that uncertainties in the operation of the Protesters Act could be disposed of judicially: “No matter how ambiguous or uncertain the words of legislation may be, it is emphatically the province of the judiciary to explicate the meaning of legislation.” But whereas Justice Gordon had used the point only to argue that any misapplication of the Act would be corrected when it came to trial, Justice Edelman’s approach was more radical: he insisted that the High Court itself must determine the precise legal operation of the Protesters Act before considering whether it might be invalid. And he did this by holding that, because the purposes of the Protesters Act were the same as those of the Forest Management Act, the unclear references to “business premises” and “business access areas” must be read as referring only to those areas that had been marked off by “signs, barriers, or other notices prohibiting entry” under the Forest Management Act. On that basis, it was literally true that the Protesters Act applied only to conduct already unlawful under its predecessor.
Accordingly, any attempt to establish a “burden” on political communication was stopped at the outset: the prohibition of conduct which is already unlawful cannot be a “burden.” The implied freedom of political communication extends only to “legal freedom,” and there is no “legal freedom” to act unlawfully. The Protesters Act was wholly valid.
Shakespeare’s Cleopatra might have recalled that, as a girl, she was “green in judgement” and “cold in blood.” But if the five majority judges were “green in judgement,” the two dissenters were “cold in blood.”
In any event, the apparent victory for environmental protest in the Tasmanian forests may turn out to be hollow. Since all the judgements agreed that the Protesters Act, to a greater or lesser extent, was merely seeking to advance the objectives already secured by the Forest Management Act, that earlier Act may continue to offer effective limitations on protest. Yet for protests in other parts of Australia, the case may be a significant precedent. On the day of the decision, Bob Brown hailed it in part for its potential benefit to “peaceful citizens protesting [the] Adani mine.” He may have been right.
The Brown case and political communication
Back in 1992, when the implied freedom of political communication was first spelled out, Justice Deane, supported by Justice Toohey, attributed it not to any express constitutional provisions, but to “an underlying doctrine” of representative government, whose ultimate “rational basis” lay in “the thesis that all powers of government ultimately belong to, and are derived from, the governed.” The rhetorical and normative force of that language, potentially extending far beyond freedom of communication, was one reason for the controversy that erupted in the 1990s; and in the Lange case the idea of “an underlying doctrine” was decisively rejected.
Instead, the basis for the implied freedom was cut back to what was necessarily entailed in “the text and structure” of the Constitution: in particular, in the provisions that both houses of parliament must be “chosen by the people” (who must therefore have access to a wide enough range of opinions and information to enable them to make an informed choice). The Lange judgement insisted that this focus on a narrow textual basis did nothing to limit the scope and importance of the implied freedom; but the loss of its original normative force may be one reason why, in the years that followed, the freedom of political communication has had little significant impact.
Yet the focus on “representative and responsible government” also has normative potential, and in recent years there are signs that its potential may be more fully realised. In 2015, in McCloy v New South Wales, the High Court held that various restrictions on political donations in New South Wales did not impose unacceptable “burdens” on political communication. But it did so in terms that stressed the importance of unfettered political communication for “representative and responsible government,” and held that the restrictions were “not only compatible with the system of representative government,” but “preserve and enhance it.” Last week’s joint judgement was equally emphatic:
It is necessary to keep firmly in mind that the implied freedom is essential to the maintenance of the system of representative and responsible government for which the Constitution provides. The implied freedom protects the free expression of political opinion, including peaceful protest, which is indispensable to the exercise of political sovereignty by the people of the Commonwealth.
Similarly, Justice Gageler stressed that “the entirety of the analytical framework set out in Lange” must be “understood as a reflection of the underlying reason for the implication.” That reason was the need to ensure “the efficacy of electoral accountability for the exercise of legislative and executive power.” And Justice Gordon, too, insisted that the court’s approach must “adequately… reflect the reasons for the implication.” Such emphases suggest that the implied freedom may at last be coming into its own.
But another reason for the limited impact of the constitutional freedom has been that, from the beginning, the court was torn between asking whether a challenged law is “reasonably appropriate and adapted,” or weighing its “proportionality.” Some judges have insisted throughout that the two tests mean the same thing. In Lange itself, the entire debate was dismissed as of no importance:
Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality… [T]here is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted.
And yet the debate has persisted. In the 2015 McCloy case, Justices Kiefel, Bell and Keane were joined by Chief Justice French in what appeared to be a decisive commitment to “structured proportionality,” albeit by a bare majority of four out of seven. Since then Chief Justice French has retired, so that last week’s joint judgement framed in terms of “proportionality” was delivered by only three judges; but Justice Nettle, who in McCloy had found it “unnecessary… to resolve such differences,” now makes use of “proportionality” too. So the score is still four out of seven. Yet Justices Gageler and Gordon clearly remain unconvinced; and Justice Edelman, having found that there was not even a “burden,” had no need to embark on consideration of further criteria at all.
It may be that the time has come to conclude, as in a different context the American judge Louis Brandeis once did, that “it is more important that [the question] be settled than that it be settled right.” For that reason, it may be significant that in last week’s judgements the rival approaches appeared to be softening. The joint judgement spoke of its preferred “criteria of proportionality” as no more than “methods of analysis”; and even Justice Gageler saw proportionality as merely “a tool of analysis.” He added that it is not “a particularly useful tool”; the criterion of suitability was “too perfunctory”; that of necessity “too prescriptive”; and that of balance “too open-ended.” Yet he also conceded that his own approach “is not scientific” either, and “can itself be nothing more than a heuristic tool.”
The argument against “reasonably appropriate and adapted” centres mainly on its clumsy wording. As Justice Kirby put it in 2004:
I will never cease to protest at this ungainly phrase “appropriate and adapted.” Just imagine what non-lawyers must make of it? It involves a ritual incantation, devoid of clear meaning.
The argument against “proportionality” centres mainly on its use of the controversial criterion of “balance,” with its dangerous tendency to suggest that the end justifies the means. Yet the idea that there needs to be some proportion between the severity of an incursion on freedom, and the importance of its legislative purpose, is common to both approaches.
Justice Gageler insisted that incursions on freedom of communication must be considered in context (“in the light of history, of precedent and of contemporary circumstances”) and that their assessment “cannot be reduced to… some predetermined all-encompassing algorithm.” He argued that the approach should not be “prescriptive” and should not be “constrained in the abstract.” Yet he also conceded that “patterns emerge as precedents accumulate,” and saw room for “acknowledgment of gradations.” He conceded that not every burden “demands the same degree of justification” or should be “subjected to the same intensity of judicial scrutiny.” The degree of justification required should be “calibrated to the nature and intensity of the burden”; the necessary “degree of fit between means… and ends” should be “calibrated to the degree of risk.” He saw the appropriate “level of scrutiny” as “lying within a spectrum.” In this case, because the impugned provisions “impose a significant practical burden on… the expression of a particular viewpoint,” they call for “very close scrutiny”: the level of scrutiny must be “stringent,” and the legislative purpose must be “compelling.”
Similarly, though Justice Gordon insisted that “balancing” offers no “principled answer,” she contended that because in this case the affected conduct was already unlawful, “the required justification is less and the operation of the law is more readily justified.”
In short, both of the competing approaches appeared to depend in the end on a need for “calibration” or “balancing.” The difference may be that whereas “proportionality” looks to the importance of legislative purpose as justifying a comparable degree of interference with freedom, its critics look to the degree of interference with freedom as calling for a comparably “compelling” importance of legislative purpose. Where there is “a significant practical burden,” the legislative purpose must be “compelling”; where the burden is “incremental” and slight, “the required justification is less.”
It should be possible to locate this kind of “calibration” within a framework of proportionate “balance,” while keeping it sufficiently flexible to avoid the rigid “tiers” or “categories” (each with its own distinctive level of “scrutiny”) that have been developed in the jurisprudence of the US Supreme Court. To seem to be appropriating American doctrine would, of course, be anathema. However much the joint judgement relied on the indeterminacy of “business premises” and “business access areas,” it insisted that it was not adopting the American notion of “void for vagueness”; and however much it emphasised the deterrence of legitimate protest, it insisted that it was not adopting the American idea of a “chilling effect” on freedom of speech. (Yet Justice Gordon was happy to use the American language of regulating the “time, place and manner” of protest; and the words “appropriate” and “adapted” themselves are taken from an opinion written in 1819 by the US chief justice, John Marshall.)
The reason why any direct borrowing from American constitutional law would be seen as unacceptable is that the relevant American doctrines are concerned with the protection of “rights,” whereas the High Court’s concern in this area is only with the protection of “freedom.” A similar objection is often made to the use of “proportionality,” since the differing versions of that idea have their origin in Europe, and particularly in decisions by the European Court of Human Rights. And there is, of course, the added objection that Australia’s common law inheritance should not be polluted by concepts imported from European civil law.
Yet a more significant contrast might be between common law and statute. The generation of judges who have failed to agree on whether burdens on communication must be “proportionate” or “appropriate and adapted” is the generation that has struggled to reconcile the traditions of the common law with the increasing predominance of statutes.
The statutory model seeks precision; the common law seeks principle. The statutory model sees the law as a series of products; the common law sees it as a continuous process. The statutory model aspires to verbal formulae that speak for themselves, independently of context; the common law knows that verbal formulae must always be understood in their temporal, factual and cultural context. The statutory model sees words as monadic packages of self-contained meaning; the common law model sees words as leeways for judicial choice. The statutory model seeks elaborate scaffolding to ensure reliable outcomes; the common law knows that scaffolding is no substitute for personal judgement. The statutory model craves for certainty; the common law knows, with Oliver Wendell Holmes, that “certainty… is illusion, and repose is not the destiny of man.”
To reconcile the criterion of “proportionality” with that of “appropriate and adapted,” it may first be necessary to reconcile these differing approaches to law. ●