BY ALEX DEAGON

This is the first of three posts AUSPUBLAW is featuring on the High Court’s  decision in Clubb v Edwards. Arisha Arif and Emily Azar’s accompanying post is here and Josh Gibson’s accompanying post is here.

On 10 April 2019 the High Court handed down its judgment in the joint ‘abortion exclusion zone’ cases, Clubb v Edwards; Preston v Avery [2019] HCA 11. The cases were not only controversial due to their subject matter, with some commentators raising freedom of speech and even freedom of religion issues, but also because they again raised the thorny issue of structured proportionality in the judicial analysis of cases involving the implied freedom of political communication. In these cases, Kathy Clubb and Graham Preston, both pro-life advocates and protestors, were convicted of offences under Victorian and Tasmanian abortion laws respectively. The Victorian Public Health and Wellbeing Act 2008 (Vic) prohibits ‘communicating by any means in relation to abortions’ within an exclusion zone (section 185D), while s 9(2) of the Tasmanian Reproductive Health (Access to Terminations) Act 2013 (Tas)prohibits ‘a protest in relation to terminations’ within an exclusion zone. Both laws state that the exclusion zone is 150 m from the abortion clinic. Clubb was convicted after handing a leaflet to a young woman approaching an abortion clinic, while Preston was convicted for holding up signs speaking about the rights of unborn children under international law. Both eventually appealed to the High Court, arguing that the laws infringed upon the implied freedom of political communication under the Constitution. In this post, I present a brief summary of the judgments in the cases, before critically analysing aspects of those judgments.

The State of Structured Proportionality

The High Court unanimously dismissed the appeal, but the uniformity in the final outcome belies the complexity and balancing with which the Court engaged, and the Judges’ different methods of doing so. The plurality, Kiefel CJ and Bell and Keane JJ, affirmed the three-step test to determine whether a law impermissibly burdens the freedom of political communication settled upon in Brown v Tasmania and applied the structured proportionality analysis ([5]-[6]), as did Nettle J in a separate judgment ([215]). As has been explained elsewhere (e.g. here and here), that analysis requires evaluation of the law’s suitability and necessity, and the adequacy of the balance between the importance of the law’s purpose and the extent of the burden it imposes on political communication. I outline the Court’s reasoning on these grounds below. In separate judgments, Gordon and Edelman JJ, while largely accepting the validity of structured proportionality analysis as a tool, expressed caution and did not apply it specifically ([390], [408]). In another separate judgment, Gageler J maintained his reservations about structured proportionality expressed in earlier cases and used the same unique approach he adopted in Brown ([161]-[162]). Despite this division, there seems to be a begrudging consensus that the Lange-Coleman-McCloy-Brown test involving structured proportionality analysis is currently the accepted approach for the High Court in implied freedom of political communication cases. Six Justices accepted the validity of the approach as a tool, four applied it specifically, and even Gageler J conceded that ‘I doubt there is much more I can usefully say… like all of the numerous competing approaches to the judgment calls required of the High Court… it will be evaluated over time as case law accumulates by reference to its capacity to inform sound and consistent outcomes’ ([161]).

Political Communication

Turning to the substance of the cases, in Clubb a majority of the Court (the plurality and Nettle J) held that the conduct by Clubb was not ‘political communication’ for the purposes of the implied freedom, but was instead a discussion between individuals about personal moral or ethical choices ([29]-[31]). Nevertheless, rejecting submissions that to decide the validity of the law engaged the Court in the imprudent practice of deciding hypothetical questions, the majority decided to proceed to determine the validity of the law ([40]). (The remaining justices also held that the communication was not political, but declined to decide the question of validity and argued in different ways that the operation of the law in relation to political speech could be severed so that Clubb’s appeal would fail.) The majority held that the Victorian law did impose a burden because it effectively prevents many communications which are political, such as whether Governments should encourage or discourage abortions ([42]). The Court unanimously held that the Tasmanian law in Preston burdened the implied freedom because it explicitly prevented protests in relation to abortion.

Legitimate Purpose

The assessment of legitimate purpose and proportionality was similar in both cases. The Court held that the laws had a legitimate purpose. To take the comments of the plurality, ‘the purpose of the challenged legislation relates to the preservation and protection of the privacy and dignity of women accessing abortion services’ in the sense that it is not consistent with human dignity for vulnerable women to have a political message forced upon them in distressing circumstances  ([48]-[51]). The appellants submitted that the purpose was illegitimate because it was content-specific and targeted pro-life sentiment, but four justices (the plurality and Gordon J) held that the text of the laws was viewpoint-neutral and served to prevent pro-abortion protests as well as pro-life ones ([55], [364]). However, while Gageler and Edelman JJ agreed that the purpose was legitimate and did not target a particular view in its legal operation, they acknowledged that the laws had the practical effect of chilling debate by targeting pro-life advocates ([170], [481]). Justice Edelman noted that the ‘legislative effect will be, and is intended to be, most deeply felt by anti-termination protestors’ ([481]). Justice Gageler explained that ‘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… to a significantly greater extent than it curtails protests by those who seek to express approval’, and this is exactly how Parliament intended the laws to work ([170]-[171]).

Proportionality

The plurality (with Nettle J) proceeded to engage in a structured proportionality analysis of the laws. They first held that the law is suitable in that the communication prohibition has a rational connection to the statutory purpose of promoting public health by allowing women to access safe and regulated abortion procedures ([84]).  They distinguished Brown by noting that in Brown there was no attack on privacy and dignity of citizens and that in these cases there was no evidence provided which indicated that on-site protests against abortion are the most effective form of political communication about abortion ([81]-[83]). The plurality, with Nettle and Gordon JJ, held that the law was necessary to achieve its purpose. The many alternatives raised by the appellants were not obvious, compelling, reasonably practicable alternatives that would decrease the burden while still achieving the purpose ([86]-[95]). Finally, the plurality held that the law was adequate in its balance. The burden was slight in respect of the excluded subject matter (communications about abortions only) and the geographical extent of the exclusion (the exclusion zone), while the purpose of protecting the dignity of the people of the Commonwealth goes to the heart of the electoral process ([100]-[101]). Therefore the laws were valid.

Issues for Consideration

Though the outcome of these cases is persuasive both in the preponderance of the Court and in the application of the test, some questions remain about the cogency of the reasoning. First, in assessing adequacy, the plurality drew an analogy with McCloy, arguing that here the impugned laws ‘support and enhance access to government which the freedom protects’, and the balancing process incorporates the ‘same values’ which underpin the freedom ‘in relation to the protection of the dignity of the people of the Commonwealth’ ([101]). However, at best this seems a very strained analogy. Unlike McCloy, the cases here are not directly connected to the electoral process and the support or enhancement of representative government. The claim that ‘the protection of dignity’ is an equivalent public interest to ‘access to government’ is not obviously true and requires argument, which the plurality did not provide.

Second, the plurality engaged with a hypothetical counter-argument that Preston might be decided differently to Clubb ([117]):

It might be said that the case to be made for the invalidity of the protest prohibition as an impermissible burden on the implied freedom is stronger than the case to be made against its Victorian counterpart because the prohibition is directed squarely at what is a familiar form of political communication, because the Tasmanian legislation does not articulate the objects that justify its intrusion on the implied freedom, and because the protest prohibition does not require a potential to cause distress or anxiety. It might also be said that the Victorian legislation is an example of an obvious and compelling alternative measure less intrusive upon the implied freedom. In the end, however, these differences do not warrant a different result in the Preston appeal.

These are well stated objections, but it is not clear why the Court did not afford them more weight and they are not explicitly addressed in the plurality’s reasoning. The potential response to the first objection is that the prohibition is viewpoint and content neutral ([123)], but this has been questioned above. The second objection receives no clear response in the plurality’s consideration of necessity ([125]-[126]), but the issue is brought back to the purpose of the laws. Perhaps the plurality is saying that the Tasmanian measure is necessary in light of its purpose, but this does not address the objection that the Victorian measure is a less restrictive measure of achieving the same purpose as the Tasmanian law. If the laws have and achieve the same purpose, as they manifestly do, and the Victorian law is less restrictive, as it appears to be, then it logically follows that the Tasmanian law is not necessary and so is disproportional. The plurality failed to properly meet its own counter-argument.

Third, Gageler J came very close to dissenting and challenged a number of the plurality’s arguments. Justice Gageler argued at [173]-[174] that these cases have an ‘important feature’ in common with Brown:

…it involves legislation which impedes the holding of a protest in close proximity to the place of occurrence of a currently lawful activity, at which those who oppose the lawfulness of the occurrence of that activity would seek publicly to express their disapproval. In a manner not qualitatively different from the legislation directed against on-site protesting in Brown, the burden which the protest prohibition places on political communication is direct, substantial and discriminatory. The prohibition discriminates on its face against a traditional form of political communication and discriminates in its practical operation against use of that form of communication to express a particular viewpoint.

Furthermore, despite the arguments from the plurality that there was no evidence to suggest a smaller access zone would be as effective in restricting protestors while imposing a lesser burden on the freedom, Gageler J was sympathetic to the view that a 150m exclusion zone is unjustified and excessive ([210]):

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. If I were pressed to re-cast my opinion in the language of structured proportionality, I would say that proscription of all protests in relation to abortion in the proximity of an abortion clinic, even if it were to be accepted as “necessary” (“erforderlich”), would not be “adequate in its balance” (“unzumutbar”).

Ultimately, Gageler J was swayed by a finding of fact that protests could still be held in places where it would impact those entering the access zone ([211]), and so the laws were justified. One wonders if the outcome would have been different if the particular factual circumstances were different.

Finally, it is worth noting some of the pejorative language used by the Court in relation to the conduct of the appellants. As Neil Foster observes:

The phrase “pro-choice”, for example, is used to describe those in support of terminations of pregnancy twice by the plurality (at [52], [55].) 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 [165], [170].

Similarly, Nettle J refers to the ability of the appellants to ‘accost’ and ‘harangue’ ([252], [259], [305]), and ‘force literature’ into the hands of vulnerable women ([280]), while Gordon J refers to the ‘protection of [a] person from abuse’ ([357]). None of these terms are accurate depictions of what happened in the facts of these cases. These points raise questions about the legitimacy of the law’s purpose bearing in mind the apparent legislative intention to prevent pro-life protesting. As Gageler J has intimated, it undermines the claim that the law is truly viewpoint-neutral. It also raises questions about the propriety of the balancing process by some members of the Court. The analysis of adequacy was said to be a ‘value judgment consistent with the judicial function’ in McCloy and Brown, though the plurality in Clubb noticeably retreat from the term ‘value’ and it is not mentioned anywhere else in the judgment ([74]). If the Court frames its analysis using prejudicial language this could be cause for reconsidering whether its judgment is ‘consistent with the judicial function’ in the sense of not relying on judges’ personal views, especially on a sensitive issue of political debate.

Conclusion

Justice Edelman insightfully observes that perhaps the outcome in these cases says more about Australia’s constitutional and political system than anything else (see [502]-[508]). While the US allows significant and controversial law reform to be driven by judicial decisions, Australia has more faith in democratic (legislative and political) processes to achieve policy outcomes. While the First Amendment protects freedom of speech as a paramount constitutional value exercisable as an individual right, Australia merely has an ‘implied freedom’ of political communication which acts as a limit on legislative power, not a right. For that reason, Edelman J argues, though exclusion zones in the US have been held to be constitutionally invalid, much more severe exclusion zones are valid in Australia ([508]). The implication is that those who disagree with such laws in Australia will find little assistance from the High Court, and must engage with the democratic process anew if they wish to see these laws changed.

Alex Deagon is a Senior Lecturer in the Faculty of Law, Queensland University of Technology

Suggested Citation: Alex Deagon, ‘There and Back Again? The High Court’s Decision in Clubb v Edwards; Preston v Avery [2019] HCA 11’ on AUSPUBLAW (3 May 2019) <https://auspublaw.org/2019/05/there-and-back-again?-the-high-court’s-decision-in-clubb-v-edwards-preston-v-avery>