Common(wealth) Knowledge #117: Environmental protests and political expression

6 Coffs Harbour women arrested over a protest against the NSW Forestry Corporation on its office roof.

On Wednesday, 23 April, 6 New South Wales women were arrested during a 4-hour protest against native forest logging on the roof of the NSW Forestry Corporation office in Coffs Harbour.

When police attended the scene at 9:30am, 2 other women complied with police directions and left the premises. The remaining 6 women have been charged with ‘offensive conduct while on inclosed lands.’

Under Section 4A(1)(b) of the Inclosed Lands Protection Act 1901 (NSW), this carries a fine of 10 penalty units, or $1,100.

Amongst the group was Sharon Hodge, 65, part of the Knitting Nannas group that overturned some NSW anti-protest legislation in an implied freedom of political communication case last year.

This protest comes just two weeks after Forestry Corporation of New South Wales v South East Forest Rescue Incorporated, where the High Court ruled that NSW legislation allows ‘any person’ to take legal action against logging companies in limited circumstances.

Section 69ZA of the Forestry Act 2012 (NSW) allows third parties to commence civil proceedings against companies to enforce Integrated Forestry Operating Agreements.

Logging operations require approval from the NSW Environmental Protection Agency, and IFOAs impose strict obligations to protect native flora and fauna, especially endangered animals.

As a result, South East Forest Rescue’s case against the Forestry Corporation will proceed in the Land and Environmental Court later this year.

Another recent case was EPA v Forestry Corporation of NSW [2024], over eucalyptus logging in a Black Summer bushfire regrowth site, with a fine of $36,000.

EPA v Forestry Corporation of NSW [2022], which resulted in a fine of $135,600 for logging in a ‘Koala high use area Exclusion Zone,’ featured in the protest, with signs on the roof of the building and held by protesters outside the building accusing the Forestry Corporation of killing koalas.

After the 6 women were arrested and charged, they were endorsed by the Bob Brown Foundation, founded by the retired Greens Senator who helped overturn Tasmanian protest laws on implied freedom grounds after participating in an anti-logging protest.

This indicates a potential implied freedom case, like Brown v Tasmania (2017), to overturn further New South Wales legislation.

In 2016, Jessica Hoyt twice went around road closure signs to enter a Forestry Tasmania logging site in Lapoinya Forest to protest against the logging operations. She was arrested and charged for remaining on business premises or in an access point after a police direction to leave under the Workplace (Protection from Protesters) Act 2014 (Tas).

Brown followed suit five days later, and was also charged and arrested after refusing to leave, like the 6 women.

The Second Reading Speech for the Act stated that it did not see “to undermine or remove people’s rights to … protest … it regulates protest activity.” But when it “unduly interfere[s]” with a business’ ability to operate then that protest action is going too far.”

The majority held that it did burden/limit the implied freedom, but agreed that the purpose of the Act was “compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.”

Justice Nettle went further, saying that it “is a freedom to communicate ideas to those who are willing to listen, not a right to force an unwanted message on those who do not wish to hear it, and still less to do so by preventing, disrupting or obstructing a listener’s lawful business activities.”

However, the law fell apart on the proportionality test. It was not reasonably appropriate and adapted to meet that legitimate purpose. In essence, the ‘punishment did not fit the crime.’

For example, if one protester is fined and returns within 3 months as part of a group of protesters, the entire group is treated in the same way.

Chief Justice Kiefel and Justices Bell and Keane held that these provisions instilled ‘fear.’ Further, “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.”

Even Nettle J, who maintained that the implied freedom “is not a licence to commit trespass” or actions that are otherwise unlawful, felt that these provisions went too far. An exemption for a ‘lawful excuse’ was insufficient.

The 5 majority judges, which also included Gageler J (as he was then), also found the provisions to be too vague, as it only referred to “a police officer’s attempt” to remove someone.

But there are some key differences between Brown and the Coffs Harbour protest. 

One can be seen in Gageler J’s judgment, regarding the question of burden. His Honour pointed out that forests are Crown land, and there is a “long history of protest on Crown land.”

This is especially the case in Tasmania, where protests on Crown land led to the implementation of the Word Heritage Properties Conservation Act 1983 (Cth) against the wishes of state governments, leading to the Tasmanian Dam Case (1983). Between 2006 and 2017, 37 further protests led to environmental protection for those sites. 

That is partly why the majority in Brown decided to invalidate the legislation with respect to forestry operations, but nothing else.

Although the Forestry Corporation is ‘state-owned,’ if its office is on private property’ rather than ‘Crown land,’ then protesting on its roof may not give rise to a similar situation. Private property would give more emphasis to Nettle J’s concerns.

Additionally, unlike both Brown and the Knitting Nannas, the legislation in question wasn’t tailored to deal with protesters specifically.

Part of the proportionality test not discussed above is necessity. There were also protesters standing outside. If it was found that the ground-level protesters had a similar effect for the cause, then protesting on the roof would be less necessary. This might involve an analysis of the success of ‘publicity stunt’ protests, much like Gageler J’s analysis.

Finally, the Gageler CJ is the only member of the majority left on the court. Edelman J dissented entirely, and Gordon J dissented on all but one provision of the legislation. So it is difficult to predict how the court would split.

Although no proceedings beyond conditional grants of bail have happened, if an implied freedom case is lodged with the High Court, it is likely that the criminal case against the women would pause.