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
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

3 thoughts on “Clubb v Edwards; Preston v Avery

  1. Thanks for summary Martin.

    I was recently walking past a clinic in Canberra that performs abortions and noticed a man sitting silently out the front reading a bible. The man was clearly sitting inside the ‘safe access zone’ which led me to wonder if reading a bible could be considered to be a “communication”. Thoughts anyone?

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