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Clubb v Edwards; Preston v Avery [2019] HCA 11 (10 April 2019)
Last Updated: 10 April 2019
HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN
JJ
Matter No M46/2018
KATHLEEN CLUBB APPELLANT
AND
ALYCE EDWARDS & ANOR RESPONDENTS
Matter No H2/2018
JOHN GRAHAM PRESTON APPELLANT
AND
ELIZABETH AVERY & ANOR RESPONDENTS
Clubb v Edwards
Preston v Avery
[2019]
HCA 11
10 April 2019
M46/2018 & H2/2018
ORDER
Matter No M46/2018
- So
much of the appellant's appeal from the judgment of Magistrate Bazzani made on
11 October 2017 as has been removed into this Court
is dismissed.
- The
appellant pay the respondents' costs.
Matter No H2/2018
- So
much of the appellant's appeal from the judgment of Magistrate Rheinberger made
on 27 July 2016 as has been removed into this
Court is dismissed.
- The
appellant pay the respondents' costs.
On appeal from the Magistrates' Court of Victoria (M46/2018) and
the Magistrates Court of Tasmania (H2/2018)
Representation
G O'L Reynolds SC with F C Brohier and D P Hume for the appellant in both
matters (instructed by Khor & Burr Lawyers and DL Legal
Lawyers)
F L Dalziel with J M Davidson for the first respondent in M46/2018
(instructed by Director of Public Prosecutions (Vic))
K L Walker QC, Solicitor-General for the State of Victoria, with K E Foley
and S Gory for the second respondent in M46/2018 and for
the Attorney-General
for the State of Victoria, intervening in H2/2018 (instructed by Victorian
Government Solicitor)
M E O'Farrell SC, Solicitor-General for the State of Tasmania, with
S K Kay for the respondents in H2/2018 (instructed by
Solicitor-General
for Tasmania)
S P Donaghue QC, Solicitor-General of the Commonwealth, with
C L Lenehan and C G Winnett for the Attorney-General of the
Commonwealth,
intervening in both matters (instructed by Australian Government
Solicitor)
P J Dunning QC, Solicitor-General of the State of Queensland, with
F J Nagorcka for the Attorney-General of the State of Queensland,
intervening in both matters (instructed by Crown Solicitor (Qld))
C D Bleby SC, Solicitor-General for the State of South Australia, with
P D Stirling for the Attorney-General for the State of South
Australia, intervening in both matters (instructed by Crown Solicitor's Office
(SA))
G T W Tannin SC with F B Seaward for the Attorney-General for the State of
Western Australia, intervening in both matters (instructed
by State Solicitor
for Western Australia)
J K Kirk SC with Z C Heger for the Attorney-General for the State of New
South Wales, intervening in both matters (instructed by Crown
Solicitor's Office
(NSW))
T J Moses for the Attorney-General for the Northern Territory, intervening in
H2/2018 (instructed by the Solicitor-General for the
Northern Territory)
The Castan Centre for Human Rights Law, The Fertility Control Clinic
(A firm) and The Human Rights Law Centre appearing as amici curiae
in
M46/2018, each limited to its written submissions
LibertyWorks Inc appearing as amicus curiae in H2/2018, limited to its
written submissions
Notice: This copy of the Court's Reasons for Judgment is subject to formal
revision prior to publication in the Commonwealth Law
Reports.
CATCHWORDS
Clubb v Edwards
Preston v Avery
Constitutional law (Cth) – Implied freedom of communication about
governmental or political matters – Where s 185D of
Public Health
and Wellbeing Act 2008 (Vic) and s 9(2) of Reproductive Health (Access to
Terminations) Act 2013 (Tas) prohibit certain communications and activities
in relation to abortions within access zone of 150 m radius around premises at
which abortions are provided – Where appellants engaged in communications
and activities in relation to abortions within access
zone – Whether
communications and activities in relation to abortions are communications about
governmental and political matters
– Whether provisions effectively burden
implied freedom – Whether provisions imposed for legitimate purpose
– Whether
provisions reasonably appropriate and adapted to that purpose
– Whether provisions suitable, necessary and adequate in balance.
Constitutional law (Cth) – Implied freedom of communication about
governmental or political matters – Severance, reading
down and
disapplication – Where appellant charged and convicted of offence against
s 185D of Public Health and Wellbeing Act 2008 (Vic) – Where
it was not contended that appellant's conduct involved political communication
– Where substantial overlap
with issues raised in proceedings in relation
to interstate Act – Whether s 185D able to be severed, read down or
partially disapplied so as to have valid operation in respect of appellant
– Whether appropriate
to proceed to determine constitutional validity of
s 185D.
Words and phrases – "access zone", "adequate in its balance",
"calibration", "compatible with the maintenance of the constitutionally
prescribed system of representative and responsible government", "compelling
purpose", "dignity", "discriminatory", "legitimate purpose",
"necessary",
"partial disapplication", "political communication", "privacy", "prohibited
behaviour", "proportionality testing", "protest",
"rational connection",
"reading down", "reasonably appropriate and adapted", "safe access zone",
"severance", "structured proportionality",
"suitable", "undue burden",
"viewpoint neutral".
Interpretation of Legislation Act 1984 (Vic),
s 6.
Public Health and Wellbeing Act 2008 (Vic), ss 185A ,
185B , 185C , 185D , 185E .
Reproductive Health (Access to Terminations) Act
2013 (Tas), s 9.
- KIEFEL
CJ, BELL AND KEANE JJ. The Parliaments of the States of Victoria and Tasmania
have decriminalised the termination of pregnancies
by artificial means in
certain
circumstances[1].
In addition, the legislature of each State has sought to provide that those
seeking access to, or working in, premises where terminations
are available are
protected from hindrance.
- In
Matter M46 of 2018 ("the Clubb appeal"), the appellant, Mrs Kathleen Clubb,
challenges the validity of s 185D of the Public Health and Wellbeing Act
2008 (Vic) ("the Public Health Act"), which, by virtue of the definition of
"prohibited behaviour" in s 185B(1), prohibits, in certain
circumstances,
"communicating by any means in relation to abortions". Section 185D was
inserted into the Public Health Act by the
Public Health and Wellbeing
Amendment (Safe Access Zones) Act 2015 (Vic) ("the Safe Access Zones Act").
- In
Matter H2 of 2018 ("the Preston appeal"), the appellant, Mr John Graham
Preston, challenges the validity of s 9(2) of the Reproductive Health
(Access to Terminations) Act 2013 (Tas) ("the Reproductive Health
Act"), which, by virtue of the definition of "prohibited behaviour" in
s 9(1), prohibits, in certain
circumstances, "a protest in relation to
terminations".
- Each
of the appellants argues that the challenged provision is invalid because it
impermissibly burdens the freedom of communication
about matters of government
and politics which is implied in the Constitution ("the implied
freedom"). This argument falls to be resolved by application of the test for
invalidity stated in Lange v Australian Broadcasting
Corporation[2]
as explained in McCloy v New South
Wales[3] and
Brown v
Tasmania[4].
- The
test to be applied was adopted in McCloy by French CJ, Kiefel, Bell
and
Keane JJ[5],
and it was applied in Brown by Kiefel CJ, Bell and
Keane JJ[6]
and
Nettle J[7].
For convenience that test will be referred to as "the McCloy test". It
is in the following
terms[8]:
- Does
the law effectively burden the implied freedom in its terms, operation or
effect?
- If
"yes" to question 1, is the purpose of the law legitimate, in the sense that it
is compatible with the maintenance of the constitutionally
prescribed system of
representative and responsible government?
- If
"yes" to question 2, is the law reasonably appropriate and adapted to advance
that legitimate object in a manner that is compatible
with the maintenance of
the constitutionally prescribed system of representative and responsible
government?
- The
third step of the McCloy test is assisted by a proportionality analysis
which asks whether the impugned law is "suitable", in the sense that it has a
rational
connection to the purpose of the law, and "necessary", in the sense
that there is no obvious and compelling alternative, reasonably
practical, means
of achieving the same purpose which has a less burdensome effect on the implied
freedom. If both these questions
are answered in the affirmative, the question
is then whether the challenged law is "adequate in its balance". This last
criterion
requires a judgment, consistently with the limits of the judicial
function, as to the balance between the importance of the purpose
served by the
law and the extent of the restriction it imposes on the implied
freedom[9].
- The
appellants argued that the challenged laws fail to satisfy the McCloy
test. In addition, they invited the Court to approach the question as to
the validity of the challenged provisions on the footing
that they derogate
impermissibly from what their Senior Counsel described as the right to
protest and demonstrate. This invitation
cannot be accepted, for reasons that
may be stated briefly.
- It
is well settled that the implied freedom is a limitation upon the power of
government to regulate communication relating to matters
of government and
politics. It does not confer a right to communicate a particular message in a
particular
way[10]. The
common law right to protest or demonstrate may be abrogated by statute. The
issue in each appeal is whether the statutory
abrogation is valid.
Senior Counsel for the appellants acknowledged in the course of argument
that to accept his invitation would
be contrary to the settled understanding in
this Court's decisions. Notwithstanding that acknowledgment, he advanced no
basis on
which this Court might now adopt a different understanding of the
juridical nature of the implied freedom, and so the invitation
must be
rejected.
- The
statutory provision challenged in each appeal operates within a "safe access
zone", which is the area within a radius of 150
m from premises at which
terminations are provided. In each case, the restriction is confined to
communications about terminations
that are able to be seen or heard by a person
seeking access to such premises. There is thus an overlap of issues that arise
in
the appeals. Accordingly, the convenient course is to deal comprehensively
with those issues in the Clubb appeal, and then to address
the different aspects
of the issues that arise in the Preston appeal.
The Clubb
appeal
The charge
- Mrs Clubb
was charged in the Magistrates' Court of Victoria with the following
offence:
"[Mrs Clubb] at East Melbourne on the 4/8/16 did engage in prohibited
behaviour namely communicating about abortions with persons
accessing premises
at which abortions are provided while within a safe access zone, in a way that
is reasonably likely to cause anxiety
or
distress."
- On
4 August 2016, Mrs Clubb was seen by police to be standing at the
eastern boundary of the East Melbourne Fertility Control Clinic
("the Clinic")
shortly after 10 am. Mrs Clubb stood about 5 m from the entrance
to the Clinic with pamphlets in her hand. At 10.30
am she approached a
young couple entering the Clinic, spoke to them, and attempted to hand them a
pamphlet. The young man declined
the proffered pamphlet and moved, with the
young woman, away from Mrs Clubb. The evidence did not establish what was
said between
Mrs Clubb and the young couple, but the pamphlet that
Mrs Clubb proffered offered counselling and assistance to enable pregnancy
to proceed to birth.
The proceedings
- The
Magistrate upheld the validity of the law under which Mrs Clubb was
charged, concluding that it imposed no burden upon the implied
freedom because
the Public Health Act is not directed at political communication. The
Magistrate found that Mrs Clubb communicated
with the young couple for the
sole purpose of a discussion relevant to abortion, and proceeded to convict
Mrs Clubb of the offence
charged.
- Mrs Clubb
appealed to the Supreme Court of Victoria. In that Court, she advanced three
grounds of appeal. On 23 March 2018, Gordon
J, pursuant to s 40
of the Judiciary Act 1903 (Cth), ordered the removal of
that part of the appeal concerned with two of those grounds into this Court.
- Mrs Clubb
subsequently filed an amended notice of appeal in this Court. She now contends,
in substance, that s 185D of the Public
Health Act, read with para (b)
of the definition of "prohibited behaviour" in s 185B(1), impermissibly
burdens the implied freedom
and is therefore invalid, so that the charge against
her should have been dismissed.
Legislation
- Part 9A
of the Public Health Act is entitled "Safe access to premises at which
abortions are provided". The purpose of Pt 9A is set out in s 185A,
which provides:
"The purpose of this Part is –
(a) to provide for safe access zones around premises at which abortions are
provided so as to protect the safety and wellbeing and
respect the privacy and
dignity of –
(i) people accessing the services provided at those premises; and
(ii) employees and other persons who need to access those premises in the course
of their duties and responsibilities; and
(b) to prohibit publication and distribution of certain
recordings."
- "[A]bortion"
is defined in s 185B(1) by reference to the Abortion Law Reform Act
2008 (Vic). That Act defines "abortion" in
s 3:
"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".
- Section 185C
of the Public Health Act sets out the principles that apply to
Pt 9A:
"The following principles apply to this Part –
(a) the public is entitled to access health services, including abortions;
(b) the public, employees and other persons who need to access premises at which
abortions are provided in the course of their duties
and responsibilities should
be able to enter and leave such premises without interference and in a manner
which –
(i) protects the person's safety and wellbeing; and
(ii) respects the person's privacy and dignity."
- The
offence-creating provision in Pt 9A is s 185D, which
provides:
"A person must not engage in prohibited behaviour within a
safe access zone.
Penalty: 120 penalty units or imprisonment for a term not exceeding 12
months."
- "[S]afe
access zone" is defined in s 185B(1) to mean "an area within a radius of
150 metres from premises at which abortions are
provided".
- "[P]rohibited
behaviour" is defined in s 185B(1) to include:
"(b) subject to
subsection (2), communicating by any means in relation to abortions 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 and is reasonably likely to
cause distress
or anxiety".
- Sub-section (2)
of s 185B provides that "[p]aragraph (b) of the definition of
prohibited behaviour does not apply to an employee or other person
who provides services at premises at which abortion services are provided".
- Section
185D, read with para (b) of the definition of "prohibited behaviour", will
be referred to in these reasons as "the communication
prohibition".
- "[P]rohibited
behaviour" is also defined to mean:
"(a) in relation to a person
accessing, attempting to access, or leaving premises at which abortions are
provided, besetting, harassing,
intimidating, interfering with, threatening,
hindering, obstructing or impeding that person by any means; or
...
(c) interfering with or impeding a footpath, road or vehicle, without reasonable
excuse, in relation to premises at which abortions
are provided; or
(d) intentionally recording by any means, without reasonable excuse, another
person accessing, attempting to access, or leaving premises
at which abortions
are provided, without that other person's
consent".
- Section 185E
provides that a person must not, without the consent of the other person or
without reasonable excuse, publish or distribute
a recording of a person
accessing, attempting to access, or leaving premises at which abortions are
provided, if the recording contains
particulars likely to lead to the
identification of that other person and the identification of that other person
as a person accessing
premises at which abortions are provided.
A
threshold issue
- The
Attorney-General of the Commonwealth, intervening in the proceeding pursuant to
s 78A of the Judiciary Act, submitted that it would be inappropriate
for this Court to determine whether the communication prohibition impermissibly
burdens
the implied freedom in the Clubb appeal because there is no evidence
that Mrs Clubb's conduct actually involved political communication. It
was argued that, although the evidence does not establish what Mrs Clubb
actually said to the couple seeking access
to the Clinic, it may be inferred
that her conduct in proffering the pamphlet was directed solely at dissuading
the young lady from
having an abortion. On that basis, in its application to
Mrs Clubb s 185D imposed no burden on the implied freedom.
- It
was then said on behalf of the Attorney-General that, even if the communication
prohibition were held to impermissibly burden
the implied freedom in some areas
of its application, the prohibition is to be construed in accordance with
s 6(1) of the Interpretation of Legislation Act 1984 (Vic) so as not
to apply to communications about governmental or political matters.
Section 6(1), which mirrors s 15A of the Acts Interpretation Act
1901 (Cth), relevantly requires that every Act "shall be construed as
operating to the full extent of, but so as not to exceed" legislative
power:
"to the intent that where a provision of an Act, or the application
of any such provision to any person, subject-matter or circumstance,
would, but
for this section, have been construed as being in excess of that power, it shall
nevertheless be a valid provision to
the extent to which it is not in excess of
that power".
- Construed
in this way, the communication prohibition would be valid in its application to
Mrs Clubb's conduct whether or not it might
impermissibly burden the
implied freedom in other areas of its application.
- Mrs Clubb
resisted the Attorney-General's submission, arguing that this Court should hold
that her communications were political
in the requisite sense, and further that
the communication prohibition could not be severed into valid and invalid areas
of application.
- There
is force in the submission of the Attorney-General. The implied freedom
protects the exercise by the people of the Commonwealth
of a free and informed
choice as electors. A discussion between individuals of the moral or ethical
choices to be made by a particular
individual is not to be equated with
discussion of the political choices to be made by the people of the Commonwealth
as the sovereign
political authority. That is so even where the choice to be
made by a particular individual may be politically controversial. In
Cunliffe v The
Commonwealth[11],
Brennan J (as he then was) said:
"The immunity from legislative
control which the Constitution implies in order to secure freedom of political
discussion does not preclude the making of laws to control any activity the
control
of which might be politically controversial."
- In
APLA Ltd v Legal Services Commissioner
(NSW)[12],
Hayne J, referring to the observations of Brennan J in
Cunliffe, explained that laws that seek to control "communications about
events (actual or hypothetical) and about rights and remedies ...
are not
directed at communications about whether the happening of events should be
regulated differently or whether available rights
and remedies should be
changed".
- In
the present case, the communication effected by the handing over of the pamphlet
by Mrs Clubb lacked any evident connection with
the electoral choices to be
made by the people of the Commonwealth. It was designed to persuade a recipient
against having an abortion
as a matter for the individual being addressed. It
was not addressed to law or policy makers, nor did it encourage the recipient
to
vote against abortion or to take part in any public debate about the issue. It
may therefore be accepted that the proscription
of this communication did not
involve an interference with the implied freedom.
- On
behalf of the Attorney-General it was noted that in Knight v
Victoria[13]
the Court unanimously reaffirmed that, as stated in Lambert v
Weichelt[14]:
"[i]t is not the practice of the Court to investigate and decide
constitutional questions unless there exists a state of facts which
makes it
necessary to decide such a question in order to do justice in the given case and
to determine the rights of the parties".
- In
Knight[15],
the Court declined to deal with a constitutional question which was hypothetical
because it had not arisen and might never arise.
The Court explained
that[16]:
"it is ordinarily inappropriate for the Court to be drawn into a
consideration of whether a legislative provision would have an invalid
operation
in circumstances which have not arisen and which may never arise if the
provision, if invalid in that operation, would
be severable and otherwise
valid".
- It
is generally accepted that courts will not determine whether a statute
contravenes a constitutional provision or guarantee unless
it is necessary to
secure and protect the rights of a party against an unwarranted exercise of
legislative
power[17].
That practice has been followed both in this Court and in the Supreme Court of
the United
States[18].
- The
practice is based upon prudential
considerations[19].
It has been said that for the Court to proceed to determine the validity of a
statute where a case does not require it may create
the appearance of an
"eagerness" that may detract from the Court's
standing[20].
A further, and powerful, prudential consideration is that justice does not
require the question to be resolved. These considerations
do not detract from
the understanding that whether a statute impermissibly burdens the implied
freedom is not to be answered by reference
to whether it limits the freedom on
the facts of a particular case, but rather by reference to its effect more
generally[21].
As noted above, the implied freedom is not a personal right; it is to be
understood as a restriction upon legislative power.
- It
would ordinarily be inappropriate as a matter of practice for the Court to
determine a question as to the validity of a statute
by reference to the
Constitution where doing justice in the case did not require
it[22]. But
the practice is "not a rigid rule imposed by law which cannot yield to special
circumstances"[23].
As was acknowledged on behalf of the Attorney-General, whether or not the Court
should entertain Mrs Clubb's appeal is a matter
for the Court. And while
the Court will generally be astute to adhere to the practice, this case exhibits
three unusual features
which together warrant the Court dealing with the matter
as an exception to its usual practice.
- First,
the line between speech directed towards agitating for legislative change, or
changes in the attitude of the executive government
to the administration of a
law, and speech directed to the making of a moral choice by a citizen may be
very fine where politically
contentious issues are being discussed.
- Secondly,
while it may be accepted that there is no intersection between the implied
freedom and the facts of the Clubb appeal, it
cannot be said that the question
may never arise. The likelihood of the question arising is obvious; indeed, the
Solicitor-General
of the Commonwealth was not disposed to argue that the Preston
appeal does not involve political communication.
- Finally,
if Mrs Clubb's contentions in relation to the invalidity of the
communication prohibition were to be accepted, she would
be entitled, subject to
the possibility of the prohibition being applied so as to give it a valid
operation in respect of non-political
speech, to have her conviction set aside.
Mrs Clubb disputed the contention that the prohibition can properly be
applied in a way
that does not exceed the power of the Victorian Parliament to
regulate non-political communication. And so, considerations of judicial
economy do not strongly favour adhering to the practice in this case. That is
because it would be necessary for the Court finally
to resolve this dispute in
favour of the view advanced by the Solicitor-General of the Commonwealth in
order to uphold his threshold
submission.
- In
these circumstances, the prudential considerations reflected in the rule of
practice referred to in Lambert do not weigh decisively against
entertaining Mrs Clubb's contention that the communication prohibition
impermissibly burdens the implied
freedom. It is expedient in the interests of
justice to proceed to determine whether Mrs Clubb is entitled to have her
conviction
set aside on the grounds asserted by her in this
Court.
A burden on the implied freedom?
- The
first step in applying the McCloy test is to ask whether the
communication prohibition burdens the implied freedom. To answer that question,
it is necessary to consider
the terms, legal operation and practical effect of
the
statute[24].
- Mrs
Clubb argued that the communication prohibition effectively proscribes many
communications which can be characterised as "political",
including
communications about whether governments should encourage or discourage
abortions and whether laws should be changed to
restrict or facilitate
abortions. Mrs Clubb submitted that in its legal operation the prohibition
proscribes such communications,
and in its practical operation it deters
them.
- The
Solicitor-General for Victoria accepted that the prohibition may capture a broad
range of communications. Even though it is
not expressly targeted at
communications concerning governmental and political matters, it may apply to
such communications. On
that basis, it must be accepted that the prohibition
burdens the implied freedom. A consideration of the nature and extent of the
burden can best be left until discussion of the third step of the McCloy
test[25].
Legitimate
purpose
- For
the purposes of the second step of the McCloy test, a purpose is
compatible with the maintenance of the constitutionally prescribed system of
representative and responsible government,
and therefore legitimate, if it does
not impede the functioning of that
system[26].
- As
will be seen, Mrs Clubb argued that the true purpose of the communication
prohibition is the suppression of public expression
of anti-abortion sentiment,
and that this is not a legitimate purpose. An important theme of her argument
in this regard was that
the connection between the prohibition and its purpose
as propounded by the Solicitor-General for Victoria is so tenuous or remote
that
this "true purpose" can be discerned notwithstanding the terms of the Public
Health Act. To this end, Mrs Clubb deployed arguments
that were intended
to demonstrate the absence of a rational connection between the prohibition and
the purpose put forward by the
Solicitor-General. These arguments were also
directed to negativing the suitability of the prohibition for the purposes of
the third
step of the McCloy test. For the sake of convenience, some of
these arguments will be addressed under this heading, with others being
considered under
the heading of "Suitability" in the discussion of the third
step of the McCloy test.
- The
Solicitor-General for Victoria submitted that the activities of protesters had
previously created an environment of "conflict,
fear and intimidation" outside
abortion clinics, and that these activities were harmful to both patients and
staff in a number of
ways. It was said to be the concern about the effect of
these activities on women accessing abortion services, and on clinic staff,
and
not the suppression of anti-abortion views, that led to the enactment of the
Safe Access Zones Act. In particular, it was said
that existing laws did not
adequately protect women and staff against the effects of these
activities.
- In
this regard, s 185A of the Public Health Act expressly declares the purpose
of Pt 9A to be the protection of the safety and wellbeing
of, and the
preservation of the privacy and dignity of, persons accessing lawful medical
services, as well as staff and others accessing
the premises in the course of
their duties, within the area of a safe access zone.
- In
the Second Reading Speech for the Bill for the Safe Access Zones Act, the
Minister explained why this protective purpose was focused
within the area of
the safe access
zones[27]:
"It
is unreasonable for anti-abortion groups to target women at the very time and
place when they are seeking to access a health service,
or to target health
service staff. The impact of such actions on these women must be understood
within the context of their personal
circumstances. Many are already feeling
distressed, anxious and fearful about an unplanned pregnancy, or a procedure
that they are
about to undergo. To be confronted by anti-abortion groups at
this time is likely to exacerbate these feelings. It is intimidating
and
demeaning for women to have to run the gauntlet of anti-abortion groups outside
health services."
- An
additional aspect of the purpose of the challenged legislation relates to the
preservation and protection of the privacy and dignity
of women accessing
abortion services. Privacy and dignity are closely linked; they are of special
significance in this case. That
significance will be discussed at greater
length later in these reasons, but at this point it is desirable to note the
protection
of dignity as an aspect of the purpose of the communication
prohibition.
- Aharon Barak,
a former President of the Supreme Court of Israel, writing extra-judicially,
said[28]:
"Most central of all human rights is the right to dignity. It is
the source from which all other human rights are derived. Dignity
unites the
other human rights into a whole."
- Generally
speaking, to force upon another person a political message is inconsistent with
the human dignity of that person. As Barak
said[29],
"[h]uman dignity regards a human being as an end, not as a means to achieve the
ends of others". Within the present constitutional
context, the protection of
the dignity of the people of the Commonwealth, whose political sovereignty is
the basis of the implied
freedom[30], is
a purpose readily seen to be compatible with the maintenance of the
constitutionally prescribed system of representative and
responsible government.
Thus, when in
Lange[31]
the Court declared that "each member of the Australian community has an interest
in disseminating and receiving information, opinions
and arguments concerning
government and political matters that affect the people of Australia", there was
no suggestion that any
member of the Australian community may be obliged
to receive such information, opinions and arguments.
- Mrs Clubb
submitted that the communication prohibition does not serve a legitimate purpose
compatible with the maintenance of the
constitutionally prescribed system of
representative and responsible government because the object pursued by the
prohibition is
offensive to that system in that it burdens the anti-abortion
side of the abortion debate more than the pro-choice side. Mrs Clubb
also
argued that to prohibit communications on the ground that they are apt to cause
discomfort is not compatible with the constitutional
system. In this regard, it
was said that political speech is inherently apt to cause discomfort, and
causing discomfort may be necessary
to the efficacy of political speech. These
submissions should not be accepted, for the reasons which follow.
- In
dealing with Mrs Clubb's submissions, some reference to the nature of the
burden on the implied freedom is necessary because it
bears on the second step
of the McCloy test. In Coleman v
Power[32],
McHugh J, for example, said:
"Ordinarily ... serious
interference with, political communication would itself point to the
inconsistency of the objective of the
law with the system of representative
government."
Discriminatory?
- It
is an important part of Mrs Clubb's argument that the communication
prohibition discriminates against her side of the debate about
abortion. A law
that burdens one side of a political debate, and thereby necessarily prefers the
other, tends to distort the flow
of political communication.
- Contrary
to Mrs Clubb's contention that the communication prohibition is aimed at,
and biased against, the anti-abortion viewpoint,
the prohibition is not directed
exclusively at anti-abortion communication. In truth, the prohibition is
viewpoint neutral. That
is so as a matter of the ordinary meaning of the text
of para (b) of the definition of "prohibited behaviour" in s 185B(1),
which
is concerned with communicating "in relation to abortions" rather than
"against abortions". The ordinary meaning of the text is
confirmed by
s 185B(2); that provision would be unnecessary if only anti-abortion
communications were caught by the definition.
It is also confirmed by the
consideration that a person seeking access to premises where abortions are
provided is likely to be caused
distress or anxiety by attempts by pro-choice
activists to co-opt her as part of their message as well as by the reproach of
anti-abortionists.
- It
may well be that the prohibition is likely to be breached in practice more
frequently by those espousing an anti-abortion message
than by those of a
contrary view, but it is simply not the case that the prohibition targets only
one side of the controversy. The
mischief at which the prohibition is directed,
namely interference by activists with those seeking access to premises where
abortions
are provided to obtain, or to assist in providing, abortions, may
arise no less from the activities of those espousing a pro-abortion
message as
from those espousing an anti-abortion message. The privacy and the dignity of
the persons intended to be protected by
the prohibition may be adversely
affected by either kind of communication. And, in the nature of things,
pro-abortion activities
outside a clinic where abortions are provided are apt to
attract countermeasures by anti-abortion activists.
Discomfort or
hurt feelings
- Mrs
Clubb argued that if the objects of the communication prohibition are truly
those set out in s 185A, then s 185D lacks a rational
connection to
those objects because it applies to conduct apt to cause no more than
"discomfort" or "hurt feelings".
- This
argument ignores the plain words of the statutory text. The conduct in question
must be "reasonably likely to cause distress
or anxiety", not mere discomfort or
hurt feelings. The connection required by the prohibition between the
communication and the
potential to cause distress or anxiety to another person
is not illusory. In the context of para (b) of the definition of
"prohibited
behaviour", the word "likely" bears 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"[33].
- The
tendentious suggestion that the communication prohibition might be engaged by
conduct apt to cause no more than "discomfort"
or "hurt feelings" calls to mind
suggestions to the effect that political speech cannot be truly free if it can
be silenced for no
reason other than to spare the feelings of those spoken
about. Suggestions to that effect may have some attraction in the context
of
public conflict between commercial or industrial rivals or in the context of a
political debate between participants who choose
to enter public controversy.
But they have no attraction in a context in which persons attending to a private
health issue, while
in a vulnerable state by reason of that issue, are subjected
to behaviour apt to cause them to eschew the medical advice and assistance
that
they would otherwise be disposed to seek and obtain.
- One
may conclude that the second step of the McCloy test is satisfied. The
purposes of the communication prohibition do not impede the functioning of the
constitutionally prescribed
system of representative and responsible government.
To the extent that the purposes include protection against attempts to prevent
the exercise of healthcare choices available under laws made by the Parliament,
those purposes are readily seen to be compatible
with the functioning of the
system of representative and responsible government. Further, a law that
prevents interference with
the privacy and dignity of members of the people of
the Commonwealth through co-optation as part of a political message is
consistent
with the political sovereignty of the people of the Commonwealth and
the implied freedom which supports
it[34].
Advancing
the legitimate purpose: is proportionality testing necessary?
- The
Solicitor-General for Victoria submitted that it is not necessary in this case
to undertake all of the proportionality testing
involved in the third step of
the McCloy test. That was said to be because any burden on the implied
freedom is minimal and the burden is imposed to further a compelling
legislative
purpose. It was said that all that is required in the present case is that the
means adopted by the law are rationally
related to the pursuit of that
compelling purpose. It was said that there is ample evidence of a rational
connection between the
legislative purpose and the communication prohibition.
- The
Solicitor-General submitted that the public interest in protecting those
accessing abortion clinics from harm is so compelling
that any restriction on
the implied freedom is more than balanced by the benefits sought to be achieved.
In addition, she argued
that the communication prohibition is no broader than is
necessary to achieve its object, because it is not possible to eliminate
the
prohibition, or reduce its scope, while still retaining its effectiveness.
- These
submissions by the Solicitor-General should not be accepted.
- It
may be accepted that when the burden on the implied freedom is very slight it
becomes difficult to say, consistently with the
limitations on judicial power,
that alternative measures are available that would be less burdensome while at
the same time equally
efficacious. However, McCloy requires that any
effective burden on the freedom must be
justified[35].
It could hardly be said that a measure which is more restrictive of the freedom
than is necessary can rationally justify the
burden[36].
- Further,
that a burden upon the implied freedom is of small magnitude and for a
compelling legitimate purpose does not dispense with
the need to determine
whether the impugned law is reasonably appropriate and adapted to the
achievement of its
purpose[37].
- At
this point in the application of the McCloy test, the focus has shifted
to the relationship between the purpose and the extent to which the implied
freedom is burdened. The
issue for the courts is not to determine the correct
balance of the law; that is a matter for the legislature. The question is
whether
the law can be seen to be irrational in its lack of balance in the
pursuit of its object. While it may be accepted that the court
will reach that
conclusion only where the disproportion is such as to manifest irrationality, it
is desirable, in the interests of
transparency, that the court face up to, and
explicitly deal with, this question.
- The
ultimate question to which the enquiry is directed is whether the burden
effected by the law is, as stated in
Lange[38],
"undue". In the plurality judgment in
McCloy[39],
it was said:
"The inquiry must be whether the burden is undue,
not only by reference to the extent of the effect on the freedom, but also
having
regard to the public importance of the purpose sought to be achieved.
This is the balance which necessarily, and logically, inheres
in the Lange
test."
- In
this context, to speak of an impermissible burden on the implied freedom is to
speak of a burden that is undue in the sense that
it is disproportionate to the
law's effect in achieving its legitimate
purpose[40].
So in
Brown[41],
the impugned law was held invalid by Kiefel CJ, Bell and Keane JJ because
of the "overreach of means over ends". In that case,
the impugned law, in its
operation and effect, burdened the implied freedom in a way that exceeded the
rational pursuit of the legitimate
purpose of protecting businesses from
disruption by protesters.
- The
question whether a law is "adequate in its balance" is not concerned with
whether the law strikes some ideal balance between
competing considerations. It
is no part of the judicial function to determine "where, in effect, the balance
should
lie"[42].
Rather, the question is whether the law imposes a burden on the implied freedom
which is "manifestly excessive by comparison to
the demands of legitimate
purpose"[43].
- Proportionality
testing is an assessment of the rationality of the challenged law as a response
to a perceived mischief that must
also respect the implied freedom. A law which
allows a person to be shot and killed in order to prevent damage to property can
be
seen to have a connection to the purpose of preventing damage to property.
It may also be accepted that other means of preventing
damage to property would
not be as effective. Nevertheless, the law is not a rational response to the
mischief at which it is directed
because it is manifestly disproportionate in
its effect on the peace, order and welfare of the community. In the same way,
it is
only if the public interest in the benefit sought to be achieved by the
legislation is manifestly outweighed by an adverse effect
on the implied freedom
that the law will be invalid.
- In
McCloy[44],
the plurality said:
"To say that the courts are able to discern
public benefits in legislation which has been passed is not to intrude upon the
legislative
function. The courts acknowledge and respect that it is the role of
the legislature to determine which policies and social benefits
ought to be
pursued. This is not a matter of deference. It is a matter of the boundaries
between the legislative and judicial functions."
- It
is important to be clear that what is involved is not a comparison of the
general social importance of the purpose of the impugned law and the general
social importance of keeping the
implied freedom unburdened. Rather, what is to
be balanced are the effects of the law – in terms of the benefits it seeks
to achieve in the public interest and the extent of the burden on the implied
freedom. Such an exercise is familiar as an exercise
of judicial power from
cases including Sankey v
Whitlam[45],
Hinch v Attorney-General
(Vict)[46]
and Hogan v
Hinch[47].
And as the plurality noted in
McCloy[48],
"notions of balancing may be seen in Castlemaine Tooheys Ltd v South
Australia[49],
in the context of the s 92 freedom".
- The
proportionality analysis applied in McCloy and Brown accords with
the foundational authority of the decision in Lange, where the
Court
said[50]:
"Different
formulae have been used by members of this Court in other cases to express the
test whether the freedom provided by the
Constitution has been infringed. Some
judges have expressed the test as whether the law is reasonably appropriate and
adapted to the fulfilment
of a legitimate purpose. Others have favoured
different expressions, including proportionality. In the context of the
questions
raised by the case stated, there is no need to distinguish these
concepts."
- Furthermore,
the abstract and indeterminate language of the second limb in
Lange[51]
(which was stated as the third step of the McCloy test) can be a
source of difficulty in its application. The proportionality analysis referred
to in McCloy and Brown addresses this and explains how the
conclusion required by Lange – whether the burden is "undue"
– is to be reached. In addition, a structured proportionality analysis
provides the means
by which rational justification for the legislative burden on
the implied freedom may be analysed, and it serves to encourage transparency
in
reasoning to an
answer[52]. It
recognises that to an extent a value judgment is required but serves to reduce
the extent of it. It does not attempt to conceal
what would otherwise be an
impressionistic or intuitive judgment of what is "reasonably appropriate and
adapted"[53].
Suitability
- Whether
a law that burdens the implied freedom is justified in accordance with the third
step of the McCloy test requires a consideration of the nature and extent
of the burden. In this regard, the Solicitor-General for Victoria submitted
that any burden on the implied freedom is incidental: not all communication
about abortions is political, and the communication
prohibition is not directed
to political communication. Only communications about abortions are targeted.
Further, any effect on
political communication is insubstantial because, outside
a safe access zone, people may protest and express their views about abortions
however they choose. It was said that all that is involved in s 185D is a
"time, manner and place"
restriction[54] that
is tailored to meet a legitimate purpose and to leave political communication
otherwise untrammelled.
- Mrs Clubb
argued that the prohibition applies exclusively to the anti-abortion side of the
debate. This argument has already been
considered and rejected.
- Mrs Clubb's
other arguments under this heading will now be examined. That examination
reveals that these arguments seriously exaggerate
the effect of the prohibition
on the implied freedom.
The protection of people in safe access
zones
- Mrs Clubb
argued that the circumstance that the prohibition is directed to communications
in relation to abortions, whether or not
the communication is in fact seen or
heard, is an impermissible burden on the freedom. Further, it was said that
because there need
not be an actual person accessing or leaving the premises for
the purposes of an abortion, the prohibition applies whether or not
distress or
anxiety is in fact caused to any person and irrespective of whether there is in
fact harm to safety, wellbeing, privacy
or dignity.
- Mrs Clubb's
argument that the prohibition is excessive in its effect because it does not
require proof of actual harm to any person
fails to appreciate the protective
purpose of the legislation. The prohibition on communicating about abortions in
a safe access
zone is intended to protect and preserve a corridor of ready
access to reproductive healthcare facilities rather than merely to punish
an
actual interference with a person seeking such access. It is the creation of
safe access zones that prevents a situation in which
an unwilling listener or
viewer cannot avoid exposure to communication about abortions outside the clinic
because they are obliged
to enter the clinic from the area in which activists
are present. That the prohibition may be breached without a person actually
hearing or seeing a communication about abortions, or actually being caused
distress or anxiety, is an aspect of the prophylactic
approach of creating safe
access zones.
On-site protests
- Mrs Clubb
argued that abortion has been a topic of political debate in Australia for many
years. It was said that it is, and has
been, a characteristic feature of that
debate that many of those who have views on the issue choose to express those
views outside
or near premises at which abortions can be obtained. As a result,
political communications about abortions are often most effective
when they are
engaged in at a place where abortions are provided. Further, it was said that
persons entering or leaving premises
at which abortions are provided are
especially vulnerable to distress or anxiety, and, as a result, the prohibition
is likely to
proscribe or deter all or almost all communications in relation to
that topic, and so to proscribe political communications in relation
to abortion
near abortion facilities is to proscribe those communications in the very
location that they are typically most effective.
- It
may be noted immediately that Mrs Clubb's submission that anti-abortion
communication is most effective when it occurs near an
abortion clinic is not
supported by any finding of fact or evidence. In this regard, the present case
may be contrasted with
Brown[55],
where it was established as a matter of fact that "on-site protests against
forest operations and the broadcasting of images of parts
of the forest
environment at risk of destruction are the primary means of bringing such issues
to the attention of the public and
parliamentarians". There was thus no
evidence in the present case upon which an argument for the special efficacy of
on-site protests
as a form of political communication about the issue of
abortion could be based.
- In
any event, there is a more important point of distinction between this case and
Brown. The on-site protests against forest operations discussed in
Brown did not involve an attack upon the privacy and dignity of other
people as part of the sending of the activists' message. Even if
the argument
for Mrs Clubb as to the special potency of on-site protests as a mode of
political communication were to be accepted,
her argument would still fail
because the implied freedom is burdened only within the safe access zones. It
is within those zones
that intrusion upon the privacy, dignity and equanimity of
persons already in a fraught emotional situation is apt to be most effective
to
deter those persons from making use of the facilities available within the safe
access zones. This, after all, is the very reason
for Mrs Clubb's
activities. Mrs Clubb's own argument demonstrates that the legitimate
purpose which justifies the burden is at its
strongest within the perimeter of
the safe access zones. Within those zones, the burden on the implied freedom is
justified by the
very considerations of the dignity of the citizen as a member
of the sovereign people that necessitate recognition of the implied
freedom.
- Those
wishing to say what they want about abortions have an unimpeded ability to do so
outside the radius of the safe access zones.
The 150 m radius of the safe
access zones serves merely to restrict their ability to do so in the presence of
a captive audience
of pregnant women seeking terminations and those involved in
advising and assisting them. In relation to the radius of the safe
access
zones, the Minister explained in her Second Reading
Speech[56]:
"A
zone of 150 metres was chosen after consultation with a wide range of
stakeholders. Hospitals and clinics provided examples of
the activities of
anti-abortion groups and the places where they confronted patients and staff.
This included waiting at places
where patients parked their cars and at public
transport stops. Some health services asked for a much larger zone, but after
careful
consideration it was determined that a zone of 150 metres would be
sufficient to protect people accessing premises."
- The
impugned law is suitable, in that it has a rational connection to its purpose.
The communication prohibition has a rational
connection to the statutory
purpose[57] of
promoting public health. Unimpeded access to clinics by those seeking to use
their services and those engaged in the business
of providing those services is
apt to promote public health. A measure that seeks to ensure that women seeking
a safe termination
are not driven to less safe procedures by being subjected to
shaming behaviour or by the fear of the loss of privacy is a rational
response
to a serious public health issue. The issue has particular significance in the
case of those who, by reason of the condition
that gives rise to their need for
healthcare, are vulnerable to attempts to hinder their free exercise of choice
in that
respect[58].
- In
addition, the communication prohibition has a rational connection to the
statutory purpose of protecting the privacy and dignity
of women accessing
abortion services. As noted above, that connection accords with the
constitutional values that underpin the implied
freedom.
Necessity
- The
unchallenged evidence in this case is that, in contrast to the pre-existing law,
the effect of the communication prohibition
has been to reduce the deterrent
effect of anti-abortion activities near premises where abortions are provided.
There was evidence
before the Magistrate from Dr Allanson of her
observations that until the commencement of Pt 9A of the Public Health Act
in 2015,
attempts by the Clinic to engage the assistance of the police and the
Melbourne City Council to help stop harassment of the Clinic's
patients by
anti-abortion groups were ineffective.
- Mrs Clubb
submitted that the communication prohibition is not necessary to achieve the
objects referred to in s 185A because there
are less burdensome
alternatives. Mrs Clubb sought to develop this argument in a number of
ways, each of which may be dealt with
briefly.
- First,
she drew attention, as an example, to para (a) of the definition of
"prohibited behaviour". This argument cannot be accepted.
The communication
prohibition is necessary because non-violent protest that would not fall within
para (a) of the definition of
"prohibited behaviour" may well be apt to
shame or frighten a pregnant woman into eschewing the services of a clinic. As
was said
by Saunders J in R v
Lewis[59]:
"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."
- Silent
but reproachful observance of persons accessing a clinic for the purpose of
terminating a pregnancy may be as effective, as
a means of deterring them from
doing so, as more boisterous demonstrations. Further, there is the pragmatic
consideration that "the
line between peaceful protest and virulent or even
violent expression against abortion is easily and quickly
crossed"[60].
- The
communication prohibition gives effect to a legislative judgment that the laws
in Victoria prior to the enactment of the Safe
Access Zones Act did not
adequately protect women seeking to access reproductive health clinics from
activities which, though non-violent,
had the potential to deter them from
availing themselves of those facilities. The legislative judgment that
activities falling short
of intentional intimidation, harassment, threatening
behaviour or physical interference in terms of personal violence were also
capable
of deterring unimpeded access to clinics cannot be said to impose an
unnecessary burden upon the implied freedom. The statement
of compatibility in
relation to the Bill for the Safe Access Zones Act tabled by the Minister for
Health in accordance with the Charter of Human Rights and Responsibilities
Act 2006 (Vic)
explained[61]:
"Provisions
that only prohibit intimidating, harassing or threatening conduct, or conduct
which impedes access to premises are inadequate
for a number of reasons,
including:
(a) They can only be enforced after the harmful conduct has occurred and there
are significant difficulties in enforcing such laws.
This is particularly the
case in relation to conduct directed toward women accessing legal abortion
services. 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.
(b) It will not fully protect staff members and others from the harmful effect
of the otherwise peaceful protests given their sustained
nature and the
background of extreme conduct against which they occur. Staff and members of
the public are entitled to be safe and
to feel safe in undertaking their lawful
work activities and accessing lawful health services.
I consider that it is necessary to create a safe access zone around premises at
which abortions are provided, and prohibit certain
communications in relation to
abortions within that zone, in order to prevent the harm and not just to respond
to inappropriate conduct
when it occurs."
- Mrs Clubb
also argued that a less burdensome law could have excluded conduct apt to cause
no more than discomfort. That argument
has already been considered and
rejected.
- Mrs Clubb
argued that the communication prohibition is unnecessarily burdensome because of
the absence of a requirement that an offending
communication actually be heard
or seen by any person. Such a requirement would lessen the effectiveness of the
prohibition. A
contravention of the communication prohibition can be proved
without the need to call a person protected by the legislation to give
evidence.
That can readily be understood as an aspect of the protection of the privacy of
women seeking access to abortion services.
- Mrs Clubb
also argued that the burden on the implied freedom is unduly heavy because of
the absence of a requirement that the communication
occur without the consent of
the recipient. That argument should be rejected. Such a requirement would mean
that in many, practically
speaking all, cases the harm to which the prohibition
is directed would be done before consent is sought. In addition, such a
requirement
would facilitate avoidance of the prohibition by the simple
expedient of having someone within the safe access zone consent to receiving
an
otherwise prohibited communication.
- Next,
Mrs Clubb argued that the extent of the burden might have been reduced by
providing for an exception to the prohibition during
election campaigns. That
argument too should be rejected. In the nature of things the need for abortion
services and the anxiety
and distress associated with accessing those services
is not lessened during election campaigns. If anything, the contrary is likely
to be the case.
- Mrs Clubb
also argued that the communication prohibition is excessive in its effect
because it is a strict liability offence not
confined by a mens rea
requirement. Once again that is not so. The prohibition is not engaged unless
there is an intentional act
of communication of matter relating to abortions,
and that act must be performed in a manner that is capable of being heard by a
person who may be accessing or attempting to access the relevant premises.
Further, the communication must occur, and be intended
to occur, within 150 m of
premises at which abortions are
provided[62].
Whether the matter communicated is reasonably likely to cause distress or
anxiety is a matter of fact to be determined objectively.
Adequacy of balance
- If
an impugned law's purpose is compatible with the constitutionally prescribed
system of representative and responsible government,
the law will nevertheless
be invalid if it pursues that purpose by means that have the effect of
impermissibly burdening the implied
freedom[63].
- As
noted above, it is no part of the implied freedom to guarantee a speaker an
audience, much less a captive audience. As Nettle
J observed in
Brown[64]:
"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[65], and
still less to do so by preventing, disrupting or obstructing a listener's lawful
business activities. Persons lawfully carrying
on their businesses are entitled
to be left alone to get on with their businesses and a legislative purpose of
securing them that
entitlement is, for that reason, a legitimate governmental
purpose."
- The
implied freedom is not a guarantee of an audience; a fortiori, it is not an
entitlement to force a message on an audience held
captive to that
message[66].
As has been noted, it is inconsistent with the dignity of members of the
sovereign people to seek to hold them captive in that
way.
- A
law calculated to maintain the dignity of members of the sovereign people by
ensuring that they are not held captive by an uninvited
political message
accords with the political sovereignty which underpins the implied
freedom[67]. A
law that has that effect is more readily justified in terms of the third step of
the McCloy test than might otherwise be the case.
- The
burden on the implied freedom is slight in respect of both its subject matter
and its geographical extent. Within the safe access
zones, the only burden on
the implied freedom is upon communications about abortions, and that burden is
limited to preventing the
capture of an audience. In these circumstances, one
cannot say that a smaller safe access zone would be as effective in restricting
the ability of those who wish to have their say about abortions in the presence
of a captive audience of pregnant women and those
involved in advising and
assisting them, while at the same time imposing a lesser practical burden on the
implied freedom.
- In
addition, in McCloy the public interest served by the impugned
legislation was held to be the minimisation of the risk of the corruption of the
electoral
process. There the impugned legislation was seen to pursue objectives
that "support and enhance equality of access to government,
and the system of
representative government which the freedom
protects"[68].
For similar reasons in the present case, difficulties in the balancing exercise
do not loom as large as they sometimes may. The
balance of the challenged law
can, in significant part, be assessed in terms of the same values as those that
underpin the implied
freedom itself in relation to the protection of the dignity
of the people of the Commonwealth.
- In
summary in relation to the third step of the McCloy test, the limited
interference with the implied freedom is not manifestly disproportionate to the
objectives of the communication
prohibition. The burden on the implied freedom
is limited spatially, and is confined to communications about abortions. There
is
no restriction at all on political communications outside of safe access
zones. There is no discrimination between pro-abortion
and anti-abortion
communications. The purpose of the prohibition justifies a limitation on the
exercise of free expression within
that limited area. And the justification of
the prohibition draws support from the very constitutional values that underpin
the
implied freedom. Accordingly, the communication prohibition satisfies the
third step of the McCloy test.
Conclusion and
orders
- So
much of the appellant's appeal from the judgment of Magistrate Bazzani made on
11 October 2017 as has been removed into this Court
should be
dismissed.
- The
appellant must pay the respondents' costs.
The Preston
appeal
The charge
- Mr
Preston was charged in the Magistrates Court of Tasmania with breaching
s 9(2) of the Reproductive Health Act on two occasions
in September 2014
and on one occasion in April 2015.
- The
events which give rise to the charges occurred within 150 m of the
Specialist Gynaecology Centre situated at 1A Victoria Street,
Hobart. On
each occasion, Mr Preston was on the footpath of Macquarie Street near its
corner with Victoria Street and was able to
be seen with placards which
included statements such as "EVERY ONE HAS THE RIGHT TO LIFE, Article 3,
Universal Declaration of Human
Rights" and "EVERY CHILD HAS THE RIGHT TO LIFE,
Article 6, UN Convention on the Rights of the Child" and depicting,
among other things,
a representation of a foetus at eight weeks.
Mr Preston also had leaflets in his hand and was carrying a media release.
The proceedings
- The
Magistrate found that the offences charged were proved beyond a reasonable
doubt. Her Honour then proceeded to determine the
argument raised by the
defence that s 9(2) of the Reproductive Health Act, read with para (b)
of the definition of "prohibited behaviour"
in s 9(1), impermissibly
burdened the implied freedom. Her Honour rejected that defence, concluding
that the legislation is valid.
- Mr Preston
sought review of the decision of the Magistrates Court in the Supreme Court of
Tasmania. In that Court, he advanced eight
grounds of review. On 23 March
2018, Gordon J, pursuant to s 40 of the Judiciary Act, ordered the
removal of that part of the appeal concerned with six of those grounds into this
Court.
- Mr Preston
subsequently filed an amended notice of appeal in this Court, which advanced six
grounds of review, contending in substance
that the Magistrate should have found
that s 9(2) of the Reproductive Health Act, read with para (b) of the
definition of "prohibited
behaviour" in s 9(1), impermissibly burdens the
implied freedom.
Legislation
- Section 9
of the Reproductive Health Act relevantly provides:
"(1) In this
section –
access zone means an area within a radius of 150 metres from
premises at which terminations are provided;
...
prohibited behaviour means –
...
(b) a protest in relation to terminations that is able to be seen or heard by a
person accessing, or attempting to access, premises
at which terminations are
provided; or
...
(2) A person must not engage in prohibited behaviour within an access zone.
Penalty: Fine not exceeding 75 penalty units or imprisonment for a term not
exceeding 12 months, or both."
- "[T]erminate"
is defined in s 3(1) of the Act as
follows:
"terminate 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 –
but does not include –
(d) the supply or procurement of any thing for the purpose of discontinuing a
pregnancy; or
(e) the administration of a drug or a combination of drugs for the purpose of
discontinuing a pregnancy by a nurse or midwife acting
under the direction of a
medical practitioner".
- Section 9(2),
read with para (b) of the definition of "prohibited behaviour", will be
referred to in these reasons as "the protest
prohibition".
- The
expression "prohibited behaviour" is also defined to mean:
"(a) in
relation to a person, besetting, harassing, intimidating, interfering with,
threatening, hindering, obstructing or impeding
that person; or
...
(c) footpath interference in relation to terminations; or
(d) intentionally recording, by any means, a person accessing or attempting to
access premises at which terminations are provided
without that person's
consent".
- The
expression "footpath interference" is not defined in the legislation. It seems
that the expression was derived from s 2(1) of
the Access to Abortion
Services Act 1995 of British Columbia, which prohibits "sidewalk
interference". In R v
Lewis[69],
it was said that the expression "sidewalk interference" corresponded with
"sidewalk counselling", a form of private health communication.
Having regard
to s 9(2) of the Reproductive Health Act, the expression "footpath
interference" would catch conduct apt to waylay
the user of a footpath in an
access zone seeking access to a clinic in relation to a termination.
- Finally,
s 9(4) provides:
"A person must not publish or distribute a
recording of another person accessing or attempting to access premises at which
terminations
are provided without that other person's consent."
The differences between the Tasmanian and Victorian prohibitions
- It
is apparent that the Reproductive Health Act differs from its Victorian
counterpart in a number of respects. First, the Reproductive
Health Act does
not expressly state its objects. Secondly, the impugned prohibition is directed
at "a protest" about terminations.
Thirdly, the scope of the operation of the
prohibition is not limited by a requirement that the protest be reasonably
likely to
cause distress or anxiety.
- It
might be said that the case to be made for the invalidity of the protest
prohibition as an impermissible burden on the implied
freedom is stronger than
the case to be made against its Victorian counterpart because the prohibition is
directed squarely at what
is a familiar form of political communication, because
the Tasmanian legislation does not articulate the objects that justify its
intrusion on the implied freedom, and because the protest prohibition does not
require a potential to cause distress or anxiety.
It might also be said that
the Victorian legislation is an example of an obvious and compelling alternative
measure less intrusive
upon the implied freedom. In the end, however, these
differences do not warrant a different result in the Preston
appeal.
A burden on the implied freedom
- Mr Preston
submitted that in the phrase "protest in relation to terminations", the word
"protest" should be understood as referring
exclusively to a protest expressing
a message that is in opposition to terminations. Mr Preston argued that
the protest prohibition
is in terms directed to "protest", which is a
characteristic mode of political communication. It was said that the
prohibition imposes
a more direct burden on political communication than the
Victorian legislation because its sole focus is "protest".
- The
Solicitor-General for Tasmania accepted that a protest in relation to
terminations may in some cases contain political communication.
That concession
was rightly made. The protest prohibition is a burden on the implied freedom.
Given the express inclusion of "footpath
interference" in the definition of
"prohibited behaviour", it is impossible to understand the word "protest" in the
prohibition on
protest as referring to anything other than a public
demonstration about abortion. In context, the term "protest" is apt to
encompass
the dissemination of a message "in relation to terminations" that
concerns governmental or political matters.
Legitimate
purpose
- The
Solicitor-General for Tasmania submitted that, notwithstanding the absence of a
statement in the Reproductive Health Act of its
objects, the protest prohibition
can readily be seen to serve the purpose of protecting the safety, wellbeing,
privacy and dignity
of persons accessing premises where terminations are
provided. That submission should be accepted.
- While
the Reproductive Health Act is not as explicit as to its objects as
its Victorian counterpart, its purpose is apparent from
its terms and
subject matter as well as from the Second Reading Speech for the Bill for
the Reproductive Health Act. The Minister
for Health, having stated
that "without the provision of a full range of safe, legal and accessible
reproductive services, women
experience poorer health
outcomes"[70],
went on to identify, as a significant obstacle to women accessing safe
termination services, the "stigma" and "shame" associated
with having to run the
gauntlet of protesters in order to gain access to medical clinics providing
those
services[71].
She went on to
say[72]:
"[S]tanding on the street outside a medical facility with the
express purpose of dissuading or delaying a woman from accessing a legitimate
reproductive health service is ... quite unacceptable."
- The
object of the prohibition is to protect the safety and wellbeing, physical and
emotional, of persons accessing and leaving abortion
clinics and to ensure that
women may have unimpeded access to, and doctors may provide, terminations.
- Mr Preston
argued that the prohibition does not serve a legitimate purpose because it
applies exclusively to anti-abortion protests
and could apply to protests
against the Reproductive Health Act itself. Contrary to this submission, the
prohibition is viewpoint
neutral. It would be contravened by a protest in
favour of the Reproductive Health Act. One cannot ignore the use of
viewpoint neutral language rather than an obvious alternative, such as
"protest
against abortions", if the legislation was targeted only at anti-abortion
protests. Further, protest about terminations
is a public demonstration or
manifestation of opinion in relation to one or other side of the debate about
terminations. Whichever
side of the debate is engaged in the public
demonstration or manifestation, the emotional temperature within the access zone
will
be raised, and that, it can readily be accepted, will create a disincentive
to a person previously disposed to seek access to medical
advice and assistance
in relation to a termination. Further, as noted earlier, pro-abortion
activities outside a clinic where abortions
are provided are likely, in the
nature of things, to attract countermeasures by anti-abortion
activists.
Suitability
- The
protest prohibition has a rational connection to the purpose of facilitating
effective access to pregnancy termination services.
Where pregnancy
termination-related protests can be seen or heard by persons attempting to
access premises providing that health
service, pregnant women may be deterred
from accessing the premises. Conduct avowedly undertaken with a view to
persuading another
person to desist from a course of conduct is apt to produce
that result. The type of communication caught by the protest prohibition
is a
termination-related protest that, in practice, a woman attempting to access an
abortion facility cannot avoid except by eschewing
the medical advice and
assistance that she seeks.
Necessity
- Mr Preston
argued that the protest prohibition applies whether or not any harm, anxiety or
distress is in fact caused, whether or
not any harm, anxiety or distress is
likely, reasonably likely or reasonably possible, and whether or not any harm,
anxiety or distress
is in fact intended. But the absence of a limiting
requirement that the protest be likely to cause distress or anxiety is of little
moment once it is appreciated that the protest prohibition is concerned, as it
plainly is, to prevent demonstrations about terminations
in the vicinity of
facilities where terminations are provided.
- A
public demonstration or manifestation about abortions in the vicinity of a
clinic inevitably constitutes a threat to the equanimity,
privacy and dignity of
a pregnant woman seeking medical advice and assistance in relation to a
termination. And that will be so
whether or not such a person is likely to
suffer distress or anxiety as a result. A decision to avoid a protest about
abortions
may reflect a calm and reasonable decision to eschew an unwelcoming
environment as well as a stressed and anxious reaction to
it.
Adequacy of balance
- The
Reproductive Health Act, in targeting a "protest" about abortion, is directed at
public demonstration, whatever its viewpoint,
which is likely to be confronting
to those in need of medical advice and assistance from a clinic. The purposes
of the Reproductive
Health Act in this respect are the same as those of
Pt 9A of the Victorian Act. The cardinal features of both pieces of
legislation
are that the burden on the implied freedom operates only within safe
access zones and is confined to the discussion of abortion.
The burden on
political communication imposed by the protest prohibition is slight, in that,
to the extent that it does affect political
communication, it does so only
within access zones, and without discriminating between sources of protest.
- The
restriction in the Tasmanian Act on the ability of people to engage in public
debate about abortions is adapted to meet the same
considerations of the
advancement of public health and the protection of the privacy and dignity of
citizens as the restriction in
the Victorian Act. There is no manifest
disproportion between the burden on political communication effected by the
protest prohibition
and the law's legitimate purpose.
Conclusion
and orders
- So
much of the appellant's appeal from the judgment of Magistrate
Rheinberger made on 27 July 2016 as has been removed into this
Court
should be dismissed.
- The
appellant must pay the respondents' costs.
GAGELER J.
Clubb v Edwards
- Mrs
Clubb does not assert that she was engaged in any form of political
communication when she attempted to hand a pamphlet to a
couple outside the East
Melbourne Fertility Control Clinic on 4 August 2016. Mrs Clubb accepts that the
prohibition against "communicating
... in relation to abortions" in s 185D
read with para (b) of the definition of "prohibited behaviour" in s 185B(1)
of the Public Health and Wellbeing Act 2008 (Vic) ("the Public Health
Act ") can and should be read in accordance with s 6(1) of the
Interpretation of Legislation Act 1984 (Vic) ("the Interpretation Act")
to exclude political communication if the prohibition infringes the implied
constitutional freedom in its application to political
communication.
- The
combination of those circumstances means that Mrs Clubb's challenge to her
conviction in the Magistrates' Court of Victoria of
the offence created by
s 185D of the Public Health Act , on the ground that the prohibition in that
section read with para (b) of the definition of "prohibited behaviour" in
s 185B(1) infringes the implied constitutional freedom of political
communication, is doomed to fail. Unless set aside on some other ground,
Mrs
Clubb's conviction will stand irrespective of whether or not she succeeds in
establishing that the prohibition infringes the
implied constitutional
freedom.
- Because
the answer to the question of whether the prohibition in s 185D read with
s 185B(1) of the Public Health Act infringes the implied constitutional
freedom can make no difference to Mrs Clubb's conviction, so much of
Mrs Clubb's appeal to the
Supreme Court of Victoria as has been removed
into the High Court under s 40 of the Judiciary Act 1903 (Cth) to
raise that question should be dismissed without the High Court embarking on the
provision of an answer. There is no need
to answer the question in order to
determine Mrs Clubb's criminal liability. Absent a need to answer the
question, the proper course
is to decline to do so.
- The
institutional practice and the principle of statutory construction which combine
to commend that approach are important enough
for me to want to add the
following to the analysis of Gordon J in this case, with which I wholly agree.
Necessity as a precondition to constitutional adjudication
- The
practice of the High Court has fairly consistently been to decline to answer a
constitutional question unless there has been
shown to exist a state of facts
which has made answering the question necessary in order to determine a right or
liability in issue
in the matter in which its original or appellate jurisdiction
has been
invoked[73].
The practice is closely associated with two principles of judicial restraint
which the Supreme Court of the United States has long
treated as "safe guides to
sound judgment" and which the High Court too can be seen to have observed in
practice: "one, never to
anticipate a question of constitutional law in advance
of the necessity of deciding it; the other never to formulate a rule of
constitutional
law broader than is required by the precise facts to which it is
to be
applied"[74].
- The
practice is founded on the same basal understanding of the nature of the
judicial function as that which has informed the doctrine
that the High Court
lacks original or appellate jurisdiction to answer any question of law
(including but not confined to a question
of constitutional law) if that
question is divorced from the administration of the
law[75]. The
basal understanding is that the primary function served by the conferral of
original or appellate jurisdiction on the Court,
no differently from the primary
function served by the conferral of federal jurisdiction on any other court, is
not the declaration
of legal principle but the resolution of a controversy about
a legal right or legal
liability[76].
- The
practice stems from recognition of the institutional discipline which
concentration on that primary function imposes on the judicial
process, no less
than on disputant
parties[77].
The institutional discipline is such that curial exposition of legal principle
proceeds best when it proceeds if, and no further
than is, warranted to
determine a legal right or legal liability in controversy. Legal analysis is
then directed only to issues
that are real and not imagined. Legal principle is
then honed through practical application. Academic abstraction is then curbed
by the parameters of a concrete dispute. The overarching importance of
constitutional principle makes maintenance of that institutional
discipline
imperative in constitutional cases.
- The
practice, in my view, ought not to be departed from on the basis of mere
convenience. Especially, the practice ought not to
be departed from on the
basis that the executive government of a polity whose newly minted legislation
is sought to be challenged
is content to view an inadequately constructed but
earnestly pursued challenge as a vehicle for mounting a spirited defence of the
constitutional validity of that legislation. If a case is to be brought to the
High Court as a test case, it is not asking too much
to expect that the case
will be properly constituted lest the judgment that is sought from the Court be
traduced to the status of
an advisory opinion.
Severance
explained and distinguished from reading down
- The
High Court has long recognised as a primary principle or "fundamental rule" of
statutory construction that "the legislatures
of the federation intend to enact
legislation that is valid and not legislation that is invalid", from which it
follows that "[i]f
the choice is between reading a statutory provision in a way
that will invalidate it and reading it in a way that will not, a court
must
always choose the latter course when it is reasonably
open"[78].
That, however, is not the principle of statutory construction now relevant.
- The
relevant principle of statutory construction is a secondary or subsidiary
principle, application of which is required by the
operation of a severance
clause (sometimes referred to as a "severability" or "separability" clause) of
the kind introduced in relation
to Commonwealth legislation in 1930 with the
insertion of s 15A into the Acts Interpretation Act 1901
(Cth)[79]
and since replicated in s 6(1) of the Interpretation Act and equivalent
provisions in interpretation legislation in each other State, the Australian
Capital Territory and the Northern
Territory[80].
Subject always to a legislature manifesting a contrary intention as to the
operation of a particular law, a severance clause of
that kind takes effect as a
general declaration of the contingent intention of the legislature that if a law
in the form enacted
would operate to transgress a constitutional limitation on
legislative power then the law is still to operate to the extent
constitutionally
permitted.
- The
settled effect of a severance clause is "to reverse the presumption that a
statute is to operate as a whole, so that the intention
of the legislature is to
be taken prima facie to be that the enactment should be divisible and that any
parts found constitutionally
unobjectionable should be carried into effect
independently of those which
fail"[81]. The
result, in other words, is that "legislation, found partially invalid, must be
treated as distributable or divisible, unless
it appears affirmatively that it
was not part of the legislative intention that so much as might have been
validly enacted should
become operative without what is
bad"[82]. That
operation of a severance clause to "require that an entirely artificial
construction shall be placed on a statute found to
be invalid in part in order
to save so much of it as might have been validly enacted" can arise, according
to orthodox analysis,
in either of two categories of case. One is where "it is
found that particular clauses, provisos or qualifications, which are the
subject
of distinct or separate expression, are beyond the power of the legislature".
The other is where "a provision which, in
relation to a limited subject matter
or territory, or even class of persons, might validly have been enacted, is
expressed to apply
generally without the appropriate limitation, or to apply to
a larger subject matter, territory or class of persons than the power
allows"[83].
- The
difference between the primary principle of construction and the presently
relevant secondary principle of construction can be
illustrated by contrasting
the reasoning of different members of the majority in Coleman v
Power[84]
("Coleman"). Construing a statutory prohibition on using "insulting
words" in a public place to be confined to words intended or reasonably
likely
to provoke unlawful physical retaliation, Gummow and Hayne JJ (with whom Kirby J
relevantly agreed) gave effect to the primary
principle that the prohibition was
to be read in a way that would not lead to
invalidity[85].
In construing the same statutory prohibition to exclude "insulting words" used
in the course of a political communication, McHugh
J gave effect to the
secondary principle that the prohibition was to be operative to the extent that
it was constitutionally
unobjectionable[86].
Constitutional
adjudication unnecessary if severance available
- In
R v Poole; Ex parte Henry [No
2][87],
Fraser Henleins Pty Ltd v
Cody[88]
and Bank of New South Wales v The
Commonwealth[89],
Dixon J noted that inclusion of severance clauses in legislation had
first occurred in the United States in the early part of the twentieth
century
and that a great deal of consideration had been given there to their operation
and effect[90].
- An
important effect of severance clauses in the United States has been to support a
practice, generally although by no means universally
observed[91],
whereby, in the absence of "'weighty countervailing' circumstances", "one to
whom application of a statute is constitutional will
not be heard to attack the
statute on the ground that impliedly it might also be taken as applying to other
persons or other situations
in which its application might be
unconstitutional"[92].
The foundation for that practice has been identified as the "elementary
principle that the same statute may be in part constitutional
and in part
unconstitutional, and that if the parts are wholly independent of each other,
that which is constitutional may stand
while that which is unconstitutional will
be
rejected"[93].
- In
Tajjour v New South
Wales[94]
("Tajjour"), I explained with reference to case law and to the
explanation given by Barwick CJ in Harper v
Victoria[95]
how and why a similar practice was adopted in Australia as a consequence of
the application of severance clauses in matters arising
under s 92 of the
Constitution during the period between Bank of New South Wales v The
Commonwealth and Cole v
Whitfield[96].
In accordance with that practice, severance ordinarily came to be addressed as a
threshold issue with the result that, if a statute
had a severable operation in
its application to commercial conduct that was not within the protection of the
freedom of interstate
trade understood to be guaranteed by s 92, a person
engaged in that conduct would not be heard to challenge the statute on the basis
that the statute was invalid in its application
to some other commercial conduct
that was within the protection of the freedom.
- What
I suggested in Tajjour, and now repeat, is that there are sound reasons
for adopting the same approach where the validity of a statute is sought to be
impugned
on the basis that the statute infringes the implied freedom of
political
communication[97].
If the facts to which the statute is claimed to have application are not shown
to involve political communication, and if the statute
is severable to the
extent that the statute has application to political communication, it is worse
than nonsensical to require a
court to step through each of the three stages of
the Lange-Coleman-McCloy-Brown analysis only to dismiss the challenge on
the basis that the statute has a valid severable application to the
circumstances of the
case. Irrespective of what that analysis might reveal
about the potential for invalidity in the application of the statute to the
circumstances of some other real or imagined case, the High Court should not be
obliged to engage in such laborious and fraught work
of supererogation. Much
less should a busy magistrate.
- One
objection to adopting such an approach, faintly mentioned in argument by the
Solicitor-General for Victoria, is that severance
can itself give rise to
complex questions. So it can; but quite often it doesn't; and it doesn't in
this case.
- Complexity
can arise where severance might be effected in a variety of ways, the choice
between which is argued to lie in the borderland
between legislative and
judicial
power[98].
Complexity can also arise where severance is argued to distort the legal
operation of what would remain of the
statute[99].
Those difficulties do not detract from the proposition that "where a law is
intended to operate in an area where Parliament's legislative
power is subject
to a clear limitation, it can be read as subject to that
limitation"[100].
Severance, in a case to which that proposition is applicable, turns not on
curial divination of an "intuitive understanding of the
underlying purpose of
the plan of the framer of the instrument"; "it is precisely that uncertain and
undesirable mode of solution
that [a severance clause]
supersedes"[101].
Severance in such a case turns rather on the answer to the straightforward
question of whether or not there exists a positive indication
of a legislative
intention that, contrary to the general presumption, the particular law is not
to have a distributive operation
but is to apply in its totality if it is to
apply at
all[102] with
the result that all are to go free unless all are
bound[103].
Severance in this case
- There
is no difficulty reading the prohibition against "communicating ... in relation
to abortions" in s 185D with para (b) of the
definition of "prohibited
behaviour" in s 185B(1) of the Public Health Act to exclude political
communication. The determination of whether s 185D would be read in that
way in the event of the prohibition being invalid in its application to
political communication accordingly
comes down to asking whether there is
something in the text or context of the Public Health Act to indicate that,
contrary to the presumption favouring severance expressed in the Interpretation
Act, the prohibition is to have no application to any communication if the
prohibition can have no application to political communication.
As Mrs Clubb
accepts, and as the reasons for judgment of Gordon J demonstrate, the answer to
that question is no.
- There
remains for me to address the only real argument put on behalf of Mrs Clubb in
response to severance. The argument is that
severance of the offence-creating
provision which she was found to have breached, to exclude political
communication, would cast
the onus on the prosecution to prove beyond reasonable
doubt that the conduct with which she was charged was not political
communication,
and that the prosecution did not so prove in this case. That is
not how severance works at all.
- If
the statutory prohibition were invalid but severed in its application to
political communication, the effect of severance would
not be to alter the
statement of the obligation created by the prohibition, but to take political
communication outside the scope
of its operation. Severance would operate in
substance to require recognition of a statutory exception for prohibited
behaviour
which amounts to political communication.
- Whether
or not conduct the subject of a charge amounts to political communication is a
question of constitutional fact in respect
of which the whole notion of a legal
onus of proof is
inapposite[104].
Neither the statutory rule in Victoria that an accused who wishes to rely on an
exception must present evidence that suggests a
reasonable possibility of the
existence of facts establishing the
exception[105]
nor the common law rule which would cast the burden on the accused to prove the
existence of facts establishing the exception on
the balance of
probabilities[106]
therefore have application. Whether valid in its entirety or invalid and
severable in its application to political communication,
the statutory
prohibition must be treated by a court as applicable according to its terms to
conduct proved by the prosecution absent
the court being apprised of material
sufficiently probative for the court to be satisfied that the conduct amounted
to political
communication.
- If
the freedom of political communication was to be relied on to impugn her
prosecution for the offence created by s 185D of the Public Health Act , the
practical onus was on Mrs Clubb to bring such material forward. She did not do
so.
Preston v Avery
- Mr
Preston was engaged in political communication when he stood on the footpath
outside the Specialist Gynaecology Centre located
in a building in Victoria
Street, Hobart on 5 and 8 September 2014 and again on 14 April 2015 holding
placards containing words and
images indicating his opposition to abortion.
There is no suggestion that the words and images cloaked a communication which
was
essentially personal or
commercial[107].
Mr Preston gave evidence that he sought to inform and to challenge the
conscience of women entering the centre but, as he also made
clear in his
evidence, that was not his only purpose. The words and images on his placards
conveyed a message to the world at large.
His placards were visible to persons
who might enter or attempt to enter the Specialist Gynaecology Centre but also
to all who might
pass by.
- Mr
Preston was, in the language of para (b) of the definition of "prohibited
behaviour" in s 9(1) of the Reproductive Health (Access to Terminations)
Act 2013 (Tas) ("the Reproductive Health Act"), engaged in "a protest"
– a public demonstration of opposition, disapproval or discontent
–
"in relation to terminations" – on the subject matter of abortion. So
much was common ground in his trial in the Magistrates
Court of Tasmania for the
offence created by s 9(2) of the Reproductive Health Act, of which he was
convicted by that
Court[108].
- Unlike
the constitutional question sought to be raised in Mrs Clubb's appeal, the
question of whether the protest prohibition in
the Reproductive Health Act
infringes the implied constitutional freedom of political communication, having
been raised by Mr Preston
at his trial and again in so much of his appeal to the
Supreme Court of Tasmania as has been removed by order under s 40 of the
Judiciary Act, is ripe for determination by the High Court.
- The
parties to the appeal and interveners all accept that the question of whether
the protest prohibition infringes the implied constitutional
freedom of
political communication falls to be determined in the application of the
three-staged Lange-Coleman-McCloy-Brown analysis. There are differences
between them as to the propriety and utility of importing into the third stage
of that analysis
(concerned with determining whether an impugned law is
reasonably appropriate and adapted to advance an identified constitutionally
permissible purpose in a manner compatible with maintenance of the
constitutionally prescribed system of representative and responsible
government)
a further three stages of structured proportionality analysis.
- The
three stages of the Lange-Coleman-McCloy-Brown analysis are anchored in
our constitutional structure. They are part of our constitutional doctrine.
Their application is mandated
by precedent. Structured proportionality has not
been suggested to be more than an intellectual
tool[109].
- That
there continue to be differences of opinion about the propriety and utility of
importing the three stages of the structured
proportionality analysis is hardly
surprising. The Australian constitutional tradition derives from that of the
common law. Lawyers
brought up in the tradition of the common law are
comfortable with the application of precedent. Lawyers brought up in that
tradition
are less than comfortable with being constrained to adopt a
standardised pattern of thought and expression in determining whether
a given
measure in a given context can be justified as reasonable or appropriate or
adapted to an end. We value predictability of
outcomes more than we value
adherence to analytic forms. We have learned through long and sometimes bitter
experience that "[l]inguistic
refinement of concept" can "result in fineness of
distinction which makes it ever more difficult to predict a course of judicial
decision" whereas "an overtly imprecise concept can yield a degree of certainty
in application, provided the reasons for choice are
also made as overt as we
can"[110].
- My
own reservations about structured proportionality have been outlined in the
past[111].
Nothing is to be gained by me elaborating further on those reservations. Nor
would it contribute to the elaboration of my reasons
for judgment in this case
for me to demonstrate my knowledge of the competing strands of argument within
the contemporary debate
amongst pan-constitutional proponents of structured
proportionality about what each of the three (or sometimes more) stages of
analysis
involves and why each stage is or should be undertaken. The
articulation and application of the stages of analysis have in practice
varied
from time to time and from place to place and have in practice been influenced
by marked differences in institutional settings
and in intellectual traditions.
There is something of a gap between rhetoric and practice and much, I fear, can
be lost in translation.
- Just
as my reservations about structured proportionality have been outlined in the
past, so my reasons have been set out in the past
for considering it appropriate
to address the third stage of the requisite Lange-Coleman-McCloy-Brown
analysis by applying a precedent-based calibrated scrutiny. The approach seeks
to address the stage in a way which adjusts the level
of scrutiny brought to
bear on an impugned law to the nature and intensity of the risk which the burden
imposed by the law on political
communication poses for the constitutionally
prescribed system of representative and responsible
government[112].
I doubt my capacity to spell out the approach with greater clarity, and I doubt
that there is much more that I can usefully say
in support of it at the level of
constitutional and adjudicative principle. Like all of the numerous competing
approaches to the
judgment calls required of the High Court in matters arising
under the Australian Constitution which have come and gone since 1903, it
will be evaluated over time as case law accumulates by reference to its capacity
to inform
sound and consistent outcomes.
- Consistently
with the structure of my reasons for judgment in Brown v
Tasmania[113]
("Brown"), which also concerned on-site protesting, the framework for the
analysis which I propose to undertake in the present case is:
first, to examine
the nature and intensity of the burden which the protest prohibition places on
political communication; second,
to calibrate the appropriate level of scrutiny
to the risk which a burden of that nature and intensity poses to maintenance of
the
constitutionally prescribed system of representative and responsible
government; third, to isolate and assess the importance of the
constitutionally
permissible purpose of the prohibition; and finally, to apply the appropriate
level of scrutiny so as to determine
whether the protest prohibition is
justified as reasonably appropriate and adapted to achieve that purpose in a
manner compatible
with maintenance of the constitutionally prescribed system of
government.
Burden
- Understanding
the nature and intensity of the burden which the protest prohibition places on
political communication can be assisted
by isolating a number of aspects of the
legal and practical operation of the prohibition.
- First,
the prohibition is specifically directed against engaging in a protest: a
public demonstration – the oldest and most
orthodox form of public
expression of political dissent in a representative democracy. The
juxtaposition of paras (a) and (b) of
the definition of "prohibited behaviour"
makes clear that the prohibition is not confined to a prohibition on engaging in
a protest
that besets, harasses, intimidates, interferes with, threatens,
hinders, obstructs or impedes any person. The prohibition extends
to peaceful
demonstration. It extends to a picket. It extends to a silent vigil.
- Second,
the protest prohibition is content-specific. The prohibition is limited to a
prohibition against engaging in a protest on
the subject of abortion. The
availability of abortion has been restricted by State and Territory legislation
throughout Australian
history and has been able to be affected by Commonwealth
legislation applicable in every State at least since the insertion of
s 51(xxiiiA) into the Constitution in 1946. Beginning in the 1950s
and gaining momentum in the 1970s, abortion has been the focus of agitation for
legislative change
first by pro-choice activists arguing for, and then by
pro-life activists arguing against, its
liberalisation[114].
- Unlike
in the United
States[115]
and in
Canada[116],
where the movement towards liberalisation of abortion received impetus from
landmark constitutional decisions resulting in uniform
national constraints on
continuing state or provincial legislative restrictions, liberalisation of
abortion in Australia has occurred
through legislation enacted at various times
in each State and self-governing
Territory[117].
In Tasmania, abortion remained a crime subject to limited defences until 2001
when a medical exception was
introduced[118].
Only with the enactment of the Reproductive Health Act in 2013 was abortion
decriminalised in Tasmania. Abortion has since then
been an offence in Tasmania
only where carried out other than by a medical practitioner or the pregnant
woman, or where carried out
without the woman's
consent[119].
- The
legislative changes which have occurred in Australia have not been without
dissent and the legislated accommodation reached has
not removed abortion from
the realm of public controversy. No doubt there can be communications on the
subject of abortion which
have no substantial bearing on legislative
possibilities and therefore no substantial bearing on electoral choice. Mrs
Clubb's attempted
communication with the couple outside the East Melbourne
Fertility Control Clinic may well have been one. And no doubt there can
arise
factual questions of some delicacy as to whether particular conduct (such as
silent prayer) might in particular circumstances
amount to a public
demonstration answering the statutory description of a protest. But it is
barely conceivable that there could
be a public demonstration relating to
abortion which does not involve some explicit or implicit expression of approval
or disapproval
of the currently legislated position. A protest on the subject
of abortion is inherently political.
- Third,
the protest prohibition is site-specific. The prohibition operates only within
a radius of 150 m around premises which provide
abortion services. The
perimeter marks out an "access zone" (equally capable of being referred to as a
"safe zone", "safe access
zone", "buffer zone" or "bubble
zone"[120])
within which no public demonstration on the subject of abortion is permitted to
be seen or heard.
- Fourth,
the protest prohibition is in its practical operation time-specific. The
requirement that the protest be able to be seen
or heard by a person accessing,
or attempting to access, premises at which abortions are provided means that the
prohibition can
only operate to restrict protest activity at times when those
premises are available to be accessed. An argument that the same requirement
means that a protest within the access zone is prohibited only if it is able to
be seen or heard by a person from the vantage point
of entering or being about
to enter the premises was pressed on and accepted by the
Magistrate[121]
but was abandoned by the Solicitor-General for Tasmania on behalf of the
prosecution in the course of oral submissions in the appeal.
- Fifth,
although the prohibition is viewpoint-neutral in its legal operation, the
prohibition in its practical operation impacts differentially
on pro-choice and
pro-life activists. That is to say, acknowledging that the prohibition would
prevent the holding of a pro-choice
protest just as it would prevent the holding
of a pro-life protest, the real-world effect of the prohibition operating only
within
a radius of 150 m around premises which provide abortion services can
only be that the prohibition curtails protests by those who
seek to express
disapproval of the availability of services of the kind provided at the premises
to a significantly greater extent
than it curtails protests by those who seek to
express approval.
- That
is certainly how the prohibition was expected to work in practice, as was spelt
out by the Minister for Health on the reading
of the Bill for the Reproductive
Health Act for a second time in the Tasmanian House of Assembly. After
explaining that the prohibition
would not stop a sermon in a church or "an
exchange of personal views between mates at a restaurant or pub", the Minister
said[122]:
"It will, however, stop a person from standing in an access zone holding up a
placard or handing out pamphlets denouncing terminations.
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."
There is no reason to think that the
prohibition does not measure up to that expectation.
- Mr
Preston's circumstances well illustrate that the prohibition operates to stop
peaceful protests against abortion which would otherwise
occur within a radius
of 150 m around premises at which abortion services are provided in Tasmania.
His own largely solitary protests
outside the Specialist Gynaecology Centre
which resulted in his conviction cannot be treated as isolated instances. Mr
Preston gave
evidence that, together with others, he had been engaged in
pro-life lobbying, education and protesting elsewhere in Australia since
1990.
Evidence adduced in Clubb v Edwards and accepted by the parties to be
available to be taken into account on questions of legislative or constitutional
fact in the present
case reveals that pro-life protesters, typically in groups
of between three and 12 but sometimes numbering up to 100, had stood outside
the
East Melbourne Fertility Control Clinic almost every morning for a quarter of a
century up to May 2016.
- There
is a difference between this case and Brown to which the prosecution and
the Commonwealth, State and Territory interveners draw attention. The
difference is that there is no
evidence that on-site protesting of the kind
engaged in by Mr Preston has the particular communicative power of generating
sounds
and images that can be expected to be broadcast to a wider
audience[123].
In contrast to pro-conservation protests in forests over the past quarter
century, pro-life protests outside abortion clinics over
the same period can be
accepted to have been largely ignored in the mainstream media. The difference
is of no moment. The protection
of the implied freedom is not greater for those
who are media-savvy or for those whose causes have popular appeal. The
important
feature that this case has in common with Brown is that it
involves legislation which impedes the holding of a protest in close proximity
to the place of occurrence of a currently
lawful activity, at which those who
oppose the lawfulness of the occurrence of that activity would seek publicly to
express their
disapproval.
- In
a manner not qualitatively different from the legislation directed against
on-site protesting in
Brown[124],
the burden which the protest prohibition places on political communication is
direct, substantial and discriminatory. The prohibition
discriminates on its
face against a traditional form of political communication and discriminates in
its practical operation against
use of that form of communication to express a
particular viewpoint.
Calibration
- The
Attorney-General for Victoria submits that no greater justification for the
burden on political communication is required than
showing a rational connection
between the prohibition and a constitutionally permissible purpose. I reject
that submission.
- To
search for no more than a rational connection between the prohibition and a
constitutionally permissible purpose is to apply a
level of scrutiny appropriate
to be applied to a law which imposes a burden on political communication that is
no more than indirect
or
incidental[125].
That level of scrutiny is inappropriate to be applied to laws "which prohibit or
regulate communications which are inherently political
or a necessary ingredient
of political
communication"[126].
Much less is that level of scrutiny appropriate to be applied to a law which in
its practical operation discriminates against political
communication that
expresses a particular point of view.
- The
reason why that minimal level of scrutiny is inappropriate here is that it fails
to align the requisite standard of justification
with the level of risk which a
burden of the identified nature poses to maintenance of the constitutionally
prescribed system of
representative and responsible government, the safeguarding
of which is the structural purpose of the freedom of political
communication[127].
The constitutionally prescribed system of representative and responsible
government is characterised by the tolerance of dissenting
minority
opinion.
- The
Attorney-General of the Commonwealth, with the support of the Attorney-General
for New South Wales, suggests that some assistance
is to be gained in
considering the appropriate level of scrutiny and corresponding standard of
justification from an examination
of the approach taken to determining whether
laws restricting the time, place and manner of communications infringe the
express guarantee
of freedom of speech in the First Amendment to the
Constitution of the United States. I agree.
- The
First Amendment's guarantee of freedom of speech has come to be understood as a
personal right extending beyond political communication.
"[S]peech which bears,
directly or indirectly, upon issues with which voters have to deal" has
nevertheless long been understood
to have the greatest claim to protection under
the First
Amendment[128].
Aspects of First Amendment case law and scholarship can for that reason be
instructive in considering the implied freedom of political
communication.
First Amendment case law and scholarship have been drawn upon extensively by the
High Court from the earliest articulation
of the implied freedom in
Nationwide News Pty Ltd v
Wills[129]
and Australian Capital Television Pty Ltd v The
Commonwealth[130].
Reference to them is appropriately continued as our own body of case law
develops, provided that it is constantly borne in mind
that danger lies in
"uncritical translation" of any foreign
doctrine[131].
- Instructively
for present purposes, the Supreme Court of the United States has repeatedly held
that a time, place or manner restriction
on freedom of speech will withstand
First Amendment scrutiny provided the restriction: (1) is content-neutral; (2)
serves a significant
governmental interest; and (3) is narrowly tailored to
serve that interest in the sense that it does not burden substantially more
speech than is necessary to serve that interest, and leaves open ample
alternative channels for
communication[132].
A content-based time, place or manner restriction, on the other hand, will
withstand First Amendment scrutiny only if the restriction
is narrowly tailored
to promote a compelling governmental
interest[133].
- Leaving
precise verbal formulations to one side, the notion that a content-based time,
place or manner restriction demands closer
scrutiny corresponding to a need for
greater justification than a content-neutral time, place or manner restriction
is consistent
with the approach taken to the implied freedom of political
communication by Mason CJ in Australian Capital Television Pty Ltd v The
Commonwealth[134]
and by Gaudron J in Levy v
Victoria[135]
as subsequently endorsed by Gleeson CJ in Mulholland v Australian Electoral
Commission[136]
and unanimously applied in Hogan v
Hinch[137].
The time, place and manner restriction on political communication held to
withstand implied freedom scrutiny in Levy was a content-neutral
restriction found to involve "no greater curtailment of the constitutional
freedom than was reasonably necessary
to serve the public interest in the
personal safety of
citizens"[138].
The time, place and manner restriction on political communication later held to
withstand implied freedom scrutiny in Attorney-General (SA) v Adelaide City
Corporation[139]
was similarly content-neutral. Confined relevantly to preaching, canvassing or
haranguing on a public road without prior permission
of a local council, the
granting or withholding of which could not validly be based on approval or
disapproval of the content of
the communication, and having no application to
communications during an election period or in a designated area known as
"Speakers
Corner", the restriction was found adequately to balance "the
competing interests in political communication and the reasonable use
by others
of a
road"[140].
- Later
in these reasons, I will turn to the assistance to be derived from cases in
which the Supreme Court of the United States has
considered time, place and
manner restrictions creating buffer zones around premises providing abortion
services[141].
Suffice it for the present to record that I find unpersuasive the prevailing
view of a majority of the Supreme Court that prohibitions
on communicative
activity in buffer zones are
content-neutral[142].
With the minority, I think that "[i]t blinks reality to say ... that a blanket
prohibition on the use of streets and sidewalks where
speech on only one
politically controversial topic is likely to occur – and where that speech
can most effectively be communicated
– is not content
based"[143].
That said, unlike the impugned prohibition here and unlike the buffer zone
legislation considered in two cases in British Columbia
arising under the
Canadian Charter of Rights and Freedoms ("the Canadian Charter") to which
I will also later
turn[144],
none of the First Amendment buffer zone cases have involved a legislated time,
place and manner restriction cast in terms of a prohibition
against holding a
protest.
- The
burden which the protest prohibition places on political communication, as I
have already concluded, is direct, substantial and
discriminatory. That being
so, my opinion is that the burden could only be justified as reasonably
appropriate and adapted to advance
a legitimate purpose in a manner that is
compatible with maintenance of the constitutionally prescribed system of
government if it
can withstand the same close scrutiny consistent with a
compelling justification which I considered was required of the legislation
which operated to prohibit on-site protesting in
Brown[145].
- Two
conditions, in my opinion, therefore need to be satisfied for the burden to be
justified. The first is that the purpose of the
prohibition needs to be more
than just constitutionally permissible; it needs to be compelling. The second
is that the prohibition
needs to be closely tailored to the achievement of that
purpose; it must not burden the freedom of political communication significantly
more than is reasonably necessary to do so.
- In
other words, for the protest prohibition to withstand scrutiny under the final
stages of the Lange-Coleman-McCloy-Brown analysis, the burden imposed by
the prohibition on political communication needs to be in pursuit of a
compelling governmental purpose
and needs to be no greater than is reasonably
necessary to achieve that purpose.
Purpose
- The
Reproductive Health Act contains no statement of legislative objects. The
purpose of the protest prohibition – the "public
interest sought to be
protected and enhanced" by its
enactment[146]
– therefore falls to be determined inferentially by reference to its
subject matter, text and
context[147].
- Mr
Preston submits that the singling out of protests reveals that the purpose of
the protest prohibition is the quietening of political
dissent on the subject
matter of abortion. That characterisation of legislative purpose does not
adequately account for the statutory
creation of an "access zone" and for the
complementary operation of other elements of the definition in s 9(1) of
the Reproductive
Health Act of "prohibited behaviour" within an access zone.
The inclusion within the definition by paras (a), (c) and (d) of "besetting,
harassing, intimidating, interfering with, threatening, hindering, obstructing
or impeding" a person, "footpath interference in relation
to terminations" and
"intentionally recording ... a person accessing or attempting to access premises
... without that person's consent",
together with the catch-all reference in
para (e) to "any other prescribed behaviour", indicates that the overall concern
of the
proscription by s 9(2) of "prohibited behaviour" within an "access
zone" is the elimination of conduct of kinds which have been shown
in the past
or which might be shown in the future to have a tendency to hinder or deter
access to premises at which abortion services
are provided.
- That
inference as to the legislative purpose underlying the protest prohibition is
supported by the Second Reading Speech for the
Bill for the Reproductive Health
Act. The Minister for Health there referred to a study of patients at the East
Melbourne Fertility
Control Clinic which indicated that "patients experience
considerable distress, shame and anxiety in response to
protestors"[148].
The Minister went on to express the belief that "[w]omen are entitled to access
termination services in a confidential manner without
the threat of harassment"
and that "access zones provide the appropriate balance between the right to
protest and protecting women
from being exposed to those who seek to shame and
stigmatise
them"[149].
- Drawing
those threads together, the Solicitor-General for Tasmania submits for the
prosecution that the protest prohibition has the
multiple purposes of
maintaining the safety, privacy, well-being and dignity of persons entering and
leaving premises at which abortion
services are provided. Each of those
purposes, he argues, is compatible with maintenance of the constitutionally
prescribed system
of representative and responsible government. Each, he says,
is "in the interests of an ordered
society"[150].
- For
his part, Mr Preston concedes that protecting physical safety and protecting
privacy are compatible with maintenance of the constitutionally
prescribed
system of representative and responsible government. Mr Preston argues,
however, that protecting the psychological well-being
or dignity of a person
from the consequences of a political communication is not. Relying on passages
in reasons for judgment of
the majority in
Coleman[151]
and of three members of the evenly divided High Court in Monis v The
Queen[152]
("Monis"), Mr Preston argues that maintenance of the constitutionally
prescribed system of government demands tolerance of political communication
that is unwelcome and offensive.
- The
Attorney-General for Victoria meets Mr Preston's submission head on with a
submission that is equally categorical but to the
exact opposite effect.
Extrapolating from a statement in
Brown[153],
and marginalising both the reasoning and the outcomes in Coleman and in
Monis, the Attorney-General for Victoria argues that the implied freedom
of political communication is a guarantee of freedom to communicate
only with
willing recipients.
- Neither
the argument of Mr Preston nor the argument of the Attorney-General for Victoria
can be accepted. Each argument implicitly,
and derivatively, incorporates
elements of an approach that has been adopted by the Supreme Court of the United
States when dealing
with time, place and manner restrictions on freedom of
speech. However, neither argument reflects the richness of the approach in
the
United States, and neither argument adequately relates that approach to the
implied freedom of political communication.
- The
Supreme Court of the United States has repeatedly recognised that there are
circumstances in which freedom of speech can legitimately
be curtailed by time,
place and manner restrictions protective of an "unwilling listener's interest in
avoiding unwanted
communication"[154].
In Hill v Colorado, a significant buffer zone case about which I will
need to say more, a majority of the Supreme Court referred to that interest of
an unwilling listener as an aspect of a broader "right to be let alone". The
majority immediately added, however, that the "right"
was "more accurately
characterized as an 'interest' that States can choose to protect in certain
situations"[155].
- Before
and after Hill v Colorado, the approach of the Supreme Court has been to
treat the interest of an unwilling listener in avoiding unwanted communication
as
significant in some situations but not in others. For the most part, an
interest in avoiding unwanted communication has been found
to be capable of
justifying sufficiently tailored restrictions on the freedom of speech only
where unwilling listeners have in some
way been "captive" to unwanted and
intrusive
speech[156].
- Unsolicited,
unwelcome, uncivil or offensive political communication is not carved out as an
exception from the freedom of political
communication impliedly guaranteed by
ss 7, 24, 61, 64 and 128 of the Constitution. To acknowledge such a
carve-out would turn the approach to the implied freedom of political
communication in the unfortunate direction
of that long-jettisoned unworkable
approach to s 92 of the Constitution which sought to draw a
distinction between legitimate trade or commerce and conduct extra
commercium[157].
- Coleman
and Monis should not be understood as authority for the proposition that
a purpose of curtailing unsolicited, unwelcome, uncivil or offensive
speech is
incompatible with the constitutionally prescribed system of representative and
responsible government. Consistently with
how the Supreme Court of the United
States has treated the interest of an unwilling listener in avoiding unwanted
communication,
the better explanation of those decisions is that protecting
against unwanted or offensive communication is a permissible purpose
the
capacity of which to justify a burden on freedom of political communication can
vary in different contexts. In some contexts,
the purpose of protecting against
unwanted or offensive communication can be insignificant. In other contexts, of
which the present
in my opinion is one, the purpose of protecting against
unwanted or offensive communication can be compelling.
- In
my opinion, the purpose of the protest prohibition as an element of
s 9(2)'s proscription of "prohibited behaviour" within an "access zone" is
best identified as being to ensure that women have access to premises
at which
abortion services are lawfully provided in an atmosphere of privacy and dignity.
The purpose so identified is unquestionably
constitutionally permissible and, by
any objective measure, of such obvious importance as to be characterised as
compelling.
- That
identification of legislative purpose accords substantially with the purpose
which the Supreme Court of British Columbia in
R v
Lewis[158]
and the Court of Appeal of British Columbia in R v
Spratt[159]
identified as the purpose of a prototypical prohibition against "protest"
within a legislated buffer zone and which those courts characterised
as
"pressing and substantial". It accords also with the United States Supreme
Court's recognition of protecting a woman's freedom
to seek pregnancy-related
services as a significant governmental
interest[160].
Justification
- The
public interest sought to be protected and enhanced by the protest prohibition
being both constitutionally permissible and compelling,
the question that
remains is whether the burden which the protest prohibition imposes on political
communication is significantly
more than is reasonably necessary to give effect
to that purpose.
- To
the obvious argument that the Victorian prohibition against "communicating by
any means in relation to abortions 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 and
is reasonably likely to cause distress or anxiety" in
s 185D read with s 185B(1) of the Public Health Act is a considerably
less restrictive means of achieving the purpose of the protest prohibition, the
response of the Solicitor-General
for Tasmania and of the interveners is to
invoke the approach of the Court of Appeal of British Columbia in R v
Spratt. The response is to say that it was open to the Tasmanian Parliament
to take the view that "[t]o try to characterize each individual
approach to
every woman entering the clinic is too difficult a calculus when the intent of
the legislation is to give unimpeded access
to those entering the clinic" and,
thus, that "a clear rule against any interference [was] the best way to
achieve the ends of the
legislation"[161].
- Bright
lines can have benefits. Their appropriateness depends on how and where they
are drawn. The quoted words were uttered in
R v Spratt in the context of
accepting as "justified in a free and democratic society", within the meaning of
s 1 of the Canadian Charter, a restriction on freedom of expression wrought
by a prohibition against
"protest"[162]
applicable within a buffer zone which did not exceed 50 m from the boundary of
the parcel of land on which a facility providing abortion
services was
located[163].
The same prohibition within the same buffer zone had earlier been in issue in
R v Lewis. In this case, the perimeter set for the operation of the
protest prohibition has a radius that is three times that distance.
- None
of the cases in the Supreme Court of the United States have involved buffer
zones as extensive in their geographical reach.
Hill v Colorado
concerned a buffer zone extending 100 feet from the entrance to a health care
facility. The prohibition within that zone, which
was upheld by a majority, was
against knowingly approaching a non-consenting person within eight feet "for the
purpose of passing
a leaflet or handbill to, displaying a sign to, or engaging
in oral protest, education, or counseling with [that]
person"[164].
McCullen v
Coakley[165]
concerned a wider prohibition applicable within a narrower zone. The buffer
zone in that case extended no more than 35 feet from
the entrance to a place
where abortions were offered or performed. The prohibition unanimously struck
down in that case was against
knowingly standing on a sidewalk within that
zone[166].
- Earlier,
in Madsen v Women's Health Center
Inc[167]
("Madsen") and Schenck v Pro-Choice Network of Western New
York[168]
("Schenck"), the Supreme Court had considered the compatibility with the
First Amendment of injunctions issued by state courts to remedy continuing
tortious conduct by pro-life protesters. Madsen relevantly concerned two
injunctions, the different fate of which in the Supreme Court is instructive.
The first, which was upheld
by the Supreme Court, prohibited demonstrating
within 36 feet of the entrance to an abortion clinic. The second, which was
struck
down by the Supreme Court as burdening more speech than was necessary to
accomplish its goal, prohibited physically approaching a
person who sought the
services of the clinic without that person's consent in an area within 300 feet
of the clinic. Schenck relevantly concerned an injunction which
prohibited demonstrating within 15 feet of the entrance to a clinic. The
injunction was
upheld.
- More
recently, the High Court of Justice of England and Wales concluded on judicial
review[169]
that the establishment by legislative instrument made by a local authority of a
"safe zone" around an abortion clinic, within which
engaging in an act of
approval or disapproval with respect to issues related to abortion services was
prohibited, withstood scrutiny
as compatible with the freedom of expression
guaranteed by Art 10 of the European Convention on Human Rights. The Court took
into
account that the "safe zone" was a specified geographical area from which
was excepted a "designated area" for protests comprising
a well-defined grassy
space about 100 m from the entrance to the
clinic[170].
- Although
not specifically concerned with a buffer zone, the decision of the European
Court of Human Rights in Annen v
Germany[171]
is also instructive. The Court there held, by a majority of five votes to two,
that German courts had violated Art 10 by making
and upholding an order
that the applicant, an individual, desist from further disseminating in the
"immediate vicinity" of a particular
abortion clinic leaflets which contained
the names of two doctors and asserted that those doctors performed unlawful
abortions there.
Examining whether the restriction on freedom of expression
produced by the order could be characterised as "necessary in a democratic
society" within the meaning of Art 10, the majority stated that "in view of
the special degree of protection afforded to expressions
of opinion which were
made in the course of a debate on matters of public interest ... and despite the
margin of appreciation enjoyed
by the Contracting States, [it came] to the
conclusion that the domestic courts failed to strike a fair balance between the
applicant's
right to freedom of expression and the doctors' personality
rights"[172].
- The
judgment required to be made by an Australian court when determining whether
legislation burdening political communication is
reasonably appropriate and
adapted to advance a constitutionally permissible purpose in a manner which is
compatible with maintenance
of the constitutionally prescribed system of
government might not in every case be as fine-grained as those made by the North
American
and European courts in the cases to which I have
referred[173].
However, I reject the submission of the Attorney-General of the Commonwealth
that an Australian court is not competent to conclude
that a particular
prohibition on political communication would advance its constitutionally
permissible purpose in a manner compatible
with maintenance of the
constitutionally prescribed system of government if the prohibition were
confined to a smaller geographical
area (say, an area having a radius of 50 m)
but would not advance that purpose in such a manner if extended to a larger
geographical
area (say, an area having a radius of 500 m).
- Australian
courts have no constitutional mandate to tinker with legislative design in order
to improve on the product of democratic
choice[174].
If and to the extent necessary to address the question of whether legislation
infringes the implied freedom of political communication
in order to determine
rights or liabilities in issue in properly constituted proceedings, Australian
courts do have a duty to ensure
that such burden as a particular democratically
chosen legislative restriction places on political communication does not
undermine
the constitutionally prescribed system of government which made that
democratic choice possible. That is the structural imperative
which underlies
the implication of the freedom of political communication and which frames the
ultimate issue to which the Lange-Coleman-McCloy-Brown analysis is
directed[175].
Application of that analysis is an aspect of the unique and essential function
of the judicial power. Performance of that function
by a court innately
involves the exercise of judgment. Unsurprisingly, there will be times when a
court's judgment will differ from
that of the legislature.
- Referring
to the judgment to be made by the High Court in the application of what is now
understood as the third stage of the Lange-Coleman-McCloy-Brown analysis,
Mason CJ said in Australian Capital Television Pty Ltd v The
Commonwealth[176]:
"In
weighing the respective interests involved and in assessing the necessity for
the restriction imposed, the Court will give weight
to the legislative judgment
on these issues. But, in the ultimate analysis, it is for the Court to
determine whether the constitutional
guarantee has been infringed in a given
case."
- Why
the protest prohibition was thought by the Tasmanian Parliament appropriate to
be applied throughout an access zone having a
radius of 150 m from premises at
which abortions are provided does not appear from the Second Reading Speech of
the Minister for
Health or otherwise from the legislative history or the
evidence. Perhaps the idea of having an access zone of that dimension was
simply borrowed from Victoria without it being thought to make any difference
that the Tasmanian protest prohibition was to be more
restrictive of political
communication than its Victorian equivalent. Perhaps it was thought,
consistently with the argument that
the protest needs to be able to be seen or
heard by a person entering or about to enter the premises which was abandoned in
the appeal,
that the practical reach of the protest prohibition would be more
limited than 150 m through the need to establish that direct line
of sight or
hearing.
- Total
and permanent prohibition of public expression of political opinion on a
particular subject matter within normal working hours
within an area defined by
a radius of 150 m (covering at least 70,650 m2) in an
urban environment is not trivial, and it is not automatically justified by
pointing to the ability to express the opinion
at other times and places. Were
the reach of the protest prohibition to have the effect of preventing a protest
on the subject matter
of abortion being held at a location meaningfully
proximate to a place at which abortion services are provided during the hours of
its operation, I would consider enactment of the protest prohibition to be
legislative overreach. That is because the prohibition
would effectively ban
all on-site protests in relation to abortion. To ban all on-site protests in
relation to abortion would, in
my opinion, suppress political dissent to an
extent greater than is reasonably necessary to achieve the permissible and
compelling
purpose of ensuring that women have access to those premises in an
atmosphere of privacy and dignity in a manner compatible with
maintenance of the
constitutionally prescribed system of government. If I were pressed to re-cast
my opinion in the language of
structured proportionality, I would say that
proscription of all protests in relation to abortion in the proximity of an
abortion
clinic, even if it were to be accepted as "necessary" ("erforderlich"),
would not be "adequate in its balance" ("unzumutbar").
- Helpfully,
there is a finding of Magistrate Rheinberger (as her Honour then was) which
bears on the issue of whether the 150 m reach
of the protest prohibition has
such an effect. In the course of her comprehensive and well-structured reasons
for decision, the
Magistrate catalogued a number of specific locations on public
streets in Hobart beyond a radius of 150 m from the Specialist Gynaecology
Centre in Victoria Street at which protesters remain able to stand and
communicate with "a wide number of people who are entering
into the access zone
for a variety of different
reasons"[177].
That finding of constitutional fact is to my mind decisive.
- The
protest prohibition applies within other access zones each having a radius of
150 m from other premises at which abortion services
are provided in Tasmania.
There is no evidence as to where those other premises are located. There is
accordingly no basis for
considering that the circumstances pertaining to the
Specialist Gynaecology Centre in Victoria Street are unique or aberrant.
- The
150 m reach of the protest prohibition around premises at which abortion
services are provided must be close to the maximum reach
that could be justified
as appropriate and adapted to achieve the protective purpose of facilitating
access to those premises in
a manner compatible with maintenance of the
constitutionally prescribed system of government. Nevertheless, I am satisfied
that
confining the protest prohibition within that 150 m limit leaves enough
opportunity for protests to be held at other locations meaningfully
proximate to
the premises to warrant the conclusion that the burden that the protest
prohibition places on political communication,
although not insubstantial, is
not undue.
Conclusion
- Mr
Preston's appeal, in so far as it has been removed into the High Court, must be
dismissed.
- NETTLE J.
I agree with Kiefel CJ, Bell and Keane JJ that so much of each appeal as has
been removed into this Court should be dismissed
with costs. My reasons,
however, are in some respects different from theirs.
The Clubb
appeal
The threshold question
- The
principal question for decision in the Clubb appeal is whether, by proscribing
the kind of conduct identified in para (b) of
the definition of "prohibited
behaviour" in s 185B(1) of the Public Health and Wellbeing Act
2008 (Vic) ("the PHW Act"), s 185D of the PHW Act imposes an
unjustified burden on the implied freedom of political communication. First,
however, it is necessary to dispose of what the Attorney-General of the
Commonwealth, intervening, referred to as a threshold question
of whether the
Court should determine that issue.
- The
Attorney-General of the Commonwealth contended that the conduct of the
appellant, Mrs Clubb, did not amount to political communication
and,
therefore, that her argument that s 185D imposes an unjustified burden on
the implied freedom of political communication is
an academic or hypothetical
question which should not be decided. It was submitted that the Court should
thus dispose of the matter
on the basis that, assuming without deciding that
s 185D would so burden the implied freedom of political communication,
para (b)
of the definition of prohibited behaviour could be read down
pursuant to s 6(1) of the Interpretation of Legislation Act 1984
(Vic) as excluding governmental or political communications. That approach was
supported by the Attorney-General of Queensland,
but opposed by the
Attorney-General for Victoria and the Attorney-General for New South Wales.
- In
response, Mrs Clubb submitted that there was insufficient evidence before this
Court to determine whether or not her conduct amounted
to political
communication. Counsel for Mrs Clubb assented to the proposition that he was
not in a position to mount a positive
case that Mrs Clubb's conduct was a
political communication. His position was, however, that, if upon its proper
construction para
(b) of the definition of prohibited behaviour excludes
political communications, the Crown would be required to prove that Mrs Clubb's
conduct was not a political communication.
- The
approach of the Attorney-General of the Commonwealth is based on obiter dicta
observations of Gageler J in Tajjour v New South
Wales[178]
to the effect that, where an impugned law is attacked as an infringement of the
implied freedom of political communication but it
appears that potentially
offending provisions of the law are severable, it may be sufficient to resolve
the attack to hold that,
assuming without deciding that the impugned law
infringes the implied freedom, the potentially offending provisions can be
severed.
The idea traces back to some earlier decisions of the Court in which
it was held or implied that, assuming without deciding that
an impugned law were
a restriction on the freedom of interstate trade and commerce guaranteed by
s 92 of the Constitution, the potentially offending provisions of
the law could be read down pursuant to s 15A of the Acts Interpretation
Act 1901 (Cth) or cognate Commonwealth or State provisions to the extent
necessary to avoid that
conclusion[179].
The Commonwealth also referred to the approach which the Court
took[180] to
an hypothetical issue in Knight v Victoria of what the position would
have been in that case if a judicial officer had been appointed to the parole
board and was required to
decide whether Knight's application for parole should
be granted.
- Ordinarily,
the Court would not have regard to the application of a reading down or
severance provision to an impugned law unless
and until the Court has first come
to the view that, according to the natural and ordinary meaning of the impugned
law construed
in context and having regard to its purpose, the impugned law
would be invalid unless read down or unless one or more of its provisions
were
severed. As Dixon J
observed[181]
in Bank of New South Wales v The Commonwealth on the severance provision
in s 6 of the Banking Act 1947 (Cth):
"For this
reason, no doubt, s 6 is framed as a statement of intention and not as a command
addressed to the Court. The question of
interpretation is whether, after the
extent to which the intended operation of the enactment is invalid has been
ascertained, it is nevertheless the expressed will of the legislature that
the whole or any part of the rest of the intended operation of the
enactment
should take effect by itself as a law of the Commonwealth. In so stating the
question I have preferred to speak of the
two parts of the intended operation of
the statute rather than of portions of its provisions capable and incapable of
valid enactment.
The latter way of stating the matter suggests that the problem
is one of separating clauses or expressions. But more often than
not, when a
statute or statutory instrument goes beyond the Constitution the question for
the Court is whether a provision too widely or generally expressed should be
confined in its operation to so much
of the subject it is capable of covering as
is constitutionally competent to the legislature, or, as it is sometimes said,
whether
the general words are to be read and applied distributively". (emphasis
added)
- That
said, however, there have been occasions on which severability has been
considered before validity. In Cam & Sons Pty Ltd v The Chief Secretary
of New South
Wales[182],
s 40B(1) of the Fisheries and Oyster Farms Act 1935 (NSW) required
persons selling fish for human consumption to bring such fish for sale in the
market in the district or in a market
established by a trading society under the
Co-operation Act 1923 (NSW). Section 1(3) of the Fisheries and Oyster
Farms Act contained the following severability clause:
"This Act
shall be read and construed subject to the Commonwealth of Australia
Constitution Act, and so as not to exceed the legislative power of the State, to
the intent that where any provision of this Act, or the application
thereof to
any person or circumstance is held invalid, the remainder of this Act, and the
application of such provision to other
persons or circumstances shall not be
affected."
Dixon, Williams, Webb, Fullagar and Kitto JJ
held[183]:
"Plainly s 40B(1) cannot validly operate, consistently with s 92 of
the Constitution, to prevent the plaintiff from disposing of its fish in the
course of inter-State trade; but s 1(3) makes it impossible to hold that
s 40B(1) is intended to have such an operation. ... The section must
therefore be construed ...
so as to leave untrammelled the freedom of trade and
commerce among the States for which s 92 provides. So construed, it is
plainly valid."
Notably, their Honours expressed that conclusion before
rejecting[184]
the respondents' argument that s 40B(1) was valid in its full operation
because it was merely regulatory.
- In
Carter v The Potato Marketing
Board[185],
the Court was called upon to decide whether s 15(3) of the Primary
Producers' Organisation and Marketing Act 1926 (Qld) – which imposed a
penalty on any person who sold or delivered potatoes to, or bought or received
any potatoes from, a
person other than the Potato Marketing Board – had
valid application to a transaction involving the appellants. This Court
(Dixon,
McTiernan, Williams, Webb, Fullagar and Kitto JJ) unanimously
stated[186]:
"The legislation contains a severability clause, and, unless the
transaction to which the charge relates is itself one of inter-State
commerce
falling within the protection of s 92, the questions raised by the
contentions for the appellants will depend upon the application
of that clause
with respect to sub-s (3). That is to say, it will depend upon the extent
to which, having regard to the scope of
the protection afforded by s 92,
the severability clause validly may give an operation to the material part of
sub-s (3) and upon
the extent to which, as a matter of interpretation, it
does so. ...
That the appeal must depend upon the possibility of giving the provisions a
severable or distributive application is apparent almost
from a bare perusal of
the provisions in question. For, consistently with the decided cases, it
would not be easy to deny that if the general language of sub-s (3) were
given a literal
application it would include transactions of inter-State
commerce and interfere with the freedom of trade commerce and intercourse
among
the States. On the other hand it is just as difficult to deny that if by
appropriate words of restriction or exception or by a corresponding
implication,
the operation of sub-s (3) was confined to the domestic trade of the State
and the possibility of interference with
the freedom of inter-State commerce was
excluded, it would be competent to the State to enact such a law." (emphasis
added)
- It
may be, however, that the emphasised sentence of their Honours' judgment meant
no more than that it was plain on the decided cases
that, if s 15(3) were
given its full literal scope, it would offend s 92. That is supported by
their Honours' later
statement[187]:
"Certainly the language in which sub-s (3) is expressed,
interpreted naturally, and without the imposition of any artificial restriction
by reference to constitutional limitations, extends to inter-State transactions
upon which it cannot validly operate. To that extent
it would be invalid."
Their Honours had earlier
observed[188]
that "[i]t is seldom, if ever, desirable to decide any question of
constitutional validity in abstracto and independently of the facts" and
concluded[189]
that the transaction in respect of which the appellants had been charged did not
fall within the protection of s 92. They thus
disposed[190]
of the appeal on the basis that s 15(3) could be given a severable and
distributive application.
- Grannall
v Marrickville Margarine Pty
Ltd[191]
provides greater support for the idea of dealing with severability before
validity. At issue in that case was whether s 22A(1)(b)
of the Dairy
Industry Act 1915 (NSW) (which prohibited a person from manufacturing table
margarine without a table margarine licence) was a statutory attempt to
restrict
the freedom of interstate commerce in margarine guaranteed by s 92 of the
Constitution. Section 2(2) of the Dairy Industry Act was a
standard form severability clause. Section 22C was an overriding provision
enabling the Minister to grant a special permit
for the manufacture or
preparation of table margarine for export from Australia, and sub-s (2)(a)
required the special permit to
contain such conditions as the Minister thought
necessary to ensure that none of the margarine manufactured thereunder was to be
sold or distributed within the Commonwealth. Section 22C(3) made it an offence
to breach any condition imposed by the special permit.
Dixon CJ,
McTiernan, Webb and Kitto JJ held that s 22A did not infringe
s 92 of the Constitution. But in the course of reasoning to that
conclusion, their Honours
made[192] the
following passing observations regarding severability:
"One
provision of the original Act forbids the exportation of margarine from New
South Wales unless it is submitted first for examination,
a certificate is
obtained that the margarine has been prepared in accordance with the Act, and
the package is branded as prescribed:
s 21. Export from New South Wales
necessarily includes delivery into another State and accordingly there may be
some doubt as to
the validity to that extent of this section. But it is
clearly severable; indeed probably it would be read distributively as a result
of the severability clause, if it were considered
constitutionally incapable of
applying to inter-State trade. The section can have no bearing upon the
validity of s 22A(1)(b)." (emphasis added)
- The
statement that s 21 was "clearly severable" conveys that it was considered
not to be inappropriate to assess severability before,
and independently of, the
determination of validity. It may appear equivocal, inasmuch as their Honours
then went on to observe
that "probably it would be read distributively ... if
it were considered constitutionally incapable of applying to inter-State
trade" (emphasis added). But their Honours then
dealt[193]
specifically with s 22C on the basis of severability before reaching a
concluded view about its validity:
"When, therefore, sub-s (3) of
s 22C makes contravention of a condition an offence it purports to
penalize, among other things, the
sale from New South Wales into another State
of a commodity which it assumes has been brought into existence. To this extent
at
all events s 22C may well be considered to infringe upon the freedom of
inter-State trade established by s 92. ... It is not difficult
to suppose
that under the doctrines affecting the severance of invalid from valid statutory
provisions which it has been the object
of 'severability clauses' to exclude and
to reverse, the invalidity of part of the operation of the provisions in
question ... might
have been regarded as infecting the whole of s 22C and a
question might have existed as to the presumed dependence thereon of s 22A
itself. But clauses of the description of s 2(2) were designed to prevent
such a result ... Even if it were considered that the
whole of
sub-s (2)(a) of s 22C fell because it could not extend to inter-State
transactions and it were further considered that sub-s
(1) could not
survive the separation of sub-s (2)(a), no ground exists for discovering in
the statute an affirmative intention that
s 22A should have no operation
unless s 22C proved valid and operative."
- Fullagar J,
writing separately, reasoned to similar effect. His Honour
held[194]
that it was not necessary to form any opinion as to the validity of s 22C
as s 2(2) made it plain that the validity and operation
of s 22A could
not be affected by any vice which could be discovered in s 22C.
- Nominal
Defendant v
Dunstan[195]
is also pertinent although less compelling. It turned on the operation of
certain provisions of the Motor Vehicles (Third Party Insurance) Act 1942
(NSW). Section 92 was not a central issue. The Court (Dixon CJ,
Taylor and Owen JJ)
observed[196]
in passing that, to the extent that s 7(1) of the Act might be considered
to offend s 92 in its application to motor vehicles exclusively
engaged in
interstate trade, it could be read by virtue of s 3 of the Act to apply to
all motor vehicles other than those exclusively
engaged in interstate trade,
commerce or intercourse.
- By
comparison, some of the clearest support in the s 92 cases for deciding
this matter on the basis of the threshold question is
in the observations of
Barwick CJ, in dissent, in Harper v
Victoria[197].
In that case, the plaintiff challenged provisions of the Marketing of Primary
Products Act 1958 (Vic) as a substantial impediment to his interstate trade
in the importation and retail sale of eggs from outside of Victoria. The
majority (McTiernan, Taylor, Menzies and Owen JJ) held that the impugned
provisions did not infringe the freedom of interstate trade
and commerce, and
thus in effect that there was no need to consider any question of severability.
Barwick CJ held that it was appropriate
to decide the matter on the basis
of severability without the determination of validity. His Honour reasoned
thus[198]:
"Where such a provision as s 3 of the Acts Interpretation
Act [1958 (Vic)] is available [now s 6 of the Interpretation of
Legislation Act], and the statute can be given a distributive operation, its
commands or prohibitions will then be held inapplicable to the person
whose
inter-State trade would thus be impeded or burdened. Of course, the question of
validity or applicability will only be dealt
with at the instance of a person
with a sufficient interest in the matter; and, in my opinion, in general, need
only be dealt with
to the extent necessary to dispose of the matter as far as
the law affects that person.
...
I have confined my attention to the situation of the plaintiff and the
particular interest which he has in the question of the invalidity
or in that of
the applicability of the Act. In consequence, I have no need in this case to
consider the question whether the prohibition
on sale by retail in s 41D
has a direct as distinct from a consequential or remote operation upon the
inter-State trade of an importer
of eggs into Victoria who sells his eggs by
wholesale. That question, which I do not regard as directly arising in this
case, remains
unresolved as far as I am
concerned."
- Similarly,
in Buck v
Bavone[199]
Stephen J (with whom
Mason J[200]
and
Jacobs J[201]
agreed)
disposed[202]
of a s 92 attack on s 12 of the Potato Marketing Act 1948 (SA)
by holding that, assuming without deciding that s 12 were a restriction on
the freedom of interstate trade and commerce, it
could be read down or severed.
Stephen J
considered[203]
that there was much to be said for the view that "s 92 should be applied
only for the protection of transactions actually existing
which come within it
and not to imaginary
cases"[204],
and
stated[205]:
"A
law should not, in my view, be declared invalid when no interested party's
interstate trade is shown to have been burdened by it
and when there may never
exist any trade so circumstanced as to be liable to be so burdened."
- Taken
as a whole, these cases support the idea that there are matters in which it is
sufficient to dispose of an attack on the constitutional
validity of a provision
to conclude that, assuming without deciding that the impugned law would
otherwise be invalid, it could be
read down or severed in its operation in
relation to the plaintiff and so be considered as valid to that extent. There
is also this
Court's statement in Lambert v
Weichelt[206]
that "[i]t is not the practice of the Court to investigate and decide
constitutional questions unless there exists a state of facts
which makes it
necessary to decide such a question in order to do justice in the given case and
to determine the rights of the parties".
As the Attorney-General of the
Commonwealth submitted, these considerations led this Court to adopt the
approach in
Knight[207]
that, assuming without deciding that the provision there in suit would have
otherwise offended the
Kable[208]
doctrine – because it provided for the possibility of a judicial officer
being appointed to a parole board that was statutorily
bound to make a parole
decision in a designated fashion – the provision could be read down to
exclude judges from the board.
- Despite
the occasional utility of that sort of approach, however, the suggestion that
the Clubb appeal should be resolved on that
basis has little to commend it. As
the matter stands, Mrs Clubb has been convicted of a criminal offence of
contravening s 185D
of the PHW Act by engaging in conduct of the kind described
in para (b) of the definition of prohibited behaviour in s 185B(1).
She
was so convicted consequent upon the Magistrate's rejection of Mrs Clubb's
contention that, insofar as s 185D proscribes conduct
of the kind referred
to in para (b) of the definition of prohibited behaviour, s 185D is
invalid as an unjustified burden on the
implied freedom of political
communication. Following conviction, Mrs Clubb appealed against conviction
to the Supreme Court of
Victoria on grounds including that the Magistrate had
erred in holding that, insofar as s 185D proscribes conduct of the kind
referred
to in para (b) of the definition of prohibited behaviour, it is
not an unjustified burden on the implied freedom of political communication.
The determination of that ground of appeal was thereafter removed into this
Court pursuant to s 40 of the Judiciary Act 1903 (Cth) as a cause or
part of a cause involving the interpretation of the Constitution.
- Contrary,
therefore, to the submissions of the Attorney-General of the Commonwealth, the
constitutional validity of s 185D insofar
as it proscribes conduct of the
kind referred to in para (b) of the definition of prohibited behaviour is
not an academic or hypothetical
question. If it were held that the proscription
of that kind of conduct is an unjustified burden on political communication, and
so an infringement of the implied freedom of political communication, it would
follow that Mrs Clubb was wrongly convicted and that
her conviction should
be quashed. Alternatively, if it were held that the proscription in s 185D
of that kind of conduct is not
an unjustified burden on political communication,
and so not an infringement of the implied freedom, then, subject to any other
grounds
of appeal yet to be considered by the Supreme Court of Victoria, the
conviction would be affirmed. Either way, Mrs Clubb has a direct
and immediate
interest in the question of whether, insofar as s 185D proscribes conduct
of the kind referred to in para (b) of the
definition of prohibited
behaviour, it is an unjustified burden on the freedom of political communication
and thus an infringement
of the implied freedom.
- There
are also a number of constructional problems in resolving the appeal on the
basis that, assuming without deciding that the
proscription in s 185D of
the para (b) conduct were otherwise an infringement of the implied freedom
of political communication,
s 185D could be read down under s 6(1) of
the Interpretation of Legislation Act to the extent necessary to avoid
that result.
- First,
in the ordinary course of events it would not be appropriate to apply
s 6(1) unless the Court has reached the view that, upon its natural and
ordinary construction having regard to its context and purpose,
the provision
would amount to an unjustified restraint on the implied freedom of political
communication. Otherwise, the exercise
could result in the Court giving the
provision a more limited reach than Parliament intended without there being any
constitutional
need to do so.
- Secondly,
it is doubtful that s 6(1) would apply to s 185D in its proscription
of the para (b) conduct. Granted, as the Attorney-General of the
Commonwealth submitted,
provisions such as s 6(1) may permit a distributive
construction of provisions that would not be possible under the ordinary rules
of statutory construction.
But s 6(1) cannot apply in the face of a
"contrary
intention"[209];
and a "contrary intention" for the purposes of severance provisions such as
s 6(1) is an intention that the legislative enactment "have either a full
and complete operation or none at
all"[210].
Here, such an intention can be discerned. Although the concept of governmental
or political communication has been stated in simple
terms – a
communication which could facilitate the making of a free and informed choice as
an
elector[211]
– previous decisions of this
Court[212]
show that determinations of whether a communication satisfies that description
are fraught with difficulty and disagreement. Against
that background, it can
hardly be supposed that Parliament envisaged a police officer dealing with the
immediacy of an abortion protest
within 150 m of premises where abortions are
provided making an informed decision as to whether the protest is or is not a
governmental
or political communication. Yet, in effect, that is what would be
required if para (b) of the definition of prohibited behaviour
were read
down as excluding governmental or political communications. The police officer
could not or at least should not arrest
or charge a culprit without having
reasonable grounds to do
so[213] and
that would require the police officer forming a view as to whether there were
reasonable grounds to conclude that the communication
was not a governmental or
political communication.
- Those
concerns are reflected in the statement of French CJ in International
Finance Trust Co Ltd v New South Wales Crime
Commission[214]:
"The
court should not strain to give a meaning to statutes which is artificial or
departs markedly from their ordinary meaning simply
in order to preserve their
constitutional validity. There are two reasons for this. The first is that if
Parliament has used clear
words to encroach upon the liberty or rights of the
subject or to impose procedural or other constraints upon the courts its choice
should be respected even if the consequence is constitutional invalidity. The
second reason is that those who are required to apply
or administer the law,
those who are to be bound by it and those who advise upon it are generally
entitled to rely upon the ordinary
sense of the words that Parliament has
chosen. To the extent that a statutory provision has to be read subject to a
counterintuitive
judicial gloss, the accessibility of the law to the public and
the accountability of Parliament to the electorate are diminished.
Moreover,
there is a real risk that, notwithstanding a judicial gloss which renders less
draconian or saves from invalidity a provision
of a statute, the provision will
be administered according to its ordinary, apparent and draconian meaning."
(footnote omitted)
- There
being doubt as to whether s 185D in its proscription of the para (b)
conduct is severable, it would not be appropriate for
this Court to proceed on
the basis that, because Mrs Clubb has not demonstrated that her conduct was
a political communication, it
is unnecessary to decide on the constitutional
validity of s 185D.
- There
are also pragmatic reasons why this Court should determine whether the
proscription in s 185D of para (b) conduct is an unjustified
burden on
the freedom of political communication. As will be recalled, that issue of law
was raised before the Magistrate for determination
as a preliminary question.
The Crown did not then contend that s 185D could or should be read down as
excluding communications on
government or political matters; it was content for
the matter to be litigated on an all-or-nothing basis. In deciding the issue
of
law on that basis against Mrs Clubb, the Magistrate held that abortion
protests as described in the affidavit evidence (for the
purpose of
"constitutional fact finding") "could never be described" as political
because abortion is "a medical procedure legally accessible by women" (emphasis
added). Hence, on the
law as determined by the Magistrate, whether
Mrs Clubb's conduct amounted to a communication on a government or
political matter
could not thereafter be treated at the hearing as an issue of
(adjudicative) fact, and evidence adduced by Mrs Clubb directed only
to
that issue would have been inadmissible as irrelevant.
- Had
the Magistrate determined that s 185D on its face impermissibly burdened
the implied freedom and so read the provision as limited
to communications other
than on government or political matters, her Honour would have had occasion then
to decide the
non-trivial[215]
question of whether the effect of that limitation was to introduce an element of
the offence, which the Crown would be bound to prove
in all cases, or merely an
exception within s 72 of the Criminal Procedure Act 2009 (Vic), as
to which no proof would be necessary unless raised by the
evidence[216].
As the matter proceeded, however, no question as to onus of proof arose, because
the preliminary determination shut out proof on
that issue.
- As
a result of this procedural history, no finding has yet been made as to whether
Mrs Clubb's communication is on a government or
political matter. Thus, if
this Court were now to decide the preliminary question by assuming without
deciding that the prohibition
is limited to communications other than on
government or political matters, the matter would need to be remitted to the
Magistrate
for rehearing. At that point, it would be open for the first time to
Mrs Clubb, and indeed the Crown, to lead evidence bearing upon,
and to
address submissions to, whether the charged conduct amounted to a governmental
or political communication. And at that point
it would be necessary for the
Magistrate to decide the very point proposed to be assumed (viz, whether the law
would offend the Constitution and so requires reading down).
- Moreover,
if the Magistrate persisted in the view that the prohibition is ex facie
constitutional, or alternatively accepted that
it should be read down but held
that the charged conduct was not a governmental or political communication,
Mrs Clubb would then
be entitled to appeal to the Supreme Court of Victoria
on the questions of law so
determined[217];
and, if unsuccessful, to apply for leave to appeal to the Court of
Appeal[218];
and, if such leave were granted but the appeal dismissed, to apply for special
leave to appeal to this Court.
- In
those circumstances, there would be a practical injustice and little practical
advantage in this Court disposing of the matter
on the basis of the threshold
question[219].
It is preferable that this Court decide now whether, upon its proper
construction, the proscription in s 185D of conduct of the
kind described in
para (b) of the definition of prohibited behaviour infringes the implied
freedom of political communication.
Facts and legislative
provisions
- The
facts of the Clubb appeal and the relevant legislative provisions are set out in
the judgment of Kiefel CJ, Bell and Keane JJ
and need not be rehearsed.
But it is necessary to say something more at this stage of the elements of the
offence created by s 185D
of the PHW Act comprised of engaging in conduct
of the kind specified in para (b) of the definition of prohibited
behaviour.
- The
offence is a regulatory statutory offence and, consequently, although
s 185D does not specify a mental element, it may be taken
that it requires
a general intent to do the act
charged[220].
Accordingly, in any prosecution for contravention of s 185D comprised of
conduct of the kind specified in para (b) of the definition
of prohibited
behaviour, it would be incumbent upon the Crown to prove both that the accused
did, and that the accused intended to,
communicate at a point within a
150 m radius of premises where abortions are provided in relation to
abortions in a manner which
would be able to be seen or heard by a person
accessing, attempting to access or leaving the premises.
- It
would be open to the Crown to establish that general intent by proving that the
accused believed that he or she was within a radius
of 150 m of premises at
which abortions are provided, and that the accused there communicated regarding
abortions by means which
would be capable of being seen or heard by a person
accessing, attempting to access or leaving the premises. It would not be
necessary
for the Crown to prove that a person accessing, attempting to access
or leaving the premises in fact saw or heard the communication.
Parliament's
use of the words "able to be seen or heard", as opposed to words such as "is
seen or heard", and the problems of proof
which, as will be seen, Parliament
noticed the Crown would face if proof of the offence required calling a person
who had heard or
seen the
communication[221],
imply a statutory intention that "able to be seen or heard" is an objective
conception tantamount to "would be capable of being
seen or heard by a person
accessing, attempting to access, or leaving premises at which abortions are
provided"[222].
Nor would it be necessary for the Crown to prove that the accused believed that
the communication would be capable of being seen
or heard by a person accessing,
attempting to access or leaving the premises. But the accused would be entitled
to raise the possibility
that he or she had an honest and reasonable belief that
the communication was incapable of being seen or heard by a person accessing,
attempting to access or leaving the premises; in which event the Crown would be
left with the persuasive if not evidential burden
of excluding that possibility
beyond reasonable
doubt[223].
- By
contrast to the requirement for proof of a general intent to commit the act
charged, there is no presumption in relation to regulatory
statutory offences
that intent to cause specified consequences is an element of the offence
charged; and, in the case of a contravention
of s 185D comprised of prohibited
behaviour of the kind described in para (b) of the definition, there is no
reason to discern a
statutory intention that an accused must intend that a
charged communication be reasonably likely to cause distress or anxiety.
To the
contrary, the objectivity of the expression "reasonably likely to
cause"[224]
and the difficulty which Parliament noticed the Crown would face in proving a
specific intent to communicate in the stipulated manner
bespeak a conclusion
that Parliament intended it to be enough for the Crown to establish that the
conduct would be reasonably likely
to cause distress or anxiety to a person
accessing, attempting to access or leaving the premises whether or not the
accused intended
it to have that
effect[225].
Once again, however, it would be open to an accused to raise the possibility
that he or she had an honest and reasonable belief
that the communication would
not be reasonably likely to cause distress or anxiety; in which event the Crown
would be left with the
persuasive if not evidential burden of excluding that
possibility beyond reasonable
doubt[226].
Burden on the implied freedom
- The
constitutional requirement of freedom of political communication is a necessary
implication arising from ss 7, 24, 64 and 128
and related sections of the
Constitution and thus extends only so far as is required to give effect
to those
sections[227].
It arises because it is necessary in order to give efficacy to those provisions
that the people be free to communicate concerning
government and political
matters which could affect their choices in federal and State elections and
constitutional referenda or
that could throw light on the performance of
ministers of state or the executive branch of
government[228].
Unlike the United States First Amendment right of free speech, the implied
freedom is not a personal right of free speech but a
constraint on legislative
power[229].
The question of whether a law imposes a burden on the implied freedom is thus to
be determined according to the law's effect on
political communication as a
whole rather than on an individual or group's preferred mode of
communication[230].
Where a restriction is limited to a preferred mode of communication, it will not
infringe the implied freedom unless it significantly
compromises the ability of
affected persons to engage in political communication and, even then, only if
and because it has a significant
effect on political communication as a
whole.
- Many
of Mrs Clubb's submissions proceeded from an unstated premise that the implied
freedom of political communication operates in
similar fashion to the First
Amendment right of free speech and that, because some United States authority
suggests that conduct
of the kind in which Mrs Clubb engaged would be protected
by the First Amendment, it should be concluded that her conduct was protected
by
the implied freedom of political communication. As will appear, once Mrs
Clubb's arguments are stripped of that misconception,
they must be rejected.
- The
content of the freedom to discuss government and political matters is to be
ascertained according to what may be for the common
convenience and welfare of
society from time to time, and hence its ascertainment requires an examination
of changing
circumstances[231].
The range of matters which may qualify as government and political matters is
broad[232]
and, in one sense, it is enough to say of a matter that it is political if it is
a matter of political
controversy[233].
But bearing in mind the restricted nature of the implied freedom, there is a
danger that the idea of it being enough that a matter
is one of political
controversy can be pressed too far. It does not follow from the fact that a
subject matter is a matter of political
controversy that all communications
regarding that subject matter are political
communications[234].
More specifically, although abortion is a subject matter of political
controversy, it does not follow that all communications about
abortion are
political. It may be accepted that a communication as to whether abortion law
should be changed to prohibit abortion
or restrict the circumstances in which it
is lawful is a political communication: it is apt to facilitate the making of a
free and
informed choice as an elector. By contrast, a communication between a
woman and her doctor as to the possible physiological and
psychological sequelae
of the woman undergoing an abortion is an apolitical, personal communication.
- A
law is taken to impose an effective burden on the implied freedom of political
communication if it at all prohibits political communication
unless perhaps the
prohibition or limitation is so slight as to have no real
effect[235].
By proscribing prohibited behaviour within a 150 m radius of premises at which
abortions are provided, s 185D prevents persons
engaging in political
communications about abortion within that area. To that extent, s 185D
imposes a restriction on the implied
freedom of political communication. But
inasmuch as s 185D leaves persons free within the law to say and do whatever
they wish about
abortion at any point more than 150 m from premises at which
abortions are provided, it is not apparent that the proscription of
prohibited
behaviour within that area has any real effect on the implied freedom.
- Unlike
some other cases in which this Court has been concerned with time, manner and
place restrictions of political
communication[236],
there is no evidence here that confining political communications about abortion
to a distance of not less than 150 m from premises
at which abortions are
provided imposes an appreciable restriction on the total number of opportunities
for, or effectiveness of,
political communication about abortion. In
particular, there is no evidence here or reason to suppose that the proscription
of prohibited
behaviour within the 150 m radius of abortion premises
deprives protesters of the ability to generate the type of attention necessary
or more likely than other forms of communication to sway hearts and minds as to
the need for abortion law
reform[237].
- What
the evidence does reveal is that the proscription of prohibited behaviour within
the 150 m radius significantly compromises
the ability of persons like Mrs Clubb
to accost and harangue women and other persons as they attempt to access
premises at which
abortions are provided, and thereby to deter them from
aborting their pregnancies or deter persons who support and treat them from
aiding them to do so. Accordingly, it may be inferred that the effect of s 185D
is significantly to reduce the ability of persons
like Mrs Clubb to influence
particular women to forbear from aborting their pregnancies. But as has been
observed, a woman's decision
whether or not to abort her pregnancy is not a
political decision. It is an apolitical, personal decision informed by medical
considerations,
personal circumstances and personal religious and ethical
beliefs, qualitatively different from a political decision as to whether
abortion law should be
amended[238].
For the same reason, a communication directed to persuading a woman as to
whether or not to abort her pregnancy is not a political
communication but a
communication concerning an entirely personal matter. It stands in contrast to
what Hayne J described in Monis v The Queen as a single
governmental or political communication embodying personal attacks on
individuals[239].
- Admittedly,
the possibility cannot be excluded that deterring a woman from aborting her
pregnancy could sooner or later result in
her concluding that abortion should be
outlawed, and, in that sense, affect her political choices. But in the scheme
of things,
the chance of a Damascene conversion of those proportions is surely
very limited, and, in any event, such effect on the implied freedom
of political
communication as the proscription of prohibited behaviour might thus engender
would be entirely adventitious. As authority
in this and other contexts shows,
it would not be an effective burden on the implied
freedom[240].
- Apart
from authority, there might be something to be said for the view that s 185D
does not impose any effective burden on the implied
freedom of political
communication. Previous decisions of this Court, however, have established that
the test of whether a law imposes
an effective burden on the implied freedom is
qualitative, not quantitative, and that the existence of a burden is to be
assessed
by reference to the terms, operation and effect, both legal and
practical, of the law in
question[241].
As Hayne J
observed[242]
in Monis:
"submissions about 'little' burdens are contrary
to and seek to discard the established and unchallenged doctrine of the Court.
They
do so by seeking to reformulate the accepted boundaries of the freedom,
within which the freedom is absolute. Those boundaries are
passed only when the
impugned law is found to be reasonably appropriate and adapted to serve a
legitimate end in a manner compatible
with the constitutionally prescribed
system of government and the freedom of political communication which is its
indispensable incident.
By these submissions the first respondent and the
interveners sought to reset the boundaries to some quantitative measure. By
this
means the constitutional freedom would be subordinated to small and
creeping legislative intrusions until some point where it could
be said that
there are so few avenues of communication left that the last and incremental
burden is no longer to be called a 'little'
burden. This is not and cannot be
right."
- In
terms, s 185D coupled with para (b) of the definition of prohibited behaviour
proscribes communicating by any means in relation
to abortions within a radius
of 150 m of premises at which abortions are provided in a manner that is able to
be seen or heard by
persons accessing, attempting to access or leaving the
premises and is reasonably likely to cause distress or anxiety. In operation,
given that most forms of political protest about abortion conducted within 150 m
of premises at which abortions are provided would
likely be seen or heard by
persons accessing, attempting to access or leaving the premises, and, as has
been observed, would likely
cause appreciable distress or anxiety to a
significant proportion of them, the practical effect of the provision is all but
to prohibit
political protest about abortions within the 150 m radius.
Qualitatively, it must be accepted that that is significant, even if
it is
quantitatively insignificant.
Reasonably appropriate and adapted
to serve a legitimate purpose
- The
question then is whether the law is justified as reasonably appropriate and
adapted to the achievement of a legitimate purpose
consistent with the system of
representative and responsible government mandated by the
Constitution[243].
That entails the two-step inquiry adumbrated in Lange v Australian
Broadcasting
Corporation[244],
as recently restated in Brown v
Tasmania[245],
as to whether the law is for a legitimate purpose consistent with the system of
representative and responsible government and, if
so, whether the law is
appropriate and adapted to the achievement of that
purpose.
Legitimate purpose
- As
the plurality
emphasised[246]
in Brown, it is important in ascertaining the purpose of an impugned law
not to confuse its purpose with its effect. Generally speaking,
the
identification of the purpose of an impugned law is to be arrived at by ordinary
processes of statutory
interpretation[247]
and therefore according to the text of the statute considered in context,
informed by the mischief to which it is directed and having
regard to relevant
extrinsic
materials[248].
If the purpose of the law thus presents as one of preventing particular kinds of
conduct, the fact that the law may have the effect
of preventing conduct more
generally is ordinarily to be regarded as immaterial.
- As
the law now stands in Victoria, abortion is a lawful medical procedure which
women are entitled to undergo in accordance with
medical advice as they may
choose is appropriate for them. As is apparent from the terms of s 185A of
the PHW Act, and is
confirmed[249]
in the extrinsic materials, the purpose of the proscription of prohibited
behaviour is to protect the safety and wellbeing of women,
support persons, and
others such as staff, as they access premises at which abortions are provided.
That is a legitimate purpose
consistent with the system of representative and
responsible government mandated by the Constitution. Just as persons
lawfully going about their commercial business are entitled to get on with it
unimpeded by the unwelcome, disruptive
antics of insistent
protesters[250],
women seeking an abortion and those involved in assisting or supporting them are
entitled to do so safely, privately and with dignity,
without haranguing or
molestation. The protection of the safety, wellbeing, privacy and dignity of
the people of Victoria is an
essential aspect of the peace, order and good
government of the State of Victoria and so a legitimate concern of any elected
State
government. A legislative purpose of securing its people that entitlement
is thus consistent with the system of representative and
responsible government
mandated by the Constitution.
- Counsel
for Mrs Clubb contended that the protection of dignity as such is not a
legitimate purpose consistent with the system of
representative and responsible
government because all political speech has the potential to or does affect the
dignity of at least
some others. So to contend misconceives the nature of the
implied freedom. It is a freedom to communicate ideas regarding matters
of
political controversy to persons who are willing to listen. It is not a licence
to accost persons with ideas which they do not
wish to
hear[251],
still less to harangue vulnerable persons entering or leaving a medical
establishment for the intensely personal, private purpose
of seeking lawful
medical advice and assistance. A law which has the purpose of protecting and
vindicating "the legitimate claims
of individuals to live peacefully and with
dignity", as is the case here, is consistent with the implied
freedom[252].
Appropriate and adapted
"Insubstantial burden"
- The
Attorney-General for Victoria argued that where, as here, a law imposes an
"insubstantial burden" on the implied freedom of political
communication and can
be seen as rationally connected to the achievement of a compelling and
legitimate purpose, the law should be
held to be reasonably appropriate and
adapted to the achievement of that purpose, and therefore valid, simply on the
basis that it
falls within the realm of matters in which it is open to
Parliament to make a selection of means for the achievement of a compelling,
legitimate purpose without being "second-guessed" by the court's undertaking of
any more detailed analysis of the law's appropriateness
and adaptedness.
- There
are a number of problems with that submission. First, it is not the law that
the size of the burden which a law imposes on
the implied freedom is
determinative of whether the law imposes an unjustified burden on the implied
freedom[253].
The predominance given to the size of the burden sits uneasily with existing
authority.
- Secondly,
the submission is conclusory. It asserts that the purpose of the law is
compelling – which presumably means that
its purpose should be regarded as
more compelling than at least some other purposes – without revealing how
or why it should
be so regarded.
- Thirdly,
in effect the submission invokes European human rights jurisprudential
conceptions of margin of legislative respect or
tolerance[254].
Those ideas have been rejected in relation to the implied
freedom[255].
The question here is whether the means which Parliament has chosen are
appropriate and adapted to the achievement of a legitimate
purpose consistent
with the system of representative and responsible government mandated by the
Constitution. The extent of a burden may feature in the assessment of
the appropriateness and adaptedness of the means
chosen[256].
But where, as in this
case[257], a
party seeking to impugn the validity of a law presents what she submits are
obvious and compelling alternatives, it is not open
to determine definitively
that the law is appropriate and adapted to the achievement of a legitimate
purpose until and unless those
alternatives have been excluded and a conclusion
reached that, in view of the legitimacy of purpose and degree of burden, the law
does not go beyond what could reasonably be required for the achievement of that
purpose.
Justification "calibrated" to burden imposed
- The
submissions of the Attorney-General of the Commonwealth were similar. He
contended that where, as here, an impugned law imposes
but a "slight" degree of
burden on the implied freedom, the appropriateness and adaptedness of it may be
assessed according to the
adage that the degree of justification required for a
law which infringes the implied freedom is to be "calibrated" according to
the
degree of burden, and therefore that the requisite degree of justification is
"slight". The Attorney-General added that the
"calibrating factors" which here
support that conclusion are that the impugned law in terms applies equally to
both the pro-abortion
and anti-abortion sides of the debate and that the
impugned law is a time, manner and place restriction as opposed to a restriction
directed to particular persons or particular political content; although, as the
Attorney-General accepted, the latter consideration
is subject to the
qualification that a time, manner and place restriction may require a higher
degree of justification where the
restricted time, manner and place of political
communication is shown to be an especially important part of one or the other
side's
or a person's communicative capacity.
- Those
contentions face similar difficulties to the submissions of the Attorney-General
for Victoria. The Commonwealth's proposed
approach does not regard the supposed
"slightness" of the burden as the predominant factor in assessing the validity
of the law,
and to that extent it is more consistent with the established and
unchallenged doctrine of the Court as to the accepted boundaries
of the freedom
within which the implied freedom is
absolute[258].
Like the Victorian Attorney-General's submissions, however, the Commonwealth's
contentions are conclusory. They offer no guidance
as to what absolute or
relative degree of burden is to be regarded as so "slight" as to make it
appropriate to prefer the suggested
process of a "calibration" to a more
thorough assessment of appropriateness and adaptedness. Nor do they provide any
justification
for abstaining from a necessity analysis where, as here, the party
seeking to impugn the validity of the law has presented what she
submits are
obvious and compelling alternatives. Further, by focussing on calibrating
factors, like a non-discriminatory burden
affecting both sides of the debate
equally, and the impugned law imposing a time, manner and place restriction,
they substitute for
principles of analysis capable of general application facts
which in some contexts may but in others should not lead to the conclusion
that
an impugned law is appropriate and adapted to the achievement of a legitimate
purpose. For example, as the Attorney-General
of the Commonwealth acknowledged,
a law which, in terms, applies equally to both sides of the debate may, in some
circumstances,
restrict the capacity of one side of the debate more severely
than the other or restrict one point of view more severely than most.
Where
that is so, it will be of little consequence that the law in terms applies
equally to both or all sides of the debate. The
question will be whether the
discriminatory effect of the impugned law can be justified as reasonably
appropriate and adapted to
a legitimate purpose. Similarly, it is of limited
assistance to ask whether a restriction is limited to a time, manner and place
without also inquiring whether it affects an especially significant means of
communication, and then, if it does, whether it can
be justified according to
established criteria.
Utility of proportionality testing
- Consistently
with the plurality's
adoption[259]
of three-part proportionality testing in McCloy v New South Wales, and
the
acceptance[260]
by a majority in Brown that three-part proportionality testing can be of
assistance in the determination of whether a law is appropriate and adapted to
serving a legitimate purpose consistent with the system of representative and
responsible government established by the Constitution, I adhere to the
view, which I
expressed[261]
in Brown, that three-part proportionality testing comprised of the tests
of suitability, necessity and adequacy in balance affords an appropriate
method
of assessing whether a law is reasonably appropriate and adapted to serving a
legitimate purpose consistent with the system
of representative and responsible
government mandated by the Constitution. But with the benefit of reading
in draft what the plurality has written in this matter, it is apparent that what
I wrote[262]
in Brown concerning the content of the necessity test requires some
modification. As it now appears to me, in cases in which three-part
proportionality
testing is applied its application should proceed in accordance
with the following criteria:
(1) A law is reasonably appropriate
and adapted to achieving a legitimate end consistent with the system of
representative and responsible
government if it is suitable, necessary and
adequate in its
balance[263].
(2) A law is suitable if it exhibits a rational connection to the purpose of
the law and a law may be seen to have a rational connection
to its purpose if
the means for which the law provides are capable of realising the law's
purpose[264].
(3) Up to a point, views may reasonably differ as to whether a law which
burdens the implied freedom of political communication is
necessary for the
achievement of a legitimate purpose consistent with the system of representative
and responsible government mandated
by the Constitution. Within that
range, it is for Parliament to decide what is necessary for the achievement of
the purpose. It is only when and if
Parliament's selection lies beyond the
range of what could reasonably be regarded as necessary that the law will be
adjudged as unnecessary.
One circumstance, among others, in which that may
appear to be the case is where a party seeking to impugn the law can point to
an
obvious and compelling alternative which is equally practicable and available
and would result in a significantly lesser burden
on the implied freedom.
(4) A law is adequate in its balance if it presents as suitable and necessary
in the senses described unless its effect upon the implied
freedom is grossly
disproportionate[265]
to or goes far
beyond[266]
what can reasonably be conceived of as justified in the pursuit of the law's
purpose.
- In
Brown, I
confined[267]
the test of necessity to the determination of whether there are such obvious and
compelling alternatives of significantly lesser
burden on the implied freedom of
political communication as to imply that the impugned law was enacted for an
ulterior purpose inconsistent
with the constitutionally prescribed system of
representative and responsible
government[268].
I did so because the Court has recognised that what is necessary to achieve a
given legislative purpose must be, to a large extent,
within the purview of
Parliament and, therefore, that the ascertainment of what is reasonably
appropriate and adapted to a legitimate
purpose is not a prescription to engage
in the assessment of the relative merits of competing legislative
models[269].
To engage in such an exercise would risk passing beyond the border of judicial
power into the province of the
legislature[270].
I was also concerned that there is a degree of epistemic uncertainty involved in
deciding whether an alternative measure would achieve
the same objective as an
impugned law while imposing a lesser burden on the implied
freedom[271].
I concluded that it was appropriate to confine the necessity test in the manner
I did as a means of minimising the risk of the Court
exceeding its
constitutional competence and of limiting the epistemic uncertainty of assessing
the ability of alternatives to achieve
the same result as an impugned law with
lesser burden on the implied freedom than the impugned law.
- On
reflection, I accept that to frame the test in the terms I did was too
stringent. In addition to cases of obvious and compelling
alternatives
indicative of an ulterior purpose, it is conceivable that there may be cases
falling short of ulterior purpose where
an obvious and compelling alternative
would result in such a lesser degree of burden on the implied freedom as to show
that the impugned
law is not necessary in the relevant sense. There are also
cases where the circumstances and the state of the evidence, or lack
of it,
leave the court unpersuaded that the degree of burden which the impugned law
imposes on the implied freedom is necessary for
the achievement of the
legitimate purpose for which the law was enacted. Australian Capital
Television Pty Ltd v The
Commonwealth[272]
and, more recently, Unions NSW v New South
Wales[273]
are examples. The test of necessity must allow for cases of those kinds and
conceivably for other possibilities, and so needs to
be more flexible than I
allowed in Brown.
- Even
so, it remains that the test of necessity is not a prescription to engage in the
assessment of the relative merits of competing
legislative models. Legislation
should not be adjudged unnecessary unless it is clear that Parliament's
selection lies beyond the
range of what could reasonably be regarded as
necessary to achieve the legitimate purpose for which the law was enacted or
unless
the circumstances and state of evidence are such as to afford the court
an insufficient basis to conclude whether the degree of burden
is
necessary.
- As
to adequacy in balance, I remain of the view expressed in
Brown[274]
that the test of adequacy should be one of 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.
That necessitates the court making
an assessment of the importance of the
purpose of the law as against the extent of the burden which it imposes on the
implied freedom
of political
communication[275];
and in making that assessment it is necessary to keep in mind that it is
principally for Parliament to decide whether a legitimate
purpose is of
sufficient importance to warrant the extent of its impingement on the implied
freedom. As has been observed, the law
is yet to yield a principled manner of
determining the importance of a legitimate
purpose[276],
or how its importance should be weighted relative to
burden[277].
A test of a manifestly excessive burden by comparison to the demands of
legitimate purpose recognises and makes due allowance for
the inherent
difficulties of the process.
- I
recognise that the assessment of adequacy in balance has been criticised as the
weighing of
incommensurables[278].
But it is to be observed that the need to weigh incommensurables is hardly
unprecedented in the law, and the process is not inutile.
In one way or
another, courts are not infrequently called upon to weigh competing values that
could never plausibly be reduced to
any single metric of evaluation – for
example, in the identification of a common law duty of
care[279] or
in the sentencing of a criminal
offender[280].
And despite the imprecision of those processes, they are the best available
means of fulfilling essential functions. Conceptually,
the weighing of the
importance of the purpose of a law against its impingement upon the implied
freedom of political communication
is no different.
- A
court may be assisted in its assessment of adequacy in balance by reference to
principles of the common
law[281].
Several of those principles are the product of or reflected in competition
between freedom of expression and other personal and
social interests, including
reputation[282],
privacy[283],
and the avoidance of psychological
injury[284].
Where the protection of such an interest has long been seen to justify the
recognition of a cause of action or criminal offence
notwithstanding an
interference with free speech, coherence suggests that legislation protecting
related interests to a comparable
extent would not generally be struck down as
excessive. At the same time, the court should be mindful not to "carry into
constitutional
discourse an undue romanticism about the common
law"[285].
The recognition that Parliament may legitimately alter the balance struck at
common law requires that the test of adequacy in balance
be whether the
legislative decision-maker's assessment is grossly disproportionate or
manifestly excessive.
- The
test coheres to the assessment of infringement of express constitutional
guarantees[286]
and thereby provides a degree of precision which should be regarded as
acceptable. At the same time, it alleviates the open-endedness
of the court's
comparison of importance of purpose with burden, and, to a considerable extent,
it mitigates the difficulty of weighing
incommensurables. Most importantly, it
leaves Parliament unhindered within the broad range of what is reasonably open
to be achieved.
- It
was suggested in the course of argument that the adequacy in balance test is
largely unnecessary or rendered redundant by reason
of the necessity test. That
is not so. It is correct that the adequacy in balance test is only ever reached
where an impugned law
has first passed the necessity test, and thus that,
generally speaking, whether a law is appropriate and adapted is more likely to
turn on the question of its suitability or necessity than on whether it is
adequate in its
balance[287].
But that is not to say that adequacy in balance will never be
decisive[288].
- Consistently
with the approach taken to express constitutional guarantees, it should be
accepted that an impugned law that otherwise
presents as suitable and necessary
for the achievement of a legitimate purpose consistent with the system of
representative and responsible
government mandated by the Constitution is
not to 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
that purpose.
Suitability
- Relevantly,
the means which the PHW Act provides to achieve its purpose is the proscription
of prohibited behaviour within a radius
of 150 m of premises at which abortions
are provided. Prohibited behaviour is precisely defined by s 185B(1) by
proscription of
the kinds of behaviour which, it appears, Parliament considered
to constitute a real risk to the safety, wellbeing, privacy and dignity
of
persons accessing or attempting to access or leaving premises at which abortions
are
provided[289].
The proscription of prohibited behaviour of the kind referred to in para (b) of
the definition is thus a means which is logically
capable of achieving the
purpose of s 185A: preventing the kind of molestation and haranguing which
Parliament considered to constitute
a real risk to the safety, wellbeing,
privacy and dignity of persons accessing or attempting to access or leaving
premises at which
abortions are provided. Notably, there was evidence before
the Magistrate that the experience of staff at the East Melbourne Fertility
Control Clinic was that the introduction of the proscription of prohibited
behaviour has had a positive effect for the wellbeing
of patients and staff. It
follows that the proscription of conduct of the kind referred to in para (b) of
the definition of prohibited
behaviour is rationally connected to the
achievement of the purpose of securing the health and wellbeing of women
accessing premises
at which abortions are provided and is thus suitable in the
relevant sense.
Necessity
- As
has been emphasised, the means chosen by Parliament to achieve a legitimate
purpose consistent with the system of representative
and responsible government
are not to be considered unnecessary just because the court might think that
there is another way of achieving
the same objective with arguably less impact
on the implied freedom of communication. A law may be adjudged unnecessary in
the relevant
sense if there is an obvious and compelling alternative of
significantly lesser burden on the implied freedom that is equally
practicable and available. But it is incumbent on a party challenging a law
on
the basis that it infringes the implied freedom of political communication to
identify any obvious and compelling alternatives
which that party contends would
or might impose a lesser burden on the implied
freedom[290].
In cases involving the determination of whether an impugned law is justified,
notions of burden of proof and persuasion are largely
misplaced. Where it
appears that a law imposes a burden on the implied freedom, the court is bound
to hold the law invalid unless
persuaded that it is appropriate and adapted to
the achievement of a legitimate purpose. But it does not follow from the need
for
the court to be persuaded that an impugned law is justified that the court
must go in search of and be able to exclude as impracticable
every possible
alternative of conceivably lesser burden on the implied freedom, still less that
a party seeking to uphold the impugned
law is required to demonstrate that there
are no such
alternatives[291].
If an obvious and compelling alternative of significantly lesser burden on the
implied freedom is presented, or presents itself,
to the court, it is likely to
prove determinative. Otherwise, the issue will not arise.
- Mrs
Clubb contended that there were a number of obvious and compelling alternatives.
The first was to repeal para (b) of the definition
of prohibited behaviour. Her
argument was that, since para (a) of the definition of prohibited behaviour
encompasses all of the
types of conduct which characteristically interfere with
the safety, wellbeing, privacy and dignity of persons entering or leaving
premises, the only thing that para (b) adds to the proscription is conduct that
does no more than cause mere "discomfort". It followed,
in Mrs Clubb's
submission, that, if Parliament had omitted para (b) from the definition of
prohibited behaviour, the provision as
so constituted would have been adequate
to achieve the stated purposes of s 185A with a substantially lesser burden on
the implied
freedom of political communication.
- That
submission breaks down at a number of levels. To begin with, as can be seen
from the Statement of
Compatibility[292],
Parliament enacted para (b) of the definition of prohibited behaviour conscious
that proscriptions like para (a), being framed in
terms of offences and
misfeasances, cannot be enforced until after the harmful conduct has occurred,
and because Parliament was persuaded
that experience had shown that there are
significant difficulties with their
enforcement[293].
There is no reason to doubt that is so.
- Secondly,
although it is true that para (a) prohibits significant aspects of the conduct
in which anti-abortion advocates have historically
engaged, para (b) is ex
facie designed to reach conduct that may not amount to any of the criminal
offences or misfeasances listed
in para (a). Examples of such conduct in
evidence before the Magistrate included unsolicitedly drawing near to a woman as
she accesses
or attempts to access premises at which abortions are provided,
forcing literature on her which recites lists of "Possible Physical
Complications of Abortion" and "Possible Psychological Post Abortion
Complications", and advocating alternatives to abortion and
"help", thereby to
dissuade her from entering the premises. In some of the United States First
Amendment cases regarding abortion
protests, conduct of that kind is described
with disarming American euphemism as "sidewalk
counseling"[294].
In the Victorian legislation, and in the Tasmanian legislation which is in issue
in the Preston appeal and which derives in part
from Canadian
precedent[295],
some examples of such conduct are proscribed as "interfering with or impeding a
footpath"[296]
or "footpath
interference"[297],
though, again, that proscription does not seem apt to cover all instances of
conduct that might fall within the scope of para (b).
- In
this matter, some instances of conduct that might fall within para (b) were
more graphically elucidated in experiential evidence
presented to this Court by
the Castan Centre for Human Rights Law, appearing as amicus
curiae:
"(a) Protesters approaching, following or walking alongside
people approaching clinic premises, distributing pamphlets, and distributing
plastic models of foetuses.
(b) Protesters equating foetuses with babies by imploring patients not to 'kill'
their 'baby', and castigating patients as murderers.
...
(e) Protesters displaying large and graphic posters depicting what purported to
be foetuses post-abortion, foetuses in buckets, or
skulls of foetuses.
(f) Protesters distributing visually graphic literature containing medically
inaccurate and misleading information warning that abortion
results in
infertility, failed relationships, mental illness and cancer." (footnotes
omitted)
- Thirdly,
para (b) of the definition makes no mention of "discomfort". In terms, it
proscribes conduct which is "reasonably likely
to cause distress or anxiety", no
doubt with a view in part to the kind of conduct just recited. It is specious
to contend, as in
effect Mrs Clubb contended, that "distress or anxiety" in
para (b) means nothing more than mere "discomfort".
- Fourthly,
it is apparent from the Statement of Compatibility that Parliament considered
that there was good reason to conclude that
the kind of conduct covered by
para (b) is productive of distress or
anxiety[298]:
"Women and their support people have reported that they have found
such conduct very distressing and in many cases psychologically
harmful. This
is compounded by the fact that many women seeking abortion services are highly
vulnerable to psychological harm by
reason of the circumstances that have
contributed to their decision to undergo an abortion.
...
Provisions that only prohibit intimidating, harassing or threatening conduct, or
conduct which impedes access to premises are inadequate
for a number of
reasons".
Those concerns are borne out by evidence
adduced by the Attorney-General for Victoria before the Magistrate, and which
was before
this Court, of Dr Susie Allanson, who worked as a sessional clinical
psychologist at the East Melbourne Fertility Control Clinic
for 26 years and who
observed the activities and conduct of protesters and the effect that harassment
had had on her and her patients.
- Mrs
Clubb suggested that another obvious but less burdensome alternative to the
proscription of para (b) conduct would be to limit
the proscription by means of
one or more of the following exclusions:
(a) an exclusion for
conduct apt to cause no more than discomfort;
(b) an exclusion for communications which are consented to;
(c) a requirement that the communications in fact be seen or heard;
(d) a "carve out" for political communications;
(e) a materially smaller safe access zone;
(f) a "carve out" during elections;
(g) a mens rea requirement for one or more of the actus reus elements of the
offence.
- Those
suggestions are unconvincing. To the extent that "no more than discomfort" may
be conceived of as a mental state of lesser
seriousness than distress or
anxiety, the legislative requirement that conduct be reasonably likely to cause
distress or anxiety
serves to exclude conduct apt to cause no more than
discomfort.
- The
notion of excluding communications which are consensual is unrealistic. In
reality, what is the likelihood of persons who are
accessing or attempting to
access premises at which abortion services are provided consenting to
communications in relation to abortions
with people like Mrs Clubb? And even if
that were a realistic possibility, an exclusion of consensual communications
would put major
problems of proof in the way of a successful prosecution for
breach of the proscription. In most cases it would require the Crown
to call
the person or persons affected by the communication in order to negative the
possibility of consent. And as is apparent
from the Statement of Compatibility,
one of Parliament's concerns in enacting para (b) of the definition of
prohibited behaviour
was to avoid the necessity of calling persons affected by
proscribed communications, because previous experience showed that such
persons
were generally unwilling to become involved in court proceedings and that
involvement in court proceedings was likely to
exacerbate the distress or
anxiety to which they have already been
subjected[299].
The absence of an exclusion of consensual communications thus presents as a
rational choice of means to achieve the purpose of the
proscription.
- The
suggestion of imposing a requirement that a communication in fact be seen or
heard encounters similar difficulties. It would
mean that, in order to mount a
successful prosecution, the Crown would have either to call a person or persons
affected by the subject
communication or else to adduce circumstantial evidence
sufficient to establish beyond reasonable doubt that a person accessing the
premises saw or heard the conduct. Given the understandable reticence of
affected persons to become involved in court proceedings
and the likely harmful
effects on them of doing so, Parliament's decision to set the standard at the
lower level of what is able
to be seen or heard presents, again, as a rational
choice. It was necessary for the achievement of the purpose of the provision.
- The
idea of a "carve out" for political communications or during elections can be
dismissed. A carve out for political communications
would mean that
anti-abortion and pro-abortion protagonists would be free to conduct protests
anywhere in the 150 m radius area regardless
of the distress or anxiety
they would be likely to cause women and others accessing or attempting to access
the premises. That would
significantly frustrate the purpose of the
proscription. And since there is no evidence or other reason to conclude that
persons
cannot engage in political communication about abortion beyond the 150 m
radius to the same extent and as effectively as they can
within it, a carve out
for political communications or during election periods would do very little to
alleviate the burden on the
implied freedom of political communication. What it
would mostly do is allow persons like Mrs Clubb to continue within the 150
m
radius to engage in communications designed to deter women from undergoing
abortions and to deter persons who support and treat them.
That would be to
undermine the purpose of the statute without any quantitative lessening of the
burden on the implied freedom.
The proposed carve outs are not obvious and
compelling alternatives.
- That
is also the answer to the suggestion to reduce the 150 m radius. Since
there is no evidence or other reason to imagine that
persons cannot engage in
political communication about abortion outside the 150 m radius as much and as
effectively as they can within
that radius, there is equally no reason to
suppose that reduction of the radius to something less than 150 m would have a
significant
quantitative effect on the freedom of political communication. By
contrast, as appears from the Statement of Compatibility, any
reduction in the
radius would be likely to compromise the effectiveness of the
proscription[300]:
"A safe access zone of 150 metres has been determined to be
appropriate because it provides a reasonable area to enable women and
their
support people to access premises at which abortions are provided without being
subjected to such communication. As I have
explained, the conduct has included
following women and their support persons to and from their private vehicles and
public transport.
There have also been many instances of staff being followed
to local shops and services, and subjected to verbal abuse. Such conduct
has
often occurred well beyond 150 metres. However, I consider that 150 metres is a
reasonable area that is necessary to enable
women and their support persons to
access premises, safely and in a manner that respects their privacy and dignity.
While such conduct
has occurred beyond 150 metres of some abortion services,
having a clear safe access zone of 150 metres will enable abortion services
to
advise women of how they can best access the premises without the risk of such
conduct, such as where they can park their vehicles
or use public
transport."
No reason has been advanced to doubt the accuracy of those observations.
- That
leaves for consideration the idea of including added mens rea requirements.
Reference has already been made to the mental element
of an offence contrary to
s 185D comprised of conduct of the kind specified in para (b) of the
definition of prohibited behaviour
in s 185B(1), and to the reasons which
informed Parliament's decision to make it an offence of general intent. Seen
against that
background, it is apparent that making specific intent an essential
element of an offence would not be an obvious and compelling
alternative. It
would substantially emasculate the provision as a deterrent against persons
engaging in that kind of prohibited
behaviour within 150 m of premises at which
abortions are provided. And it would also do very little to reduce the burden
on the
implied freedom of political communication. As has been explained,
although the burden is qualitatively significant, it is quantitatively
imperceptible. And logically, what is already so low as to be imperceptible
cannot perceptibly be reduced by further reduction.
All it would do is increase
the incidence of apolitical, personal communications of the kind now prohibited
by para (b) within the
150 m radius.
- In
the result, none of Mrs Clubb's suggestions is an obvious and compelling
alternative.
Adequacy in balance
- For
the reasons earlier
stated[301],
an impugned law that otherwise presents as suitable and necessary for the
achievement of a legitimate purpose consistent with the
system of representative
and responsible government mandated by the Constitution 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
that legitimate purpose.
- As
has been explained, the proscription of conduct of the kind identified in para
(b) of the definition of prohibited behaviour imposes
a relatively limited
burden on the implied freedom of political communication. It does so for a
legitimate purpose of protecting
the safety and wellbeing of women, support
persons, and others such as staff, as they access premises at which abortions
are provided,
and that purpose is consistent with the system of representative
and responsible government mandated by the Constitution. The effect of
the proscription on the implied freedom, although qualitatively not
insignificant, is quantitatively minimal. The
proscription is not grossly
disproportionate to and does not go far beyond what is necessary for the
achievement of the purposes
identified in s 185A of the PHW Act. It should be
concluded that proscription of conduct of the kind identified in para (b)
is adequate
in its balance.
Conclusion in the Clubb
appeal
- It
follows that, although the proscription in s 185D of para (b) conduct has a
perceptible, qualitative effect on the implied freedom
of political
communication, it is a justified burden and therefore a law enacted for a
legitimate purpose consistent with the system
of representative and responsible
government mandated by the Constitution which is appropriate and adapted
to the achievement of that purpose.
The Preston appeal
- The
Preston appeal involves different considerations but the result is the same.
Section 9 of the Reproductive Health (Access to Terminations) Act
2013 (Tas) ("the RHAT Act") creates an access zone within a radius of
150 m from premises at which terminations are provided and, within the
access zone, proscribes
"prohibited behaviour" of five kinds defined in s 9(1)
of the RHAT Act as follows:
"(a) in relation to a person,
besetting, harassing, intimidating, interfering with, threatening, hindering,
obstructing or impeding
that person; or
(b) a protest in relation to terminations that is able to be seen or heard by a
person accessing, or attempting to access, premises
at which terminations are
provided; or
(c) footpath interference in relation to terminations; or
(d) intentionally recording, by any means, a person accessing or attempting to
access premises at which terminations are provided
without that person's
consent; or
(e) any other prescribed behaviour."
- The
principal argument of the appellant, Mr Preston, in support of the
contention that s 9 of the RHAT Act is invalid as an unjustified burden on the
implied freedom of political communication centres on the proscription in that
provision
of conduct of the kind specified in para (b) of the definition of
prohibited behaviour. Mr Preston contended that "protest" in that
context
has what he submitted is its ordinary meaning of expressing a message in
opposition to
something[302]
– in this case to terminations – and that, because expressing
opposition to a topic about which there is political debate
(as there is about
terminations) is a characteristic mode of political communication, it is clear
that the proscription imposes a
significant burden on the implied freedom of
political communication. In Mr Preston's submission, it is also a
particularly obnoxious
and illegitimate burden on the implied freedom because it
is in terms directed solely to protests which express an opinion in opposition
to abortion; applies to protests whether or not they are consented to; applies
to a protest even if the protester has a proprietary
right to be on the premises
where the protest is conducted; and is not limited to protests that cause or
would be likely to cause
anxiety or distress.
Facts and
legislative provisions
- As
with the Clubb appeal, the facts and relevant legislation for the Preston appeal
are set out in the judgment of Kiefel CJ, Bell
and Keane JJ and need
not be repeated. But it is necessary to say something more of the meaning of
"protest".
- Mr Preston
submitted that "protest" would be apt to cover a private conversation between
two individuals if one of those individuals
were expressing a view in opposition
to terminations. He also submitted that because protest in its ordinary meaning
connotes objection
or disapproval, "protest in relation to terminations" refers
only to expressing a message in opposition to terminations.
- Up
to a point the first of those submissions may be accepted. It is apparent from
its context, and, as will be seen, from the considerations
which informed the
enactment of s 9 of the RHAT Act, that "protest" is used in s 9
in the sense of expressing dissent from or support of terminations by means of a
public demonstration in a manner able to be seen
or heard by a person accessing
or attempting to access premises at which terminations are provided. That would
include both a public
demonstration by one or more protesters and also one or
more protesters engaging a person or persons accessing or attempting to access
premises at which terminations are provided on the topic of terminations. There
is, however, no basis in the text of the provision
to limit its operation to
expressions of opinion in opposition to terminations. The use of the general
phrase "in relation to terminations" (emphasis added) indicates an
intention to capture protests both for and against terminations.
- It
is also necessary to say something about the mental element of the subject
offence. Like the offence created by s 185D of the
PHW Act, the offence created
by s 9 of the RHAT Act comprised of prohibited behaviour of the kind specified
in para (b) is a regulatory statutory offence which, because it does not
specify the mental element of the offence, may be taken to require a general
intent to do the act
charged[303].
In that respect, it stands in contrast to the specific intent required in the
case of an offence constituted of conduct of the kind
described in para (d)
of "intentionally" recording a person accessing or attempting to access premises
at which terminations are
provided without that person's consent. Accordingly,
in a prosecution for an offence of contravention of s 9 of the RHAT Act
comprised of engaging in prohibited behaviour of the kind specified in
para (b), it would be sufficient for the Crown to prove both
that the
accused did, and that the accused intended to, protest in relation to
terminations within a 150 m radius of premises at
which terminations are
provided in a manner that was able to be seen or heard by a person accessing or
attempting to access premises
at which terminations are provided.
- It
would be open to the Crown to establish such a general intent by proving that
the accused believed that he or she was within a
radius of 150 m of premises at
which terminations were provided and there protested in relation to terminations
in a manner able
to be seen or heard by a person accessing or attempting to
access the premises. As under s 185D of the
PHW Act[304],
the use of the words "able to be seen or heard" as opposed to "is seen or heard"
indicates that it would not be necessary for the
Crown to prove that a person
accessing or attempting to access the premises in fact saw or heard the protest.
It would be enough
for the Crown to prove that it was capable of being seen or
heard by a person accessing or attempting to access the premises.
- It
would not be necessary for the Crown to prove that the accused believed that the
protest would be seen or heard by a person accessing
or attempting to access the
premises. But in like fashion to the position under the PHW Act, it would be
open to the accused to
raise the possibility that he or she had an honest and
reasonable belief that the protest would not be seen or heard by a person
accessing or attempting to access the premises, in which event the Crown would
be left with the persuasive if not evidential burden
of excluding that
possibility beyond reasonable
doubt[305].
Burden on the implied freedom
- Just
as with s 185D of the PHW Act, so too here it may be accepted that s 9 of
the RHAT Act imposes a qualitatively recognisable burden on the implied freedom
of political communication – by proscribing political communication
regarding terminations within the access zone. It may also be accepted that, at
least in terms, s 9 of the RHAT Act goes further in its restrictive effect on
the implied freedom of political communication than s 185D of the PHW Act,
because, in
contradistinction to para (b) of the definition of prohibited
behaviour in s 185B(1) of the PHW Act, para (b) of the definition of
prohibited
behaviour in s 9(1) of the RHAT Act singles out protests as such and proscribes
them within the access zone without an express limitation to communications
which are
reasonably likely to cause distress or anxiety. In practical reality,
however, the two provisions have much the same effect. On
the basis of the
experiential and research evidence that was considered by Parliament and that is
before this
Court[306],
and as a matter of common sense and ordinary experience, the reasonable
likelihood is that virtually any form of protest about terminations
within the
access zone capable of being seen or heard by persons accessing the premises at
which termination services are provided
would cause distress or anxiety to
persons accessing or attempting to access the premises.
- Similarly,
as in the Clubb appeal, although it must be recognised that the proscription of
protests in relation to terminations in
the access zone may have a qualitative
effect on the implied freedom of political communication, there is no evidence
or other reason
to conclude that the proscription of a protest in relation to
terminations in the access zone would have a significant quantitative
effect on
the free flow of political communication. As under s 185D of the PHW Act, under
s 9 of the RHAT Act protesters are entirely free to conduct lawful protests
regarding terminations anywhere except in the access zone, and, as in the
Clubb
appeal, there is nothing here to suggest that persons cannot protest in relation
to terminations just as often and just as
effectively outside the access zone as
they can within it.
- Certainly,
as in the Clubb appeal, the proscription of protests in relation to terminations
in the access zone reduces the capacity
of protesters to harangue women seeking
terminations of their pregnancies. Thus, it must be accepted that the
proscription significantly
reduces the capacity of persons like Mr Preston
to influence women not to go through with a contemplated termination. But, for
the
reasons earlier
given[307], a
woman's decision whether to terminate her pregnancy is not a political decision
and a communication directed to persuading her
not to terminate her pregnancy is
not a political communication. It is a communication concerning an apolitical,
personal matter.
It follows, as was explained in the Clubb appeal, that the
proscription of conduct of the kind described in para (b) of the definition
of prohibited behaviour does not impose a quantitatively significant burden on
the implied freedom of political communication.
Legitimate
purpose
- As
appears from the Second Reading
Speech[308],
the enactment of the proscription of conduct delineated in para (b) of the
definition of prohibited behaviour proceeded from a recognition
on the part of
the legislature that women are entitled to a full range of safe, legal and
accessible reproductive services necessary
for improving their health and
wellbeing, and, to that end, that women should be enabled to access lawful
termination services privately,
with dignity and without harassment, stigma or
shame. In that respect, it is apparent that the legislature's resolve was
informed
by the experience in
Victoria[309]
and by research findings that abortion protests outside premises where
terminations are provided deprive women seeking terminations
of their
pregnancies of their privacy and dignity, stigmatise and shame them in a manner
likely to be productive of obvious signs
of distress, and heighten their already
high levels of psychological distress with significant risk of negative impact
upon post-abortion
psychological
adjustment[310].
Thus, the legislative purpose of proscribing protests in relation to
terminations in the access zone as it appears from the text
of the proscription
read in context presents as the advancement of women's health through the
enablement of women's access to lawful
termination services, privately, with
dignity and without the adverse psychological impact of being subjected to the
harangue of
abortion protesters.
- Although
views differ as to the moral and ethical propriety of the intentional
termination of human pregnancy, it is now a lawful
medical procedure in
Tasmania[311].
Accordingly, a purpose of improving the health and wellbeing of women by
enabling their access to a lawful termination service,
privately, with dignity
and without harassment, stigma or shame, is a purpose which is consistent with
the system of representative
and responsible government mandated by the
Constitution[312].
- Mr Preston
contended to the contrary. Based on an assemblage of isolated words and phrases
gleaned from the Second Reading Speech,
Mr Preston submitted in effect that the
true purpose of the proscription is to handicap the anti-termination side of the
debate –
by deterring speech which the pro-termination side of the debate
regards as "unacceptable" – and that a purpose of handicapping
one side of
a political debate is quite clearly not a legitimate purpose.
- That
contention elides the effect of the proscription with its
purpose[313].
Granted, the effect of legislation is sometimes emblematic of its
purpose[314],
and here it may be accepted that the effect of the proscription of protests in
relation to terminations in the access zone is to
hamper or handicap
anti-termination protests to that extent. But that does not mean that the
effect of the legislation is the same
as its purpose. Legislation restricting
the availability of classified information serves to illustrate the point. A
restriction
of availability of classified information may have an effect on the
defence debate. But, upon proper analysis of the terms of the
legislation, it
may appear that its purpose is to protect national security regardless of its
effect on political communication.
Here, for the reasons already stated, the
proscription of conduct in para (b) of the definition of prohibited
behaviour is not limited
to anti-termination views. And it is apparent from the
way in which para (b) confines the proscription to protests staged in the
access zone that are able to be seen or heard by a person accessing or
attempting to access the premises at which termination services
are provided
that the purpose is to protect the health and wellbeing of women seeking
termination of their pregnancies by shielding
them from the haranguing, shaming
and stigmatising of anti-termination protesters in close proximity to the
premises. By leaving
anti-termination protesters free to protest wherever and
by whatever means they choose outside the access zone, the terms of the
proscription forcefully deny that the purpose of the proscription is to silence
or handicap the anti-termination side of the debate.
- In
his written submissions, Mr Preston embraced the reality that the aim of
anti-termination protests in close proximity to premises
where termination
services are provided is to "shame" women to forbear from terminating their
pregnancies and he submitted that "shaming"
women to that end is a legitimate
aspect of political communication. He referred by way of analogy to the change
in Australia's
treatment of her indigenous peoples consequent upon the creation
of a sense of shame as to the way in which indigenous peoples were
treated in
the past. Counsel for Mr Preston did not say so in terms but the argument that
appears to be implicit in those submissions
is that by "shaming" women to the
point that they forbear from terminating their pregnancies, there might
ultimately emerge such
a generalised sense of "shame" regarding the intentional
termination of human pregnancy as to lead to a change in the law to prohibit
it,
and that it cannot be a legitimate purpose consistent with the system of
representative and responsible government mandated by
the Constitution to
prevent that occurring.
- There
are two answers to that. The first is that, although the "shaming" of a woman
who has gone to premises to obtain the termination
of an unwanted pregnancy
might result in her forbearing from terminating the pregnancy, or at least
delaying it, there is no evidence
that it would have the effect of converting
her into a protagonist for the anti-termination cause. The second answer, which
in effect
repeats something earlier noticed in relation to the Clubb
appeal[315],
is that, even if the proscription of protests in relation to terminations in the
access zone did result in a reduction in the number
of hearts and minds
converted to the anti-termination mission, it would be an adventitious
consequence of the proscription, not the
result of an improper purpose of
limiting or restricting the free flow of political communication.
Appropriate and adapted
- That
leaves the question of whether the proscription of conduct of the kind
identified in para (b) of the definition of prohibited
behaviour is
justified as a law that is appropriate and adapted to the achievement of a
legitimate purpose consistent with the system
of representative and responsible
government mandated by the Constitution.
Suitability
- The
preceding discussion of the proscription of the conduct described in
para (b) demonstrates that it is rationally connected to
the purpose of
advancing the health and wellbeing of women seeking terminations of their
pregnancies and thus is suitable in the
relevant sense.
- Counsel
for Mr Preston contended to the contrary that, because the proscription of
protests in relation to terminations in the access
zone singles out abortion
protests as such and thereby targets a category of protest largely comprised of
political communications
– leaving other forms of protest untouched
– and because, in contrast to para (b) of the definition of prohibited
behaviour
in s 185B(1) of the PHW Act, the proscription is not expressly limited
to protests "reasonably likely to cause distress or anxiety",
the proscription
is not rationally connected to the purpose of advancing women's health and so is
not suitable in the relevant sense.
- That
contention is unpersuasive. The fact that the proscription is restricted to
protests about terminations is consistent with
and fortifies the conclusion that
the proscription is aimed at giving effect to the purpose of sparing women
seeking terminations
from exposure to what are considered to be the deleterious
effects on their health and wellbeing of subjection to haranguing by
anti-abortion
or pro-abortion protesters near to premises where terminations are
provided. Since there is no suggestion that other kinds of protest
– such
as, for example, industrial protests – would have a similarly deleterious
effect upon the health and wellbeing
of such women, it makes sense that those
other forms of protest are not mentioned. And as already
noticed[316],
the absence of a requirement that protests be reasonably likely to cause
distress or anxiety, although a point of textual distinction
to the proscription
in para (b) of the definition of prohibited behaviour in s 185B(1) of the PHW
Act, in effect makes little difference.
Necessity
- Mr Preston
contended that the proscription of protests in relation to terminations within
the access zone was not necessary in the
relevant sense because there were
obvious and compelling alternatives productive of significantly lesser burden on
the implied freedom
of political communication. In his submission, they were:
(a) eliminating para (b) of the definition of prohibited behaviour,
with the effect that a protest would not be proscribed unless
it amounted to
besetting, harassing, intimidating, interfering with, threatening, hindering,
obstructing or impeding a person within
the meaning of para (a) of the
definition of prohibited behaviour;
(b) incorporating a requirement in para (b) of the definition that a protest
be reasonably likely to cause shame to a person accessing
or attempting to
access the premises at which termination services are provided;
(c) making it a defence that a person charged is able to establish that the
protest "had no relevant adverse effect";
(d) making it a defence that a protest is engaged in with the consent of any
person able to see or hear the protest;
(e) incorporating a "carve out" for political communications;
(f) incorporating a "carve out" for communications in or near Parliament (as
is incorporated in comparable New South Wales
legislation[317]);
(g) incorporating a "carve out" for communication by or with the authority of
a candidate during an election or referendum (as is
incorporated in comparable
New South Wales
legislation[318]);
(h) incorporating a "carve out" for protests made with the consent of the
landowner.
- None
of those suggestions is an obvious and compelling alternative. As has been
seen, Parliament enacted para (b) of the definition
of prohibited behaviour
in s 9(1) of the RHAT Act to protect the health, wellbeing, privacy and dignity
of women accessing premises at which terminations are provided. Paragraphs
(a)
and (c) of the definition of prohibited behaviour go some way to achieving that
objective. But a protest in relation to terminations
could be conducted in the
access zone in a manner that studiously avoided commission of any of the
misfeasances described in paras
(a) and (c) of the definition and yet be just as
effective in depriving women accessing the premises of their privacy and dignity
and stigmatising and shaming them to an extent productive of psychological
infirmity. Elimination of para (b) would therefore substantially
dilute the
effectiveness of the proscription. It would not operate as an alternative of
equal efficacy.
- Incorporating
a requirement in para (b) that a protest in relation to terminations be
reasonably likely to cause shame to a person
accessing or attempting to access
premises at which termination services are provided would make little
difference. For reasons
earlier stated, any protest in relation to terminations
conducted in the access zone would likely infringe the
privacy[319]
and
dignity[320]
of women accessing the premises at which termination services are provided and
thereby risk engendering the psychological sequelae
which the proscription is
designed to prevent. Thus, to make reasonable likelihood of causing shame a
specific element of the proscription
would do little to change the practical
effect of the proscription. And given that the proscription leaves protesters
free to conduct
protests in relation to terminations outside the access zone,
and that there is no evidence or other reason to accept that political
protest
against terminations outside the access zone is any less effective as a tool of
political persuasion than protest within,
such difference as the proposed change
would make to the burden on the implied freedom of political communication would
appear to
be negligible.
- Similar
considerations negate the suggestion that it would be an obvious and compelling
alternative to provide for a defence of "no
relevant adverse effect". It also
suffers from the added difficulty that "relevant adverse effect" is a concept
about which views
are very likely to differ. Given the content of the
experiential and research evidence already mentioned, it may be inferred that
the majority of women accessing premises at which termination services are
provided (or who have ever done so) would likely take
the view that staging a
protest in relation to terminations in the access zone has serious relevant
adverse effects on such women
and, more generally, relevant adverse systemic
effects on the accessibility of legally available termination services. By
contrast,
it may be assumed that the majority of anti-abortion protesters
genuinely believe that such protests are not productive of adverse
effects and that the only relevant effect of them is a beneficial
effect that they may result in at least one woman forgoing or delaying the
termination of an unwanted
pregnancy. Given that divide in opinion, a defence
of relevant adverse effect would be impracticable.
- A
defence of consent would for all intents and purposes be meaningless. The
possibility that women accessing premises at which termination
services are
provided would consent to the conduct of a protest in relation to terminations
within 150 m of the premises is de minimis.
- The
idea of "carve outs" for certain kinds of communications has largely been dealt
with[321].
For the reasons already given in respect of the Clubb appeal, such carve outs
would compromise the efficacy of the proscription
in achieving its purpose of
protecting the health, wellbeing, privacy and dignity of women accessing
premises where termination services
are provided while having minimal beneficial
effect on the implied freedom.
- Finally,
the suggested exception of protests staged on land with the consent of the owner
is irrelevant. Whether or not a protest
is conducted with the consent of the
owner, it will, if it is able to be seen or heard by a person accessing premises
at which termination
services are provided, have exactly the same effect on that
person.
- In
sum, none of Mr Preston's contentions casts any doubt on the necessity of
the proscription of the conduct in para (b) of the definition
of prohibited
behaviour in s 9(1).
Adequacy in balance
- For
the same reasons, none of Mr Preston's contentions provides a reason to
accept that the proscription of protests in relation
to terminations within the
access zone 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 law's legitimate
purpose.
It has not been demonstrated that the law is not adequate in its
balance.
Conclusion in the Preston appeal
- In
the result, it should be concluded that the burden imposed on the implied
freedom of political communication by the proscription
of the conduct described
in para (b) of the definition of prohibited behaviour in the access zone is
minimal and is a justified burden
as a law that is reasonably appropriate and
adapted to the achievement of the legitimate purpose of advancing women's health
through
the enablement of women's access to lawful termination services without
subjection to the harangue of abortion protesters.
- GORDON
J. Mrs Clubb and Mr Preston engaged in conduct, in separate States, which was
found to contravene a law that prohibited behaviour
within an "access zone"
– a 150 m radius of premises at which terminations of pregnancies are
provided. The laws, although
in different terms, were directed at
providing a safe passage for persons accessing or seeking to access those
premises. Mrs Clubb
and Mr Preston contend that the respective provisions
under which they were convicted impermissibly burdened the implied freedom
of
political communication. Each challenge fails.
Clubb
- Section
185D of the Public Health and Wellbeing Act 2008 (Vic), read with
para (b) of the definition of "prohibited behaviour" in s 185B(1) ,
prohibits communicating by any means, in relation to abortions, in a "safe
access zone" extending 150 m from premises at which abortions
are provided, in a
manner that is able to be seen or heard by a person accessing, attempting to
access, or leaving those premises,
where the communication is reasonably likely
to cause distress or anxiety ("the Communication Prohibition").
- The
appellant, Mrs Clubb, contends that the Communication Prohibition infringes
the implied freedom of political communication.
But Mrs Clubb, her counsel
said, was not in a position to mount, and did not mount, a positive case
that she was engaged in political
communication.
- As
this Court said in Knight v Victoria, the settled practice of this Court
means that it is "ordinarily inappropriate for the Court to be drawn into a
consideration of
whether a legislative provision would have an invalid operation
in circumstances which have not arisen and which may never arise
if the
provision, if invalid in that operation, would be severable and otherwise
valid"[322].
- In
this appeal, it is appropriate to consider severance, in the form of reading
down the Communication Prohibition, as a threshold
question[323],
for two reasons. First, the fact that Mrs Clubb does not contend that she
was engaged in political communication means that Mrs
Clubb has not
demonstrated that there is in issue some "right, duty or
liability"[324]
that turns on the validity of the Communication Prohibition in its application
to communication on governmental or political matters.
Second, as a matter of
statutory construction, the Communication Prohibition would be severable if
and to the extent that the provision
might burden communication on governmental
or political matters in a manner which infringes the implied constitutional
freedom.
In those circumstances, no further analysis is required, or
appropriate, in order to dismiss the challenge to the constitutional
validity of
the Communication Prohibition.
- It
is necessary to say something further about each reason in its application to
Mrs Clubb. The reasons are connected.
- Not
addressing the Lange
questions[325]
– in circumstances where Mrs Clubb does not contend that her conduct
gives rise to some right, duty or liability that turns
on the validity of the
Communication Prohibition in its application to communication on governmental or
political matters –
reflects the settled practice of this Court.
The precept is well-established: this Court declines to investigate
and decide constitutional
questions where there is lacking "a state of facts
which makes it necessary to decide such a question in order to do justice in the
given case and to determine the rights of the
parties"[326].
- But
that first reason – that Mrs Clubb does not mount a positive case
that she was engaged in political communication –
does not complete the
necessary inquiry. If a provision is invalid because it infringes the implied
freedom and is not severable, then the provision is
invalid[327]
in its entirety. The invalid provision could not be enforced against
any person, regardless of the conduct or circumstances which led to the
alleged breach of that provision. Put another way, any such
invalidity is
not dependent on a person contending that they engaged in communication on
governmental or political matters. The
invalidity arises because the invalid
aspects of the provision cannot be severed, including by reading down.
- That
is why it is necessary in the Clubb appeal to start the inquiry by
assuming that the impugned provision is constitutionally invalid because it
impermissibly burdens the implied freedom.
The question then is whether,
as a matter of statutory construction, the impugned provision, or part of it, is
able to be severed,
by excision or reading down, so as to give the
provision a partial but constitutionally valid operation.
- If
the provision, or part of it, cannot be severed, then whether the conduct of the
person alleged to have breached the provision
involves communication on
governmental or political matters is irrelevant. A person charged under a
provision purportedly invalid
in its entirety has standing to challenge that
provision.
- If,
however, the provision can be read down, the direct consequence is to
remove the need for the Court to consider any hypothetical or speculative
application
of the impugned
provision[328].
That is judicially
prudent[329].
The availability of severance means that no further analysis is required in
order to dismiss a challenge to the constitutional validity
of the impugned
provision[330].
- Accordingly,
on the assumption that the Communication Prohibition is constitutionally invalid
because it impermissibly burdens the
implied freedom of political communication,
is it severable? Adapting and adopting the words of Barwick CJ in Harper v
Victoria[331]:
"Where [a severance clause] is available, and the statute can be given a
distributive operation, its commands or prohibitions will
then be held
inapplicable to the person whose [communication] would thus be impeded or
burdened. Of course, the question of validity
or applicability will only be
dealt with at the instance of a person with a sufficient interest in the matter;
and, in my opinion,
in general, need only be dealt with to the extent necessary
to dispose of the matter as far as the law affects that
person."
- Here,
there is a severance
clause[332].
Section 6(1) of the Interpretation of Legislation Act 1984
(Vic)[333]
provides:
"Every Act shall be construed as operating to the full extent of, but so as
not to exceed, the legislative power of the State of Victoria, to the intent
that where a provision of an Act, or the application of any such provision to
any person, subject-matter or circumstance, would, but for
this section, have
been construed as being in excess of that power, it shall nevertheless be a
valid provision to the extent to which
it is not in excess of that power and
the remainder of the Act and the application of that provision to other persons,
subject-matters or circumstances shall not be
affected." (emphasis
added)
- Section
6(1) extends and applies to every Victorian Act "unless a contrary intention
appears" in the Interpretation of Legislation Act or in the Act
concerned[334];
s 6(1) is taken to be part of the Act
concerned[335].
It is a severance clause intended to ensure that Victorian Acts are construed as
being within constitutional
power[336].
The effect of s 6(1) is to "reverse the presumption that an Act is to
operate as a whole, so that the intention of the Parliament
is to be taken
prima facie to be that the Act should be divisible and that any parts
found to be within constitutional power should be carried into effect
independently
of those which fail unless it is clear that the invalid provision
forms part of an inseparable
context"[337].
- Where
s 6(1) is not excluded by a contrary statutory intention, it has two
interconnected effects – it operates as a rule of
construction, not a rule
of law[338],
and the rule of construction is that "the intention of the legislature is to be
taken prima facie to be that the enactment should
be divisible and that any
parts found constitutionally unobjectionable should be carried into effect
independently of those which
fail"[339].
The effect of that rule of construction, where there are "general words or
expressions which apply both to cases within power and
to cases beyond power",
is that if Parliament intended that "there should be a partial operation of the
law based upon some particular
standard criterion or test" and that intention
can be discovered from the provision's terms or from the nature of the subject
matter,
then the provision can be read down so as to give it valid operation of
a partial
character[340].
Indeed, where a law "is intended to operate in an area where
Parliament's legislative power is subject to a clear limitation, it can be
read as subject to that
limitation"[341]
(emphasis added).
- In
this appeal, the question therefore is whether there is a statutory intention
contrary to the prima facie position that, by reason
of s 6(1) of the
Interpretation of Legislation Act, para (b) of the definition of
"prohibited behaviour" in s 185B(1) of the Public Health and Wellbeing
Act should be divisible and that any parts found to be within constitutional
power should be carried into effect. The answer is that
there is no
contrary statutory intention and, if necessary, para (b) of the
definition of "prohibited behaviour" in s 185B(1) could be read down as not
extending to communication on governmental or political matters. That last
statement needs some further
explanation.
- The
phrase "communicating ... in relation to abortions" in para (b) of the
definition of "prohibited behaviour" in s 185B(1) is not defined. The
absence from s 185D of a defence applicable to communication on
governmental or political matters is not a positive indication that the
Victorian Parliament
intended s 185D to have a full and complete operation
or none at
all[342].
And there is no other indication to be found in the Public Health and
Wellbeing Act of an intention contrary to the prima facie application
of the severance clause in s 6(1) of the Interpretation of Legislation
Act.
- The
stated purpose of
Pt 9A[343]
of the Public Health and Wellbeing Act , of which s 185B forms
part, as well as the various paragraphs of conduct which comprise
"prohibited behaviour" within a safe access zone, are indications
that the
Communication Prohibition should be divisible and that any parts found to
be within constitutional power should be carried into effect.
- A
stated purpose of Pt 9A was and remains to provide for safe access zones
around premises at which abortions are provided so as to protect the safety and
wellbeing, and respect the privacy and dignity, of both people accessing the
services provided at those premises and employees and
other persons who need to
access those premises in the course of their duties and
responsibilities[344].
- The
protections provided in Pt 9A to persons accessing premises where abortions
are provided are broad. It cannot be the case that the Victorian
Parliament intended
that if the Communication Prohibition were invalid as a
result of its application to communication concerning governmental or political
matters, the Communication Prohibition was to be struck out in its
entirety, leaving only protections against the remaining categories
of
"prohibited behaviour", namely: interference with a footpath, road or
vehicle[345];
recording persons without their
consent[346];
and the much higher threshold of conduct that amounts to "besetting, harassing,
intimidating, interfering with, threatening, hindering,
obstructing or impeding"
a relevant
person[347].
Such a result would stultify or undermine the statutory purpose of Pt 9A:
it would leave persons accessing premises at which abortions are provided
vulnerable to confronting and personal communications,
including those targeted
at their personal choice to attend a clinic and undergo an abortion. Put in
different terms, the conclusion
is not inconsistent with a fundamental
feature[348]
of Pt 9A.
- It
remains necessary to address Mrs Clubb's contention that if the Communication
Prohibition could be read down so as to apply only
to communication that is not
political communication, the appeal should be allowed because the
prosecutor did not prove beyond reasonable
doubt that Mrs Clubb's
communication was not political communication and the Magistrate did not address
that issue. That contention
should be rejected.
- When
read with a provision which might otherwise have an application in excess of
State legislative power – here, s 185D of the Public Health and
Wellbeing Act – s 6(1) of the Interpretation of Legislation
Act operates in substance to carve out an exemption from the generality of
the provision. Were it not concerned with "constitutional
facts", the
exception would cast the onus of proof on the party seeking to take advantage of
it[349].
Constitutional facts, however, do not lend themselves to ordinary notions of
onus and burden of
proof[350].
- It
is for the Crown to prove the elements of an offence beyond reasonable doubt.
Consistent with the construction just advanced,
characterisation of a
communication as political, or non-political, is not an element of the
offence. Whether an accused engaged
in political communication would be
relevant if, and only if, the accused adduced evidence to seek to establish that
fact. Only
then would it be necessary for the Crown to seek to address
that evidence.
- So
much of Mrs Clubb's appeal as has been removed into this Court should be
dismissed with costs. The question of validity of the
Communication Prohibition
can be, and has been, dealt with to the extent necessary to dispose of the
matter as far as the law affects
Mrs Clubb.
Preston
- The
Reproductive Health (Access to Terminations) Act 2013 (Tas) ("the
Reproductive Health Act") regulates the termination of pregnancies by medical
practitioners and decriminalises
terminations[351].
Section 9(2) of the Reproductive Health Act prohibits a person from engaging in
"prohibited behaviour" within an access zone, defined as an area within a radius
of 150 m from
premises at which terminations are
provided[352].
- "Prohibited
behaviour"[353]
is defined to mean:
"(a) in relation to a person, besetting, harassing, intimidating, interfering
with, threatening, hindering, obstructing or impeding
that person; or
(b) a protest in relation to terminations that is able to be seen or heard by a
person accessing, or attempting to access, premises
at which terminations are
provided; or
(c) footpath interference in relation to terminations; or
(d) intentionally recording, by any means, a person accessing or attempting to
access premises at which terminations are provided
without that person's
consent; or
(e) any other prescribed
behaviour."
These protective measures were
enacted following years of harassment of persons accessing premises at which
terminations are provided.
Their objective is to enable persons seeking these
services to have unimpeded
access[354]:
without fear, without shame and without hesitation.
- This
appeal is concerned with the "Protest Prohibition" – para (b) of
the definition of "prohibited
behaviour"[355].
The appellant, Mr Preston, was charged on three separate occasions with an
offence under s 9(2) of the Reproductive Health Act. The three charges
were: "being within an access zone and engaging in prohibited behaviour by
protesting in relation to terminations,
that was able to be seen or heard by a
person, accessing or attempting to access premises at which terminations are
provided, located
at 1A Victoria Street [Hobart]". The first and second charges
related to Mr Preston holding placards and handing out leaflets near
the
entrance to a specialist medical centre ("the Centre"); the second
charge included a conversation between Mr Preston and a woman
intending to
access the Centre; the third charge involved Mr Preston and two others
holding placards outside the Centre. It was
an agreed fact that Mr Preston
was engaged in a protest in relation to terminations. And it was no part of the
prosecutor's case
before the Magistrate that the protest was not a communication
in relation to governmental or political matters.
- Mr
Preston contended that the Protest Prohibition was beyond the legislative power
of the State of Tasmania because it impermissibly
burdened the implied freedom
of political communication contrary to the Constitution.
That contention, among others, was rejected by the Magistrate and
Mr Preston was convicted. That part of Mr Preston's appeal to
the
Supreme Court of Tasmania concerning the constitutional validity of the Protest
Prohibition was removed into this Court.
- This
part of the reasons will consider the implied freedom and the terms of the
Reproductive Health Act, and then turn to consider the three Lange
questions[356]
in their application to the Protest Prohibition: (1) Does the Protest
Prohibition effectively burden the freedom of political communication?
(2) Is the purpose of the Protest Prohibition legitimate, in the sense
that it is consistent with the maintenance of the constitutionally
prescribed
system of government? (3) Is the Protest Prohibition reasonably
appropriate and adapted to advance that purpose in a
manner consistent with the
maintenance of the constitutionally prescribed system of government?
- So
much of Mr Preston's appeal as has been removed into this Court should be
dismissed. The Protest Prohibition effectively burdens
the implied freedom
of political communication but that burden is not substantial. The Protest
Prohibition is a time, place and
manner
restriction[357]:
it prohibits a person from engaging in a protest in relation to
terminations within a 150 m radius of premises where terminations
are provided
if the protest is able to be seen or heard by a person accessing,
or attempting to access, those premises. The Protest
Prohibition is
directed to a legitimate purpose or end – to create an access zone to
enable women, medical practitioners and
other people to have unobstructed and
safe access to premises where terminations are provided. The means adopted
to achieve that
purpose or end (the Protest Prohibition) are not
incompatible with the maintenance of the constitutionally prescribed system of
representative
and responsible government.
Implied freedom of
political communication
- The
implied freedom of communication on matters of government and politics is
readily identified and explained
as follows[358]:
"[It] is an indispensable incident of the system of representative and
responsible government which the Constitution creates and
requires[359].
The freedom is implied because ss 7, 24 and 128 of the Constitution
(with Ch II, including ss 62 and 64) create a system of representative and
responsible
government[360].
It is an indispensable incident of that system because that system requires that
electors be able to exercise a free and informed
choice when choosing their
representatives, and, for them to be able to do so, there must be a free flow of
political communication
within the
federation[361].
For that choice to be exercised effectively, the free flow of political
communication must be between electors and representatives
and 'between all
persons, groups and other bodies in the
community'[362].
The implied freedom operates as a constraint on legislative and executive
power[363].
It is a freedom from government action, not a grant of individual
rights[364].
The freedom that the Constitution protects is not
absolute[365].
The limit on legislative and executive power is not
absolute[366].
The implied freedom does not protect all forms of political communication
at all times and in all circumstances. And the freedom
is not freedom from
all regulation or restraint. Because the freedom exists only as an incident of
the system of representative
and responsible government provided for by the
Constitution, the freedom limits legislative and executive power
only to the extent necessary for the effective operation of that
system[367]."
- In
short, the freedom does not exist or operate in a vacuum. Yes, it is concerned
with electors being able to exercise a free and
informed choice when choosing
their representatives and, in order for that to occur, there being a free flow
of political communication
within the federation. But while the freedom acts as
a constraint on legislative and executive power when such power affects that
free flow of political communication, the restraint is tempered when the conduct
sought to be regulated has effects beyond the communication
of ideas or
information[368].
Put in different terms, a democracy has many different freedoms, some of
which conflict with each other. To take just one example,
the entitlement to
protest, if exercised without restraint, can interfere with other people's
privacy and expose them to
abuse[369].
And that is what this appeal has to address: the intersection of the implied
freedom of political communication with a person's
privacy and protection of
that person from abuse. That intersection was legislatively resolved here
by the enactment of a provision
(s 9(2)[370])
which regulates the time, place and manner of a particular communication –
a protest in relation to terminations, in an area
within a radius of 150 m
from premises at which terminations are provided, that is able to be seen or
heard by a person accessing,
or attempting to access, those
premises.
Reproductive Health Act – legal effect and
practical operation
- It
is necessary to construe the Reproductive Health
Act[371].
The Act contains just 17 sections, divided into five Parts. Parts 2 and 3
provide for a woman's right of access to terminations
and the decriminalisation
of terminations undertaken by a medical practitioner with a woman's
consent[372].
- Part
2 of the Reproductive Health Act, headed "Access to Terminations", contains ss 4
to 12. Sections 4 to 7 address terminations by medical practitioners, including
a woman's right to access a termination by a medical practitioner.
Section 8 decriminalises terminations. Women are not to be regarded
as criminals for making decisions about their own bodies in relation to
terminations.
- Section
9 creates access zones that enable women, medical practitioners and other
persons to have unobstructed, unharried and safe access to
premises where
terminations are
provided[373].
Section 9(2), as seen earlier, makes it an offence for a person to engage
in "prohibited behaviour" within an access
zone[374].
An "access zone" is defined in s 9(1) to mean "an area within a radius
of 150 metres from premises at which terminations are provided".
- "Prohibited
behaviour" is defined in s 9(1) by reference to the five classes of conduct
identified earlier. Mr Preston challenged the constitutional validity of para
(b) of
the definition of "prohibited behaviour"; he did not challenge the
constitutional validity of para (a), (c), (d) or (e) of that definition.
Each category of conduct is important and the categories are not mutually
exclusive. If conduct covered by para (a), (c), (d) or
(e) of the
definition is committed within a 150 m radius of premises at which
terminations are provided, that conduct will give rise
to an offence under
s 9(2) of the Reproductive Health Act.
- The
Protest Prohibition is in different, and narrower, terms. It prohibits a
"protest" where that protest is "in relation to terminations"
and "able to be
seen or heard by a person accessing, or attempting to access, premises at which
terminations are provided". The
prohibition is limited to the access zone
– within a 150 m radius of premises at which terminations are
provided. Not every
"protest" in an access zone is prohibited –
the protest must be in relation to terminations and be able to be seen or
heard
by a person accessing or attempting to access premises at which
terminations are provided.
- "Protest"
is not defined. In its ordinary meaning, a protest requires an extended effort
and a certain degree of conflict –
where the aim of the action is to
influence the existing reality adopted by governmental institutions or
actors belonging to the
private
sector[375].
There usually needs to be a "target". The protest may be
"political" – it might concern "the policies of political parties
and
candidates for
election"[376]
or bear on electoral
choice[377].
But then again, it might not. And that is not surprising: the phrase
"government or political matters" is
imprecise[378].
For a "protest" to be political, there needs to be a
nexus[379]
between that protest (the communication) and "government or political
matters". And even if the control of an activity is politically
controversial, not every communication about that activity will be
political
communication[380]
in the "constitutional sense".
- Mr
Preston's contention that the phrase "protest in relation to terminations" is
limited to protests which seek to oppose terminations
is rejected. The phrase
"protest in relation to terminations" does not discriminate based on viewpoint:
it extends to protests
in favour of terminations as well as protests in
opposition to terminations. If the provision were limited to anti-termination
protests
within the access zone, the requirement that the protest be "able
to be seen or heard by a person accessing, or attempting to access,
premises at
which terminations are provided" would be likely to be superfluous:
anti-termination protesters, by the very nature
and purpose of their protests,
would in most, if not all, cases endeavour to be seen or heard by such
persons.
- What,
then, are the elements of the offence? The accused must be engaged in a
protest and
intend[381]
to engage in a protest in relation to terminations. Next,
the accused must have an intention to engage in a protest in a manner that is
able to be seen or heard by a person accessing, or attempting to access,
premises at which terminations are provided. Although the Crown must establish
that
the protest was capable of being seen or heard by persons accessing,
or attempting to access, premises at which terminations are provided, the Crown
need
not prove the protest was in fact seen or heard by such a person.
And, finally, the protest must have occurred within a 150 m radius of
premises at which terminations
are provided.
- Before
leaving s 9, other aspects of the definition of "prohibited behaviour" in
s 9(1) when read with the offence created by s 9(2) should be noted.
As seen earlier, the other paragraphs of the definition of "prohibited
behaviour" in s 9(1) are not challenged by Mr Preston. They constitute
separate prohibitions including a prohibition on intentionally recording a
person
accessing or attempting to access premises at which terminations are
provided, without that person's
consent[382].
In addition, s 9(4) creates a separate offence for publishing or
distributing a recording of another person accessing or attempting to access
premises at which terminations are provided, without that person's
consent.
Those elements of the legislative scheme are not unimportant because, by
their legal effect and practical operation, a
protest by a person that might be
caught by the Protest Prohibition is unlikely to be seen or heard by any person
not within the
access zone regardless of the Protest Prohibition:
it cannot be disseminated without breaching the Reproductive Health Act.
- Paragraph
(c) of the definition includes an offence of "footpath interference in relation
to terminations" within the access zone.
"Footpath interference in relation to
terminations" is not defined in the Reproductive Health Act. But on the
ordinary meaning of the words, the elements of the offence are simply that: the
accused must engage in a voluntary
and intentional
act[383];
that act must be done in relation to terminations; and, in so
acting, the accused must interfere with passing and re-passing on a footpath
within an access zone. One can imagine
that the prohibition in para (c)
might capture conduct that is more subtle than the kind of conduct addressed in
para (a) ("besetting,
harassing, intimidating, interfering with, threatening,
hindering, obstructing or impeding" a person).
Existence of the
burden
- The
Protest Prohibition does what it says – it prohibits engagement in
"a protest in relation to terminations". As explained
earlier, "protest"
is
undefined[384];
it is not directed at, or targeted to, political communication. But in
prohibiting "a protest in relation to terminations", the
Protest
Prohibition may operate to impose a burden on political
communication.
- The
validity of the Protest Prohibition therefore depends on whether that burden on
political communication can be justified. The level of justification
that is required depends on the nature and extent of the burden that the
impugned provision imposes on political
communication[385].
- In
this appeal, that inquiry – the nature and extent of the burden –
can be, and should be, undertaken at this stage
of the analysis.
Nature and extent of the burden
- The
extent of the burden of the Protest Prohibition on political
communication is insubstantial. The legal effect and practical operation of
the Protest Prohibition have been considered.
- The
terms of the prohibition, and its legal effect and practical operation in its
application to political communication, show that
it is not discriminatory. The
Protest Prohibition is of general application; it is not specifically directed
at, or targeted to,
political communications, or the content of
them[386],
or "communications which are inherently political or a necessary ingredient
of political
communication"[387].
And it is not specifically directed at, or targeted to, the – or even
a – source of political
communication[388].
- That
the Protest Prohibition does not target the content or the source of political
communication is important. The Protest Prohibition
"affects those whom the law
affects"[389];
it operates in a uniform manner on any person protesting in relation to
terminations within a 150 m radius of premises at which
terminations are
provided. It applies regardless of whether the protest is political or
non-political. It applies whether the person
is for, or against, terminations.
And it applies only where the protest is capable of being seen or heard by a
person accessing
or attempting to access the facility.
- A
law is not discriminatory, in a constitutional
sense[390],
because its practical effect might be – from time to time and depending
upon the actions of a person – to restrict a
person from expressing a
particular point of view on a particular subject matter, which may or may not be
political, at a time and
place and in a particular manner. Thus, the
Protest Prohibition is not discriminatory because it might – from time to
time,
depending upon the actions of a person – restrict a person from
expressing a particular political point of view at a time and
place and in a
manner where those actions are the very actions that s 9(2), read with para
(b) of the definition of "prohibited behaviour" in s 9(1), seeks to address
– actions that prevent persons seeking services at premises at which
terminations are provided from having
unimpeded access: without fear, without
shame and without hesitation.
- Next,
the Protest Prohibition is content and viewpoint neutral. It operates in a
limited geographic area – within a 150 m
radius of premises at which
terminations are provided. It does not prevent a protest in relation to
terminations that is 151 m from the premises even if that protest is
capable of being seen or heard by a person accessing or attempting to access the
premises.
It does not prevent a protest in relation to terminations
within the access zone so long as the protest is not capable of being seen
or heard by a person accessing or attempting to access premises
at which
terminations are provided. It does not prevent a protest in relation to
terminations outside the access zone but at a point,
or points, which must be
passed for a person to enter the access zone and then the premises at which
terminations are provided.
- The alleged
importance of on-site protests in Brown v
Tasmania[391]
can be put aside: not only has there not been established, by evidence, any
fact that would support a contention that a protest
on-site at premises where
terminations are provided is the "most effective" form of political
communication, but the practical effect of the other prohibitions in the
Reproductive Health Act, which are not challenged, would be, in any event,
to limit the reach of any such protest within the access zone.
- The
focus of the inquiry about validity is, and remains, the terms, legal
effect and practical operation of the impugned provision
in its application to
political communication
generally[392].
Here, the terms, legal effect and practical operation of the Protest Prohibition
"extend[] to include communications of the kind
protected by the
freedom"[393]
but the Protest Prohibition is not directed at them, and does not discriminate
against them on the basis of content or source. The
Protest Prohibition
applies without distinction between different kinds of protest in relation to
terminations. It is, as has been
said, a time, place and manner
restriction[394]
causing an insubstantial and indirect burden on political communication.
That conclusion is reinforced by the identified target,
or purpose,
of the Reproductive Health Act and the Protest
Prohibition.
Purpose of the Protest Prohibition
- The
short title of the Reproductive Health Act, as well as the heading to Pt 2,
records that it is an Act concerned with "Access to Terminations". Part 2
ensures that access is provided in two specific, and
connected, ways.
Sections 4 to 7 address terminations by medical practitioners including a
woman's right to access a termination
by a medical practitioner. Section 8
decriminalises terminations.
- Consistent
with, and in order to pursue, that stated objective of providing access to
terminations, s 9 then creates access zones
for premises at which terminations
are provided, to facilitate access to that health service rendered lawful
by the other provisions
and to prohibit certain behaviour in that access zone.
The four categories of conduct in paras (a) to (d) of the definition of
"prohibited
behaviour" in s 9(1) identify or target conduct that would prevent,
or deter, a person from seeking services at premises at which
terminations
are provided. The Protest Prohibition is one category of conduct. The
categories are not mutually exclusive. Put
in different terms, the Protest
Prohibition is one element – albeit an important element – in a
legislative scheme introduced
in Tasmania in 2013 designed to afford effective
access to pregnancy termination services in Tasmania.
- Thus,
the Protest Prohibition is a law directed at providing a safe passage for
persons lawfully accessing or attempting to access
premises for health services
rendered lawful by other provisions in Pts 2 and 3 of the Reproductive
Health Act. The purpose of s 9 is unrelated to political
communication, although it may incidentally
burden[395]
the implied freedom. That conclusion is reinforced by the extrinsic
materials[396]
and, further, by reference to the publicly available reports and other materials
cited in those extrinsic
materials[397].
"Women are entitled to access termination services in a confidential manner
without the threat of
harassment"[398]
particularly because, as the Minister for Health recognised, women experience
poorer health outcomes without the provision of "safe,
legal and accessible
reproductive
services"[399].
- Mr
Preston's contention that the purpose or object of the Protest Prohibition is to
"deter speech" of a certain character is contrary
to the text of the
Reproductive Health Act and the evident purpose of the Protest Prohibition.
The purpose of the Protest Prohibition is not to deter speech but to enable
women, medical practitioners and other people to have unobstructed and safe
access to premises where terminations are provided.
The Protest
Prohibition removes one of the barriers that deterred people from accessing
lawfully available medical services in relation
to terminations. That is a
legitimate and permissible purpose; a purpose not incompatible with the
system of representative and
responsible government prescribed by the
Constitution.
Appropriate and adapted
- The Protest
Prohibition is an important element of the scheme introduced in 2013 directed at
providing effective access to pregnancy
termination services in Tasmania. It
was and remains "part of a broader strategy [of the Tasmanian Government] to
improve the sexual
and reproductive health of all Tasmanians, especially ...
vulnerable
populations"[400].
- The
intersection of the implied freedom of political communication with a person's
privacy and protection from abuse was legislatively
resolved in Tasmania by the
enactment of a provision (s 9(2)) which regulates the time, place and
manner of a particular kind of communication. In reaching that resolution,
the Tasmanian Parliament
described the access zone as providing the
"appropriate balance between the right to protest and protecting women from
being exposed
to those who seek to shame and stigmatise
them"[401].
- "The
balancing of the protection of other interests against the freedom to discuss
governments and political matters is, under our
Constitution, a matter for the
Parliament to determine and for the Courts to
supervise"[402]
(emphasis added). The judicial role ensures that the system of representative
and responsible government which the Constitution creates and requires is
not undermined by laws burdening political communication.
- Here,
the Protest Prohibition has a rational connection to the stated purpose of the
Reproductive Health Act – facilitating unobstructed and safe access to
pregnancy termination services in Tasmania. It is one of the distinct types
of
conduct prohibited by s 9(2): categories of conduct identified by the
Parliament as deterring people from seeking access to termination
services[403].
- The
Protest Prohibition, in its legal effect and practical operation, effects an
insubstantial and indirect burden on political communication;
it regulates the
time, place and manner of protest in relation to a particular subject matter
(terminations) and of a particular
amplitude ("able to be seen or heard ...");
and it does so for an identified and legitimate end, an end which was and
remains the
principal, if not sole, reason why the provision was enacted –
to provide unobstructed and safe access to pregnancy termination
services
in Tasmania.
- No
other conclusion can be drawn than that the Protest Prohibition is reasonably
appropriate and adapted to advance that purpose
in a manner compatible with the
maintenance of the constitutionally prescribed system of government.
- Mr
Preston's conduct contravened the Protest Prohibition: a law directed at
providing an unobstructed and safe passage for persons
lawfully accessing or
seeking to access premises at which terminations are provided. There is nothing
protectable about seeking
to shame strangers about private, lawful decisions
they make.
Structured proportionality
- In
the circumstances of this appeal, like those in
Brown[404],
it is neither necessary nor appropriate to say anything further about
suitability, necessity or adequacy of balance. Once it is
accepted, as it
has been, that the burden is insubstantial and indirect and that the Protest
Prohibition is rationally connected
to the legitimate purpose it seeks to serve,
no further analysis is required. It is these factors which show why the burden
is not
"undue"[405].
- Structured
proportionality
testing[406]
is a means of expressing a chain of reasoning undertaken to arrive at a
conclusion about the validity of a provision said to be beyond
power because it
burdens the implied freedom of political communication. It is a means of
setting out steps to a conclusion – a tool of
analysis[407].
It is not a constitutional
doctrine[408]
or a method of construing the Constitution. The contention that, in the
Australian context, structured proportionality – even if not deployed in a
rigid or sequenced
way – may provide a better account of judicial
reasoning and thereby promote more consistency and clarity in
judgment[409]
is to be approached with caution.
- Not
every law which effectively burdens the freedom of political communication poses
the same degree of risk to the efficacy of the
system of representative and
responsible government which the Constitution creates and
requires[410].
Not every law which effectively burdens the freedom of political communication,
but which is directed to a legitimate end, demands
the same degree of
justification. Not every law which effectively burdens the freedom of
political communication needs to be subjected
to the same level of scrutiny.
Not every law which effectively burdens the freedom of political communication
is able to be, or
should be, analysed by a rigid, "one size fits all",
approach[411].
The detailed structure of proportionality does not reflect the common law method
of legal reasoning. The application of any tool
of analysis requires
consideration of the context within which the tool is to
operate[412];
structured proportionality reflects its civil law origins and
purposes[413].
Whether the origins of structured proportionality lie outside Australia is not
the relevant question. The relevant question is
what is structured
proportionality, and is that suited to, and compatible with, the Australian
context.
- Proportionality
as a tool of analysis often takes as its starting point the concept of a prima
facie infringement of a right and
inquires as to whether the goal being achieved
warrants the extent of intrusion on that
right[414].
According to Schauer, it is only when rights are in issue that the
language of proportionality is
in play[415].
And when rights are "on one side of the equation", there is a presumption
in favour of the right or a burden of proof imposed on
those who would restrict
the right. In that context, Schauer contends that the idea of "balancing"
– which would ignore the
presumption and burden – is
misleading[416].
Indeed, it has been said that what "lurk[s]" beneath this presumption and
burden of proof, and is implicit in any rights-based proportionality
analysis, is a "structural" matter – a "rule of weight" – or,
really, a rule of disproportionate weight: a rule giving
more weight to
the right than to competing non-right interests. The structure (and the rule)
exists because there is a right. And it
is said that it is that structure that
explains the difference between proportionality analysis and the balancing
methodology that
underpins policy
decisions[417].
- If
the analysis stopped there, the need for a cautious approach to proportionality
would be evident: not only is the implied freedom
of political
communication not a right, but the conceptual origins of structured
proportionality find no readily identifiable equivalents
in the Australian
constitutional structure or jurisprudence.
- But
there are other reasons for caution.
- Structured
proportionality, as a tool of analysis, is contested conceptually,
geographically and in its sphere of application and
influence[418].
In some countries, the detailed structure of proportionality has been
displaced by a concept of
reasonableness[419].
In other countries that had previously adopted a form of structured
proportionality analysis, it now does not reflect the only or even the
preferred method of legal reasoning. The United States has not adopted
proportionality[420]
as a form of analysis.
- And
that is not surprising. Competing views of what have been described as the
"paradigms of
proportionality"[421]
abound. And they are just some aspects of the current, and ardent, debate
about proportionality
generally[422].
- For
example, Alexy distinguishes between "rules" and "principles" and contends that
"[r]ules aside, the legal possibilities are determined
essentially by opposing
principles"; and that a principle is merely a prima facie requirement
where the determination of one principle relative to the requirements of other
principles is brought about by balancing
with an objective of Pareto
optimisation – that something be realised "to the greatest
extent possible given the legal and
factual
possibilities"[423].
Alexy contends that the three sub-principles of proportionality express
this idea of optimisation – the first and second,
suitability and
necessity, refer to optimisation relative to the factual possibilities and the
third, the law of balancing, concerns
optimisation of the legal
possibilities[424].
Alexy sees and uses proportionality as a method of interpretation.
- Barak
has a different starting point as well as a fourth element in structured
proportionality. Barak's starting point is what he
describes as a
limitation on the constitutional right as a prima facie
violation[425].
By way of contrast, Alexy's starting point is a principle as a prima
facie requirement. Barak then contends that the requirement of a
proper purpose defines the first step of the proportionality
test[426].
By way of contrast, Alexy's position is that such a first step is superfluous
and may even pose a danger for the rationality of
the
test[427].
- Although
that list of disputes is not exhaustive, it is illustrative of the difficulties
of seeking to import structured proportionality
as a "one size fits all"
approach.
- Any
contention that a legal rule, of itself, creates transparency must identify the
need for, or usefulness of, that rule. For example,
some of the steps in
structured proportionality analysis are unnecessary; it is hard to imagine how a
law would fail the first stage
and not also the
second[428],
and the third stage to some degree overlaps with the prior analysis of whether
the law's purpose is
legitimate[429].
And, in that context, whilst structured decision-making is sometimes advocated
as a replacement for an unconstrained balancing test,
if used it is necessary to
ascertain whether outcomes differ as between the two methods, and if so,
why, and which is the preferred legal
outcome[430].
- A
court, in seeking to exercise judgment about laws enacted by members of
Parliament – who exercise legislative power as "representatives
of the
people" and who are "accountable to the people for what they
do"[431]
– must explain how and why a particular decision has been reached, and why
particular orders were made. Judges must strive
for transparency and clarity in
their reasoning. This is not a new concept. However, there is and can be no
standardised formula
for judicial reasoning. Acknowledging that a goal of
proportionality analysis is clarity does not dictate, and, in the context
of
the Australian common law tradition, tends against, the adoption of one
rigid method of analysis.
- That
last statement requires some unpacking. The development of the common law
occurs in a unique and restricted
way[432].
The common law can only be developed logically and analogically from existing
legal
principles[433].
This analogical quality of common law reasoning differentiates it from
other kinds of legal
reasoning[434].
- As
Gageler J said in McCloy, the difficulty with structured proportionality
is that it adopts "standardised
criteria"[435]
to be applied uniformly across all kinds of laws imposing a restriction on
political communication. And it is this aspect of structured
proportionality
that makes it incongruent with the common law judicial method. Each case is
fact-specific; each analysis is necessarily
case-specific[436].
The analyses in Unions NSW v New South Wales are illustrative of that
approach[437].
- The
Lange questions provide a standard. The more "rule-like" elements
that are introduced into that standard, the further you are taken away from that
standard's purpose
if the "rules" are applied in a rigid and formalistic way.
The rules may impede the development – the filling out –
of the
content of the standard through the common law method: a case-by-case process
of crystallising the meaning of the standard.
The benefit of standards,
rather than rules, is that standards "leave matters open for renewed
consideration in subsequent cases,
furnishing future decisionmakers with
continued, unrestricted space in which to pursue further refinements of the
law"[438].
The corollary is that standards can generate uncertainty in their application.
But the rigid adoption of an analysis like structured
proportionality will
not always be the answer to that uncertainty.
Conclusion and
orders
- For
those reasons, so much of Mr Preston's appeal as has been removed into this
Court should be dismissed with costs.
EDELMAN J.
Consistency and structured proportionality
- In
2013 and 2014, the Parliament of Tasmania enacted two statutes concerned with
on-site protests. One of those statutes, the "Workplace
Protesters
Act"[439],
contained provisions seeking to protect businesses from consequences of on-site
protests. The other, the "Reproductive Health
Act"[440],
contains provisions seeking to protect women accessing or attempting to access
services at termination clinics from consequences
of on-site protests. Both
Acts were challenged as being contrary to the implied constitutional freedom of
political communication.
In Brown v
Tasmania[441],
a majority of this Court held that the relevant provisions of the Workplace
Protesters Act were invalid. Today, in the Preston appeal,
this Court
unanimously rejects the submission that the relevant provisions of the
Reproductive Health Act are invalid.
- A
clear and principled approach is required in order to distinguish between the
decision in Brown v Tasmania, upon which Mr Preston relied
heavily, and the outcome in the Preston appeal. Clarity and principle
are needed to ensure that the implied freedom of political communication
does
not become an unlicensed vehicle for a court to remodel public policy by
engaging in "an assessment of the relative merits of
competing legislative
models"[442].
At best, without a reasoning process requiring precision of thought and
expression in the application of the implied freedom of
political communication,
the result could be a "codeless myriad of precedent, [t]hat wilderness of single
instances"[443],
a direction against which this Court has "from its establishment resolutely
set its
face"[444].
- Clarity
about, and reconciliation of, the reasoning and outcome in Brown v
Tasmania and in the Preston appeal is furthered by the application of a
three-stage structured proportionality test. Structured proportionality
testing
provides an analytical, staged structure by which judicial reasoning can be made
transparent. The extent of its value will
depend upon the content of each
stage. However, despite the presence of proportionality testing in many
countries, there is no fixed
approach within each stage. In Australia, a
restrained approach to each stage is required because the freedom of political
communication
is a limited implication from the Constitution that applies
only where it is necessary to ensure the existence and effective operation of
the scheme of representative and responsible
government protected by the terms
of the Constitution. The approach at each stage must also reflect
the terms and structure of the Constitution and the operation of the
system of government that it instantiates. Those terms and that structure also
contain a divide between
legislative power and judicial power, which, whilst not
clearly delineated, is now deeply
embedded[445].
- In
the Preston appeal the requirements of the three stages of proportionality
testing are satisfied. The legislation is valid.
However, although the other
appeal before this Court, the Clubb appeal, concerns similar provisions in
Victorian
legislation[446],
the issue of justification, and the associated proportionality testing, need not
be considered in that appeal.
- The
Attorney-General of the Commonwealth submitted that it is not necessary to
determine whether the Victorian provisions are invalid
because, even if they
were invalid, their application to political communication could be "severed".
The result, it was submitted,
was that in the event of either validity or
invalidity the provisions would still apply to Mrs Clubb. That submission
should be
accepted, although the commonly used expression "severance" is inapt
to describe accurately the different process undertaken, which
does not involve
severing some or all of the words of a provision. The process is one by which
the essential meaning of provisions
can, if necessary, be disapplied from
certain facts or circumstances to which that meaning would otherwise apply. In
the Clubb appeal,
the relevant provisions could be disapplied from circumstances
of political communication if that were necessary to ensure validity.
- This
approach of avoiding giving an answer to a constitutional question is based in
part upon a principle of restraint from judicial
overreach, which is also one
influence upon the principles of reading down, severance, and
disapplication[447].
The first task of any court in a case where a provision is alleged to be
constitutionally invalid is to interpret and to construe
the
provision[448].
Interpretation and construction require the court, before invalidating a
provision, to consider whether the provision could be read
down, severed, or
disapplied in part. The potential applicability of those techniques could mean
that constitutional questions of
validity need not be considered. If so, then,
in the absence of a good reason to do so, the constitutional issue should not be
resolved.
The constitutional issue need not be resolved in the Clubb
appeal.
The Clubb appeal
The threshold issue
- The
facts and legislation are set out in detail in the joint judgment and, since
this appeal can be resolved on what was described
by the parties and interveners
as the "threshold issue", the facts can be summarised briefly. Mrs Clubb
was convicted of contravening
s 185D, read with para (b) of the
definition of "prohibited behaviour" in s 185B(1) (together, "the
communication prohibition"),
of the Public Health and Wellbeing Act 2008
(Vic) ("the Public Health Act "). With exceptions for employees and
persons providing services at the
premises[449],
the communication prohibition proscribes communicating, in an area within a
radius of 150 m from premises at which abortions are
provided,
"by any means in relation to abortions 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 and is reasonably likely to cause
distress or anxiety".
- Mrs Clubb
submitted that she did not have sufficient findings of fact to make a positive
case that her contravention involved political
communication. In light of
this, the Attorney-General of the Commonwealth and the Attorney-General of the
State of Queensland submitted
that a threshold question was whether the
operation of the communication prohibition could be "severed" in relation to
political
communications if it were invalid. If so, there would be no need to
determine the constitutional question of the validity of the
law because the
legislation would be either valid entirely, or valid after severance, and in
either case it would apply to Mrs Clubb.
In contrast, this submission was
opposed by the Attorney-General for the State of Victoria and the
Attorney-General for the State
of New South Wales.
- The
ultimate conclusion urged by the Attorney-General of the Commonwealth should be
accepted. However, there is a need for clear
nomenclature in this area. The
contrasting positions taken by different parties and interveners were caused, in
part, by overlapping
and inconsistent terminology. At different times the
submission was described as one that was concerned with "reading down",
"severance",
or "construction".
Distinguishing "reading down",
"severance", and "partial disapplication"
- In
order to explain the nature of the submission by the Attorney-General of the
Commonwealth, it is necessary to distinguish three
different concepts. The
labels that can be used, which most closely fit the underlying principles, are
"reading down", "severance",
and "partial disapplication". The labels of
"severance" and "reading down" have, on different occasions, been used to
describe each
of the three different concepts. A clear vocabulary is needed
because, despite the overlap in the concepts, the principles underlying
each are
different and the consequences can be different.
- "Reading
down" is a long-recognised part of the process of interpretation at common law,
sometimes justified in cases of potential
invalidity by the Latin maxim ut
res magis valeat quam
pereat[450].
The process of reading down in such cases involves the court preferring an
interpretation of a statutory provision that renders
a provision
constitutionally valid over one which would render it
invalid[451].
This is part of the process of ascertaining the essential meaning of the words
of the
provision[452].
- The
"reading down" approach applies ordinary language techniques by which the
essential meaning of the words of a statutory clause
is understood based upon
past experience and
expectations[453]
and is not limited to a literal, semantic meaning of the individual words. In
Ex parte Walsh and Johnson; In re
Yates[454],
Isaacs J expressed the technique as part of the process of ascertaining
parliamentary intention based on a presumption that Parliament
would be expected
to respect recognised legal rules. It may be that the expectation of
consistency with the Constitution could also permit "reading up", to a
higher level of generality, the essential meaning that a provision would
otherwise have had
if the provision would be invalid unless it operated in an
extended range of
circumstances[455].
It is unnecessary to decide that point. In any event, a provision can only be
given a "read down" or "read up" meaning if that
meaning is consistent with the
legislative intent as manifested in the
text[456].
- Where
reading down is not possible, the common law also recognises a different
doctrine commonly described as "severance". The doctrine
of severance, where it
applies, permits a court to strike down part of a statute that is beyond power,
leaving the remainder of the
statute
operative[457].
An entire section or sections of a statute can be struck out under the doctrine
of severance. Even part of a section can be struck
out, commonly where it
can be
"blue pencilled"[458].
The common law doctrine of severance can only be applied if the part of the
statute to be severed is independent of the remainder
of the
statute[459].
Further, severance is not possible where "the Statute with the invalid portions
omitted would be substantially a different law as
to the subject matter dealt
with by what remains from what it would be with the omitted portions forming
part of
it"[460].
- A
good illustration of the limits of the common law doctrine of severance is the
decision of this Court in Owners of SS Kalibia v
Wilson[461].
In that case, there was a challenge to the validity of part of the Seamen's
Compensation Act 1909 (Cth) concerning intra-State trade by ships engaged in
the coasting trade. This Court unanimously held that the expression "coasting
trade" could not be read down to mean only inter-State coasting trade because
Parliament had intended to use the term to mean all
trade between different
Australian
ports[462].
As the expression could not be read down, the Court considered whether severance
was possible. A majority of the Court held that
it was not possible to sever
the intra-State elements of the provisions from their inter-State elements
because the provisions used
the "indivisible" and "collective expression" of
"coasting
trade"[463],
which necessarily encompassed inter-State and intra-State trade.
Griffith CJ said that to sever the statute "would be in effect
making a new
law"[464].
Barton J considered that severance would cause the law to be "substantially
or radically
different"[465].
O'Connor J said that the Court would "take upon itself the power of making
a new
law"[466].
And Isaacs J said that to sever in such circumstances "would therefore be
exceeding our functions as interpreters of the
law"[467].
The doctrine of severance was clearly summarised by
Barton J[468]:
"[I]f
Parliament had enacted that certain specified things, say A, B, and so on down
to Z, might lawfully be done, the first half-dozen
being within its legislative
power and the remainder outside it ... [then] the bad can be separated from the
good and excised, and
if there be left a law not substantially or radically
different, dealing effectively with so much of the subject matter as is within
the legislative power, the Act will be good, minus the invalid provisions
eliminated."
- This
same approach to severance in contract law, in the context of covenants in
unreasonable restraint of trade, has been described
as involving the application
of a blue pencil to allow severance "where the covenant is not really a single
covenant but is in effect
a combination of several distinct
covenants"[469].
Also reflecting a similar constraint to that existing in statutory severance, in
contract law the severance must not alter the nature
of the
contract[470].
It is a different and much more controversial issue, at least in the absence of
a contractual term permitting it, to disapply a
contractual clause that would
otherwise be void to an extent that would ensure its
validity[471].
- After
the decision in Owners of SS Kalibia v Wilson, the issue arose again in
Newcastle and Hunter River Steamship Co Ltd v Attorney-General for the
Commonwealth[472].
In that case the relevant provisions of the Navigation Act 1912 (Cth)
also purported to apply to all ships engaged in the coasting trade.
This Court unanimously held that it was beyond Commonwealth
power to
legislate in relation to ships engaged solely in the domestic trade and commerce
of a
State[473].
However, unlike the Seamen's Compensation Act considered in Owners of
SS Kalibia v Wilson, the Navigation Act provided, in s 2(2),
that the Act be "read and construed ... [as] a valid enactment to the extent to
which it is not in excess of
that power". The Court did not confine the "read
and
construe"[474]
command in s 2(2) to the common law techniques of reading down and
severance. Instead, the Court upheld the remainder of the Act,
treating
s 2(2) as requiring the Court to uphold that part of the subject matter
that would be valid, "however interwoven" it is
with the invalid
part[475],
provided that, as the Court later explained, it does not "manufacture a new
web"[476].
That legislative command had the effect that the provisions of the Act operated
"in respect of all ships to which they might lawfully
be
applied"[477].
The provisions were effectively disapplied to the type of trading to which they
could not validly be applied.
- The
distinction between this partial disapplication, on the one hand, and reading
down and severance, on the other, is significant.
Reading down is the exercise
of an interpretative power to expound meaning. Severance is the exercise of a
power to recognise the
invalidity of, and to sever, a substantially independent
part of a statute or provision. In the process of severance, it is not
relevant
that the legislature might have preferred partial operation of the statute in
place of no operation "if [it] had applied
[its notional] mind to the
subject"[478].
As Griffith CJ
explained[479],
what a legislature "would have done in a state of facts which never existed is a
matter of mere speculation". In both cases of
reading down and cases of
severance, the essential meaning of the statutory text as read down or as
severed is applied to the facts.
- Unlike
reading down or severance, the partial disapplication technique under
s 2(2) of the Navigation Act, as recognised in Newcastle
and Hunter River Steamship Co Ltd, does not apply the essential meaning to
all of the facts or circumstances before the court. The essential meaning of
"the coasting
trade" in that case could not be read down to mean "the
inter-State coasting
trade"[480].
Nor could any part of the "one collective
expression"[481]
used in the relevant provisions be severed from a valid remainder. Instead, the
provisions concerning ships engaged in the coasting
trade were disapplied to
ships engaged in the intra-State coasting
trade[482].
- The
underlying premise of the partial disapplication approach in Newcastle and
Hunter River Steamship Co Ltd was the statutory command in s 2(2) that,
in order to preserve constitutional validity, the essential meaning of statutory
words which
cannot be read down or severed is not applied generally to all facts
and circumstances that would otherwise have been encompassed.
Without a
statutory command, evidencing a statutory intention for
partial disapplication, that approach would not have been possible.
- The
partial disapplication approach requires a distinction, which commonly (but not
entirely accurately) is described as one between
meaning and
application[483].
In United States constitutional and administrative law, the legal approach to
each concept has been described as involving a difference,
respectively, between
interpretation and
construction[484],
although it is the distinction that is important rather than the labels. A
similar point has been made in relation to
statutes[485],
wills[486]
and, although
"underappreciated"[487],
contracts[488].
Statutory
commands to read down, to sever, and for partial disapplication
- The
powers of reading down, severance, and partial disapplication were all given a
generalised application in 1930 when the Commonwealth
Parliament enacted
s 15A of the Acts Interpretation Act 1901
(Cth)[489].
Section 15A has been described as a "direction to every
Court"[490]
to exercise those powers unless a contrary intention appears in the impugned
legislation.
- As
explained in the Second Reading Speech for the Acts Interpretation Act
1930 (Cth), s 15A replicated s 2(2) of the Navigation
Act. In the Second Reading Speech, the Vice-President of the
Executive Council noted that this Court had held that, at common law, "where
the
valid and invalid provisions of an act are inseparable or 'wrapped up in the
same word or expression' the whole must
fail"[491].
He said that this result could be avoided by the proposed s 15A, which
would make a provision like s 2(2) of the Navigation Act "common to
Commonwealth
legislation"[492].
The Leader of the Opposition, who had introduced a relevantly identical Bill in
the previous
Parliament[493],
described the effect of the proposed s 15A as to "deprive [a litigant] of
an argument" that an Act is invalid in its entirety because
some of its
provisions would be constitutionally
invalid[494].
- Equivalent
provisions were subsequently enacted, and remain in existence, in each State and
Territory[495].
The relevant provision in the Clubb appeal is s 6(1) of the
Interpretation of Legislation Act 1984 (Vic), which provides as
follows:
"Every Act shall be construed as operating to the full
extent of, but so as not to exceed, the legislative power of the State of
Victoria,
to the intent that where a provision of an Act, or the application of
any such provision to any person, subject-matter or circumstance,
would, but for
this section, have been construed as being in excess of that power, it shall
nevertheless be a valid provision to
the extent to which it is not in excess of
that power and the remainder of the Act and the application of that provision to
other
persons, subject-matters or circumstances shall not be affected."
- In
addition to the duty to "read down", the terms of s 6(1) contemplate a
further "two distinct
situations"[496].
The first is the principle of severance ("the remainder of the Act ... shall not
be affected"). Unlike the common law, where an
Act would generally be expected
to operate as a whole so that severance was treated as unlikely to have been
intended, the legislative
approach to the principle of severance was held to
create a
"presumption"[497]
that Parliament intended that a provision be severable from the remainder of the
statute or from the remainder of its valid parts.
The second situation, which
did not exist at common law but confusingly was also described sometimes as
severance and sometimes
as reading down, is the principle of partial
disapplication ("the application of that provision to other persons,
subject-matters
or circumstances shall not be affected"). In Bank of NSW v
The Commonwealth[498],
Rich and Williams JJ described these two principles of severance and
disapplication in the context of s 6 of the Banking Act 1947 (Cth).
Their Honours said that s 6 was capable of giving effect to a
provision that would otherwise be inconsistent with the Constitution in
two situations:
"where [(i)] the provision contains independent
portions within power which are severable, or [(ii)] the provision is capable of
operating
in a distributive manner in respect of each and every part of the
subject matter and its operation can be confined to those parts
which are within
power".
- Similarly,
Dixon J spoke of the difference between (i) severing or "separating
clauses or expressions", and (ii) confining a provision
"in its operation
to so much of the subject it is capable of covering as is constitutionally
competent to the legislature, or, as
it is sometimes said, whether the general
words are to be read and applied
distributively"[499].
- The
technique of partial disapplication cannot be used if it would alter a statute's
general policy or scheme or the specific policy
or purpose of the relevant
provision. To do so would cross the line between adjudication and legislation.
One way in which the
general policy or scheme of a statute or a provision could
be altered is where the partial disapplication would lead to a result
that
contradicts or alters any policy of the statute. An obvious instance of
contradiction is where the statute or provision evinces
a "contrary
intention"[500]
that it "have either a full and complete operation or none at
all"[501].
An instance where the policy of the statute or provision could be altered might
be if there were various equally available methods
of partial disapplication, so
that the provision could "be reduced to validity by adopting any one or more of
a number of several
possible
limitations"[502].
- A
second instance where a general policy or scheme will be altered is where the
statute or provision, after partial disapplication,
would operate differently
upon the remaining subject matter from how it would have operated without
partial
disapplication[503].
For this reason, "the enactment, when read distributively, must operate upon the
persons and things affected by it in the same way
as it would have operated if
it had been entirely
valid"[504].
- Although
partial disapplication cannot occur in these instances where a policy or scheme
would be contradicted or altered, no party
or intervener submitted that the
power of partial disapplication that is sanctioned by statute would otherwise be
contrary to the
exercise of judicial
power[505].
In summary, if it is not "fairly open" to read the provision down so that it is
consistent with the
Constitution[506]
then, provided that partial disapplication does not alter the policy or scheme
of the legislation so that the court does not exceed
judicial power, there is
almost no limit on the extent to which the effect of a provision can be
disapplied. Thus, the operation
of the essential meaning of the coasting trade
was disapplied from the intra-State coasting
trade[507]
and other provisions have been held capable of disapplication from inter-State
trade[508].
Similarly, although described in the language of "reading down", the operation
of the essential meaning of "person" has been disapplied
to exclude a judge of a
court exercising the judicial power of the
Commonwealth[509].
Finally, in an example closer to the circumstances of this appeal, the operation
of the essential meaning of using insulting words
in a public place was
disapplied by one Justice of this Court to exclude "words uttered in discussing
or raising matters concerning
politics and
government"[510].
The
Public Health Act cannot be read down or severed
- The
relevant provision of the Public Health Act is s 185D , which provides that
a person "must not engage in prohibited behaviour within a safe access zone".
"Prohibited behaviour" is defined
in s 185B(1) , with exceptions for
employees and service providers, to include "communicating by any means in
relation to abortions 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
and is reasonably likely to cause distress or anxiety".
- If
it were necessary to read down the communication prohibition in the Public
Health Act to avoid any invalidity then s 185D , when read with s 185B ,
would need to be given a meaning as though it contained the words "communicating
by any means in relation to abortions other than in the course of political
communication". On that meaning, if the words were read into the provision
as intended elements of the offence, rather than exceptions intended
to be
proved by the
defence[511],
then the prosecution would have been required to prove that Mrs Clubb's
communication was not political. It did not do so. However,
s 185D of the
Public Health Act cannot be read down in this manner.
- The
meaning of the words of Parliament, in this respect, is clear.
When interpreting the essential meaning of the words, Parliament's
"choice
should be respected even if the consequence is constitutional
invalidity"[512].
To give s 185D a different meaning by reading down the communication
prohibition to exclude political communication would be to make "an insertion
which is 'too big, or too much at variance with the language in fact used by the
legislature'"[513].
That variance would also have the effect of drastically reducing the
intelligibility of the law to those who administer it, here
prosecutors, and
those who are subject to it.
- Nor
would it be possible, if s 185D of the Public Health Act contravened the
implied freedom of political communication, for any contravening parts to be
severed from the remainder of the statute.
Even with the benefit of the
presumption that Parliament intended that otherwise invalid parts of the
Public Health Act could be severed from the remainder of the Act, there is
no part of s 185B or s 185D that can be severed from any other part of
the
communication prohibition.
The Public Health Act could be
partially disapplied if necessary
- In
contrast with reading down and severance, s 185D of the Public Health Act
could be partially disapplied to reduce the sphere of operation of the
communication prohibition. The command to courts in s 6(1) of the
Interpretation of Legislation Act requires partial disapplication, if
necessary to avoid invalidity, provided that the partial disapplication does not
alter the policy
or scheme of the legislation.
- Section 185D
is not exclusively concerned with political communication. As the
Attorney-General for the State of Victoria submitted,
not all communications
about termination are political, giving examples of a medical professional
speaking about termination at a
health conference or a woman discussing
termination procedures with her doctor. So too, there might be non-political
communications
about termination that fall within the considerable breadth of
the communication prohibition.
- If
the communication prohibition were disapplied to instances of communication on
government and political matters then its operation
in the remaining sphere of
communications would be unaltered. Although this disapplication could
eviscerate the operation of the
statute if the majority of communications were
political, the statutory policy would operate upon the vastly reduced content of
non-political
communication in the same way as it did before disapplication.
And there is no express or implied suggestion in the Public Health Act that the
need to protect the safety, privacy, and dignity of clinic workers and visitors
should be all-or-nothing.
The possibility of disapplication is
sufficient to dispose of the appeal
- There
can be no doubt that Mrs Clubb is directly and immediately interested in
whether the communication prohibition, under which
she was convicted, infringes
the implied freedom of political communication, and thus has standing to bring
her challenge. However,
even if s 185D of the Public Health Act were
found to lack compliance with the implied freedom of political communication and
require disapplication, the communication prohibition
would still have a valid
sphere of operation in relation to Mrs Clubb because of the lack of
evidence from which it could be concluded
that her communications were
political. Even Mrs Clubb conceded that if disapplication were possible
there were insufficient facts
from which the magistrate could have concluded
that the legislation did not apply to her.
- Mrs Clubb's
submission that it was for the prosecution to prove that her speech was not
political should not be accepted. Interpretative
issues, including reading down
or severance of provisions imposing criminal liability, establish the elements
that the prosecution
must prove. But the process of determining the essential
meaning of a provision, or its partial disapplication, is an issue for
the court
and not a matter upon which any party bears an onus. If a provision is to be
disapplied from particular facts or circumstances
then unless the court is
satisfied of the presence of those facts or circumstances its duty is to apply
the legislation.
- The
effect of possible disapplication by s 6(1) of the Interpretation of
Legislation Act, as with s 15A of the Acts Interpretation Act,
is that on any view adjudication upon the constitutional issue could not affect
Mrs Clubb. Consistently with the legislative purpose
of s 15A and its
successors, the recognition of the possibility of disapplication operates to
"deprive [Mrs Clubb] of an
argument"[514]
that the communication prohibition is invalid. Therefore, there is no good
reason to adjudicate upon the validity of s 185D of the Public Health
Act .
The Preston appeal
Background and legislation
- On
three occasions during 2014 and 2015, Mr Preston was on the footpath of a
street that was within 150 m from premises at which
terminations[515]
are provided. On each occasion, Mr Preston engaged in a protest against
the termination of pregnancies that could be seen and heard
by persons who were
accessing or attempting to access the premises. He held signs and placards with
statements including "EVERY
ONE HAS THE RIGHT TO LIFE, Article 3, Universal
Declaration of Human Rights" and "EVERY CHILD HAS THE RIGHT TO LIFE,
Article 6, UN
Convention on the Rights of the Child", and images depicting
a foetus at eight weeks, including one image of a foetus bearing the
description
"8 week pre-born baby". On one occasion, Mr Preston spoke to a woman
who intended to access the premises. The woman
gave evidence that she had felt
intimidated and uncomfortable after seeing his placards and had reconsidered
entry to the premises.
- Mr Preston
was charged with three offences under s 9(2) of the Reproductive Health Act
corresponding with each of the occasions described above. The offence in
s 9(2), which carried a maximum penalty of one year's imprisonment or a
fine of 75 penalty units or both, is engaging in "prohibited behaviour
within an access zone".
- An
"access zone" is an area within a radius of 150 m from the premises at
which terminations are
provided[516].
The better interpretation of this definition is that the radius commences at
either the entrance to the premises or, perhaps more
accurately, the perimeter
of the building rather than, as was suggested during debate in Victoria
concerning the Public Health Act , from the perimeter of the land on which the
premises are
situated[517].
Nevertheless, even the more limited interpretation creates a very large access
zone amounting to the circular equivalent of more
than
70,000 m2.
- "Prohibited
behaviour" includes interference with a person as well as besetting, harassing,
intimidating, threatening, hindering,
obstructing or impeding a
person[518].
It includes, without consent, "intentionally recording, by any means, a person
accessing or attempting to access premises at which
terminations are
provided"[519].
It also includes footpath interference in relation to
terminations[520],
which in certain circumstances may encompass even passively standing in a
person's path while wearing a t-shirt with an offensive
message about
terminations[521].
And, relevantly to this case, prohibited behaviour includes, by para (b) of
the definition in s 9(1):
"a protest in relation to
terminations that is able to be seen or heard by a person accessing, or
attempting to access, premises at
which terminations are provided".
- Unlike
the British Columbia
model[522],
which was considered in cases to which the parties and interveners referred,
"protest" is not defined in the Reproductive Health Act. However, its
context[523]
reinforces its ordinary meaning, similar to the definition in the British
Columbia
legislation[524],
of communication of objection or disapproval in a public place. On its face,
that ordinary meaning does not discriminate between
objection or disapproval "in
relation to terminations" that conveys disapproval of terminations and objection
or disapproval "in
relation to terminations" that conveys disapproval of those
who oppose terminations.
- "Accessing"
and "attempting to access" bear their ordinary meaning of a person who is
intentionally en route to premises at which
terminations are provided. That
ordinary meaning is supported by the usual requirement that there be an
intentional act in order
for an attempt to be made out.
- It
is at least arguable that there are implied requirements in para (b) of the
definition of "prohibited behaviour" in s 9(1) that the protest must be
intended to be in relation to terminations and that an accused person must
intend to communicate within
the access
zone[525].
It suffices to proceed on this assumption because even if there were no mental
element requiring a person to know that he or she
was within a 150 m radius
of the premises at which terminations are provided, or even if there were an
excuse of honest and reasonable
mistake[526],
for reasons that I explain below the constitutional validity of the provision
would be unaffected.
- Magistrate Rheinberger
convicted Mr Preston of each of the three offences under s 9(2) of the
Reproductive Health Act, as well as a further offence of failing to comply with
a direction of a police officer. He was fined $3,000 in total for all the
offences. The magistrate also rejected Mr Preston's submission that
s 9(2) was contrary to the implied freedom of political communication and
was therefore invalid.
- Mr Preston
sought review in the Supreme Court of Tasmania of the decision of the
magistrate. Six of his grounds of review were removed
into this Court. Each of
the six grounds of his amended notice of appeal in this Court concern whether
the "protest prohibition",
in s 9(2) of the Reproductive Health Act read
with para (b) of the definition of "prohibited behaviour" in s 9(1),
is invalid because it is contrary to the implied constitutional freedom of
political communication.
The implied freedom of political
communication
- The
freedom of political communication that is implied in the Constitution is
a constraint upon the exercise of power. The constraint is against the
imposition of undue burdens on political communication.
In broad terms, the
conditions for when a law will impose an undue burden have been accepted for
over two decades since the decision
of this Court in Lange v Australian
Broadcasting
Corporation[527].
Those broad terms involve twin concerns about (i) the purpose of imposing a
burden upon political communication, and (ii) the effect
of imposing that
burden upon political communication.
- The
test that has developed to address the twin concerns of the purpose and the
effect of a burden upon political communication involves
asking the following:
(i) whether there is a burden upon political communication, since freedom
of political communication requires
an anterior liberty to act;
(ii) whether the law that imposes the burden has a legitimate purpose, in
other words whether the law
illegitimately has the very purpose of imposing the
burden rather than merely doing so as a consequence of pursuing some other
purpose;
and (iii) whether the effect of the burden upon political
communication is undue or unjustified by reference to the legitimate
purpose.
The burden upon freedom of political
communication
- The
implied freedom of political communication is not confined to communication by
way of oral words. It includes political communication
by "[s]igns, symbols,
gestures and
images"[528].
Protest – that is, the public communication of objection or disapproval
– by signs, symbols, gestures, and images is
one of the loudest forms of
political communication.
- Protest
is almost inextricably linked with matters of political and governmental
content. And protest, as a public expression of
objection in relation to
terminations, has a particularly powerful association with communication on
political matters. It was not
in dispute that the protest prohibition in the
Reproductive Health Act is a burden upon the implied freedom of political
communication. In the context of Australia's history of political debate about
terminations, Mr Preston's communications, including his references to the
Universal Declaration of Human Rights and the United Nations
Convention on the
Rights of the Child, were political. There is, therefore, no utility in
considering as a threshold issue before
the constitutional issue, whether the
protest prohibition can be disapplied. The issue of disapplication only falls
to be considered
if the protest prohibition is contrary to the implied freedom
of political communication.
The legitimacy of the law's
purpose
- The
Reproductive Health Act does not contain any express statement of its purposes,
either generally or of any of the forms of prohibited behaviour in s 9(1).
The purpose falls to be discerned, at the appropriate level of generality, by
reference to the meaning or range of meanings of the
words of the provision, the
meanings of other provisions in the statute, historical background, and any
social objective of the
law[529].
- The
short title (the "Reproductive Health (Access to Terminations) Act") and
the principal Part (Pt 2, "Access to Terminations") provide a clear
indication of the general purposes of the Act. The information
paper which was
part of the extrinsic materials preceding the Act explained that "reproductive
health" was concerned with "a state
of complete physical, mental and social
wellbeing" in association with the "reproductive processes, functions and
system"[530].
It was said that the previous law, derived from nineteenth century laws in the
United Kingdom and Ireland, needed to change to recognise
that unplanned
pregnancies will occur, to remove criminal regulation of access to terminations,
to remove a barrier to health care
services, to acknowledge women as capable
decision makers, to recognise that termination is a safe medical procedure, and
to recognise
community
standards[531].
At its core, the purpose of the Reproductive Health Act is, perhaps
unsurprisingly, women's reproductive health in the widest sense.
- The
terms of the protest prohibition form part of a series of prohibited behaviours
in s 9(1) that are all concerned with protection of women within the access
zone of a premises at which terminations are provided. This protection
is an
integral aspect of Pt 2 of the Act, "Access to Terminations", by which
certain medical terminations are made lawful. In that
context, the purpose of
the protest prohibition is to ensure that women of any
age[532]
seeking access to medical termination services can do so in safety and without
further fear, intimidation, or distress. As the Minister
said in the Second
Reading Speech, "[w]omen are entitled to access termination services in a
confidential manner without the threat
of
harassment"[533].
At the higher level of generality of the Act as a whole, the purpose is avowedly
concerned with health. At any level of generality
the purpose is
legitimate.
- Mr Preston
identified a number of putative purposes of the protest prohibition which he
said were illegitimate, including the following:
(i) to deter speech that
aims to dissuade or delay women from accessing terminations; (ii) to deter
speech that the Minister considered
to be "unacceptable"; (iii) to handicap
one side of the termination debate; (iv) to prevent persons from being
confronted with a
protest in relation to terminations; and (v) to deter
speech that causes shame. Each of these submissions might describe a possible
effect of the law. None describes its purpose.
Justification of
the burden by reference to the purpose: proportionality testing
- In
Lange[534],
the expression "reasonably appropriate and adapted" was
adopted[535]
as a test of whether a law's burden upon the implied freedom of political
communication is justified. That phrase has been criticised.
It has been
described as an "ungainly and unedifying phrase" which is "inappropriate and
ill-adapted to perform the constitutional
function repeatedly assigned to it by
members of this
Court"[536].
It is a hendiadys. As Heydon J observed in Monis v The
Queen[537],
"appropriate" adds nothing to "adapted". And, as Heydon J also observed in
the same
case[538],
"reasonably" adds nothing to whether the law is appropriate or adapted.
It could hardly be said that a law is unreasonably appropriate. And it
would be a mistake to understand "reasonably appropriate"
as shorthand for
"reasonably capable of being regarded as appropriate and
adapted"[539],
because a law that is not "appropriate" is not valid because it is reasonably
capable of being regarded as appropriate by some.
- In
each of (i) McCloy v New South
Wales[540];
(ii) Brown v
Tasmania[541];
(iii) Unions NSW v New South
Wales[542];
and (iv) this appeal, a majority of this Court has articulated an approach to
justification of a burden upon the implied freedom
that has avoided directly
deploying the phrase "reasonably appropriate and adapted". The focus is instead
upon a three-stage test
described as "proportionality". Although, at a high
level of generality, the framework for proportionality testing is broadly
similar
in most jurisdictions, the detail can vary across jurisdictions and even
within
jurisdictions[543].
However, the test for proportionality has sometimes been criticised without
explanation of the precise concept that is being criticised.
It is necessary to
explain how the concept differs in Australia from other approaches that might be
criticised as lacking direct
relevance to this jurisdiction.
- The
three-stage test of proportionality adapted in this area of Australian legal
discourse requires the law to be: (i) suitable,
in other words rationally
connected to its purpose; (ii) necessary, in the sense that there were not
reasonably practicable alternatives
of equal efficacy that would have been
expected to be substantially less burdensome upon the freedom of political
communication;
and (iii) adequate in the balance between the purpose to be
achieved by the law and the burden imposed upon the freedom. The three
stages
of proportionality testing elucidate and structure the thinking process, which
may otherwise be opaque. Duplication is avoided
because if a case fails at one
stage it is unnecessary to consider whether subsequent stages are
satisfied.
- The
concept of "proportionality" has been described as foreign in origin. That
description is correct. It would also be correct
to describe much of our
inherited "common" law, in its true character as law that is common, as foreign
in origin. As Pound
said[544],
the "[h]istory of a system of law is largely a history of borrowings of legal
materials from other legal systems and of assimilation
of materials from outside
of the law. ... For except as an act of omnipotence, creation is not the
making of something out of nothing."
- That
a legal doctrine originated in a foreign legal system does not render it
unsuitable or inapplicable if it is adapted to local
circumstances. But the
adoption of a foreign concept that is ill-suited to resolving conflicting rights
or freedoms will not benefit
local jurisprudence. A focus upon whether a law is
"reasonably appropriate and adapted" is itself such an ill-suited foreign
concept.
It was imported into Australia from the United
States[545].
But even in the United States it is not used as a test for balancing the
First Amendment freedom with other freedoms and rights.
Instead, the balancing
technique adopted in the United States, which might itself be a concealed form
of
proportionality[546],
is said to have entered American legal jurisprudence through the writing of
Holmes[547]
in response to Langdell's writings in private law, which had been influenced by
the "radical antiformalistic movement in German law
science – the
Freirechtschule"[548].
- Foreign
doctrines can become part of the local jurisprudence, consciously or
unconsciously, where they have a force that transcends
jurisdictional
boundaries. This is true of the concept of proportionality. As Lord Reed
observed in Bank Mellat v Her Majesty's Treasury [No
2][549],
proportionality, or Verhältnismäßigkeit in German law,
had a long history even before it was adopted into German public law. The force
of the connecting links vary but,
as Lord Reed identified, its parentage in
some parts of English law might be loosely traced from Aristotle, through
Aquinas, to the
eighteenth century Enlightenment including the writings of
Blackstone[550].
Prior to the relatively recent adoption of proportionality by a majority of this
Court in McCloy v New South
Wales[551],
its main tenets were said to have been adopted by "virtually every effective
system of constitutional justice in the world, with
the partial exception of the
United States"[552].
- The
differences, sometimes subtle and sometimes significant, in the approach taken
at each stage of proportionality testing in different
jurisdictions are
unsurprising given that proportionality testing is applied within different
constitutional traditions. But the
broad outline of the approach, and the
manner by which it structures and exposes judicial reasoning, is common to every
jurisdiction
that has adopted proportionality testing. Even the United States
"exceptionalism", which does not explicitly recognise proportionality
testing,
has been said to "rely on an unarticulated combination" of the second and third
stages of proportionality analysis (reasonable
necessity and adequacy in the
balance)[553].
So too, as Professor Stone observed of the approach of this Court very
shortly after Lange, in this country proportionality testing makes
explicit "essentially the process in which [the Court already]
engages"[554].
At each stage the application of proportionality testing in Australia must be
tied to the purpose for which it is employed, namely
to ensure only that which
is necessary for the effective functioning of representative and responsible
government manifested in the
structure and text of the Constitution,
particularly ss 7, 24 and 128, and ss 62 and 64.
- Proportionality
testing has been described in
Australia[555]
and
elsewhere[556]
as a "tool". It is, indeed, a tool. But its nature as a tool does not make it
dispensable. It is a tool in the same sense that
the Shirt
factors[557]
are a tool for a judge sitting without a jury who is required to justify a
conclusion of breach of a duty of care. As a tool, it
provides a framework that
promotes transparency of reasoning, although it does not purport to supply a
mechanical or mathematical
approach to the answer. Just as
Learned Hand J's "algebraic" formula,
B < PL[558],
has never been applied in a mechanical way to determine breach of a duty of care
in Australia, so too Professor Alexy's "Weight
Formula"[559],
which seeks to ascribe a numerical figure to incommensurate principles in a
particular case to enable an arithmetic comparison of
those principles, would
not be so applied in an analysis of proportionality in Australia and was not
designed to do so.
- The
recognition of proportionality as a structure for decision making is not
antithetical to the common law process. The common
law development of
categories is another significant example of the common law using a tool or
framework as a means of structuring
and making transparent the process of
decision making. The common law categories of contract and torts themselves
emerged by "squeezing
English rules into models developed
elsewhere"[560].
Like structured proportionality, those categories promote transparent
reasoning and identify like cases that are to be treated alike.
And, also like
structured proportionality, the categories, and development within them, are not
immune from further development.
As Lord Devlin said in Hedley Byrne
& Co Ltd v Heller & Partners
Ltd[561],
"[a]n existing category grows as instances of its application multiply until the
time comes when the cell divides".
- Incremental
development within each stage of proportionality testing has occurred and will
continue to occur. In different countries,
different approaches might
reasonably be taken, and are reasonably taken, at each stage of the qualitative
proportionality enquiry.
But proportionality testing forces judges to confront
the issues in a structured way and to explain and justify the approach that
is
taken. Proportionality testing in Australia provides a graduated lens with
increased focus at each stage upon whether a burden
upon the implied freedom of
political communication is justified. The "suitability" stage asks whether the
effect of the law has
a rational connection to its purpose. The "reasonable
necessity" stage then focuses upon whether the likelihood and expected magnitude
of the burden imposed upon the freedom of political communication by the means
chosen by Parliament is reasonably necessary to achieve
that rationally
connected purpose. And the "adequacy in the balance" stage then asks whether
the burden upon the freedom of political
communication which was imposed by
those reasonably necessary means is justified by the purpose of the law. There
is a difficult
issue, raised but not answered during oral submissions on this
appeal, concerning the relevance of changes in facts and circumstances
at each
stage of proportionality testing. There is no doubt that at each stage of
proportionality testing, a court can consider
as constitutional facts and
circumstances those matters confronting Parliament at the time the challenged
law was enacted. Hence,
matters such as the likelihood of an effect upon
freedom of political communication or the likely magnitude of the effect can,
and
should, be considered based on the circumstances at the time that the law
was enacted. But it is far more controversial for the
enquiry to assess
suitability, reasonable necessity, or adequacy in the balance by taking into
account unforeseeable subsequent,
potentially radical, changes in facts and
circumstances.
- If
such subsequent changes could be taken into account then it might mean that any
suitability, reasonable necessity, or adequacy
in the balance that once existed
could cease to exist. The legislation may be invalid only from a future point
in time rather than
being void ab initio. Although that approach is not an
entirely novel
suggestion[562],
and although some parallels might be drawn with State legislation that is
rendered inoperative due to s 109 of the Constitution, strong
opposition has been expressed, including quite recently, against the possibility
of the validity of legislation waxing and
waning with subsequent changes in
constitutional facts and
circumstances[563].
Whether subsequent facts and circumstances should be confined to use as evidence
only of matters that might have been foreseeable
at the time that Parliament
legislated need not be resolved in this case. There was no suggestion that the
material subsequent to
the enactment of the Reproductive Health Act relied upon
by various of the parties and interveners reflected any change in underlying
facts or circumstances. It suffices in
these reasons to consider each
stage of proportionality testing by reference to the facts and circumstances,
including foreseeable
effects, that existed at the time that the legislation was
enacted.
(1) Suitability
- The
suitability stage of proportionality testing, which asks whether the operation
of a law has a rational connection with its purpose,
is almost always satisfied
since the construct of legislative purpose is based upon a legislature that is
assumed to act
rationally[564].
If the expected operation of a law has no rational connection to a hypothesised
purpose then that hypothesis could hardly be the
purpose of the law passed by a
rational legislature. Hence, as has been observed of the similar requirement in
Canada[565]
and
Israel[566],
and by one author in the United
Kingdom[567],
this stage has very little work to do in most cases. An extreme instance
where a legislature acted irrationally is given by Professor
Alexy: a
German law that required falconers, persons who hunt with falcons not guns, to
undertake the same shooting examination
as persons who applied for a general
hunting
licence[568].
- In
addition to identifying extreme cases of irrationality, the suitability stage
performs two functions. First, if a law has an
illegitimate purpose that is not
recognised by the court when considering whether the law pursues a legitimate
purpose or purposes,
or if the court erroneously accepts a general legislative
statement of objects as the purpose of a particular provision that is not
related to those objects, then the suitability stage requires the court to
confront the lack of any legitimate purpose for the law.
Secondly, the
suitability stage leads into the second stage, of reasonable necessity, which
assesses the means by which the law
achieves its rationally connected purposes
or objects.
- Mr Preston
submitted that s 9(2) was not rationally connected to a legitimate purpose
for similar reasons to those contained in his submissions about the absence
of a
legitimate purpose. Again, those submissions should not be accepted. Once the
legitimate purposes of the protest prohibition
in s 9(2) are identified,
the effect of the protest prohibition can easily be seen as rationally connected
with those purposes.
- The
only concrete example said to illustrate the unsuitability of the operation of
the protest prohibition was a submission before
the magistrate that there "is no
rational reason to stop a silent protest 100 metres from the
premises"[569].
The magistrate rejected this submission on the basis that para (b) of the
definition of "prohibited behaviour" in s 9(1) would not extend to silent
prayer by two or three
people[570].
However, silent prayer is capable of falling within the prohibition even if it
would not always amount to a protest within para
(b). Silent or quiet
action can be a powerful form of protest and political communication. In
Levy v
Victoria[571],
Kirby J referred to the communicative power of silent action, including:
"[l]ifting a flag in battle, raising a hand against advancing
tanks, wearing
symbols of dissent, participating in a silent vigil, public prayer and
meditation". The protest prohibition was intended
to "stop the silent protests
outside termination clinics that purport to be a vigil of sorts ... but which,
by their very location,
are undoubtedly an expression of
disapproval"[572].
The protest prohibition is suitable for its purposes.
(2)
Reasonably necessary means
- The
second stage of proportionality testing is commonly described as "necessity",
but necessity is used here in a loose sense. The
question at the second stage
is whether there were "alternative, reasonably practicable, means of achieving
the same object but which
have a less restrictive effect on the
freedom"[573].
- The
strength of a reasonableness standard will always depend upon the context in
which the standard is being
imposed[574].
Here, the context of "reasonably practicable" means of achieving, to the same
degree, the legislative objects is that the implied
freedom of political
communication is limited not merely to matters that will secure the effective
operation of the constitutional
system of representative and responsible
government, but to matters that are also necessary for that
operation[575].
- It
is also necessary for an effective operation of the constitutional system of
representative and responsible government for Parliament
to be able to make
choices about the best policies to pursue for the implementation of legislation.
Parliament is generally in a
better position than the courts to assess whether
alternative means that have a less restrictive effect on the freedom might not
achieve the legislative purpose as significantly or effectively. As
O'Regan J and Cameron A-J powerfully expressed this point in
the
Constitutional Court of South Africa, "[w]hen a [c]ourt seeks to attribute
weight to the factor of 'less restrictive means' it
should take care to avoid a
result that annihilates the range of choice available to the
Legislature"[576].
This has as much resonance in our constitutional context. Hence, in assessing
whether the means adopted was reasonably necessary,
it is necessary to ask
whether an alternative is "obvious and
compelling"[577].
- There
are two dimensions involved when considering whether an alternative means of
achieving the same object was obvious and compelling.
The first is whether
the alternative means could reasonably have been expected to have imposed a
significantly lesser burden upon
the implied freedom of political communication.
The second is whether the alternative means could achieve Parliament's purpose
to
the same or a similar extent. A law will only fail the stage of reasonable
necessity if there are alternative means that could reasonably
have been
expected to have imposed a significantly lesser burden upon the freedom and yet
achieved Parliament's purpose to the same
or a similar extent.
- A
comparison of the expected burdens upon the implied freedom between the chosen
means and the alternative means will require assessing
the likelihood and
expected magnitude of the burden upon the freedom of political communication
imposed by the means chosen by Parliament
compared with the alternative
postulated means. The likelihood and expected magnitude of the burden can be
assessed by reference
to the "depth" and "width" of the burden. A burden
will be deeper, in the sense of more intensely focused upon the conduct it
captures,
the more that the law: (i) targets political communication or
communication that is closely associated with political
communication[578];
(ii) impairs communication of the message of one side of a debate more than
the other; and (iii) punishes or sanctions the conduct.
And a burden will
be wider, in the sense of capturing more conduct, the less that the restriction
on political communication effected
by the law is constrained, including by
constraints of time, location, or subject matter.
- The
burden imposed by the protest prohibition is deep. It targets protest that has
a powerful association with political communication.
It does so by imposing
criminal consequences of a fine up to 75 penalty units or imprisonment for
12 months or
both[579].
Further, although it is facially neutral in its effect on protest, the human
experience described in the Second Reading Speech
is one of anti-termination
protests outside premises at which terminations are provided: "standing on the
street outside a medical
facility with the express purpose of dissuading or
delaying a woman from accessing a legitimate reproductive health
service"[580].
As the legislative materials rightly assume, history is not replete with
examples, in this jurisdiction or others, of non-responsive,
pro-termination
protests at premises where terminations are provided. The legislative effect
will be, and is intended to be, most
deeply felt by anti-termination
protesters.
- The
burden imposed by the protest prohibition is also wide. The radius of
150 m covers more than 70,000 m2. As the
Minister observed in the Second Reading Speech, the access zone might include
churches, restaurants and public
houses[581].
The magistrate concluded that the 150 m radius in the Preston appeal
extended to a park and a car
park[582].
However, the width of the burden is reduced by the requirement that the protest
must be able to be seen or heard by a person accessing,
or attempting to access,
the premises.
- One
obvious manner in which the width of the burden upon the freedom of political
communication could have been significantly lessened
would have been by a law
that imposed an access zone that was smaller than a 150 m radius
(70,000 m2) such as, for example, the
approximately 11 m radius (380 m2) used in
the Massachusetts law considered in McCullen v
Coakley[583].
However, the reduction of the zone would likely have protected far fewer of
those accessing the premises. Even with the area chosen
of
70,000 m2, and the likelihood that almost all
women would be protected, the findings of fact by Magistrate Rheinberger
indicate that some women
could be targeted. Her Honour concluded that
"[p]rotesters wanting to communicate their political beliefs in relation to
terminations
of pregnancies in a manner that may target women who may be
accessing or attempting to access the premises" can still protest outside
the
access zone, but close enough to allow meaningful opportunity for
communication[584].
- In
any event, it cannot be said to be obvious or compelling that the purposes of
the legislation would be able to be served to the
same extent by an access zone
with, for example, a radius of 120 m or 130 m. At that degree of
specificity such a judgment is peculiarly
within the province of Parliament as
advised by stakeholders, experts, and committees. As the Minister said in the
Second Reading
Speech of the Victorian
legislation[585],
which adopted the same radius, that particular distance was chosen "after
consultation with a wide range of stakeholders", including
health services who
had asked for a "much larger
zone"[586].
- A
second manner in which it might be said that the burden upon the freedom of
political communication could have been reduced is
by altering the focus of the
protest prohibition so that rather than targeting all protests, with their
strong association with political
communication, the prohibition targeted only
communications that are reasonably likely to cause distress or
anxiety[587].
A burden upon political communication will generally be deeper where
political communication is specifically targeted, so replacing
the broader
requirement of protest with a requirement for distress and anxiety might be said
to reduce the burden. However, in the
course of submissions no example was
given of a circumstance in which protest outside premises where terminations are
provided would
not cause distress or anxiety to a person within the class of
vulnerable persons accessing the clinic. The Solicitor-General for
the State of
South Australia acknowledged in oral submissions that he could not conceive
of any such circumstance. No other party
or intervener provided one.
- In
summary, a law with the same purpose as the protest prohibition, but that
imposed a significantly lesser burden upon the freedom
of political
communication, could have been enacted. However, despite the depth and width of
the burden, it is unlikely that the
purposes of the Reproductive Health Act
could have been served to the same or a similar extent without imposing a burden
that was similarly deep and wide. At the least,
the possibility that the
purposes could be so served by alternative means is neither obvious nor
compelling.
- At
first blush, the conclusion that the protest prohibition was reasonably
necessary does not sit comfortably with the conclusion
reached by the joint
judgment in the majority in Brown v Tasmania that the protest prohibition
in that case was not reasonably necessary for its
purpose[588].
The Reproductive Health Act denies any meaningful "on-site" protest by excluding
a putative protester from a 70,000 m2 area around
the relevant premises, and potentially considerably more for protesters who
travel without tape measures, in a built-up
urban area. Although there was
found to be some, undoubtedly limited, scope for a protester to "target"
off-site a woman seeking
to access premises at which terminations are provided,
the same scope existed under the Workplace Protesters Act for a protest to
be
conducted near forest operations at places that were away from business premises
or business access
areas[589].
- One
potential difference between the cases is the agreed fact in the special case in
Brown v Tasmania that "[r]ecent protest activity in Tasmania ... has made
use of photographs and film to enable dissemination of the activity in the
media
and the internet, particularly on YouTube, Facebook and
Twitter"[590].
However, it is hard to see how the absence of this evidence of recent media use
in the Preston appeal could favour validity when
that evidence could only have
been obtained in the last five years by contravening a prohibition on recording
in the access zone
a person accessing or attempting to access the
premises[591]
and a prohibition on publishing or distributing
recordings[592].
In any event, even if some weight were to be put on the absence of online media
communication in the more distant period prior to
the enactment of the
Reproductive Health Act, the exclusion of on-site protest, coupled with the
recording prohibition, has the effect of neutering a communicative tool that
could have been foreseen in 2013 to become powerful.
- A
reconciliation of the decision in Brown v Tasmania and the decision in
the Preston appeal at this stage of proportionality testing lies in the
conclusion reached in the joint judgment
in Brown v Tasmania about the
scope of application of the Workplace Protesters Act. In contrast with my
interpretation of the Workplace Protesters
Act[593], the
joint judgment did not interpret the restriction on protest to be confined to
the areas of unchallenged operation of the Forest Management Act 2013
(Tas), which would have eliminated any burden upon the freedom of political
communication. Instead, the joint judgment concluded
that the restriction went
"far beyond" that which was reasonably necessary for the purposes of application
of the relevant provisions
"to prevent damage and disruption to forest
operations", unlike the "substantially less restrictive" measures of the
Forest Management
Act[594].
Indeed, if the terms of the Workplace Protesters Act were read literally then
they would have restricted protests anywhere within
800,000 ha
(8 billion m2) of permanent timber production
zone land if any forest operations, such as the clipping of the branches of a
tree, took place anywhere
within that
zone[595].
- The
area covered by the Reproductive Health Act is reasonably necessary to fulfil
its purposes to the desired extent. By contrast, the interpretation adopted in
the joint judgment
in Brown v Tasmania of the Workplace Protesters Act,
which treated it as applying well beyond those areas where the Forest Manager
had denied access
to the public in the exercise of powers under s 21,
s 22, or s 23 of the Forest Management Act, was considered to
impose a substantial burden upon the implied freedom of political communication
without any substantial additional
furtherance of the statutory
purposes.
(3) Adequacy in the balance
- Professor
King's monograph on social rights begins by asking: "What is more important,
having the ability to preach politics on
Hyde Park Corner, or ensuring that we
have a fighting chance to live past heart disease or breast
cancer?"[596]
An assessment of whether a law is adequate in the balance involves the metaphor
of balancing "the importance of the purpose served
by the restrictive measure
and the extent of the restriction it imposes on the
freedom"[597].
- As
Professor King's rhetorical question indicates, a decision by a court that a law
is inadequate in the balance, despite the legitimacy
of its purpose, could have
large consequences. In instances where there are limited means to give effect
to the statutory purpose,
a conclusion of inadequacy in the balance could mean
that Parliament could not legislate at all to achieve a legitimate purpose since
even the means that are found, at the second stage, to be reasonably necessary
to implement that policy will be invalid. In other
words, a decision by a court
that a law is inadequate in the balance could, in some instances, mean that
implementation of any measure to respond to that public policy concern is
prohibited because of the burden it places upon the freedom of political
communication.
- Perhaps
due to the significance of this possible consequence, it has been said that some
other jurisdictions have effectively abandoned
the stage of whether a law is
adequate in the balance. This third stage has been treated by some courts as
superfluous to the stage
of whether the means adopted by the law was reasonably
necessary for its purposes. Dr Yowell has observed that the European Court
of Human Rights has treated the two as
equivalent[598],
and that over a ten-year period in Canada there was no case in which this limb
made any difference to the conclusion reached on
the application of the
necessity
limb[599].
- In
Germany, by contrast, the third stage of proportionality testing has been said
to have "high
relevance"[600]
because "balancing is constantly practised by the
judiciary"[601].
Professor Grimm, a former Justice of the Federal Constitutional Court of
Germany, has argued that a court "risks self-deception
when all the
value-oriented considerations have been made under the guise of a seemingly
value-neutral
category"[602].
However, these value judgments can be highly contested. It is no coincidence
that the widely accepted hypothetical example that
Professor Grimm gives of
balancing rights is extreme. That example is a hypothetical law that permits a
thief to be shot to death
by police if that is the only way to protect
property[603].
When balancing rights and freedoms, such a law is suitable in the sense that it
has a rational connection with the purpose of protecting
property rights. The
reasonable necessity stage is satisfied because shooting is allowed only if no
other means are available to
protect the property rights. But the right to life
would not be adequately protected in the balance struck by the law between a
person's right to life and the liberty of the police to act so as to protect
property[604].
- The
Australian foundations of the implied freedom of political communication are
inconsistent with an open-ended value assessment
at the adequacy in the balance
stage. The approach to adequacy in the balance must be highly constrained.
This is, in part, because
the freedom of political communication arises only as
an implication to secure the effective operation of the constitutional system
of
representative and responsible government. The very representative and
responsible government that it secures involves legislative
implementation of
policy decisions. Thus, it has been said that the stage of adequacy in the
balance in Australia requires the judgment
to be made "consistently with the
limits of the judicial
function"[605].
There are two significant constraints consistent with the permissible
constitutional limits of the judicial function that exist
to prevent an approach
at this stage from operating as a judicial reassessment of the importance of the
public policy priorities
of the legislature.
- The
first constraint is that the courts cannot "substitute their own assessment for
that of the legislative
decision-maker"[606].
This means that the value judgment must respect "the role of the legislature to
determine which policies and social benefits ought
to be
pursued"[607].
The assessment of the importance of purpose is not the judge's idiosyncratic
policy preference. Instead, the first constraint directs
attention to the
importance that Parliament has given to the purpose. The weight that Parliament
has given to legislative purpose
is ascertained in the same way that legislative
purpose itself is discerned. One factor will be the place of the
particular law
within the relevant statute and its importance to the furtherance
of the statute's purposes. Other factors will be the context in
which the law
was enacted; the legislative facts including the mischief to which Parliament
was responding; and the importance expressly
assigned to that response in the
statute or in extrinsic materials. And it may also be relevant to consider the
systemic context
in which the law was enacted, including, if Parliament has
legislated to protect some right, the importance of the right within the
legal
system and the extent to which it is embedded in the fabric of the legal system
within which Parliament
legislates[608].
- The
second constraint is that a law will only be inadequate in the balance if it
involves gross or manifest lack of
balance[609]
between, on the one hand, the foreseeable magnitude and likelihood of the burden
upon freedom of political communication and, on
the other hand, the importance
of the purpose. That constraint recognises that, in a representative
democracy, freedom of political
communication is only one facet of formal
representative and responsible government. Another facet is the ability of
Parliament
to make laws for peace, order and good government, including those
laws that provide substantive aspects of a free and democratic
society and laws
that guarantee social human
rights[610],
such as "respect for the inherent dignity of the human
person"[611].
- The
balancing exercise, constrained in the manner discussed, should not involve
rigid categories of review based on either the nature
or the extent of the
burden upon freedom of political communication. Rather, in each case, when
considering the extent to which
the freedom of political communication is
burdened, the balancing exercise should be "properly attuned to" the nature of
the freedom
and should reflect "the gravity of the threat" in the particular
case to the systemic integrity of the constitutional system of representative
and responsible
government[612].
- As
I have explained in relation to the reasonable necessity stage, when the protest
prohibition was enacted, the foreseeable burden
on freedom of political
communication was both deep and wide. However, the purpose of the protest
prohibition was of great importance
to Parliament. The protest prohibition
served the Reproductive Health Act's integral purposes of, at a lower level of
generality,
ensuring that women have access to termination services in a
confidential manner without the threat of harassment. At the higher
level of
generality, the Reproductive Health Act is concerned with basic issues of public
health. These social human rights goals involving respect for the dignity of
the human
person involve deep-seated issues of public policy within the legal
system generally.
- The
extreme importance of the protest prohibition is also apparent from the
extrinsic materials preceding the Reproductive Health Act. In those materials
it was observed that the previous law had been based on nineteenth century
United Kingdom and Irish laws that
did not recognise "safe medical practices;
community standards; and women as competent and conscientious decision
makers"[613].
The proposed changes were "part of a broader strategy to improve the sexual and
reproductive health of all Tasmanians, especially
vulnerable
populations"[614].
In the Second Reading Speech for the Reproductive Health Act, the Minister
concluded by saying
that[615]:
"Today
members are, quite simply, being asked to vote for or against women's autonomy,
to vote for or against a bill that respects
all views on terminations, and to
vote for or against a bill that acknowledges women as competent and
conscientious decision-makers
and recognises that a woman is in the best
position to make decisions affecting her future and her health."
- The
burden upon freedom of political communication cannot be said to be in gross and
manifest disproportion to the importance of
the
purpose.
Proportionality testing and different constitutional
traditions
- The
parties to and interveners in this appeal helpfully referred to a number of
cases from overseas jurisdictions. The reasoning
in other jurisdictions can
sometimes be useful in application of the tests at each of the three stages of
proportionality reasoning.
But it is necessary, at the very least, to treat
those decisions "with some
caution"[616].
Even in relation to very similar circumstances the result might appropriately be
different in other countries because of their different
legal contexts and
traditions. For instance, one contextual difference between Australia and
countries such as the United
States[617],
Canada[618],
and
Germany[619]
is that important law reform in respect of terminations in Australia has
occurred by legislation without the driving force of constitutional
decisions.
But perhaps the most significant difference between different jurisdictions is
the different weight that is afforded
to particular constitutionally protected
values. A good illustration of this is the way that the circumstances in
this appeal would
have been approached in the United States.
- The
Supreme Court of the United States does not explicitly adopt a proportionality
analysis. Instead, its First Amendment jurisprudence
has been characterised by
one writer, now Justice, as involving "increasingly technical, complex
classificatory
schemes"[620].
It has been argued that United States constitutional law developed its
"complicated, variegated approach to rights, in part because
of its deep
ambivalence toward
balancing"[621].
But balancing cannot be avoided, even if freedom of speech is thought generally
to be a constitutional trump card over other, incommensurate
values: "[e]ven
when we are most adamant in our principles, we find ourselves – as
rational beings – doing the sort
of reasoning and weighing of contrary
considerations that a belief in incommensurability is commonly thought to
preclude"[622].
Indeed, Breyer J has said that where "important interests lie on both sides
of the constitutional equation" then "the Court generally
asks whether the
statute burdens a protected interest in a way or to an extent that is out of
proportion to the statute's salutary
effects upon other important governmental
interests"[623].
This approach, which Breyer J said had been applied in various
constitutional contexts including freedom of speech cases, is functionally
identical to proportionality although it conflates reasonable necessity and
adequacy in the balance by taking into account, in one
step, "both of the
statute's effects upon the competing interests and the existence of any clearly
superior less restrictive
alternative"[624].
- Even
if the approach taken by the Supreme Court of the United States were not able to
be characterised as akin to structured proportionality,
the balancing process
that it undertakes involves affording far greater weight to the constitutional
guarantee of freedom of speech
in the First
Amendment[625]
than Australian law would afford to the implied freedom of political
communication. The circumstances of the Preston appeal are
an excellent
illustration of the different weighting that is afforded in Australia to the
freedom of political communication, which
is limited to what is necessary for
the effective operation of the constitutional system of representative and
responsible
government[626].
In contrast with the result in this case, it is almost beyond argument that
the relevant provisions of the Reproductive Health Act would be invalid on the
present approach taken by the United States Supreme Court.
- Prior
to 2014 in the United States, judicial injunctions that responded to particular
physical circumstances and were capable of
judicial expansion or contraction
when those circumstances changed had been upheld by the Supreme Court of
the United
States[627].
None of those cases is comparable with the circumstances of a general
legislative provision that extends to peaceful protests.
In one Supreme Court
decision, a limited injunction had been amended after it did not adequately
respond to specific instances at
one clinic of blocking public access and
physical
abuse[628].
In another the injunction responded to particular large-scale blockades
impairing access to four medical clinics. The police were
unable to
prevent those blockades. The conduct included grabbing, pushing, shoving,
yelling, and spitting at women who tried to
access the clinic's
services[629].
In both cases, a majority of the Supreme Court upheld part of the injunctions
but struck down certain aspects of
them[630].
- Also
prior to 2014, a law had been upheld by a slim majority of the
United States Supreme
Court[631],
where the law had only imposed particular restrictions upon knowingly
approaching within 8 ft (2.5 m) of people for the purpose
of engaging
in sidewalk counselling without their consent, inside an area of 100 ft
(30 m) of the entrance to a health care
facility[632].
Even that decision to uphold the very limited restriction on freedom of speech,
which imposed no fixed no-access zone, was said
by some commentators to be
"inexplicable on standard free-speech
grounds"[633]
and a "candidate[] for most blatantly erroneous [decision] ... slam-dunk
wrong"[634].
It was also said that if the majority had treated the law as content-based and
applied strict scrutiny to it, the law would have
been
invalid[635].
- The
only truly comparable decision of the Supreme Court of the United States
concerning access zones around premises at which terminations
are provided
involved a Massachusetts law that was held to be invalid. In that case,
McCullen v
Coakley[636],
the law imposed an access zone with a 35 ft (11 m) radius covering
public ways or sidewalks around the entrances and driveways of
the clinics. The
area was required to be clearly
marked[637].
The restriction applied only during business hours of the clinic. The
restriction was, according to a majority of the Court, content
neutral[638].
Nevertheless, the legislation was unanimously held to be contrary to the First
Amendment. Although the access zone involved only
an 11 m radius, there
was evidence that the petitioner was able to speak to "far fewer people" because
she was unable to "distinguish
patients from passersby outside the Boston clinic
in time to initiate a conversation before they enter the buffer
zone"[639].
- The
contrast between the invalid Massachusetts law and the vastly broader, but
valid, Reproductive Health Act in Tasmania demonstrates the stark difference
between the manner in which freedom of speech is approached in the United States
and
the approach to the implied freedom of political communication in Australia.
The access zone under the Reproductive Health Act covers
70,000 m2 of area. By contrast, the Massachusetts
law covered 380 m2. The
70,000 m2 access zone created by the Reproductive
Health Act is not required to be marked, with the effect that its boundaries
would not be clearly known to a protester. By contrast, the Massachusetts
law
required marking. The content of the prohibited communication in the
protest prohibition is specifically targeted towards protests
in relation to
termination. It is not content neutral in the sense in which that concept
was applied by the majority of the Supreme
Court in McCullen v Coakley;
it is concerned with "listeners' reactions to speech" so it would be subject to
strict scrutiny in the
United States[640].
By contrast, a majority of the Supreme Court held that the Massachusetts law was
content neutral. And yet, whilst the Massachusetts
law was unanimously held by
the Supreme Court of the United States to be inconsistent with the First
Amendment and invalid, the Reproductive Health Act is unanimously held by this
Court to be consistent with our constitutional tradition and
valid.
Conclusion: the orders on each appeal
- Each
of the appeals, so far as they have been removed into this Court, must be
dismissed.
[1] Abortion Law Reform Act 2008
(Vic); Reproductive Health (Access to Terminations) Act 2013
(Tas).
[2] (1997) 189 CLR 520; [1997] HCA
25.
[3] (2015) 257 CLR 178; [2015] HCA
34.
[4] (2017) 261 CLR 328; [2017] HCA
43.
[5] [2015] HCA 34; (2015) 257 CLR 178 at
193-195 [2].
[6] (2017) 261 CLR 328 at
363-364 [104].
[7] (2017) 261 CLR 328 at 398 [236],
413 [271], 416-417 [277]-[278].
[8] McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 193-195 [2] as modified by Brown v Tasmania
(2017) 261 CLR 328 at 363-364 [104]. See also (2017) 261 CLR 328 at
375-376 [155]-[156], 416 [277], 478 [481].
[9] McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 193-195 [2]- [3].
[10] Australian Capital
Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 150; [1992] HCA
45; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at
560; Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 623-624, 625-626; [1997] HCA
31; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at
223-225 [107]- [112], 246-248 [184]-[188], 298 [337], 303-304 [354]; [2004]
HCA 41; APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR
322 at 451 [381]; [2005] HCA 44; Unions NSW v New South Wales (2013) 252
CLR 530 at 551-552 [30], 554 [36], 574 [119]; [2013] HCA 58; McCloy v
New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 202-203 [30]; Brown v Tasmania
(2017) 261 CLR 328 at 359-360 [88]-[90], 407-408 [258],
430 [313], 503-504 [558]-[560].
[11] [1994] HCA 44; (1994) 182 CLR 272 at 329;
[1994] HCA 44.
[12] [2005] HCA 44; (2005) 224 CLR 322 at 451
[380]. See also at 350-351 [26]-[28], 403-404 [217]-[220], 477-478
[447]-[453].
[13] [2017] HCA 29; (2017) 261 CLR 306 at
324 [32]; [2017] HCA 29.
[14] (1954) 28 ALJ 282 at 283.
[15] [2017] HCA 29; (2017) 261 CLR 306 esp at
317 [6], 326 [37].
[16] [2017] HCA 29; (2017) 261 CLR 306 at
324 [33], citing British Medical Association v The Commonwealth
[1949] HCA 44; (1949) 79 CLR 201 at 258; [1949] HCA 44 and Tajjour v New South
Wales [2014] HCA 35; (2014) 254 CLR 508 at 585-589 [168]- [176]; [2014] HCA 35.
[17] Universal Film Manufacturing
Co (Australasia) Ltd v New South Wales [1927] HCA 50; (1927) 40 CLR 333 at 356; [1927] HCA
50. See also at 342, 350-351.
[18] Attorney-General for NSW v
Brewery Employes Union of NSW [1908] HCA 94; (1908) 6 CLR 469 at 590; [1908] HCA 94;
Lambert v Weichelt (1954) 28 ALJ 282; Chicago & Grand Trunk
Railway Co v Wellman [1892] USSC 52; (1892) 143 US 339 at 345.
[19] Re Patterson; Ex parte
Taylor (2001) 207 CLR 391 at 473 [249]; [2001] HCA 51.
[20] Attorney-General for NSW v
Brewery Employes Union of NSW [1908] HCA 94; (1908) 6 CLR 469 at 590.
[21] Unions NSW v New South Wales
(2013) 252 CLR 530 at 554 [36].
[22] Knight v Victoria [2017] HCA 29; (2017)
261 CLR 306 at 324-325 [32]- [33].
[23] Universal Film Manufacturing
Co (Australasia) Ltd v New South Wales [1927] HCA 50; (1927) 40 CLR 333 at 350-351.
[24] Lange v Australian
Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 567; Wotton v Queensland
(2012) 246 CLR 1 at 30 [78], 31 [80]; [2012] HCA 2; Unions NSW v New
South Wales (2013) 252 CLR 530 at 548-549 [19], 553-554 [35]-[36], 572
[112], 578 [135], 586 [166]; Brown v Tasmania (2017) 261 CLR 328 at
353 [61], 398-399 [237].
[25] Unions NSW v New South Wales
(2013) 252 CLR 530 at 555 [40]; Brown v Tasmania (2017) 261 CLR
328 at 360 [90], 398-399 [237].
[26] Lange v Australian
Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 561-562, 567; McCloy v New
South Wales [2015] HCA 34; (2015) 257 CLR 178 at 203 [31].
[27] Victoria, Legislative Assembly,
Parliamentary Debates (Hansard), 22 October 2015 at 3975.
[28] The Judge in a Democracy
(2006) at 85 (footnotes omitted), cited in Monis v The Queen (2013)
249 CLR 92 at 182-183 [247]; [2013] HCA 4.
[29] The Judge in a Democracy
(2006) at 86, cited in Monis v The Queen (2013) 249 CLR 92 at
182-183 [247].
[30] Lange v Australian
Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 560; Unions NSW v New
South Wales (2013) 252 CLR 530 at 548 [17]; McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 206 [42], 257 [215]-[216], 280 [303], 283-284
[317]-[318].
[31] [1997] HCA 25; (1997) 189 CLR 520 at 571.
[32] [2004] HCA 39; (2004) 220 CLR 1 at 52 [98];
[2004] HCA 39.
[33] Boughey v The Queen
(1986) 161 CLR 10 at 21; [1986] HCA 29.
[34] cf McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 206-207 [42]- [45], 220-221 [93].
[35] McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 201 [24]. See also Brown v Tasmania (2017) 261
CLR 328 at 369 [127].
[36] Brown v Tasmania (2017)
261 CLR 328 at 370 [130].
[37] McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 213 [68]; Brown v Tasmania (2017) 261 CLR
328 at 369 [127].
[38] [1997] HCA 25; (1997) 189 CLR 520 at 569, 575.
See also McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 214-215 [71].
[39] [2015] HCA 34; (2015) 257 CLR 178 at 218
[86].
[40] Lange v Australian
Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 569, 575. See also McCloy
v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 214-215 [71].
[41] (2017) 261 CLR 328 at 365
[109].
[42] Brown v Tasmania (2017)
261 CLR 328 at 422-423 [290].
[43] Brown v Tasmania (2017)
261 CLR 328 at 422-423 [290]. See also McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 219-220 [89]- [92].
[44] [2015] HCA 34; (2015) 257 CLR 178 at 220
[90].
[45] [1978] HCA 43; (1978) 142 CLR 1 at 39, 43;
[1978] HCA 43. See also at 63-64, 98-99.
[46] [1987] HCA 56; (1987) 164 CLR 15 at 85-87;
[1987] HCA 56. See also at 26-27, 41-43, 50, 75.
[47] [2011] HCA 4; (2011) 243 CLR 506 at 536-537
[32]; [2011] HCA 4.
[48] [2015] HCA 34; (2015) 257 CLR 178 at 219
[87].
[49] (1990) 169 CLR 436; [1990] HCA
1.
[50] [1997] HCA 25; (1997) 189 CLR 520 at 562.
[51] cf Unions NSW v New South
Wales (2013) 252 CLR 530 at 576 [129].
[52] McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 216 [75]; Brown v Tasmania (2017) 261 CLR 328
at 369 [125].
[53] McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 216 [75]; Brown v Tasmania (2017) 261 CLR 328
at 369 [125].
[54] Citing Brown v Tasmania
(2017) 261 CLR 328 at 462 [420].
[55] (2017) 261 CLR 328 at
400 [240].
[56] Victoria, Legislative Assembly,
Parliamentary Debates (Hansard), 22 October 2015 at 3976.
[57] Unions NSW v New South Wales
(2013) 252 CLR 530 at 557-558 [50]-[55], 561 [64], 579 [140]-[141];
McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 217 [80].
[58] Hill v Colorado [2000] USSC 62; (2000)
530 US 703 at 728-729.
[59] (1996) 139 DLR (4th) 480 at 493
[32]. See also R v Spratt (2008) 298 DLR (4th) 317 at 338-339
[80]-[81].
[60] R v Spratt (2008) 298
DLR (4th) 317 at 338 [80].
[61] Victoria, Legislative Assembly,
Parliamentary Debates (Hansard), 22 October 2015 at 3973.
[62] He Kaw Teh v The Queen
[1985] HCA 43; (1985) 157 CLR 523 at 528-529, 546, 549-550, 574, 591-592; [1985] HCA
43.
[63] Lange v Australian
Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 567-568.
[64] (2017) 261 CLR 328 at 415
[275].
[65] McClure v Australian
Electoral Commission [1999] HCA 31; (1999) 73 ALJR 1086 at 1090 [28]; [1999] HCA 31; 163 ALR 734 at
740-741; [1999] HCA 31; Mulholland v Australian Electoral Commission
[2004] HCA 41; (2004) 220 CLR 181 at 245-246 [182]; Attorney-General (SA) v Adelaide
City Corporation [2013] HCA 3; (2013) 249 CLR 1 at 37 [54]; [2013] HCA 3; Monis v
The Queen (2013) 249 CLR 92 at 206-207 [324]. See and compare Cox v
Louisiana [1965] USSC 6; (1965) 379 US 536 at 553-556; Frisby v Schultz [1988] USSC 146; (1988)
487 US 474 at 484-488; Hill v Colorado [2000] USSC 62; (2000) 530 US 703 at 715-718;
McCullen v Coakley (2014) 134 S Ct 2518 at 2545-2546.
[66] Hill v Colorado [2000] USSC 62; (2000)
530 US 703 at 729; Ontario (Attorney-General) v Dieleman (1994) 117 DLR
(4th) 449 at 723-724; R v Spratt (2008) 298 DLR (4th) 317 at 339-340
[82]-[84].
[67] McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 206-207 [42]- [45], 220-221 [93].
[68] McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 221 [93].
[69] (1996) 139 DLR (4th) 480 at 512
[108].
[70] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 44.
[71] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 50-51.
[72] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 51.
[73] Knight v Victoria [2017] HCA 29; (2017)
261 CLR 306 at 324 [32]; [2017] HCA 29, quoting Lambert v Weichelt (1954)
28 ALJ 282 at 283.
[74] Liverpool, New York &
Philadelphia Steamship Co v Commissioners of Emigration [1885] USSC 11; (1885) 113 US 33 at
39, quoted in United States v Raines (1960) 362 US 17 at 21 and
Washington State Grange v Washington State Republican Party (2008) 552 US
442 at 450.
[75] Mellifont v Attorney-General
(Q) [1991] HCA 53; (1991) 173 CLR 289 at 303-305; [1991] HCA 53, explaining In re
Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 266-267; [1921] HCA
20.
[76] Fencott v Muller (1983)
152 CLR 570 at 608-609; [1983] HCA 12.
[77] cf Kuczborski v Queensland
[2014] HCA 46; (2014) 254 CLR 51 at 109 [184]; [2014] HCA 46.
[78] Residual Assco Group Ltd v
Spalvins [2000] HCA 33; (2000) 202 CLR 629 at 644 [28]; [2000] HCA 33, referring to
Davies and Jones v Western Australia [1904] HCA 46; (1904) 2 CLR 29 at 43; [1904] HCA
46, Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 at 180;
[1926] HCA 58, Attorney-General (Vict) v The Commonwealth [1945] HCA 30; (1945) 71 CLR
237 at 267; [1945] HCA 30 and Chu Kheng Lim v Minister for
Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 14;
[1992] HCA 64.
[79] Acts Interpretation Act
1930 (Cth). See earlier s 2(2) of the Navigation Act 1912
(Cth), considered in Newcastle and Hunter River Steamship Co Ltd v
Attorney-General for the Commonwealth [1921] HCA 31; (1921) 29 CLR 357 at 369-370; [1921]
HCA 31. See also Harrington v Lowe (1996) 190 CLR 311 at 326-327; [1996]
HCA 8.
[80] Acts Interpretation Act 1915
(SA), s 22A; Acts Interpretation Act 1931 (Tas), s 3;
Acts Interpretation Act 1954 (Qld), s 9(2); Interpretation
Act (NT), s 59; Interpretation Act 1984 (WA), s 7;
Interpretation Act 1987 (NSW), s 31(2); Legislation Act 2001
(ACT), s 120(2)-(3).
[81] Bank of New South Wales v
The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 371; [1948] HCA 7.
[82] R v Poole; Ex parte
Henry [No 2] [1939] HCA 19; (1939) 61 CLR 634 at 651; [1939] HCA 19.
[83] R v Poole; Ex parte Henry
[No 2] [1939] HCA 19; (1939) 61 CLR 634 at 652.
[84] (2004) 220 CLR 1; [2004] HCA
39.
[85] [2004] HCA 39; (2004) 220 CLR 1 at 76-79
[188]- [200], 98-99 [254]-[256].
[86] [2004] HCA 39; (2004) 220 CLR 1 at 55-56
[110].
[87] [1939] HCA 19; (1939) 61 CLR 634 at 651.
[88] [1945] HCA 49; (1945) 70 CLR 100 at 127;
[1945] HCA 49.
[89] [1948] HCA 7; (1948) 76 CLR 1 at 370.
[90] See generally Stern,
"Separability and Separability Clauses in the Supreme Court" (1937) 51
Harvard Law Review 76 at 115-125.
[91] See Fallon, "Fact and Fiction
About Facial Challenges" (2011) 99 California Law Review 915.
[92] Brockett v Spokane Arcades
Inc [1985] USSC 163; (1985) 472 US 491 at 502, quoting United States v Raines (1960)
362 US 17 at 21-22.
[93] Brockett v Spokane Arcades
Inc [1985] USSC 163; (1985) 472 US 491 at 502, quoting Allen v Louisiana [1880] USSC 6; (1881) 103 US
80 at 83-84.
[94] [2014] HCA 35; (2014) 254 CLR 508 at 586-587
[172]; [2014] HCA 35.
[95] [1966] HCA 26; (1966) 114 CLR 361 at 371;
[1966] HCA 26.
[96] (1988) 165 CLR 360; [1988] HCA
18.
[97] [2014] HCA 35; (2014) 254 CLR 508 at 589
[176].
[98] Victoria v The Commonwealth
(Industrial Relations Act Case) (1996) 187 CLR 416 at 502; [1996] HCA 56,
referring to Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 at 108; [1943]
HCA 37.
[99] Victoria v The Commonwealth
(Industrial Relations Act Case) (1996) 187 CLR 416 at 502; Bank of New
South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 371.
[100] Victoria v The
Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at
502-503.
[101] Australian National
Airways Pty Ltd v The Commonwealth [1945] HCA 41; (1945) 71 CLR 29 at 93; [1945] HCA
41.
[102] Knight v Victoria
[2017] HCA 29; (2017) 261 CLR 306 at 325 [35], quoting Victoria v The Commonwealth
(Industrial Relations Act Case) (1996) 187 CLR 416 at 502 and Pidoto v
Victoria [1943] HCA 37; (1943) 68 CLR 87 at 108.
[103] R v Poole; Ex parte Henry
[No 2] [1939] HCA 19; (1939) 61 CLR 634 at 652.
[104] Thomas v Mowbray
[2007] HCA 33; (2007) 233 CLR 307 at 514-522 [620]- [639]; [2007] HCA 33; Maloney v The
Queen (2013) 252 CLR 168 at 298-299 [351], [355]; [2013] HCA 28.
[105] Section 72 of the
Criminal Procedure Act 2009 (Vic).
[106] Dowling v Bowie
[1952] HCA 63; (1952) 86 CLR 136 at 139-140; [1952] HCA 63; Ex parte Ferguson; Re Alexander
[1944] NSWStRp 44; (1944) 45 SR (NSW) 64 at 66-67.
[107] cf APLA Ltd v Legal
Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322 at 351 [28]; [2005]
HCA 44.
[108] Police v Preston and
Stallard (unreported, Magistrates Court of Tasmania, 27 July 2016).
[109] McCloy v New South
Wales [2015] HCA 34; (2015) 257 CLR 178 at 213 [68]; [2015] HCA 34; Murphy v Electoral
Commissioner (2016) 261 CLR 28 at 52 [37], 60-61 [62]; [2016] HCA 36.
[110] Jacobs, "The Successor Books
to 'The Province and Function of Law' – Lawyers' Reasonings: Some
Extra-judicial Reflections"
[1967] SydLawRw 4; (1967) 5 Sydney Law Review 425 at 428, quoted
in Stellios, Zines's The High Court and the Constitution, 6th ed (2015)
at 674.
[111] McCloy v New South
Wales [2015] HCA 34; (2015) 257 CLR 178 at 234-238 [140]- [149]; Murphy v Electoral
Commissioner (2016) 261 CLR 28 at 71-72 [99]-[101]; Brown v Tasmania
(2017) 261 CLR 328 at 376-377 [157]-[161]; [2017] HCA 43.
[112] Tajjour v New South
Wales [2014] HCA 35; (2014) 254 CLR 508 at 576-581 [139]- [152]; McCloy v New South
Wales [2015] HCA 34; (2015) 257 CLR 178 at 222-234 [99]- [139], 238-239 [150]-[154];
Brown v Tasmania (2017) 261 CLR 328 at 377-379 [162]-[166].
[113] (2017) 261 CLR 328 at
377-379 [162]-[166].
[114] Munson, The Making of
Pro-life Activists (2008) at 77-89.
[115] Roe v Wade [1973] USSC 43; (1973) 410
US 113.
[116] R v Morgentaler
[1988] 1 SCR 30.
[117] See Victorian Law Reform
Commission, Law of Abortion: Final Report (2008) at 142-147.
[118] Criminal Code Amendment
Act (No 2) 2001 (Tas).
[119] Sections 178D and 178E of
the Criminal Code (Tas).
[120] Drabsch, Abortion and the
law in New South Wales, New South Wales Parliamentary Library Research
Service, Briefing Paper No 9/05 (2005) at 58-59.
[121] Police v Preston and
Stallard (unreported, Magistrates Court of Tasmania, 27 July 2016) at
[27].
[122] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 50.
[123] cf Brown v Tasmania
(2017) 261 CLR 328 at 346 [32].
[124] (2017) 261 CLR 328 at 389
[199].
[125] eg, Hogan v Hinch
[2011] HCA 4; (2011) 243 CLR 506 at 555-556 [95]- [99]; [2011] HCA 4.
[126] Wotton v Queensland
(2012) 246 CLR 1 at 16 [30]; [2012] HCA 2.
[127] Brown v Tasmania
(2017) 261 CLR 328 at 378 [164]. See also McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 214 [70], 238-239 [150]-[152].
[128] Meiklejohn, Political
Freedom (1960) at 79, quoted in Theophanous v Herald & Weekly Times
Ltd [1994] HCA 46; (1994) 182 CLR 104 at 124; [1994] HCA 46.
[129] (1992) 177 CLR 1; [1992] HCA
46.
[130] (1992) 177 CLR 106; [1992]
HCA 45.
[131] Roach v Electoral
Commissioner [2007] HCA 43; (2007) 233 CLR 162 at 178 [17]; [2007] HCA 43. See also
McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 229 [120].
[132] eg, Ward v Rock Against
Racism [1989] USSC 161; (1989) 491 US 781 at 791, citing Clark v Community for Creative
Non-Violence [1984] USSC 161; (1984) 468 US 288 at 293.
[133] eg, United States v
Playboy Entertainment Group Inc [2000] USSC 46; (2000) 529 US 803 at 813.
[134] [1992] HCA 45; (1992) 177 CLR 106 at
143-144.
[135] [1997] HCA 31; (1997) 189 CLR 579 at
618-619; [1997] HCA 31, referring to Australian Capital Television Pty Ltd v
The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 143, 169, 234-235, Nationwide News
Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at 76-77, Cunliffe v The
Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 299-300, 337-339, 388; [1994] HCA 44 and
Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 126-128; [1997] HCA 27.
[136] [2004] HCA 41; (2004) 220 CLR 181 at 200
[40]; [2004] HCA 41.
[137] [2011] HCA 4; (2011) 243 CLR 506 at
555-556 [95]- [99].
[138] [1997] HCA 31; (1997) 189 CLR 579 at 614.
See also at 597-598, 619-620, 627-628, 647-648.
[139] (2013) 249 CLR 1; [2013] HCA
3.
[140] [2013] HCA 3; (2013) 249 CLR 1 at 64
[141]. See also at 44 [68], 84 [203], 90 [224].
[141] Madsen v Women's Health
Center Inc (1994) 512 US 753; Schenck v Pro-Choice Network of Western New
York [1997] USSC 17; (1997) 519 US 357; Hill v Colorado [2000] USSC 62; (2000) 530 US 703;
McCullen v Coakley (2014) 134 S Ct 2518.
[142] McCullen v Coakley
(2014) 134 S Ct 2518 at 2531.
[143] McCullen v Coakley
(2014) 134 S Ct 2518 at 2543.
[144] R v Lewis (1996) 139
DLR (4th) 480; R v Spratt (2008) 298 DLR (4th) 317.
[145] (2017) 261 CLR 328 at
390-391 [203]-[204].
[146] Cunliffe v The
Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 300.
[147] Brown v Tasmania
(2017) 261 CLR 328 at 391-392 [208]-[209].
[148] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 50.
[149] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 51.
[150] Quoting Levy v
Victoria [1997] HCA 31; (1997) 189 CLR 579 at 608.
[151] [2004] HCA 39; (2004) 220 CLR 1 at 45-46
[81], 77 [193], 87 [226]. See also Roach v Electoral Commissioner [2007] HCA 43; (2007)
233 CLR 162 at 200 [87].
[152] (2013) 249 CLR 92 at 133-134
[73], 139-140 [97], 178 [236]; [2013] HCA 4.
[153] (2017) 261 CLR 328 at 415
[275].
[154] Hill v Colorado
[2000] USSC 62; (2000) 530 US 703 at 716.
[155] [2000] USSC 62; (2000) 530 US 703 at 717 n
24, referring to Katz v United States [1967] USSC 262; (1967) 389 US 347 at 350-351. See
generally at 716-718.
[156] See "Too Close for Comfort:
Protesting Outside Medical Facilities" (1988) 101 Harvard Law Review 1856
at 1863-1866; Phillipps, "The Unavoidable Implication of McCullen v
Coakley: Protection Against Unwelcome Speech Is Not A Sufficient
Justification For Restricting Speech in Traditional Public Fora" (2015)
47
Connecticut Law Review 937 at 944-950.
[157] Compare R v Martin; Ex
parte Wawn (1939) 62 CLR 457; [1939] HCA 39 and Mansell v Beck (1956)
95 CLR 550; [1956] HCA 70 with Betfair Pty Ltd v Western Australia (2008)
234 CLR 418; [2008] HCA 11.
[158] (1996) 139 DLR (4th) 480 at
508-511 [87]-[102].
[159] (2008) 298 DLR (4th) 317 at
327 [32], 336-337 [71], [75].
[160] Madsen v Women's Health
Center Inc (1994) 512 US 753 at 767-768; Schenck v Pro-Choice Network of
Western New York [1997] USSC 17; (1997) 519 US 357 at 376; Hill v Colorado [2000] USSC 62; (2000) 530
US 703; McCullen v Coakley (2014) 134 S Ct 2518.
[161] (2008) 298 DLR (4th) 317 at
338-339 [80]-[81] (emphasis in original).
[162] Section 2(1)(b) of the
Access to Abortion Services Act, RSBC 1996, c 1.
[163] (2008) 298 DLR (4th) 317 at
322 [14].
[164] Colorado Revised Statutes,
(1999) §18-9-122(3).
[165] (2014) 134 S Ct 2518.
[166] Massachusetts General Laws
(2012), ch 266, §§120E½(a), (b).
[167] (1994) 512 US 753.
[168] [1997] USSC 17; (1997) 519 US 357.
[169] Dulgheriu v Ealing London
Borough Council [2018] 4 All ER 881.
[170] [2018] 4 All ER 881 at 887
[13], 906 [89].
[171] European Court of Human
Rights, Fifth Section, Application No 3690/10, 26 November 2015.
[172] European Court of Human
Rights, Fifth Section, Application No 3690/10, 26 November 2015 at 16
[64].
[173] cf Levy v Victoria
[1997] HCA 31; (1997) 189 CLR 579 at 598.
[174] cf Murphy v Electoral
Commissioner (2016) 261 CLR 28 at 53 [39], 74 [110].
[175] McGinty v Western
Australia [1996] HCA 48; (1996) 186 CLR 140 at 286; [1996] HCA 48; McCloy v New South
Wales [2015] HCA 34; (2015) 257 CLR 178 at 227-228 [114]- [118].
[176] [1992] HCA 45; (1992) 177 CLR 106 at
144.
[177] Police v Preston and
Stallard (unreported, Magistrates Court of Tasmania, 27 July 2016) at
[53]-[54].
[178] [2014] HCA 35; (2014) 254 CLR 508 at
586-589 [170]- [176]; [2014] HCA 35.
[179] Cam & Sons Pty Ltd v
The Chief Secretary of New South Wales [1951] HCA 59; (1951) 84 CLR 442 at 454, 455 per
Dixon, Williams, Webb, Fullagar and Kitto JJ; [1951] HCA 59; Carter v The
Potato Marketing Board [1951] HCA 60; (1951) 84 CLR 460 at 477, 478; [1951] HCA 60;
Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6; (1955) 93 CLR 55 at 73 per
Dixon CJ, McTiernan, Webb and Kitto JJ, 82 per Fullagar J; [1955] HCA 6;
Nominal Defendant v Dunstan [1963] HCA 5; (1963) 109 CLR 143 at 151-152; [1963] HCA 5;
Harper v Victoria [1966] HCA 26; (1966) 114 CLR 361 at 371, 372-373 per Barwick CJ;
[1966] HCA 26; Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 122-123 per Gibbs
J, 131-132 per Mason J; [1976] HCA 24.
[180] [2017] HCA 29; (2017) 261 CLR 306 at
324-326 [30]- [37]; [2017] HCA 29.
[181] [1948] HCA 7; (1948) 76 CLR 1 at 369;
[1948] HCA 7. See also Wilcox Mofflin Ltd v New South Wales (1952) 85
CLR 488; [1952] HCA 17.
[182] [1951] HCA 59; (1951) 84 CLR 442.
[183] [1951] HCA 59; (1951) 84 CLR 442 at
454.
[184] [1951] HCA 59; (1951) 84 CLR 442 at
455.
[185] [1951] HCA 60; (1951) 84 CLR 460.
[186] [1951] HCA 60; (1951) 84 CLR 460 at
477.
[187] [1951] HCA 60; (1951) 84 CLR 460 at
484.
[188] [1951] HCA 60; (1951) 84 CLR 460 at 478.
See also Chapman v Suttie [1963] HCA 9; (1963) 110 CLR 321 at 325, 328-333 per Dixon
CJ, dissenting in part; [1963] HCA 9.
[189] [1951] HCA 60; (1951) 84 CLR 460 at
479.
[190] [1951] HCA 60; (1951) 84 CLR 460 at 484,
489.
[191] [1955] HCA 6; (1955) 93 CLR 55.
[192] [1955] HCA 6; (1955) 93 CLR 55 at 73.
[193] [1955] HCA 6; (1955) 93 CLR 55 at
75-76.
[194] [1955] HCA 6; (1955) 93 CLR 55 at 82.
[195] [1963] HCA 5; (1963) 109 CLR 143.
[196] [1963] HCA 5; (1963) 109 CLR 143 at
151-152.
[197] [1966] HCA 26; (1966) 114 CLR 361.
[198] [1966] HCA 26; (1966) 114 CLR 361 at
371-373.
[199] [1976] HCA 24; (1976) 135 CLR 110.
[200] [1976] HCA 24; (1976) 135 CLR 110 at
131.
[201] [1976] HCA 24; (1976) 135 CLR 110 at
132.
[202] [1976] HCA 24; (1976) 135 CLR 110 at 127,
130.
[203] [1976] HCA 24; (1976) 135 CLR 110 at
125-126.
[204] Wilcox Mofflin [1952] HCA 17; (1952)
85 CLR 488 at 520 per Dixon, McTiernan and Fullagar JJ.
[205] [1976] HCA 24; (1976) 135 CLR 110 at
126.
[206] (1954) 28 ALJ 282 at
283.
[207] [2017] HCA 29; (2017) 261 CLR 306.
[208] Kable v Director of
Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24.
[209] Interpretation of
Legislation Act, s 4(1)(a).
[210] Cam & Sons [1951] HCA 59; (1951)
84 CLR 442 at 454 per Dixon, Williams, Webb, Fullagar and Kitto JJ. See
also R v Poole; Ex parte Henry [No 2] [1939] HCA 19; (1939) 61 CLR 634 at 652 per
Dixon J; [1939] HCA 19; Knight [2017] HCA 29; (2017) 261 CLR 306 at 325 [35].
[211] Lange v Australian
Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 560; [1997] HCA 25. See also
Australian Capital Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR
106 at 234 per McHugh J; [1992] HCA 45; McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 193-194
[2], 206 [42] per French CJ, Kiefel, Bell and Keane JJ, 228 [118] per
Gageler J, 280 [303] per Gordon J; [2015] HCA 34.
[212] Theophanous v Herald
& Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 123 per Mason CJ, Toohey
and Gaudron JJ; [1994] HCA 46; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR
272 at 329 per Brennan J; [1994] HCA 44; Lange [1997] HCA 25; (1997) 189 CLR
520 at 560; Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 594-595 per
Brennan CJ, 613 per Toohey and Gummow JJ, 622-626 per McHugh J,
638 per Kirby J; [1997] HCA 31; Australian Broadcasting
Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at
281-282 [195]-[199] per Kirby J; [2001] HCA 63; Coleman v Power [2004] HCA 39; (2004)
220 CLR 1 at 30-31 [27]- [28] per Gleeson CJ, 45-46 [81]-[82] per McHugh J, 78
[197] per Gummow and Hayne JJ, 88-89 [229] per Kirby J; [2004] HCA 39;
Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at
195-196 [27]- [30] per Gleeson CJ, 219 [94] per McHugh J, 274-275 [273]-[274] per
Kirby J, 304-305 [355] per Heydon J; [2004] HCA 41; APLA Ltd v Legal Services
Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322 at 350-351 [27]- [28] per
Gleeson CJ and Heydon J, 360-361 [63]-[67] per McHugh J, 440
[347] per Kirby J, 450-451 [379]-[380] per Hayne J, 477-478 [450]
per
Callinan J; [2005] HCA 44; Wotton v Queensland (2012) 246 CLR 1 at 15
[26]-[27] per French CJ, Gummow, Hayne, Crennan and Bell JJ, 21-22
[46]-[51] per Heydon J, 31 [79] per Kiefel
J; [2012] HCA 2;
Unions NSW v New South Wales (2013) 252 CLR 530 at 548-552 [18]-[30]
per French CJ, Hayne, Crennan, Kiefel and Bell JJ, 572 [112] per
Keane J; [2013] HCA 58.
[213] Crimes Act 1958
(Vic), s 458. On the meaning of "reasonable grounds", see George v
Rockett (1990) 170 CLR 104; [1990] HCA 26; Prior v Mole [2017] HCA 10; (2017)
261 CLR 265 at 270 [4] per Kiefel CJ and Bell J, 277 [24] per
Gageler J, 292 [73] per Nettle J, 298 [98]-[100] per Gordon J;
[2017] HCA 10.
[214] (2009) 240 CLR 319 at 349
[42]; [2009] HCA 49.
[215] Allied Interstate (Qld)
Pty Ltd v Barnes [1968] HCA 76; (1968) 118 CLR 581 at 593-594 per Windeyer J; [1968] HCA
76. See and compare Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at
258-259 per Dawson, Toohey and Gaudron JJ; [1990] HCA 41.
[216] See generally Glanville
Williams, Criminal Law: The General Part, 2nd ed (1961) at 909-910
§295; Fisse, Howard's Criminal Law, 5th ed (1990) at 19-22.
[217] Criminal Procedure Act
2009 (Vic), s 272(1); Supreme Court (Criminal Procedure) Rules 2017
(Vic), r 3A.02.
[218] Supreme Court Act
1986 (Vic), ss 10(1)(a), 14A.
[219] See and compare Thomas v
Mowbray [2007] HCA 33; (2007) 233 CLR 307 at 515-516 [624] per Heydon J; [2007]
HCA 33.
[220] He Kaw Teh v The
Queen [1985] HCA 43; (1985) 157 CLR 523 at 528-529 per Gibbs CJ (Mason J agreeing
at 546), 566-567 per Brennan J; [1985] HCA 43.
[221] Victoria, Legislative
Assembly, Parliamentary Debates (Hansard), 22 October 2015 at
3973.
[222] See also Victoria,
Legislative Assembly, Parliamentary Debates (Hansard), 22 October
2015 at 3976.
[223] He Kaw Teh [1985] HCA 43; (1985) 157
CLR 523 at 534-535 per Gibbs CJ, 558-559 per Wilson J, 573 per Brennan
J, 592-593 per Dawson J.
[224] cf the specific intent
required by para (d): "intentionally recording by any means, without reasonable
excuse".
[225] See and compare He Kaw
Teh [1985] HCA 43; (1985) 157 CLR 523 at 595 per Dawson J.
[226] He Kaw Teh [1985] HCA 43; (1985) 157
CLR 523 at 534-535 per Gibbs CJ, 558-559 per Wilson J, 573 per Brennan
J, 592-593 per Dawson J.
[227] Lange [1997] HCA 25; (1997) 189 CLR
520 at 567.
[228] Lange [1997] HCA 25; (1997) 189 CLR
520 at 571; Levy [1997] HCA 31; (1997) 189 CLR 579 at 622 per McHugh J; Unions
NSW (2013) 252 CLR 530 at 550-551 [25]-[26] per French CJ, Hayne, Crennan,
Kiefel and Bell JJ, 582 [152]-[154] per Keane J.
[229] Unions NSW (2013) 252
CLR 530 at 554 [36] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.
[230] APLA [2005] HCA 44; (2005) 224 CLR
322 at 451 [381] per Hayne J; Wotton (2012) 246 CLR 1 at 31 [80] per
Kiefel J; Unions NSW (2013) 252 CLR 530 at 553-554 [35]-[36] per French
CJ, Hayne, Crennan, Kiefel and Bell JJ, 574 [119] per Keane J; Brown v
Tasmania (2017) 261 CLR 328 at 360 [90] per Kiefel CJ, Bell and
Keane JJ; [2017] HCA 43.
[231] Lange [1997] HCA 25; (1997) 189 CLR
520 at 565-566.
[232] Theophanous [1994] HCA 46; (1994)
182 CLR 104 at 124 per Mason CJ, Toohey and Gaudron JJ; Hogan v
Hinch [2011] HCA 4; (2011) 243 CLR 506 at 543-544 [49] per French CJ;
[2011] HCA 4.
[233] Monis v The Queen
(2013) 249 CLR 92 at 177 [229] per Hayne J; [2013] HCA 4.
[234] APLA [2005] HCA 44; (2005) 224 CLR
322 at 449-451 [377]- [379] per Hayne J.
[235] Monis (2013) 249 CLR
92 at 142 [108] per Hayne J, 212-213 [343] per Crennan, Kiefel and
Bell JJ; Unions NSW (2013) 252 CLR 530 at 555 [40] per
French CJ, Hayne, Crennan, Kiefel and Bell JJ, 574 [119] per
Keane J; Tajjour [2014] HCA 35; (2014) 254 CLR 508 at 569-570 [105]- [107] per
Crennan, Kiefel and Bell JJ; McCloy [2015] HCA 34; (2015) 257 CLR 178 at 230-231
[126] per Gageler J.
[236] See, eg, Australian
Capital Television [1992] HCA 45; (1992) 177 CLR 106; Levy [1997] HCA 31; (1997) 189 CLR 579;
Brown (2017) 261 CLR 328.
[237] cf Australian Capital
Television [1992] HCA 45; (1992) 177 CLR 106 at 145-146 per Mason CJ; Levy
[1997] HCA 31; (1997) 189 CLR 579 at 613-614 per Toohey and Gummow JJ, 623-625 per
McHugh J; Brown (2017) 261 CLR 328 at 400 [240], 407-408 [258] per
Nettle J.
[238] Cattanach v Melchior
[2003] HCA 38; (2003) 215 CLR 1 at 80 [221] per Hayne J; [2003] HCA 38.
[239] (2013) 249 CLR 92 at 177
[229].
[240] Tajjour [2014] HCA 35; (2014) 254
CLR 508 at 582 [155]- [156] per Gageler J, 604 [234] per Keane J. See
also Betfair Pty Ltd v Racing New South Wales [2012] HCA 12; (2012) 249 CLR 217 at 268
[46] per French CJ, Gummow, Hayne, Crennan and Bell JJ; [2012] HCA
12.
[241] Monis (2013) 249 CLR
92 at 145-146 [118]-[122], 160-161 [173]-[174] per Hayne J; Unions
NSW (2013) 252 CLR 530 at 555 [40] per French CJ, Hayne, Crennan, Kiefel and
Bell JJ; Tajjour [2014] HCA 35; (2014) 254 CLR 508 at 578 [145] per Gageler J;
Brown (2017) 261 CLR 328 at 382-383 [180] per Gageler J, 398-399
[237] per Nettle J, 431 [316] per Gordon J.
[242] (2013) 249 CLR 92 at 145
[120].
[243] Lange [1997] HCA 25; (1997) 189 CLR
520 at 561, 567-568.
[244] [1997] HCA 25; (1997) 189 CLR 520. See
McCloy [2015] HCA 34; (2015) 257 CLR 178 at 193-194 [2] per French CJ, Kiefel,
Bell and Keane JJ.
[245] (2017) 261 CLR 328 at
363-364 [104] per Kiefel CJ, Bell and Keane JJ, 375-376 [155]-[156]
per Gageler J, 416 [277] per Nettle J,
478 [481] per Gordon J.
[246] (2017) 261 CLR 328 at
362-363 [100] per Kiefel CJ, Bell and Keane JJ.
[247] Unions NSW (2013) 252
CLR 530 at 557 [50] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.
[248] CIC Insurance Ltd v
Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ,
Dawson, Toohey and Gummow JJ; [1997] HCA 2; McCloy [2015] HCA 34; (2015) 257 CLR
178 at 232 [132] per Gageler J; Brown (2017) 261 CLR 328 at 392
[209] per Gageler J.
[249] Victoria, Legislative
Assembly, Parliamentary Debates (Hansard), 22 October 2015 at
3972-3973, 3975.
[250] Brown (2017) 261 CLR
328 at 414-415 [275] per Nettle J.
[251] Brown (2017) 261 CLR
328 at 415 [275] per Nettle J.
[252] Nationwide News Pty Ltd v
Wills [1992] HCA 46; (1992) 177 CLR 1 at 77 per Deane and Toohey JJ; [1992] HCA 46;
Australian Capital Television [1992] HCA 45; (1992) 177 CLR 106 at 169 per Deane and
Toohey JJ; Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 178-179 per
Deane J. See also Levy [1997] HCA 31; (1997) 189 CLR 579 at 608-609 per
Dawson J. See and compare Monis (2013) 249 CLR 92 at 182-183 [247]
per Heydon J.
[253] Monis (2013) 249 CLR
92 at 146-147 [124] per Hayne J.
[254] See Australian Capital
Television [1992] HCA 45; (1992) 177 CLR 106 at 159 per Brennan J; Cunliffe
[1994] HCA 44; (1994) 182 CLR 272 at 325 per Brennan J. See generally Arai-Takahashi,
The Margin of Appreciation Doctrine and the Principle of Proportionality in
the Jurisprudence of the ECHR (2002).
[255] Unions NSW (2013) 252
CLR 530 at 553 [34] per French CJ, Hayne, Crennan, Kiefel and Bell JJ;
McCloy [2015] HCA 34; (2015) 257 CLR 178 at 220 [92] per Gageler J;
Murphy v Electoral Commissioner (2016) 261 CLR 28 at 124
[304] per Gordon J; [2016] HCA 36.
[256] Brown (2017) 261 CLR
328 at 369 [128] per Kiefel CJ, Bell and Keane JJ.
[257] See [278] and [284]
below.
[258] See [261] above.
[259] [2015] HCA 34; (2015) 257 CLR 178 at
194-195 [2]- [3] per French CJ, Kiefel, Bell and Keane JJ.
[260] (2017) 261 CLR 328 at
368-370 [123]-[131] per Kiefel CJ, Bell and Keane JJ, 416-417
[278]-[280] per Nettle J.
[261] (2017) 261 CLR 328 at
416-417 [278]-[280] per Nettle J.
[262] (2017) 261 CLR 328 at
418-419 [282].
[263]
McCloy [2015] HCA 34; (2015) 257 CLR 178 at 193-195 [2], 217
[79] per French CJ, Kiefel, Bell and Keane JJ; Brown (2017) 261 CLR
328 at 368 [123] per Kiefel CJ, Bell and Keane JJ, 416-417 [278]-[280] per
Nettle J.
[264] Tajjour [2014] HCA 35; (2014) 254
CLR 508 at 563 [82] per Hayne J; McCloy [2015] HCA 34; (2015) 257 CLR 178 at 217
[80] per French CJ, Kiefel, Bell and Keane JJ.
[265] Davis v The
Commonwealth [1988] HCA 63; (1988) 166 CLR 79 at 99-100 per Mason CJ, Deane and Gaudron JJ
(Wilson and Dawson JJ agreeing at 101); [1988] HCA 63.
[266] Nationwide News
[1992] HCA 46; (1992) 177 CLR 1 at 78 per Deane and Toohey JJ, 101-102 per
McHugh J; Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 324 per Brennan J.
See and compare Attorney-General (SA) v Adelaide City Corporation [2013] HCA 3; (2013)
249 CLR 1 at 39-40 [58]- [59] per French CJ; [2013] HCA 3.
[267] (2017) 261 CLR 328 at
418-419 [282].
[268] See and compare Cunliffe
[1994] HCA 44; (1994) 182 CLR 272 at 388 per Gaudron J. See also Australian
Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 253-254 per
Fullagar J; [1951] HCA 5; The Commonwealth v Tasmania [1983] HCA 21; (1983) 158
CLR 1 at 260-261 per Deane J; [1983] HCA 21; Castlemaine Tooheys
Ltd v South Australia (1990) 169 CLR 436 at 472-473 per Mason CJ, Brennan,
Deane, Dawson and Toohey JJ; [1990] HCA 1.
[269] Maloney v The Queen
(2013) 252 CLR 168 at 183-185 [19]-[21] per French CJ; [2013] HCA 28.
[270] Murphy (2016) 261 CLR
28 at 53 [39] per French CJ and Bell J.
[271] See Murphy (2016) 261
CLR 28 at 110-111 [251]-[254] per Nettle J. See also Bilchitz, "Necessity
and Proportionality: Towards A Balanced Approach?",
in Lazarus, McCrudden and
Bowles (eds), Reasoning Rights: Comparative Judicial Engagement (2014)
41.
[272] [1992] HCA 45; (1992) 177 CLR 106 at 145
per Mason CJ, 239-240 per McHugh J.
[273] (2019) 93 ALJR 166; 363 ALR
1; [2019] HCA 1.
[274] (2017) 261 CLR 328 at
422-423 [290].
[275] McCloy [2015] HCA 34; (2015) 257 CLR
178 at 219 [87] per French CJ, Kiefel, Bell and Keane JJ.
[276] Brown (2017) 261 CLR
328 at 465-466 [432] per Gordon J.
[277] McCloy [2015] HCA 34; (2015) 257 CLR
178 at 236-237 [146] per Gageler J; Brown (2017) 261 CLR 328 at
377 [160] per Gageler J.
[278] Brown (2017) 261 CLR
328 at 377 [160] per Gageler J. See also Betfair Pty Ltd v Western
Australia [2008] HCA 11; (2008) 234 CLR 418 at 479 [110] per Gleeson CJ, Gummow,
Kirby, Hayne, Crennan and Kiefel JJ; [2008] HCA 11.
[279] Graham Barclay Oysters
Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 597-598 [149] per Gummow and
Hayne JJ; [2002] HCA 54; New South Wales v Lepore [2003] HCA 4; (2003)
212 CLR 511 at 587-588 [219]- [221] per Gummow and Hayne JJ; [2003] HCA
4.
[280] Markarian v The Queen
[2005] HCA 25; (2005) 228 CLR 357 at 386-387 [71]- [73] per McHugh J; [2005] HCA 25; R v
Kilic [2016] HCA 48; (2016) 259 CLR 256 at 267 [22] per Bell, Gageler, Keane, Nettle and
Gordon JJ; [2016] HCA 48.
[281] See and compare
Australian Communist Party [1951] HCA 5; (1951) 83 CLR 1 at 193 per Dixon J;
Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 141-142 per Brennan J; Dixon, "The
Common Law as an Ultimate Constitutional Foundation" (1957) 31 Australian Law
Journal 240 at 240-241, 245.
[282] Australian Broadcasting
Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at 73 [32] per Gleeson CJ and
Crennan J, 88 [87] per Gummow and Hayne JJ, 95 [112] per Kirby J;
[2006] HCA 46.
[283] Lenah Game Meats
(2001) 208 CLR 199 at 226 [41] per Gleeson CJ.
[284] Monis (2013) 249 CLR
92 at 175 [223] per Hayne J.
[285] See Gummow, "The
Constitution: Ultimate foundation of Australian law?" (2005) 79 Australian
Law Journal 167 at 176.
[286] See, eg, Nationwide News
[1992] HCA 46; (1992) 177 CLR 1 at 78 per Deane and Toohey JJ, 101-102 per
McHugh J; Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 324 per Brennan J,
340 per Deane J. See also Davis [1988] HCA 63; (1988) 166 CLR 79 at 99-100
per Mason CJ, Deane and Gaudron JJ (Wilson and Dawson JJ agreeing at 101).
[287] Brown (2017) 261 CLR
328 at 417 [280] per Nettle J.
[288] See, eg, Brown (2017)
261 CLR 328 at 417 [280] per Nettle J.
[289] Victoria, Legislative
Assembly, Parliamentary Debates (Hansard), 22 October 2015 at 3973,
3975-3976.
[290] See also Levy [1997] HCA 31; (1997)
189 CLR 579 at 626 per McHugh J.
[291] Brown (2017) 261 CLR
328 at 421-422 [288].
[292] Interpretation of
Legislation Act, s 35(b)(iii).
[293] Victoria, Legislative
Assembly, Parliamentary Debates (Hansard), 22 October 2015 at 3973.
[294] See, eg, Madsen v Women's
Health Center Inc (1994) 512 US 753 at 758; Schenck v Pro-Choice
Network of Western New York [1997] USSC 17; (1997) 519 US 357 at 363; McCullen v
Coakley (2014) 134 S Ct 2518 at 2527.
[295] See and compare Access to
Abortion Services Act, RSBC 1996, c 1, s 2(1), which provides,
amongst other things, that a person must not engage in "sidewalk
interference".
[296] PHW Act, s 185B(1),
para (c) of the definition of prohibited behaviour.
[297] Reproductive Health
(Access to Terminations) Act 2013 (Tas), s 9(1), para (c) of the
definition of prohibited behaviour.
[298] Victoria, Legislative
Assembly, Parliamentary Debates (Hansard), 22 October 2015 at 3973.
See also at 3975-3976.
[299] Victoria, Legislative
Assembly, Parliamentary Debates (Hansard), 22 October 2015 at
3973.
[300] Victoria, Legislative
Assembly, Parliamentary Debates (Hansard), 22 October 2015 at
3973-3974. See also at 3976.
[301] See [270]-[275] above.
[302] Oxford English
Dictionary, online, "protest, n", sense 4c, available at
<http://www.oed.com/view/Entry/153191>
.
[303] He Kaw Teh [1985] HCA 43; (1985) 157
CLR 523 at 528-529 per Gibbs CJ (Mason J agreeing at 546), 566-567 per
Brennan J.
[304] See [245]-[246] above.
[305] He Kaw Teh [1985] HCA 43; (1985) 157
CLR 523 at 534-535 per Gibbs CJ, 558-559 per Wilson J, 573 per Brennan
J, 592-593 per Dawson J.
[306] See [306] below.
[307] See [249] above.
[308] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 51.
[309] See, eg, Tasmania,
Department of Health and Human Services, Information Paper relating to the
Draft Reproductive Health (Access to Terminations) Bill, March 2013 at
14.
[310] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 50, citing
Humphries, "Abortion, Stigma & Anxiety", Clinical Masters, University
of Melbourne, 2011.
[311] See RHAT Act, Pts 2 and
3.
[312] See [258] above.
[313] See [257] above.
[314] See and compare Leask v
The Commonwealth [1996] HCA 29; (1996) 187 CLR 579 at 590-591 per Brennan CJ, 602-603 per
Dawson J; [1996] HCA 29.
[315] See [253] above.
[316] See [303] above.
[317] Public Health Act
2010 (NSW), s 98F(1)(b).
[318] Public Health Act, s
98F(1)(c).
[319] See and compare Lenah
Game Meats (2001) 208 CLR 199 at 226 [42] per Gleeson CJ.
[320] cf Monis (2013) 249
CLR 92 at 182-183 [247] per Heydon J.
[321] See [288] above.
[322] [2017] HCA 29; (2017) 261 CLR 306 at 324
[33]; [2017] HCA 29, citing British Medical Association v The Commonwealth
[1949] HCA 44; (1949) 79 CLR 201 at 258; [1949] HCA 44 and Tajjour v New South Wales
[2014] HCA 35; (2014) 254 CLR 508 at 585-589 [168]- [176]; [2014] HCA 35.
[323] Tajjour [2014] HCA 35; (2014) 254
CLR 508 at 589 [176].
[324] Re East; Ex parte Nguyen
[1998] HCA 73; (1998) 196 CLR 354 at 362 [18]; [1998] HCA 73, quoting In re Judiciary
and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265; [1921] HCA 20. See also
Tajjour [2014] HCA 35; (2014) 254 CLR 508 at 589 [176].
[325] Lange v Australian
Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 561, 567; [1997] HCA 25, as
modified by Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at 50 [93], 51 [95]-[96];
[2004] HCA 39. cf McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 178 at
193-195 [2]; [2015] HCA 34, as modified by Brown v Tasmania (2017)
261 CLR 328 at 363-364 [104]; see also at 398 [236], 413 [271], 416-417
[277]-[278]; [2017] HCA 43.
[326] Lambert v Weichelt
(1954) 28 ALJ 282 at 283, quoted in Cheng v The Queen [2000] HCA 53; (2000) 203 CLR
248 at 270 [58]; [2000] HCA 53, Re Macks; Ex parte Saint
[2000] HCA 62; (2000) 204 CLR 158 at 230 [202]; [2000] HCA 62, Plaintiff M76/2013 v
Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; (2013) 251
CLR 322 at 372 [148]; [2013] HCA 53, Tajjour [2014] HCA 35; (2014) 254 CLR 508 at
587 [173], CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015)
255 CLR 514 at 613 [335]; [2015] HCA 1, Duncan v New South Wales [2015] HCA 13; (2015)
255 CLR 388 at 410 [52]; [2015] HCA 13 and Knight [2017] HCA 29; (2017) 261 CLR 306 at
324 [32]. See also Attorney-General for NSW v Brewery Employes Union of NSW
[1908] HCA 94; (1908) 6 CLR 469 at 590; [1908] HCA 94; Universal Film Manufacturing Co
(Australasia) Ltd v New South Wales [1927] HCA 50; (1927) 40 CLR 333 at 347, 356; [1927]
HCA 50; Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty
Ltd [1939] HCA 27; (1939) 61 CLR 735 at 773; [1939] HCA 27; British Medical Association
[1949] HCA 44; (1949) 79 CLR 201 at 257-258; Re Patterson; Ex parte Taylor
(2001) 207 CLR 391 at 473-474 [250]-[252]; [2001] HCA 51; Re Aird; Ex
parte Alpert (2004) 220 CLR 308 at 326-327 [57]; [2004] HCA 44;
Chief Executive Officer of Customs v El Hajje [2005] HCA 35; (2005) 224 CLR
159 at 170-171 [27]- [28]; [2005] HCA 35; Wurridjal v
The Commonwealth (2009) 237 CLR 309 at 437 [355]; [2009] HCA 2;
ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR
140 at 199 [141]; [2009] HCA 51; Kuczborski v Queensland
[2014] HCA 46; (2014) 254 CLR 51 at 129 [273]; [2014] HCA 46.
[327] See, eg, Bell Group NV
(In liq) v Western Australia (2016) 260 CLR 500 at 528 [74]; [2016] HCA 21.
See also Bourke v State Bank of New South Wales [1990] HCA 29; (1990) 170 CLR 276 at
291; [1990] HCA 29; APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005)
224 CLR 322 at 357 [52]; [2005] HCA 44.
[328] Tajjour [2014] HCA 35; (2014) 254
CLR 508 at 587 [172].
[329] See, eg, Tajjour
[2014] HCA 35; (2014) 254 CLR 508 at 588 [174], citing Washington State Grange v
Washington State Republican Party (2008) 552 US 442 at 450 and Stern,
"Separability and Separability Clauses in the Supreme Court" (1937) 51
Harvard Law Review 76. See also Re Patterson (2001) 207 CLR
391 at 473 [249].
[330] Tajjour [2014] HCA 35; (2014) 254
CLR 508 at 586-587 [172].
[331] [1966] HCA 26; (1966) 114 CLR 361 at 371;
[1966] HCA 26.
[332] As to the operation of
severance clauses, see Carter v The Potato Marketing Board
[1951] HCA 60; (1951) 84 CLR 460 at 484-485; [1951] HCA 60; Strickland v Rocla
Concrete Pipes Ltd (1971) 124 CLR 468 at 492-493, 503-506, 515-520; [1971]
HCA 40; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460 at 487-488; [1991]
HCA 29; Victoria v The Commonwealth (Industrial Relations Act Case)
(1996) 187 CLR 416 at 502-503; [1996] HCA 56. And as to severance by
reading down to give constitutional validity, see Pidoto v Victoria
[1943] HCA 37; (1943) 68 CLR 87 at 111; [1943] HCA 37; Bourke [1990] HCA 29; (1990) 170 CLR 276 at
291; Clarke v Federal Commissioner of Taxation [2009] HCA 33; (2009) 240 CLR 272 at 312
[89]; [2009] HCA 33.
[333] cf Acts Interpretation
Act 1901 (Cth), s 15A.
[334] Interpretation of
Legislation Act, s 4(1)(a).
[335] See generally Strickland
(1971) 124 CLR 468 at 492-493.
[336] Victoria, Interpretation
of Legislation Bill 1984, Explanatory Notes at 2.
[337] Victoria, Interpretation
of Legislation Bill 1984, Explanatory Notes at 2.
[338] Tajjour [2014] HCA 35; (2014) 254
CLR 508 at 586 [170], quoting Pidoto [1943] HCA 37; (1943) 68 CLR 87 at 110.
[339] Bank of New South Wales v
The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 371; [1948] HCA 7, quoted in Tajjour
[2014] HCA 35; (2014) 254 CLR 508 at 585 [169].
[340] Pidoto [1943] HCA 37; (1943) 68 CLR
87 at 110-111.
[341] Industrial Relations Act
Case (1996) 187 CLR 416 at 502-503.
[342] cf Tajjour
[2014] HCA 35; (2014) 254 CLR 508 at 589 [177].
[343] And the principles applying
to that Part: see Public Health and Wellbeing Act , s 185C.
[344] Public Health and
Wellbeing Act , s 185A ; see also s 185C.
[345] para (c) of the definition
of "prohibited behaviour" in s 185B(1) of the Public Health and
Wellbeing Act .
[346] para (d) of the definition
of "prohibited behaviour" in s 185B(1) of the Public Health and
Wellbeing Act .
[347] para (a) of the definition
of "prohibited behaviour" in s 185B(1) of the Public Health and
Wellbeing Act .
[348] cf Ghaidan v
Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557 at 572 [33]- [35], 601 [121], 602 [124],
603-604 [128].
[349] See Chugg v Pacific
Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at 258; [1990] HCA 41.
[350] See Maloney v The
Queen (2013) 252 CLR 168 at 298-300 [349]-[355], especially at [354]-[355];
[2013] HCA 28.
[351] See the long title of the
Reproductive Health Act.
[352] Definition of "access zone"
in s 9(1) of the Reproductive Health Act.
[353] Definition of "prohibited
behaviour" in s 9(1) of the Reproductive Health Act.
[354] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 50-51.
[355] Reproductive Health Act,
s 9(2), read with para (b) of the definition of "prohibited behaviour"
in s 9(1).
[356] See Lange [1997] HCA 25; (1997) 189
CLR 520 at 561-562, 567, as modified by Coleman [2004] HCA 39; (2004) 220 CLR 1 at 50
[93], 51 [95]-[96]. cf McCloy [2015] HCA 34; (2015) 257 CLR 178 at 193-195 [2],
as modified by Brown (2017) 261 CLR 328 at 363-364 [104]; see also
at 398 [236], 413 [271], 416-417 [277]-[278].
[357] Australian Capital
Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 234-235; [1992]
HCA 45; Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 618; see also at 639;
[1997] HCA 31; Brown (2017) 261 CLR 328 at 462 [420], 464 [426].
[358] Brown (2017) 261 CLR
328 at 430 [312]-[313].
[359] ACTV [1992] HCA 45; (1992) 177 CLR
106 at 138; Lange [1997] HCA 25; (1997) 189 CLR 520 at 559; Aid/Watch Inc v Federal
Commissioner of Taxation [2010] HCA 42; (2010) 241 CLR 539 at 555-556 [44]; [2010] HCA
42.
[360] See Lange [1997] HCA 25; (1997) 189
CLR 520 at 557-562.
[361] Unions NSW v New South
Wales (2013) 252 CLR 530 at 551 [27], 571 [104]; [2013] HCA 58.
[362] ACTV [1992] HCA 45; (1992) 177 CLR
106 at 139. See also Unions NSW (2013) 252 CLR 530 at 551-552 [28]-[30];
Tajjour [2014] HCA 35; (2014) 254 CLR 508 at 577 [140]- [141].
[363] Lange [1997] HCA 25; (1997) 189 CLR
520 at 560; Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at 554 [92]; [2011] HCA 4;
Unions NSW (2013) 252 CLR 530 at 554 [36]; Tajjour [2014] HCA 35; (2014) 254 CLR
508 at 558 [59], 577 [140]. See also Brown (2017) 261 CLR 328 at 359
[88], 407 [258], 430 [313].
[364] See, eg, Lange [1997] HCA 25; (1997)
189 CLR 520 at 561, 567; Unions NSW (2013) 252 CLR 530 at 551 [30], 554
[36]; McCloy [2015] HCA 34; (2015) 257 CLR 178 at 202-203 [30], 228-229 [119]-[120], 258
[219], 280 [303].
[365] Lange [1997] HCA 25; (1997) 189 CLR
520 at 561.
[366] Tajjour [2014] HCA 35; (2014) 254
CLR 508 at 558 [59].
[367] Tajjour [2014] HCA 35; (2014) 254
CLR 508 at 577 [140]- [141].
[368] Brown (2017) 261 CLR
328 at 461-462 [416].
[369] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 51.
[370] Read with the definitions in
s 9(1).
[371] See Brown (2017) 261
CLR 328 at 433-434 [326], citing Coleman [2004] HCA 39; (2004) 220 CLR 1 at 21 [3], 68
[158] and Gypsy Jokers Motorcycle Club Inc v Commissioner of Police
(2008) 234 CLR 532 at 553 [11]; [2008] HCA 4.
[372] Sections 13 and 14 in
Pt 3 state that the amendments effected by Pt 3 of the Reproductive
Health Act have been incorporated into the Criminal Code Act 1924
(Tas).
[373] See generally Tasmania,
House of Assembly, Parliamentary Debates (Hansard), 16 April 2013 at
50-51; Tasmania, Legislative Council, Parliamentary Debates (Hansard),
20 November 2013 at 103.
[374] The penalty is a fine not
exceeding 75 penalty units or imprisonment for a term not exceeding 12 months,
or both. Sections 10 to
12 deal with proceedings for an offence, infringement
notices and the regulation-making power.
[375] See, eg, Quaranta,
Political Protest in Western Europe: Exploring the Role of Context in
Political Action (2015) at 24.
[376] Lange [1997] HCA 25; (1997) 189 CLR
520 at 560.
[377] Brown (2017) 261 CLR
328 at 386 [188].
[378] APLA [2005] HCA 44; (2005) 224 CLR
322 at 350 [27], 361 [67], citing Coleman [2004] HCA 39; (2004) 220 CLR 1 at 30-31 [28].
See also Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104
at 123; [1994] HCA 46. As to the kinds of communication intended to be
protected by the implied freedom, see Cunliffe v The Commonwealth [1994] HCA 44; (1994)
182 CLR 272 at 329; [1994] HCA 44; Lange [1997] HCA 25; (1997) 189 CLR 520 at 560;
Levy [1997] HCA 31; (1997) 189 CLR 579 at 594-595, 608, 622, 625-626.
[379] See Hogan [2011] HCA 4; (2011) 243
CLR 506 at 554-555 [93], quoting APLA [2005] HCA 44; (2005) 224 CLR 322 at
361 [65]. See generally Lange [1997] HCA 25; (1997) 189 CLR 520 at 567, 571.
[380] APLA [2005] HCA 44; (2005) 224 CLR
322 at 403-404 [219]- [220], 451 [380], citing Cunliffe [1994] HCA 44; (1994) 182 CLR 272
at 329.
[381] Criminal Code (Tas),
s 13(1). See also He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 at
564-565; [1985] HCA 43.
[382] para (d) of the definition
of "prohibited behaviour" in s 9(1) of the Reproductive Health Act.
[383] He Kaw Teh [1985] HCA 43; (1985) 157
CLR 523 at 564-565.
[384] cf Brown (2017) 261
CLR 328 at 339-340 [2]-[3].
[385] Brown (2017) 261 CLR
328 at 367 [118], 369 [128], 378-379 [164]-[165], 389-390 [200]-[201], 460
[411], 477-478 [478].
[386] Brown (2017) 261 CLR
328 at 367-368 [120], citing ACTV [1992] HCA 45; (1992) 177 CLR 106 at 143.
[387] Wotton v Queensland
(2012) 246 CLR 1 at 16 [30]; [2012] HCA 2. See also Hogan [2011] HCA 4; (2011) 243
CLR 506 at 555-556 [95]; Monis v The Queen (2013) 249 CLR 92 at
130 [64], 212 [342]; [2013] HCA 4; McCloy [2015] HCA 34; (2015) 257 CLR 178 at
238-239 [152]. See generally Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at
339.
[388] See Unions NSW (2013)
252 CLR 530 at 578-579 [137]-[140]; McCloy [2015] HCA 34; (2015) 257 CLR 178 at 233
[136]; Brown (2017) 261 CLR 328 at 361-362 [92]-[95]. See also ACTV
[1992] HCA 45; (1992) 177 CLR 106 at 132, 172, 175, 221, 235, 237.
[389] McCloy [2015] HCA 34; (2015) 257 CLR
178 at 287 [334].
[390] cf Queensland Electricity
Commission v The Commonwealth [1985] HCA 56; (1985) 159 CLR 192 at 240; [1985]
HCA 56; Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 409-410; [1988] HCA
18; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 at 464,
471-474; [1990] HCA 1.
[391] (2017) 261 CLR 328 at 400
[240].
[392] cf Betfair Pty Ltd v
Racing New South Wales [2012] HCA 12; (2012) 249 CLR 217 at 268 [46]; [2012] HCA 12.
[393] Tajjour [2014] HCA 35; (2014) 254
CLR 508 at 570 [108].
[394] ACTV [1992] HCA 45; (1992) 177 CLR
106 at 234-235; Levy [1997] HCA 31; (1997) 189 CLR 579 at 618; see also at 639; Brown
(2017) 261 CLR 328 at 462 [420], 464 [426].
[395] ACTV [1992] HCA 45; (1992) 177 CLR
106 at 143, 169, 234-235. See also Nationwide News Pty Ltd v Wills
[1992] HCA 46; (1992) 177 CLR 1 at 76-77; [1992] HCA 46; Mulholland v Australian
Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at 200 [40]; [2004] HCA 41;
Hogan [2011] HCA 4; (2011) 243 CLR 506 at 555-556 [95]; McCloy [2015] HCA 34; (2015) 257 CLR
178 at 268-269 [252]- [253].
[396] See Tasmania, House
of Assembly, Parliamentary Debates (Hansard), 16 April 2013 at 44-87.
[397] See Humphries, "Abortion,
Stigma & Anxiety", Clinical Masters, University of Melbourne, 2011;
Tasmania, Department of Health and Human Services, Information Paper relating
to the Draft Reproductive Health (Access to Terminations) Bill: Revised
pregnancy termination laws proposed
for Tasmania (2013) at 6-12.
[398] Tasmania, House of
Assembly, Parliamentary Debates (Hansard), 16 April 2013 at 51.
[399] Tasmania, House of
Assembly, Parliamentary Debates (Hansard), 16 April 2013 at 44.
[400] Tasmania, House of
Assembly, Parliamentary Debates (Hansard), 16 April 2013 at 51.
[401] Tasmania, House of
Assembly, Parliamentary Debates (Hansard), 16 April 2013 at 51.
[402] Nationwide News
[1992] HCA 46; (1992) 177 CLR 1 at 50, quoted in Brown (2017) 261 CLR 328 at 467 [436].
See also Mulholland [2004] HCA 41; (2004) 220 CLR 181 at 197 [32]; McCloy [2015] HCA 34; (2015)
257 CLR 178 at 229-230 [122]- [123].
[403] Tasmania, House of
Assembly, Parliamentary Debates (Hansard), 16 April 2013 at 50, citing
Humphries, "Abortion, Stigma & Anxiety", Clinical Masters, University
of Melbourne, 2011.
[404] (2017) 261 CLR 328 at
464-468 [427]-[438].
[405] Lange [1997] HCA 25; (1997) 189 CLR
520 at 569, 575.
[406] See McCloy [2015] HCA 34; (2015) 257
CLR 178 at 194-196 [2]- [4], 213-220 [69]-[92]; Brown (2017) 261 CLR 328
at 363-364 [104], 368-370 [123]-[131].
[407] McCloy [2015] HCA 34; (2015) 257 CLR
178 at 213 [68], 215-216 [74]; Brown (2017) 261 CLR 328 at 369 [125], 370
[131], 376 [158]-[159], 417 [279]-[280], 476-477 [473].
[408] McCloy [2015] HCA 34; (2015) 257 CLR
178 at 213 [68]; Brown (2017) 261 CLR 328 at 476-477 [473].
[409] See Jackson, "Thayer,
Holmes, Brandeis: Conceptions of Judicial Review, Factfinding, and
Proportionality" (2017) 130 Harvard Law Review 2348 at 2375.
[410] Brown (2017) 261 CLR
328 at 378 [164].
[411] Brown (2017) 261 CLR
328 at 477 [476]. See generally Kaplow, "On the Design of Legal Rules:
Balancing Versus Structured Decision Procedures"
(2019) 132 Harvard Law
Review 992.
[412] Jackson, "Thayer, Holmes,
Brandeis: Conceptions of Judicial Review, Factfinding, and Proportionality"
(2017) 130 Harvard Law Review 2348 at 2393.
[413] As to its origins, see
Currie, The Constitution of the Federal Republic of Germany (1994) at
19-20.
[414] Jackson, "Thayer, Holmes,
Brandeis: Conceptions of Judicial Review, Factfinding, and Proportionality"
(2017) 130 Harvard Law Review 2348 at 2361-2364.
[415] Schauer, "Proportionality
and the Question of Weight", in Huscroft, Miller and Webber (eds),
Proportionality and the Rule of Law: Rights, Justification, Reasoning
(2014) 173 at 176-177.
[416] Schauer, "Proportionality
and the Question of Weight", in Huscroft, Miller and Webber (eds),
Proportionality and the Rule of Law: Rights, Justification, Reasoning
(2014) 173 at 178.
[417] Schauer, "Proportionality
and the Question of Weight", in Huscroft, Miller and Webber (eds),
Proportionality and the Rule of Law: Rights, Justification, Reasoning
(2014) 173 at 178, 180-181.
[418] See generally Jackson and
Tushnet (eds), Proportionality: New Frontiers, New Challenges
(2017); Ellis (ed), The Principle of Proportionality in the Laws of
Europe (1999).
[419] Young, "Proportionality,
Reasonableness, and Economic and Social Rights", in Jackson and Tushnet
(eds), Proportionality: New Frontiers, New Challenges (2017) 248.
[420] See Cohen-Eliya and Porat,
"American balancing and German proportionality: The historical origins" (2010)
8 International Journal of Constitutional Law 263; Möller, "US
Constitutional Law, Proportionality, and the Global Model", in Jackson and
Tushnet (eds), Proportionality: New Frontiers, New Challenges
(2017) 130.
[421] Jackson and Tushnet,
"Introduction", in Jackson and Tushnet (eds), Proportionality: New
Frontiers, New Challenges (2017) 1 at 2.
[422] See, eg, Jackson and Tushnet
(eds), Proportionality: New Frontiers, New Challenges (2017); Jackson,
"Pockets of proportionality: choice and necessity, doctrine and principle",
in Delaney and Dixon (eds), Comparative Judicial Review (2018) 357.
See also Grimm, "Proportionality in Canadian and German Constitutional
Jurisprudence" (2007) 57 University of Toronto Law Journal 383 at
383-384, 387-395.
[423] Alexy, "Proportionality and
Rationality", in Jackson and Tushnet (eds), Proportionality: New Frontiers,
New Challenges (2017) 13 at 14. For a discussion as to the analytical
difference between "proportionality as principle" and "proportionality as
structured doctrine", see Jackson, "Pockets of proportionality: choice and
necessity, doctrine and principle", in Delaney and Dixon
(eds), Comparative
Judicial Review (2018) 357 at 368-376. In jurisdictions where the latter
approach is adopted, the steps in proportionality testing are seen as
sequential;
Canada is an example: see generally R v Oakes
[1986] 1 SCR 103, reformulated in Newfoundland (Treasury Board) v NAPE
[2004] 3 SCR 381 at 404-405.
[424] Alexy, "Proportionality and
Rationality", in Jackson and Tushnet (eds), Proportionality: New Frontiers,
New Challenges (2017) 13 at 14.
[425] See Barak,
Proportionality: Constitutional Rights and their Limitations (2012) at
101-102.
[426] See Alexy, "Proportionality
and Rationality", in Jackson and Tushnet (eds), Proportionality: New
Frontiers, New Challenges (2017) 13 at 19-20, citing Barak,
Proportionality: Constitutional Rights and their Limitations (2012) at
530; see also at 245-302, 529-539.
[427] Alexy, "Proportionality and
Rationality", in Jackson and Tushnet (eds), Proportionality: New Frontiers,
New Challenges (2017) 13 at 14.
[428] Bendor and Sela, "How
proportional is proportionality?" (2015) 13 International Journal of
Constitutional Law 530 at 538.
[429] Choudhry, "Proportionality:
Comparative Perspectives on Israeli Debates", in Sapir, Barak-Erez and
Barak (eds), Israeli Constitutional Law in the Making (2013) 255 at
256-257.
[430] Kaplow, "On the Design of
Legal Rules: Balancing Versus Structured Decision Procedures" (2019) 132
Harvard Law Review 992 at 994.
[431] Brown (2017) 261 CLR
328 at 466 [434], quoting ACTV [1992] HCA 45; (1992) 177 CLR 106 at 138.
[432] See Momcilovic v The
Queen (2011) 245 CLR 1 at 156 [392]-[393]; [2011] HCA 34, citing Dixon,
"Concerning Judicial Method" (1956) 29 Australian Law Journal 468
at 472, 475.
[433] Breen v Williams
(1996) 186 CLR 71 at 115; [1996] HCA 57. See also Momcilovic (2011)
245 CLR 1 at 155-156 [391]-[393].
[434] Mason, "The Use and Abuse of
Precedent" (1988) 4 Australian Bar Review 93 at 93.
[435] [2015] HCA 34; (2015) 257 CLR 178 at 235
[142].
[436] See McCloy [2015] HCA 34; (2015) 257
CLR 178 at 235 [142]; Brown (2017) 261 CLR 328 at 477
[475]-[477].
[437] [2019] HCA 1; (2019) 93 ALJR 166 at
175-179 [35]- [57], 181-188 [69]-[102], 189-192 [108]-[118], 195-198 [137]-[153],
202-211 [177]-[222]; [2019] HCA 1; 363 ALR 1 at 12-17, 20-28, 30-33, 37-41, 48-59; [2019] HCA
1.
[438] Coenen, "Rules Against
Rulification" (2014) 124 Yale Law Journal 644 at 694-695.
[439] Workplaces (Protection
from Protesters) Act 2014 (Tas).
[440] Reproductive Health
(Access to Terminations) Act 2013 (Tas).
[441] (2017) 261 CLR 328; [2017]
HCA 43.
[442] Brown v Tasmania
(2017) 261 CLR 328 at 418 [282].
[443] Tennyson, Aylmer's
Field (1891) at 14. See Prior v Sherwood [1906] ArgusLawRp 57; (1906) 3 CLR 1054 at 1070;
[1906] HCA 29; Fraser v Victorian Railways Commissioners [1909] HCA 5; (1909)
8 CLR 54 at 58; [1909] HCA 5; SOS (Mowbray) Pty Ltd v Mead (1972)
124 CLR 529 at 573; [1972] HCA 18; Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 at
641; [1984] HCA 21.
[444] Fraser v Victorian
Railways Commissioners [1909] HCA 5; (1909) 8 CLR 54 at 58.
[445] See, eg, R v Kirby; Ex
parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 272; [1956]
HCA 10.
[446] Public Health and
Wellbeing Act 2008 (Vic) as amended by the Public Health and Wellbeing
Amendment (Safe Access Zones) Act 2015 (Vic).
[447] Fish, "Constitutional
Avoidance as Interpretation and as Remedy" (2016) 114 Michigan Law Review
1275 at 1289.
[448] Brown v Tasmania
(2017) 261 CLR 328 at 479-481 [485]-[487]. See also Coleman v Power
[2004] HCA 39; (2004) 220 CLR 1 at 21 [3], 68 [158], 84 [219], 115 [306]; [2004] HCA 39;
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR
532 at 553 [11]; [2008] HCA 4; Monis v The Queen (2013) 249 CLR 92
at 154 [147]; [2013] HCA 4.
[449] Public Health Act,
s 185B(2).
[450] "It is better for a thing to
have effect than to be made invalid". See, eg, Davies and Jones v Western
Australia [1904] HCA 46; (1904) 2 CLR 29 at 43; [1904] HCA 46; Ex parte Walsh and
Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36 at 93; [1925] HCA 53;
Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 at 180;
[1926] HCA 58; Australian Railways Union v Victorian Railways
Commissioners [1930] HCA 52; (1930) 44 CLR 319 at 371-372; [1930] HCA 52; General
Practitioners Society v The Commonwealth [1980] HCA 30; (1980) 145 CLR 532 at 562;
[1980] HCA 30; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at 88 [227].
[451] Macleod v
Attorney-General for New South Wales [1891] AC 455 at 458-459; D'Emden v
Pedder [1904] HCA 1; (1904) 1 CLR 91 at 119-120; [1904] HCA 1; Jumbunna Coal Mine NL v
Victorian Coal Miners' Association (1908) 6 CLR 309 at 364; [1908] HCA 95;
Osborne v The Commonwealth [1911] HCA 19; (1911) 12 CLR 321 at 337; [1911] HCA 19;
Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 at 180;
Attorney-General (Vict) v The Commonwealth [1945] HCA 30; (1945) 71 CLR 237 at 267;
[1945] HCA 30; Chu Kheng Lim v Minister for Immigration, Local Government and
Ethnic Affairs (1992) 176 CLR 1 at 14; [1992] HCA 64; Residual Assco
Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at 644 [28]; [2000] HCA 33; New
South Wales v The Commonwealth [2006] HCA 52; (2006) 229 CLR 1 at 161 [355]; [2006] HCA 52;
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR
532 at 553 [11]; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; (2009) 237
CLR 501 at 519 [46]; [2009] HCA 4.
[452] See Davies and Jones v
Western Australia [1904] HCA 46; (1904) 2 CLR 29 at 43.
[453] See Federal Commissioner
of Taxation v Tomaras [2018] HCA 62; (2018) 93 ALJR 118 at 137 [100]; 362 ALR 253 at 276;
[2018] HCA 62.
[454] [1925] HCA 53; (1925) 37 CLR 36 at 93; see
also at 127.
[455] Compare Taylor v Owners
– Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at 547-548 [36]- [37]; [2014]
HCA 9.
[456] R (Anderson) v Secretary
of State for the Home Department [2002] EWCA Crim 747; [2003] 1 AC 837 at 883 [30], 894 [59], 901
[81].
[457] Sedgwick and Pomeroy, A
Treatise on the Rules which Govern the Interpretation and Construction of
Statutory and Constitutional Law, 2nd ed (1874) at 413-415. See R v
Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow &
Co [1910] HCA 33; (1910) 11 CLR 1 at 27, 35-36, 45, 54-55; [1910] HCA 33; Owners of
SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 698, 701, 715; [1910] HCA 77;
Attorney-General (Vict) v The Commonwealth [1945] HCA 30; (1945) 71 CLR 237 at 267;
British Medical Association v The Commonwealth [1949] HCA 44; (1949) 79 CLR 201 at 258;
[1949] HCA 44.
[458] Attwood v Lamont
[1920] 3 KB 571 at 578. See Director of Public Prosecutions v
Hutchinson [1990] 2 AC 783 at 804; Re Dingjan; Ex parte Wagner
[1995] HCA 16; (1995) 183 CLR 323 at 348; [1995] HCA 16; Harrington v Lowe (1996)
190 CLR 311 at 328; [1996] HCA 8.
[459] Davies and Jones v
Western Australia [1904] HCA 46; (1904) 2 CLR 29 at 38; The Federated Amalgamated
Government Railway and Tramway Service Association v The New South
Wales Railway Traffic Employes Association [1906] HCA 94; (1906) 4 CLR 488 at 546-547;
[1906] HCA 94; R v Commonwealth Court of Conciliation and Arbitration; Ex
parte Whybrow & Co [1910] HCA 33; (1910) 11 CLR 1 at 27, 35, 45, 54-55; Waterside
Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25
CLR 434 at 470; [1918] HCA 56.
[460] R v Commonwealth Court of
Conciliation and Arbitration; Ex parte Whybrow & Co [1910] HCA 33; (1910) 11 CLR 1
at 27.
[461] [1910] HCA 77; (1910) 11 CLR 689.
[462] [1910] HCA 77; (1910) 11 CLR 689 at
697-698, 702-703, 708, 712, 718.
[463] [1910] HCA 77; (1910) 11 CLR 689 at
701-702; see also at 698-699, 709, 715.
[464] [1910] HCA 77; (1910) 11 CLR 689 at
699.
[465] [1910] HCA 77; (1910) 11 CLR 689 at
701.
[466] [1910] HCA 77; (1910) 11 CLR 689 at
709.
[467] [1910] HCA 77; (1910) 11 CLR 689 at
715.
[468] [1910] HCA 77; (1910) 11 CLR 689 at
701.
[469] Attwood v Lamont
[1920] 3 KB 571 at 593; see also S V Nevanas & Co v Walker and
Foreman [1914] 1 Ch 413 at 423, both quoted in Heydon, The Restraint of
Trade Doctrine, 4th ed (2018) at 303.
[470] SST Consulting Services
Pty Ltd v Rieson [2006] HCA 31; (2006) 225 CLR 516 at 531 [46]; [2006] HCA 31; Heydon,
The Restraint of Trade Doctrine, 4th ed (2018) at 304, citing Mason v
Provident Clothing and Supply Co Ltd [1913] AC 724 at 745 and Attwood v
Lamont [1920] 3 KB 571 at 580.
[471] See, eg, Baines v
Geary (1887) 35 Ch D 154 at 159; Foltz v Struxness (1950)
215 P 2d 133 at 138. See also Heydon, The Restraint of Trade
Doctrine, 4th ed (2018) at 309 fn 127, 314 fn 146 and the cases
cited therein; cf at 314-315.
[472] (1921) 29 CLR 357; [1921]
HCA 31.
[473] [1921] HCA 31; (1921) 29 CLR 357 at
368-369.
[474] Compare Human Rights Act
1998 (UK), s 3(1): "read and given effect".
[475] [1921] HCA 31; (1921) 29 CLR 357 at
369.
[476] Australian Railways Union
v Victorian Railways Commissioners [1930] HCA 52; (1930) 44 CLR 319 at 386.
[477] [1921] HCA 31; (1921) 29 CLR 357 at
370.
[478] Owners of SS Kalibia
v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 699; cf at 722.
[479] R v Commonwealth Court of
Conciliation and Arbitration; Ex parte Whybrow & Co [1910] HCA 33; (1910) 11 CLR 1
at 27; see also at 35, 45 and Director of Public Prosecutions v
Hutchinson [1990] 2 AC 783 at 813.
[480] [1921] HCA 31; (1921) 29 CLR 357 at
367-368.
[481] [1921] HCA 31; (1921) 29 CLR 357 at
369.
[482] [1921] HCA 31; (1921) 29 CLR 357 at
369-370.
[483] Street v Queensland Bar
Association [1989] HCA 53; (1989) 168 CLR 461 at 537; [1989] HCA 53; Re Wakim; Ex parte
McNally (1999) 198 CLR 511 at 551-552 [42]; [1999] HCA 27; Birmingham
City Council v Oakley [2000] UKHL 59; [2001] 1 AC 617 at 631; R v G [2003] EWHC 1507; [2004] 1 AC 1034
at 1054 [29]. See also Peterswald v Bartley [1904] HCA 21; (1904) 1 CLR 497 at 508;
[1904] HCA 21. Or connotation and denotation: Ex parte Professional
Engineers' Association [1959] HCA 47; (1959) 107 CLR 208 at 267; [1959] HCA 47; Lake
Macquarie Shire Council v Aberdare County Council (1970) 123 CLR 327 at 331;
[1970] HCA 32; State Superannuation Board v Trade Practices Commission
[1982] HCA 72; (1982) 150 CLR 282 at 297; [1982] HCA 72; The Commonwealth v Tasmania (The
Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1 at 302-303; [1983] HCA 21; Davis v
The Commonwealth [1988] HCA 63; (1988) 166 CLR 79 at 96; [1988] HCA 63; McGinty v
Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 200; [1996] HCA 48; Eastman v The
Queen [2000] HCA 29; (2000) 203 CLR 1 at 45 [142]; [2000] HCA 29; Singh v The
Commonwealth [2004] HCA 43; (2004) 222 CLR 322 at 343-344 [37]- [38]; [2004] HCA 43.
[484] Solum, "The
Interpretation-Construction Distinction" (2010) 27 Constitutional
Commentary 95 at 100-103; Solum and Sunstein, "Chevron as
Construction", paper, December 2018, available at
<https://ssrn.com/abstract=3300626>. See also Whittington,
Constitutional Interpretation: Textual Meaning, Original Intent, and
Judicial Review (1999) at 6-8; Barnett, Restoring the Lost Constitution:
The Presumption of Liberty, rev ed (2014) at 102; Balkin,
Living Originalism (2011) at 4-5.
[485] Lieber, Legal and
Political Hermeneutics, enlarged ed (1839) at 23, 56. Compare Sedgwick and
Pomeroy, A Treatise on the Rules which Govern the Interpretation and
Construction of Statutory and Constitutional Law, 2nd ed (1874) at
191-192.
[486] See Atkinson, Handbook of
the Law of Wills, 2nd ed (1953), §146 at 809-810, 814, 816. See also
American Law Institute, Restatement (Third) of the Law of Property: Wills
and Other Donative Transfers (2003), §10.1 at 276, §11.3 at
333.
[487] Cunningham, "Hermeneutics
and Contract Default Rules: An Essay on Lieber and Corbin" (1995) 16 Cardozo
Law Review 2225 at 2246.
[488] Corbin, "Conditions in the
Law of Contract" (1919) 28 Yale Law Journal 739 at 740-741. See also
Corbin, Corbin on Contracts, rev ed (1960) §534 at 9, 12-13;
Patterson, "The Interpretation and Construction of Contracts" (1964) 64
Columbia Law Review 833 at 833, 835; American Law Institute,
Restatement (Second) of the Law of Contracts (1981), §200 at 82;
Rowley, "Contract Construction and Interpretation: From the 'Four Corners' to
Parol Evidence (and Everything
in Between)" (1999) 69 Mississippi Law
Journal 73 at 79-80.
[489] By s 3 of the Acts
Interpretation Act 1930 (Cth); repealed and substituted in effectively the
same terms by the Acts Interpretation Act 1937 (Cth).
[490] Australian Railways Union
v Victorian Railways Commissioners [1930] HCA 52; (1930) 44 CLR 319 at 374; see also at 373
and R v Poole; Ex parte Henry [No 2] [1939] HCA 19; (1939) 61 CLR 634 at 652; [1939] HCA
19.
[491] Australia, Senate,
Parliamentary Debates (Hansard), 7 August 1930 at 5545, referring to
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow
& Co [1910] HCA 33; (1910) 11 CLR 1 at 54, 55 and Owners of SS Kalibia v Wilson
[1910] HCA 77; (1910) 11 CLR 689 at 713.
[492] Australia, Senate,
Parliamentary Debates (Hansard), 7 August 1930 at 5545, referring
to Newcastle and Hunter River Steamship Co Ltd v Attorney-General for the
Commonwealth [1921] HCA 31; (1921) 29 CLR 357.
[493] Australia, Senate,
Parliamentary Debates (Hansard), 7 August 1930 at 5545.
[494] Australia, House of
Representatives, Parliamentary Debates (Hansard), 8 August 1930 at
5649.
[495] Interpretation Act
1987 (NSW), s 31; Interpretation of Legislation Act 1984 (Vic),
s 6; Acts Interpretation Act 1915 (SA), s 22A; Acts
Interpretation Act 1954 (Qld), s 9; Interpretation Act 1984
(WA), s 7; Acts Interpretation Act 1931 (Tas), s 3;
Interpretation Act (NT), s 59; Legislation Act 2001 (ACT),
s 120.
[496] Victoria v The
Commonwealth (1996) 187 CLR 416 at 502; [1996] HCA 56. See also R v
Poole; Ex parte Henry [No 2] [1939] HCA 19; (1939) 61 CLR 634 at 652; Strickland v Rocla
Concrete Pipes Ltd (1971) 124 CLR 468 at 516-517; [1971] HCA 40.
[497] Bank of NSW v The
Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 163, 313, 371; [1948] HCA 7; Re F; Ex
parte F [1986] HCA 41; (1986) 161 CLR 376 at 384; [1986] HCA 41.
[498] [1948] HCA 7; (1948) 76 CLR 1 at 252.
[499] [1948] HCA 7; (1948) 76 CLR 1 at 369. See
also Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31 at
76; [1947] HCA 26, speaking of "severance" and "restriction".
[500] Interpretation of
Legislation Act, s 4(1)(a).
[501] Cam & Sons Pty Ltd v
The Chief Secretary of New South Wales [1951] HCA 59; (1951) 84 CLR 442 at 454; [1951] HCA
59. See also R v Poole; Ex parte Henry [No 2] [1939] HCA 19; (1939) 61 CLR 634 at 652;
Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 at 108; [1943] HCA 37; Victoria v
The Commonwealth (1996) 187 CLR 416 at 502.
[502] Victoria v The
Commonwealth (1996) 187 CLR 416 at 502. Compare Pidoto v Victoria
[1943] HCA 37; (1943) 68 CLR 87 at 111; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460 at
485; [1991] HCA 29; Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 at
61; [1992] HCA 46; Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323
at 339, 349, 354-355, 372.
[503] Vacuum Oil Co Pty Ltd v
Queensland [No 2] [1935] HCA 9; (1935) 51 CLR 677 at 692; [1935] HCA 9; Pidoto v
Victoria [1943] HCA 37; (1943) 68 CLR 87 at 111; Bank of NSW v The Commonwealth
[1948] HCA 7; (1948) 76 CLR 1 at 369-370; Strickland v Rocla Concrete Pipes Ltd
(1971) 124 CLR 468 at 493; Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460 at
486; Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 at 339; Victoria v
The Commonwealth (1996) 187 CLR 416 at 502.
[504] Re F; Ex parte F
[1986] HCA 41; (1986) 161 CLR 376 at 385. See also Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR
87 at 110-111.
[505] cf Pidoto v Victoria
[1943] HCA 37; (1943) 68 CLR 87 at 108-109.
[506] Bourke v State Bank of New
South Wales [1990] HCA 29; (1990) 170 CLR 276 at 284; [1990] HCA 29.
[507] Newcastle and Hunter
River Steamship Co Ltd v Attorney-General for the Commonwealth [1921] HCA 31; (1921) 29 CLR
357 at 370.
[508] Cam & Sons Pty Ltd v
The Chief Secretary of New South Wales [1951] HCA 59; (1951) 84 CLR 442 at 454, 456;
Carter v The Potato Marketing Board [1951] HCA 60; (1951) 84 CLR 460 at 477; [1951] HCA
60; Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6; (1955) 93 CLR 55 at 73;
[1955] HCA 6; Nominal Defendant v Dunstan [1963] HCA 5; (1963) 109 CLR 143 at 151-152;
[1963] HCA 5.
[509] Wilson v Minister for
Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 20,
26; [1996] HCA 18. See also Knight v Victoria [2017] HCA 29; (2017) 261 CLR 306 at 325
[34]; [2017] HCA 29.
[510] Coleman v Power
[2004] HCA 39; (2004) 220 CLR 1 at 56 [110].
[511] Criminal Procedure Act
2009 (Vic), s 72. See also Vines v Djordjevitch [1955] HCA 19; (1955)
91 CLR 512 at 519-520; [1955] HCA 19; Chugg v Pacific Dunlop Ltd
[1990] HCA 41; (1990) 170 CLR 249 at 257-259; [1990] HCA 41.
[512] International Finance
Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 349
[42]; [2009] HCA 49.
[513] Taylor v Owners –
Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at 548 [38], quoting Western Bank
Ltd v Schindler [1977] Ch 1 at 18.
[514] Australia, House of
Representatives, Parliamentary Debates (Hansard), 8 August 1930 at
5649.
[515] The Tasmanian legislation
uses the more dignified language of termination, avoiding "abortion", a word
used "throughout history
in a derogatory manner to demean and stigmatise women":
Tasmania, House of Assembly, Parliamentary Debates (Hansard),
16 April 2013 at 47.
[516] Reproductive Health Act,
s 9(1).
[517] Victoria, Legislative
Council, Parliamentary Debates (Hansard), 24 November 2015 at
4790.
[518] Reproductive Health Act,
s 9(1) (definition of "prohibited behaviour", para (a)).
[519] Reproductive Health Act,
s 9(1) (definition of "prohibited behaviour", para (d)).
[520] Reproductive Health Act,
s 9(1) (definition of "prohibited behaviour", para (c)).
[521] Tasmania, Legislative
Council, Parliamentary Debates (Hansard), 20 November 2013 at
105.
[522] Access to Abortion
Services Act, RSBC 1996, c 1, ss 1, 2(1).
[523] See also Tasmania, House of
Assembly, Parliamentary Debates (Hansard), 16 April 2013 at 50.
[524] Access to Abortion
Services Act, RSBC 1996, c 1, s 1.
[525] See also He Kaw Teh v The
Queen [1985] HCA 43; (1985) 157 CLR 523 at 528-529, 546, 565-567; [1985] HCA 43.
[526] He Kaw Teh v The Queen
[1985] HCA 43; (1985) 157 CLR 523 at 534-535, 550, 573-574, 591-592.
[527] [1997] HCA 25; (1997) 189 CLR 520 at
561-562; [1997] HCA 25.
[528] Levy v Victoria
[1997] HCA 31; (1997) 189 CLR 579 at 622-623; see also at 595, 613, 638; [1997] HCA 31.
[529] Unions NSW v New South
Wales [2019] HCA 1; (2019) 93 ALJR 166 at 201 [171]; [2019] HCA 1; 363 ALR 1 at 46; [2019] HCA 1.
[530] Tasmania, Department of
Health and Human Services, Information Paper relating to the Draft
Reproductive Health (Access to Terminations) Bill (2013) at 3.
[531] Tasmania, Department of
Health and Human Services, Information Paper relating to the Draft
Reproductive Health (Access to Terminations) Bill (2013) at 6-12.
[532] Reproductive Health Act,
s 3(1).
[533] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 51.
[534] [1997] HCA 25; (1997) 189 CLR 520 at 562,
567.
[535] See, earlier, Cunliffe v
The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 300, 324, 388; [1994] HCA 44; cf
Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261 at 289, 300, 311-312,
324, 336, 345; [1988] HCA 10.
[536] Mulholland v Australian
Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at 266 [247]; [2004] HCA 41. See
also Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at 90 [234]; Thomas v
Mowbray [2007] HCA 33; (2007) 233 CLR 307 at 417 [316]; [2007] HCA 33.
[537] (2013) 249 CLR 92 at 182
[246].
[538] (2013) 249 CLR 92 at 182
[246].
[539] See Cunliffe v The
Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 339; Langer v
The Commonwealth [1996] HCA 43; (1996) 186 CLR 302 at 318, 334; [1996] HCA 43; cf
Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 388; Coleman v
Power [2004] HCA 39; (2004) 220 CLR 1 at 48 [87].
[540] [2015] HCA 34; (2015) 257 CLR 178 at
194-195 [2]- [3]; [2015] HCA 34.
[541] (2017) 261 CLR 328 at
368-369 [123]-[127], 416-417 [278].
[542] [2019] HCA 1; (2019) 93 ALJR 166 at 177
[42], 190 [110]; [2019] HCA 1; 363 ALR 1 at 13-14, 31.
[543] Ramshaw, "The case for
replicable structured full proportionality analysis in all cases concerning
fundamental rights" (2019) 39
Legal Studies 120 at 121-123.
[544] Pound, The Formative Era
of American Law (1938) at 94-95.
[545] McCulloch v Maryland
[1819] USSC 5; (1819) 17 US 316 at 421. See Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at 90
[234]; Rowe v Electoral Commissioner (2010) 243 CLR 1 at 131 [427], 133
[431]; [2010] HCA 46; Monis v The Queen (2013) 249 CLR 92 at 213
[345].
[546] District of Columbia v
Heller (2008) 554 US 570 at 689-690; United States v Alvarez (2012)
567 US 709 at 730: see below at [503].
[547] Cohen-Eliya and Porat,
"American balancing and German proportionality: The historical origins"
(2010) 8 International Journal of Constitutional Law 263 at 276-277.
[548] Cohen-Eliya and Porat,
"American balancing and German proportionality: The historical origins"
(2010) 8 International Journal of Constitutional Law 263 at 275.
[549] [2013] UKSC 39; [2014] AC 700 at 788
[68].
[550] [2013] UKSC 39; [2014] AC 700 at 788
[68].
[551] [2015] HCA 34; (2015) 257 CLR 178 at
194-196 [2]- [4].
[552] Stone Sweet and Mathews,
"Proportionality Balancing and Global Constitutionalism" (2008) 47 Columbia
Journal of Transnational Law 72 at 74. See also Barak, Proportionality:
Constitutional Rights and their Limitations (2012) at 181-210.
[553] Jackson, "Thayer, Holmes,
Brandeis: Conceptions of Judicial Review, Factfinding, and Proportionality"
(2017) 130 Harvard Law Review 2348 at 2372.
[554] Stone, "The Limits of
Constitutional Text and Structure: Standards of Review and the Freedom of
Political Communication" [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668 at
681.
[555] McCloy v New South
Wales [2015] HCA 34; (2015) 257 CLR 178 at 215 [72]- [73].
[556] McCloy v New South
Wales [2015] HCA 34; (2015) 257 CLR 178 at 216 [77], referring to Pham v Secretary of
State for the Home Department [2015] UKSC 19; [2015] 1 WLR 1591 at 1622 [96]; [2015] 3 All
ER 1015 at 1044, and Lübbe-Wolff, "The Principle of Proportionality in the
Case-Law of the German Federal Constitutional
Court" (2014) 34 Human Rights
Law Journal 12 at 16.
[557] Wyong Shire Council v
Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48; [1980] HCA 12.
[558] United States v Carroll
Towing Co (1947) 159 F 2d 169 at 173: Burden of adequate precautions <
Probability of injury multiplied by magnitude of injury.
[559] The "most elementary
version" of the Weight Formula is Wi,j=Ii / Ij: Alexy, "On Balancing
and Subsumption: A Structural Comparison"
(2003) 16 Ratio Juris 433 at
444. The "elaborated" formula is Wi,j=Ii*Wi*Ri / Ij*Wj*Rj: Alexy,
"Proportionality, constitutional law, and sub-constitutional
law: A reply to
Aharon Barak" (2018) 16 International Journal of Constitutional
Law 871 at 873.
[560] Ibbetson, A Historical
Introduction to the Law of Obligations (1999) at 153.
[561] [1963] UKHL 4; [1964] AC 465 at 525. See
also Hill v Van Erp (1997) 188 CLR 159 at 189; [1997] HCA 9.
[562] Armstrong v Victoria [No
2] [1957] HCA 55; (1957) 99 CLR 28 at 48-49, 73-74; [1957] HCA 55. See also Barak,
Proportionality: Constitutional Rights and their Limitations (2012) at
312-315, 331.
[563] XYZ v The Commonwealth
[2006] HCA 25; (2006) 227 CLR 532 at 608 [218]; [2006] HCA 25; Murphy v Electoral
Commissioner (2016) 261 CLR 28 at 55 [42], 92-93 [196]-[199]; [2016] HCA
36.
[564] Unions NSW v New South
Wales [2019] HCA 1; (2019) 93 ALJR 166 at 198-199 [158]; [2019] HCA 1; 363 ALR 1 at 42-43.
[565] Hogg, Constitutional Law
of Canada, 5th ed (2007), vol 2 at 143.
[566] Barak, "Proportional Effect:
The Israeli Experience" (2007) 57 University of Toronto Law Journal 369
at 372.
[567] Yowell, Constitutional
Rights and Constitutional Design (2018) at 31.
[568] Alexy, "Constitutional
Rights and Proportionality" (2014) 22 Revus 51 at 53.
[569] Police v Preston and
Stallard (unreported, Magistrates Court of Tasmania, 27 July 2016) at
[42].
[570] Police v Preston and
Stallard (unreported, Magistrates Court of Tasmania, 27 July 2016) at
[42].
[571] [1997] HCA 31; (1997) 189 CLR 579 at
638.
[572] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 50.
[573] Brown v Tasmania
(2017) 261 CLR 328 at 371-372 [139]. See also Unions NSW v New South
Wales (2013) 252 CLR 530 at 556 [44]; [2013] HCA 58; McCloy v
New South Wales [2015] HCA 34; (2015) 257 CLR 178 at 195 [2].
[574] Minister for Immigration
and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713 at 739 [133]; [2018] HCA 30; 357 ALR 408
at 437; [2018] HCA 30.
[575] Lange v Australian
Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 561.
[576] S v Manamela [2000] ZACC 5; 2000 (3)
SA 1 (CC) at 41 [95], not dissenting on this point: see at 20-21 [34].
[577] McCloy v New South
Wales [2015] HCA 34; (2015) 257 CLR 178 at 195 [2], 211 [58], 217 [81]; Brown v Tasmania
(2017) 261 CLR 328 at 372 [139], 418-419 [282].
[578] Australian Capital
Television Pty Ltd v The Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 169; [1992] HCA
45; Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 at 339; Levy v
Victoria [1997] HCA 31; (1997) 189 CLR 579 at 618-619; Hogan v Hinch [2011] HCA 4; (2011)
243 CLR 506 at 555-556 [95]; [2011] HCA 4; Wotton v Queensland
(2012) 246 CLR 1 at 16 [30]; [2012] HCA 2.
[579] Reproductive Health Act,
s 9(2).
[580] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 51.
[581] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 50.
[582] Police v Preston and
Stallard (unreported, Magistrates Court of Tasmania, 27 July 2016) at
[10].
[583] (2014) 134 S Ct 2518.
[584] Police v Preston and
Stallard (unreported, Magistrates Court of Tasmania, 27 July 2016) at
[53].
[585] Public Health Act,
s 185B(1) (definition of "safe access zone").
[586] Victoria, Legislative
Assembly, Parliamentary Debates (Hansard), 22 October 2015 at
3976.
[587] See Public Health Act,
s 185B(1) (definition of "prohibited behaviour", para (b)).
[588] (2017) 261 CLR 328 at 373
[146].
[589] (2017) 261 CLR 328 at
356-357 [77], 367 [117].
[590] See (2017) 261 CLR 328 at
387 [191], 400 [240].
[591] Reproductive Health Act,
s 9(1) (definition of "prohibited behaviour", para (d)).
[592] Reproductive Health Act,
s 9(4).
[593] (2017) 261 CLR 328 at
502-506 [556]-[563].
[594] (2017) 261 CLR 328 at 373
[146]; cf at 423 [291].
[595] (2017) 261 CLR 328 at 481
[489], 494 [533].
[596] King, Judging Social
Rights (2012) at 1.
[597] McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 195 [2].
[598] Yowell, Constitutional
Rights and Constitutional Design (2018) at 31, referring to Lithgow v
United Kingdom [1986] ECHR 8; (1986) 8 EHRR 329 at 372 [120].
[599] Yowell, Constitutional
Rights and Constitutional Design (2018) at 31, referring to Trakman,
Cole-Hamilton and Gatien, "R v Oakes 1986-1997: Back to the
Drawing Board" (1998) 36 Osgoode Hall Law Journal 83 at 95, 105. See
also Hogg, Constitutional Law of Canada, 5th ed (2007), vol 2 at 152.
[600] Grimm, "Proportionality in
Canadian and German Constitutional Jurisprudence" (2007) 57 University of
Toronto Law Journal 383 at 393.
[601] Grimm, "Proportionality in
Canadian and German Constitutional Jurisprudence" (2007) 57 University of
Toronto Law Journal 383 at 395.
[602] Grimm, "Proportionality in
Canadian and German Constitutional Jurisprudence" (2007) 57 University of
Toronto Law Journal 383 at 395.
[603] Grimm, "Proportionality in
Canadian and German Constitutional Jurisprudence" (2007) 57 University of
Toronto Law Journal 383 at 396.
[604] Grimm, "Proportionality in
Canadian and German Constitutional Jurisprudence" (2007) 57 University of
Toronto Law Journal 383 at 396.
[605] McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 195 [2].
[606] McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 219 [89].
[607] McCloy v New South Wales
[2015] HCA 34; (2015) 257 CLR 178 at 220 [90].
[608] Federal Commissioner of
Taxation v Tomaras [2018] HCA 62; (2018) 93 ALJR 118 at 137 [101]; 362 ALR 253 at
276-277.
[609] Brown v Tasmania
(2017) 261 CLR 328 at 422-423 [290].
[610] King, Judging Social
Rights (2012) at 187.
[611] R v Oakes [1986] 1
SCR 103 at 136.
[612] Allan, The Sovereignty of
Law (2013) at 247.
[613] Tasmania, Department of
Health and Human Services, Information Paper relating to the Draft
Reproductive Health (Access to Terminations) Bill (2013) at 4.
[614] Tasmania, Department of
Health and Human Services, Information Paper relating to the Draft
Reproductive Health (Access to Terminations) Bill (2013) at 17.
[615] Tasmania, House of Assembly,
Parliamentary Debates (Hansard), 16 April 2013 at 52.
[616] Theophanous v Herald
& Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 125; [1994] HCA 46. See
also Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at 48 [88], 75-76 [187]-[188].
[617] Roe v Wade [1973] USSC 43; (1973) 410
US 113; Planned Parenthood of Southeastern Pennsylvania v Casey [1992] USSC 112; (1992)
505 US 833.
[618] R v Morgentaler
[1988] 1 SCR 30.
[619] Kommers and Miller, The
Constitutional Jurisprudence of the Federal Republic of Germany, 3rd ed
(2012) at 373-394.
[620] Kagan, "Private Speech,
Public Purpose: The Role of Governmental Motive in First Amendment Doctrine"
(1996) 63 University of Chicago Law Review 413 at 515.
[621] Stone Sweet and Mathews,
"Proportionality Balancing and Global Constitutionalism" (2008) 47 Columbia
Journal of Transnational Law 72 at 164.
[622] Waldron, "Fake
Incommensurability: A Response to Professor Schauer" (1994) 45 Hastings
Law Journal 813 at 824.
[623] District of Columbia v
Heller (2008) 554 US 570 at 689-690. See also United States v
Alvarez (2012) 567 US 709 at 730.
[624] District of Columbia v
Heller (2008) 554 US 570 at 690.
[625] Which reads, relevantly:
"Congress shall make no law ... abridging the freedom of speech".
[626] Lange v Australian
Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 561.
[627] Madsen v Women's Health
Center Inc (1994) 512 US 753; Schenck v Pro-Choice Network of Western New
York [1997] USSC 17; (1997) 519 US 357.
[628] Madsen v Women's Health
Center Inc (1994) 512 US 753 at 758-759.
[629] Schenck v Pro-Choice
Network of Western New York [1997] USSC 17; (1997) 519 US 357 at 362-364.
[630] Madsen v Women's Health
Center Inc (1994) 512 US 753 at 776; Schenck v Pro-Choice Network of
Western New York [1997] USSC 17; (1997) 519 US 357 at 377, 380.
[631] Hill v Colorado
[2000] USSC 62; (2000) 530 US 703 at 725-726, 730.
[632] Hill v Colorado
[2000] USSC 62; (2000) 530 US 703 at 707-708.
[633] McConnell, in Sullivan,
"Sex, Money, and Groups: Free Speech and Association Decisions in the October
1999 Term" (2001) 28 Pepperdine Law Review 723 at 747, quoted in
McCullen v Coakley (2014) 134 S Ct 2518 at 2545 fn 4.
[634] Tribe, in Sullivan, "Sex,
Money, and Groups: Free Speech and Association Decisions in the October 1999
Term" (2001) 28 Pepperdine Law Review 723 at 750, quoted in McCullen v
Coakley (2014) 134 S Ct 2518 at 2545-2546 fn 4.
[635] Sullivan, "Sex, Money, and
Groups: Free Speech and Association Decisions in the October 1999 Term" (2001)
28 Pepperdine Law Review 723 at 736.
[636] (2014) 134 S Ct 2518.
[637] (2014) 134 S Ct 2518 at
2526.
[638] (2014) 134 S Ct 2518 at
2534.
[639] (2014) 134 S Ct 2518 at
2535.
[640] (2014) 134 S Ct 2518 at
2531-2532.
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