Clubb v Edwards & Anor; Preston v Avery & Anor [2018] HCATrans 208 (10 October 2018)

Last Updated: 10 October 2018

[2018] HCATrans 208

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

Office of the Registry
Hobart No H2 of 2018

B e t w e e n -

JOHN GRAHAM PRESTON

Appellant

and

ELIZABETH AVERY

First Respondent

SCOTT WILKIE

Second Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 10 OCTOBER 2018, AT 10.03 AM

(Continued from 9/10/18)

Copyright in the High Court of Australia

____________________

KIEFEL CJ: Yes, Ms Solicitor.

MS WALKER: If the Court pleases, I finished yesterday dealing with the affidavit of Dr Allanson. Could I now more briefly take the Court to the affidavit of Dr Goldstone, also filed in the proceedings. Your Honours, that commences at page 244 of the core appeal book. As I touched on yesterday, Dr Goldstone gives evidence that he has worked in a variety of clinics around Australia. At paragraph 6 of his affidavit he observes:

At many of the clinics where I have worked, I have encountered anti-abortion protestors in the area immediately surrounding the clinics.

He saw various behaviours by those protesters:

6.1 holding signs and placards with anti-abortion messages (often containing distressing images (for example bloody or dismembered foetus), distressing statements . . . or medically incorrect information;

6.2 approaching women who were trying to enter the clinic, and attempting to dissuade them from entering - for instance, by making statements to the effect of ‘Don’t murder your baby’;

6.3 handing out leaflets or pamphlets about abortion - many of which contained distressing or medically inaccurate information, including misleading information about the alleged harmful effects of abortion (both physical and psychological) and misleading information about foetal development; and

6.4 making critical, offensive or threatening statements to staff entering or exiting the clinic -

He deposes to his personal experience in that regard. He deposes that:

In his experience, this sort of protest or activity interferes with the privacy of patients and can be distressing to them. This is confirmed by research studies.

He also – at paragraph 10, on page 247 of the appeal book – says that:

As a medical practitioner, I am aware that because protestor activity can be emotionally distressing to patients, it can also lead to negative medical outcomes for patients accessing health services at the clinic, including women accessing abortions. A severely negative emotional state at the time that a procedure is performed can increase a patient’s discomfort during the procedure and recovery, and can increase the requirement for anaesthesia which may increase medical risk.

He also observes, in paragraph 11, that:

Also, for women who have already decided to have an abortion, protest activity around a clinic may lead them to delay attending the clinic for treatment. From a medical perspective, delaying treatment can also lead to negative medical outcomes.

Then, again, further deposes to the effect on staff, in paragraph 12, of his affidavit.

Now, your Honours, both Dr Allanson and Dr Goldstone referred to studies that they annexed to their affidavits that they said were supportive of the observations that they had made, personally, and the opinions that they had given formed on the basis of their qualifications. I am not going to take the Court to those studies. It is not necessary for the Court to look at those studies.

Can I now, your Honours, respond to the appellant’s attempt to rely on what has been described – although, I think, perhaps, inaccurately – as an article written by Dr Turner and two colleagues? It is a document published on a website. I would, personally, not call it an article. It does not appear to have been published in a journal, let alone a peer reviewed journal.

We oppose the reliance on that material, your Honours, and we do so for three reasons. Firstly, we contend that it is an attempt to circumvent the orders made by Justice Gordon in this proceeding dismissing the Access Zone Action Group’s application to appear as amicus curiae. The orders were made on 12 September 2018. The document was published on the Western Australian website on 1 October 2018, so at a time after the individuals knew that this material was not to be admitted through their affidavit evidence.

It contains substantially – in fact, as a best estimate, at least 75 per cent of the material is identical to the material that was in the affidavit of Dr Turner. In particular, of course, the criticisms of the affidavit evidence of Dr Allanson and Dr Goldstone is reproduced. Now, there were very good reasons why Justice Gordon dismissed the application to introduce that material at this late stage and we say, your Honours, that an attempt now to rely on the same material that is now not put before this Court on affidavit is simply put on the basis that it has been published on a website is an attempt to circumvent the orders of this Court and ought not to be countenanced.

We further say that this is an attempt to lead further evidence on the appeal. Now, the document having been published on 1 October 2018 was, plainly, not before the magistrate. But the appellant’s purpose in leading the evidence is not really connected to the publication of the document itself; it is directed to the content of the opinions recorded in the document and those opinions are directed to evidentiary matters that were put before the Magistrates Court. Now, if the appellant wished on this appeal to adduce further evidence she should have put on an application to do so. She should have supported it by an affidavit and the material should have been put on affidavit and that, of course, should have been done much, much earlier in the proceeding, rather than by handing up a web document at the hearing.

Thirdly, your Honours, if an application is in a sense treated as now having been made to adduce this as further evidence, that application is opposed. As has been noted, Dr Allanson and Dr Goldstone’s evidence was uncontested at trial. They were not cross-examined. The appellant has not contended and nor could she contend that the opinions recorded in the Turner affidavit could not have been put to Dr Allanson or Dr Goldstone at trial and we say it is now not appropriate to allow that evidence to be contested in this Court at this late stage.

We note, of course, there is no opportunity for Dr Allanson or Dr Goldstone to give further evidence in response to Dr Turner. There is no opportunity for the respondents to cross-examine the authors of the document sought to be relied upon and so allowing the material to come in at this late stage would be a fundamental denial of procedural fairness to the respondents. Now, some support for the introduction of this material by the appellant is based on the proposition that in some way this material is before the Court in the Tasmanian proceeding.

We do not understand Tasmania to rely on the affidavits of Dr Allanson or Dr Goldstone. Those affidavits are not mentioned in Tasmania’s written submissions. No doubt the Solicitor-General for Tasmania will address the Court on that issue but simply to foreshadow, we do not understand the Tasmanian proceeding to involve reliance on Dr Goldstone’s affidavit or Dr Allanson’s affidavit. So for those reasons, your Honours, we say that the Court should pay no regard whatsoever to the document produced by Dr Turner and his colleagues.

EDELMAN J: Is there a question of principle involved here as well, which is the extent to which courts should descend to a level of granularity that requires assessment of strictly competing views at a very high degree of particularity about studies that underpin legislative policies? Because if at that degree of particularity courts were to do so, would it potentially involve courts then second-guessing the policy basis upon which parliaments enacted their laws?

MS WALKER: Yes, your Honour is absolutely right and that is why I commenced my submissions with the assessment of the second reading speech and the Victorian Law Reform Commission report, both traditional forms of extrinsic materials, and said that the Court could decide the matter solely on that material. But your Honour has made an additional point - and I would adopt that - that it is not appropriate in a case of this kind for the Court, for example, to be asked to and then to descend to a decision about whether delay, for example, causes some harm to women who are seeking an abortion and, if so, what kind of harm, how bad is the harm and is it just discomfort and so forth.

We would say your Honour is absolutely right; the Court should not descend to that level of particularity. The harm has been identified by the Parliament at a relatively high level of generality, albeit with enough specificity for the Court to understand that there is a real mischief and the nature of that mischief, because we do accept that the Court needs to understand the mischief when identifying whether the measure is reasonably appropriate and adapted to achieve a legitimate end. But I would adopt what your Honour has said as a matter of principle, yes.

Now, leaving those facts behind that were directed to the mischief, can I also return to the second reading speech, which is in volume 12 of the joint book of authorities at tab 76, to point out that the Minister also addressed what the Parliament plainly regarded as the ineffectiveness of existing law to deal with the mischief that had been identified. And this can be seen – in fact, perhaps I should say, first, in the statement of compatibility at page 5204 of the joint book of authorities where the Minister deals with the choice in paragraph (b) to extend the prohibited behaviour – this is at the top of the right-hand column:

beyond conduct that is actually intimidating, harassing or threatening, or which impedes access to premises -

and so points out that the Bill deals with communication, and the Minister says:

I consider that this is necessary to properly protect the rights and interests of women and other persons who access the premises.

And then she goes on, in the next paragraph, to say:

Provisions that only prohibit intimidating, harassing or threatening conduct, or conduct which impedes access to premises are inadequate for a number of reasons –

The first reason she gives is:

(a) They can only be enforced after the harmful conduct has occurred and there are significant difficulties in enforcing such laws.

And she says:

Although such conduct has often extended to criminal conduct, women and their support persons are generally unwilling to report the conduct to police or assist in a prosecution which would expose them to the stress and possible publicity of a criminal proceeding. The intensely private nature of the decision that the protesters seek to denounce, effectively operates to protect the protesters from prosecution for criminal conduct.

And she notes that, equally, staff members will not be fully protected and so the Parliament considered it:

necessary to create a safe access zone . . . in order to prevent the harm and not just to respond to inappropriate conduct when it occurs.

And that point, your Honours, about the criminal law potentially requiring an affected person to give evidence in the criminal proceeding about the conduct to which they were subject is an important one because, when I come to statutory construction, part of the submission will be that the scheme has been designed to ensure that it is possible to prosecute the offences created by Part 9A without calling, at least for paragraph (b), an affected person to give evidence that he or she saw or heard the communication and suffered anxiety and distress from it.

And we say that follows – we will come to the language of the statute – from the language but, equally, is supported by the materials that demonstrate Parliament’s intention to ensure that women do not have to attend at a criminal proceeding to give evidence about the fact that they were going to an abortion clinic to perhaps seek counselling or in fact to seek an abortion, which we would say would defeat the purpose of the provision which is designed to protect, in part, the privacy of those persons.

Can I also mention on page 5206 of the second reading speech proper, the Minister notes in the second column in the fourth paragraph:

A recent Supreme Court decision considered whether the City of Melbourne had an obligation to enforce the nuisance provisions of the Public Health and Wellbeing Act against a group harassing and intimidating people at a clinic . . . The court refused to make an order requiring the council to take specified action, but found that the council’s advice to the clinic to refer the matter to police and have it dealt with as a private nuisance was not effective. The case illustrates that current laws are unsatisfactory, and that women and staff are not adequately protected from harassment in the circumstances I have outlined.

Your Honours, that is a reference to the case the Fertility Control Clinic brought against the Melbourne City Council. It is contained in the core appeal book as exhibit SA11 to Dr Allanson’s affidavit. I do not need to take your Honours to it, but if your Honours wish to see it, it is there. It of course was also part of the background informing the Parliament’s decision to enact a law to deal with the mischief, because not only had the Minister observed that the criminal law was not effective but equally the law of nuisance had proved to be ineffective when it was attempted to be relied upon by the clinic.

EDELMAN J: Is that using “harassment” in that paragraph in a broader sense from the sense in which I think you submitted yesterday it was used in paragraph (a)?

MS WALKER: Yes, your Honour, it is, in this sense. The Minister there is really just describing in a relatively loose way and in a very compressed way the nature of the conduct in issue in the Fertility Control Clinic case. That case was not a case confined to behaviour that would be described as harassing. Because it is the Minister describing a judicial decision it is not done with the precision of the statutory language.

In the appellant’s supplementary submissions she has identified a range of laws that she says already protect the privacy, dignity, safety and psychological wellbeing of people accessing premises where abortions are provided. I do want to come to some of those provisions in terms of whether they might be regarded as alternative less burdensome means, and I do not want to do that immediately, but can I say this, your Honours. The material before the Court, in a factual sense, demonstrates that those provisions identified by the appellant were not in fact effective to deal with the mischief.

Again, if one can go perhaps back to Dr Allanson’s affidavit at page 13 of the appeal book, at paragraph 23 Dr Allanson commences her description of the clinic’s attempts to invoke the existing law. At paragraph 23 she says:

over many years FCC regularly contacted both East Melbourne police station and Melbourne City Council (Council), for help to stop the harassment of our patients.

Again, your Honours, using “harassment” there in a generic, lay sense, not in the technical statutory sense.

Over many years, Police and Council personnel were regularly in attendance.

For example, FCC requested that the Council enforce the Activities Local Law . . . and repeatedly asked the police to attend –

Your Honours, I am not going to take you to them but she has exhibited to that affidavit examples of correspondence both with the police and with the council. She then describes the proceedings that were brought in relation to paragraph 26 and says at paragraph 27:

In my observations, none of the above efforts changed the protestors’ activities, which continued to persist until the commencement of the Safe Access Zones Act.

That is plainly again consistent with what the Minister said in the second reading speech and in the statement of compatibility.

So the proposition that there is a raft of criminal and civil laws out there that would be effective to deal with the mischief that Parliament had identified we say is simply not correct as a matter of fact and that the Court can have regard to the practical operation of those laws and on the material confined that those laws were not effective. I think, your Honours, that is all I need to say about the factual background that led to the making of the law.

Can I now turn to the terms of the statute itself, and obviously your Honours have engaged with this already to some extent, so I hope to be reasonably efficient. It has been observed, of course, that the commencement of Part 9A includes an express statement of the legislative purpose, which is to provide or to protect, in summary, the safety and wellbeing and the privacy and dignity of people accessing the services provided at the premises and employees and other persons who need to access the premises and, as your Honour Justice Gordon observed, that is in a sense reinforced by the statement of principles in section 185C which are to be applied in the construction and application of Part 9A.

Now, in her written submissions and repeated in oral argument yesterday, the appellant has identified the law’s purpose as deterring communications which are apt to cause mere discomfort. That is the written submissions at paragraph 72 and in oral argument transcript page 61, line 2685. We say that is not a correct statement of the purpose. The purpose is found in the statute and it is not a purpose of deterring communications apt to cause mere discomfort. We say the appellant has confused the statutory purpose with the means adopted by Parliament to give effect to that purpose, so that is the first mistake. The second mistake, of course, is to substitute discomfort for the words of the section which in our particular context – paragraph (b) – are anxiety or distress, not mere discomfort. As your Honour Justice Crennan and your Honours Justice Kiefel and Bell observed in Monis:

In the context of offence provisions, the question of purpose is rarely answered by reference only to the words of the provision, which commonly provide the elements of the offence and no more.

But we would say here the purpose is there stated expressly in the law. There is absolutely no basis for the Court to go behind that purpose. There is nothing to suggest that the purpose of the legislature was other than what it has expressly said its purpose was. We then come to the offence provision, which is section 185D. The offence obviously, as your Honours will see, is to:

engage in prohibited behaviour within a safe access zone.

Now, the definition of “prohibited behaviour” is then found in section 185B and it contains five paragraphs, all of which will be relevant to understanding the scope of the offence provision, including to understanding paragraph (b) itself.

Paragraph (b) can then be broken down into some discrete aspects or elements. Firstly, there must be communication, or a person must be “communicating by any means in relation to abortions”, and we do note there in relation to what your Honour Justice Gageler said yesterday, it is the verb “communicating”. We accept that “communicating by any means” is broad and can include a silent protest, a polite communication, so long as there is a communication in relation to abortion or a person is communicating, to be more precise, in relation to abortion.

Now, abortion is defined by reference to the meaning that that term has in the Abortion Law Reform Act 2008 (Vic). That, if your Honours need it, is in volume 1 of the joint book of authorities at tab 9, but I suspect you do not need to go to it:

abortion means intentionally causing the termination of a woman’s pregnancy by —

(a) using an instrument; or

(b) using a drug or a combination of drugs; or

(c) any other means -

So it does include surgical and medical abortions, although we would say immediately that – I withdraw that; I will come to that point later.

The second aspect, if you like, or element of the offence focusing on paragraph (b) is that the communicating about abortions is:

in a manner that is able to be seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided -

Obviously, yesterday, there was some discussion about what that might encompass. Your Honours, we would say that that is a composite phrase that is designed to capture a hypothetical person. It is not necessary that there be identified an actual person who was accessing, attempting to access, or leaving the premises – a hypothetical person who, in a sense, is trying to or does enter the premises. They may be approaching down the street. They need not be stepping over the threshold.

We say that that is the reason for the inclusion of the words “attempting to access”. That is not intended, in our submission, to pick up criminal law notions of attempt. It is intended to give the scope of the offence a broader operation than simply whether the communication can be seen or heard by a person stepping over the threshold of the clinic entrance.

We say that because – again, bearing in mind what the Minister said in the second reading speech – the conduct that has been observed – the mischief – has occurred not just at the doors of the clinic. People have been followed as they leave the clinic – beyond 150 metres even. People have been approached before they necessarily step over the threshold of the clinic. Protestors may be, potentially, some metres away from the clinic but they are still able to communicate their message to people who are accessing or attempting to access the clinic. So that is the way we say that phrase should be understood to ensure that the provision captures the range of conduct that has, in fact, been occurring.

BELL J: And do we understand that the hypothetical person accessing, or attempting to access, is to be understood as confining the offence to a time period from just before the opening of a clinic until just after it is closing or does the access zone apply 24 hours a day because, on a view, I suppose, one might attempt to access a facility that is closed.

MS WALKER: Indeed, that is correct, your Honour, one might. But also, of course, what one does not know is precisely where the buffer, if you like, of just before opening and just before closing might be drawn. There may be circumstances where a clinic will offer emergency after-hours services to its patients that might require a “3 in the morning” attendance by a doctor and a patient. There might be circumstances where a doctor works very late and the protestors could wait outside the clinic for that doctor who they know and have identified because of her regular attendance at the clinic – wait for her to leave at 11.00 pm at night, for example. So, we would say it is not confined by time.

It is important I think, perhaps also to bear in mind one of the reasons for the inclusion of this limitation - so it is a limitation on the offence – but one of the reasons for it is to ensure that communications inside the safe access zone but in a building, for example, such as a church or a university or any other private home, will not be captured because if you are inside a church giving a sermon or if you are inside a university lecture hall giving a lecture, unless you have taken some unusual measure to broadcast your speech outside that building, your communication will not be:

able to be seen or heard by a person accessing –

et cetera the premises, but you will be making the communication, communicating within the safe access zone. So, we say that is really a better way to understand the reason for the limitation.

It is to ensure that it is not a prohibition on communicating about abortions in a safe access zone because, of course, there are many places of business, perhaps of homes, perhaps of churches or other places of worship where people may wish to communicate about abortion and they are within a safe access zone but so long as they are within a building it is very unlikely that they would breach the offence provision.

So, the appellant has said it is not necessary that the communication, or the communicating, in fact be seen or be heard by a person and we would agree with that in the sense that the legislation has chosen the words “able to be seen or heard” again so that one does not have to call as a witness a person who can say, yes, I saw or heard that communication.

NETTLE J: And there need be nobody there, a perfectly blank zone of 150 metres and the section would still apply?

MS WALKER: Yes, it would, your Honour, although I think if nobody was there, it would be very difficult for a person to be charged because, firstly, one would expect that you would need a complaint for the police. If it was the police that happened to drive past and see it, then they would be there. In order for any kind of charge to be laid and, indeed, in order for evidence to - - -

GORDON J: Is that right, you actually need a complaint?

MS WALKER: Well, not necessarily. I am - - -

GORDON J: Sorry, I understood you to say you just needed a complaint.

MS WALKER: No, sorry, I apologise, your Honour, if I said that. I did not mean to say that. I said one may have a complaint and I may have used need, and I apologise. One may have a complaint; one may have the police who happen to be in attendance. One may - - -

GORDON J: Is not that what happened here in relation to the prosecution of Ms Clubb? There was not a complaint. The police were there observing her conduct.

MS WALKER: I believe the material might show that the police had been advised there was going to be a test breach in fact but, again, no complaint is necessary. I do agree with that. There could be a complaint but there could equally just be a police officer who happens to walk past and perhaps happens to walk past at 3.00 am, but without a person, whether it is a police officer or another person, a member of the public, it is difficult to see how any offence could be either charged or proved.

So, yes, your Honour, in a hypothetical sense, a person who waits outside the premises when no one is there with their signs, perhaps because they are waiting for people to come, would be committing an offence but at some point, in order to charge that person and prove the offence, I think you would need a - - -

NETTLE J: But if there is a policeman standing at 152 metres and he sees one of these people standing just inside the zone, yelling and chanting, and takes the view reasonably that that would character someone hypothetically entering or leaving, it is right to charge?

MS WALKER: I think that is a different question, your Honour, because there is of course a prosecutorial discretion in relation to any decision to charge.

NETTLE J: Of course, but put that aside, the elements of the offence would be made out if that were established?

MS WALKER: Yes, the elements would be made out, your Honour, and we would say that is consistent with the purpose because we do not know who is inside the premises, who might be about to come into the premises, who might be inside the premises and about to leave the premises. The purpose is to protect those people who are coming and going and that could occur at any particular time of day. It is not necessary, we say, to prove that there was in fact someone in the premises who might have been about to leave because the purpose of this is protective and preventative.

KIEFEL CJ: You say it is to create a safe passage at all times.

MS WALKER: Precisely, your Honour, thank you. The next phrase that I wanted to just mention is premises at which abortions are provided. The appellant has said, again in writing and orally, that that would include a private home. We think that said that it could include a private home because, if a woman has a medical abortion, she may take one or both of the pills that induce the medical abortion in her own home.

We would submit – and I think we have put this in our reply, so I probably do not need to go over it in detail - that a home is not a premises at which abortions are provided. The notion of providing abortions suggests a provider and a recipient of the service. So the suggestion that somehow private homes are included, we would say, is wrong. Can I turn then to “reasonably likely to cause anxiety or distress”?

NETTLE J: What about the example of the new one that is just about to open up, no business has yet been done and the protesters want to chant outside it that it should not open?

MS WALKER: That would be included, your Honour.

NETTLE J: That would be included?

MS WALKER: Yes, because you have a provider willing and able to provide the service of abortion and it does not matter whether on a particular day, or even ever, that service has yet been provided if the premises hold themselves out as ready and available to provide that service.

NETTLE J: Thank you.

GORDON J: Does your exclusion of the home in that concept extend to a pharmacy?

MS WALKER: A pharmacy is expressly excluded by the legislation. So I do not need to rely on precisely the same reasoning, although we would say a pharmacy would be excluded. But a pharmacy, in fact, is expressly excluded in section 185B(1):

premises at which abortions are provided does not include a pharmacy -

Perhaps one would have reached that conclusion in any event, but plainly Parliament turned its mind to that question.

If I might now come to “reasonably likely to cause anxiety or distress” and this, of course, was the subject, again, of some discussion yesterday. In relation to the phrase “reasonably likely”, which your Honours Chief Justice Kiefel and Justice Bell asked about, we would agree with the first respondent that that means “probable”, not “possible”. So I think to the extent the appellant says possibility is enough, we would say that is not correct.

But can I just refine that a little to say that “probable” does not mean “more likely than not”. That is consistent with the authorities in this Court about the meaning of the word “likely” or “probable”, noting of course that the question is one of statutory construction and so is context specific.

Your Honour Justice Bell referred to Boughey v The Queen. We have provided a copy of that case to the Court and I hope now to the other parties. Can I simply say about Boughey, as your Honours would no doubt be aware, it contains some discussion of the meaning of the word “likely” but can I, firstly, take your Honours to page 20 where, in the first full paragraph their Honours Justices Mason, Wilson and Deane say:

It is true that the meaning of the words “probable” and “likely” is liable to vary according to the context in which they are used –

And then, if your Honours go over the page to page 21, and at the bottom of the first not full paragraph, their Honours say:

In our view, the word “likely” is used in both [the sections in issue] with what we apprehend to be its ordinary meaning, namely, to convey the notion of a substantial – a “real and not remote” – chance regardless of whether it is less or more than 50 per cent –

Now, we would submit that that understanding of the word and that understanding of its ordinary meaning is appropriate here. Can I also just mention, perhaps without going to it, Darkan v The Queen, which we have also provided to the Court. That case concerned a discussion of the word “probable”. It, of course, was a Code case but, nonetheless, we think it offers some assistance. At paragraph 27 their Honours identified four potential meanings of the word “probable”. And your Honours will see those four potential meanings being, firstly:

(a) more probable than not; (b) a probability of less than 50/50, but more than a substantial or real and not remote possibility; (c) a substantial or real and not remote possibility; (d) a possibility which is “bare” in the sense that it is less than a substantial or real and not remote possibility.

Now, we offer that simply to illustrate to your Honours the variety of possible meanings that the words “probable” and “likely” can take. It does depend on their context. We say when used in the Public Health and Wellbeing Act in Part 9A it has the ordinary meaning identified in Boughey.

Now, I think your Honour Justice Bell might have referred to cases on post–conviction detention of sex offenders. We would say - and I will mention a couple in a moment – those cases are not of particular assistance in this context because they were not criminal statutes; they were post-conviction detention.

The legislation in issue, at least in Tillman v Attorney General for the State of New South Wales and R J E v Secretary to the Department of Justice, the Victorian case – the legislation in those cases spoke of the court being:

satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence.

And those additional words “to a high degree of probability” plainly impacted upon the understanding of “likely to commit a relevant offence” that was adopted. So I do not need to take the Court to those. We do acknowledge that there was a difference of opinion between Tillman and R J E but we say, in a sense, the Court can put those to one side; they are not of particular utility, we rely on Boughey.

Your Honour Justice Gageler asked a question yesterday about anxiety and distress, which was effectively to whom must anxiety or distress be reasonably likely to occur. I need to hand up to the Court a case which is Eatock v Bolt. Perhaps while that is being distributed I will make some preliminary remarks.

We say, your Honours, that when assessing about whom one must ask the question of reasonably likely to cause anxiety or distress one is guided by the context and language of the statute, and that context and language would lead to a conclusion that the persons are pregnant women seeking advice about an abortion or seeking an abortion – in a sense, seeking abortion services, one might say, which does not mean they are necessarily going to go in to have an abortion – and staff who work at a clinic that provides abortion. The effect of the communication - - -

GORDON J: Is that right? What about the support people? What about the partners of the people entering the premises? Is it limited to them?

MS WALKER: They are also protected. I will take your Honours to Eatock v Bolt in a moment to explain the way we have approached this. But if one thinks about the statutory context, we say that the effect of the communication cannot be abstracted from its factual context. That factual context includes in particular a purpose of protecting a distinctly vulnerable population or class.

Perhaps to put it slightly differently in answer to your Honour, there is a large class of persons who may be coming and going in and out of an abortion clinic, all of whom are, in a sense, protected by the legislation, but within that there are subclasses. We would say the two key subclasses are pregnant women seeking abortion services and staff who work regularly at the clinic.

Of course the legislation also protects others but, because one never has to identify a particular individual about whom one can say that person suffered anxiety or distress, we would say that the statutory test can be approached in the context of a prosecution by asking whether the vulnerable populations for whom this legislation is principally designed would be reasonably likely to experience anxiety or distress.

BELL J: Indeed, the vulnerable population might include the partner of a person seeking an abortion, or a close friend concerned for the wellbeing of someone doing so.

MS WALKER: That is also correct, your Honour, yes. Of course, the range of factual circumstances may vary. It may be in a particular case that one is able to call some evidence from a particular individual and identify the class to which that individual belongs and then ask a nonetheless objective question. But we would certainly say that one is not asking about a reasonable person in some abstracted sense. One is asking about the vulnerable populations that go in and out of these clinics.

GAGELER J: The whole of the population? There will be a distribution curve of sensitivity.

MS WALKER: That is absolutely right.

GAGELER J: Where along the curve do we take the notional individual?

MS WALKER: That is why, your Honour, we say that the focus is on the people that this is principally designed to affect. Of course there will be, for example, a tradesperson who might be coming to attend to the plumbing or someone who is making a delivery. There might be a man going to a clinic for a vasectomy who might have a very different reaction to the material. So the population that is coming in and out – am I misunderstanding your Honour’s question?

GAGELER J: You are, yes. Let us take the most vulnerable group: the pregnant women. Is it any pregnant woman or do you hypothesise a standard of sensitivity?

MS WALKER: I think one does, your Honour, postulate, if one likes, a reasonable pregnant woman who is seeking an abortion, for example, so it is not a test that could be necessarily satisfied by a person who is of peculiar fragility – to use my learned friend’s word. But it is, nonetheless, a test that recognises the vulnerability of the population and again that was mentioned in the second reading speech.

NETTLE J: It is Sir Harry Gibbs in Parkdale Custom Built Furniture.

MS WALKER: Precisely, your Honour. That is one of the issues that is addressed in Eatock v Bolt. If I, perhaps, might take the Court to that case because I think it is of some assistance to understand, in the context of other similar regimes, the way this exercise has been approached. I am sure your Honours are familiar with that case but it concerned section 18C of the Racial Discrimination Act which itself asked a question about reasonable provisions in the headnote:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the other people in the group.

So that, in a sense, does have a little more textually about the group. But, if your Honours go to page 318 of the report, his Honour Justice Bromberg there is dealing with the question of whether the articles in issue were reasonably likely to offend and he deals with the test, at paragraph 241, and says:

It is thus the risk of a person or one or more people within a particular group of people being offended, rather than the actuality of offence that is being assessed. Proof of actual offence for a particular person or group is neither required nor determinative -

We would say again that is the same here. The words “reasonably likely to cause distress or anxiety” are designed to ensure that one does not have to prove actual distress or anxiety. His Honour then goes on – you will see a heading “Whose reaction is to be assessed?” and he says, in paragraph 243:

Section 18C(1)(a) does not identify the persons or group of persons that should be considered as the possible victims -

and then goes on to mention Chief Justice Gibbs remarks in Parkdale where his Honour there said that:

“consideration must be given to the class of consumers likely to be affected by the conduct.” -

and the further observation:

that where the conduct in question is not directed to identified individuals but is instead directed at members of a class “in a general sense”, it becomes necessary to isolate by some criterion, a representative member of the class or group of people whose reactions are being assessed. In that sense, the enquiry is abstract and is made with respect to a hypothetical individual who, for the purpose of the assessment, is adopted as a representative member of the class.

Now, his Honour goes on - and I will not detain the Court for too long on the case, although we say it is of assistance in understanding the exercise - but the two points that come out I think are that one is looking for, to take Chief Justice Gibbs’ words, the class of people – I interpolate “people” rather than “consumers” – likely to be affected by the conduct. So, one is able to in a sense put to one side the tradesperson or the delivery person. That is not the class of people likely to be affected. They may be affected, but the likely people to be affected are the women seeking services and their support people and the staff.

KIEFEL CJ: But does not the statute itself in the purpose provision in section 185A identify the persons who are to be protected, and in paragraphs (a)(i) and (ii) it would extend to anyone accessing premises, including tradesmen, who might be vilified for - - -

MS WALKER: Well, they might be mistaken, I suppose, for a person who is going in for a service, for example. Your Honour is right. Of course, the section in its protective operation is designed to protect a very wide class of people, but the problem then is when asking where do we measure anxiety or distress, bearing in mind that - let us take, for example, a tradesperson who is reasonably robust and does not have any particular – in fact, might be anti-abortion and not at all distressed or anxious about the images, and on the other end of the spectrum, the pregnant woman going in for whom this plainly is going to be distressing.

One does have to identify, in my submission, a representative member of the class who is a hypothetical individual adopted as that representative member, and in undertaking that exercise one can focus on the vulnerable populations for whom this legislation was designed to protect.

BELL J: That would be particularly 185A(a)(i), the persons accessing the services provided, and in that regard the distinction you would draw is a person standing outside Parliament with a sign saying, “Every child has the right to life” might not be thought to cause a reasonable member of the public anxiety or distress, but a woman about to enter to have an abortion performed may be in a different circumstance.

MS WALKER: Precisely, your Honour. Thank you.

GORDON J: Can I just test that against 185C(b) which says that in dealing with the principles, the first deals with the public having access to health services, if we can put that one side for one moment and just deal with (b) which says:

the public, employees and other persons who need to access premises at which abortions are provided in the course of their duties and responsibilities –

That would seem to be broader in its reach. So you seek to read it down, do you?

MS WALKER: No, your Honour, I do not seek to read it down. All I seek to do is to say – so what I seek to do is to say the provision was enacted to protect a large group of people who may be entering or accessing the clinic for different reasons, in addition to people entering or exiting for the purposes of a service, and that is reflected in both 185A and section 185C, and I do not seek to read that down.

What I seek to do is to say, when one asks about section 185B(b) of the definition, about whether communicating was done in a manner likely to cause anxiety or distress and where the statute is silent about the class of persons against whom one should measure anxiety or distress, that one in a sense has to select a hypothetical representative member of the class and that that hypothetical representative member of the class for the purposes of, particularly where there has been no direct approach to an individual - just the holding up of a sign that everyone who goes in and out of the clinic can see, the hypothetical member of the class about whom one asks the question was that communication reasonably likely to cause anxiety or distress is more confined than the class of people protected by the statute. The hypothetical person is a member of the vulnerable population.

EDELMAN J: Does your submission then mean that there is a difference between the approach that is taken to 185B and the approach that was taken in Eatock v Bolt where you have a specified or a particular individual, so that under subparagraph (b) one still applies the abstracted approach, but if there is a particular individual who has been harassed, beset upon or intimidated, then it is the subjective approach?

MS WALKER: I think there are few things rolled up into your Honour’s question. Firstly, your Honour is right that in Eatock v Bolt there was, in some circumstances, a focus on a particular person and that is partly because of the statutory language. Secondly, your Honour’s reference to harassing, besetting and intimidating, we would say that, of course, falls into paragraph (a) of the definition and we would say the language there is different because it speaks of:

a person accessing . . . premises at which abortions are provided, besetting, harassing . . . or impeding that person by any means -

That linguistic difference means you do focus on a particular person, whereas paragraph (b) is just:

reasonably likely to cause distress or anxiety - - -

EDELMAN J: So read together, (a), (b), (c), (d) and (e) are still fulfilling all of the purposes in relation to the whole class. It is just (b) is, within that class, abstracted in relation to the most vulnerable group.

MS WALKER: That is right, your Honour, yes.

NETTLE J: Why should it be the most vulnerable, rather than the weighted average idea of Sir Harry Gibbs?

MS WALKER: The most vulnerable - I do not mean by that the most vulnerable individual in the group of women seeking abortions. I really use the term - - -

NETTLE J: The majority of entrants are going to be labile pregnant women. Sure there might be a delivery man or two, but the weighted average is someone who is highly fraught, emotional and susceptible. Is that not it?

MS WALKER: That is right, your Honour, and because the purpose of the legislation is in particular to protect those people because they are the targets of the communication, validly those are the principal group of persons to whom the anti-abortion protesters wish to target their message, for that reason it is appropriate to take that subgroup of persons who come in and out of the premises, going about their lawful business, and identify a hypothetical member of that subgroup, but not necessarily the most hypothetical member of that subgroup, but nonetheless identify that subgroup and observe that that subgroup does have a range of vulnerabilities associated with being pregnant and potentially seeking abortion services.

Now, as I have already said but I will say again for completeness, the statutory test is anxiety or distress. It is not mere discomfort as the appellant has sought to recast it. Can I also indicate that in relation to distress or anxiety, we adopt a submission put by the Fertility Control Clinic in its amicus submissions that there is no need to impose any additional or narrowing qualifier such as serious or substantial?

EDELMAN J: Sorry, just on the discomfort point; does that mean that the magistrate was in error?

MS WALKER: Not necessarily, your Honour, for two reasons. One is that the magistrate said she accepted that the publications were likely to cause at least discomfort so that can be understood to suggest she understood that they would cause more than discomfort. But, furthermore, there may be factual circumstances where discomfort is an apt description of the nature of the anxiety or distress, but having said that, if the Court were to conclude that the magistrate did misconstrue the statute, that, we submit, would be better dealt with in relation to ground 3 of the appellant’s grounds of appeal which have not been removed into this Court.

Can I further add that, as we have noted in our reply submissions, the appellant put to the magistrate that discomfort was one of the synonyms for anxiety or distress and, in that sense, the appellant put that proposition to the magistrate? Now, the magistrate accepted it, but on the basis of the appellant’s own submissions - which perhaps adds another wrinkle - but, in my submission, the question of whether the magistrate misconstrued the statute by referring to the conduct causing at least discomfort is not a question before this Court on this appeal.

GAGELER J: I think the magistrate’s methodology was to go to the dictionary and choose the lowest level of the number of similes that were given.

MS WALKER: Yes and no, your Honour. What the magistrate did was go to the material given to her by the appellant, as far as we can work out. That material included some dictionary material but it also included some material that is not dictionary material, it is synonyms of a thesaurus-type nature, not dictionary material. Now, we have not found any dictionary definition that in fact includes discomfort as part of the definition of anxiety or distress. So, the magistrate thought she was using a dictionary definition because she had been handed some material and told, here some dictionary definitions - - -

GAGELER J: But it was not even a dictionary.

MS WALKER: It was not a dictionary definition, your Honour. Can I take the Court to the dictionary definitions that are the current definitions from the Macquarie Dictionary of 2018 accessed online and I do this really to go back to my proposition that your Honours ought not to add any kind of narrowing qualifier such as “serious or substantial” because we say that the statutory terms already carry a level of seriousness or severity within them.

So, if your Honours look at “distress” for example, the very first definition is:

great pain, anxiety, or sorrow; acute suffering; affliction; trouble.

Then, of course, if one goes to anxiety, one gets:

distress or uneasiness of mind caused by apprehension of danger or misfortune.

We say that that level of seriousness is, in that sense, built into the statutory test and there is no need to add the word “serious” before that statutory test.

Now, the final aspect of the offences was that it occur within the safe access zone which, of course, then means within an area that is determined by being a radius of 150 metres from premises at which abortions are provided. Again, that, of course, involves a selection by the Parliament of a particular zone, but a limited zone, where the conduct, whether it is speech or other form of communicating, is prohibited. This is not a general prohibition on communicating about abortion; it is a prohibition about communicating about abortion within a safe access zone – and, of course, even then, only if it is able to be seen or heard by a person who is trying to go in or out of the premises.

GAGELER J: What about the last element that we have spent the last 10 minutes talking about, that it be reasonably likely to cause distress or anxiety? Is it not contemplated by this provision that there may be respectful and constrained protest activity within the 150 metre zone which will not be prohibited?

MS WALKER: If I could be a little pedantic, your Honour, we might quibble at protest activity. Is it anticipated by the provision that there can be communicating about abortions within the safe access zone that can be seen or heard by people coming and going but that does not meet the test of reasonably likely to cause anxiety or distress? Absolutely, yes, it does, but plainly on the face of the statute, we would say.

Can I finish in relation to the offence by making some very brief remarks about mens rea. On this we agree with the submissions put by the DPP in his written reply that the offence is not a strict liability offence, let alone an absolute liability offence. It does require mens rea for each of the elements - I might go through them in a moment – except for “reasonably likely to cause anxiety or distress”. That, we say, is plainly intended to be an objective question about which there is no need to demonstrate any intention, and we would say the purpose and effectiveness of the provision would be undermined if an intention was involved in relation to that aspect.

If we then go back: the accused must intend to communicate about abortion, or in relation to abortions. We agree that the accused must intend to do so in a manner able to be seen or heard by a person coming or going from the premises, and we agree that the accused has to intend, in the sense of know the facts and circumstances in relation to being within the 150 metre distance from the clinic. So, the offence is to be understood in the traditional way, we would say, by reference to He Kaw Teh, that the presumption that there is an intention associated with criminal offences is not displaced.

Can I deal briefly with the two textual matters that were relied upon, perhaps ironically, by the appellant to displace the presumption of intention. The first is the reference in paragraph (d) to intentionally recording. We would say that that reference is not strong enough to displace the ordinary presumption. It does not require a conclusion that, when it enacted the other subparagraphs, Parliament intended to exclude any element of intention.

Can I briefly mention that an argument of a similar kind was dealt with in He Kaw Teh. Your Honours, I think, have had the reference to that although, unfortunately, it has not ever been provided to the Court, but I will just give your Honours the page references. That concerns some offences around importation of drugs but there was an argument there about the fact that a particular subsection of the offence included the word “intentionally”. The question was: did that mean that a different subparagraph did not require “intention”? The Court rejected that in He Kaw Teh (1985) 157 CLR and the particular reference is at page 528, at about point 5 on the page.

The other textual indicator that the appellant sought to rely on was the words “without reasonable excuse” in two of the other paragraphs. Again, the same kind of argument was assessed in He Kaw Teh and was again rejected as a basis for concluding that intention was excluded. This is in the judgment, I should say, of Chief Justice Gibbs. His Honour dealt with it at page 529. So, we would say that, for those reasons, the offence in all of the elements, bar one, does involve an element of intention or, relevantly, perhaps, knowledge in terms of the nature of the offence.

Unless the Court has any further questions on the statutory construction issues, I was now going to turn to the next point on my oral outline - which I seem to have misplaced - but, that is to turn to the question of what is political communication?

The necessary starting point for dealing with that question is the constitutional basis for the implied freedom. I think I can deal with this reasonably briefly because I do not think there is really any dispute and, of course, your Honours would be familiar with it. The implied freedom is an implication that is necessary for the effective operation of the system of representative and responsible government and it is grounded in sections 7 and 24, sections 61 and 62 and section 128 of the Constitution.

The Court, of course, observed in Lange – which I possibly do not again need the Court to actually go to but is in volume 5 of the joint book of authorities at tab 31 at pages 566 to 567 of the report. Their Honours said:

To the extent that the requirement of freedom of communication is an implication drawn from ss 7, 24, 64, 128 and related sections of the Constitution, the implication can validly extend only so far as is necessary to give effect to these sections.

Your Honour Justice Gordon made some similar comments in Brown at paragraphs 312 to 313 of Brown.

Now, when one turns to political communication, your Honours, our submission is perhaps, almost tritely, not all communication is political communication. Your Honour Justice Gageler made that point in McCloy at paragraph 119. But, if that be true, it is then, of course, necessary to identify the boundaries of what is and is not political communication. We would say, at the outset, it is important to bear in mind that it has become common to refer to political communication.

Originally, it was communication about political and government matters. That has been reduced to a shorthand – political communication. But, we say, that shorthand must be understood not in some lay sense of what is political but to describe a subset of communications necessary for the functioning of the constitutional system of representative and responsible government. That point, we would say, was made by Justice McHugh in APLA at paragraph 68 of the judgment.

And again by way of, perhaps, an introduction before I go to some of the authorities, not all communication about a topic that is controversial is political communication. Not all communication about a topic that is regulated by one of the parliaments is political and not all communication about something that is capable of being regulated by government is political. And, from that, we say, not all communication in relation to abortion is political communication even though it may be accepted that abortion is a controversial topic.

Can I go to some of the cases where we say the Court has considered the dividing line and can I ask your Honours to go first to APLA which is in volume 2 of the joint book of authorities at tab 16, commencing at page 533. Now, at paragraph 27 on page 350 of the joint judgment of Chief Justice Gleeson and Justice Heydon, their Honours observe at paragraph 27 that the freedom comes from the relevant sections of the Constitution. They say:

The source of that requirement throws light on the content of the expression “freedom of communication about government or political matters” . . . The meaning of that expression is imprecise. Even so, we are concerned with a freedom that arises by necessary implication . . . The nature and extent of the freedom is governed by the necessity which requires it.

Can I also take your Honours to a passage from Justice McHugh’s judgment at paragraph 67. His Honour there says, in articulating his conclusion, that the advertisements sought to be published that were the subject of the APLA Case:

Nor are they communications concerning “political” matters in the sense referred to in Lange. That term admits of no ready definition.

And his Honour refers then to the remarks of Chief Justice Gleeson in Coleman v Power and says:

It may be impossible to formulate an exhaustive definition of the term “political” for the purpose of the constitutional freedom . . . But the methodology employed by the Court in Lange assists in determining whether a communication is “political” for the purposes of the Constitution.

We would adopt those remarks. I think it is right to say it is not a bright line test that one can identify. But we would further say that it is possible to articulate with greater precision the kinds of communications that fall within the implied freedom. Of course, in many of the cases your Honours have had to deal with, there has been no dispute about the proposition that the communication in issue was political and so your Honours have not had to engage on a very regular basis with this question, but certainly we would say both in Lange and in APLA there are indications about the kinds of communications with which the implied freedom is concerned.

Could I ask the Court to go to Lange which is in volume 5 of the joint book of authorities at tab 31 and could your Honours go to pages – commencing at page 560. Now, this is the page that your Honours will see, in the middle of the page, the Court refers back to sections 7 and 24 and related sections of the Constitution. Immediately above that, their Honours refer to the remarks of Justice Dawson in the Australian Capital Television Case where his Honour pointed out that:

legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election.

So that is an immediate indication, at least, of some of the kinds of communications that fall within the scope of the implied freedom.

KIEFEL CJ: Ms Solicitor, do I understand you to accept that there can be some communications about abortion directed to government, say, for policy change but your point is that the larger – we are talking in degrees here – communications with which this statute is concerned are not - so it is not targeting political communication? Is that your point?

MS WALKER: Thank you, your Honour, that is my point, and I am sorry, I should have explained that before I - - -

KIEFEL CJ: So you are not denying that there will not be a burden?

MS WALKER: No.

KIEFEL CJ: Because I think that is consistent with – the point you are really making is that it is not targeting political communication?

MS WALKER: That is absolutely right, your Honour. I should have prefaced this part of the submission by making that point, that the point of my submission is to demonstrate that this law does not single out political communication for regulation. It singles out communications about abortions. That can include political communication, but the universe of communications covered by the law is not a universe that is coterminous with the concept of political communication, as that shorthand is used to describe the implied freedom that is derived from the Constitution.

KIEFEL CJ: That might be a convenient time. The Court will adjourn.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

KIEFEL CJ: Yes, Ms Solicitor.

MS WALKER: Your Honours, before I continue could I just indicate that the first respondent in Clubb has asked me to convey to the Court that in light of the submissions put this morning about probable versus possible and Boughey - - -

KIEFEL CJ: No note is required. Thank you.

MS WALKER: Yes, thank you, your Honour. Now, if I could ask the Court to return to Lange at page 561 now of the reported judgment, on that page the Court makes a number of statements about the kinds of communication that are protected by the implied freedom. So, the first your Honours will see very close to the top of the page:

matters necessary to enable “the people” to make an informed choice –

and one can interpolate at an election and they do that in the context of saying that that can occur of course between the period of the holding of one and the calling of the next election and if it were confined to election periods the electors would be deprived of the greater part of the information necessary to make an effective choice at the election. So that is plainly central to the notion of the communication protected by the freedom:

information necessary to make an effective choice at the election.

In the next paragraph, their Honours refer to section 128 and refer in about the middle of that paragraph:

to information that might be relevant to the vote they –

the electors:

cast in a referendum . . . information concerning the conduct of the executive branch of government throughout the life of a federal Parliament . . . is not confined to Ministers and the public service. It includes the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature.

Then in the final paragraph they observe that:

the freedom . . . is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government –

Now, in a sense their Honours then provide a summary of that collection of kinds of communication at page 571 in the first full paragraph where they say - they are dealing here with the effect of the communication on the common law rules but they identify that:

the Constitution requires “the people” to be able to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of government - - -

GORDON J: Is it not the next paragraph as well, though, where they talk about the:

interest in disseminating and receiving information, opinions and arguments concerning government and political matters - - -

MS WALKER: Yes, your Honour, but the concept of “government and political matters” is a reference back to the earlier proposition.

GORDON J: I accept that.

MS WALKER: But, yes, it is about dissemination of opinion and argument about those government and political matters. But my focus is, perhaps, on the earlier step of what do we mean by government and political matters – or, my apologies – what, perhaps did the Court mean.

Now, we would adopt that approach from Lange and say that that is the appropriate way to understand the scope of the implied freedom. Can I also take the Court to APLA which is in volume 6 of the joint book of authorities at tab 16 and to the judgment of Justice Hayne? APLA is of interest, of course, because it was a case where the Court determined that the communication in issue was not political communication. Can I ask the Court to go to page 449 of the judgment, commencing at paragraph 376? His Honour Justice Hayne there observed:

The impugned regulations do not inhibit communications on government or political matters.

He then goes on to say this, at paragraph 377:

It may be accepted that, in recent years, questions associated with the nature and extent of liability for negligently caused personal injury and death have been the subject of political controversy and debate at all levels of government in Australia.

Then, at paragraph 378, he says:

No doubt it may also be accepted that some particular personal injury litigation will concern matters likely to generate political controversy.

He gives an example there of Graham Barclay Oysters which involved claims:

made against the State of New South Wales -

He says, then, at paragraph 379:

Accepting that there are these connections between political controversy or debate and some questions about personal injury litigation or some particular pieces of litigation does not mean that the impugned regulations effectively burden the freedom of communication about government or political matters whether in their terms, operation or effect.

He then describes the operation of the regulations and then at paragraph 380, over the page, he draws on a proposition from the judgment of Justice Brennan in Cunliffe v The Commonwealth, saying:

it is necessary to distinguish between laws controlling an activity and laws restricting political discussion about whether that activity should be controlled. The impugned regulations are of the former type, not the latter. They control an activity – lawyers’ advertising. They are directed at communications about events (actual or hypothetical) and about rights and remedies. They are not directed at communications about whether the happening of events should be regulated differently or whether available rights and remedies should be changed. These are reasons enough to conclude that the impugned regulations do not inhibit the freedom of communication about government or political matters.

His Honour Justice Gummow drew a similar distinction between communications about a law and communications that are regulated by the law at paragraphs 216 to 219. For example, in this case, if a person communicates about abortion by saying “I want law reform, I want abortion to be recriminalized” we would accept that would be political communication but a communication that says to an individual woman “I don’t think you should have an abortion today” that would not be political communication.

KIEFEL CJ: So the reference to protests in the extrinsic material should be, on your submissions, taken to refer to both protests which might be directed politically but also directed to the individual in relation to the conduct which they might undertake by way of abortion.

MS WALKER: That is right, your Honour. Now, of course the extrinsic material does use the term “protest” and it does that when describing the historical mischief but again it is the Minister, in a sense, describing in a shorthand way the range of conduct that I mentioned to the Court earlier, which ranges from an individual conversation which might not be a protest to a group of people with a sign, nonetheless the sign being directed to “Do not murder your foetus”, for example. But the language of protest is not of course used in the Victorian Act.

Can I also perhaps make by way of summary what we draw from those authorities. I think I have said this but I will repeat it. We say the authorities demonstrate that the fact a topic is controversial does not mean that speech about that topic necessarily falls within political communication in the constitutional sense and because we have become accustomed, at least those of us in practice, to using the phrase “political communication” to describe the content of the communications protected by the implied freedom, what I would seek to do, your Honours, from here on in is to refer to political communication in the constitutional sense.

Not every controversial topic or communication about a controversial topic is political communication in the constitutional sense and not every communication about a topic regulated by law is political communication in the constitutional sense. So something more is required, we say, and that is a connection with representative government, on this one aspect of the kinds of communications – a connection with representative government, namely voting and/or the conduct of the legislative branch or the candidates for election or their policies and so forth, or a connection with responsible government. So it is not confined to voting, we accept that, on the basis of the material I took your Honours to in Lange, the conduct of the executive branch broadly understood, or a connection with a referendum.

GAGELER J: All of it gets back to electoral choice in a system of representative and responsible government.

MS WALKER: Fundamentally, yes, that is, if you like, the basal underpinning but that electoral choice of course can involve discussion not only of the MPs or the candidates but also the executive branch. But you are right. Even the discussion of the activities of the executive branch fundamentally is connected back to the right of the people to choose their representatives and then the system of responsible government that operates to then authorise the Executive to act.

So I accept what your Honour is saying. It does fundamentally come back to voting in a sense, but the way one sees the fundamental principle manifested is such that it does protect communications that might seem, at least perhaps on their face, not to be connected with voting but are connected to the critique, for example, or a comment or an opinion on the executive branch.

KEANE J: Does this limitation, this more focused understanding of political communication - are you putting forward criteria that involve both content – that is, are you talking about the law or are you just talking about the conduct? Does it also involve some notion of the extent of the audience?

MS WALKER: Not necessarily, your Honour. I would not go that far because I think it would be right to accept that a person could have an individual communication with another person with an intention to influence that person’s vote, and that that would be political communication.

KEANE J: And particularly if it were apt to occur in a serial way.

MS WALKER: Yes.

KEANE J: A series of conversations with a number of people.

MS WALKER: That is right, your Honour. We would not say that the individualised nature of a communication would take it outside of the scope of political communication. But what we say in the end is that you need a sufficient nexus between the communication and the system of responsible and representative government for which the Constitution provides. Then of course what we say is, of course some communications, perhaps many communications about abortion are of that quality, but not all are of that quality.

In our written submissions we have given the example of a doctor having a consultation with a patient about the procedure that the patient is about to have, namely, an abortion. We would say that is a communication about abortion but, absent some particular unusual feature of such a consultation, it will not be political communication.

Of course it is theoretically possible that in the course of that kind of consultation a doctor might seek to persuade someone how to vote. One would think that is unlikely and perhaps departing from the ethics of the doctor, but as a general proposition a doctor informing a person about the nature of the medical procedure they are about to have would not be political communication.

Perhaps to give a different example from a different field, health warnings on tobacco packets are controversial – at least were. They are regulated. To discuss reform of the law that requires health warnings on tobacco packets would be political communication. But the publication of the warnings themselves, we would say, is not political communication.

Or to take a final example, safe injecting rooms in Victoria are politically controversial at present. Discussing whether, and expressing views about whether safe injecting rooms should be lawful or not is political communication. Seeing a person on the street who is plainly about to inject themselves with a narcotic substance and encouraging that person to go to an injecting room and inject where they can do so safely and out of the public sphere is not political communication.

So those I think illustrate the point that we are trying to make about communications about abortion. Yes, of course, some such communications will be political but not all. In particular, the communications about which this law is most directly concerned are those where one or more people seek to “persuade”, to use a neutral term, a woman not to have a particular medical procedure.

Now, that is a communication about a controversial topic in the sense that it is about abortion, but it is not about reform of the law. It is not in terms directed to how the woman might vote. It is certainly not connected to any particular election. It is not directed to the public at large. It is not directed to the woman as a voter. It does not appear at all intended to influence her voting choices. It is intended to influence her choice to have an abortion on that particular day and plainly we would say it is not received by the woman as a communication about how she might vote. It is received as a communication about her personal medical decision and of course in order to fall within the statute it is one that would be reasonably likely to cause anxiety or distress.

We say, your Honours, that communications of this kind lack a sufficient nexus with the constitutional system of responsible and representative government. They are not properly described as necessary for a free and informed choice to be made by electors. Then of course the point of the submission, as your Honour Chief Justice Kiefel drew from me earlier, is that when one looks at the offence provision encapsulated by paragraph (b) it does not single out political communication.

Having said all of that of course we did accept, and do accept, that the law is capable of capturing and thus burdening political communication, and we have said that in our written submissions. We understand that that effectively one does ask that question about the statute by reason at least of the joint judgment in Brown at paragraph 90.

We have said in writing that we do not accept that Ms Clubb’s speech on this occasion was political communication in the constitutional sense, but we do say this Court should still decide the question of validity. Now, we accept the proposition that your Honour Justice Gageler made in Tajjour where your Honour observed at paragraph 176 – and this is in the joint book of authorities at volume 7, tab 45 – your Honour observed that:

It may be appropriate in a future case to consider severance as a threshold question. Where it is apparent that an impugned provision would be severable if and to the extent the provision might burden communication on political or governmental matter in a manner which infringes the implied freedom, there is a real question as to whether arguments about whether or not such a burden is justified are appropriate to be entertained absent demonstration that some right, duty or liability in issue turns on the validity of the provision in its application to burden a particular communication or category of communications on governmental or political matter.

Now, your Honour gave some, what we would describe as prudential reasons underpinning this suggestion, at paragraph 175. Your Honour Justice Gageler in Tajjour was discerning some problems of constitutional adjudication in a factual vacuum where your Honour observed that:

The three special cases before the Court recorded no agreement or allegation of any communication on any governmental or political matter. As already noted, no party or intervener had any interest in grappling with the differential impact of the section on communication on governmental or political matter depending on the purpose of the association . . . Each party chose to present a highly abstracted all-or-nothing argument for or against invalidity. The competing arguments for the most part failed to engage because they were based on differing assumptions about how s 93X operate in practice. Severance was relied on by New South Wales only as a fall-back.

Now, we would accept that those are all relevant matters that might mean that in some cases it is appropriate to, if one likes, jump to the question of severance or reading down and conclude that one does not need to undertake the constitutional analysis. But we would say, your Honours, that that is not this case.

Here, there are concrete facts. There are facts found by the magistrate. We had certainly understood from Ms Clubb’s written submissions that she asserted that her communication was political communication. That was perhaps by inference, but that is how we had understood the arguments that were put that communication intended to change a woman’s mind about abortion is political. That was the basis of the written submissions.

Now, yesterday your Honour Justice Gageler asked my learned friend Mr Reynolds does Ms Clubb say her communication was political and he declined to answer your Honour. So we are not quite sure whether the parties have joined issue on that or not, but we had understood the parties to have joined issue on that question.

Your Honours have the magistrate’s reasons. The one thing your Honours do not have in the core appeal book are the two pamphlets that Ms Clubb handed to the people concerned. Those pamphlets were before the magistrate. They were put before this Court by Ms Clubb on her removal application. So in that sense they have been put before this Court but they were not included in the core appeal book. They can be handed up and provided to the Court now if that is something that the Court would be assisted by.

KIEFEL CJ: Is there an objection to that process, Mr Reynolds? Yes, yes.

BELL J: Do we understand the pamphlets were before the magistrate?

MS WALKER: They were, your Honour, yes.

EDELMAN J: But the question before one could turn to whether or not these communications could be characterised as being political in the constitutional sense would be, in relation to this question, whether severance is even possible, is it not?

MS WALKER: Precisely, your Honour.

EDELMAN J: As I understand, the effect of your submission is really that it is not.

MS WALKER: It might be. I would not say to the Court that the Court cannot but, in my submission, there are very good reasons why it would not be appropriate in this case to read down section 185D of the Act by, in effect, adding the words “except insofar as the communication is a communication about governmental or political matters”. Could I develop that point, unless your Honour wants immediately to come back to me.

KIEFEL CJ: Can I say, but to do that would you not have to determine the question of whether or not the communication is impermissible before you looked at severance? It seems to rather defeat the purpose.

MS WALKER: I think, your Honour, logically it would be possible to undertake the exercise but we say it is not appropriate in this case.

KIEFEL CJ: I will let you come to it in your own argument.

MS WALKER: Thank you, your Honour. We say, your Honours, that a majority of this Court has never read down a statutory provision in that way, by saying that the statute is valid except insofar as it applies to political communication. Justice McHugh took that approach in Coleman v Power but he was the only Judge to do so. Your Honour Justice Gageler I think can properly be said to have done that in Tajjour, but a majority of the Court has never done that.

In Coleman v Power, for some of the other Judges who considered that there could be a problem of validity, the reading down was not to read down by excluding political communication; it was to read down by, in effect, ramping up the seriousness of the offensive language or insulting language. Likewise in Monis, the approach was not to construe the statutory provision to exclude political communication; it was to understand the scope of the operation as affecting only more serious communications.

So we would say that there will be circumstances where a constitutional validity argument could lead to a reading down of a statute where there is some ability, if you like, to tighten the effect of the statute by adding a signifier of severity, for example. I have already explained to the Court why we say that should not happen here. But we do say that there are difficulties in the Court simply jumping ahead to say, we could read this down to exclude political communication, therefore Ms Clubb cannot make this argument.

KIEFEL CJ: Does it not rather deny the application of Lange in any event, this approach? I think Justice Hayne said something to that effect. I have just forgotten in which case.

MS WALKER: As I say to your Honour, I think it is logically possible but I think it is not the appropriate approach because, if you like, it assumes a validity problem. It says, the answer to the validity problem is to read it down, and then says, if we read it down in that way you, the moving party, still fall within the read-down statute, therefore you cannot properly require or ask the Court to go through the constitutional analysis that we have assumed.

As I say, I think that is logically possible in some cases, and it may be appropriate in cases where there truly is no factual matrix on which the Court could properly make an assessment of constitutional validity, and that is what I understood your Honour Justice Gageler to be concerned about in Tajjour and that might well provide a basis for that kind of approach. But, in my submission, that is not this case. But, in addition, there is a problem that was identified by the joint judgment in Monis, volume 6 of the joint bundle at tab 36 at paragraph 335, where your Honours Justice Crennan and your Honours Justices Kiefel and Bell – as your Honour Chief Justice Kiefel then was – your Honours there noted, in a sense, the difficulty of reading down a provision simply so as:

to excise political communication –

And, at paragraph 335, your Honour said:

It might be thought a simple matter to excise political communication from the purview of –

the relevant section:

Such an approach may underestimate the difficulty in determining when a communication is said to qualify as “political”. This points to the need for statutory context and direction and here s 471.12 provides none. That is because the section is intended to apply to communications which are offensive to the requisite degree, regardless of subject matter. The legislative history and framework support a construction which applies a degree of offensiveness to the quality of the communication which is intended to be prohibited; they do not support the creation of an exception by reference to its subject matter.

EDELMAN J: That is really why I asked you whether, on your submission, severance could ever even be possible because, as I understand your submission – at least about the unity of paragraphs (a), (b), (c), (d) and so on – it would cut against the grain of that unity to carve out political communications.

MS WALKER: Yes, your Honour. We would say, plainly, the section is intended, much like the section in issue in Monis, to operate according to the criteria associated with the communication – in particular, anxiety and distress – whether or not that is political. So, yes, your Honour, I would agree with that. I am, perhaps, retaining – there is, of course, as your Honours know, both a principal and a statutory provision requiring the statutes to be read so far as is possible so as to be valid and that was the provision that Justice Gageler relied upon in Tajjour.

GAGELER J: It is not apparent to me that the passage you have taken us to in Monis is directed to constitutional severance.

MS WALKER: Perhaps not, your Honour. But, the point that I sought to extract from it is simply a recognition that excising political communication from the purview of the offence – which, as I understand it, would have to be the consequence of constitutional severance – and, perhaps, I am misunderstanding your Honour’s judgment in Tajjour but that is how I understood the proposition, but that is a difficult exercise. I do not understand their Honours in that case as saying it is an impossible exercise. I simply point to it as a problem.

GAGELER J: But my question was whether the discussion is directed to that exercise at all.

MS WALKER: No, your Honour, but it is directed to the question of whether it is feasible to excise political communication from the purview of the statutory offence.

GAGELER J: Feasible in what sense?

MS WALKER: Well, really what their Honours have identified is that in particular, and I think consistently perhaps with the fact that I have put submissions about the boundaries of political communication being imprecise, their Honours say that to excise political communication from the purview of the section may underestimate the difficulty in determining when a communication is said to qualify as political.

So, if the offence were to be understood as applying to communications about abortion that are reasonably likely to cause anxiety and distress but are not communications about government and political matters, in my submission, that would introduce a degree of uncertainty into a criminal law that is undesirable both from the standpoint of the accused person and the standpoint of the regulator or the police officer who needs to enforce the law.

GORDON J: Is not then the problem you have inquire what was in the mind of the person making the speech?

MS WALKER: Well, you very well might.

NETTLE J: Madam Solicitor, does not 334 make plain that they are indeed in 335 talking about reading down in order to avoid unconstitutionality? It says so.

MS WALKER: Yes. I mean, certainly it is done by reference to Lange and principles of construction referred to above.

NETTLE J: And without unduly burdening political communication.

MS WALKER: That is right. It is plainly directed, your Honour, to the difficulty of reading down by reference - - -

NETTLE J: To achieve constitutionality if it ranges too broadly.

MS WALKER: By reference to political communication, yes. So, your Honours, really - perhaps also just to mark where I am at in the oral outline - in the context of effective burden, which is point 5 on the outline, I have just I think now completed the submission as to why the Court should in effect reject the Commonwealth’s submission that the Court need not decide the validity of the Victorian proscription because your Honours could simply jump to a reading down or severance exercise based on an excision of political communication from the operation of the section.

Can I then turn, your Honours, to the nature of the burden and, as your Honours would appreciate from the written submissions, we say that the burden is a confined and tailored burden; insofar as we have accepted that it can burden political communication, that burden is limited. It is limited, first, by reference to the quality of the communications, namely, communications likely to cause anxiety or distress.

Secondly, it captures only communications within the safe access zone and other communications, of course, can occur outside the safe access zone. Now, that is particularly relevant because, insofar as the appellant wants to target a particular woman who might be entering or leaving the clinic, it is true that there is a significant burden on her ability to single out and target women or staff entering or leaving the clinic.

But insofar as she wants to communicate a political message or a hypothetical person – perhaps I should withdraw her communicating a political message – wanted to communicate a political message about abortion, they can do that elsewhere.

GORDON J: They could do it just outside the zone.

MS WALKER: Absolutely, your Honour. They precisely can do it just outside the zone.

GORDON J: At 151 metres radius away.

MS WALKER: That is right.

GORDON J: So long as it was lawful.

MS WALKER: Yes, if it was otherwise lawful. Absolutely, your Honour. They can do it just outside the zone. They can do it outside Parliament. They can take out ads on the television - - -

GORDON J: You do not need to go that far. In determining the burden on political communication, they could do it at 151 metres across the road.

MS WALKER: Yes, that is right. It also of course, as I have indicated, only captures communications able to be seen or heard by persons going in and out of the premises. So, as I have said, it does not capture communications within buildings that cannot be seen or heard by people who are not going in or out of the premises.

GORDON J: And it permits further communication within the zone, so long as it does not cause anxiety or distress.

MS WALKER: That is correct, your Honour. So long as it is not reasonably likely to cause it. Yes, that is precisely right. And so we say the burden on political communication, as a practical matter, not only is it not targeting political communication; the burden insofar as it does capture and pick up political communication is insubstantial.

EDELMAN J: Does the notion of targeting, which I realise you are picking up from the authorities, go any further than focusing upon purpose? In other words, does it say anything more than the purpose of the legislation is not connected to political communication as opposed to its possible effect?

MS WALKER: I would say it is both, your Honour, because not only is it not the purpose but it is also not the effect.

EDELMAN J: Well, you have accepted that it could be the effect in some circumstances.

MS WALKER: Not to target - what I have submitted, your Honour, is that it targets communication about abortion but it does not target in the sense of operating only on political communication, if that clarifies the matter.

BELL J: But it is its purpose to catch political communication.

MS WALKER: Yes, yes. That is also correct, your Honour, which is part of the reason why it would be inappropriate to read it down to exclude - - -

BELL J: To read it down, precisely.

KEANE J: But is it not also relevant that the freedom itself, as it has been expounded in our jurisprudence, is not a guarantee of a captive audience?

MS WALKER: Absolutely right, your Honour, and that is certainly a point that I was about to come to. We would say that not only is that not present in the jurisprudence, we would rely on what Justice Nettle said in Brown that:

The implied freedom of political communication is a freedom to communicate ideas to those who are willing to listen, not a right to force an unwanted message on those who do not wish to hear it.

That is paragraph [275] of Brown and - - -

KEANE J: That is the effect of the safe access zone, is it not, really? It ensures that certain people going about their lawful occasions are not made a captive audience.

MS WALKER: Precisely, your Honour, because if a woman is seeking to enter the clinic and the protestors are there, she cannot both enter the clinic and avoid them so she truly is captive. So, yes, I would adopt what your Honour is saying.

KEANE J: To the extent that it is said that on-site protests are an especially effective form of communication, that does not answer the point that the freedom is not about guaranteeing a captive audience.

MS WALKER: Yes, I would again agree with that proposition, your Honour. It says really that the proposition that the communications are most effective at on site, if one uses that phrase, we say is on no view determinative. We also, of course, say you have to go behind that and say, most effective to do what and really the claim, in my submission, is they are most effective if we want to target a woman who is seeking an abortion. There is no evidence to suggest that communications about abortion that are on site are the most effective way to communicate a political message.

I think some members of the Court pointed that out yesterday in oral argument that quite distinctively Brown involved evidence about the importance of on-site protests for environmental law reform. There is no factual matrix of that kind here. There is simply nothing to suggest that on-site protests at abortion clinics are the most effective way to achieve law reform around the question of abortion.

GAGELER J: When we read the words “protest” or “protester” in the second reading speech and in the affidavits to which you have taken us, that word is used in a different sense from the protesters in Brown, is it?

MS WALKER: Yes, it is, your Honour. I think it is fair to say that the lay people who have described the conduct have used the words “protest” or “protester” to capture a range of different kinds of person engaged in a range of different kinds of behaviour. So they are not just talking about a group of people who have presented to agitate about a political issue or even just a group of people - - -

GORDON J: It is about the subject matter, is it not? All they are talking about is protesting, not about something which is a political communication. They are protesting about, in this case, a group of people who hold a very strong view that abortions are improper. They are protesting about that in that sense. Your point is that in most of the situations that is not political communication for the purposes of the way in which you read it.

MS WALKER: That is right, your Honour, but we would also say that the word “protest” is used in the extrinsic materials and the evidence to capture not what one might think of as a traditional protest of the kind in issue in Brown.

GAGELER J: Well, what is traditional? The affidavit evidence tells us it has been going on for at least 25 years Australia-wide.

MS WALKER: When I say a traditional protest, I really mean in nature of a public demonstration a group of people gathering and speaking or displaying signs about an issue and thinking – for the purposes of the Victorian statute, it really does not matter but it would be possible to describe, for example, Ms Clubb’s activity of simply approaching a woman on the street, a couple, engaging them in conversation and attempting to hand them a pamphlet.

In some sense, it is possible to say that is not a protest. In another sense, one might say it is a protest, she is protesting against that particular woman’s choice to have an abortion.

KIEFEL CJ: More generally it is protesting against the availability and undertaking of abortions, is it not?

MS WALKER: In my submission, that is not an apt way to describe that individualised communication.

KIEFEL CJ: You are going to undertake an abortion.

MS WALKER: Yes, but it is not the undertaking of abortions generally; it is targeted to this individual person with whom I am communicating, you should not have an abortion.

KEANE J: But if you say, do not have an abortion, surely you are protesting about abortions.

MS WALKER: You might be, your Honours.

EDELMAN J: The pamphlets you have handed out, for example, are very generalised.

MS WALKER: They are generalised. The particular handing of them to the individual was individualised but, in the end, for the purposes of the Victorian statute it actually does not matter because we do not use the term “protest”. So, in a sense, we do not need to pass what it was the Minister meant when she spoke of protest and what it was Dr Allanson meant when she spoke of protest.

NETTLE J: It is obvious what they meant. They meant all the activities that occurred outside the clinic.

MS WALKER: Exactly, your Honour, and it is not necessary to decide whether they were right to use the term protest because the statutory test was that a communication about abortion, in a manner, et cetera, reasonably likely to cause anxiety or distress. So I fear we are being distracted a little by the use of the term “protest” in the extrinsic materials and the evidence when the statute does not use that term.

Now, can I also say, your Honours, that the Attorney-General for Victoria contends that the law does not discriminate based on viewpoint. It is capable of capturing both pro and anti-abortion communications if they meet the statutory test. It might be that it is more likely that people who oppose abortion are going to engage in the kind of communication caught by the statutory test, but the statutory test itself does not discriminate on the basis of viewpoint.

We have pointed in our written reply at paragraph 10 to the proposition that as a matter of fact there have been pro-abortion protestors outside the fertility control clinic in East Melbourne. So it is plainly possible for a person who supports the ability of a woman to obtain an abortion to nonetheless engage in a communication in the safe access zone that might reasonably be likely to cause anxiety or distress. So we say that the provision is viewpoint-neutral.

We also note, just to perhaps distinguish this case from Brown, should that be necessary, that of course liability is also not made contingent on any discretion other than of course the ordinary prosecutorial discretion that I mentioned in answer to your Honour Justice Nettle. There is simply a criminal offence with elements and intention aspects attaching to them.

Can I say in closing on the nature of the burden, we would also say that, even if your Honours were to conclude that the law targets political communication or that the law targets anti-abortion communication, it is nonetheless valid for reasons I will develop, but principally because we would say it is reasonably appropriate and adapted to achieve the legitimate that has already been identified.

So the analysis that I am now about to come to, which does turn now really to the justification stage, we say is properly understood as following from an understanding of the nature of the burden as being insubstantial and non-discriminatory but we would say, even if your Honours were against me on those propositions, nonetheless the justification analysis produces the same result, which is that the restriction on political communication is valid.

The first question, of course, is whether the end is legitimate. I am not sure really that I need to say very much about that at all. We would say there is a strong analogy with Levy where the regulations there directed to ensuring a greater degree of safety for persons in hunting areas, that that was a legitimate end. The end has been, as we have heard, expressly identified by the Parliament in section 185A as directed to the safety, wellbeing, privacy and dignity of the persons who come and go from an abortion clinic and we would say plainly that is a legitimate end.

KIEFEL CJ: What about the public health aspect of it? Do you say that that is encompassed in what you have just said?

MS WALKER: Yes, I do, your Honour. I am really using that as a little bit of a shorthand to summarise.

KIEFEL CJ: The access point, yes.

MS WALKER: Of course, as your Honours would appreciate, the purpose does not itself need to be the maintenance or enhancement of the system of responsible and representative government. Of course, too, although the prohibition does operate by reference to communication, as your Honour Justice Gordon observed in Brown, at paragraph 416, where conduct has effects beyond the communication of ideas or information, there are likely to be legitimate reasons to regulate that conduct.

That is precisely what this law is targeted at. It is not simply communication about abortion; it is communication about abortion that has effects beyond merely the communication of ideas and information, that is, communication reasonably likely to cause anxiety or distress and, of course, the attendant harms that then potentially flow from that anxiety and distress.

We have addressed the legitimate end question further in our written submissions. I do not think I need to say more about that, unless your Honours have any questions. Could I then go to the question of – I am now up to item 7 on the written outline. My apologies - can I step back for a moment to say that not only do we say that the end is legitimate; we say it is compelling. That may become relevant at later stages of the analysis. Again, we have said that in writing.

Now, item 7 is the point where we put to the Court that having ascertained that the law was enacted for a legitimate, indeed compelling, end, it is then necessary to ask a further question that emerges from the Lange test: whether the law is reasonably appropriate and adapted to that end. We accept that in some cases answering that question can be assisted by undertaking the three-part proportionality analysis articulated by a majority of this Court in both McCloy and in Brown. But we also say that the majorities in both those cases, and other Justices, have recognised that it is not always necessary to undertake that stepped proportionality analysis, that it is a tool to assist in answering the Lange question but it is not itself the constitutional test.

KIEFEL CJ: I think it is right to say that in McCloy it was said that the three-stepped approach - it was not suggested that that was the only criterion. Although the Court has been waiting to hear what other criterion there might be, no one has usefully put anything forward yet.

MS WALKER: I will take that as a challenge.

KIEFEL CJ: But we remain all ears. It has clearly been said by the majority in both those cases, and consistently with Lange, that justification is required.

MS WALKER: Yes, and we certainly do not cavil with the proposition that justification is required.

KIEFEL CJ: But your argument really assumes that there is a compelling justification and that is the purpose of the proportionality testing, to determine that question: is there a justification which is sufficient and compelling? I mean, the point of the testing is to expose some reasoning, instead of stating a conclusion or assuming an outcome because it looks like, on one view, that the burden is slight and there is a substantial justification. That is not to engage in a process of reasoning; that is to state two propositions and a conclusion.

MS WALKER: Can I perhaps just take up your Honour’s challenge and attempt to articulate why it is we say it is not necessary in this case to undertake the proportionality testing steps. We entirely accept that they can be of utility in some cases. Your Honour has put to me that the point of the three steps in proportionality testing is directed to whether there is a compelling justification.

Now, I want to cavil with that slightly, your Honour, in this sense. The first question that I have just been addressing the Court on is whether there is a legitimate end and in that phase we say the Court can assess not only whether the end is legitimate but whether it is compelling because it, in a sense, naturally falls in the analysis of the purpose and an assessment of whether it is legitimate to also ask is it not only legitimate but compelling?

EDELMAN J: When would a purpose that does not involve impinging upon or targeting political communication not be a compelling purpose? When would a court ever say well, the purpose that Parliament has chosen to pursue here is not compelling?

MS WALKER: I may have to come back to your Honour on coming up with an example, but we do say, perhaps as a matter of principle, that the - - -

EDELMAN J: You are not saying, for example, that an Act that is concerned with dividing fences, for example, is one which a court would say well, that does not have a compelling purpose because it is more mundane.

MS WALKER: In my submission, the jurisprudence around – and I am not confining myself at this point to the jurisprudence of this Court – the balancing exercise that is the third step of the McCloy proportionality testing does invite an assessment of, if one likes, the relative importance of the purpose being pursued by the Parliament and it is at that stage permissible for the Court to conclude that a law, for example, directed to the physical safety of persons is more compelling than a law directed to, for example, protecting the reputation of persons.

EDELMAN J: Is that exercise undertaken in the abstract or is that exercise undertaken by reference to what Parliament itself, for example, in the second reading speech has said about what it considers to be the importance of the purpose?

MS WALKER: We would say that it would be appropriate to do it by reference to what the Parliament has said, your Honour. That is by way then of saying on the existing jurisprudence – perhaps, I can just pause for a moment.

GAGELER J: What jurisprudence are you speaking of apart from our jurisprudence?

MS WALKER: When one comes to the balancing phase, there is very little authority in this Court where this Court has had to grapple with precisely the exercise that is to be undertaken. However, there are some statements, both in the joint judgment in McCloy and, of course, in your Honour Justice Nettle’s judgment in Brown, because your Honour Justice Nettle did undertake that exercise. So, that is the local jurisprudence. It is quite limited.

There is other jurisprudence, which I am not proposing to take the Court to, but comparative jurisprudence about the way proportionality operates in other jurisdictions and, also, the work of Professor Barak who, of course, has been influential in the development of some of the Australian jurisprudence – at least has been referred to in the judgments in, particularly, McCloy and Brown.

There are some extracts from Professor Barak’s book in the bundle of authorities. But, again, I was not really proposing to take the Court to them but to make the conceptual point that it is permissible for this Court to evaluate the purpose that the law seeks to achieve and to evaluate whether it is compelling or not. In my submission, that is also consistent with the way your Honour Justice Gageler has approached the implied freedom, albeit not through the lens of proportionality testing, and likewise consistent with the way your Honour Justice Gordon has approached the question.

So, my submission is this. If it is permissible for the Court, and, indeed, at the balancing phase, necessary for the Court to assess whether a particular legislative purpose is compelling, then it is also permissible for the Court to undertake that step earlier, that assessment earlier, when it is considering is the end even legitimate.

It is, we would say, in this case, appropriate when making that assessment to also, in our submission, conclude that the end sought to be achieved by the legislature is compelling, that the protection of the physical safety in the terms of medical procedures, the protection of the psychological safety in terms of the effect on women, the protection of women’s general wellbeing, the protection of their privacy and the protection of their dignity – it is possible to say that those purposes are compelling.

What that means is they will justify even a relatively substantial burden on the freedom but in this case, having also already identified the nature of the burden – and if your Honours are persuaded that it is insubstantial then we say it is not necessary to ask is the law suitable, are there other alternatives that are less burdensome, and so forth?

KIEFEL CJ: Why is that, because even if the burden is slight, why should not the law be justified on the basis that - for instance, if it was open to say there was an obvious simple alternative measure which could have taken away even the slight burden, given the importance of the freedom, why should not a law have to be assessed on that basis? I mean, the necessity test is at least one of the tests that is well known in the jurisprudence and generally accepted because it is such an obvious test of rationality of how a law explains itself.

MS WALKER: Well, your Honour, we would say that when – if I could assume for the purposes of answering your Honour’s question that in the process of analysis one has demonstrated an insubstantial burden and a compelling justification then we would say that one is in the realm where it is open to Parliament to make the selection of the method by which it achieves that compelling justification and it is not in that circumstance appropriate for the Court to undertake a sort of second-guessing of the parliamentary choice that has been made in relation to that compelling justification.

KIEFEL CJ: I think if you were in what Professor Barak calls the sphere of legislative choice, I think you usually have to pass through necessity to get there.

MS WALKER: On Professor Barak’s analysis, I accept your Honour is correct, but we are not advocating Professor Barak’s analysis. We are advocating - - -

KIEFEL CJ: You are saying that the burden is slight, the purposes are profound and important; that is enough?

MS WALKER: I would add – and we say this in our written submissions – a rational connection would then suffice to demonstrate validity and you do not go to other alternatives and you do not go to balancing.

BELL J: You are not concerned with determining in that sense - with exposing your reasoning, in any event, for a conclusion that the admitted burden is not an undue burden? There is no need for the Court to explain to the party that loses the argument why the burden is not undue?

MS WALKER: I would say, your Honour, that the Court in concluding that the burden was insubstantial and the legislative purpose was compelling, that that is the explanation and that is where the explanation will emerge in the course of more detailed set of reasons than I have captured in that shorthand way. But that is where it would be revealed that the burden is not undue because of that analysis.

BELL J: So one puts to one side in this instance the submissions that are made – and I am not addressing the merits of them, but submissions are made here to suggest that there are obvious and compelling alternatives that do not trench on the freedom at all and one simply does not deal with those arguments on this analysis.

MS WALKER: On this analysis, that is right, your Honour.

NETTLE J: Why would you not? Why would you not say well, here is an apparent compelling purpose but I can look now in the necessity phase and see, despite all that, there are compelling alternatives which result in a lesser burden which leads me to conclude that the true purpose was not the apparent purpose but something else, contrary to the implied freedom?

MS WALKER: My submission, your Honour, is that once one has concluded the compelling purpose and the insubstantial burden, it is then in the realm of legislative choice to determine the way in which the legislative purpose should be achieved.

NETTLE J: Even if, ex hypothesi, there were upon examination found to be alternative compelling alternatives resulting in a lesser freedom – no restriction upon the freedom?

MS WALKER: Well, on my analysis, of course, your Honour would not be asking that question.

NETTLE J: Well, yours is only apparent because you have not yet examined the - - -

MS WALKER: That is right, your Honour. But yes, the answer is that the legislature must be left at some point with a choice between the various means that it chooses to achieve the compelling purpose and if the burden is insubstantial and the purpose is compelling then the area of legislature freedom is greater.

EDELMAN J: When are we in this category of compelling purpose? Do we look, for example, to extra legislative criteria like moral criteria and, if so, by what techniques do we look to those other than reason, or do we look to what Parliament itself has said? Do we look to how fast the legislation was passed, the social circumstances in which it was passed, the need for legislative change and so on?

MS WALKER: One, I think, starts with the legislative record. I would accept that the Court would not be bound - if the legislature effectively tried to recite itself into a compelling purpose, I would accept that the Court need not necessarily accept that. There may be some cases where, at the margins, this analysis would require perhaps the Court to go into some of the materials your Honour has indicated and that may suggest that then one is in the realm where one needs to go back to proportionality testing.

But what I would suggest is that where legislation is concerned with something that has fundamentally been recognised in our law as something that is to be protected, which is bodily autonomy and privacy and physical safety and wellbeing, that in a sense the legislative record will articulate that as being the fundamental and important purpose sought to be achieved. That is consistent with the way in which our legal system treats physical bodily integrity, health and safety and privacy and, in those circumstances, one can conclude that the purpose is compelling.

So it is, I suppose, an evaluation of the legislative purpose not really in light of necessarily matters extrinsic to the parliamentary process, but in this case we would say by reference to the fundamental features of our legal system that already recognise these kinds of matters as being fundamentally important.

KIEFEL CJ: The difficulty to which Justice Edelman’s question points, namely that of deciding only on the basis that a purpose is compelling - I am not saying that you are obviously regarding the burden as slight, but really regarding as more or less determinative that a purpose is compelling, serves to point out, I think, that one cannot equate compelling purpose with compelling justification as your outline actually does, because purpose is only – the purpose of the statute is only one aspect of how it is justified and, in fact, it is only a small part. The justification process through proportionality analysis is a legal method, a judicial method which can be engaged in without undertaking the kind of analysis to which Justice Edelman’s question adverted.

MS WALKER: I accept that, your Honour, and I would withdraw the word “justification” in the outline. It was - you are right, that is an error. What I am talking about is a compelling purpose - - -

KIEFEL CJ: Purpose.

MS WALKER: Because you are right. The entire question is then whether when you look at the purpose and the burden, is there a justification - - -

KIEFEL CJ: By reference only to the purpose?

MS WALKER: Not by only to the purpose, your Honour, but by reference to the extent of the burden which we say is insubstantial. You could not just say there is a compelling purpose, therefore the legislation is valid. I do not make that submission. I say you can conclude that a law is reasonably appropriate and adapted to achieve a legitimate purpose in a manner compatible with a system of representative and responsible government, where the purpose is compelling and the burden is slight or insubstantial. In answering that second Lange question, I am saying in those circumstances one does not necessarily need to go through the proportionality analysis.

KIEFEL CJ: Although, in truth, as you develop the test for which you contend, it is close to but not completely the strict proportionality approach in balancing. It has elements of it and that is all.

MS WALKER: It certainly is some of the same features, yes, that is right, your Honour. It does have some of the same features but it simply – the submission is simply one does not have to step through each of those steps in the order that they are given and so forth. It perhaps is a step to or an analysis that draws on some of those features but says this is a way to answer the second Lange question without necessarily stepping through the analysis.

KIEFEL CJ: I understand.

GAGELER J: You mentioned comparative jurisprudence. Are you aware of any other jurisdiction dealing with analogous issues that has adopted the approach that you would have us adopt?

MS WALKER: Not that I am aware of, your Honour, no.

GAGELER J: Certainly the Americans do not, do they?

MS WALKER: No, and, of course, most of the comparative jurisprudence around proportionality is being relied on precisely to undertake a proportionality analysis. So, in a sense this is a reflection of the distinct way in which this Court has developed the implied freedom culminating at one point in the unanimous judgment of the Court in Lange where the Court articulated two questions.

Now, in my submission those two questions, although they have been slightly modified, have never been departed from. What has been accepted by a majority of this Court is that the three-step proportionality analysis is a tool that can assist in answering those questions. It has also been accepted, in my submission, that it is not a tool that always needs to be used and, if that is right, I have attempted to articulate a circumstance in which it need not be used and we say this is such a case.

KIEFEL CJ: Can you actually point to where it was said in either McCloy or Brown that it need not be used if there is nothing else on offer?

MS WALKER: I cannot do that, your Honour, because I cannot point to it if there is nothing else on offer.

KIEFEL CJ: Exactly.

MS WALKER: But what I am attempting - - -

KIEFEL CJ: But this is your - - -

MS WALKER: This is my offer, your Honour.

KIEFEL CJ: This is the offer.

MS WALKER: This is the offer.

KIEFEL CJ: You are responding to our invitation.

MS WALKER: I am, precisely, your Honour. Now, I suspect I cannot take this any further.

BELL J: Ms Solicitor, can I just tease this out with you. You say this is not a case where it is necessary. It would suffice for the Court to say the purpose of the creation of the offence is a compelling purpose and the burden is a slight burden, having regard to matters such as an access zone of 150 metres. All of that requires the Court to make a judgment. I do not know whether you would make the same submission respecting the slightness of the burden if it were an access zone of 500 metres. Matters of judgment are involved.

In a case of considerable broad political controversy about which people feel strongly on each side of the debate, why, for my benefit, would Victoria seek to invite the Court to respond to the question of validity in a way that does not as clearly as can be explicate the reasons for the conclusion that inevitably will involve a measure of judgment in - - -

MS WALKER: My submission, your Honour, is that Victoria is not inviting the Court to give a judgment without explicating, quite clearly, the reasons for the judgment. My submission is that in assessing the legitimacy and then the compelling nature of the purpose and in articulating the reasons for that conclusion and then in assessing and articulating the reasons for the conclusion that the burden is slight or insubstantial that that will reveal why the burden is not undue, to use some language that has been used, and so I am certainly not suggesting that the Court should not explicate its decision in the most appropriate manner.

It may well be that that is why some of your Honours think it is appropriate to undertake the suitability, necessity, balancing steps and if I might, that is where I would like to go now. It is, I note, almost a quarter to one and I wonder - - -

KIEFEL CJ: Is that a convenient time to break?

MS WALKER: Yes, thank you, your Honour.

KIEFEL CJ: We will adjourn until 2.15.

AT 12.42 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

KIEFEL CJ: Yes, Ms Solicitor.

MS WALKER: Thank you, your Honour. As your Honours would have appreciated, before lunch I had reached point 8 on the written outline, which is to say I am at the point of commencing our submissions on the three-stage proportionality testing. Of course, the first of those stages is to make submissions to support the proposition that the legislative scheme, in particular paragraph (b) of the relevant definition, is suitable for the purpose that has been identified.

Now, as Justice Crennan and your Honours Justices Kiefel and Bell observed in Tajjour, the question there is one about whether the means employed are capable of advancing the purpose. Really, identifying with that, the question is whether the two are therefore rationally connected. That was at paragraph 112. Similar descriptions of the test of suitability can be found in McCloy at paragraph 80 in the joint judgment - whether the measure contributes to the realisation of the statute’s purpose – and in the judgment of your Honour Justice Gageler at paragraph 132 of McCloy, is the burden:

explained by the law’s pursuit of that putative object or purpose.

The test, we would say, at this point is a relatively low hurdle. Can one say that the means employed are capable of advancing the purpose previously identified? We would say that the tailored provision that we have identified that restricts communications about abortion within the vicinity of a facility that provides abortion services and limited to communications that are likely to cause anxiety and distress is plainly suitable to meet the purpose that has been identified, particularly given the material that provides a clear link between communications that cause anxiety or distress and a corresponding risk to the safety, wellbeing, privacy and dignity of persons accessing those premises.

We would also say for completeness the provision is neither over inclusive nor under inclusive because it does actually target quite precisely the communications that are causative of the mischief, but can I say as to under inclusive, as the joint judgment said in McCloy, a submission that a legislative response to a problem does not go far enough and does not achieve its object comprehensively does not identify a want of proportionality, the point there being if there are other kinds of communications that might be reasonably likely to cause anxiety and distress that could happen within a safe access zone but which are not communications about abortion and so are not caught by the prohibition, the fact that that might theoretically be possible and the prohibition does not cover those other kinds of communications does not mean that the law is not suitable, less still that it fails for want of proportionality.

Plainly, on that proposition, we would say in any event that what Parliament did was identify the very kinds of communications that it was aware had been causing the mischief and it targeted those communications. There was no evidence that there were other communications likely to cause anxiety and distress that had been generating any problems.

Can I then turn to the test of necessity which, of course, invites a focus on whether there are alternative, less burdensome means to achieve the legitimate end? As has, in a sense, come out earlier, the alternative must be obvious and compelling and I do not think I need to take the Court to the references on that.

We would say, adopting what your Honour Justice Gordon said in McCloy at paragraph 359, that this is not a lowest common denominator requirement, that is, it is not the case that if one could identify some other law that might appear to offer an alternative way to deal with the problem the State is required to adopt that other mechanism. There is room for reasonable legislative choice. But, if, on this stage of the analysis – if there is an obvious and compelling alternative that is less burdensome, then that obviously is relevant to the analysis.

Now, the appellant appears to have offered, in a sense, two distinct sets of what she says might be the alternatives relevant to this phase of the analysis. Can I deal first with the Victorian laws listed in the appellant’s supplementary submissions because we do understand that those are, to some extent, relied upon as being alternative means to deal with the mischief? My learned friend says not. I had understood his answer to a question by Justice Nettle to be that - - -

NETTLE J: It was both, yes.

MS WALKER: Correct, that was my understanding. I will at least briefly address the point. It is our submission that none of those laws, whether considered individually or cumulatively, would deal as comprehensively and effectively with the particular mischief that Parliament has identified in relation to conduct outside abortion clinics.

Secondly, even assuming that those laws do operate as effectively to prevent the prohibited communication they would not be less burdensome because if they are as effective they will also burden the implied freedom. In fact, they might burden the implied freedom more because they are less tailored. Many of them are general laws that apply in all areas of the State of Victoria, not just within a safe access zone.

Thirdly, and as I touched on earlier in relation to the evidence, it is plain that, as a matter of practical operation, those laws have not provided an effective alternative means of dealing with the mischief and finally we would say it is of course open to Parliament to enact an additional law to deal with the particular identified mischief, and that is what the Parliament has done here and we would say Brown did not decide otherwise.

Can I deal perhaps with those laws rather than taking your Honours through each one individually which I fear might detain us for longer than is appropriate. Can I deal with them by reference to the categorisation adopted by the appellant in the table. There were firstly a group of physical safety laws. In relation to those laws, in broad summary they do not extend to communications specifically or even, in some cases, at all. They deal with qualitatively different forms of conduct or conduct that has qualitatively different effects. Most are predicated on physical contact or force or some form of obstruction. In that way, they are more analogous to the behaviours captured by paragraphs (a) and (c) of the definition of “prohibited behaviour”. So they will not be as effective at capturing the prohibited communications sought to be captured by paragraph (b).

The second group was described as the privacy and dignity laws. Those laws also do not apply to the same conduct as the communication prohibition and do not further the laws’ purpose to the same extent. Many of those laws will apply only to conduct or communications that again satisfy qualitatively different and, in many cases, more stringent criteria, for example, that the conduct be insulting, obscene or threatening. So again they are in some cases more analogous to different paragraphs of the definition.

The third category was the psychological wellbeing laws. Again, we say they do not deal with the conduct as effectively or to the same extent. Most do not deal specifically or at all with communication. Many require, or some require, an apprehension of physical contact. And to the extent that they apply to communications, again, they depend upon more stringent or qualitatively different criteria, for example, that the communications be threatening or defamatory or false.

Can I add this: that to the extent that the appellant relies on the criminal offence provisions, proof of those offences would, in many cases, require the giving of evidence by a person who was the victim of the crime, if you like. And, again, as I have already made submissions on this this morning, we would say that that does not achieve one of the manifest purposes of paragraph (b), which is to operate without the need to call the person who was personally affected by the conduct.

And so we say, your Honours, in summary, that none of those laws, individually or cumulatively, would achieve the same effect as paragraph (b) of the communication prohibition.

KIEFEL CJ: Before statutes such as those here in question were enacted, it was not unknown for abortion providers to bring proceedings based on the tort of watching besetting business premises and obtain injunctions and injunctions framed, rather like the statutes, are now creating a zone where demonstrators were not able to pass but I do not think that has been referred to by the appellant.

MS WALKER: I do not recall it being referred to. In relation to that, your Honour is correct; there have been proceedings where injunctions of that kind have been granted. There are some practical difficulties with that in the sense that either the injunction has to be served upon particular identified individuals who have to be identified, leaving the unidentified people who are different who turn up the next day or it is an injunction to the world at large but that has its own difficulties but the fundamental additional difficulty is that it places the burden on the affected clinic to take that step.

The purpose of the statutory regulation imposing a criminal burden is to ensure that the State can enforce this law against the protestors and it does not fall to a clinic to institute private proceedings for injunctive relief of that kind, but your Honour is absolutely right, those kinds of proceedings have occurred in the past. Again, though, the evidence of Dr Allanson suggests that the conduct of protestors continues regardless, or did continue regardless, of what private steps were taken by the clinic to try to call in aid either the council on nuisance or the police and so forth. So, we would say that that injunctive mechanism does not offer an equally practicable and as effective, let alone an obvious, and compelling alternative.

Now, the appellant also articulated in her written submissions at paragraph – my junior will just remind me of the paragraph – but a number of other alternatives which are put there in writing but which were not developed in the course of oral argument, save perhaps with one or two exceptions. Because they were not developed in writing, we did not develop a particularly extensive submission in writing either but I do want to make some remarks about those alternatives just to ensure that the Court understands the reasons why we say none of those postulated alternatives - - -

GORDON J: Is this dealing with the alternatives within the section itself or are you dealing with the broader category identified by the appellant?

MS WALKER: The broader category, your Honour.

GORDON J: I think it is paragraph 88.

MS WALKER: Thank you, your Honour. It is indeed paragraph 88. Now, the Court, if the Court goes to that paragraph, will see a list of alternatives identified by (a) through to (g) and many of them I think I do not need to dwell on but, as I say, I would like make a brief remark about each of them for completeness.

The first is the suggestion that it would have been practical but less burdensome to have an exclusion for conduct apt to cause no more than discomfort. The short answer to that is that the statute is not directed to discomfort as the statutory test. It is directed to anxiety or distress. And that postulated alternative simply really does not arise or go anywhere.

The next one, your Honours, is an exclusion for communications that are consented to. This issue of consensual communications was developed, to some extent, in oral argument, although it was not entirely clear that it was put, at that point, as a reasonable alternative but it was certainly raised in the written submission as an alternative.

The first submission about this, your Honours, is that it is unclear precisely how this alternative would operate. It is certainly quite different from the consent that was present in the case – the Corneloup Case – Attorney-General for the State of South Australia v Adelaide City Corporation where the council could, effectively, consent to a set of communications occurring because the council had a power to grant permission to engage in the conduct. But here what seems to be meant is that consent is consent by persons who might themselves be the target of the communication and/or might see or hear that communication.

The first possibility, I suppose, is that a consent exclusion, if you like – or an exclusion for consensual communications – would be satisfied so long as some person in the vicinity consented to seeing or hearing the communication. But, that would plainly render the provision completely ineffective because it would not be difficult for a group of persons to say that one of them has consented to receiving the communication even though the vast majority of the persons going in or out of the clinic did not give that consent.

GORDON J: Is it any more, though, that the harm is done before the consent is obtained?

MS WALKER: That is also a problem. If what one means is full and informed consent, the harm is done even in obtaining the consent. But, if it is then consent once the communication has occurred, the harm, again, as your Honour says, is done before the consent is obtained. So, we see this as simply not only not an effective alternative to achieve the purpose of the legislation, but one that would positively defeat the purpose of the legislation.

The next one, your Honours, was a requirement that the communications in fact be seen or heard rather than just able to be seen or heard. I think my submissions on the statutory construction made clear the proposition that one of the purposes of this statute is to ensure that one does not have to call evidence that a communication was in fact seen or heard by any particular person. So that postulated alternative would be manifestly less effective in achieving that aspect of the statutory scheme.

A further suggested alternative was a carve-out for political communications. I think I dealt with that when I dealt with the question of – jumping ahead to that, in light of your Honour Justice Gageler’s remarks in Tajjour. I do not need to say any more about that. We say, of course, that that would not be as effective because it would exclude - and, again, offer a mechanism for avoiding – the operation of the statute.

The next one, your Honours, is a materially smaller safe access zone. We would say that this is not an obvious and compelling alternative. The Parliament gave reasons for selecting 150 metres as the radius, following a considered judgment about what was necessary in order to ensure the safety, wellbeing, privacy and dignity of women accessing abortion services. In light of evidence about the distances at which protesters and others had followed or confronted women, there is nothing in this Court to cast doubt upon that legislative judgment, and we would say there is no basis for this Court to second-guess the selection of 150 metres as the appropriate size of the safe access zone.

That is consistent with some remarks that Chief Justice Brennan made in Levy v Victoria. I will not take your Honours to it but it is at page 598 of that report, where there was a challenge put in Levy to the size of the hunting area and the exclusion of people from the entire hunting area. His Honour the Chief Justice explained why it was not appropriate for the Court to engage in some second-guessing of that determination of the area necessary to achieve the purpose of protecting the safety of persons.

Next, your Honours, is a carve-out during elections. We say that the communication prohibition would not be as effective if it did not apply during an election period. Plainly, the holding of an election has no bearing on the need for a person to access abortion services or the propensity of a communication to be reasonably likely to cause anxiety or distress. There is simply no reason to allow communications of that kind during an election period, particularly given that, as I have submitted, most of the communications that the law is concerned to deal with are not in fact political communications. Finally, the suggestion is made of a mens rea requirement. Well, the obvious answer to that of course is that we say there is no mens rea requirement.

Can I then, your Honours, turn to the question of balancing. Now, this final step in the three-stage proportionality analysis is articulated by the joint judgment in McCloy and if I might take the Court to that. It is volume 5 of the joint book of authorities at tab 35, particularly paragraphs 87 and 89. The joint judgment there observes:

This stage, that of strict proportionality or balancing, is regarded by the courts of some legal systems as most important. It compares the positive effect of realising the law’s proper purpose with the negative effect of the limits on constitutional rights or freedoms. It requires an “adequate congruence between the benefits gained by the law’s policy and the harm it may cause” . . . Balancing is required because it is rare that the exercise of a right or freedom will be prohibited altogether. Only aspects of it will be restricted, so what is needed, to determine whether the extent of this restriction is reasonable, is a consideration of the importance of the purpose and the benefit sought to be achieved. Logically, the greater the restriction on the freedom, the more important the public interest purpose of the legislation must be for the law to be proportionate.

Can I then take your Honours down to paragraph 89:

The balance struck between the importance of the purpose and the extent of the restriction on the freedom necessarily involves a value judgment. The fact that a value judgment is involved does not entitle the courts to substitute their own assessment for that of the legislative decision-maker . . . However, the courts have a duty to determine the limit of legislative power affecting constitutionally guaranteed freedoms, and assessment by courts of the public interest and benefit in a piece of legislation are commonplace.

Then there is a reference to ACTV and Nationwide News. Now, as is noted in that passage, the latter of the two passages, the step involves a value judgment and there is a recognition of the differing constitutional roles of the Parliament on the one hand and the Court on the other. Of course, we accept that it is ultimately for the Court to make an assessment of the validity of the law, but we do submit that in order to respect those constitutional roles and boundaries it is necessary, particularly in the Australian context - and one must bear in mind the distinct constitutional context when applying the test of proportionality and Professor Barak has acknowledged that – that this test must be understood we would say relatively stringently.

By that I mean to say that we would adopt what your Honour Justice Nettle said in Brown. Brown, your Honours, is in volume 3 of the joint book of authorities at tab 21. I would like your Honours to go to page 1146 of the report, paragraph [290], where your Honour Justice Nettle addressed the question of what is involved in a law being “adequate in its balance” in the Australian constitutional context.

Your Honour observed that that is not yet fully resolved but your Honours’ words, we say, are apt in the Australian constitutional context to describe the appropriate approach to this final step, which is to say that “adequate in its balance” is better understood as an outer limit beyond which the extent of the burden on the implied freedom of political communication presents as manifestly excessive by comparison to the demands of legitimate purpose. Can I then, for ease of submission, skip a portion and say your Honour went on to say:

an impugned law otherwise presents as suitable and necessary for the achievement of a legitimate purpose compatible with the constitutionally prescribed system of government should not be regarded as inadequate in its balance unless it so burdens the implied freedom of political communication as to present as “grossly disproportionate” to, or as otherwise going “far beyond” what can reasonably be conceived of as justified in the pursuit of the legitimate purpose. Thus, for the purposes of this case, the question may be posed in terms of whether, despite the apparent legitimacy of the purpose of the Protesters Act, and despite its suitability and necessity in the sense that has been explained, the Protesters Act so restricts protest activities on forestry land and related business access areas, and thereby so burdens the implied freedom of political communication, as to present as a manifestly excessive response to, as grossly disproportionate to, or as otherwise going far beyond, the legislative purpose of those restrictive measures.

Now, your Honours, we would say that is an appropriate way to articulate the final step of strict proportionality in the Australian constitutional context. Can I note this, that it is not necessary at this stage that the justification be described as compelling or important, but we would say that the importance of the purpose of the legislation is relevant for the balancing stage of the exercise and that was certainly reflected in the passages that I took your Honours to from McCloy where there is a specific reference to the importance of the legislative purpose.

So we would say here, to adapt what your Honour Justice Nettle said in Brown, the question may be posed in the following way. Despite the legitimacy of the purpose of the communication prohibition and despite its suitability and its necessity in the sense that I have put to the Court, does the prohibition so restrict political communication in the proximity of abortion clinics and thereby so burden the implied freedom of political communication so as to present as a manifestly excessive response to the mischief identified or as a grossly disproportionate response to the mischief identified or as otherwise going far beyond the legislative purpose that is articulated in the law itself?

If I might then answer that question, we would say that the law cannot be said to go too far. It cannot be said to be manifestly excessive or grossly disproportionate. The effect on political communications in the constitutional sense, as I have already submitted, is insubstantial. It does not single out political communication. It does not discriminate on the basis of viewpoint. It leaves the ability of persons who wish to make political communications about abortion free to do so, as your Honour Justice Gordon has said, 151 metres from the clinic or anywhere else in Victoria that is outside a safe access zone.

The law, in my submission, is plainly not disproportionate. The Parliament was entitled to strike the balance that it has struck between the protection of the physical and psychological safety and wellbeing of persons accessing services, their privacy and their dignity on the one hand, and the marginal and insubstantial effect on the applied freedom. So not only would we say it is not disproportionate; we would say on no view would it meet the more stringent test articulated by Justice Nettle, namely that it be grossly disproportionate.

Can I conclude, if your Honours have no questions on the balancing phase, by just briefly referring your Honours to one comparative decision which we have referred to at various times in our written submissions, which is R v Spratt which is a decision of the British Columbia Court of Appeal, and your Honours will find it in volume 11 of the joint book of authorities at tab 64.

I do not want to linger very long over this case, but can I say this? Putting to one side my submission that the Court might not adopt a proportionality analysis, the analysis adopted by the Court of Appeal in the Spratt Case tracks very closely the analysis that I have put to the Court about the way in which this Court ought to approach the exercise of ascertaining whether the Victorian law is reasonably appropriate and adapted to achieve a legitimate end that is compatible with our constitutional system.

In particular, I will just refer your Honours to the commencement of the analysis at paragraph [47], page 331 of the judgment, and the Court there commences with the historical context, as I did, and explains the kinds of harms that had been occurring. The report at page 335 moves to, what one might call, the legislative record by reference to a heading, “The Government’s Stated Objectives” by reference to the second reading speech.

The analysis then, at page 336, at the very bottom, just above paragraph [71], the court turns to the importance of the objective and then the court turns to the “Proportionality Test”, commencing with identification of a “Rational Connection”; the second heading on page 338, “Minimal Impairment” – which is, in effect, what we would call in Australia, the necessity step; and then proceeds to “Proportionality” at the end of the judgment at page 341.

To conclude, your Honours, can I adopt what the court there says in paragraph [91] in relation to strict proportionality and, of course, we acknowledge that the Court here is dealing with a different constitutional scheme, namely, one that involves a constitutionally protected right. But, the court there says:

The right to express opposition to abortion is a constitutionally protected right. The object of the Act is to protect vulnerable women and those who provide for their care to have safe, unimpeded access to health care services. The question is whether the degree to which the Act limits the right of those to demonstrate their opposition to abortion and to seek to persuade women to decide against abortion is disproportionate to the purpose of the Act. The purpose or objective of the Act is sufficiently important to justify a limitation on the way in which freedom of expression is exercised in an area adjacent to the facilities providing abortion services. The impugned provisions of the Act are crafted in such a way that the “deleterious” effects do not outstrip the importance of the objective of the legislation. The objective of the Act justifies the limited infringement of freedom of expression in the circumstances.

Of course, we would calibrate the test somewhat to focus on grossly disproportionate but, nonetheless, we would say the same kind of analysis that the Canadian British Columbia Court of Appeal undertook in the Spratt Case is illustrative of the way in which this kind of problem has been dealt with and then analysed by the courts in Canada and we would say that much of that analysis would apply equally to Australia, notwithstanding the different constitutional context. If the Court has no further questions, those are my submissions.

KIEFEL CJ: Thank you, Ms Solicitor. Solicitor for Tasmania.

MR O’FARRELL: May it please the Court. Can I first take your Honours to the core appeal book in the Preston appeal, page 36. Your Honours, at paragraph 38 the learned magistrate found:

It seems clear to me that the primary purpose of s 9 of the Act is to provide clear access to the premises without being subjected to conduct which is designed to dissuade them from following through with a legal decision. The defence position in relation to this issue is that their intention in protesting at or near the access to the premises is very deliberate. Mr Preston and the Stallards each gave evidence that it was important that they be able to protest within hearing and sight of people accessing or attempting to access the premises because it was their intention to dissuade or delay a woman who was seeking to terminate her pregnancy. The defence accepts that is the primary purpose of the legislation and submits that it infringes or burdens their implied freedom of political communication.

Your Honours, we submit at the outset that that finding is a description of the conduct of the appellants’ case in the court below. There was no difficulty in identifying the legislative purpose there, in a slightly higher level of abstraction, to the extent that it related to protection and there should, in our submission, be no difficulty in identifying it here.

It is not difficult to understand the way we put our case about this. Indeed, yesterday the appellants spent quite some time dealing with the four aspects of the purpose that we fasten on in our submissions, that is, safety, dignity, privacy and wellbeing. All of those purposes we have identified at the outset of paragraph 17 of our written submissions. There was never any doubt about it yet the appellants come to this Court saying that they do not really understand what we say about the purpose.

Hopefully, your Honours, that has sufficiently picked up the challenge that my learned friend put to me yesterday. But we also say this, your Honours. There is nothing new about discerning the purposes of an Act from its text, context, history and the extrinsic materials. The appellants have not really addressed the scheme of the Act in their argument to the Court yesterday and it is what I propose to do now, your Honours, because of course it is Tasmania’s Act and we need to explain what we think it means.

So, if I can then turn to the Act, your Honours - sorry, I am obliged to my learned friend, it is the Reproductive Health Act (Access to Terminations) Act 2013. Now, my learned friend took your Honours yesterday to the definition of “terminate”. It means:

to discontinue a pregnancy so that it does not progress to birth by –

(a) using an instrument or a combination of instruments; or

(b) using a drug or a combination of drugs; or

(c) any other means –

and it then has two exclusions. The first in paragraph (d) is:

the supply or procurement of any thing for the purpose of discontinuing a pregnancy -

and the purpose of that provision appears to be that that excludes, for example, obtaining abortifacient drugs from a pharmacist. Those provisions are regulated in Tasmania under the Poisons Act so that a doctor is still able to prescribe and a pharmacist is still able to dispense appropriate drugs but that is not the subject with which this Act deals and the second exclusion in (e) is for:

the administration of a drug or a combination of drugs for the purpose of discontinuing a pregnancy by a nurse of midwife acting under the direction of a medical practitioner -

So, that would appear to support in a way the restrictions on the relaxation of the law on abortions in relation to women which can be seen immediately in section 4. Just before I come to that section though, what we submit about the exclusion in (e) is that it is effectively to put in the hands of the woman and the medical practitioner the process of termination so that you cannot leave it simply the medical practitioner directing a nurse or a midwife to look after the case. The practitioner must take control.

Now, the next section, of course, your Honours, the next two sections 4 and 5, firstly make it lawful for the pregnancy of a woman to be terminated by a medical practitioner with the woman’s consent. That relates to the first 16 week period and then the second section, section 5 permits after 16 weeks, the lawful termination of a pregnancy but on particular conditions which I will not deal with now.

Section 6, your Honours, I will mention in passing, simply permits a medical practitioner who conscientiously objects to providing terminations services not to have to go through with a termination service but on the other hand, under section 7(2):

the practitioner must, on becoming aware that the woman is seeking a termination or advice regarding the full range of pregnancy options, provide the woman with a list of prescribed health services from which the woman may seek advice, information or counselling on the full range of pregnancy options.

So, effectively it can be seen so far in this Act that the legislature is sweeping the way clear for a woman to obtain a medical termination, sorry, or indeed a surgical termination but a termination of a pregnancy by medical means.

Section 8, importantly, decriminalises the previous law relating to abortion. This Act also repeals sections 164 and 165 of our Criminal Code. But the importance of the decriminalisation aspect is, effectively, to allow a woman to make her own choices about something as personal as the termination of a pregnancy.

So then we come to section 9, your Honours, and without any other material but the Act and looking at the scheme, as I have attempted to describe it, what could be the purpose of creating an access zone around a clinic or premises at which terminations are provided in order to facilitate the purposes of this Act.

In my submission, one really does not need to go any further than the Act itself to understand, firstly, that that purpose is to effectively clear an environment around the premises in order to allow entrance to the premises unrestricted access, effectively.

Now, why would that be? And to answer that question, it is really because of the highly personal nature of terminations, the heightened state of emotions which always attend decisions of this kind, and to effectively protect the vulnerable when they seek access to the premises. And it is not a big step then, your Honours, to put the purpose under headings such as “privacy”, “dignity”, “safety” and “wellbeing”.

We would say then, your Honours, that the discernment of the purposes does not stop there. We say it is also supported by the history of the debate about abortion – I am at 3b of the outline now, your Honours – including protesters targeting areas adjacent to clinics; advances in medical knowledge and changes in societal attitudes to abortion and women’s reproductive health; the decriminalisation of abortion; and the lack of adequate laws to protect women seeking access to terminations. My learned friend, the Solicitor for Victoria, dealt with those issues.

Those purposes are to be found, so far as the Tasmanian Act is concerned, firstly, in the second reading speech, which is at volume 11, tab 74, of the materials - I will not take your Honours to that quite yet – and in the material that was referred to in the second reading speech, which is Ms Humphries’ article, which was expressly referred to by the Minister, and if I can deal with Ms Humphries’ article and the Cozzarelli articles now.

The purpose – our reliance on the Cozzarelli articles is simply to explain Ms Humphries’ work because her work relied on and developed much of what Cozzarelli had said some years before, and that is the only purpose for which we rely on it. There was also, your Honours, in the materials a departmental analysis. That is to be found at tab 73 of volume 11, page 4925, and also it will appear to your Honours from the second reading speech that the policy was also cognisant of the Victorian Law Reform Commission report some years earlier.

Your Honours, if I can just stop there for a moment and deal with the issue of the article of Dr Turner and others, we generally adopt what our learned friends from Victoria said about this, but we need to make the position quite clear. Tasmania does not pretend that Drs Allanson or Goldstone were before the – that is, their affidavits were before the Parliament when this Bill was put before it, so we cannot say that it is relevant to any legislative purpose. We do not rely on them to support any legislative purpose. We say that it is not relevant to any issue that was raised before the magistrate because they were not before the magistrate. They are not in proper evidentiary form. In any event, we wonder what evidentiary value they might have if they remain untested and, indeed, without any idea of the authors’ particular skills, their objectivity or beliefs.

We also make the point, your Honours, that if we assume just for the moment - and we pick up what Justice Edelman said this morning about this or the question of Justice Edelman – if we assume that that material was available to the Parliament at the time that it came to consider the legislation, it could just as easily have set it aside and accepted what Ms Humphries said, in any event. It is not a matter for the Court, as your Honour Justice Edelman said, to descend with any granularity into academic criticisms or any other criticisms of particular work in order to identify or delimit the legislative choices that might be made by a State Parliament.

Alternatively, your Honours, we say that the Parliament could simply have identified by reference to all the material that there was an unquantifiable risk to vulnerable citizens and their health providers seeking access to premises at which terminations were provided which the Parliament thought best to protect and effectively eliminate that risk.

So, your Honours, at a high level of abstraction as to purpose we would submit that the object of section 9 is one involving protection and we would agree with the magistrate on that basis. At that level, your Honours, the prohibition is targeted at the prevention of the creation of an environment in which vulnerable women and their health providers are unable to enter without the corrosion of their dignity and privacy, that is in the sense of the intensely personal circumstances which they then experience, and also the associated risks of safety and wellbeing.

If they are unable to do that the legislation which guarantees effectively a woman’s right to make these decisions and in fact decriminalises the right leaves her still in a position where she can be dissuaded or delayed by any number of mechanisms in order to make her change her mind or at least delay going through with what is an intensely personal decision.

In the present case, your Honours, we identify the potentially corrosive agent in the environment and in the facts of the present case the appellant’s intention to remain within eyeshot and earshot of the clinic in order to dissuade and delay entrance, as the learned magistrate found.

Your Honours, if I can turn to the issue of mens rea, returning just for a moment to paragraph 36 of the magistrate’s decision, there cannot be any question really as to the intention of what the appellant was about in this case. They were intending to stay there. They were intending to protest. They were intending to remain in eye and earshot. That having been said, your Honours, in order to assist the construction of the section, can we offer this analysis.

The first thing we need of course is a protest and that has to be a protest which is able to be seen or heard by a person accessing or attempting to access the premises – “able”, we say, is descriptive of the protest. So it does not attach itself to any particular person. The question is, as in the Victorian statute, it attaches to a hypothetical person and whether that hypothetical person can see or hear the particular process. Secondly, of course, the kind of protest must be in relation to terminations. Thirdly, it must be in an access zone, within 150 metres of the premises.

Now it is not an offence, we would submit, of specific intent and we contrast it in that regard with paragraph (d) of the definition of “prohibited behaviour”. Your Honours have heard submissions about that provision already, or a similar provision to that, which we would generally adopt. But as an offence of basic intent, we say, firstly, that there must be a voluntary and intentional act to protest in relation to terminations.

Now, although we submit that of course the matter is a question then for the Court to determine, we submit as to the other elements of the offence, firstly, is it within eyeshot or earshot and is it within the 150 metre radius of the access zone? We say those are questions of fact which require no specific knowledge. We say that they amount to physical elements of the offence which the prosecution must establish beyond reasonable doubt.

We submit that the defence of honest and reasonable mistake effect is available to both of those things in order to show, firstly, that the protestor did not know that the premises were ones at which terminations are provided, for example, and, secondly, did not know that he or she was in an access zone. So we say that is how the section ought to operate.

As to the element that is able to be seen or heard, again we say that is a question of fact which must be proved beyond reasonable doubt. It is simply an element of the offence. It involves an objective assessment, much along the lines that Victoria submitted this morning, of a hypothetical person in a particular class.

We construe it that way for the following reasons. Firstly, we note that it is a summary or regulatory offence. Secondly, because it is an offence relating to circumstance it does not attach itself to any particular criminal endeavour or moral turpitude. A conviction in fact does not result in any moral obloquy.

The appellant in this case – it says nothing about his beliefs, whether they may be right or wrong. What it says is in these circumstances you cannot do that and that is all it says. Its consequences, we also submit, as to penalty are reflected in the comparatively low amounts and low maximum amount of a fine or even a term of imprisonment for, no doubt, repeat offending that the section provides. Your Honours, that is what we wanted to say about mens rea and the construction of the elements of the offence.

We also, at paragraph 5, your Honours, make the negative submission that when one comes to consider the purpose there is one thing that is certain. While the purpose may indirectly pick up political communication, we do not submit to the contrary. Nowhere in the scheme of the Act, its context or its history could it be suggested that there is a direct attempt by the legislature to stifle political communication. It is simply not the purpose of the Act; it is a consequence of the Act.

In relation to protest conduct, your Honours, which we deal with then at paragraph 6 of our outline, yesterday as I understood him my learned friend seemed to say that all section 9(1)(b) did was to capture peaceful protests, or peaceable protests I think he said. In her reasons at paragraph 37 – sorry, the core appeal book at page 37, paragraph 42, albeit under the suitability criteria, her Honour made the following observation:

I cannot see how two or three people praying silently within the access zone of the premises could be regarded as infringing the protesting prohibition. If the two or three people are doing no more than silently praying, they are not holding any placards and there is nothing about them to suggest that they are protesting then it is difficult to see how they could possibly be regarded as protesting in relation to terminations that is able to be seen or heard by persons accessing or attempting to access the premises –

We would respectfully agree with her Honour’s observation.

EDELMAN J: If that is correct and if we were then to put the Tasmanian provision metaphorically alongside the Victorian provision, would there ever be an example of a protest, given the hypothetical person that Victoria contemplates, that would not give rise to a reasonable likelihood of distress or anxiety?

MR O’FARRELL: If the person is not – effectively – can I answer the question this way, Justice Edelman? If the person standing outside the premises is really doing nothing more than standing and praying without making any noise - - -

EDELMAN J: But that is not a protest, on your construction.

MR O’FARRELL: Not on our construction, no, not at all. Whether it is a communication or whether it is communicating by any means, I doubt it, your Honour, quite frankly because there is no overt circumstance which would suggest that there is a dissemination of any information which is intended to be received.

BELL J: A group of a hundred people standing in the immediate vicinity of the entry to an abortion clinic, quietly repeating the Lord’s Prayer, would not come within the prohibition in paragraph (b), on your submission.

MR O’FARRELL: No, your Honour, with respect, I disagree with that. In my submission, that is a matter of – it would be a question, of course, for the court considering the case, but the circumstances may certainly dictate that those people are intent, because of their proximity to the premises, their number and their affiliation with a particular religion or religious denomination – allow the court to draw an inference.

GORDON J: Draw an inference about protesting?

MR O’FARRELL: Yes.

KEANE J: But would it not be an inference about (a), in that they are obstructing or impeding?

GORDON J: Or intimidating?

MR O’FARRELL: Yes, your Honours, we would accept that. It could be that that conduct is, by itself, intimidatory.

KEANE J: Well, if there is a hundred of them, it is certainly going to be obstructive.

BELL J: All right, let us take it down to 10 people. Ten people standing in the near vicinity of the entry into an abortion clinic, repeating constantly the Lord’s Prayer quietly, but not in such a way as to prevent a person entering the clinic, that, you say, would not be caught by (b), although, the inference might be available that it is a form of protest about the activity happening inside the abortion clinic and that people are invoking the assistance of a higher power in the hope of bringing about a change of affairs.

MR O’FARRELL: That inference may well be drawn, your Honour. We would submit that that conduct is not beyond the bounds of the prohibition.

EDELMAN J: So, in effect then, if that conduct were able to be characterised as conduct that would be reasonably likely to cause distress or anxiety, your submission is that the apparently more broadly worded version of the Tasmanian legislation is narrower than the Victorian legislation.

MR O’FARRELL: We certainly submit that – well, your Honour, the legislatures have approached this in a slightly different way. The Victorian legislature chooses communication by any means, and in the form of a verb – communicating by any means - whereas what the Tasmanian provision does is, effectively by use of the noun “a protest”, it describes a form of conduct. So it is engagement in that conduct that gives the Tasmanian provision its impetus. We submit that they produce different results in similar circumstances. While the Victorian provision – we would submit that the Victorian provision is logically wider in the notion of communicating by any means than is the Tasmanian provision of simply engaging in conduct.

NETTLE J: So any conduct that expresses disapproval of abortion would be a protest within the meaning of paragraph (b) – expresses either orally or by conduct?

MR O’FARRELL: By conduct – yes, your Honour. It is just a question of whether the inference can be drawn.

NETTLE J: That would be a protest.

GAGELER J: Was Mrs Clubb engaged in a - - -

NETTLE J: He cannot answer - - -

GAGELER J: - - -protest, accepting the findings made in that case?

MR O’FARRELL: That is in the Victorian case, your Honour? In the Tasmanian case, your Honour, under our statute she may have been, as a tentative view, engaging in sidewalk interference – that is footpath interference, I think it has been referred to, in our Act. But when one looks at the Canadian cases about “sidewalk interference” it is actually a defined expression in their legislation. But it talks about that sort of conduct where people offer assistance, pamphlets and the like, to people who are - - -

GAGELER J: Yes, in America the same phenomenon is called “sidewalk counselling”.

MR O’FARRELL: Yes.

GAGELER J: So my question is, is sidewalk interference or sidewalk counselling engaging in a protest within the meaning of this legislation?

MR O’FARRELL: Depending, your Honour - - -

GORDON J: Do you not have a separate definition for “footpath interference” here?

MR O’FARRELL: Yes, we do, your Honour. That is paragraph (c) of the definition, your Honour: “footpath interference in relation to terminations”. But we would not say that any of the headings are necessarily mutually exclusive. There must be some overlap because they are designed for the purpose of clearing the path to the clinic for people who may want to use it within the access zone. Now, they have different operations within the access zone, which I will come to shortly. But, ultimately, as I say, it is creating an environment in which the vulnerable and other people, indeed, can obtain access to the premises.

GAGELER J: Really, my question was whether sidewalk counselling, with no political content, amounts to a protest within the meaning of paragraph (b)?

MR O’FARRELL: It could, your Honour, depending on the conduct. It would depend on the circumstances of the case. But if there are three people, say, handing out pamphlets or holding up signs and then, as people come along the street and they appear to be attempting to enter the premises, they seek to detain them and hand them material or proffer them advice about what they are about to do or what they might be perceived to be about to do, I submit that that could fall into either category, depending upon perhaps the intensity of it.

I mean, we are really only dealing of course with the situation here of a breach of the protesting prohibition in (1)(b). But, in my submission, something that is perhaps slightly less than a protest fully formed may well fall into sidewalk interference if it detains or effectively detains a person from entering the premises.

KIEFEL CJ: Or because of what it conveys to the person?

MR O’FARRELL: Indeed, your Honour.

KIEFEL CJ: So it was conveying “do not do this”, and the only rationale for that could be because abortion is a bad thing. Is that the kind of inferences that you were talking about before?

MR O’FARRELL: In those circumstances that Justice Bell put to me, we do not say that any of these prohibitions attaches only to pro-life protests. We say that they apply generally to prevent people within the zone from engaging in that sort of conduct. I am going to develop that submission in due course.

BELL J: So a group of pro-choice protesters complaining against anti-abortion protesters are equally caught?

MR O’FARRELL: Exactly, your Honour. I can deal with that now, if your Honours please. This case actually demonstrates symptoms, perhaps, of that point – not a complete eruption but some symptoms. There is evidence in the further materials that we have provided to the Court. There was evidence, your Honours, which we will turn up; firstly, that there was a woman with a scarf in the street, on page 161 of the further materials. Ms Stallard was asked in cross-examination:

What exactly did you observe in relation to her?..... Oh, she was standing just off the kerb with a large scarf, waving it about in front of the traffic.

A little further down:

And what did you understand her intention might have been?..... to distract people driving back and forth from knowing what was on the placards, them seeing it.

So interfering with your protest?..... Yes.

Covering it up?..... Yes.

There is other evidence, your Honours. On the next page, 162, line 8:

reaction from passing motorists that you were aware of?..... I think one that went past made a rude gesture, and somebody else went past and you know sort of waved us on with encouragement –

She actually did not see that but she was told about it. Mr Preston was also asked about that in his cross-examination and admitted that there was someone with a scarf. There was a witness in the case, Ms Heald, who in fact, having passed by Mr Preston on one occasion, came back and addressed him and said, “Do you know you should not be here?” That was before the police were called, of course. But you can see instances of disagreement because it is something about which people feel extremely strongly.

People who are protesting in the street, for whatever reason – a person who is approaching a termination clinic in a heightened emotional state is hardly going to discern the precise purpose of whatever is being conducted there. In practical terms, the prohibition should – and it does, we submit – apply to anybody who is disrupting that person’s passage to the clinic.

We also fasten to an extent on the example that your Honour Justice Keane gave yesterday about the partner entering, coming around the corner and seeing the protestors and becoming very upset. It could well cause all sorts of issues within the zone which are not conducive to the purpose that the legislation is attempting to achieve, that is to allow people to get to the clinic without obstruction and unharried.

So, if I can just then go back - just pardon me for a minute - this notion that my learned friend fastened on yesterday that - and I think he described it by way of having identified all of the Acts in Tasmania that might have an effect on conduct in a public street which might stop a person who wishes to protest from doing that - came to the conclusion that the real target of this Act was to prevent peaceful or peaceable protests.

Now, in the cases about abortion law, this idea of a peaceful or silent protest is not unknown and, we would submit, it is a legitimate object of the legislature to address and prohibit protests which might otherwise be described as peaceful or silent. We have referred in our outline, your Honours, at paragraph 6 to Brown v Louisiana which referred to this sort of concept as a protest by silent and reproachful presence and, indeed, in Lewis which is at volume 10, behind tab 62 at page 4481 of the materials but 493 of the report, paragraph [32], her Honour Justice Saunders said:

Although much of the protest activity has been described as peaceful, in my view that is a mischaracterization. Peace connotes harmony. There is, on the evidence tendered at trial, no harmony here between protesters and those entering the clinic. At its most benign the protest activity could be described as non-violent.

Now, your Honours, it is non-violent because a violent form of protest would immediately be picked up by 9(1)(a). A non-violent form of protest is something which is more subtle, to use the words of the Victorian Attorney-General in written submissions. This is subtle conduct designed to achieve a purpose, which it does, and we have said in our written submissions, effectively by making people feel ashamed of what they are doing and this goes to dignity and privacy.

GAGELER J: You said that there was no mens rea attaching to the ability of the protest to be seen or heard by a person accessing or attempting to access the premises.

MR O’FARRELL: Yes, I did say that, your Honour.

GAGELER J: So the conduct – the protest does not need to be aimed at persons accessing the premises in order to be prohibited?

MR O’FARRELL: We would submit it needs to be a voluntary and intentional act to protest about termination. The circumstances, your Honour, that we are talking about because – I will come to this shortly – but we are talking about circumstances which are occurring in a vicinity which is necessarily close to premises.

NETTLE J: So that is a voluntary or intentional communication which expressly or implicitly conveys disapproval of abortion?

MR O’FARRELL: Yes, or approval, your Honour, depending on the circumstances.

NETTLE J: Or approval; the other way, yes.

MR O’FARRELL: Yes, I do not want to end up at the end being caught for discriminatory provisions, your Honours, but we say that it applies to anybody conducting themselves in such a manner as to – I mean, the purpose of it is to get people to the clinic in an appropriate manner. This notion of silent and reproachful presence was recognised by Ms Humphries and I will just again give your Honours the reference. I will not take you to this, but it is volume 11 behind tab 68, page 4840 and following.

It is also recognised in the second reading speech which I think Justice Gordon might have read out to my learned friend, but that is at again volume 11, tab 74, page 4969. Your Honours will see at the bottom of that page, the second-last paragraph about line 28:

It will stop a person from engaging in vocal anti-choice protest and it will stop the silent protests outside termination clinics that purport to be a vigil of sorts or a peaceful protest but which, by their very location, are undoubtedly an expression of disapproval.

As one submitter to the consultation framed it, there is nothing peaceful about shaming complete strangers about private decisions made about their bodies.

BELL J: Just to come back to your acceptance of the magistrate’s analysis that the group quietly praying would not come within the provisions, it all, as I think you acknowledged a little earlier, depends on facts and circumstances, but it would seem an inference might be drawn from conduct of that character that those individuals would be engaging in a peaceful protest that is caught by subparagraph (b), surely?

MR O’FARRELL: Your Honour, as I understand the bookend that her Honour was then setting, it is really saying that this person, engaging in silent prayer, would draw no more attention to themselves than any other person standing in the street.

BELL J: I understand - as distinct from a group praying outside a premises?

MR O’FARRELL: Indeed, your Honour.

BELL J: Yes, I understand.

MR O’FARRELL: Your Honours, if we can then deal with this concept of “seen or heard”, this is a device, we would submit, that is deployed in order - as your Honour Justice Gordon asked my learned friend yesterday whether they were words of limitation, and we submit they certainly are. But they have a particular operation, we would submit, in relation to this section. When one looks at paragraph (a), for example, one can see that that sort of behaviour might happen anywhere within the access zone of 150 metres.

People might be - for example, I think my learned friend, the Solicitor from Victoria, said this morning to your Honours that people have been chased down the street or followed to their car, and the like. You might have, I think we have suggested in our written submissions, a disaffected partner following a woman up the street attempting to dissuade her from going through with a termination, for example. There might be any number of different ways that that sort of behaviour might be caught by paragraph (a).

But when we come to paragraph (b) it is a different proposition, because it has to be able to be seen or heard by a person accessing or attempting to access the premises. We would put on the notion of access a somewhat more restricted construction than I think our learned friends from Victoria have put on it. We submit that it has to effectively have some proximity with the premises themselves. It is not simply anything that can occur in the access zone. It has to be either gaining access or attempting to gain access actually to the premises.

That, of course – the notion of attempting to get access to the premises requires some flexibility and application and, again, it will depend on the circumstances of the particular case. For example, a person, in your Honour Justice Bell’s example, meeting a battery of 10 people in the street some 25 metres, say, from the clinic, but nonetheless obstructing an attempt to get to the premises, may well be an obstruction, or amount to engaging in conduct which is directed at people attempting to access premises. Again, we say it is fact or degree. But it is not anywhere in the access zone. It is at least confined by sight and hearing.

Our learned friends acknowledge in their written submissions that it is going to be a very rare case indeed that a person some 149 metres away from the premises in an urban setting will be seen or heard to be protesting outside particular premises. It is almost as if, your Honours, you would need premises in a paddock, or perhaps in a rural setting with a long driveway which are known to be premises where people could be seen in those circumstances where they have unobstructed vision. But beyond that, it is difficult to imagine circumstances in an urban environment where in fact the prohibition would bite in all areas within the zone.

So these are words of limitation. They apply flexibly necessarily to the circumstances of the case and in that way we submit they are also sufficiently tailored to meet the requirements of a given case in order, again, to free up the environment for access.

BELL J: The alternative would be to see the access zone has been fixed at 150 metres. The requirement that the protest be able to be seen or heard avoids the difficulty, as Victoria submitted, of communications inside churches, hotels or whatever coming within the prohibition because those buildings are within the access zone. But if the purpose of the access zone is to provide a safe corridor for people who are accessing abortion clinics, why would one read down the notion of access or attempted access to people physically crossing the threshold or within close proximity to the threshold, as I understand you invite us to do?

MR O’FARRELL: Partly, your Honour, because of the geographical realities of the city. If a person could be engaging in conduct, for example, around the corner, where they cannot be seen by a person attempting to access the premises, it simply could not engage the relevant prohibition.

KIEFEL CJ: But that would be so regardless, without having to read down what “access” means.

MR O’FARRELL: I would accept that, your Honour. We simply say because of the overlap of the various sections there is no need to give (b) a wide application within the whole of the access zone. So the proposition is that, if you cannot be seen or heard by the hypothetical person at the point of entry, there can be no relevant interference. The examples Victoria used were picked up by the Minister at the passage that I referred your Honours to in the second reading speech.

EDELMAN J: Your submission really has the effect that, unlike perhaps (a), (c) or (d), it would mean that there would be no prohibition on protests at, say, 125 metres from an abortion clinic?

MR O’FARRELL: If you cannot see or hear them, your Honour, correct.

EDELMAN J: But even people who, 125 metres from the clinic, are approaching but not at that point accessing or attempting to access the premises. In your submission there would be no prohibition.

MR O’FARRELL: There are issues of fact and degree here, your Honour. I would accept that and I would say that access, no, but possibly attempting to access, depending on the circumstances. Depending on the proximity that they have reached, it could be engaged at 120 metres. I submit it is unlikely in its practical effect.

BELL J: One further aspect: if one looks at subparagraph (d) under the definition of “prohibited behaviour”, on your more confined view of accessing or attempting to access premises, there would be nothing wrong with an activist recording a woman who had parked her car 140 metres from the premises, recording her up until a point where she gets sufficiently close to come within your definition. One has to assume that the words “accessing or attempting to access” in (d) have the same meaning as they have in (b).

MR O’FARRELL: Your Honour, I submit that there is no particular harm in recording a person getting out of their car 120 metres away from the premises at which a termination is provided. It might amount, depending on the circumstances again, to intimidation. It might amount to harassment.

GORDON J: Does that not cut across your earlier submission that these provisions sit here as a group, there is a scheme, and that conduct in one might, in effect, fall within each of them? I do not understand why you resist this idea that there is an access zone for 150 metres by way of radius for very good reason. Why do you seek to read it down?

MR O’FARRELL: Your Honour, we seek to read it in the context of the provision, is what we seek to do.

NETTLE J: Just to cover Justice Bell’s question, the lady getting out of the car at 140 metres would, on your submission, be attempting to access the premises, would she not, even though she were not then close enough to be accessing it, on your interpretation of that - - -

MR O’FARRELL: She could be, your Honour. I accept that she could be.

NETTLE J: You would accept, would you, that she was attempting to access if she was getting out of her car with the intention of going into the clinic, at 140 metres radius?

GORDON J: Let me help you, Mr Solicitor. I understood from what you took the Court to earlier it was about shaming.

MR O’FARRELL: Correct, your Honour.

GORDON J: The very idea of someone getting out of a car, seeking to access an abortion facility – is not the filming a mechanism for shaming, whether at 149 metres - - -

MR O’FARRELL: I would accept that, your Honour.

GORDON J: Is not then the answer to both Justice Bell’s and Justice Nettle’s questions yes?

MR O’FARRELL: Yes, your Honour. I will withdraw the submission.

GAGELER J: We cross out paragraph 22 of your written submissions, do we?

MR O’FARRELL: Yes, your Honour. Your Honours, we noted, just before passing from this, paragraph 7 of the outline – we just draw attention to our view that the common law of attempts does not assist the construction of the Act, contrary to a written submission by our learned friends, which does not appear to have been pressed yesterday.

Paragraphs 8 and 9 of the outline, your Honour, we submit that, like Victoria, the facts of the case do not manifest any particular political purpose. Now, we say that with some trepidation. The question of burden was conceded by the prosecutor in the court below but, nonetheless, the facts of the case do not really lend themselves to an out-and-out finding that Mr Preston’s communication simply by holding a placard which - - -

KIEFEL CJ: Does that really matter to the question of burden, in any event? I mean, the concession below may have been well made because the question of burden is whether or not the statute effects a burden.

MR O’FARRELL: Indeed, we find ourselves in the same position as Victoria in that regard. Thank you, your Honour. I will not press that matter. Your Honours, we adopt the Commonwealth’s submissions concerning calibrating the extent of the burden at an early stage of the inquiry. I will not say anything more about that.

But we note the following, then, at paragraphs 11 and 12 of our outline. Firstly, for the reasons which I have already expressed, neither the text nor, we submit, in its practical effect, does the protest prohibition discriminate against anyone in the zone. It applies to any protest in respect of terminations. We note our learned friend’s concession at transcript, page 27, line 1125, yesterday, that the text is neutral. I have already referred your Honours to a number of effects in this case which tend to suggest that a lot of noise can be generated within an access zone when

somebody starts to protest. And it is not beyond the realms of possibility, in Justice Bell’s example of, say, a meeting of 10 or more people that that might not attract a meeting, a similar number or a number of people on the other side protesting which, in our submission, would be equally as distressful to a person attempting to enter the premises.

So we then would ask rhetorically what then is the real world effect of the protest prohibition? That is, if we confine it to what my learned friend says it is – peaceful or peaceable protests – what is the real world effect of that on the extent of the burden? We would say it is minimal, it is slight, it is indirect and it is insubstantial. So we have dealt then, your Honours, with the justification of the provision at paragraphs 14, 15, 16 and 17 of our outline. I do not propose to say any more about that. Can we respectfully adopt what our learned friends from Victoria submitted concerning proportionality testing and, unless your Honours have any further questions, those are my submissions.

KIEFEL CJ: Yes, thank you, Mr Solicitor. Solicitor for the Commonwealth.

MR DONAGHUE: Your Honours, the Commonwealth’s oral submissions will be addressed to the five topics that are outlined under the five subheadings that appear in the oral outline that your Honours have just been given. With respect to the first of those five subtopics, my submissions will be supplementary to rather than repetitive of the submissions that the Victorian Solicitor-General advanced this morning.

The proposition that we advance in relation to that topic is that the jurisprudence of this Court strongly establishes what the Court has called a significant difference between the implied freedom of political communication on the one hand and an unlimited freedom of expression on the other.

It has emphasised that that difference exists because of the necessity, which is emphasised in Lange and was again noted by my learned friend this morning, to link the implied freedom to its constitutional foundation in sections 7, 24, 64 and 128 of the Constitution, and to ensure that the freedom of political communication goes no further than is necessary in order to give effect to that constitutional foundation.

In the earlier decisions of this Court, there was quite some emphasis or discussion upon that fact and it has flowed through in the later decisions and flowed through Lange and it is reflected in McCloy and Brown often captured in the condensed expression that the freedom relates to matters of politics and government. That is the formulation used in Lange and it is often picked up because it has not often been necessary for the Court to drill into exactly what the boundaries of that concept are.

But early on there was a little more examination of it and to add to the discussion this morning, could I invite your Honours to go to one case, Theophanous v Herald & Weekly Times, which, if your Honours are using the joint book of authorities, is in volume 8 at tab 47[1994] HCA 46; , (1994) 182 CLR 104. I would invite your Honours to turn to page 123 of the report.

Theophanous was a case that was really at the core of the implied freedom in that it was about criticisms of the performance and capacity of a member of the Commonwealth Parliament and their fitness for office, so there was not really much question that discussion of that topic was going to fall within the implied freedom. At page 123, in the large paragraph beginning near the middle of the page, your Honours will see that Chief Justice Mason and Justices Toohey and Gaudron said it was nevertheless:

desirable to consider the question: what is the content of the expression “political discussion”, bearing in mind that the underlying purpose of the freedom is to ensure the efficacious working of representative democracy.

And going on in that paragraph, their Honours acknowledged the problem that the subject matter of discussions in the Commonwealth Parliament are potentially very wide, but at the end of the paragraph, in the last five lines or so, their Honours note:

Notwithstanding that consideration and the difficulty of drawing a satisfactory and workable distinction between political discussion and other forms of expression, it should be possible to develop, by means of decisions in particular cases, an acceptable limit to the type of discussion which falls within the constitutional protection.

So their Honours were contemplating that as the jurisprudence developed in relation to the implied freedom, the Court would work out over time how to draw the line but it clearly acknowledged that there is a line between certain kinds of discussion that will be protected by the implied freedom and certain kinds that are not and their Honours go on then to give some examples.

So, they note a television entertainer who ordinarily will not attract the constitutional protection in the course of their comment, albeit in a television forum but if the television personality engages in comment on legislative, executive, or judicial processes, and I will come back to that, then it might. In the first full paragraph on 124 their Honours advance some examples of the kind of things that they had in mind. So:

it is sufficient to say that “political discussion” includes discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office. The concept also includes discussion of the political views and public conduct of persons who are engaged in activities that have become the subject of political debate, e.g., trade union leaders, Aboriginal political leaders, political and economic commentators.

The next sentence and the quote, in my respectful submission, go too far and are hard to reconcile with Lange in that their Honours suggest that the concept is not limited to:

publications and addresses which are calculated to influence choices.

In Lange, I will not take your Honours to it, but in the middle of page 560 of Lange the Court emphasises the focus on the:

communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors.

So, in my submission, in that particular respect, the Court has wound back the concept a little. But, further down on 124, you see the Court distinguishing between commercial speech and political speech. The last line of the page:

Commercial speech without political content “says nothing about how people are governed or how they should govern themselves”.

BELL J: Just going back to the passage before the quotation from Barendt, their Honours say that it is not limited to publications and addresses calculated to influence choices.

MR DONAGHUE: Yes.

BELL J: Is that said to be inconsistent with Lange?

MR DONAGHUE: No, your Honour. I was, perhaps, rushing over that too quickly. If calculated is a limiting concept there – and their Honours are not saying the communication has to be capable of bearing on electoral choice versus calculated – then there is no difficulty. But, in my submission – consistently with the question Justice Gageler asked this morning – the core of this concept is whether or not the communication is one that is capable of bearing on electoral choice.

That is consistent with the examples that their Honours give – their carving out of commercial speech – and then, over the top on page 125, their Honours emphasise the significance of this is that one has to, as a consequence, be cautious about the Canadian and US case law because:

not all speech can claim the protection of the constitutional implication –

here and, because, their Honours then say:

there is a significant difference between that freedom and an unlimited freedom of expression –

So, that is where I took that language from. Now, in our submission, that discussion is entirely consistent with what you see in Lange in the passages that the Victorian Solicitor-General took your Honours to this morning. One finds that phrase “matters of politics of government” used in Brown, at paragraphs 90 and 94, for example, in the judgment of your Honour the Chief Justice and Justices Bell and Keane, and also in your Honour Justice Gageler’s judgment at 188, and in your Honour Justice Gordon’s judgment at 312 to 313.

One sees it in APLA. Again, the Victorian Solicitor –General took you to that this morning. I note that in that case, at paragraph 59 – again, I do not need to take your Honours to it – but having discussed this distinction, Justice McHugh said that it followed that the first question was whether the communication falls within what he called the protected area of communication. So the first question was: is it political in our particular constitutional sense or not? Only if you answer yes do you get to the Lange analysis. Your Honour Justice Gageler’s judgment in McCloy, at paragraphs 118 to 120 are a recent example of emphasis being given to this same set of ideas.

There are only a small number of cases where the distinction between the political communication in the sense I have just described it and non-political communication has mattered in the result, but there are some: for example, Hogan v Hinch. I will not take your Honours to this case. In Hogan v Hinch the Court emphasised that discussion about decisions and reasoning of judgments are not without more about politics and government, even if they are about matters that are obviously in the public interest.

In APLA the Court distinguished between commercial speech and political communication and held that the communications in question fell within the commercial speech category. In Cunliffe the discussion about migration advice that was regulated did not fall within the political and governmental category. So there are examples, in cases where it is appropriate, of the Court giving effect to that distinction.

It matters, for the obvious reason that it would be an error to assume – because we are all familiar with the significance of abortion to free speech debates in the United States – to assume that because these laws are about regulating abortion that means that they are within the domain of our implied freedom. We have to ask the question – that the Americans and the Canadians do not – and while we, of course, accept that some communication about abortion – questions about should abortion be legal, in what circumstances should it be legal, should the 16-week line that one sees in the Tasmanian legislation be moved – those are communications of a kind that we accept would fall within the domain of discussion of politics and matters of government.

Other communications, we submit, plainly, will not fall within that category. And, here, there is no evidence that Ms Clubb’s conduct, or communication, involved matters that were capable of bearing on electoral choice. In that respect, I will not take your Honours back to the material but your Honour Justice Gordon noted yesterday that one sees at pages 295 to 296 of the appeal book, the evidence about Ms Clubb. She was a member of the group, The Helpers of God’s Precious Infants. She was present in the access zone to offer help to women and that was the context in which she engaged in the communications at issue here.

There is also the reference your Honour the Chief Justice made yesterday to the judgment at the validity stage a few pages earlier; that is at 289 of the appeal book. That passage was discussing the type of protest that Dr Allanson had dealt with in her affidavit and was not specific to the appellant’s conduct. But, it was dealing with protests identified by groups, including The Helpers of God’s Precious Infants. So, in that sense, it is of assistance in relation to the characterisation of Ms Clubb’s conduct. And, without taking your Honours back to it, but at paragraph 4, the finding was:

The protestors were not agitating for any political [change] . . . The protestor’s behaviours could only be seen as attempts to discourage women from having an abortion, at all costs.

Now, in writing, the appellant’s position was, as we understood it, that all communication relating to abortion was necessarily political communication, but there was, in our submission, a significant shift in the appellant’s position in argument yesterday. If your Honours have the transcript of yesterday’s hearing, I will take your Honours to two passages to emphasise that because it is, we submit, of some importance. The first relevant passage is on page 26 of the transcript, at line 1089, where your Honour Justice Gageler asked Mr Reynolds:

Mr Reynolds, do you persist with the argument that you have put in writing to the effect that what the Americans call sidewalk counselling is, itself, political communication?

The answer was:

It may be.

Your Honour Justice Gordon asks:

Can you just explain to me why you say may be?

Then at the top of page 27, at 1098, the answer:

Because it all depends on the content of the counselling. To take an example – and I have already said to your Honour Justice Bell – one can easily posit examples of sidewalk counselling that are not political. I concede to that. But it would not be difficult, for example – with the aid of an Australian constitutional lawyer – to formulate a spiel which was used in sidewalk counselling which [did] -

So that is the first passage. The next passage is at page 58, line 2044. Justice Gageler asked:

Do you say that your client’s communication, in this case, was political communication?

MR REYNOLDS: Your Honour, the difficulty – there is a substantial difficulty about that.

GAGELER J: You could start with yes or no and then follow it with an explanation.

MR REYNOLDS: I cannot –

The reason was again that it was fact-specific. So it is, we submit, necessarily inherent in those answers that not all communication relating to abortion, because that is all that we have captured by the Victorian provision, is political communication. It depends on the content. While Mr Reynolds said well, you could not make it constitutional if you had an Australian constitutional lawyer to help you, that falls a long way short of saying that in the ordinary course a person engaging in sidewalk counselling, as the Americans call it, will be engaging in a type of communication that is political and that, we submit, is quite clearly correct.

The contrary conclusion would go a long way towards collapsing the distinction the Court has long drawn between the narrow concept of political communication as matters bearing – well, not narrow, but narrower than a total freedom of expression of matters capable of bearing on electoral choice grounded in the constitutional provisions and a general freedom of expression.

EDELMAN J: There is a very fine line, though, when you are dealing with politically contentious topics, as to whether the content of the speech is directed towards advocating, for example, for legislative change or whether it is directed towards achieving some particular outcome in the circumstances.

MR DONAGHUE: There may be a factual inquiry needed in some circumstances. But at the heart of the concept of sidewalk counselling, as the Americans describe it, and it seems at the heart of the activities of the two appellants in this case, is the notion of trying to persuade particular women to make a particular moral choice about their own behaviour. That is not a communication we say that is directed to electoral choice, so it is not the kind of thing that the implied freedom is about.

GAGELER J: You do accept that Mr Preston’s conduct involved political communication?

MR DONAGHUE: Your Honour, our position on that is that we took this point in Clubb. We did not take it in Preston but we noted that the Tasmania Solicitor-General has advanced the same argument in Preston and, if that argument is successful, then the position will be the same. The difference is perhaps indeed one that I am keen to reflect on overnight because ultimately the difference is that in Mr Preston’s case there were, I think, signs that displayed a message about the right to life under the Universal Declaration of Human Rights. So the question is: if you convey in the course of your protest a claim based on the Universal Declaration of Human Rights, is that itself enough?

At the time we filed our written submissions, we had proceeded on that basis that it would be. On further reflection, I am not so sure, but ultimately the position with Ms Clubb was that, as a person who is seeking to raise in this Court a constitutional argument based on the implied freedom of political communication, she did not establish that she ever

engaged in political communication in the way in which that is understood in the Australian constitutional context.

That, we submit, throws up two relevant questions. Really the questions arise in a context where we have a statute in relation to abortion, conversations or communications relating to abortion which covers both political communications concerning abortion and non –political communications concerning abortion.

Now, given that dual coverage, we submit that there are two relevant questions thrown up as to what the significance of that might be, and we submit there are two answers to it. One is the answer that the learned Victorian Solicitor gave this morning in answer to a question your Honour the Chief Justice asked, which is it bears on the strictness of the justification required because it shows that the law does not target political communication. The moment one accepts that the prohibition on communications relating to abortion concerned both political and non-political, you cannot say it targets political communication.

We accept it is relevant for that reason, and I will develop that a little on my fourth topic. But where we part company with Victoria is that we submit that it also raises a threshold issue about whether the Court should be grappling with the constitutional issue at all, but in light of the time, your Honour, it might be unwise for me to enter into that.

KIEFEL CJ: That might be a very convenient time to adjourn. We will adjourn until 10.00 am.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 11 OCTOBER 2018