High court proves we have free speech against en­vi­ron­men­tal wreck­ers

The Guardian Australia - - World News / Opinion - Bob Brown

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

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