Social justice and the environment are important issues for our firm. We take pride in representing individuals and organisations who are working to protect the environment, fighting against laws that are unjust and working to improve the quality of life for people in our community. We frequently take on matters that we consider to be of importance to the community at a reduced fee or on a no win, no fee basis and our solicitors regularly volunteer their time to community and not-for-profit organisations.
Citizenship cases – High Court of Australia
In 2017 this firm represented former Senators Larissa Waters and Scott Ludlam in proceedings in the High Court arising from their citizenship status. Each of Scott Ludlam and Larissa Waters resigned from the Senate in July 2017 upon learning that they were entitled to Canadian citizenship (Larissa Waters) or New Zealand citizenship (Scott Ludlam). This set off a chain reaction with the citizenship of a number of other Senators and Members of the House of Representatives have been called into question and which were eventually referred by the Parliament to the High Court for determination. Referred to the High Court were Senators Nash, Roberts, Canavan, and Xenophon and Mr Joyce MHR.The High Court’s judgment was given on 27 October 2017, with the parliamentary seats of Roberts, Nash and Joyce being declared vacant due to them being citizens of another country. The seats of Scott Ludlam and Larissa Waters were already vacant, in that they had previously resigned. FitzGerald and Browne instructed barristers Brian Walters SC, Elizabeth Bennett and Adam McBeth.
FitzGerald and Browne represented Senator Bob Brown in the Wielangta case, which was commenced in the Federal Court of Australia in 2005. That case involved proceedings against Forestry Tasmania for breach of the federal Environment Protection and Biodiversity Conservation Act 1999, as a result of logging and proposed logging operations in Wielangta State Forest near Hobart, which is a key habitat of rare and threatened species.
The case was run on the basis that the forestry operations were likely to have a significant impact upon three listed threatened species: the Wedge Tailed Eagle, the Wielangta Stag Beetle and the Swift Parrot. Senator Brown was successful in those proceedings and obtained injunctions preventing any further logging in the Wielangta area by Forestry Tasmania. That case was argued on the basis of the terms of the Regional Forest Agreement 1997 (“RFA”), between Tasmania and the Commonwealth. Immediately after the announcement of the judgment, the Federal Government and the State of Tasmania amended the terms of the RFA and then filed an appeal against the judgment of the trial judge. The Full Court of the Federal Court ultimately found in favour of Forestry Tasmania, but this case helped to bring community attention to the management of our state forests.
The firm represented the Triabunna 13, who were sued for trespass arising out of a protest in January 2009 at Gunns’ woodchip mill at Triabunna. The Triabunna 13, or at least 11 of them, counterclaimed against Gunns, alleging that Gunns Limited and its employee, Calton Frame, engaged in misleading and deceptive conduct in asserting that no old growth tree or no old growth forests will be used in the construction of the proposed pulp mill. That litigation settled out of court.
Gunns Pulp Mill
We acted for The Wilderness Society Inc. in proceedings in the Federal Court against the Minister for Environment and Water Resources, Malcolm Turnbull, and Gunns Limited in relation to the process to be adopted for the approval of the proposed Gunns pulp mill in the beautiful Tamar Valley. In 2008, we represented Environment Tasmania Inc. and three Tamar Valley landholders in further proceedings in relation to the proposed pulp mill, this time in the Supreme Court of Tasmania. These proceedings were unsuccessful, with the Supreme Court finding that s. 11 of the Pulp Mill Assessment Act 2007 precluded any court challenge to any issue arising out of the decision to grant the permit for the construction of the pulp mill.
In October 2011 we launched proceedings in the Supreme Court against Gunns Limited on behalf of the Tasmanian Conservation Trust Inc. (TCT) alleging the permit issued to Gunns under the Pulp Mill Assessment Act 2007 was invalid, as there had been no substantial commencement of the project by Gunns. An application by Gunns that TCT pay security for its costs was dismissed by the Court in April 2012. Gunns’ appeal to a Judge was dismissed in August 2012. Gunns went into administration and receivership in September 2012.
Claim against the State of Tasmania and the Secretary of the Department of Health
In 2012 we took on a case for a girl who, although meant to be under the supervision of her guardian, the Secretary of the Department of Health and Human Services, at the age of 12 was sexually exploited by her mother and another. We launched a public fund to raise her legal costs and we raised over $5,000. Proceedings were commenced and settled in 2017. The claim against the Secretary of the Department and the State of Tasmania was in negligence for failing to discharge its duties as her guardian and to protect her from the predatory actions and exploitation of others. The case settled on terms that were very satisfactory to the Plaintiff. FitzGerald and Browne instructed Ken Read SC.
Save Ralphs Bay Inc.
Roland proudly represented Save Ralphs Bay Inc. in a long running case about a $250 million canal estate development in Ralphs Bay near Hobart. The proposal by Walker Corporation for the development attracted strong opposition from the local community due to concerns it would destroy native wildlife habitats and reduce public access to the foreshore. The proposal was thrown out by the Tasmanian Resource Planning and Development Commission as being “unsustainable”.
Brown & Hoyt v. The State of Tasmania – High Court of Australia
In March 2016 this firm commenced a proceeding in the High Court of Australia seeking to have ruled invalid the Tasmanian Workplaces (Protection from Protesters) Act 2014. This extremely complicated legislation set up a system for police to give protesters directions to leave business premises and the accesses to those premises and introduced a series of offences when protesters failed to comply. Many other offences were created for hindering or obstructing business operations or for damaging property and the like. The cornerstone of the Act was the requirement that the Act could only apply to someone who was a protester. That is, someone who held the political belief relating to a cultural or environmental or other issue. In this way, the legislation was a first in Australia. Because the case was successful, it will probably be the last.
Five Judges of the High Court joined in ruling those parts of the Act under challenge to be invalid. One Judge ruled a lesser part of the Act to be invalid. In each instance, the invalidity came about because the Workplaces (Protection from Protesters) Act was in conflict with the Australian Constitution’s implied freedom of speech on government and political matters. A person who is protesting and who is expressing a view on government and political matters cannot be prevented from that action by State (or Commonwealth) legislation unless the legislation is reasonably necessary and appropriately adapted for the purpose at hand. The Tasmanian legislation failed that test for many reasons. In particular, it was problematic for the police to enforce. It was convoluted. It was ill-defined and, most notably, it was described as a “triumph of means over end”. The High Court regarded the protection of workplaces as a worthy objective, but did not see that this legislation was reasonable in its efforts to achieve that end.
FitzGerald and Browne instructed barristers Ron Merkel QC, Frances Gordon and Chris Tran on behalf of Bob Brown and Jessica Hoyt. The High Court ordered that the State of Tasmania pay the legal costs of the challenge.
Roland works in the civil and criminal areas, including administrative review, anti-discrimination, environment and planning and federal workers compensation.
In the criminal area he once had a busy practice defending forest protesters and other civilly disobedient people. That area of practice went quiet after the forest agreement was reached in 2013. That may well all change as the State Liberal Government is doing its best to open up contentious forest areas and to introduce a new range of offences to curtail the activities of forest protestors.
Roland is also the chair of Gun Control Australia.