In Kathleen Clubb v Alyce Edwards & Anor; John Graham Preston v Elizabeth Avery & Anor  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.
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  HCATrans 60 (23 March 2018)).
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”.
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:
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.
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  HCATrans 60 (23 March 2018)).
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”.
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:
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
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.
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  and  of the majority decision under the heading "Adequacy of balance":
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:
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Kathleen Clubb v Alyce Edwards & Anor; John Graham Preston v Elizabeth Avery & Anor  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  HCATrans 60 (23 March 2018)
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