11 April 2019

Exclusion Zones, Non-interference and the Implied Freedom of Political Communication

IHaving written about privacy and constitutional aspects of the ACT and Victorian exclusion zone statutes I am unsurprised by yesterday's High Court judgment in Kathleen Clubb v Alyce Edwards and Anor; John Graham Preston v Elizabeth Avery and Anor [2019] HCA 11

The High Court unanimously rejected the appellants' challenges to Victorian and Tasmanian enactments that prohibit certain communications and activities in relation to abortions in "access zones" around premises at which abortions are provided.

The  Public Health and Wellbeing Act 2008 (Vic) s 185D prohibits a person from communicating in relation to abortions in a manner able to be seen or heard by persons accessing or attempting to access premises at which abortions are provided, if the communication is reasonably likely to cause distress or anxiety.

The  Reproductive Health (Access to Terminations) Act 2013 (Tas) s 9(2)  prohibits protests in relation to terminations that are able to be seen or heard by a person accessing premises at which terminations are provided ("the protest prohibition").

The prohibition under both enactments, similar to that in the ACT,  h apply within a radius of 150 metres from premises at which abortions are provided.

Clubb had been convicted in the Magistrates' Court of Victoria of an offence against s 185D of the Victorian Act, with Preston convicted in the Magistrates Court of Tasmania of an offence against s 9(2) of the Tasmanian Act. Both sought review of their convictions, including on the ground that the provision under which they had been convicted is invalid because it impermissibly burdens the freedom of communication on governmental and political matters which is implied in the Constitution.

Those parts of the proceedings in each of the Supreme Courts relating to the implied freedom were removed into the High Court.

 In relation to the Victorian Act, a majority of the High Court considered that the burden imposed by the prohibition was justified by reference to its legitimate purposes, including the protection of the safety, wellbeing, privacy and dignity of persons accessing lawful medical services. The other members of the Court considered that the challenge to the communication prohibition should be dismissed without determining the validity of the prohibition because it was not established that Clubb's conduct involved political communication.

The Court in considering the Tasmanian Act unanimously held that the burden imposed by the prohibition was justified by reference to its legitimate purposes, which include the protection of the safety, wellbeing, privacy and dignity of persons accessing premises at which abortions are provided and ensuring unimpeded access to lawful medical services.

Edelman J at [501] commented that the burden upon freedom of political communication cannot be said to be in gross and manifest disproportion to the importance of the purpose.

Kieffel CJ, Bell and Keane J in relation to Clubb concluded at [102]
 In summary in relation to the third step of the McCloy test, the limited interference with the implied freedom is not manifestly disproportionate to the objectives of the communication prohibition. The burden on the implied freedom is limited spatially, and is confined to communications about abortions. There is no restriction at all on political communications outside of safe access zones. There is no discrimination between pro-abortion and anti-abortion communications. The purpose of the prohibition justifies a limitation on the exercise of free expression within that limited area. And the justification of the prohibition draws support from the very constitutional values that underpin the implied freedom. Accordingly, the communication prohibition satisfies the third step of the McCloy test. 
In relation to Preston they stated at [127]:
 The Reproductive Health Act, in targeting a "protest" about abortion, is directed at public demonstration, whatever its viewpoint, which is likely to be confronting to those in need of medical advice and assistance from a clinic. The purposes of the Reproductive Health Act in this respect are the same as those of Pt 9A of the Victorian Act. The cardinal features of both pieces of legislation are that the burden on the implied freedom operates only within safe access zones and is confined to the discussion of abortion. The burden on political communication imposed by the protest prohibition is slight, in that, to the extent that it does affect political communication, it does so only within access zones, and without discriminating between sources of protest. 
 Gageler J commented at [213] that
 The 150 m reach of the protest prohibition around premises at which abortion services are provided must be close to the maximum reach that could be justified as appropriate and adapted to achieve the protective purpose of facilitating access to those premises in a manner compatible with maintenance of the constitutionally prescribed system of government. Nevertheless, I am satisfied that confining the protest prohibition within that 150 m limit leaves enough opportunity for protests to be held at other locations meaningfully proximate to the premises to warrant the conclusion that the burden that the protest prohibition places on political communication, although not insubstantial, is not undue.