I am delivering a paper to the Newcastle branch of the Christian Medical and Dental Fellowship of Australia on Monday 21 September from 7 pm. A copy of the paper is here:
Right to life
High Court upholds abortion buffer zone laws
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.
Conscientious Objection in the Termination of Pregnancy Bill 2018 (Qld)- guest blog
(This guest blog post was provided by Dr Alex Deagon, FHEA, Senior Lecturer, Faculty of Law, Queensland University of Technology.)
On 17thOctober 2018 the Queensland Parliament passed the Termination of Pregnancy Bill 2018 (Qld). This law will, among other things, allow abortion on demand up to 22 weeks’ gestation, and abortion up to full term if approved by two independent doctors who agree it is appropriate taking into account all the circumstances. Setting aside for one moment the significant objections to the primary function of this legislation in general, a major point of contention with the bill was the extent to which health practitioners are able to refrain from providing abortion services because they have a conscientious objection.
Proposed Abortion Law changes in NSW
Two NSW Private Member’s Bills relating to abortion may be debated in the NSW Parliament in the next month. One in particular will completely remove any legal regulation of abortions in the State. It will also have serious consequences for religious freedom and free speech. It seems worthwhile to bring the implications of these proposals to notice.
On the general area of abortion rights and freedom of conscience, I highly recommend a paper by Professor Michael Quinlan, Dean of the University of Notre Dame Law School, Sydney, “When the State Requires Doctors to Act Against their Conscience: The Religious Freedom Implications of the Referral and the Direction Obligations of Health Practitioners in Victoria and New South Wales”, (2016) BYU L. Rev. 1237. Professor Quinlan also has a clear explanation of the law of abortion in NSW at the moment, on which the following relies.
1. Abortion Law Reform (Miscellaneous Acts Amendment) Bill 2016
This Bill was introduced into Parliament on 11 August, 2016, by Dr Mehreen Faruqi, Greens MLC. If enacted it would make sweeping changes to the law of abortion in NSW. It would allow the killing of an unborn child at any stage prior to birth. It would impose a serious burden on the religious freedom of medical practitioners who have a conscientious objection to abortion. It would also seriously impede rights of religious freedom and free speech of those who would wish to protest against abortion near abortion clinics.
(a) The current NSW law on abortion
The criminal law of NSW currently prohibits abortion, the act of killing an unborn baby. See the Crimes Act 1900 (NSW):
82 . . . Whosoever, being a woman with child, unlawfully administers to herself any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.
83 . . . Whosoever unlawfully administers to, or causes to be taken by, any woman, whether with child or not, any drug or noxious thing, or unlawfully uses any instrument or other means, with intent in any such case to procure her miscarriage, shall be liable to imprisonment for ten years.
84 . . . Whosoever unlawfully supplies or procures any drug or noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of any woman, whether with child or not, shall be liable to imprisonment for five years.
However, the key to understanding the current law lies in the use of the word “unlawfully”. There is a plausible argument that when Parliament enacted the legislation:
[T]he word “unlawful” was included as a shorthand means of referencing the common law exception to the proscriptions on abortion where the procedure was conducted “in good faith for the purposes only of preserving the life of the mother.” R v Bourne  1 K.B. 687, 691
But in more recent years the authoritative interpretation of the provisions has been seen to be found in a direction given to the jury in the District Court decision of R v Wald (1971) 3 DCR (NSW) 25. There Judge Levine said:
“… for the operation to have been lawful in this case the accused must have had an honest belief on reasonable grounds that what they did was necessary to preserve the women involved from serious danger to their life, or physical or mental health, which the continuance of pregnancy would entail, not merely the normal dangers of pregnancy and childbirth; and that in the circumstances the danger of the operation was not out of proportion to the danger intended to be averted…. it would be for the jury to decide whether there existed in the case of each woman any economic, social or medical ground or reason which in their view could constitute reasonable grounds upon which an accused could honestly and reasonably believe there would result a serious danger to her physical or mental health .”
In other words, if the mother’s life or physical or mental health are at stake, an abortion may be permitted, and apparently all the way up to birth. Note the implication of the ruling, however, that medical advice will be necessary if an offence under s 83 is alleged, of assisting in the process. But neither the ruling nor the legislation include any specific reference to the gestational age of the child. As Quinlan puts it:
Under the Wald test, the relevant danger might arise at any time during the pregnancy, and, if it did, abortion would apparently be permissible at any stage of pregnancy.
There is an administrative document governing many medical facilities in NSW issued by the NSW Health Department, Pregnancy – Framework for Terminations in New South Wales Public Health Organisations (2014) which provides further guidance based on the gestational age of the baby, but there is no barrier in the criminal law of NSW to a termination occurring quite late in a pregnancy. (This may be contrasted with the UK, for example, where the law only allows abortions up to 24 weeks, and calls are being made for that limit to be lowered in light of medical technology allowing babies born at that age and younger to survive.)
(b) The impact of the 2016 Bill
(i) Abolition of legal prohibitions on abortion up to birth
The 2016 Bill, in Schedule 1, item 1.1, abolishes all statutory and common law prohibitions on abortion. In other words, it will no longer even be a possible criminal offence that someone has killed an unborn baby, right up to the moment of birth.
While the view is not always based on a religious commitment, the fact is that many believers take the view that an unborn child, from the moment of conception, is a human life worthy of the protection we afford to all humans. For Christians this can be based in the Biblical teaching that human beings are made “in the image of God” and so worthy of respect and protection (see Genesis 1:27, James 3:9), and references in the Bible to God’s care and concern for people while they are in their mother’s womb (see Jeremiah 1:5- “Before I formed you in the womb I knew you; before you came to birth I consecrated you”; Ps 139:13 “You created my inmost self, knit me together in my mother’s womb”.)
But the view that from conception there is a human life worthy of protection does not need to be taken on faith in the Biblical revelation. Increasingly the evidence of science, and the pictures produced by ultrasound, make this startlingly clear. Here’s a fairly typical quote (from this website):
Dr. Maureen Condic, Associate Professor of Neurobiology and Anatomy at the University of Utah School of Medicine, writes:
From the moment of sperm-egg fusion [the beginning of fertilization], a human zygote acts as a complete whole with all the parts of the zygote interacting in an orchestrated fashion to generate the structures and relationships required for the zygote to continue developing towards its mature state… The zygote acts immediately and decisively to initiate a program of development that will, if uninterrupted by accident, disease, or external intervention, proceed seamlessly through formation of the definitive body, birth, childhood adolescence, maturity, and aging, ending with death. This coordinated behavior is the very hallmark of an organism.
One argument in favour of abortion is that it is “just another medical procedure”. This is clearly incorrect. Of course it is a medical procedure, of course pregnancy has a huge impact on the body of the mother, but abortion is also the termination of a human life. Views will differ as to the circumstances in which it is justified to terminate one human life in the interests of another person- but this simple fact, that a life is at stake, makes this a radically different kind of decision from the question whether one should have one’s tonsils removed.
But this legislation, if passed, will signal that the life of an unborn baby may be taken at any stage completely at the whim of the mother. (Or, as sometimes happen, because the mother is under pressure from the father or family members.) The current law in NSW at least requires a medical practitioner to consider the seriousness of the impact of the ongoing pregnancy on the mother. While prosecutions are rare, they are not unknown . The Parliamentarians of NSW must surely remember the harms caused by unrestricted private abortion arrangements. To quote a colleague:
Whatever one’s views of when life begins Parliament has a duty to protect women from unscrupulous and dangerous abortion providers. The R v Wald test requires abortion to be performed by a doctor. Unsafe and unsanitary abortions ought to be a criminal offence – the history of this area demands it. The current legislation performs at least some prophylactic effect by keeping abortion within the purview of doctors and enabling their prosecution.
This change would remove the modest protection provided by the current law altogether. It will be bad for women, and bad (of course) for unborn children.
(ii) Impact on conscientious objections
The Bill, in Schedule 1, item 1.3, also imposes a requirement on medical practitioners who have a conscientious objection to performing abortions, to first notify the patient “before giving any advice on abortion or other options” (so the patient can ignore the advice, presumably), and second to:
refer the person in a timely manner to another health practitioner, in the same profession, whom the health practitioner knows or reasonably believes does not have a conscientious objection to abortion, or to a local Women’s Health NSW (WHNSW) Centre.
This provision in effect replicates the controversial Victorian provision requiring “referral” (see the Abortion Law Reform Act 2008 (Vic) s 8.) It is unclear whether the Bill here requires a formal “letter of referral”, but many Roman Catholic (and other) medical practitioners regard this requirement as making them morally complicit in the subsequent abortion. At the moment the NSW administrative guidance previously noted requires a practitioner to “direct” a patient to another practitioner who will perform the procedure. Even that requirement will be objectionable to many. The point here is that anyone who can use the Internet can easily find reputable abortion providers in Australia. There should be no need, once a medical practitioner has indicated they object to the procedure, for them to do any more.
(iii) Exclusion Zones around abortion clinics
Finally, the 2016 Bill replicates another bad trend in Australia, by purporting in Schedule 2 to set up, by way of amendment to the Summary Offences Act 1988, “exclusion zones” of 150 metres around abortion clinics. This will make it a criminal offence, not just to “harass, intimidate, interfere with, impede, obstruct or threaten” anyone entering or leaving a clinic, but even to “bother” such a person! (See proposed s 11AC.) Nor must anyone “communicate disapproval of abortion by any means” which can be observed by those using the clinic- see proposed s 11AD. Sub-section 11AD(2) tells us that:
This section prohibits disapproval by any means, including disapproval communicated by graphic, oral or written means or by any other means.
It seems fairly clear that this would include the simple act of quietly praying (as has been penalized in the ACT under similar laws.) (See also my previous post on a prosecution under Victorian obscenity law of someone displaying a picture of an aborted baby for some of these issues.) There is also a prohibition on taking or publishing images of persons at abortion clinics. Finally, in what seems like a desperate attempt to recognize freedom of political speech in a minimal way, we are told that:
11AG(1) This Division does not apply so as to prohibit conduct occurring in the forecourt of, or on the footpath or road outside, Parliament House in Macquarie Street, Sydney.
For previous comment on the “buffer zones” laws in other contexts, see my blog post, “Abortion “buffer zones”, free speech and religious freedom” (Nov 5, 2015), which links to an earlier comment on overseas law by Professor Quinlan. Since that post the Public Health and Wellbeing Amendment (Safe Access Zones) Act 2015 (Vic) (No 66 of 2015) has commenced operation, inserting new Part 9A into the Public Health and Wellbeing Act 2009 (Vic) as from 2 May 2016, with similar effect to the Tasmanian legislation noted in the blog post. (See also the Termination of Pregnancy Law Reform Act 2017 (Northern Territory), which received assent on 24 April 2017 but is yet to commence.)
There has been a successful prosecution under the Tasmanian law, which rejected a number of challenges to the law on free speech and religious freedom grounds. In Police v Preston  TASMC (27 July 2016, Mag C J Rheinberger) Mr Graham Preston and two other protestors were charged under s 9 of the Tasmanian law after having been found holding up signs protesting against abortions outside a clinic in Hobart. The Magistrate found that a challenge on the basis of the implied freedom of political communication failed, after making a detailed analysis of the law in accordance with the McCloy schema – see paras  and ff. She seemed to accept the defence submission that the prohibition was a “significant” burden on their freedom of speech on a political matter- see . However, when considering the purpose of the legislation, she considered the whole issue of regulation of terminations of pregnancy under Tasmanian law, rather than (as arguably should have been the case) the specific issue of the “buffer zone”- see . On this point her Honour concluded that the law was a proportionate response to a problem perceived by the legislature, and that it did not entirely remove the capacity of Mr Preston and the others to express their opposition to abortion- see eg .
There was also a challenge on the basis of the Tasmanian religious freedom provision in s 46 of the Constitution Act 1934 (Tas). The Magistrate sensibly accepted that the motives of the protestors were indeed their religious beliefs about the sanctity of unborn life- see eg -. But applying the “caveat” to s 46 concerning “public order”, her Honour held that the law was a reasonable law aimed at avoiding the risk of clashes between protestors and members of the public outside clinics, and also at protecting the privacy of those attending.
At para  her Honour said:
 …[T]he protest activity which is prohibited by s 9(2) of the Act clearly has the capacity to result in a disturbance to public order. Such conduct interferes with the privacy, indeed the medical privacy, of patients attending the premises at which terminations of pregnancies are conducted. The conduct has the potential to lead to some form of public disturbance…
The religious freedom defence was also rejected. It seems likely that laws of this sort will become more common, and striking the right balance of competing interests will be important (for example, is a zone of 150 metres really necessary?)
There has been an appeal of the Preston decision but no decision on the appeal has been handed down yet. Interestingly there is another case involving a different sort of “exclusion zone” currently on appeal to the High Court- a case involving former Greens leader Bob Brown and a conviction under a Tasmanian law forbidding “workplace protests”! This may, ironically, provide material for challenging the abortion buffer zone laws.
2. Summary Offences Amendment (Safe Access to Reproductive Health Clinics) Bill 2017
This Bill was introduced on 30 March 2017 by the Hon P G Sharpe, MLC (ALP). It is very similar to the proposals in Schedule 2 of the 2016 Bill, though it is slightly differently worded. It also goes a bit further in protection of free speech on political matters: it allows (see proposed s 11P):
the carrying out of any survey or opinion poll by or with the authority of a candidate, or the distribution of any handbill or leaflet by or with the authority of a candidate, during the course of a Commonwealth, State or local government election, referendum or plebiscite.
For anyone who takes the view that unborn human life, and women’s health, ought to be protected, these Bills are bad policy. The 2016 Bill dehumanizes unborn babies by making their interests of no account whatsoever. It opens up women seeking abortions to new risks. It also poses serious challenges to religious freedom of medical practitioners, some of whom may decide they can no longer work as such, if these are their legal obligations. Both the Bills also replicate the worst of the other Australian “buffer zone” laws criminalizing any attempt, however polite or respectful, to discuss the issue of abortion near abortion clinics. Like other such laws, there are serious questions as to whether these are not constitutionally invalid as impairing the freedom of political speech.
A number of Christian groups are supporting a petition expressing concern at these proposed laws. In a democratic society those who oppose the laws can make their views made known to members of Parliament.
 See M Quinlan, op cit, n 57.
 See the acceptance of this ruling in later decisions in K v Minister for Youth and Community Services (1982) 1 NSWLR 311, per Helsham J; CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47, NSWCA as cited by Simpson J in R v Sood (Ruling No 3)  NSWSC 762 at . See also the final decision R v Sood  NSWSC 1141 (31 October 2006) where, unusually, a doctor was found guilty of an offence against s 83 because the evidence established that she had not made even cursory inquiries as to the matters necessary to be considered under the Wald ruling.
 Op cit, at 1249.
 For discussion from a Roman Catholic perspective on how this makes a person complicit, see Quinlan, op cit, at 1266-1268.
 For a detailed paper on religious free speech issues, see https://works.bepress.com/neil_foster/106/ . The following comments come from pp 48-49 of that paper.
 See the appeal documents in Brown & Anor v. The State of Tasmania at http://www.hcourt.gov.au/cases/case_h3-2016 .
Abortion, Obscenity and Free Speech
Sometimes a powerful visual image is what is needed to shock us into action. But can an image be so powerful and horrifying that it becomes “obscene” and hence unlawful to use in public? That, it seems, is now the view being taken in Victoria of a particular type of image: pictures of unborn babies who have been killed. While the decision of a Victorian court, it may be followed elsewhere in Australia.
Abortion of course is an incredibly difficult topic to discuss. Those who see it as the termination of human lives are determined to get this message across as clearly as possible. Views will differ, as to whether using visual images of terminated unborn children is an appropriate or helpful way of furthering the discussion.But should those who firmly believe that this is one of the only ways to get their message across, be punished by the law for public obscenity? That is the import of the recent decision of a judge of the Victorian Supreme Court, Emerton J, in Fraser v County Court of Victoria & Anor  VSC 83 (21 March 2017).
Abortion “buffer zones”, free speech and religious freedom
Governments around Australia are showing a sudden enthusiasm for introducing restricted “zones” around clinics offering abortions, in order to prevent protestors from operating in those areas. Tasmania has introduced such legislation, in the Reproductive Health (Access to Terminations) Act 2013 (Tas), s 9. An “access zone” under that law is 150 metres around a clinic, and within that area “prohibited behaviour” is defined as follows:
(a) in relation to a person, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person; or
(b) 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; or
(c) footpath interference in relation to terminations; or
(d) intentionally recording, by any means, a person accessing or attempting to access premises at which terminations are provided without that person’s consent; or
(e) any other prescribed behaviour.
This is a very wide prohibition, covering not only violent or abusive behaviour (which of course would already be prohibited by the general law), but also making it unlawful to simply quietly hand out leaflets in a “protest” which can be said to be “in relation to” terminations, or indeed to wear a “protesting” T-shirt, however mild and inoffensive, while standing on the other side of the road from a clinic.
Similar legislation has also recently been enacted in the ACT, with the passage on 29 October 2015 through the Legislative Assembly of the Health (Patient Privacy) Amendment Act 2015 (ACT) (“HPPA”), although that legislation will apparently not commence for 6 months. In that case the “protected area” set out in s 86 of the amended Health Act 1993 is defined under s 86(2)(a) as 50 metres, which is at least somewhat more reasonable than the broad Tasmanian legislation. Under the HPPA amendments, however, the “prohibited behaviour” is even more extensively defined than in Tasmania:
prohibited behaviour, in a protected area around an approved medical facility, means any of the following:
(a) the harassment, hindering, intimidation, interference with, threatening or obstruction of a person, including by the capturing of visual data of the person, in the protected period that is intended to stop the person from—
(i) entering the approved medical facility; or
(ii) having or providing an abortion in the approved medical facility;
(b) an act that—
(i) can be seen or heard by anyone in the protected period; and
(ii) is intended to stop a person from—
(A) entering the approved medical facility; or
(B) having or providing an abortion in the approved medical facility; or
(c) a protest, by any means, in the protected period in relation to the provision of abortions in the approved medical facility.
Again, no violence or harassment in any verbal or physical sense need occur; anything that can be called a “protest”, or any “act” which is intended to discourage a person from having an abortion, is made unlawful.
Similar proposals have been mooted, though not yet enacted, in Victoria: see “Victoria to introduce buffer zones around abortion clinics“, SBS, 2 Sept 2015.
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.
I recently posted a guest blog by Professor Michael Quinlan on some of these issues, which summarised the approach in a recent US Supreme Court decision, McCullen et al v Coakley, Attorney General of Massachusetts et al 573 US (2014), which overturned as invalid a law forbidding protests within 35 feet of an abortion clinic. The US Supreme Court, of course, has a long history of reading the First Amendment “free speech” clause of the US Bill of Rights very broadly. I want to comment briefly here on how the laws mentioned above may be treated if challenged under Australian law.
Freedom of speech arguments
In light of the US decision, and others like it, the most obvious challenge to an Australian “protest-free zone” law would be under free speech principles. In this country, though, we do not have an explicit Constitutional free speech right. (It should be noted that in Victoria, where such a “protest-free zone” is now being proposed, there is a State-based “Charter of Rights” in the Charter of Human Rights and Responsibilities Act 2006 (Vic), section 15 of which protects “freedom of expression”. But the precise operation of this provision is still in some doubt- see, for example, the decision of the Full Court of the Federal Court in Kerrison v Melbourne City Council  FCAFC 130 (3 October 2014)- and since the broader Federal right is applicable across the whole of Australia, that is what will be considered here. It is ironical, however, that two of the three jurisdictions which have implemented or indicated an intention to implement these “exclusion zones”, Victoria and the ACT, are the two jurisdictions in Australia which contain explicit human rights protection, including protection of freedom of expression.)
(In an earlier version of this blog post I omitted to mention that s 48 of the Victorian Charter explicitly says that nothing in the Charter affects “any law applicable to abortion”. While it seems likely that the original purpose of this provision was to avoid the Charter being used to make arguments about the “right to life” of an unborn child, it is possible that a “protest free zone” law relating to abortion clinics may be regarded as “applicable to abortion” and hence immune from challenge under the Charter. But this would not prevent the arguments made here about freedom of speech under Commonwealth law from being applicable. Thanks to Professor Quinlan for bringing this to my attention.)
While we do not have explicit Federal free speech protection in Australia, then, we do have an “implied freedom of political communication” which was discerned to be an implication of the Constitution by the High Court in a series of decisions culminating in Lange v Australian Broadcasting Corporation  HCA 25; (1997) 189 CLR 520. The most recent decision on this implied freedom is McCloy v New South Wales  HCA 34 (7 October 2015), where a majority of the Court (French CJ, Kiefel, Bell and Keane JJ) spelled out the currently authoritative approach to dealing with these issues, in the following important (though lengthy) quote:
 …[T]he question whether an impugned law infringes the freedom requires application of the following propositions derived from previous decisions of this Court and particularly Lange v Australian Broadcasting Corporation and Coleman v Power:
A. The freedom under the Australian Constitution is a qualified limitation on legislative power implied in order to ensure that the people of the Commonwealth may “exercise a free and informed choice as electors.” It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.
B. The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power:
(1) Does the law effectively burden the freedom in its terms, operation or effect?
If “no”, then the law does not exceed the implied limitation and the enquiry as to validity ends.
(2) If “yes” to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as “compatibility testing”.
The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.
If the answer to question 2 is “no”, then the law exceeds the implied limitation and the enquiry as to validity ends.
(3) If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as “proportionality testing” to determine whether the restriction which the provision imposes on the freedom is justified.
The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test – these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:
suitable — as having a rational connection to the purpose of the provision;
necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;
adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.
If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be “no” and the measure will exceed the implied limitation on legislative power.
Clearly there are many decisions ahead which will need to clarify the precise operation of these tests. But we can start by asking the question whether a 150 metre “exclusion zone” around abortion clinics is compatible with this implied limitation on the legislative power of Australian Parliaments (such as the Parliament of Tasmania).
- Does the law burden “political speech”? It seems fairly clear that it does. The topic of abortion is certainly a public policy issue of great contention in Australia, and from time to time different political parties have had different views on the issues.
- It seems likely that one could say that the purpose of the law is a legitimate one, in the sense that it aims to protect vulnerable citizens (women seeking terminations) from a harm they may suffer (being offended or feeling harassed in exercising a choice to have a termination). Perhaps one might raise a serious question about whether the “means adopted” to achieve this end are compatible with the “ordinary political processes” in Australia- we do not usually forbid public demonstrations because of the content of the material being communicated by the demonstrators. But let us assume for the moment that a 150 metre exclusion zone might just pass the test of a legitimate “means” of achieving an end.
- In the “proportionality” test, however, it seems strongly arguable that a wide zone of this sort will fail the test. Yes, the means adopted may be “suitable” in that they will presumably lessen the distress of those seeking terminations. But are the means adopted “necessary” in the sense that there is “no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom”? In order to achieve the laudable aim of protecting women from violent and harassing protestors, is it necessary to also prohibit those who may simply stand quietly handing out leaflets or praying? And in particular, is there a proper balance “between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom”? A complete ban on certain speech content is usually regarded as the clearest example of an unjustified interference with free speech. In a previous decision dealing with public preaching, Attorney-General (SA) v Corporation of the City of Adelaide  HCA 3 (27 February 2013), the High Court made it clear that a ban on such activities which was based on the content of what was said (rather than on traffic considerations, for example) would be invalid.
It should be noted in this context, then, that this is not simply a “free speech” case. Many who wish to protest or counsel outside abortion clinics do so on the basis of deeply held religious beliefs.
Freedom of Religion
Arguably this is another feature of the protests being held outside abortion clinics which should inform the decision of a court as to the nature of the “rights” being interfered with. Of course it has to be said that in the States, the restriction on Commonwealth legislation impairing the “free exercise” of religion imposed by s 116 of the Constitution is not binding. But in the ACT, as a Territory not a State, where one “protest zone” law has just been passed, it seems fairly clear that s 116 will be applicable, and may have a serious impact on the validity of such a law. (For discussion of the former doubts that were expressed as to whether s 116 was binding on the Territories, as opposed to the States, see my paper on “Religious Freedom in Australia” at p 8.)
In addition, as noted previously, both Victoria and the ACT have “Charters of Rights”, which include protection for religious freedom. And in Tasmania, the little-known s 46 of that State’s Constitution Act 1934 also provides explicit protection for religious freedom.
All of these religious freedom rights are, of course, subject to balancing with other rights. But at the very least the weight of both free speech rights, and religious freedom rights, especially when combined in a case like this, ought to give Parliaments cause to think very carefully before enacting geographically wide, and substantively broad, limitations on the rights of those citizens who believe they are not only helping pregnant women, but also saving the lives of their children, by polite offers of counselling and assistance outside clinics.
Finally, it is worth noting that this view, that wide “protest free zones” like that in Tasmania are probably constitutionally invalid, is also shared by one of the most recent other academic commentaries on the issue. Eleanor Jones, in “Implementing Protest-Free Zones around Abortion Clinics in Australia” (2014) 36 Sydney Law Review 169-184, expresses clear doubts about the validity of such laws, while apparently supporting their policy. She says:
Protests outside abortion clinics are poised to become the next example of political communication that is objectionable to a majority of Australians, but nonetheless protected from regulation by the freedom of political communication (at 170)…
the prospective constitutionality of the RHATA is uncertain (at 174)…
It is therefore unlikely that the provisions of the RHATA would survive in their entirety (at 182)…
there is little evidence to suggest that these protests are so frequent and unruly that access to abortion clinics is currently being disrupted to the extent that so wide an exclusion zone is necessary. (at 183)
It is true that Jones also suggests that a much narrower exclusion zone might be constitutionally valid (at one point she notes that the US Supreme Court has upheld as legitimate an exclusion zone of 4.5 metres – see p 171 n 16). But even this suggestion is made tentatively. There is real doubt here.
This makes the comments in this editorial from the Medical Journal of Australia, then, very misleading. In that opinion piece, noted previously, the authors, who are aiming to describe the law of Australia on the matter, state very clearly:
Constitutional law scholars generally agree that the Tasmanian provision can withstand any High Court challenge.
Their authority for this proposition? The article by Jones. I trust that the quotes provided above are enough to show that the claim that is made here is, to be frank, quite wrong. Jones casts serious doubts on the validity of the Tasmanian provision. The authors of the MJA piece also mis-state the operation of the test dealing with the implied freedom of political speech, referring to a “two-step” test, whereas the Jones article (written of course prior to McCloy but still valid on this point) notes that it is a “three stage test” (at 174).
Given these errors, it is perhaps not surprising to find others in that article, We are told that access of women to clinics is “often hindered by verbal and sometimes physical harassment”. Yet Jones, as noted above, suggests that this is not really a major problem in Australia. The editorial then asserts that attempts to curtail protests have failed because of the implied rights to freedom of political communication. No evidence is presented that this doctrine has so far been invoked in these cases, but if it had the so-called “solution” to the problem provided by the Tasmanian legislation would be useless, given that the Tasmanian Parliament, like all in Australia, are obliged to recognise this right.
In short, the enthusiasm expressed by the authors of the MJA editorial for the Tasmanian laws (an enthusiasm which, it seems fairly clear, would not be shared by all medical practitioners in Australia) is misplaced. It is to be hoped that Australian Parliaments pay much more careful attention in future to the rights of citizens who are wanting to exercise the freedoms of speech and religion our community regards as vital.
Canadian Supreme Court creates right to assisted suicide
Legal issues around the beginning and end of life have a long history of intersecting with religious beliefs on those same fundamental topics. Longstanding debates about abortion and euthanasia involve questions about the limits of the law, and the signals sent by the legal system on these topics. This area came to the fore again yesterday with the decision of the Supreme Court of Canada in Carter v Canada, 2015 SCC 5 (6 Feb 2015), in which a unanimous 9-member bench ruled, on the basis of s 7 of the Canadian Charter of Rights and Freedoms, that Federal Canadian law prohibiting suicide was invalid to the extent that it prevented
physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
A previous SCC decision had ruled in 1993 that there was no such Charter right. But now the court has changed its mind. In other words, despite a clearly enunciated rule on this topic passed under the democratic process by the Federal Canadian Parliament, the 9 members of the Supreme Court have now decided that Parliament got it wrong.
There are two major problems with this decision. One is the way it was made, the other is the substance of the decision. (Apart from that, all was fine…) The way that it was made illustrates the legitimate concerns that many have had in Australia about a “Bill of Rights” which allows courts to immediately substitute their judgments on significant policy issues, for the judgments of elected Parliamentary representatives. I happen to think that there is a legitimate place for a Bill of Rights of some sort in the Australian context. However, if such a thing were to be introduced, it should follow the model of being an “advisory” jurisdiction under which the courts would flag an issue, but there would be no legal consequence until Parliament had chosen to respond.
The problems of the Canadian model, where the courts immediately over-ride Parliament, are apparent here. The Supreme Court, having said that the current Federal law is invalid under the Charter, then “suspends” its ruling for a year to allow Parliament to respond. Why? Because it is not enough to make broad policy on this sort of area, you need to go further and spell out the details. Who will make the decision as to when an illness is sufficiently grave, or as to whether pain is “unendurable”? What about the conscientious objection rights of physicians and others who, on religious or other grounds, do not want to be involved in such things? (In a very brief comment at  the Court says that the rights of patients and physicians in this area “will need to be reconciled”.) But one might remark that if it would be inappropriate for the Supreme Court to sully its hands with the gruesome details of implementing a policy, there may be something to be said for the view that they are an inappropriate forum to be making binding pronouncements on such policy.
One feature of the Charter which is not often mentioned may provide a “fallback” position. Section 33, sometimes known as the “notwithstanding clause”, does allow a Canadian legislature to over-ride a court ruling on certain provisions of the Charter (including s 7, the “right to life”, which with extreme irony was the provision invoked here to support a “right to death”), so long as it does so explicitly. Press reports suggest that some are already arguing that this is a case where s 33 ought to be invoked.
Why is the substance of the decision questionable? The arguments about opening up the door to legalisation of suicide generally are fairly well known, as are the arguments against allowing open slather in assisted suicide. But briefly, the law sends signals as well as prohibiting behaviour, and one of the signals it sends is about the supreme value of human life. Any provision which allows others to make decisions to end human life weakens that value in the community. While the criteria set down by the Supreme Court here sound plausible and reasonable, the problems lie both in the implementation and also in the future development of the law. The implementation issues arise because fallible human beings have to make these decisions, and in many cases they will be under pressure from others. Family members of a dying person may have their own reasons for showing that the person’s illness is sufficiently grave, and their pain sufficiently unendurable, for a physician to assist in death. In many cases someone who is so gravely ill will have impaired judgement, and these decisions will have to be made by others. And once a law like this is introduced, there is an observable tendency in jurisdictions around the world for the grounds on which these decisions are made to be broadened.
All these issues have been long debated, and will continue to be debated. Sadly, the Supreme Court of Canada has decided that it has much more wisdom on these matters than the legislators of Canada, and foreclosed a debate that should be had in full, and with all relevant interests being considered carefully.