Australian High Court Upholds Peaceful Protest
The High Court of Australia has drawn a line in the sand against laws which curb the right of the people to peaceful protest.
Last week it struck down the Tasmanian Workplaces (Protection from Protesters) Act 2014 aimed at stopping people from protesting effectively against potentially harmful business activities, such as forests being logged. The litmus test was the arrest of people peacefully protesting government-sanctioned logging at Lapoinya.
Lapoinya is a huddle of farms in the northwest of Tasmania, Australia’s island state. Its rolling hills have a patchwork of lush pastures, ploughed fields and copses of trees. At the heart of the district was the Lapoinya Forest, a couple of hundred acres of wildlife-filled rainforest, eucalypts and ferneries with the crystal-clear Maynes Creek—a key nursery for the world’s largest freshwater crayfish—running through it. The forest was prime habitat for other threatened and rare creatures like the Tasmanian devil and giant wedge-tailed eagle.
When the conservative Tasmanian government revealed plans for the forest to be clear-felled for a distant wood-processing factory owned by Malaysian logging company Ta Ann, the people of Lapoinya remained confident that common sense would prevail. They called on Premier Will Hodgman to intervene and ran a colorful but respectful public campaign to prevent the logging.
However, neither the premier nor his minister for forests visited or intervened. Instead, draconian anti-protest laws were enacted and by early 2016 the logging was imminent.
As a former Greens Party senator for Tasmania in the Australian Parliament, I was invited to a dinner by the Lapoinya community and, afterwards, treated to a concert by talented local youngsters, with songs devoted to forests. The Lapoinya dilemma was excruciating: While these good people would never be violent or attack logging machinery, neither would they be silenced as a distant and indifferent administration in Tasmania’s capital, Hobart, destroyed their iconic forest.
The locals prepared for a peaceful stand. If the public could see how beautiful the Lapoinya Forest was surely, even at this eleventh hour, the resulting political pressure would cause the government to back off.
The bulldozers and chainsaws arrived in January 2016, with a cavalcade of police. While Premier Hodgman had assured Tasmanians that his new laws were aimed at “radical” environmentalists and not “mums and dads,” the first two people arrested were a grandfather and a mother of two. That mother, also a neurosurgery nurse, was Jessica Hoyt whose parents, Stewart and Barbara, have a farm adjoining the forest. In her teenage years, Jessica had enjoyed riding along the forest’s bridle trail. The two were charged and faced first-offense fines of $10,000.
The next day, reeling from the destruction underway, Jessica took friends back into the doomed forest. She was arrested again while walking through the trees and ferns. This second arrest put her in danger of being jailed for four years.
A few days later, along with several others, I was also arrested after going back to Lapoinya to make video clips, intended for public distribution, about the sheer bloody-mindedness of the government’s operation. I was standing in an adjacent forest reserve. A bulldozer had backed off and the screech of the chainsaws and roaring thud of the trees coming down was close and confronting.
The incongruity of laws stifling such a reasonable protest about the destruction of the public commons, in a democracy with a long history of advancement through peaceful protest, was compelling. This was underscored when, after our arrests, I received a number of messages from experienced legal experts from around Australia suggesting that Tasmania’s Workplaces (Protection from Protesters) Act 2014 breached the national constitution’s implied right to freedom of political expression.
Guided by Hobart solicitor Roland Browne, and joined as co-plaintiff by Jessica, I engaged Melbourne barrister Ron Merkel QC to challenge the constitutional validity of the Hodgman laws in the High Court. A public appeal by my foundation raised more than $100,000 to affray the costs, especially should we lose. That ethical company Patagonia was the largest single donor to this appeal and was most encouraging as we faced the consequences of losing and paying costs.
However, after months of deliberation, the High Court ruled that those laws do infringe on the freedom to peaceful protest which is inherent in the Australian Constitution. The High Court said, “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. It operates as a limit on the exercise of legislative power to impede that freedom of expression.”
The Hodgman government had breached that limit. Tasmania already had the usual array of laws to prevent dangerous or damaging behavior. It also had a Forest Management Act which, besides guaranteeing the public its time-honored access to the forests, empowers the police to arrest people who interfere with logging operations. The draconian new laws were not necessary for that purpose. They were designed to stymie effective environmental protests, like that at Lapoinya, which could draw public support and be politically embarrassing.
The High Court found the laws out, noting the deterrent effect on peaceful protest of their provisions: “The combined effect … can bring the protest of an entire group of persons to a halt and its effect will extend over time. Protesters will be deterred from returning to areas around forest operations for days and even months. During this time, the operations about which they seek to protest will continue but their voices will not be heard.”
We are in a world of gross, rapid and escalating environmental damage. Corporations profiting from exploiting non-renewable resources like native forests face growing public scrutiny and antipathy. They cannot win the argument for wrecking ecosystems. Their alternative is to wreck environmentalists. Elsewhere in the world, scores of environmentalists are being killed each year by rampaging profiteers. But Australia is a peaceful democracy and the effective option is for corporate power brokers to lobby weak governments to have protests rendered futile.
The Australian High Court’s decision draws a line in the sand and will be a benchmark for more challenges if other governments pass laws to shepherd environmental destruction from peaceful public reaction. More widely, it bolsters that right for people standing up for any good cause.
There are growing calls for governments, already falling over themselves to grant concessions to the massive, coral-killing Adani coal mine proposal in Queensland, to enact more draconian anti-protest laws than those already in place. The extreme right voices making those calls had better go read this judgment for democracy.
The Lapoinya Forest was razed, but it has proved to be a pyrrhic victory for the destroyers. Out of the peaceful but heartfelt stand of the handful of people in Lapoinya has come a High Court ruling upholding the right to peaceful protest for every Australian.
Protect Our Rights
Despite the ruling, the Tasmanian government continues to defend the legislation and is unwilling to repeal it through Parliament, meaning unique ecosystems such as Tasmania’s Tarkine region are still not safe. We once again urge you to join us in rejecting these laws that restrict our right to peaceful protest and protect the environment.