Clubb v Edwards

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Keane JJ,Gageler J.,Nettle J.,Gordon J.,Edelman J
• Judgment Date: 10 April 2019
• Neutral Citation: [2019] HCA 11
• Date: 10 April 2019
• Court: High Court
• Docket Number: M46/2018 & H2/2018

[2019] HCA 11

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ

M46/2018 & H2/2018

Kathleen Clubb

Appellant

and

Alyce Edwards & Anor

Respondents

John Graham Preston

Appellant

and

Elizabeth Avery & Anor

Respondents

Representation

G O'L Reynolds SC with F C Brohier and D P Hume for the appellant in both matters (instructed by Khor & Burr Lawyers and DL Legal Lawyers)

F L Dalziel with J M Davidson for the first respondent in M46/2018 (instructed by Director of Public Prosecutions (Vic))

K L Walker QC, Solicitor-General for the State of Victoria, with K E Foley and S Gory for the second respondent in M46/2018 and for the Attorney-General for the State of Victoria, intervening in H2/2018 (instructed by Victorian Government Solicitor)

M E O'Farrell SC, Solicitor-General for the State of Tasmania, with S K Kay for the respondents in H2/2018 (instructed by Solicitor-General for Tasmania)

S P Donaghue QC, Solicitor-General of the Commonwealth, with C L Lenehan and C G Winnett for the Attorney-General of the Commonwealth, intervening in both matters (instructed by Australian Government Solicitor)

P J Dunning QC, Solicitor-General of the State of Queensland, with F J Nagorcka for the Attorney-General of the State of Queensland, intervening in both matters (instructed by Crown Solicitor (Qld))

C D Bleby SC, Solicitor-General for the State of South Australia, with P D Stirling for the Attorney-General for the State of South Australia, intervening in both matters (instructed by Crown Solicitor's Office (SA))

G T W Tannin SC with F B Seaward for the Attorney-General for the State of Western Australia, intervening in both matters (instructed by State Solicitor for Western Australia)

J K Kirk SC with Z C Heger for the Attorney-General for the State of New South Wales, intervening in both matters (instructed by Crown Solicitor's Office (NSW))

T J Moses for the Attorney-General for the Northern Territory, intervening in H2/2018 (instructed by the Solicitor-General for the Northern Territory)

The Castan Centre for Human Rights Law, The Fertility Control Clinic (A firm) and The Human Rights Law Centre appearing as amici curiae in M46/2018, each limited to its written submissions

LibertyWorks Inc appearing as amicus curiae in H2/2018, limited to its written submissions

Interpretation of Legislation Act 1984 (Vic), s 6.

Public Health and Wellbeing Act 2008 (Vic), ss 185A, 185B, 185C, 185D, 185E.

Reproductive Health (Access to Terminations) Act 2013 (Tas), s 9.

Constitutional law (Cth) — Implied freedom of communication about governmental or political matters — Where s 185D of Public Health and Wellbeing Act 2008 (Vic) and s 9(2) of Reproductive Health (Access to Terminations) Act 2013 (Tas) prohibit certain communications and activities in relation to abortions within access zone of 150 m radius around premises at which abortions are provided — Where appellants engaged in communications and activities in relation to abortions within access zone — Whether communications and activities in relation to abortions are communications about governmental and political matters — Whether provisions effectively burden implied freedom — Whether provisions imposed for legitimate purpose — Whether provisions reasonably appropriate and adapted to that purpose — Whether provisions suitable, necessary and adequate in balance.

Constitutional law (Cth) — Implied freedom of communication about governmental or political matters — Severance, reading down and disapplication — Where appellant charged and convicted of offence against s 185D of Public Health and Wellbeing Act 2008 (Vic) — Where it was not contended that appellant's conduct involved political communication — Where substantial overlap with issues raised in proceedings in relation to interstate Act — Whether s 185D able to be severed, read down or partially disapplied so as to have valid operation in respect of appellant — Whether appropriate to proceed to determine constitutional validity of s 185D.

Words and phrases — “access zone”, “adequate in its balance”, “calibration”, “compatible with the maintenance of the constitutionally prescribed system of representative and responsible government”, “compelling purpose”, “dignity”, “discriminatory”, “legitimate purpose”, “necessary”, “partial disapplication”, “political communication”, “privacy”, “prohibited behaviour”, “proportionality testing”, “protest”, “rational connection”, “reading down”, “reasonably appropriate and adapted”, “safe access zone”, “severance”, “structured proportionality”, “suitable”, “undue burden”, “viewpoint neutral”.

ORDER

Matter No M46/2018

• 1. So much of the appellant's appeal from the judgment of Magistrate Bazzani made on 11 October 2017 as has been removed into this Court is dismissed.

• 2. The appellant pay the respondents' costs.

Matter No H2/2018

• 1. So much of the appellant's appeal from the judgment of Magistrate Rheinberger made on 27 July 2016 as has been removed into this Court is dismissed.

• 2. The appellant pay the respondents' costs.

1 Kiefel CJ, Bell and Keane JJ. The Parliaments of the States of Victoria and Tasmania have decriminalised the termination of pregnancies by artificial means in certain circumstances 1. In addition, the legislature of each State has sought to provide that those seeking access to, or working in, premises where terminations are available are protected from hindrance.

2 In Matter M46 of 2018 (“the Clubb appeal”), the appellant, Mrs Kathleen Clubb, challenges the validity of s 185D of the Public Health and Wellbeing Act 2008 (Vic) (“the Public Health Act”), which, by virtue of the definition of “prohibited behaviour” in s 185B(1), prohibits, in certain circumstances, “communicating by any means in relation to abortions”. Section 185D was inserted into the Public Health Act by the Public Health and Wellbeing Amendment (Safe Access Zones) Act 2015 (Vic) (“the Safe Access Zones Act”).

3 In Matter H2 of 2018 (“the Preston appeal”), the appellant, Mr John Graham Preston, challenges the validity of s 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) (“the Reproductive Health Act”), which, by virtue of the definition of “prohibited behaviour” in s 9(1), prohibits, in certain circumstances, “a protest in relation to terminations”.

4 Each of the appellants argues that the challenged provision is invalid because it impermissibly burdens the freedom of communication about matters of government and politics which is implied in the Constitution (“the implied freedom”). This argument falls to be resolved by application of the test for invalidity stated in Lange v Australian Broadcasting Corporation2 as explained in McCloy v New South Wales3 and Brown v Tasmania4.

5 The test to be applied was adopted in McCloy by French CJ, Kiefel, Bell and Keane JJ 5, and it was applied in Brown by Kiefel CJ, Bell and Keane JJ 6 and

Nettle J 7. For convenience that test will be referred to as “the McCloy test”. It is in the following terms 8:

• 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?

6 The third step of the McCloy test is assisted by a proportionality analysis which asks whether the impugned law is “suitable”, in the sense that it has a rational connection to the purpose of the law, and “necessary”, in the sense that there is no obvious and compelling alternative, reasonably practical, means of achieving the same purpose which has a less burdensome effect on the implied freedom. If both these questions are answered in the affirmative, the question is then whether the challenged law is “adequate in its balance”. This last criterion requires a judgment, consistently with the limits of the judicial function, as to the balance between the importance of the purpose served by the law and the extent of the restriction it imposes on the implied freedom 9.

7 The appellants argued that the challenged laws fail to satisfy the McCloy test. In addition, they invited the Court to approach the question as to the validity of the challenged provisions on the footing that they derogate impermissibly from what their Senior Counsel described as the right to protest and demonstrate. This invitation cannot be accepted, for reasons that may be stated briefly.

8 It is well settled that the implied freedom is a limitation upon the power of government to regulate communication relating to matters of government and politics. It does not confer a right to communicate a particular message in a

particular way 10. The common law right to protest or demonstrate may be abrogated by statute. The issue in each appeal is whether the statutory abrogation is valid. Senior Counsel for the appellants acknowledged in the course of argument that to accept his invitation would be contrary to the settled understanding in this Court's decisions. Notwithstanding that acknowledgment, he advanced no basis on which this Court might now adopt a different understanding of the juridical nature of the implied freedom, and so the invitation must be rejected.

9 The statutory provision challenged in each appeal operates within a “safe access zone”, which is the area within a radius of 150 m from premises at which terminations are provided. In each case, the restriction is confined to...