Brown v Tasmania [2017] HCA 43

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

ROBERT JAMES BROWN & ANOR PLAINTIFFS

AND

THE STATE OF TASMANIA DEFENDANT

Brown v Tasmania [2017] HCA 43 18 October 2017 H3/2016

ORDER

Question 2 of the Special Case dated 9 December 2016 be amended and the questions stated in the Special Case (as so amended) be answered as follows:

Question 1

Do either or both of the plaintiffs have standing to seek the relief sought in the Amended Statement of Claim?

Answer

The defendant abandoned its challenge to the plaintiffs' standing. Question 1 therefore need not be answered.

Question 2

Is the Workplaces (Protection from Protesters) Act 2014 (Tas), either in its entirety or in its operation in respect of forestry land or business access areas in relation to forestry land, invalid because it impermissibly burdens the implied freedom of political communication contrary to the Commonwealth Constitution?

Answer

Section 6(1), (2), (3) and (4), s 8(1), s 11(1), (2), (6), (7) and (8), s 13 and Pt 4 of the Workplaces (Protection from Protesters) Act 2014 (Tas) in their operation in respect of forestry land or business access areas in relation to forestry land are invalid because they impermissibly burden the implied freedom of political communication contrary to the Commonwealth Constitution.

Question 3

Who should pay the costs of the Special Case?

Answer

The defendant should pay the plaintiffs' costs.

Representation

R Merkel QC and F I Gordon with C J Tran for the plaintiffs (instructed by Fitzgerald & Browne)

M E O'Farrell SC, Solicitor-General of the State of Tasmania with S K Kay for the defendant (instructed by Solicitor-General's Office (Tas))

Interveners

S P Donaghue QC, Solicitor-General of the Commonwealth with P D Herzfeld for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)