Kathleen Clubb v Alyce Edwards & Anor; John Graham Preston v Elizabeth Avery & Anor  HCA 11 (10 April 2019)
In this landmark decision, the High Court upheld the constitutional validity of safe access zone laws in Victoria and Tasmania, in particular, provisions that prohibit certain communications and protests about abortion within 150 metres of abortion clinics.
Safe access zone laws protect the privacy, safety, dignity and wellbeing of patients accessing abortion services, and the staff providing those services, from the harmful behaviours of anti-choice activists. They do this by prohibiting certain behaviours, such as harassment, obstruction and filming, within a certain distance of clinics that provide abortion services.
Safe access zones have been enacted in every state and territory around Australia except for South Australia and Western Australia. In each jurisdiction the zone is 150m, apart from the ACT where it is a minimum of 50m.
Aspects of the safe access zone laws of Victoria and Tasmania were challenged in the High Court.
In Victoria, Kathleen Clubb was convicted under section 185D of the Public Health and Wellbeing Act 2008 (Vic) (Public Health Act) of engaging in prohibited behaviour in a zone; specifically, communicating about abortion in a manner “reasonably likely to cause distress or anxiety” to a couple trying to enter a clinic in Melbourne (communication prohibition).
In Tasmania, Graham Preston was convicted of engaging in prohibited behaviour in a zone under section 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) (Reproductive Health Act). In his case the prohibited conduct involved “a protest” about abortion that was able to be seen or heard by a person accessing a clinic (protest prohibition).
Mrs Clubb and Mr Preston each challenged the validity of these laws on the basis that they impermissibly burdened the freedom of communication about matters of government and politics, which is implied in the Australian Constitution (the implied freedom).
The High Court dismissed Mrs Clubb and Mr Preston’s challenge to the validity of the laws.
Victoria: Clubb v Edwards
The majority (Kiefel CJ, Bell, Keane, and Nettle JJ) upheld the constitutional validity of the communication prohibition, while Gageler, Gordon and Edelman JJ each declined to determine the validity question because it was not established that Mrs Clubb's conduct involved political communication, therefore failing the threshold question.
The majority applied the following test for invalidity, as stated in Lange v Australian Broadcasting Corporation (1997) and explained by a majority of the High Court in McCloy v NSW (2015) and Brown v Tasmania (2017):
Does the law effectively burden the implied freedom in its terms, operation or effect?
If "yes" to question 1, is the purpose of the law legitimate? In other words does the law impose a burden as a consequence of pursuing some other purpose rather than having an illegitimate purpose of imposing the burden?
If "yes" to question 2, is the law reasonably appropriate and adapted to advance that legitimate object?
In a joint judgment, Kiefel CJ, Bell and Keane JJ found that whilst the implied freedom is burdened by the communication prohibition, the burden is slight because it is geographically limited, non-discriminatory and limited to the topic of abortions. In finding that the law served a legitimate purpose, they noted that the protection of privacy and dignity is consistent with the political sovereignty of the people of the Commonwealth, which underpins the implied freedom.
In a separate judgment, Nettle J found that the prohibition of conduct has a perceptible and qualitative effect on the implied freedom, however his Honour was also satisfied that the burden was justified.
In applying the third step of the Lange-McCloy-Brown test above, the majority utilised a structured three-stage proportionality assessment, as done in the recent Brown decision. The majority was satisfied that the Victorian law was 1) ‘suitable’, in that it was rationally connected to its compelling purpose; 2) ‘necessary’, in that there was no obvious, compelling and less rights restrictive alternative to achieving that purpose; and 3) ‘adequate in balance’, in that the restriction imposed on the implied freedom was not ‘manifestly excessive’ to the purpose served by the laws.
Their Honours rejected a contention by the Victorian Solicitor-General that robust proportionality testing was not required in this case. They noted that the fact that “a burden upon the implied freedom is of small magnitude and for a compelling legitimate purpose does not dispense with the need to determine whether the impugned law is reasonably appropriate and adapted to the achievement of its purpose” .
Justices Gageler and Gordon, in separate judgments, read down the law, holding that the communication prohibition could be read in accordance with s6(1) of the Interpretation of Legislation Act 1984 (Vic) to exclude political communication if the prohibition infringes the implied freedom. Given this, and the fact that Mrs Clubb did not mount a positive case that she was engaged in political communication, Gageler and Gordon JJ declined to consider the question of whether the challenged provision infringed the implied freedom of political communication.
Justice Edelman also held that the law could be read in such a way that it would not apply to political communication, however His Honour applied the doctrine of partial disapplication.
Tasmania: Preston v Avery
The High Court unanimously upheld the validity of the challenged Tasmanian provision. The threshold question that applied in Mrs Clubb’s case was not relevant to Mr Preston’s case.
Kiefel CJ, Bell and Keane JJ upheld the protest prohibition in Tasmania’s Reproductive Health Act. Similar to the Victorian decision, they held that, whilst the law does impose a slight burden on the implied freedom, it serves a legitimate purpose of protecting the safety, wellbeing, privacy and dignity of persons accessing premises where abortions are provided. Applying the structured three-stage proportionality analysis, they found no manifest disproportion between the burden on political communication effected by the prohibition and the law's legitimate purpose.
Justices Gageler, Nettle, Gordon and Edelmen all found that there was some burden placed on the implied freedom by the protest prohibition. Ultimately, all judges found that the burden did not impermissibly infringe the implied freedom, but differed in their analysis of the extent of the burden.
Justice Gageler held that the protest prohibition placed a direct, substantial and discriminatory burden on the implied freedom. However, applying an adapted proportionality test, His Honour held that the burden is justified by reference to the law’s legitimate purpose, including the protection of persons accessing abortion clinics, and ensuring unimpeded access to lawful medical services. His Honour noted though, that the 150 m reach of Tasmania’s protest prohibition “must be close to the maximum reach that could be justified as appropriate and adapted to achieve the protective purpose”.
Justice Nettle held that the burden of the protest prohibition was minimal and justified as reasonably appropriate and adapted to advancing women's health through the enablement of women's access to lawful termination services.
Justice Gordon concluded that the purpose of the prohibition was protective and not directed at preventing political communication. Any burden on the freedom was insubstantial and indirect, and rationally connected to the legitimate purpose the law seeks to achieve. Her Honour did not consider three-stage proportionality testing necessary or appropriate.
Justice Edelman applied the three-stage proportionality analysis and determined the protest prohibition to be suitable and not grossly disproportionate to the extreme importance of the law’s purpose. His Honour found that the burden on the implied freedom caused by the protest prohibition was both “deep” and “wide”. However any alternative approach that would have imposed a lesser burden would be unlikely to achieve the objective of the law to the same extent.
Women’s reproductive rights
This decision is a significant win for gender equality in Australia. The High Court has acknowledged that “women seeking an abortion and those involved in assisting or supporting them are entitled to do so safely, privately and with dignity, without haranguing”. The decision has reinforced the importance of creating a safe environment for women to act on private medical decisions and provides a solid foundation for moving towards a similar framework in South Australia and Western Australia – the only jurisdictions without safe access zone laws in place.
Implied freedom of political communication
A majority of the High Court reiterated that even insubstantial burdens on the implied freedom require robust scrutiny because “any effective burden on the freedom must be justified.” Critically, a majority of the High Court refused to accept an argument advanced by the Victorian Solicitor-General, and a number of intervening Solicitors-General from other states, that a law need only be “rationally connected” in cases where its purpose is compelling and the burden slight.
This case saw further development and debate about the use of a structured three-stage proportionality assessment to scrutinise and determine whether a burden on the implied freedom is reasonably appropriate and adapted to advance its purpose – a method of assessment utilised by the majority in Brown and McCloy. Chief Justice Kiefel and Justices Bell, Keane and Nettle considered suitability, necessity and adequacy of balance in upholding the constitutional validity of Victoria and Tasmania’s laws, as did Justice Edelman in upholding Tasmania’s laws. Justice Gageler applied a modified proportionality analysis, while only Justice Gordon rejected its use in this case.
Ultimately, the Court found that the purpose of ensuring women have access to abortion services in an atmosphere of privacy and dignity is compelling, and justifies a geographically-limited burden on the implied freedom, which in the case of Tasmania, was found to be a substantial burden by Justices Gageler and Edelman. The Court also reminded us that the implied freedom does not include a right to a captive audience – in this case, patients seeking the healthcare they need.
The Human Rights Law Centre intervened in the case as a friend of the court. The Centre’s intervention in the High Court was generously assisted on a pro bono basis by DLA Piper and an exceptional team of barristers: Kate Eastman SC, Frances Gordon and Christopher Tran.
This case note was prepared by Anna Lane, Secondee Lawyer at the Human Rights Law Centre, and the following staff from DLA Piper: Jane Coventry (Senior Associate), Laura Elliott (Solicitor), Joely Wilkinson-Hayes (Solicitor), Beau Paterson (Solicitor), Davina Khoo (Graduate), Emily Lewis (Graduate) and Saheba Singh (Graduate) at DLA Piper.
 Public Health and Wellbeing Act 2008 (Vic), s185B(1) (definition of ‘prohibited behaviour’).
 Reproductive Health (Access to Terminations) Act 2013 (Tas), s9(1).