High Court Considers Political Communication and Safe Access Zones: Clubb v Edwards [2019] HCA 11

Thursday 11 April 2019 @ 1.06 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

In Kathleen Clubb v Alyce Edwards & Anor; John Graham Preston v Elizabeth Avery & Anor [2019] HCA 11 (10 April 2019) the High Court of Australia has unanimously dismissed so much of two appeals as had been removed from the Supreme Court of Victoria and the Supreme Court of Tasmania to the High Court. In dismissing the appeals the High Court unanimously rejected the appellants' challenges to the two laws which prohibit certain communications and activities in relation to abortions in "access zones" around premises at which abortions are provided. The appeals were heard together as they raised a number of similar issues.

Background - Clubb v Edwards

The appellant was charged with an offence under section 185D of the Public Health and Wellbeing Act 2008 (Vic) (“the Victorian Act”) on 4 August 2016. The appellant approached a couple entering the East Melbourne Fertility Control Clinic, spoke to them and handed them a pamphlet. In proceedings before the Victorian Magistrates Court, the appellant challenged the validity of section 185D. The grounds for challenging section 185D were that it infringed the "implied freedom of political communication in the Commonwealth Constitution". The appellant's constitutional challenge was rejected by the Magistrate and the charge against the appellant was found to be proven. The appellant appealed to the Supreme Court of Victoria, however, that appeal was removed to the High Court by order of Justice Gordon on 23 March 2018 (see Attorney-General for the State of Victoria v Clubb & Anor; Clubb v Edwards & Anor; Preston v Avery & Anor [2018] HCATrans 60 (23 March 2018)).

Relevant Law - Clubb v Edwards

The relevant part of section 185D of the Victorian Act is: “[a] person must not engage in prohibited behaviour within a safe access zone”. The term "safe access zone" is defined in section 185B(1) as "an area within a radius of 150 metres from premises at which abortions are provided", and the term "prohibited behaviour" is defined as: “communicating by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided and is likely to cause distress or anxiety”.

Arguments on Appeal - Clubb v Edwards

The appellant's arguments were as follows:

Firstly, the legal and practical operation of the "communication prohibition" contained in section 185D of the Victorian Act is extremely wide and seeks to proscribe many communications which would be characterised as political, for example, whether the Commonwealth government should encourage or discourage abortions, and whether federal laws should be changed to restrict or facilitate abortions.

Secondly, the appellant also contends that section 185D of the Victorian Act does not pursue an end that is compatible with "constitutional systems", that is, while the objects clause in the Victorian refers to "safety, well-being and privacy", the appellant contends that the communication prohibition in section 185D deters communications which are apt to cause discomfort, an end which is not compatible with constitutionally prescribed systems.

Thirdly, it was submitted by the appellant, that in its present operational state section 185D of the Victorian Act burdens one side of the abortion debate more than the other and that being the case, it discriminates and distorts "political communication".

Finally, it was further submitted by appellant that the prohibition in section 185D of the Victorian Act is not necessary as there are equally practicable, less burdensome alternatives.

The grounds of the appeal to the High Court included that the learned Magistrate wrongly held:

that communications in relation to abortion are not, as a matter of law, political communications; and
that section 185D of the Victorian Act so far as it prohibits communications about abortion in a safe access zone, in a manner that was able to be seen or heard by persons accessing or attempting to access or leaving premises at which abortions are provided that is reasonably likely to cause anxiety or distress does not impermissibly burden the implied freedom of political communication implied by the Commonwealth Constitution and was valid.

The Attorneys-General of South Australia, Western Australia, Queensland, New South Wales, and the Commonwealth filed "Notices of Intervention", and a number of organisations were granted leave to appear as amicus curiae, limited to their written submissions, namely the Castan Centre for Human Rights Law, the Fertility Control Clinic and the Human Rights Law Centre. The Access Zone Action Group was refused leave to appear as amicus curiae.

Background - Preston v. Avery

In this case, on three separate occasions, namely, 5 and 8 September 2014 and 14 April 2015, the appellant was charged with offences under section 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) (“the RHAT Act”) .

Charge 1 - related to the appellant holding placards and handing out leaflets near the entrance to the Specialist Gynaecology Centre in Hobart.
Charge 2 - related to the same conduct, and included a conversation between the appellant and a woman wishing to access the Centre.
Charge 3 - involved the appellant and two other people holding placards outside the Centre and included the appellant failing to comply with a police officer's direction to leave the immediate area.

The appellant challenged the validity of the protesting prohibition in proceedings before the Magistrates Court, arguing that it infringed the implied freedom of political communication in the Commonwealth Constitution. The appellant's constitutional challenge was rejected by the Magistrate, who then found all three of the charges to have been proved. The appellant appealed to the Supreme Court of Tasmania, which appeal was then removed to the High Court by order of Gordon J on 23 March 2018 (see also Attorney-General for the State of Victoria v Clubb & Anor; Clubb v Edwards & Anor; Preston v Avery & Anor [2018] HCATrans 60 (23 March 2018)).

Relevant Law - Preston v Avery

Section 9(2) of the RHAT Act provides that “A person must not engage in prohibited behaviour within an access zone”. Section 9(2) of the RHAT Act defines an "access zone" as "an area within a radius of 150 metres from premises at which terminations are provided". "Prohibited behaviour" is defined in section 9(1(b) of the RHAT Act as: “a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided”.

Arguments on Appeal - Preston v Avery

Preston v Avery raised issues similar to those raised by the appeal in Clubb v Edwards and the appellant generally adopted the submissions advanced by the appellant in that matter, however they also made further submissions as follows:

Eight possible objects of the legislation were identified by the appellant , for example, to deter speech which has the purpose of dissuading or delaying persons from accessing abortions, these were submitted as being constitutionally impermissible.
Further, the appellant submitted that the prohibition in section 9(1) the RHAT Act is not necessary as there are equally practicable, less burdensome alternatives.
Also it was argued for the appellant that the prohibition in s 9(1) the RHAT Act is not adequate in its balance because it is targeted at a characteristic form of political communication, namely, protest. The burden it inflicts is direct and the prohibition is also targeted, in law or fact, at those who hold particular views on abortion. It therefore distorts debate and is discriminatory.

The grounds of the appeal included that the learned Magistrate erred in law in that she found that the effect of section 9(2) the RHAT Act was that

“[a] person should not be regarded as accessing or attempting to access the premises until they are doing just that, going into the premises or attempting to enter the premises and then consideration is given to at which point if any whilst doing that if the person can see or hear the protest” and hence found that an offence could only be committed under section 9(2) if a protest could be seen and heard by a person going into the premises (in the sense of actually entering the premises) or attempting to access the premises (in the sense of being closely proximate to the entrance of the premises and intending to go into the premises).

As with Clubb v. Edwards, the Attorneys-General of Victoria, South Australia, Western Australia, Queensland, New South Wales, the Northern Territory, Victoria and the Commonwealth filed Notices of Intervention. LibertyWorks was granted leave to appear as amicus curiae, limited to its written submissions.

The High Court's Decision

In reaching its decision, a majority of the High Court found that in relation to the Victorian Act, the burden imposed by the communication prohibition was justified by reference to its "legitimate purposes", including the protection of the safety, well being, privacy and dignity of persons accessing lawful medical services. The other members of the Court considered that the challenge to the communication prohibition should be dismissed without determining the validity of the prohibition because it was not established that the appellant's conduct involved "political communication". In relation to the Tasmanian RHAT Act, the Court unanimously held that the burden imposed by the protest prohibition was justified by reference to its "legitimate purposes", which include the protection of the safety, well being, privacy and dignity of persons accessing premises at which abortions are provided and ensuring unimpeded access to lawful medical services. See paragraphs [127] and [128] of the majority decision under the heading "Adequacy of balance":

[127] The Reproductive Health Act, in targeting a "protest" about abortion, is directed at public demonstration, whatever its viewpoint, which is likely to be confronting to those in need of medical advice and assistance from a clinic. The purposes of the Reproductive Health Act in this respect are the same as those of Pt 9A of the Victorian Act. The cardinal features of both pieces of legislation are that the burden on the implied freedom operates only within safe access zones and is confined to the discussion of abortion. The burden on political communication imposed by the protest prohibition is slight, in that, to the extent that it does affect political communication, it does so only within access zones, and without discriminating between sources of protest.

[128] The restriction in the Tasmanian Act on the ability of people to engage in public debate about abortions is adapted to meet the same considerations of the advancement of public health and the protection of the privacy and dignity of citizens as the restriction in the Victorian Act. There is no manifest disproportion between the burden on political communication effected by the protest prohibition and the law's legitimate purpose.

Reactions and Comment

Commenting on the decision the Human Rights Law Centre is reported to have welcomed the High Court's decision, saying the decision had acknowledged, "the importance of privacy, safety and equality in access to healthcare".

In a report by SBS News, Maurice Blackburn, who acted on behalf of the Melbourne clinic involved in the case, said that:

". . . the buffer zones protected women's rights to use lawful health services safely, where other legal protections had failed. . . . We welcome today's decision which has upheld a woman's right to access her doctor free from fear, intimidation or harassment, . . . We are pleased that this decision upholds the primacy of privacy and health outcomes for women."

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Sources:

Kathleen Clubb v Alyce Edwards & Anor; John Graham Preston v Elizabeth Avery & Anor [2019] HCA 11 (10 April 2019) and summaries and support materials.

Attorney-General for the State of Victoria v Clubb & Anor; Clubb v Edwards & Anor; Preston v Avery & Anor [2018] HCATrans 60 (23 March 2018)

Anti-abortion activists lose High Court challenge to laws banning protests outside clinics (Elizabeth Byrne, ABC News, 10 Apr 2019)

Anti-abortion activists lose High Court challenge to scrap buffer zones (SBS News, 10 Apr 2019)