BY JULIAN O’DONNELL

In August 2016, anti-abortion activist and mother of thirteen Kathleen Clubb approached a couple entering an abortion clinic in East Melbourne. She spoke to the couple and handed them a pamphlet, which they declined. A Magistrate would later describe the encounter as ‘brief’ and ‘polite’.

Ms Clubb was subsequently fined $5000 for engaging in ‘prohibited behaviour’ within 150 metres of an abortion clinic, contrary to s 185D of the Public Health and Wellbeing Act 2008 (Vic) (‘the Act’). ‘Prohibited behaviour’ under the Act includes ‘communicating by any means’ in relation to abortion in a manner that is ‘reasonably likely to cause distress or anxiety’. This week, the High Court will hear Ms Clubb’s challenge to the constitutionality of s 185D. She alleges that the offence breaches the implied freedom of political communication.

This post will briefly outline the key issues that are likely to inform the Court’s decision. On balance, I think Ms Clubb’s challenge is likely to fail. But this is not certain. Ms Clubb has a plausible argument that she cannot be penalised consistently with the Constitution for ‘peacefully’ communicating her views in a public place.

The Implied Freedom of Political Communication

The Constitution prevents the government from impermissibly burdening political communication. This freedom is derived by implication from the express requirement that members of both houses of Parliament be ‘directly chosen by the people’. According to the High Court in Lange, this system of government requires more than the mere ability to mark a ballot paper. Voters must also be able to communicate about public issues in order to exercise a ‘true’ choice of representatives, and assess the ‘available alternatives’ ([43]).

Because the freedom arises by implication, it only goes so far as is necessary to protect the version of representative government created by the Constitution. Subsequent cases demonstrate, however, a lack of consensus about what is strictly necessary to facilitate ‘true’ voter choice. As Professor Adrienne Stone has explained,  the text and structure of the Constitution are simply too sparse to define the limits of the freedom.

The implied freedom has thus divided the Court on core philosophical questions about the limits of free speech. In Coleman v Power, McHugh J and Kirby J held that an attempt by government to regulate ‘public civility’ was inimical to the Australian tradition of heated and even invective debate ([105], [239]). Chief Justice Gleeson and Heydon J, however, considered civility in a public place to be a reasonable policy objective in a democracy ([32], [323]).

In Monis v The Queen, members of the Court again took very different views of an offence which criminalised the use of a postal service in a ‘menacing, harassing, or offensive’ way ([5]). Justices Crennan, Kieffel and Bell thought that it was legitimate to prevent the intrusion of offensive letters into the ‘personal domain’ ([308]), while French CJ, Hayne J and Heydon J saw the offence as illegitimately protecting ‘postal recipients’ from offence ([74], [91], [236]).

We can expect more philosophical disagreements of this kind – they may even be playing out right now as the Court hears Ms Clubb’s appeal. This is an inevitable consequence of a methodology that requires judges to weigh competing interests. The Court has, at least, offered more detail about how the balancing task should be approached in McCloy and Brown. The Court is likely to ask:

  1. Does the law effectively burden political communication?
  2. Is the purpose of the law legitimate (ie consistent with the system of government established by the Constitution)?
  3. Is the law reasonably appropriate and adapted to advancing that legitimate object – that is, is it:
    1. Suitable (rational connection to purpose);
    2. Necessary, (no obvious and compelling alternative); and
    3. Adequate in the balance achieved between the importance of the purpose and the extent of the restriction?

If the answer to the above is ‘no’ at stage two or three, the law is invalid. For the purpose of my assessment of Victoria’s safe zone laws, this test will do. But there are still unanswered questions about the implied freedom which deserve greater attention. In a previous post on this blog, Shipra Chordia has offered a sophisticated critique of the Court’s trend towards this method of ‘structured proportionality’.

Does s 185D of the Act burden political communication?

The provision is capable – in its operation and effect – of burdening political communication. It expressly imposes a prohibition on communication ‘by any means’, singling out the subject matter of abortion. Abortion is a divisive issue. It raises deep ethical questions which inform the way in which society regulates and perceives this medical procedure.

Ms Clubb may not have mentioned government policy, but she is still participating in an ongoing and contentious debate that has taken place in the press and the houses of Parliament. She is also a key member of Helpers of God’s Precious Infants – an organisation dedicated to influencing the perception and regulation of abortion.

Is the purpose of the Act legitimate?

The express purpose of Part 9A of the Act is to ‘protect the safety and wellbeing and respect the privacy and dignity of’ people accessing abortion services.

The purposes of ‘safety’, ‘wellbeing’ or ‘privacy’ are unlikely to present legitimacy issues. These objectives clearly avoid the Coleman trap of justifying a burden on communication by reference to public civility. The stakes are elevated beyond mere public order to matters of safety and privacy.

The object of respecting ‘dignity’ may prove more contentious. Dignity implicates ideas of ‘respect’ and ‘worthiness’. This runs the risk of veering towards ‘civility’ which – as Kirby J warned in Coleman – is an objective for people who need to ‘find another homeland’ ([239]). Recall also that three members of the court in Monis thought that protecting a broad group of ‘postal recipients’ from ‘offence’ was an illegitimate purpose.

I suggest, however, that the word ‘dignity’ – in this context – rises higher than mere civility between ideological combatants. This purpose is surely a matter of preventing the humiliation of vulnerable people who are about to undergo a potentially traumatic procedure. The offence does not protect any broader class of people – say, ‘women who have undertaken abortions’ – from offence. It protects a particular captive audience at a specific location. This draws the Act’s purposes of ‘privacy’ and ‘dignity’ closer to the protection of a ‘personal domain’ which, as above, was considered legitimate by three members of the Court in Monis.

Is the offence reasonably appropriate and adapted to achieve its end?

Is the law suitable?

The Court will next need to determine whether s 185D has a rational connection to the objective of protecting the safety, privacy and dignity of people accessing the clinic. Having a ‘rational’ connection to an objective is not the same as having a ‘perfect’ or ‘necessary’ connection to that objective.

Recall that the Act prohibits any means of communication in relation to abortion that is ‘reasonably likely to cause distress or anxiety’ to the person entering or leaving the premises. The issue here is whether there is a rational connection between causing a person ‘distress or anxiety’ by communicating about abortion and impinging upon that person’s safety, privacy, or dignity. Are these interests really undermined simply by saying things that cause distress or anxiety?

This is where it will be helpful to provide further information about the psychological effects of these protests. Looking at the written submissions, this is precisely what Victoria – and a host of interveners – will attempt to demonstrate.

Defenders of the legislation will argue that the psychological impacts of these protests put one’s dignity – and, in some cases, ‘health and wellbeing’ – at stake. This argument will have the most force if these impacts are capable of resulting from protests whether or not they are particularly abrasive. There seems to be a compelling array of testimonies and studies showing that these campaigns have been traumatic.

There is nevertheless a slight risk that the law will fail the ‘suitability’ test. This is because it is capable of prohibiting a fairly ‘mild’ protest taking place some distance from a clinic which – at least arguably – does not rise to the threshold of undermining a person’s safety, privacy or dignity.

Is the law necessary?

At this stage, the question is whether there is an ‘obvious and compelling’ alternative which would achieve the stated purposes (McCloy, [2]). Put another way, does the law go too far? Does it need to criminalise ‘any form of communication’ relating to abortions which causes distress or anxiety?

There is room here to consider the history of these protests and the adequacy of current laws in preserving the safety, privacy and dignity of people using the clinics. Human rights groups will put forward evidence that these campaigns have been relentless and damaging for employees and patients of these clinics. Victoria points out that a range of laws currently in force have proved inadequate in tackling the problem. The State also cites a Victorian Law Reform Commission report from 2008, which recommended the establishment of ‘bubble zones’ in conjunction with the broader decriminalisation of abortion.

If one were to be particularly hawkish, however, it might be said that evidence about the effects of these protests in general does not establish the necessity of an offence of this breadth. Perhaps a ‘polite’ and ‘brief’ conversation does not produce the same degree of psychological damage. The Human Rights Law Centre does, however, cite a study demonstrating that the ‘mere presence’ of activists outside clinics is a ‘gateway factor’ for distress ([37]). Perhaps that will be sufficient. Indeed, common sense may step in. From the point of view of a patient encountering an anti-abortion protester, it probably does not matter how ‘polite’ the protester is. It is likely to be a confronting and distressing experience.

Even if this is not convincing, it would surely be otherwise impractical to narrow the offence to capture only the more vitriolic acts, gestures, or encounters. A scheme by which police only intervene to prevent, say, ‘threats’ or ‘intimidation’, would be less effective – some harmful behaviour would ‘slip through the cracks’. In other words, protest must arguably be removed altogether from the immediate vicinity of the clinic. This also serves to protect patients with ‘eggshell skulls’ – that is, those with heightened psychological vulnerability.

In any case, the role of the judge here is not to take out her public policy hat, but rather to ask whether there is some ‘equally effective’ alternative that is ‘obvious and compelling’. Sure, the offence could have been limited to ‘threats’ and ‘intimidation’. But given the considerations outlined above, a broader approach can hardly be accused of ‘cracking a nut with a sledgehammer’.

Is the law adequate in its balance?

Here, the Court will weigh the importance of the offence’s purpose against the extent of its restriction on political communication. I have already touched on why the offence’s purpose is important. Evidence of harm will fortify this position.

But what about Ms Clubb’s interest in the matter? Her ability to communicate her views about abortion is surely central to the very activity that the implied freedom protects: discourse on matters of public policy.

It must be admitted that her physical presence outside the clinic makes the protest more powerful, confronting and personal. It connects the protester to the persons and institutions who, in the protester’s view, are perpetuating a moral travesty. Ms Clubb may ask, by reference to Brown v Tasmania: ‘if a greenie can obstruct logging operations, why can’t I go to the fertility clinic?’

But this is not so convincing. The offence preserves Ms Clubb’s ability to fervently express her views in a variety of locations. If one were to unfurl a map of Melbourne, one could draw tiny bubbles which demarcate the areas in which she cannot do so. Indeed, her ability to protest ‘on site’ is not entirely lost – 150 metres is not that far.

The Court has indeed recognised the importance of ‘on site’ protest, but in a radically different context. In Brown v Tasmania, a provision which restricted environmental protest was found to have the object of protecting commercial logging activity ([101]). That legislative object was poorly balanced against a broad restriction on political communication which extended to vast and vaguely defined areas of the Tasmanian forest. The prohibition was so geographically broad that it would have deterred protests of all kind and caused police to make errors about whether a protest was occurring in a regulated area ([82], [77]).

In the present case, there is – quite literally – a far narrower restriction on ‘on site’ protesting. And frankly, there’s a better reason for imposing it: the protection of a vulnerable and captive audience.

Concluding remarks

The High Court is likely, in my view, to uphold the constitutional validity of s 185D of the Act. Defenders of the legislation have provided compelling evidence of the harm that needs to be addressed, and have demonstrated how the prohibition fits within a broader regulatory effort to decriminalise abortion.

But who knows? Section 185D bans communications that are arguably ‘mild’ in character, albeit distressing for the intended audience. Perhaps some judges will think that seeking a medical procedure is not a good enough reason to be protected from political speech that causes distress and anxiety.

The reality is that the content and application of the implied freedom remains contested. The Court’s ultimate task is a value judgment. In the early days of the implied freedom, the need for ‘necessary’ textual implication seemed to provide a stabilising anchor for resolving these questions. But it weighed heavily, taking us nowhere. The Constitution is now in the thick of the free speech storm.

 

Julian O’Donnell is a final year Juris Doctor student at the University of Melbourne with a Bachelor’s degree in Literature. He is interested in administrative, constitutional and industrial relations law.

Suggested citation:  Julian O’Donnell, ‘Are Victoria’s Safe-Access Zones Safe from the Constitution?’ on AUSPUBLAW (10 October 2018) <https://auspublaw.org/2018/10/are-victorias-safe-access-zones-safe-from-the-constitution/>.