KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
Matter No M46/2018
KATHLEEN CLUBB APPELLANT
AND
ALYCE EDWARDS & ANOR RESPONDENTS
Matter No H2/2018
JOHN GRAHAM PRESTON APPELLANT
AND
ELIZABETH AVERY & ANOR RESPONDENTS
Clubb v Edwards Preston v Avery
[2019] HCA 11
10 April 2019
M46/2018 & H2/2018
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.
On appeal from the Magistrates' Court of Victoria (M46/2018) and the Magistrates Court of Tasmania (H2/2018)
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
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Clubb…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Clubb v Edwards [2019] HCA 11
Case
[2019] HCA 11
Decision Date
CaseChat Overview and Summary
In *Clubb v Edwards*, the High Court of Australia considered the constitutional validity of provisions in Victorian and Tasmanian legislation that created "access zones" around abortion clinics. The appellants had engaged in communications and activities within these zones, which were prohibited by the respective Acts. The core of the dispute concerned whether these prohibitions impermissibly burdened the implied freedom of communication about governmental or political matters guaranteed by the Australian Constitution.
The High Court was required to determine whether the communications and activities undertaken by the appellants within the access zones constituted political communication. It also had to assess whether the impugned provisions of the *Public Health and Wellbeing Act 2008* (Vic) and the *Reproductive Health (Access to Terminations) Act 2013* (Tas) effectively burdened the implied freedom of political communication. If a burden was found, the Court had to consider whether the provisions were for a legitimate purpose and were reasonably appropriate and adapted to achieving that purpose, applying a structured proportionality test.
The Court reasoned that while the implied freedom of political communication is a fundamental aspect of the Australian constitutional system, it is not absolute. The legislation in question was found to be valid because it was considered to be for a legitimate purpose – protecting the safety and dignity of individuals accessing abortion services – and was reasonably appropriate and adapted to achieving that purpose. The Court distinguished the Tasmanian Act from a similar, but invalid, law in the United States, noting differences in scope and the nature of the restrictions. The Court concluded that the provisions, as applied, did not impose an undue burden on political communication and were compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
Consequently, the High Court dismissed the appeals, upholding the validity of the access zone provisions in both the Victorian and Tasmanian legislation. The appellants were ordered to pay the respondents' costs.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
KIEFEL CJ, BELL AND KEANE JJ
The contrast between the invalid Massachusetts law and the vastly broader, but valid, Reproductive Health Act in Tasmania demonstrates the stark difference between the manner in which freedom of speech is approached in the United States and the approach to the implied freedom of political communication in Australia. The access zone under the Reproductive Health Act covers 70,000 m2 of area. By contrast, the Massachusetts law covered 380 m2. The 70,000 m2 access zone created by the Reproductive Health Act is not required to be marked, with the effect that its boundaries would not be clearly known to a protester. By contrast, the Massachusetts law required marking. The content of the prohibited communication in the protest prohibition is specifically targeted towards protests in relation to termination. It is not content neutral in the sense in which that concept was applied by the majority of the Supreme Court in McCullen v Coakley; it is concerned with "listeners' reactions to speech" so it would be subject to strict scrutiny in the United States[640]. By contrast, a majority of the Supreme Court held that the Massachusetts law was content neutral. And yet, whilst the Massachusetts law was unanimously held by the Supreme Court of the United States to be inconsistent with the First Amendment and invalid, the Reproductive Health Act is unanimously held by this Court to be consistent with our constitutional tradition and valid.[640](2014) 134 S Ct 2518 at 2531-2532.Conclusion: the orders on each appeal Each of the appeals, so far as they have been removed into this Court, must be dismissed.