Clubb v Edwards & Anor [2018] HCATrans 181 (12 September 2018)

Last Updated: 12 September 2018

[2018] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M46 of 2018

B e t w e e n -

KATHLEEN CLUBB

Appellant

and

ALYCE EDWARDS

First Respondent

ATTORNEY-GENERAL FOR VICTORIA

Second Respondent

GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 SEPTEMBER 2018, AT 9.35 AM

Copyright in the High Court of Australia

HER HONOUR: By an application made in submissions filed on 31 August 2018, the Access Zone Action Group seeks leave to appear as amicus curiae in these proceedings. For reasons that I now publish, I dismiss the Access Zone Action Group’s application for leave to appear as amicus curiae. I instruct that the reasons, as published, be incorporated into the transcript. I publish those reasons.

Two protesters were charged and convicted – one in each of the Magistrates’ Courts of Victoria and Tasmania respectively – for contravention of the applicable State legislation[1] directed at prohibiting behaviour which, in general terms, constitutes protesting against abortion within a certain distance of premises where abortions are provided. Both protesters appealed against their convictions to the Supreme Court of the relevant State. Both protesters contend that the applicable State legislation impermissibly burdens the implied freedom of political communication and is therefore constitutionally invalid.

On 23 March 2018, orders were made removing into this Court the part of the causes pending in the Victorian and Tasmanian Supreme Courts relevant to constitutional validity, and setting out a timetable in preparation for the hearing before the High Court. One of the timetabling orders was that any interveners supporting the appellant protester in the Victorian proceedings file and serve written submissions on or before 15 June 2018.

By application made in submissions filed on 31 August 2018, the Access Zone Action Group (“the AAG”) seeks leave to appear as amicus curiae in the Victorian proceedings, to make written submissions against the validity of s 185D of the Public Health and Wellbeing Act 2008 (Vic), limited to “the third question of the test for the implied freedom of political communication articulated in McCloy v State of New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 194-5 as modified in Brown v Tasmania [2017] HCA 43; (2017) 91 ALJR 1089 at [104]”.

Pursuant to r 13.03.1 of the High Court Rules 2004 (Cth), I direct that the AAG’s application be determined without listing it for hearing. For the following reasons, the AAG’s application should be dismissed.

First, the AAG’s application is over two months out of time. The orders made on 23 March 2018 provided that any such application should have been filed on or before 15 June 2018.

Second, in terms of the submissions which the AAG seeks leave to make, the AAG seeks to challenge the affidavit evidence of Dr Philip Goldstone affirmed on 26 July 2017 and Dr Susie Allanson affirmed on 21 July 2017, filed in the Magistrates’ Court of Victoria (“the 2017 affidavits”). In this regard, the AAG seeks to rely on the affidavits of Dr Joseph Turner sworn on 29 August 2018, Ms Deborah Garratt sworn on 29 August 2018, and Dr Simon McCaffrey sworn on 30 August 2018. However, the 2017 affidavits were received into evidence by the Magistrate in the Victorian proceedings and were not the subject of cross-examination. It would be inappropriate to permit a challenge to the 2017 affidavits in this Court.

Third, 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”[2]. 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.

For these reasons, the AAG’s application for leave to appear as amicus curiae filed on 31 August 2018 is dismissed.

The order of the Court is:

1. The application of the Access Zone Action Group seeking leave to appear as amicus curiae filed on 31 August 2018 is dismissed.
   

I publish that order.

Adjourn the Court.

AT 9.36 AM THE MATTER WAS CONCLUDED

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[1] s 185D of the Public Health and Wellbeing Act 2008 (Vic); s 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas).

[2] Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 604; [1997] HCA 31 (citations omitted).