High court proves we have free speech against environmental wreckers
The high court has drawn a line in the sand against laws which burden the right of Australians to peaceful protest. The court made no judgement on Tasmanian premier Will Hodgman’s decision to flatten the Lapoinya state forest in northwest Tasmania against the wishes of the local community. But it struck down his Workplaces (Protection from Protesters) Act 2014 aimed at stopping people from protesting effectively against such forests being logged.
Lapoinya is a huddle of farms southwest of the Bass Strait city of Burnie. 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 hectares 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.
When Forestry Tasmania revealed plans for the forest to be clearfelled for the distant woodprocessing factory owned by Malaysian logging company Ta Ann, the people of Lapoinya remained confident that common sense would prevail. They called on the state government to intervene and ran a colourful but respectful public campaign to prevent the logging.
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.
I was invited to a dinner by the community and afterwards treated to a concert by talented local youngsters, with songs devoted to forests. The Lapoinyan dilemma was excruciating: these good people would never be violent or attack logging machinery, but would not be silenced as a distant and indifferent administration in Hobart destroyed their iconic forest.
The locals prepared for a peaceful stand. If the public could see how beautiful the Lapoinya forest was then 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 assured Tasmanians 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. Her parents, Stewart and Barbara, have a farm adjoining the forest. In her teenage years Jessica, along with her siblings, had enjoyed riding along the forest’s bridle trail. The two were charged and faced first-offence fines of $10,000.
The next day, reeling from the destruction, 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 against 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 the laws breached the constitution’s implied right to freedom of political expression.
Guided by Hobart solicitor Roland Browne and joined as coplaintiff 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 in case we lost.
On Wednesday the high court ruled that those laws do infringe the freedom to peaceful protest inherent in the Australian constitution.
“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,” they said. 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 the limit of legislative power. Tasmania already had the usual array of laws to prevent dangerous or damaging behaviour. It also had a Forest Management Act which, besides guaranteeing the public its time-honoured 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.” It is for premier Hodgman, a lawyer, to say; but just as he did not see the unconstitutionality of these laws, so I doubt he was their origin.
It should be a warning to the other environmental wreckers.
We are in a world of gross, rapid and escalating environmental damage. Corporations profiting from
exploiting non-renewable resources face growing public scrutiny and antipathy.
They cannot win the argument for wrecking ecosystems, so 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 to lobby weak governments to clamp down on protests.
The high court’s decision does not directly affect laws in states or territories other than Tasmania. But it draws that line in the sand and will be a benchmark for more challenges if other governments pass laws to protect 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 coral-killing Adani coalmine 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.
“Our constitution guarantees peaceful protest – to which we owe a long history of advancement.” Photograph: Lukas Coch/AAP