Clubb v Edwards; Preston v Avery

The High Court has dismissed two appeals against judgments of the Magistrates’ Courts of Victoria and Tasmania, rejecting challenges to two laws restricting communication and activities near abortion providers on the basis that those laws contravened the implied freedom of political communication. Section 185D of the Public Health and Wellbeing Act 2008 (Vic) prohibits various behaviours, including communicating in relation to abortions with a person accessing an abortion provider in a ‘safe access zone’ around the clinic, if that communication is likely to cause distress or anxiety (the ‘communication prohibition’). Section 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) prohibits abortion protests that can be seen or heard by a person accessing an abortion clinic (the ‘protest prohibition’). Clubb had spoken to a couple seeking to access a Melbourne clinic and attempted to give them anti-abortion literature, and was convicted of an offence against s 185D. Preston stood on a street corner near a Hobart clinic with placards with statements about the ‘right to life’ and depictions of a fetus, and was convicted of an offence against s 9(2). Each appellant sought review of the magistrate’s decision in the Supreme Courts of their states, which were then removed to the High Court. Before the High Court, each appellant claimed that the law they were convicted under contravened the implied freedom of political communication.

The High Court unanimously dismissed both appeals.

Joint Judges ([1]–[130])

The joint judges (Kiefel CJ, Bell and Keane JJ) first restated the Lange test on the implied freedom as reformulated in McCloy v New South Wales [2015] HCA 34, (at [5]):

  1. Does the law effectively burden the implied freedom in its terms, operation or effect?
  2. If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
  3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

The joint judges then rejected the appellants’ argument that the Court should approach the question as a derogation from the ‘right to protest and demonstrate’: the Court declined on the basis that the implied freedom does not guarantee a right to a mode of protest, that the common law right to protest may be abrogated by statute, and that this approach would depart from the Court’s settled approach to these questions (at [8]).

Dealing first with the Clubb appeal, after laying out the facts, proceedings and legislation (at [10]ff), the joint judges turned to the ‘threshold issue’ of whether Clubb’s conduct actually involved ‘political communication’: the Attorney-General of the Commonwealth contended that Clubb’s conduct appeared to be only directed at a woman accessing the clinic, and thus was not a communication about a political or government matter (at [25]–[27]). The joint judges acknowledged the force in this contention: ‘A discussion between individuals of the moral or ethical choices to be made by a particular individual is not to be equated with discussion of the political choices to be made by the people of the Commonwealth as the sovereign political authority. That is so even where the choice to be made by a particular individual may be politically controversial.’ (at [29]). Here, handing over an anti-abortion pamphlet lacked a connection with the ‘electoral choices to be made by the people of the Commonwealth’, and was not about law or policy makers, or encourage the woman to vote against abortion or publicly debate it: rather it simply sought to convince her not to have an abortion (at [31]). Noting the point in Lambert v Weichelt (1954) 28 ALJ 282 that the High Court should avoid investigating and deciding constitutional questions unless the facts make it necessary (at [32]ff), the joint judges stated that this practice was not a rigid rule, and that this case presented three ‘unusual features’ which warranted dealing with the Clubb matter even if it did not involve political communication (at [36]). First, the line between speech for legislative or policy change and speech directed at an individual’s moral choice ‘may be very fine where politically contentious issues are being discussed’ (at [37]). Second, while there might be no connection between the implied freedom and the facts in the Clubb matter, the question might arise in other similar cases, including in Preston (at [38]). Third, if Clubb’s contentions are correct she is entitled to have her conviction set aside: judicial economy favours dealing with them (see at [39]).

Moving to the McCloy steps, the joint judges accepted the views of both Clubb and the Solicitor-General for Victoria that the communication prohibition proscribes communications that could be called ‘political’ and thus is a burden for the purposes of the first step (at [41]–[43]). Turning to the second ‘legitimate purpose’ step, the joint judges reiterated that a purpose is compatible with maintaining the constitutionally prescribe system of representative and responsible government (and thus legitimate) if it does not impede the functioning of that system (at [44]). Here, the statute’s express purpose is to protect the safety, well-being, privacy and dignity of people accessing lawful medical services, and staff and others associated with those services (at [47]). The joint judges emphasised the protection of dignity element of the communication prohibition, drawing on the writings of Aharon Barak (at [51]):

Generally speaking, to force upon another person a political message is inconsistent with the human dignity of that person. As Barak said, ‘[h]uman dignity regards a human being as an end, not as a means to achieve the ends of others’. Within the present constitutional context, the protection of the dignity of the people of the Commonwealth, whose political sovereignty is the basis of the implied freedom, is a purpose readily seen to be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. Thus, when in Lange the Court declared that ‘each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia’, there was no suggestion that any member of the Australian community may be obliged to receive such information, opinions and arguments.

The joint judges rejected Clubb’s argument that the communication prohibition burdens the anti-abortion side of the debate more than the pro-abortion side, and that discomforting speech cannot be excluded (at 52]). First, the prohibition is ‘viewpoint neutral’ in that it prohibits any behaviour ‘in relation to abortions’ rather than ‘against’ or ‘for’ abortions, and pro-abortion activists might equally cause distress or anxiety to a person seeking an abortion by co-opting them into a campaign, or by ignoring their privacy and dignity (at [54]–[56]). Second, the ‘discomfort’ argument ignores the words of the statutory prohibition, which is aimed at words ‘reasonably likely to cause distress or anxiety’, not mere discomfort or hurt feelings; and more broadly, debates about feelings in political communication in forums of public debate voluntary entered into have no application to individuals attending to a private health issue, who may be in a vulnerable state, and which are aimed at preventing them from obtaining medical advice and assistance (at [57]–[59]).

Having concluded that the second step was met (see [60]), the joint judges moved to the proportionality analysis. Their Honours first rejected the arguments by the Solicitor-General of Victoria that it was not necessary to apply all of the proportionality testing on the basis that the burden was minimal and for a compelling legislative purpose: while the burden may be slight, McCloy requires that any burden be justified (at [64]). The joint judges emphasised that proportionality requires the Court to assess only whether the law can be seen as irrational in pursuing its object or placing an ‘undue’ burden on it, rather than asking whether the legislature placed a ‘correct’ balance between the restriction and implied freedom (at [66]) or weighing the ‘general social importance’ of the law and the implied freedom (at [72]).

Here, the communication prohibition did pass this step. It was spatially limited to the areas for accessing abortion clinics, preventing a person seeking to access the clinic from hearing or seeing communication about abortion (at [78]–[79]). Contrary to Clubb’s submission, there was no evidence that on-site protests were specially effective for political communication about abortion, and cannot be usefully compared to forest protests which do not aim at the dignity and privacy of people targetted by the activists’ messages (at 82]). Further, anti-abortion activists are able to communicate their messages anywhere outside the safe access zones (at [83]). The joint judges then moved to reject Clubb’s arguments that less burdensome methods that might have achieved similar results (see [88]–[95]). Finally, the joint judges held that the balance was adequate: the law maintained the dignity of people by ensuring they are not ‘held captive’ by an ‘uninvited political message’, while also being a slight burden on both subject matter and geographical extent (at [99]–[100], and see summary at [102]). Consequently, the Clubb’s appeal must be dismissed (at [103]).

Moving then to Preston, the joint judges again recapitulated the facts, proceedings and legislation (at [105]ff), before noting that the Tasmanian statute differed from the Victorian one in several ways: it does not expressly state its objects, it is directed at ‘a protest’ about abortion, and its scope is not limited by a requirement that the protest be ‘reasonably likely to cause distress or anxiety’ (at [116]). Turning to the McCloy steps, the joint judges noted that Preston and the Solicitor-General for Tasmania accepted that the focus on ‘protest’ showed a burden directed at a clear mode of political communication in the form of a public demonstration (at [118]–[119]). On legitimate purpose, the joint judges held that the Tasmanian statute was aimed at protecting the safety, wellbeing, privacy and dignity of people accessing abortion clinics and that like the Victorian statute this too was a ‘viewpoint neutral’ prohibition related to any protest, and would be contravened by pro-abortion protests (at [120]–[123]). It was likewise suitable because it facilitated effective access to abortion services, and prevented those seeking to access medical advice and assistance from being deterred from doing so (at [124]). The joint judges then rejected Preston’s submission that the prohibition applies regardless of whether any harm, anxiety or distress is likely or intended; the absence of that limiting requirement here is irrelevant because public demonstrations about abortions ‘inevitably constitute a threat to the equanimity, privacy and dignity’ of a person seeking abortion services (at [125]–[126]). Finally, the Tasmanian statute was adequately balanced for the same reasons as the Victorian: it was geographically restricted, imposes a slight burden, and does not discriminate between sides in the debate (at [127]). Consequently, Preston’s appeal must likewise be dismissed.

Gageler J (at [131]–[214])

Gageler J began with Clubb’s matter, holding that because she does not assert that she was engaged in any form of political communication in handing out the leaflets, her challenge to her conviction under s 185D will fail, even if she succeeds in establishing that the communication prohibition infringes the implied freedom (at [131]–[132]). Consequently, there is no need to answer that question to determine her criminal liability, and the Court ought to decline to do so (at [133]). Gageler J stated that he agreed wholly with Gordon J’s analysis of this point, and that he would add further points on the institutional practice and statutory interpretation points that underlay the approach to Clubb (at [134]).

First, the Court’s practice of declining to answer any constitutional question that was not necessary to answer on the facts of a matter ought to be followed here: the Court’s jurisdiction is to resolve controversies about legal rights and liabilities about real, concrete issues, not declare legal principles about abstract ones, and this practice should not be departed from for reasons of convenience (at [135]–[138]). Secondly, the principle of severance — that, absent a contrary intention, a legislature should be assumed to intend that if a law would fall foul of the constitutional limits on legislative power, it is still intended to operate to the extent that it is constitutionally permitted (at [140]) — should apply: the prohibition against ‘communicating … in relation to abortions’ can be read to exclude political communication, and there is nothing in the text or context of the Public Health Act to suggest the legislature did not intend for it to have no application if it did not apply to political communication (at [149]). Gageler J then rejected Clubb’s suggestion that severance would require the prosecution to prove beyond reasonable doubt that she was not engaged in political communication, which the prosecution did not do: severance does not work in that way, but rather to take political communication outside the scope of the provision’s operation to form an exception for prohibited behaviour that was political communication (at [151]). Gageler J concluded that ‘[i]f the freedom of poltiical communication was to be relied upon to impugn her prosectuion … the practical onus was on Mrs Clubb to bring such material forward. She did not do so’ (at [153]).

Turning then to Preston, Gageler J noted the facts of the case and that the Preston matter was ripe for determination (at [156]). Gageler J treated the test as the Lange-Coleman-McCloy-Brown analysis of three stages, and emphasised that ‘structured proportionality’ is no more than an intellectual tool, and noted his Honour’s earlier interventions on this topic (at [159]ff). Gageler J’s framework in this case is consistent with his Honour’s approach in Brown: burden, calibration, purpose, and justification (at [162]):

first, to examine the nature and intensity of the burden which the protest prohibition places on political communication; second, to calibrate the appropriate level of scrutiny to the risk which a burden of that nature and intensity poses to maintenance of the constitutionally prescribed system of representative and responsible government; third, to isolate and assess the importance of the constitutionally permissible purpose of the prohibition; and finally, to apply the appropriate level of scrutiny so as to determine whether the protest prohibition is justified as reasonably appropriate and adapted to achieve that purpose in a manner compatible with maintenance of the constitutionally prescribed system of government.

The burden here was direct, substantial and discriminatory against a traditional form of political communication both on its face and in its practical operation (at [174]): indicated by its direction against public demonstrations (at [164]), limited to content relating to abortion (which, combined with the public demonstration focus, made this inherently about abortion legislation and politics: at [165]–[167]), it is site-specific, and in its practical operation time-specific (at [168]–[169]), and though its legal operation is viewpoint neutral, for Gageler J it does affect anti- and pro-abortion activists differently because only anti-abortion activists would seek to express their disapproval there (at [170]ff).

Moving to calibration, Gageler J rejected the Attorney-General for Victoria’s submission that a mere ‘rational connection’ between the prohibition and the purpose is required: that level of scrutiny is only for indirect or incidental burdens on political communication; here a higher level is required because of the higher risk to the constitutionally prescribed system of representative and responsible government (at [175]–[177]). Gageler J accepted the suggestion of the Attorneys-General of the Commonwealth and New South Wales that useful parallels can be drawn from United States First Amendment jurisprudence and its connections between levels of scrutiny and standards of justification based on the kind of restriction (see [178]ff). Given the burden here, it could only be justified if it can withstand the close scrutiny of a compelling justification (again, as in Brown), namely: it must be more than constitutionally permissible, and instead ‘compelling’, and it must be ‘closely tailored’ to the achievement of the purpose, and not burden the freedom more than is reasonably necessary for that purpose (at [183]–[184]).

That purpose is determined by subject matter, text and context. After noting the parties’ submissions (see [187]ff) which drew on US jurisprudence, Gageler J stated that neither Preston nor the Attorney-General for Victoria captured the ‘richness’ of the US approach or adequately related it to the Australian context: unsolicited and unwelcome political speech is part of a ‘right to be let alone’ that was more accurately an ‘interest’ that States might protect (at [193]). In Australia such speech is not necessarily incompatible with the constitutionally prescribed system of representative and responsible government, but rather, like the US example, protecting against unwanted or offensive communication is a permissible purpose which, depending on context, may justify a burden (at [196]). Here, Gageler J held it did: prohibiting protest within an access zone aims to ensure women have access to abortion services in ‘an atmosphere of privacy and dignity’: ‘he purpose so identified is unquestionably constitutionally permissible and, by any objective measure, of such obvious importance as to be characterised as compelling.’ (at [197]).

Moving finally to the justification — whether the burden is significantly more than is reasonable for the purpose — Gageler J noted that the Tasmanian law drew a clearer, ‘bright line’ rule against any interference than the Victorian (at [200]ff), reviewed the approaches to safe zones in other comparable jurisdictions (at [202]ff), and emphasised that Australian courts cannot ‘tinker’ with legislative designs (at [207]). While the radius of 150m was not clearly outlined in the legislative materials or evidence, Magistrate Rheinberger’s findings that there were plenty of locations at which protestors could be outside the zone but communicate their message to passersby was ‘decisive’ (at [211]): 150m was ‘close to the maximum reach’, but still compatible with the purposes of protecting access to the facilities (at [213]).

Nettle J (at [215]–[325])

Nettle J agreed with the conclusions of the joint judges but differed in some respects from their reasoning (at [215]).

On the threshold question, Nettle J noted that the Attorney-General of the Commonwealth’s submissions were based on Gageler J’s views in Tajjour (at [219]), and that the Court ordinarily would not consider reading down or severance until it had decided that the law, on its natural and ordinary meaning, construed in context and having regard to its purpose, would be invalid unless read down or severed (at [220]). After reviewing a range of cases in which that happened (see [221]ff), Nettle J stated that those cases ‘support the idea that there are matters in which it is sufficient to dispose of an attack on the constitutional validity of a provision to conclude that, assuming without deciding that the impugned law would otherwise be invalid, it could be read down or severed in its operation in relation to the plaintiff and so be considered as valid to that extent.’ (at [230]).

Despite this being sometimes useful, it should not apply here: Clubb has been convicted of a criminal offence after a Magistrate rejected her contention that the provision was an unjustified burden on the implied freedom of political communication, and appealed that part of the decision to the Supreme Court of Victoria and ultimately the High Court: thus the constitutional validity of s 185D is not an ‘academic or hypothetical question’, and if it is invalid then Clubb has been wrongly convicted, and thus she has a direct and immediate interest in resolving hat question (at [231]–[232]). Nettle J then raised several constructional problems suggesting that s 185D could not be read down to avoid it impermissibly burdening the implied freedom (see at [233]ff), noted that the Crown in the Magistrates Court had not sought to contend that it could be read down (at [238]ff), and also that no finding has been made on whether Clubb’s communication is on a government or political matter (at [240]). Overall, then, it would be a ‘practical injustice’ and of ‘little practical advantage’ to dispose of the matter now as a threshold issue (at [242]).

After recounting the facts of the Clubb appeal and the Victorian legislation (at [243]ff), Nettle J outlined the basis and requirements of the implied freedom and emphasised that it is a restriction on legislative power, and not, as Clubb’s arguments frequently assumed, a personal right of free speech similar to that of the US First Amendment (at [247]–[248]). Rather, the content of the freedom depends on what is relevant to the ‘common convenience and welfare of society’ from time to time: while the range of matters relevant to ‘government and political matters’ is broad, it does not necessarily include all matters of ‘political controversy’; and while abortion is one such subject matter, not necessarily all communication about it is political (for example, a private consultation between a pregnant person and their doctor about an abortion is not a political communication about abortion): at [249].

Nettle J raised doubts about whether s 185D constituted a burden: while it restricts the freedom by proscribing certain behaviours within 150m of abortion clinics, it leaves people free to say what they wish outside that radius, and it is not clear on the evidence here that those restrictions have any effect on the efficacy of anti-abortion political communication (at [250], [251]). Certainly it prevents protestors like Clubb from being able to ‘accost and harangue’ people seeking abortions, but Nettle J reiterated that that decision is not a political decision but rather a personal one informed by medical advice and a person’s ethical, and religious beliefs ‘qualitatively different from a political decision as to whether abortion law should be amended’ (at [252]). Nettle J noted, however, that previous High Court authority establishes that the burden test is qualitative not quantitative, and looks to the ‘terms, operation and effects, both legal and practical’, of the law (at [254]). Here, s 185D and its prohibited behaviour does practically prohibit protests about abortion and is qualitatively significant, even if ‘quantitatively insignificant’ (at [255]).

Moving to the two-step inquiry of whether the law is for a legitimate purpose consistent with the system of representative and responsible government, and whether it is appropriate and adapted to that purpose, Nettle J held that was aimed at a legitimate purpose: it aims to prevent particular kinds of conduct by prohibiting behaviours that go against the safety and wellbeing of women, support persons and staff to access abortion clinics; ‘The protection of the safety, wellbeing, privacy and dignity of the people of Victoria is an essential aspect of the peace, order and good government of the State of Victoria and so a legitimate concern of any elected State government’ (at [258]). Contra Clubb’s argument that the protection of dignity was not a legitimate purpose because all political speech may or does offend dignity, Nettle J reiterated that the implied freedom is a freedom to communicate political ideas to people willing to listen, not a licence to accost or harangue people, especially vulnerable people seeking private, personal medical advice and assistance (at [259]).

Turning to the appropriate and adapted test, Nettle J also rejected the Attorney-General for Victoria’s submission that a law imposing an ‘insubstantial burden’ is automatically appropriate and adapted (see [260]–[263]), and the Attorney-General of the Commonwealth’s submission that the degree of justification should be ‘calibrated’ according to the level of burden, which here should require a ‘slight’ degree of justification (at [264]–[265]): both were conclusory arguments and do not clearly guide the inquiry. Nettle J instead largely adhered to his approach in Brown of three-part proportionality testing, now slightly modified to four-steps: the law must be ‘suitable, necessary and adequate in its balance’: suitability means a rational connection to the purpose of the law (and the law can achieve that purpose); necessary means that it is within a reasonable range of ways to achieve that purpose; and adequate in its balance means its effect on the implied freedom is not grossly disproportionate or goes far beyond what can be justified in pursuit  of the law’s purpose (see in detail at [266]). Nettle J then explained his reasons for shifting the terms of these tests since Brown, emphasising the need for some more flexibility in some of the criteria, and defending the need for the ‘adequacy in balance’ element (at [267]ff).

Applying this test to the present matter, Nettle J stated that the Act’s proscribing certain behaviour near abortion clinics was rationally connected to the purpose of securing the health and wellbeing of people seeking abortions and staff (at [276]). The means of achieving that purpose was necessary in that there were no obvious and compelling alternatives that would have had a significantly lesser burden on the freedom, and Nettle J rejected Clubb’s various arguments that alternatives did exist, for example to require the Crown to prove distress or including a ‘carve out’ for political communication on abortion (at [277]ff). Nettle J then held that the law was adequate in its balance: its burden was not grossly disproportionate or go far beyond what would be reasonable in pursuit of its purpose (at [292]ff).

Moving then to the Preston appeal, Nettle J noted that it involved different considerations but resulted in the same conclusions as Clubb (at [295]). After reviewing the law and facts in the Preston matter, Nettle J held that it imposes a burden on the implied freedom by proscribing political communications within the access zone (at [303]ff). Nettle J reiterated that, as in Clubb, that the law prevents the capacity of people like Preston to try to influence people seeking abortions to not do so is not a political communication, but rather a communication on an apolitical, personal matter that does not burden the implied freedom (at [305]). The law here had the legitimate purpose of advancing women’s health by ensuring access to lawful termination services, privately, with dignity and without the risk of being subjected to haranguing by abortion protestors (at [306]ff). Nettle J rejected Preston’s argument that the law was intended to ‘handicap’ the anti-termination side of the abortion debate (see at [308]–[311]). Turning then to whether it was appropriate and adapted, Nettle J reiterated that the law’s connection to advancing the health and wellbeing of people seeking terminations showed it was ‘suitable’ (at [313]) and rejected Preston’s contention against this — that it singles out anti-abortion protests, and that because it does not specifically prohibit protests that are ‘reasonably likely to cause distress or anxiety’ it was not rationally connected: rather, aiming at protests about terminations is consistent with and reinforces the conclusion that the proscription is aimed at ensuring the health and wellbeing of women seeking abortions (at [315]). Moving to necessity, Nettle J rejected Preston’s various suggestions about alternatives, holding that none was an obvious and compelling alternative (see [316]ff), and nor was the law inadequate in its balance (see [324]).

Gordon J (at [326]–[405])

Gordon J likewise rejected both challenges.

Beginning with Clubb, Gordon J held that it was appropriate to consider severance by reading down the communication prohibition for two reasons. First, Clubb did not contend that she was engaged in political communication, meaning that there is no ‘right, duty or liability’ in issue that applies to her which turns on the validity of that prohibition in its application to political communication. Second, the communication prohibition would be severable if and to the extent that it burdened the implied freedom. In these circumstances, no further analysis is appropriate or required to dismiss Clubb’s challenge (at [330]). Expanding on the application of these reasons to Clubb, Gordon J noted that Clubb’s appeal needed to begin by assuming the provision was constitutionally invalid, and then also show that it cannot be severed: if it cannot, then anyone charged under it, whether or not they were engaged in political communication is irrelevant (at [332]–[335]). If it can be read down, then in Clubb’s case the Court cannot consider it further because it would be a hypothetical or speculative application of the provision (at [336]). Gordon J then asked whether it was indeed severable (at [336]). After laying out the case law and statutory interpretation principles on severance (at [336]ff), Gordon J noted that the question here is whether there was a statutory intention contrary to the assumed position that prohibited behaviour should be divisible and that any parts of it within constitutional power should be in effect (at [341]). Gordon J’s answer was that there was no such intention and, if it were necessary, the definitions of ‘prohibited behaviour’ could be read down to not include political communications: the prohibitions are broad and the Victorian Parliament cannot have intended that they not apply if the provision were invalid in applying to political communications: ‘Such a result would stultify or undermine’ the statutory purpose, and ‘would leave persons accessing premises at which abortions are provided vulnerable to confronting and personal communications, including those targeted at their personal choice to attend a clinic and undergo an abortion’ (at [345]). Finally, Gordon J rejected Clubb’s argument that even if the communication prohibition could be read down the appeal should be allowed because the prosecutor had not proven that Clubb’s communication was not political communication: under the construction here, characterising communications as political or not-political is not an element of the offence, and it would be for the accused to lead evidence on that matter to try to establish that fact (at [348]). Clubb’s appeal should be dismissed (at [349]).

Moving then to Preston, Gordon J first laid out the legislative provisions and the procedural history (at [350]ff) before outlining the implied freedom in terms of the three Lange questions as applied here (at [354]):

(1) Does the Protest Prohibition effectively burden the freedom of political communication? (2) Is the purpose of the Protest Prohibition legitimate, in the sense that it is consistent with the maintenance of the constitutionally prescribed system of government? (3) Is the Protest Prohibition reasonably appropriate and adapted to advance that purpose in a manner consistent with the maintenance of the constitutionally prescribed system of government?

Gordon J held that it did burden the implied freedom, but that burden is not substantial: it is a time, place and manner restriction directed at the legitimate purpose of creating an access zone to allow women and staff access to an abortion clinic, and its means are not incompatible with the maintenance of the constitutionally prescribed system of government (at [355]).

Turning to each of these in detail, Gordon J laid out the legal and practical effect of the law, noting that the protest prohibition does as it says: it prohibits protests in relation to terminations, which may impose a burden on political communication (at [368]). The nature and extent of that burden is insubstantial: it is not specifically directed at political communications or the content of these views, and applies whether a person is for or against abortions (at [371]–[374]). It thus does not discriminate against political communications on the basis of content or source, and applies equally to different kinds of protests about abortion (at [375]–[377]). Moving to purpose, Gordon J read the protest prohibition as a law directed at providing safe passage for people accessing abortion clinics, and rejected Preston’s contention that it aimed to ‘deter speech’: its purpose is not to deter speech but to enable safe access, and to do that it removes one of the barriers that might deter people from accessing lawfully available medical services (at [378]–[381]). The protest prohibition is also appropriate and adapted to this purpose: it effects only an insubstantial and indirect burden on political communication to do that, and there is ‘nothing protectable about seeking to shame strangers about private, lawful decisions they make’ (at [382]–[388]).

Gordon J then turned to structure proportionality, noting that in this appeal, as in Brown, it is ‘neither necessary nor appropriate to say anything further about suitability, necessity or adequacy of balance’ because once the law passes the three steps, the burden is not ‘undue’ and no further analysis is needed (at [389]). Proportionality is ‘a means’ and ‘a tool of analysis’ (at [390], emphasis in original), not a constitutional doctrine or method of construing the constitution, and the suggestion that structure proportionality may provide more consistency or clarity in judgment should ‘be approached with caution’ (at [390]). Not every law burdening the implied freedom can or should be analysed by a rigid ‘one size fits all’ approach (at [391]). Structured proportionality does not reflect common law methods, and instead reflects civil law origins and purposes, and thus may not be suited to or compatible with the Australian context (at [391]ff). After exploring a number of academic views on the theory of proportionality (Schauer, Alexy and Barak, at [392]ff), Gordon J reiterated the problems of a ‘one size fits all’ approach, given that each matter is fact-specific and each analysis necessarily case-specific (at [403]). The Lange questions instead provide ‘a standard‘ and the more ‘rule-like’ elements introduced into that standard and applied rigidly and formalistically, the further the judge is taken from that standard’s purpose (at [404], emphasis in original). Standards are more useful for the common law’s case-by-case basis of crystallising its meaning, and while they may cause uncertainty, proportionality ‘will not always be the answer to that uncertainty’ (at [404]).

Edelman J (at [406]–[509])

Edelman J began by emphasising that a clear and principled approach is needed to distinguish between this case and Brown v Tasmania, partly to ensure that the implied freedom does not become a vehicle for courts to assess the merits of different legislative approaches to political communication, or a mass of single decisions that are not united by ‘a reasoning process requiring precision of thought and expression’ (at [407]). For Edelman J, structured proportionality provides the ‘analytical, staged structure by which judicial reasoning can be made transparent’ (at [408]). In Australia, a ‘restrained approach’ to each stage is necessary because it must reflect the terms and structure of the Constitution and the system of government that the implied freedom supports (at [408]).

Edelman J held that the law at issue in Preston met each stage of the proportionality test, but that in Clubb the issue of justification need not be considered (at [409]ff). Edelman J accepted the conclusion urged by the Attorney-General of the Commonwealth that the communication provision could be ‘severed’ in relation to political communication if it were invalid, and thus there was no need to determine the constitutional validity of the law in its entirety (at [413], [414]). After distinguishing between ‘reading down’, ‘severance’ and ‘partial disapplication’ (see [415]–[433]), Edelman J concluded that the Victorian law could not be read down or severed: severance would involve giving s 185D a meaning as though it contained the words ‘communicating by any means in relation to abortions other than in the course of political communication‘ (at [435], emphasis in original). Excluding political communication here would be an insertion ‘too much at variance’ with the legislature’s language, and would require prosecutors to show a communicaiton was not political (at [436]). But Edelman J held that s 185D could be ‘partially disapplied’: it would apply to non-political communications about termination, but not to political ones, and while might ‘eviscerate the operation’ of the law if most communications were political, it would still operate on the ‘vastly reduced content’ of non-political communication (at [438]–[440]). This possibility of disapplication was sufficient to dispose of the appeal: Clubb would not be affected by the broader constitutionality of s 185D, and thus there is no good reason to adjudicate on that validity (at [441]–[443]).

Moving to the Preston appeal, Edelman J first recounted the facts, legislative scheme, and decisions of the lower courts (at [444]ff), before turning to the requirements of the implied freedom, articulating these in the ‘broad concerns’ of the Lange test as a three stage test: the nature of the burden, whether the law imposing the burden has a legitimate purpose, and whether the effect on political communication is undue or unjustified (at [453]–[454]). Noting that protest is one of the ‘loudest’ forms of political communication, Edelman J accepted that the Tasmanian law did burden the implied freedom (at [455]–[456]). Turning to legitimate purpose, Edelman J noted that the staute did not contain any express statement of purpose, but that its terms, background and social objective indicated that it promoted women’s reproductive health, and specifically allowing access to termination services in safety and without fear, intimidation or distress, and that was a legitimate purpose (at [457]–[459]). Edelman J rejected each of Preston’s characteristations of the purpose as silencing debate or anti-abortion views, noting that these might be its possible effects, but not its purpose (at [460]).

Moving next to justification and proportionality testing, Edelman J noted that in McCloy, Brown, Unions and this appeal, a majority of the Court has avoided phrasing the justificaiton test as focusing on the burden being ‘reasonably appropriate and adapted’ and instead on three-stage proportionality (at [462]). While this is used throughout the world, in Australia it means suitable as rationally connected to purpose, necessary, in that there are no practicable alternatives of similar efficacy and a lesser burden, and adequate in balancing purpose and burden (at [463]). After responding to concerns about proportionality’s foreign origins, its nature as a ‘tool’, that it might be antithetical to the common law process, and how it might develop (see [464]–[471]), Edelman J turned to the three steps. Here, the Tasmanian law was suitable: it prohibited protests, which was rationally connected with its purposes of ensuring safe access to abortion services without being subjected to protestors (at [474]).

It also passed the ‘necessity’ test: there were no reasonably practicable alternatives with a less restrictive effect on the freedom, which Edelman J read as going to ‘depth’ and ‘width’, respectively, a burden that focuses intensely on the conduct prohibited (targeting particular communication types or views), or one that captures more conduct by not including any time, location or subject matter constraints (see [480]). Here, the burden is both deep (targeting protest) and wide (extending to a wide 150m radius), but it is not clear that a smaller radius might have achieved the compelling purposes of the legislation (at [484], [486]). Edelman J also rejected the suggestion that the law could have only targeted communications that are reasonably likely to cause distress or anxiety; it was not clear that any communication near an abortion clinic would not cause anxiety or distress to a person accessing the clinic (at [485]). Edelman J concluded by noting that the conclusion on necessity might not ‘sit comfortably’ with the decision in Brown: here, the area covered by the prohibition is necessary to achieve its purposes, while the powers of the Forest Manager to deny access to areas were a substantial burden that did not further the statute’s purposes (see [487]–[490]).

Finally moving to adequacy in the balance, Edelman J noted the risks of a Court deciding a law was inadequate in its balance as intervening too far into public policy formulation (at [492]), and that in many other jurisdictions this step has been ‘effecviely abandoned’ (see [493]ff). In the Australian context, ‘adequacy’ must be highly constrained, because the implied freedom only arises to protect the constitutional system of reasonable and responsible govenment, which in turn mandates the legislative implementation of policy decisions (at [495]). This leads to a set of constraints: that courts cannot substitute their assessments for that of the legislative decision maker, that inadequacy requires a gross or manifest lack of balance between the burden and the purpose, and that balancing shoudl nto involve rigid categories of review (see [495]–[498]). Here, while the foreseeable burden was deep and wide, the purpose of the prohibition was of great importance of Parliament, and the Act ensures access to termination services without harassment and, at the higher level, with basic issues of public health (at [499]): the burden thus cannot be gross or manifestly disproprtionate to the importance of that purpose (at [501]). Edelman J concluded with a series of comments on constitutional values in foreign jurisdictions, noting that they be treated with caution, and offering a contrast by explaining how the appeal would have been decided in the United States (see [502]–[508]).

High Court Judgment [2019] HCA 11  10 April 2019
Result Appeal dismissed
High Court Documents Clubb v Edwards; Preston v Avery
Full Court Hearings [2018] HCATrans 210 11 October 2018
[2018] HCATrans 208 10 October 2018
[2018] HCATrans 206 9 October 2018
Amicus application (dismissed), Gordon J [2018] HCATrans 181 12 September 2018
Removal to HCA Hearing, Gordon J [2018] HCATrans 60 23 March 2018

News: One-sided oral special leave hearings

The High Court heard ten oral special leave hearings this month (with three grants, which I will summarise in my – now – quarterly grants post.) Of interest in the most recent batch is a phrase spoken at the end of eight of the ten hearings on Friday:

BELL J: Thank you, Mr Boyce, we do not need to hear from you.

BELL J: Mr Heaton, we do not need to hear from you.

BELL J: Thank you, Mr Boccabella. We do not need to hear from you, Mr McGlade.

BELL J: Yes, thank you, Ms Farnden. We do not need to hear from you.

GAGELER J: Thank you. We do not need to hear from you, Mr Crawshaw.

GAGELER J: Thank you, Mr Toomey. We do not need to hear from you, Mr Kirk.

GAGELER J: Thank you. Mr Lenehan, we do not need to call on you.

GAGELER J: Mr Walker, we do not need to hear from you, thank you.

This is the Court’s typical practice whenever it is minded to rule against one party after hearings its arguments, a practice it also follows in some full court hearings. It saves the other party the tedium preaching to the choir and permits the Court’s justices to get on with their busy special leave morning (or whatever they do in the afternoon.) As I noted in an earlier post, it is allied to a practice used in jury trials in England, Hong Kong and Australia that the Court declared contrary to law in this country last month, but it differs because judges hear arguments, not evidence, and do not require a direction on how to apply the law.

But it is surprising to see it featuring in contemporary special leave hearings, because the Court never has to hear special leave matters. Continue reading

News: The High Court and the federal election

The just announced federal election on 18th May 2019 doesn’t directly affect the High Court of Australia (as opposed to the other two branches of the federal government) but it indirectly affects it in several ways. First, elections are often preceded by election-related challenges, as occurred in three of the last four elections:

  • in 2007, the Court struck down legislation barring all prisoners from voting.
  • in 2010, the Court struck down legislation removing the 7 day ‘statutory grace period’ allowing people to enrol after an election is called.
  • in 2016, the Court rejected an argument that the 7 day statutory grace period should extend until election day and also rejected a challenge to the new Senate voting rules aimed at stopping preference harvesting.

Consistently with this trend, a directions hearing last week explored a narrow pre-election challenge concerning the 2019 election, specifically when the Australian Electoral Commission can release who it predicts are the two most likely candidates to win in each House of Representatives seats. A past lower house MP, Clive Palmer – you may have seen an ad or two by him recently – wants to bar such information from being released in some east coast seats when polls close there, because of the possibility that the AEC’s predictions could influence voting on the west coast where polls would remain open for two hours more. Justice Gordon tentatively scheduled a full court hearing for 6 May, under two weeks before the election but enough time for a speedy instruction to the AEC. However, whether the case will actually go ahead depends on whether the parties can agree on the facts and, as the Commonwealth Solicitor-General foreshadowed, whether Palmer himself or a lesser known person will be nominating for an east coast lower house seat.

However, the greatest impact of the federal election on the High Court is likely to come after the poll, when the Court sits as the Court of Disputed Returns to hear challenges to the announced election result. Continue reading

The Last Prasad Direction: Director of Public Prosecutions Reference No 1 of 2017

Yes Mr Gardner. Your Honour, I wanted to rise at this stage to urge Your Honour to consider giving a Prasad invitation to the jury.

Narendra Prasad is one of the unlucky Australians who have a rule of law named after them. But his rule isn’t really a rule, just some dicta (passing judicial commentary.) And it isn’t a really a law, just a practice that judges can choose to use in a criminal trial if they want to. As well, as of last month, it’s a practice they can no longer choose.

Prasad’s brush with the law began with a site at Adelaide’s West End where a Banh Mi shop now sits underneath one of the city’s ubiquitous Polites signs. In between the 1960s (when it was a Scientology HQ) and the 90s (when it was a lesbian bar), the address hosted a string of restaurants: The Brussels, Cedars, Tripoli, Fagans, Rogues, Bandito’s, Katz, and Out. In August 1974, Praspen Estates Pty Ltd, a company Prasad cofounded the previous year, bought Cedars, but he soon sold the company to the restaurant’s owners. Alas, in 1978, Victoria Penley, the other co-founder of Praspen (and the portmanteau’s other half), told police that Prasad sold their company without her knowledge. Prasad was charged with obtaining $7000 from Cedars’ operators under the false pretence that he owned their restaurant outright.

The prosecution’s case against Prasad rested on two witnesses. One was the company’s then lawyer, who contradicted Prasad’s story to the police that Penley gave up her shares because she didn’t want to own a restaurant; however, the since debarred Tennyson Turner’s credibility was, to put it mildly, under a cloud. The only other witness was Penley herself. She denied any transfer, but at times seemed to concede that her husband managed such things for her:

Is it a possibility that you could have signed this share certificate to transfer the shares back to Mr. Prasad and you have now forgotten about it, or didn’t notice at the time-isn’t that just a possibility?  I don’t think so. But isn’t it a possibility?  It could be.

Penley’s husband was not called to testify.

If that strikes you as a fairly thin basis to convict someone of false pretences, you aren’t alone. At the end of the prosecution case, Prasad’s lawyer, Kevin Borick, asked for the charge to be thrown out, but the trial judge and later the full court of South Australia’s Supreme Court ruled that Penley’s testimony was capable of supporting Prasad’s conviction. Nevertheless, two of the full court’s judges, including Len King, the state’s feted Chief Justice, noted that trial judges aren’t limited to either throwing a charge out or letting the trial continue. They have a third option: letting the jury choose whether to acquit immediately or hear the rest of the case.

Just four years later, that option – which was neither sought not used in Prasad’s own trial – was mentioned for the first time in the High Court. Justice Dawson, joining a unanimous ruling overturning a South Australian indecent assault conviction where the prosecution chose not to call the complainant as a witness, observed that the trial judge had refused the defendant’s request to give the jury a ‘Prasad invitation’. In 2006, the practice was mentioned again in the High Court by Chief Justice Gleeson, when he joined a unanimous holding that a NSW trial judge prejudged whether or not to throw out a protection racket charge at the end of the prosecution case. Neither Dawson J nor Gleeson CJ expressed any reservations about the practice, which received its third  and last High Court mention last month in a Victorian case. In Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9, a unanimous joint judgment ruled the practice ‘contrary to law’.

Mr Gardner, you know, I take it, that the direction, if I give it, will be offered to the jury in the context of them only having an option to acquit or to indicate that they want to hear more. Yes, I’m aware of that, Your Honour, and I’ve got an instruction to make this application.

There is a set order in criminal trials in an adversarial justice system like Australia’s. First, the prosecution gives an opening speech to the court and then the defence does. Then the prosecution presents its evidence (witnesses and the like) and then the defence can do the same (or not.) Next, the prosecution gives a closing speech and the defence can too. If there’s a jury, the trial judge will speak to them last. Finally, the verdict.

A fraught question in criminal procedure law is whether and when to deviate from this set order. Sometimes the variations are small ones – slight changes to the order of events, delays and the like – to cope with life’s and the law’s exigencies, matters that all trial judges must deal with ad hoc. But the Prasad issue is part of a much harder question: whether, when and how a trial should stop early if the prosecution case falters. This question pits the criminal justice system’s adversarial nature (where both sides play similar roles) against its accusatorial nature (where the burden of proving guilt falls on the state alone.)

One view is that criminal trials should never end early. In apartheid South Africa, for instance, trial judges were obliged to continue even after the prosecution case failed to prove an element of a crime, because  of the possibility that the defence may nevertheless be bungled in a way that convinces the court of the accused’s guilt. But that rule is roundly rejected nowadays as inconsistent with the accused’s right to remain silent.  Another view, taken in England, is that trial judges can stop a trial if the prosecution case is really weak because of bad, vague or inconsistent evidence. In 1990, the High Court (following earlier Australian courts, including South Australia’s in the Prasad case) rejected that view. The only situation where an Australian trial judge can stop a jury trial early is ‘if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.’ Accordingly, it dismissed an appeal by a drug trafficking accused whose trial continued despite the main prosecution witness admitting to repeated lies to the police.

Australia’s rule allows some very flawed trials to continue through to the end. A startling recent example is a murder trial where the main evidence that the accused killed the victim at an isolated rural property was from a man who had moved in with the pair six weeks earlier. As he testified about discovering the accused standing over the victim’s bruised body, the accused shouted from the dock ‘it’s not true’, prompting the following statements by the witness (with Justice Richard Button intervening):

Who said that, how do you know it’s not fucking true I was there. Just a moment, sir. Just answer the questions that the prosecutor asks and then we’ll get through the process. It’s fucking true, Gary.  Just a moment. It’s so fucking true, you gronk. Just a moment, sir. We can’t have people yelling out in court, neither you nor him, otherwise we are not going to get through the process. Fucking murdering cunt. Take a moment and then we’ll– I should have fucking killed you too you cunt.

Now, it’s not every trial where the main prosecution witness seemingly admits to being the actual murderer in open court. And this was just one of numerous bad moments for the prosecution, including Button throwing out all the admissions the accused allegedly made to the police. Button later declared: ‘Since an early stage of the Crown case, I have considered that there is a significant possibility that an innocent man has been arrested, charged, incarcerated for almost exactly 4 years, and ultimately arraigned’.

And yet, consistently with the High Court’s ruling in 1990, he observed: ‘there is certainly some evidence implicating the accused in the death of the deceased; it is no doubt for that reason that no application was made for a verdict by direction by defence counsel’. Instead, the judge – who was deciding the facts without a jury after the accused was found unfit to stand trial – gave himself a Prasad invitation and acquitted the accused, declaring that the ‘continuation of this state of affairs is not to be countenanced’.

And yet, consistently with the High Court’s ruling last month, if the trial had happened just one year later, that state of affairs would have had to continue until the trial ended or the prosecution gave up. In urging the High Court to ban the Prasad process, Victoria’s Director of Public Prosecutions suggested that problematic cases could instead be dealt with by the judge urging the prosecutor to withdraw the case. She added that ‘such circumstances will be rare and should only occur where the issue as to sufficiency of evidence is glaringly obvious’.

Dr Rogers. There’s nothing before the jury about what precisely happened in the unit on the night of the 18th of July 2015. I agree. And in my submission that’s the short answer about why a Prasad direction should be resisted by Your Honour. As Your Honour pleases.

The case that led to the High Court banning the Prasad process is a less rare type of trial where the flaws of the prosecution case are less glaringly obvious: domestic homicide trials where the evidence reveals the deceased’s violence towards the accused.

In July 2015, Gayle Dunlop called the police to report that her long-term partner, John Reid, was bleeding from a fall. In fact, she had struck him with a timber footstool and he died a few days later. The prosecution led evidence of events leading up to Reid’s death that made it clear that Dunlop was the victim of domestic abuse. Her sister and daughter described seeing her bruises and being told ‘It’s none of your business and you know what goes on’. Another witness told of her explaining in front of Reid, a few weeks before he died, that she’d had a fall but later confiding: ‘I think he’s going to kill me’. Two police officers described being called to the couple’s house not long after to remove him at her request. On the night Reid was injured, neighbours heard a heated argument where Reid called Dunlop ‘you whore’. After her emergency call, forensics found her blood at the scene. When she was arrested that night, police initially ignored her requests to speak to her sister. When she finally did, she told her ‘You don’t know what I’ve been through’.

When Dunlop’s barrister Shane Gardner asked for a Prasad invitation at the close of the prosecution’s case, Supreme Court Justice Lex Lasry was initially dubious. He pointed out how such cases often cause public controversy, mentioning  a 1979 Victorian case where the reigning Miss Australia and her son were acquitted of the shooting murder of their husband and father, William Krope, after testifying about his violence and perversions. He noted that Victoria’s current law on the issue was complex and he would need to tell the jury about the fault elements of both murder and manslaughter and the recently amended law on self-defence. Gardner observed that Lasry himself had given a jury a Prasad direction in a complex (but different) homicide case a decade earlier, but the judge reflected on how he had experienced the ‘pitfalls’ of such directions as both judge and counsel, perhaps referring to how the jury in the earlier case ultimately convicted the accused of manslaughter.

Last year, New South Wales’s Justice Richard Button (two months before he gave himself a Prasad direction to end the domestic homicide trial described above) declined to give a Prasad direction to a jury in a still more extreme domestic homicide trial. Not only did the prosecution present multiple witnesses who testified to the deceased’s violence in several relationships and his extensive criminal record, but their case was that the accused fatally stabbed the deceased at the same time as he fractured her skull with a domestic clothes iron. Button’s reasons for declining to use Prasad were similar to those raised by Lasry eighteen months earlier: the complexity of the directions and the fact that self-defence raises not only factual but ‘normative’ considerations about what actions are reasonable:

As I remarked to counsel in discussing the application, such a question perhaps raises all sorts of “sub-questions” about the availability of alternative ways of protecting oneself; about how life is in an outback town as opposed to an urban centre; about possible alternative ways of getting help within an extended relationship marred by domestic violence; and countless other social matters. In short, I felt uncomfortable, with regard to that evaluative judgment, about providing even a “hint” to the jury as to how it should be determined; and, no matter how one expresses it, in my experience that is always how a Prasad invitation is received by a jury.

But the trial soon collapsed completely. Immediately after Button’s decision, the prosecution conceded that the murder charge – brought despite a magistrate refusing to commit her for that crime –  was never sustainable. Then, after several defence expert and character witnesses testified, the prosecution responded to a renewed request for a Prasad direction on the remaining manslaughter charge not only by supporting it, but urging the judge to simply tell the jury to acquit the accused. A flabbergasted Button complied and later ordered the prosecutor to pay the accused’s costs for the trial.

Ultimately, Lasry opted to give Dunlop’s jury a Prasad direction, noting that Victorian law now includes a lengthy provision requiring jurors to fully consider evidence of family violence. After his direction, the jury deliberated for an hour and then returned to say: ‘We would like to hear more evidence.’ Lasry responded: ‘It’s not a now or never. The choice that I offered you this morning is a choice that you can make at any time before the trial concludes’.

Bearing in mind your very economic submission, it is the fact that after the close of the prosecution case the jury has a right to acquit. Yes, Your Honour. What we’re discussing is whether they should be informed of it…

For decades, Canadian judges believed that they could never stop a jury trial themselves. Rather, their practice in cases where the prosecution evidence was inadequate was to tell the jury: ‘Since the accused have been placed in your hands, it is not for me to acquit them.  It is for you to do so’, before directing them that the accused is legally entitled to an acquittal. This lasted until a case reached the Supreme Court of Canada where a juror replied: ‘I don’t think all of us think that it’s not guilty.  Sorry.  Some of us still believe a guilty verdict should go through.’ The juror explained that some of them felt it wrong that they spent four weeks on a case without making a decision. After the judge told them he was happy to discuss the issue, but it had nothing to do with the verdict, the jury acquitted the accused. The Supreme Court responded by modifying the practice so that judges would enter the not guilty verdict themselves.

But what about the opposite situation? In a 1903 English trial, after the prosecution case had closed and the defence started calling its witnesses, the jury stopped the hearing and returned a verdict of ‘Not guilty’. The prosecutor said he wanted to address the jury but the judge told him ‘Your case is finished, and, that being so, the jury are entitled to exercise their right at any moment afterwards to say whether the case has been made out or not.’ Unsurprisingly, an identical practice to the Prasad direction – albeit without the catchy name – has long been and remains part of English law. In 1987, Hong Kong’s Court of Appeal, in response to a prosecutor’s reference, ruled: ‘Yes, there is a right in a jury to acquit an accused at any time after the close of the Crown’s case on the whole or any of the counts in the indictment.’ Citing Prasad itself, the Court of Appeal concluded that a judge has a duty to end a case in some circumstances and power to inform the jury of its right to do so in others, albeit ‘only in the rarest cases and after receiving submissions from counsel.’

The right to acquit ‘at any time’ has affinities to two other better established, albeit sometimes controversial, parts of court practice. One is the High Court’s own recurrent practice of stopping hearing a case after one side concludes its arguments. The Court exercised that power the same week it ended the Prasad direction, telling the parties to a constitutional challenge that it no longer wanted to hear arguments on part of that challenge.  The second is what Americans call the jury’s right of ‘nullification’ and English courts call a ‘perverse verdict’, where jurors acquit in face of the evidence and the law. A famous Australian example occurred in Adelaide several years after Prasad’s trial. In a murder case, where the accused killed her sleeping husband with an axe after discovering that he had been raping their daughters for years, the jury were told that their options were to convict the accused of either murder or manslaughter. They returned and asked how to acquit the accused completely. Two hours later, they did so, to widespread public approval.

Whatever the current status of those rights in Australia (and, indeed, the right of judges deciding alone to give themselves a Prasad direction), the High Court ruled last month that Australian common law ‘does not recognise that the jury empanelled to try a criminal case on indictment have a right to return a verdict of not guilty of their own motion’. The Court dismissed the early English cases on such a right as historical relics and more recent ones as sloppy references to a mere right to act on a trial judge’s invitation. (The justices were seemingly unaware of the Hong Kong ruling.) Rather, the Court held:

It cannot be that the jury possess a personal right to acquit at the close of the prosecution case regardless of the issues that arise for their determination. In cases of legal or factual complexity, a jury may not be able to return a “true verdict”, consistently with the oaths taken by each juror, without the assistance of addresses and the judge’s instruction on the applicable law.

The High Court identified a further problem in trials such as Dunlop’s where more than twelve jurors are empanelled to allow for attrition during the trial. It deemed Lasry J’s decision to ballot off the extra juror while the jury considered the Prasad direction and then having the extra juror rejoin the jury to be ‘a serious departure from the proper conduct of the trial’, apparently because of the possibility that returning juror might hear what the other twelve discussed in private. The Court made no reference to proposals by the NSW Law Reform Commission to put the process Lasry J improvised on a statutory basis or by the Victorian Law Reform Commission to allow enlarged panels of jurors to deliberate on the verdict.

Yes. I meant the important thing is whether or not the original judgment of Chief Justice King in Prasad remains the law and as far as I’m aware it does. Yes, Your Honour.

Dunlop’s defence called two witnesses, a family violence expert (whose testimony was pre-recorded) and Dunlop herself. After the defence case closed, Lasry told the jury that they would now be addressed in turn by the prosecutor, Nanette Rogers, the defence lawyer, Shane Gardner and then himself; however, he also reminded them that their earlier option to acquit at any time stood. The foreman promptly asked for ‘ten minutes’ and (after a juror was again balloted off) the rest returned twenty-two minutes later with a not guilty verdict. The trial – and Gayle Dunlop’s trials – was over.

But Victorian law means that prosecutors can – and did – ask the Court of Appeal to rule on questions of law after a person is acquitted. And that case could – and did – proceed to the High Court because of the Mason Court’s overruling of the Dixon Court’s ban on the High Court getting involved in such matters, over Brennan J’s lone dissent that allowing the Court’s jurisdiction to be invoked in this way:

enhances the influence of the Executive Government on the development of the law and thus diminishes the characteristic capacity of the courts to give an unprejudiced ruling to determine the rights and liabilities of subjects in controversy with Government. To compromise the courts in the discharge of that role is to diminish the guarantee of a free society. In my opinion, so serious a tampering with a constitutional safeguard is not to be justified by pragmatic considerations favouring the declaration of points of law that have been misunderstood.

(The correctness of the Mason Court’s ruling, and its compatibility with the later doctrine barring courts being given powers that compromise their institutional integrity, was not raised before – or by – the Kiefel Court.) In contrast to Hong Kong’s Court of Appeal in 1987, which upheld the Prasad practice in that country but criticised its particular application in the court below, the High Court (at the DPP’s urging)  made a blanket ruling that the entire practice ‘contrary to law’ while barely considering Lasry J’s own decision.

Having held that jurors do not have a right to acquit at any time but only when invited to do so, the Court’s reasons simply balanced the pros and cons of the practice of giving the such an invitation mid-trial. According to the Court, the cons are many:

In summary, the jury are deprived of the benefit of addresses by counsel and the judge’s summing-up; provisional views about the acceptance of a witness’s evidence may be hard to displace; juries are often keen to register their independence and may react against perceived pressure to acquit; the practice is inherently more dangerous in a complex case or one with multiple accused; the prosecution or defence may not have the opportunity to correct a mistaken understanding of their case; and there is a danger, in a case in which the defence is contemplating not calling evidence, of asking the jury if they want to hear more.

The pros, on the other hand, are few: ‘The saving of time and costs, and restoring the accused to his or her liberty at the earliest opportunity’, which the Court deemed minor in straightforward trials. Accordingly, the Court announced the practice ‘contrary to law’ (at least in jury trials.)

Like the pronouncements of jurors and legislatures, the reasons for blanket rulings by the High Court – ones whose terms don’t allow them to be distinguished in future cases – don’t really matter now.  It certainly doesn’t matter that the Court made no mention of (and may well be wholly unaware of): Dawson J’s and Gleeson CJ’s earlier (uncritical) observations on Prasad invitations; the mid-trial practices of any common law country beyond England and Australia (including the contrary ruling by Hong Kong’s Court of Appeal); the recommendations from two Australian law reform bodes on how to manage oversized jury panels in such contexts; or the seemingly lingering issue of whether and when trial judges acting without a jury can stop a trial early. It is unlikely that any of these matters would have changed the Court’s mind, had the justices been aware of them. Nor does it much matter that the Court made no mention at all of the ‘accusatorial’ nature of Australian criminal justice, a staple of its past decisions, or dwelt on how the abolition of Prasad directions would mean that more accused people will be judged (as Prasad himself was) by a jury after they have just witnessed the accused exercise his right to decline to testify.

But I do think it extraordinary that, in 2019, Australia’s apex court can rule on a trial practice that was applied to the benefit of a victim of extreme domestic violence in a homicide trial without any significant consideration of the impact of its ruling in such trials. If the Court had been interested in doing so, the key facts were all there for the justices to see.

The railing up there, then you can see concrete, that’s what you walk on, but there’s a little bit of concrete that protrudes past that fence on the outside. So when he’s done that I’ve managed to grab onto the concrete and hold on. Thank you Ms Dunlop. That completes your evidence, you can go back to the dock. Thank you. 

The appeal book – the book of materials placed before the justices for their consideration –  contains extracts of the trial that prompted the DPP’s request for the High Court to ban the Prasad direction. It shows how Shane Gardner pointedly told Lex Lasry that he sought a Prasad direction at the ‘instruction’ of his client. It reveals that, after the jury opted to hear more of the case, Gardner immediately told Lasry that his client ‘asked me to raise with you’ her concern about having to testify over two days rather than one given the evidence ‘involves a number of deep sensitivities’ (prompting Lasry to wave the usual trial order and let the defence present their lone expert witness first.) While the appeal book skips nearly all of Gayle Dunlop’s testimony, it includes the very last piece of evidence the jury heard before they acquitted her: Gardner asking her to mark a photograph of the flat she shared with Reid so that the jury could see exactly where she hung from a first-floor balcony after her de facto threw her over the edge.

Had any or all of the Court’s seven justices read this material, I find it hard to believe that they would have described the sole or even main benefits of the Prasad process as ‘saving of time and costs, and restoring the accused to his or her liberty’.  Gayle Dunlop didn’t ask her lawyer to seek a Prasad direction to save the Supreme Court money and I think it unlikely that her concern was to end her 497 day stay in prison a day or two early. Rather, her goal was surely to avoid having to relive the horrors of life with her abusive partner on the witness stand.

Likewise, had the justices contemplated this sequence of events for more than a moment, I doubt that they would have been willing to dismiss jurors who seek to acquit early as disregarding their oaths by acting ‘without the assistance of addresses and the judge’s instruction on the applicable law.’ Rather, it is clear that the jury, having heard Dunlop’s testimony, were strongly motivated not to keep her waiting a moment longer to learn her fate. Can anyone doubt that they already knew at that stage that three more speeches from lawyers and a judge would never overcome what they had just heard from her mouth.

Speculation aside, what we know for sure is that Justice Lex Lasry saw fit to give the jury this option to do so in this particular case, despite his full awareness of the difficulties and even risks of the practice. He would surely be horrified to learn that his compassion and care for a victim of years of abuse would prompt a less careful and compassionate non-trial court to forever bar that option for future Australian judges.

But I am sure that he would have no regrets. Marking Lasry’s retirement last year, John Silvester wrote:

If you want to make Lasry cry, there is a simple way. Put on the iconic Al Pacino speech in Scent of a Woman, the final scene in Dead Poets Society or the climax of 12 Angry Men. “No matter how many times I see [them], they always get me.”

I suspect he also cried a little as he gave Dunlop’s jury his final direction:

Members of the jury, the only thing that remains for me to do now is to thank you for your service. We’ve been together now for over a week and and I’m sure you, if you didn’t already know, I’m sure you now clearly understand what an important responsibility jury service is. So on behalf of the community and in particular on behalf of the court can I thank you for your commitment to the case. It’s not been an easy case for all the reasons that are obvious, I don’t need to recount them. If I may say so, and I say this extremely rarely, in my opinion your verdict was a most appropriate verdict and brings this awful saga obviously to a conclusion.