The raised spectre of silencing ‘political’ and ‘environmental’ protest: will the high court find the Workplaces (Protection from Protesters) Act 2014 (Tas) Impermissibly Infringes the Constitutionally Implied Freedom of Political Communication in Brown v The State of Tasmania?

Brown v The State of Tasmania is an implied freedom of political communication challenge which was heard by the Full Bench of the High Court in May 2017. The two Plaintiffs have impugned the constitutional validity of the Tasmanian ‘anti-protest’ legislation, the Workplaces (Protection from Protesters) Act 2014 (Tas). This article argues that the Act impermissibly infringes the constitutionally implied freedom of political communication because it does not pursue a legitimate legislative purpose under the second limb of the Lange test. In making this argument, it is submitted that in a graduated series of implied freedom challenges, Lange’s requirement that an impugned law pursue a legitimate legislative purpose has been significantly elevated by the High Court in the 20 years since. As such, the article fills a lacuna in the literature by exploring the content of this higher constitutional criterion of validity, focusing specifically on the reasoning of Hayne J in Monis v The Queen and the McCloy plurality’s recent articulation of the implied freedom’s ‘protective’ function. The article then applies McCloy’s new test of structured proportionality and concludes that, even if the Act pursues a legitimate legislative purpose, it is neither ‘necessary’ nor ‘adequate in its balance’