Constitutional Significance Of Brown & Anor V The State Of Tasmania

The Implied Freedom of Speech on Matters of Politics and Government

Discuss about the Constitutional Significance of Brown & Anor v State of Tasmania.

This paper seeks to examine the constitutional significance of a case by the name of Brown & Anor v The State of Tasmania. This is a case that sought to argue that the Protection from Protesters Act was unconstitutional, and it violated the implied right to freedom of political speech and expression. Moreover, this paper examines the manner in which the Protection from Protesters Act could be used to determine the 1983 case of the Commonwealth of Australia v The State of Tasmania. This was a case that raised a number of constitutional issues, including the validity of the World Heritage Conservation Act[1].           

Brown & Anor v The State of Tasmania (2017) is an important case that raises weight constitutional issues touching on the freedom of speech on political matters and issues of government. Note that, any democracy in the world; value this element of freedom of speech and association. This is an important element that characterizes a democratic government. Australia is one of the major democracies. However, the Australian constitution does not expressly provide for the freedom of speech on political issues and matters of government. It is based on this fact that the Australian High Court, under the 1992 case of Australian Capital Television v Commonwealth, came up with a decision that freedom of speech on matters of politics and government is implied in the Australian constitution[2]. 

In this leading case, the challenge was on the constitutional validity of the 1991 Act of Political Broadcasts and Disclosures, and whether this law violated the provisions of the Australian constitution. This law was enacted to regulate the process of advertising during the elections time, and it made it mandatory for media organizations to provide a free broadcast of political activities at designated times. Based on these provisions, the Australian Capital Television was challenging the provisions of this law, and it wanted them to be declared invalid. Upon close examination of this act of parliament, the Australian High court declared it to be invalid. This is because the acted violated the implied right to the freedom of speech that is guaranteed by the constitution. While making this act of parliament to be invalid, the High Court was of the opinion that people have a right to express themselves, if it involves issues touching ion governance, political matters and public issues. These rights are implied by the Australian constitution.  

Australian Capital Television v Commonwealth (1992) HCA

In the view of the High Court, freedom of expression and speech is a fundamental requirement of a democratic society, without which, the principles of democracy cannot hold. The Australian constitution promotes the principles of democratic governance, thus, it can be implied that the freedom of speech and expression are part and parcel of the constitution. There have also been a number of subsequent cases that are talking about the constitutionality of the freedom of speech and expression on matters relating to governance and political affairs. These rulings have been used for purposes of determining the scope of implied freedom of speech and expression. On this note, the scope normally extends to:

• Discussion of political issues and government affairs.
• Performance of government officials and members of parliament.
• Discussion of the performance of government officials, their conduct and whether they are fit for service.
• The constitutionality of the various acts of parliament.

On this note, the freedom of speech on political matters and affairs of government only extends to areas where political issues are involved.

Basing on these facts, it is important to denote that Brown & Anor v The State of Tasmania (2017) HCA raises the constitutional issues of freedom of speech on political governance and affairs[3]. This case challenges the constitutionality of an act of parliament called Protection from Protesters Act that was enacted in 2014. According to the petitioner, the act is invalid and this is basically because it contravenes the implied freedom of speech and expression as outlined in the leading case of Australian Capital Television v Commonwealth.

The case aims at challenging whether the act passes the constitutional test. This law places on spot fines to people who are caught violating it, and repeat offenders are given tougher penalties if caught. Brown and Anor argue that the law violates their right to freely express themselves, because it limits their capability to protest against political activities that touches on environmental issues. Note that, while challenging this law, the plaintiffs were arrested in 2016, for protesting against the proposed logging activities at the Lapoinya Forest. This is a forest that is found in Tasmania.           

While building up their case, Brown & Anor uses 3 of the Protection from Protesters Act. Section 3 of the act identifies the powers of the police in relation to preventing protesters from engaging in their right to expression and speech[4]. For instance, the act gives powers to police officers to arrest and prevent any person or group of people from engaging in a political protest. This is in case the protests will hinder or prevent the commencement of a business activity in Tasmania.        

Moreover, this section provides powers to police officers to be able to direct protesters away from the business premises for a period of up to three months, failure to which, they are likely to face criminal charges. From the provisions of section 3 of the act, it is possible to denote that it raises weighty issues of the constitution, regarding on the role of the police in promoting freedom of speech. Obviously, threatening an individual with arrest or prohibiting them from protesting because of a government policy violates their implied right to freedom of speech and expression, as contained in the case of Australian Capital Television v Commonwealth.   

Another important constitutional issue that the case raises is on section 7 and 6 of the Protection from Protesters Act. According to the Brown and Anor, the provision of these sections makes this act to be invalid. This is because it gives powers to police officers to punish on-site protests without considering the implications of those punishments on political communication. This is a weighty constitutional issue, since it seeks to examine the role of law enforcement officers in preserving and protecting the constitution. Moreover, Brown and Anor in this case argue that the provisions of the act do not outline any measures that have been put in place, with the aim of protecting the freedom to political communication that is implied in the constitution.

Note that, for any law to be valid it should not breach the constitution, thus, the major arguments of Brown and Anor is for the courts to declare the Protection from Protesters Act invalid, since it breaches the provisions of the constitution. Despite these weight constitutional issues that are raised by the plaintiff, the government of Tasmania argue that the act is narrow in scope, and is only limited in business premises and the aim is to prevent the obstructions of a business activity that happens in the area.

Based on the arguments that are presented by the government of Tasmania regarding the constitutionality of the Protection from Protesters Act, we are able to use it to make a ruling regarding the constitutionality of the World Heritage Properties Act that was enacted in 1983. Under this act, the Federal Government got authority to prevent the State of Tasmania from building a dam along the River Franklin. The passage of this law was enacted for purposes of protecting World Heritage sites[5]. The High Court of Australia in its ruling observed that the Federal Government did not surpass its authority over heritage sites, but it aimed at protecting the sites from destruction, thus the enactment of the act. On this note, the heritage act was enacted in good faith, and within the authority of the Federal Government.

Moreover, by using the Protection from Protesters Act, the most viable ruling in this case of Commonwealth of Australia v The State of Tasmania is upholding the law. This is because the aim of the protesters act is to protect the environment from disruption: that is the main aim of the heritage act. Moreover, the scope of environmental; protection is low, and it is limited to World Heritage Sites. The same is applicable with the introduction of the Protection from Protesters Act, which limits the protection to identified sites, such as business organizations and environmental places. On this basis, the ruling based on the state law, is the upholding of the World Heritage Site.

Finally, Brown & Anor v The State of Tasmania raises weighty constitutional issues, regarding the freedom of speech. The case law concerns itself whether the Protection from Protesters Act is constitutional, since it breaches the implied freedom of speech on issues regarding political affairs and governance. The case seeks to nullify the act, with the notion that it is unconstitutional.

Australian Capital Television v Commonwealth (1992) HCA

Brown & Anor v The State of Tasmania (2017) HCA

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Legislation

Political Broadcasts and Disclosures Act (1992)     

Protection from Protesters Act (2014)

World Heritage Properties Conservation Act (1983)

Commonwealth of Australia v The State of Tasmania (1983).   

Australian Capital Television v Commonwealth (1992) HCA

Brown & Anor v The State of Tasmania (2017) HCA 

Protection from Protesters Act 2014

World Heritage Properties Conservation Act (1983)