Clubb v Edwards: Defending Victoria's safe access zones in the High Court
What are safe access zones?
Safe access zones came into force in Victoria in May 2016 and ended decades of intimidation and harassment by anti-abortionists outside reproductive health clinics that provide abortion care.
Safe access zones create a 150 metre buffer zone outside abortion clinics, in which certain behaviours are prohibited. Prohibited behaviour within a zone includes harassing or intimidating a person trying to enter an abortion clinic, communicating about abortion in a way that is reasonably likely to cause distress or anxiety to a person trying to enter a clinic and filming a person accessing or leaving a clinic without their consent.
Safe access zone laws are designed to protect the privacy, safety, dignity and wellbeing of people accessing reproductive health care services, and the staff providing those services.
Safe access zones laws in Victoria sit in the Public Health and Wellbeing Act 2008. The zones became law following a Supreme Court bid by the Melbourne Fertility Control Clinic to end decades of harassment outside that Clinic. The Human Rights Law Centre and Maurice Blackburn Lawyers represented the Clinic in that case.
What is this case about?
For over two years, safe access zone laws in Victoria have prevented harm to women seeking abortion care and staff providing those services. During this time, one woman, Ms Clubb, was charged and convicted with engaging in prohibited behaviour in a zone; specifically, for communicating about abortion in a manner “reasonably likely to cause distress or anxiety” to a couple trying to enter the Melbourne Fertility Control Clinic.
Ms Clubb claims that this part of the safe access zone laws is invalid on the grounds that it is inconsistent with the freedom of political communication, which is implied in the Australian Constitution.
Clubb v Edwards will be heard by the HCA at the same time as a similar challenge to Tasmania’s safe access zone laws in Preston v Avery.
What is the implied freedom of political communication?
Australia’s Constitution partially protects freedom of expression through the implied freedom of political communication.
The HCA will have to identify whether the relevant part of the Victorian and Tasmanian safe access zone laws burden the freedom of political communication. If the freedom is burdened, in order for the laws to be constitutional, they must have a legitimate purpose and be reasonably appropriate and adapted to advance that purpose.
What is the Human Rights Law Centre’s role?
The HRLC has been granted permission from the High Court to provide submissions as “a friend of the court”.
The HRLC’s intervention supports Victoria’s safe access zones. We believe that the laws:
serve a critical purpose in making sure women and clinic staff do not have to forgo their rights to safety, dignity and privacy; and
strike the right balance between the freedom of political communication and the right of every woman to access abortion care without being harassed or intimidated.
Related: HRLC’s submissions to the High Court
This explainer is not legal advice
The contents of this publication do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as legal advice. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.