In an important decision on free speech issues, the High Court of Australia, in its decision in Clubb v Edwards; Preston v Avery  HCA 11 (10 April 2019), has upheld the validity of laws in Victoria and Tasmania prohibiting communication about abortion within 150m of an abortion clinic. The decision may have serious implications for free speech about other issues on which religious believers have deep-seated convictions contrary to the general orthodoxy of modern Australian society.
The blog has previously featured material about “abortion buffer zone” laws in Australia- see here (a guest post by Prof Michael Quinlan on a US decision) and here. Since those previous pieces, laws prohibiting communication on abortion issues have continued to be added in Australia. As well as the Reproductive Health (Access to Terminations) Act 2013 (Tas), and Part 9A of the Public Health and Wellbeing Act 2009 (Vic) (the two statutes involved in the Clubb and Preston appeals), we now have the Public Health Act 2010 (NSW) Part 6A (effective 15 June 2018); the Termination of Pregnancy Act 2018 (Qld), Part 4 (effective 3 Dec 2018); the Health Act 1993 (ACT), Part 6, Div 6.2 (effective 22 March 2016); and the Termination of Pregnancy Law Reform Act 2017 (NT) (effective 2 July 2017).
Each of those laws, in general terms, in the interest of protecting the privacy and dignity of women seeking termination of pregnancy, ban different sorts of communication about terminations which take place within a radius of a clinic offering the procedure (usually 150 m, as in the two Acts in this litigation).
I think it is worth repeating some of what I previously said to set the context for this matter:
Of course the arguments in favour of protecting women who are visiting clinics to have an abortion, from undue harassment, are very powerful. Any such procedure is already incredibly stressful. If this were any other medical procedure, there would be very little reason to allow protests designed to discourage patients from attending, to take place outside medical offices . Protests could, of course, take place outside Parliament House (as proponents of these laws have urged.) This would all be persuasive if abortion were merely, as a recent editorial in the Medical Journal of Australia put it, just like “other medical procedures”. (See De Costa & Douglas, “Abortion Law in Australia: it’s time for national consistency and decriminalisation” (2 Nov 2015) 203/9 MJA 349-350, at 350).
But abortion is, with respect to those who think otherwise, not just another medical procedure. Many religious believers take the view that a human being, a person in the image of God, is present in the womb from the moment of conception. But agree with that view or not, there seems no doubt that, on purely objective biological grounds, what is present in the womb of a pregnant woman is a human life. A termination at the very least prevents that human life flourishing into a human being. However the operation is described, it is not “just another medical procedure”.
Those who wish to mount a quiet prayer vigil, or to offer counselling, outside abortion clinics do not do so, then, simply to “protest” the fact of the operation taking place, or because they believe the procedure is wrong and ought not to be carried out in the vast bulk of cases. They do so because they believe these things, but also because they believe that a human life is at stake in each procedure, and should be preserved.
Not all believers, even those who share the view that a full person is present from conception, take the view that vigils or “protests” outside abortion clinics are a wise or loving way to further the aim of stopping abortions. But some do. In general, our law places a strong value on the right of people to make public statements about their beliefs, where they are not directly attacking or threatening others. In addition, however, the law of Australia, and international law, protects religious freedom, and arguably not only the free speech rights of protestors, but also in many cases their religious freedom rights, are under threat from, or being impaired by, the “exclusion zone” laws
In these cases, Kathy Clubb was convicted under the Victorian law, for politely handing a leaflet to a young woman approaching the clinic, and Graham Preston under the Tasmanian law for holding up signs speaking about the rights of unborn children under international law.
The sole ground of challenge to the laws in each of the cases was that they operated to interfere with the implied freedom of political communication which has been found in the Commonwealth Constitution. While each of the appellants were undertaking their activities because of their deep religious commitments, in neither case was a challenge mounted on the grounds of religious freedom. As previously explained, this was no doubt because the prohibition on interfering with “free exercise” of religion in s 116 of the Commonwealth Constitution, does not apply to laws made by States. (I refer readers who are interested in a more extensive discussion of “religious free speech” issues under Australian law to my recent paper on the topic, linked here.)
Protection of free speech under Australian law
Most of the lengthy decision of the court (one joint “plurality” decision by Kiefel CJ, Bell and Keane JJ, but then 4 individual decisions by the other members of the Court, Gageler, Nettle, Gordon and Edelman JJ) is devoted to discussing (again!) how the implied freedom of political communication should be applied in specific cases. There is a deep internal division within the current Court over the usefulness of a “proportionality” test which is said by some to be relevant at the third stage of the inquiry. For reasons of both time and space, and (my lack of!) relevant expertise, I won’t go into the details of this debate. But for the purposes of understanding how the matter is generally approached readers should be aware of the following.
The implied freedom of political communication is an implication from the democratic structure of the Constitution, that Parliaments (both Commonwealth and State) should not unduly restrict free speech on political issues. As supported by at least 4 Justices of the Court at the moment, it involves testing a law by asking the following questions (taken from the plurality judgment at ):
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?
There is also a majority view that the third stage here, which asks about the nature of the law in the context of its purpose, is assisted by a “proportionality” analysis (again, from the plurality):
 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 (emphasis added)
Other members of the Court are either more sceptical about using “proportionality” (see Gageler J at , Gordon J at ) or warn that it needs to be carefully adapted to a common law context (Edelman J at ).
Clubb v Edwards
There was a division of opinion within the court as to whether Kathy Clubb’s case (from Victoria) should be seen as one of “political communication” or not, and hence whether the court should rule on this issue. The issue arose because the evidence showed that what Mrs Clubb had done was to quietly share a leaflet with one woman and her partner, rather than display placards or signs.
A majority of the court (the plurality and Nettle J) held that even if it could be said that that this in itself was not “political communication”, there were good reasons for them to make detailed comments on the validity of the Victorian Act- see eg . The three other Justices took the view that, since what she had done was not “political” in the relevant sense, long-standing principles of judicial restraint meant that the court should not rule on the validity of the law. In different ways these Justices held that the operation of the law in relation to “political speech” could be “severed” (Gageler & Gordon JJ) or “partially disapplied” (Edelman J), so that Mrs Clubb’s appeal would fail whether or not the Victorian legislation had an impact on political speech.
The majority, though, did consider the question whether the Victorian Act was invalid due to its impact on the implied freedom. They held that it was not. In brief, to take the comments of the plurality:
- There was indeed a “burden” on the implied freedom- - due to the restrictions imposed by the Victorian Act (which prohibited “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 reasonably likely to cause distress or anxiety”- see s 185B(1)(b) and s 185D).
- There was a legitimate purpose of protecting the “privacy and dignity” of women attending abortion clinics- see , . The plurality rejected the view that the law only protected “one side” of the debate, since it restricted all communications “in relation to” abortions, and hence would also have restricted activities supporting terminations- .
- The law was “suitable” to achieve its desired purposes, with a “rational connection” to its purpose- ; there did not seem to be less restrictive approach which would achieve the same ends- -; and it was “not disproportionate” in the way it achieved those ends- .
Preston v Avery
Graham Preston had been holding placards outside a Tasmanian abortion clinic, with slogans such as “EVERY ONE HAS THE RIGHT TO LIFE, Article 3, Universal Declaration of Human Rights” and “EVERY CHILD HAS THE RIGHT TO LIFE, Article 6, UN Convention on the Rights of the Child”, and a poster depicting, among other things, a representation of a foetus at eight weeks- see .
All judges agreed that he was engaged in “political communication”. The Tasmanian law prohibited “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”- see s 9(1), definition of “prohibited behaviour” para (b).
The analysis by the plurality was very similar to their examination of Mrs Clubb’s case. This law was a burden on political speech (), but it was a law with an acceptable purpose (“protecting the safety, wellbeing, privacy and dignity of persons accessing premises where terminations are provided”- see ), it was rationally connected to the purpose, not over-broad and adequate in balance. Hence the law was valid, and Mr Preston’s conviction upheld.
Some points of interest
The above merely skims the surface, even of the plurality decision, and there are many nuances and differences even between that judgment and that of Nettle J, as well as with the other Justices. But I would for present purposes like to note the approach of Gageler J, which came very close to producing a different outcome.
As a preliminary point, while these matters do not affect the outcome, it is worth noticing the language that is used describing different positions. The phrase “pro-choice”, for example, is used to describe those in support of terminations of pregnancy twice by the plurality (at , .) But in those contexts the “other side” of the debate is described by the plurality as “anti-abortion”. There seems a deliberate decision to frame those opposed to abortions in this way, rather than through the epithet they would no doubt prefer, “pro-life”. By contrast, Gageler J uses both “pro” phrases- referring to “pro-life” proponents 7 times, and contrasting this with “pro-choice” on three occasions- see , .
It was also interesting that, while the court mostly was very restrained in its description of different activities, Nettle J in particular referred on a couple of occasions to pro-life campaigners “haranguing” those entering clinics- for example at  and , and at one point someone “forcing literature” on a woman- see . None of those activities had occurred in this case.
In particular, though, it is fascinating to read the analysis of Gageler J. It contains much clear discussion of the issues. He finds, for example, contrary to some other members of the court, that these laws are clearly, as a pragmatic matter, favouring one side (the “pro-choice” side) of the debate over the other- see :
the real-world effect of the prohibition operating only within a radius of 150 m around premises which provide abortion services can only be that the prohibition curtails protests by those who seek to express disapproval of the availability of services of the kind provided at the premises to a significantly greater extent than it curtails protests by those who seek to express approval.
He also holds that “the burden which the protest prohibition places on political communication is direct, substantial and discriminatory”- . On this basis he says that the law warrants a high level of scrutiny- that for the law to be valid it must be shown to be in pursuit of a “compelling” (not just a “permissible”) government interest, and it the prohibition “needs to be closely tailored to the achievement of that purpose; it must not burden the freedom of political communication significantly more than is reasonably necessary to do so” – .
He rejects the view that a law can be valid if it only has the purpose of dealing with “offence”:
 Unsolicited, unwelcome, uncivil or offensive political communication is not carved out as an exception from the freedom of political communication impliedly guaranteed by ss 7, 24, 61, 64 and 128 of the Constitution
However, in this case he thought that there was a “compelling” interest in ensuring access to clinics with “privacy and dignity”- . Still, he obviously agonised over the question of the breadth of the buffer zone. He points out that zones which have been upheld in the US have had a much smaller reach. A zone of 35 ft was struck down as invalid in McCullen v Coakley (2014) 134 S Ct 2518 (the subject of Professor Quinlan’s previous comments.) (Similarly, Edelman J noted at : “it is almost beyond argument that the relevant provisions of the Reproductive Health Act would be invalid on the present approach taken by the United States Supreme Court”.)
Gageler J rejected a submission that the court had to defer to the Parliament’s judgement on the point, noting that it bore a duty to apply the law as it saw it- .
He makes the following significant comment at :
Total and permanent prohibition of public expression of political opinion on a particular subject matter within normal working hours within an area defined by a radius of 150 m (covering at least 70,650 m2) in an urban environment is not trivial, and it is not automatically justified by pointing to the ability to express the opinion at other times and places. Were the reach of the protest prohibition to have the effect of preventing a protest on the subject matter of abortion being held at a location meaningfully proximate to a place at which abortion services are provided during the hours of its operation, I would consider enactment of the protest prohibition to be legislative overreach. That is because the prohibition would effectively ban all on-site protests in relation to abortion. To ban all on-site protests in relation to abortion would, in my opinion, suppress political dissent to an extent greater than is reasonably necessary to achieve the permissible and compelling purpose of ensuring that women have access to those premises in an atmosphere of privacy and dignity in a manner compatible with maintenance of the constitutionally prescribed system of government. (emphasis added)
But while coming “this close” to finding the legislation invalid, in the next paragraph he refers to a finding of the Tasmanian magistrate that there were other nearby places just outside the 150 m zone at which protests could be held, and concludes at :
The 150 m reach of the protest prohibition around premises at which abortion services are provided must be close to the maximum reach that could be justified as appropriate and adapted to achieve the protective purpose of facilitating access to those premises in a manner compatible with maintenance of the constitutionally prescribed system of government. Nevertheless, I am satisfied that confining the protest prohibition within that 150 m limit leaves enough opportunity for protests to be held at other locations meaningfully proximate to the premises to warrant the conclusion that the burden that the protest prohibition places on political communication, although not insubstantial, is not undue. (emphasis added)
This decision will be a disappointment to many who are concerned about the increase of abortions in our society, and in particular those who see it as a religious duty to do all that they can to save the lives of unborn babies. The complexity of the decision overall, and the confusingly different approaches taken by different members of the High Court, leaves the future development of the law of free speech in Australia in some doubt. It seems that the High Court changes its approach to this question with every new decision it hands down. However, the approaches here are now those that have to be taken into account in deciding whether an Australian law breaches the implied freedom of political communication. It is at least heartening that one member of the court (Gageler J at , quoted above) has clearly asserted that a prohibition on the mere causing of “offence”, or a lack of civility, would go well beyond what the law would regard as valid.
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