Brown v Tasmania [2017] HCA 43

A majority of the High Court has struck down the key provisions of Tasmanian legislation which regulates protest activity in or near forestry land on the basis that the legislation infringes the implied freedom of political communication.

In Brown, former Australian Greens leader Dr Bob Brown and another person challenged the validity of certain provisions of the Workplaces (Protection from Protestors) Act 2014 (Tas). The Queensland Attorney-General intervened in support of Tasmania, and was represented by the Solicitor-General, Peter Dunning QC, Tony Keyes and Philippa Mott, instructed by Wendy Ussher and Kent Blore of Crown Law’s Constitutional Law Team.

The High Court held 6:­1 (Edelman J dissenting) the provisions invalid. However, the Court divided not only in the result but also in the Justices’ approach to the test for invalidity against the implied freedom. As a result, there is still some uncertainty and unpredictability about how the implied freedom will affect Commonwealth and State legislation.

The constitutional implied freedom of communication on political matters was first identified in the ACTV case.¹ The test for invalidity was articulated in a unanimous joint judgment in Lange and refined in Coleman v Power.² For some time thereafter, the test was understood to involve these questions:

1. Does the law effectively burden the freedom in its terms, operation or effect? If “no”, then the law does not exceed the implied limitation and the inquiry as to validity ends.
2. If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government (compatibility testing)? If “no”, then the law exceeds the implied limitation and the inquiry as to validity ends.
3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object (sometimes called proportionality testing)? If “no”, then the law exceeds the implied limitation and is invalid; if “yes”, the law is valid.

Recently in McCloy,³ a majority of the High Court had further developed the question 3 proportionality test to introduce a three-stage ‘structured proportionality’ analysis. Structured proportionality is broken down into three stages of suitability (or rational connection), necessity and adequacy of balance.

In argument, Tasmania (with Queensland’s support) submitted that McCloy should be re-opened and overruled, at least to the extent that it required three-stage proportionality testing in all cases. The Court (Gageler J excepted) did not accept that submission. However, the majority of Justices refined and developed their approach to the Lange-Coleman test in various ways.

In Brown, a clear division of approach solidified. Kiefel CJ, Bell, Keane and Nettle JJ on the one hand are all predisposed to applying structured proportionality, though with potential slight variations between them. Gageler and Gordon JJ on the other hand both heavily criticised structured proportionality once again, preferring instead a calibrated test that requires higher justification depending on whether the burden falls into certain categories. Justice Edelman decided the case on the basis that the Act did not effectively burden the implied freedom and so has not played his hand on the appropriate test.

With the exception of Edelman J’s silence on the issue, all judges agreed that the structured proportionality adopted in McCloy is not a test of validity, but rather a tool of analysis, which may or may not apply depending on the circumstances.⁴ The upshot is that with the contingent support of four justices, structured proportionality effectively floats as an unofficial test of validity, liable to be applied or not applied, in whole or in part, in any given case, with no specific guidance on when it will or will not apply.

Chief Justice Kiefel, Bell and Keane JJ delivered a joint judgment. Their Honours adhered to the structured proportionality analysis they had laid down in McCloy, save that they removed compatibility testing of means, leaving only compatibility testing of purpose.⁵ That is, the purpose of the law must be compatible with the system of representative and responsible government. But the compatibility of the means is not addressed at this stage. Instead it feeds into whether the law is appropriate and adapted. In making that small change to the compatibility limb, their Honours also discretely reinserted ‘responsible government’ as an aspect of the constitutionally prescribed system of government, which had mysteriously disappeared in the McCloy formulation.

In applying structured proportionality, the plurality found that the legislation was not necessary, as other forestry management legislation achieved the same purpose with a less drastic impact on free political discourse.⁶ Accordingly their Honours did not need to go on to consider the final limb of proportionality; that is, whether the law was adequate in its balance. This is the first time a law has been held invalid on the basis of the necessity limb of structured proportionality.

Justice Nettle agreed with the plurality up until this point. However, his Honour considered that the legislation was necessary. Accordingly his Honour went on to consider whether it was adequate in its balance.⁷ However, in applying that final limb his Honour also reformulated it as a test of whether the law is ‘grossly disproportionate’ rather than proportionate.⁸ This appears to be aimed at readjusting the scales in favour of the polity. For his Honour, the burden on political communication was so substantial that it tipped over into being grossly disproportionate: [295].⁹

Writing in separate judgments, Gageler and Gordon JJ maintained their previous criticisms of structured proportionality. According to their Honours, it is too prescriptive and mechanical, and the final limb of adequacy of balance imports a value judgment without providing any guidance as to how it is to be undertaken.¹⁰ Their Honours accordingly reverted their analysis to the Lange-Coleman test. However, following the plurality, Gageler J also slightly reformulated the analytical framework by removing compatibility testing of means.¹¹ Justice Gageler characterised the burden on the implied freedom as direct, substantial and discriminatory.¹² According to his Honour’s calibrated model of the Lange test, the burden therefore required compelling justification: [204].¹³ Ultimately, his Honour found that because the legislation was both narrower and broader than it needed to be to achieve its legitimate purpose, there was a lack of fit between means and ends, leading to the conclusion that the burden on the implied freedom was greater than reasonably necessary.¹⁴

Justice Gordon also returned to the Lange test, but herself moved the analysis around slightly. Her Honour placed the requirement of a rational connection between means and ends under the rubric of the requirement of a legitimate end, rather than the previous position that it was relevant to the next limb of reasonably appropriate and adapted.¹⁵ Her Honour characterised the burden of most of the provisions of the law as minimal and as merely regulating the manner in which political matters are communicated rather than their content. This led her to halt the justification analysis at having found a rational connection. The additional elements of structured proportionality – necessity and adequacy of balance – were inappropriate to consider in the circumstances of the case.¹⁶ Accordingly, her Honour found most of the provisions valid, leading her into dissent. However, for her Honour, one particular provision – which prevented a protestor from returning within four days of being given a direction – fell foul of the Lange test. The precise point at which it failed is difficult to discern because her Honour found that it did not prohibit conduct for a legitimate purpose, there was no rational connection to the legitimate purpose of the legislation as a whole, and it went beyond the legitimate purpose of the legislation.¹⁷

Justice Gordon was joined by Edelman J in dissent. His Honour found that there was no burden on the implied freedom in the first place as the conduct prescribed by the legislation was rendered unlawful independently by other forestry management legislation.¹⁸

In short, Brown establishes or at least indicates that the McCloy test is in fact not a test, but a tool of analysis whose criteria will not necessarily apply in all cases. At least according to the majority, for practical purposes the Lange-McCloy-Brown test seems to be (with the Brown modifications in italics):

1. Does the law effectively burden the freedom of political communication?
   If not, it is valid. If so, go to question 2.
2. Is the purpose of the law legitimate, in the sense that it is compatible with the constitutionally prescribed system of representative and responsible government?
   If not, the law is invalid. If so, go to question 3.
3. Is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the constitutionally prescribed system of representative and responsible government? (This question may, but need not always, be answered using the McCloy structured proportionality test of three sub-stages: suitability, necessity and adequacy of balance.)
   If not, the law is invalid. If so, the law is valid.

If you require any assistance or advice in relation to the effect of the constitutional implied freedom of political communication on government actions, please contact Assistant Crown Solicitor, Philippa Mott from the Constitutional Law Team on (07) 3222 2460 or Philippa.Mott@crownlaw.qld.gov.au.

_{1 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
2 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Coleman v Power (2004) 220 CLR 1.
3 McCloy v New South Wales (2015) 257 CLR 178.
4 Brown v Tasmania [2017] HCA 43, [125]-[131], [159], [290], [473].
5 Brown v Tasmania [2017] HCA 43, [104].
6 Brown v Tasmania [2017] HCA 43, [146].
7 Brown v Tasmania [2017] HCA 43, [236].
8 Brown v Tasmania [2017] HCA 43, [290].
9 Brown v Tasmania [2017] HCA 43, [295].
10 Brown v Tasmania [2017] HCA 43, [160]-[163], [430]-[437], [475]-[476].
11 Brown v Tasmania [2017] HCA 43, [156]
12 Brown v Tasmania [2017] HCA 43, [199].
13 Brown v Tasmania [2017] HCA 43, [204].
14 Brown v Tasmania [2017] HCA 43, [219], [232].
15 Brown v Tasmania [2017] HCA 43, [323].
16 Brown v Tasmania [2017] HCA 43, [426]-[428].
17 Brown v Tasmania [2017] HCA 43, [440]-[441].
18 Brown v Tasmania [2017] HCA 43, [557].}

^{The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.}