BY JOSH GIBSON
This is the third of three posts AUSPUBLAW is featuring on the High Court’s decision in Clubb v Edwards. Alex Deagon’s accompanying post is here, and Arisha Arif and Emily Azar’s accompanying post is here.
On 10 April 2019, the High Court of Australia delivered judgment upholding Victorian and Tasmanian “safe access zone” legislation. In Clubb v Edwards; Preston v Avery  HCA 11 (‘the Case’), the Court ruled that prohibitions of certain types of communication around abortion clinics were constitutionally valid.
A safe access zone is a designated area surrounding premises where abortions are provided and certain types of behaviour prohibited. As Tania Penovic suggests, these spaces were created to enable states to respect and protect human rights, as well as to protect women from certain conduct. As the Victorian Minister for Health stated in her Second Reading Speech, safe access zones were implemented in Victoria to ensure women and staff could access these clinics “without experiencing the stress, fear and anxiety that can occur when they encounter anti-abortion groups outside these premises”. Safe access zones now operate in all Australian jurisdictions, with the exception of South Australia and Western Australia.
While this Case presents a range of interesting legal issues, such as the Court’s approach to structured proportionality and the way in which political communication is further conceptualised, this post focuses instead on an issue that receives less academic attention: the role of the amicus curiae (‘amicus’ or ‘amici’ for plural) in the High Court of Australia. In this Case, the Castan Centre for Human Rights Law (‘Castan Centre’), the Human Rights Law Centre (‘HRLC’), the Fertility Control Clinic (‘FCC’) and LibertyWorks Inc (‘LW’) were granted leave to appear as amici. Given the High Court’s historically conservative approach towards amici, the granting of leave to not just one but four amici offers a fascinating opportunity to examine the role that amici play in contemporary Australian constitutional litigation.
Kathleen Clubb and John Graham Preston, two anti-abortion advocates and protesters, were convicted of offences under the respective Victorian and Tasmanian safe access zone legislation. Kathleen Clubb was convicted for engaging in prohibited behaviour, which included handing a leaflet to a couple entering a clinic. John Preston was convicted for holding placards regarding the right to life, as well as depicting, among other things, a representation of a foetus at eight weeks. Clubb challenged the validity of s 185D of the Public Health and Wellbeing Act 2008 (Vic) (‘the Public Health Act’), which prohibits, in certain circumstances, “communicating by any means in relation to abortions” (‘the Clubb appeal’). Preston challenged the validity of s 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) (‘the Reproductive Health Act’), which prohibits, in certain circumstances, “a protest in relation to terminations” (‘the Preston appeal’).
Both appellants argued that the laws were invalid as they impermissibly burdened the freedom of communication on governmental and political matters implied in the Constitution (‘the implied freedom’). The High Court unanimously rejected both appeals, agreeing that the purpose of the laws—allowing women and staff to appropriately access healthcare—was a compelling objective, and that both Acts were therefore compatible with the Constitution. While the outcome was unanimous, the Judges relied on different legal reasoning methods.
In order to outline issues raised in the Case, as well as to further understanding of the role of amici, I will examine key considerations of the Court through the issues raised in the amici submissions. This will serve a dual purpose: it will allow an unpacking of key concepts raised in the Case and will help illuminate contemporary amicus curiae practice in constitutional litigation.
Amici briefs: current practice
An amicus curiae, Latin for ‘friend of the court’, is a non-party who provides different factual, conceptual or legal perspectives to the court (Collins 2018). Amici might also perform a range of other conceptual and practical tasks, including but not limited to:
- Advising, informing, assisting or otherwise benefiting a court in its deliberations where the information would otherwise be absent (Keyzer 2010);
- Seeking for certain causes or voices to be ‘heard’ in court, without becoming a party (Willheim 2010);
- Providing strategic support for issues to be introduced to the courts where parties might not want to introduce them (Simard 2008); and
- Outlining potential broader social and legal ramifications and unintended consequences of case outcomes (Garcia 2008).
While amicus briefs are frequently present in jurisdictions like the United States and Canada, their presence is less familiar in Australian courts. Research shows that in the US in 1946, amicus briefs were filed in 21% of Supreme Court cases (Hopper 2017). In 2015/16, amicus briefs were filed in 98% of all US Supreme Court cases (Larsen & Devins 2016). Prior to the 1980s in Australia, amicus filings in the High Court barely existed. After a modest rise of amicus filing in the 1990s, amicus briefs in the High Court still “remain very rare” (Willheim 2010; Hopper 2017, p. 82), and in fact “are conspicuous by their absence” (Hopper 2017, p. 84). As Williams (2000, p. 365) highlights, the High Court of Australia “frequently denies the amicus curiae and intervener any meaningful action” (Williams 2000, p. 365). Since 2018, amici have been granted leave to appear in just three High Court cases; including the current Case.
An amicus is usually just that in High Court cases: singular in presence. Accordingly, the role and function of amicus is less understood in Australian jurisprudence. In this case, an unexpected four amici were granted leave, all limited to written submissions. One amicus who applied was, however, not granted leave. On 12 September 2018, Gordon J handed down a judgment denying leave to the amicus applicant Access Zone Action Group (‘AAG’). A key reason for refusing leave was that AAG submitted its application “over two months out of time”. Citing Levy v Victoria, and shedding light on the practice of when an amicus curiae will be granted leave, Gordon J stated that (emphasis added):
an amicus curiae may be heard where the applicant is “willing to offer the Court a submission on law or relevant fact which will assist the Court in a way in which the Court would not otherwise have been assisted” [Levy]. However, the AAG’s proposed submissions would not be of material assistance to the Court. The AAG’s proposed submissions do not raise pertinent matters outside of those matters which have already been raised by the parties to the proceedings in their submissions in this Court.
Finding that the written submission by the AAG would “not be of material assistance to the Court”, Gordon J made a declarative statement: that material interest is of prime importance in considering whether to grant leave for an amicus to be heard. By acknowledging that the AAG’s submissions “do not raise pertinent matters outside of those matters which have already been raised”, Gordon J’s judgment implies that those amici who were granted leave to be heard in this case did raise pertinent matters outside those raised by the parties. In order to deduce what such pertinent matters of material assistance might be in this Case, it is necessary to begin interrogating the amici submissions that were granted leave.
In doing so, three prime functions of the amici submissions in this Case become clear, namely that amici predominantly: offer expertise drawn from prior experience, present new or unique information to the High Court, and assist the Court in reaching correct legal outcomes. These ideas will be discussed in order to tease out concepts raised by the amici. While this post describes and collates the information presented in the amici submissions and discusses judgment extracts, it does not attempt to draw causation between the content of amici submissions and the content of the judgments. As the research on amici is limited in Australia, my hope is that this post serves, instead, to open up conversations about how best to research and understand contemporary roles that amici play in Australian constitutional litigation.
Functions played by amici in the Case
A key strength of amici submissions is that the amici present new or unique information to a court where that information would have otherwise been absent. Each of the amici submissions in this Case asserted that its specific arguments had not been addressed by any of the previous parties or respondents (HRLC , the Castan Centre , LW  and FCC ). In this way, each amicus introduced new information to the High Court, most notably through empirical experience and/or by clarifying ‘constitutional facts’.
The Castan Centre provided new information to the Court through its own empirical research, which “specifically analyses the experience of patients and clinic staff prior to the commencement of s 185D of the Public Health Act [in Victoria]” (Castan Centre ). Three of the submissions (all but the HRLC) clarified different constitutional facts. As outlined by the FCC (), “[s]ubmissions offered by an intervener or amicus curiae might more readily be of assistance to the Court in a case requiring the ascertainment of constitutional facts”. As such, the FCC () suggested that constitutional facts about patient and staff experiences could be ascertained through a key employee’s—Dr Allanson’s—affidavit evidence. Similarly, the Castan Centre () “seeks to assist the Court with relevant constitutional facts”, as does LW in relation to understanding the nature of what is meant by the term ‘protest’ (, ). As the FCC () concludes,
[i]t may therefore be appropriate to hear an intervener or an amicus if the distinctive perspective, interest or emphasis that they bring will assist the Court to arrive at a more complete understanding of the facts relevant to constitutional validity.
This relationship, between amicus submission and constitutional fact clarification, deserves further academic attention.
Another key role that amici play is the ability to offer a court specific expertise. Two of the amici submissions in particular relied upon prior substantive and conceptual experience to inform the High Court. The HRLC relied extensively on its previous legal expertise in assisting with implied freedom matters, as well as expertise on “abortion-related laws and human rights in Australia” (HRLC ). LW’s submission focused on previous support offered “to further the cause of the value of individual liberty in Australian society in relation to the specific issue of political communication” (LW ).
The bulk of each amicus submission ultimately consisted of legal guidance to the High Court. Accordingly, some of the key legal issues and arguments presented by the amici will be introduced below. In order to illustrate some of the dynamics of the case, snippets of the judgment have also been included. The amici addressed elements of the tests elaborated in Lange v Australian Broadcasting Corporation and explained in McCloy v New South Wales and Brown v Tasmania for determining when the implied freedom has been infringed. The specifics of those tests can be found elsewhere, and their development in this Case has been outlined here.
Three of the four amici submissions (FCC, HRLC and Castan Centre) argued that the impugned laws burden the implied freedom, but that the burden is minimal. The HRLC suggested the burden is “insubstantial” (HRLC , , , , ) and the FCC suggested that any burden is “slight” (FCC ). LW (-) diverged from the other amici by suggesting that both laws “impose a direct and substantial burden on the freedom directed at protest or else at communication per se”. This aligns with Gageler J’s finding that the burden in the Preston appeal is “direct, substantial and discriminatory” ().
While the HRLC argued that the burden is insubstantial, it acknowledged that proper scrutiny should not be “overlooked or diminished” (HRLC ). The plurality () accepted this necessity, stating that “McCloy requires that any effective burden on the freedom must be justified”. The plurality judgment accepted that in the Clubb appeal, the “prohibition burdens the implied freedom” () as did the law in the Preston appeal (). Yet, for both appeals, the plurality regarded the burden to be slight (, ).
The HRLC () suggested that the purpose of the Victorian law is “plainly to protect the safety, wellbeing, privacy and dignity of persons, particularly women, accessing reproductive health clinics in Victoria, and staff working at such clinics”. The FCC echoed this sentiment (). In the Clubb appeal the plurality judgment arrived at a very similar understanding, namely that the purpose is geared towards “the protection of the safety and wellbeing of, and the preservation of the privacy and dignity of, persons accessing lawful medical services, as well as staff and others accessing the premises” (), with Nettle J supporting this interpretation ().
As the plurality highlighted, the Tasmanian law “does not expressly state its objects” (). However, they deduced from its terms, subject matter and extrinsic material that:
[t]he object of the prohibition is to protect the safety and wellbeing, physical and emotional, of persons accessing and leaving abortion clinics and to ensure that women may have unimpeded access to, and doctors may provide, terminations[.]
The plurality found this to be a legitimate purpose (-). Justice Nettle () agreed but extended the purpose to include access “without the adverse psychological impact of being subjected to the harangue of abortion protestors”. Justice Gordon () also found the purposes legitimate. Justice Gageler, while not conducting a structured proportionality analysis, found that the purpose of the Tasmanian legislation is “best identified as being to ensure that women have access to premises at which abortion services are lawfully provided in an atmosphere of privacy and dignity” and is “unquestionably constitutionally permissible and, by any objective measure, of such obvious importance as to be characterised as compelling” ().
Reasonably appropriate and adapted to achieving legitimate purpose
Two amici (Castan Centre ,  and the FCC ) explicitly argued that the laws are reasonably appropriate and adapted. The HRLC spoke to the “legitimate ends” of the laws, suggesting that the legitimate ends encompass “public and individual safety” as well as the need to protect “women’s rights to privacy, dignity and equal access to healthcare” (HRLC ). In this way, the protection of human rights “is plainly a compelling interest” (HRLC ), and one that the Victorian legislature has a “legitimate interest in” (HRLC ). Justice Edelman found that “[t]he area covered by the Reproductive Health Act is reasonably necessary to fulfill its purposes to the desired extent” ().
LW () argued that the purpose of the laws is not legitimate, and therefore does not engage with the third element of the McCloy test. Justice Gageler, while dismissing both appeals, came close to finding the Tasmanian legislation invalid. He found that the 150 metre radius of the safe access zone “must be close to the maximum reach that could be justified as appropriate and adapted” but regarded it as valid, as the designated space “leaves enough opportunity for protests to be held at other locations” ().
With the exception of the LW amicus submission, all other amici focused on different sections of the structured proportionality test first elaborated in McCloy. Most attention was given to the ‘necessity’ stage of the structured proportionality assessment. The Castan Centre suggested that “the real issue is whether safe access zones per se can be seen as necessary to protect the safety, wellbeing and privacy of patients and staff” (). Relying on its own relevant academic and empirical research, the Castan Centre () demonstrated to the Court that:
safe access zones are necessary to protect the safety, wellbeing and privacy of patients and staff, in relation to both conduct in the nature of harassment and intimidation as well as other communications in relation to abortion that are proscribed by the Public Health Act.
The HRLC () suggested that necessity considerations were essential to address “the inadequacy of laws to protect the rights of patients and staff accessing clinics providing abortions”. Both the Castan Centre and the HRLC suggested that Victoria’s former laws did not sufficiently protect the right of women to access healthcare nor did they sufficiently protect staff working at abortion clinics (Castan Centre , HRLC ).
The FCC (-) similarly relied on evidence from Dr Allanson, a clinical psychologist with more than 25 years’ experience at the FCC, who provided extensive firsthand and empirical verifications that speaks to the “negative effect of protest activity outside the clinic upon [women’s] physical and mental state[s]”. Evidence was also relied upon to suggest that patients delay seeking medical assistance from abortion clinics because of protest activities occurring outside the FCC (). Here, the FCC () concluded by stating that “Dr Allanson’s evidence highlights the necessity of the impugned provisions in addressing the legitimate end of ensuring access to lawful abortion services in Victoria” and that such evidence is “also probative of the inefficacy of other measures to achieve the ends now sought to be achieved by Pt 9A of the Act”.
Similarly, the Castan Centre () relied upon its own “empirical research conducted in 2017 [by Dr Sifris and Dr Penovic] directly concerned with the necessary and legitimate end of Part 9A Public Health and Wellbeing Act 2008 (Vic)”. The Castan Centre () highlighted that this research “demonstrates that safe access zones are necessary to protect the safety, wellbeing and privacy of patients and staff”.
The only judge who explicitly referred to any of the amicus submissions was Nettle J (), as part of his necessity analysis. Justice Nettle cited the evidence of Dr Sifris and Dr Penovic, identifying the “adverse impact of protestor behaviour” (Castan Centre () on women accessing abortion clinics, in order to elucidate what mischief compelled Victoria to implement safe access zones. The FCC similarly relied on its own empirical account to support the proposition that the impugned law goes “no further than is reasonably necessary” (FCC ). Overall, none of the Judges was convinced that there were obvious or compelling alternatives to the legislation and therefore found both laws necessary.
While it is difficult to draw conclusive, empirical links between the arguments made by the amici and the various judgments, it is enlightening to consider them in tandem. As has been shown, amici perform a range of tasks for courts. Most notably in this Case, amici offered assistance in three main areas, namely in providing: unique information to the Court, empirical expertise, and legal guidance. The fact that four amici submissions were granted leave means something important in the Australian context. It could be that the High Court finds amici particularly useful in contentious rights-based appeals. Or, perhaps, all four were granted leave due to empirical expertise relating to the specific areas of law in question. Or it could just be that each of the amici introduced new material to the Court that was otherwise absent, and therefore useful. This preliminary attempt at examining arguments raised by amici in the context of this Case raises many interesting questions, which will hopefully catalyse future conversations and research about the role of amicus curiae in Australian constitutional litigation.
Josh Gibson is a PhD Candidate in law and Garth Nettheim Doctoral Teaching Fellow at UNSW.
Suggested Citation: Josh Gibson, ‘Clubb v Edwards; Preston v Avery: The High Court and the Role of Amicus Curiae’ (3 May 2019) <https://auspublaw.org/2019/05/clubb-v-edwards;-preston-v-avery:-the-high-court-and-the-role-of-amicus-curiae>