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High Court of Australia Transcripts |
Last Updated: 9 October 2018
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M46 of 2018
B e t w e e n -
KATHLEEN CLUBB
Appellant
and
ALYCE EDWARDS
First Respondent
ATTORNEY-GENERAL FOR VICTORIA
Second Respondent
Office of the Registry
Hobart No H2 of 2018
B e t w e e n -
JOHN GRAHAM PRESTON
Appellant
and
ELIZABETH AVERY
First Respondent
SCOTT WILKIE
Second Respondent
KIEFEL CJ
BELL J
GAGELER J
KEANE
J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 9 OCTOBER 2018, AT 10.01 AM
Copyright in the High Court of Australia
____________________
MR G.O’L REYNOLDS, SC: May it please the Court, in both matters I appear for the appellant with my learned friends, MR F.C. BROHIER and MR D.P. HUME. (instructed by Khor & Burr Lawyers and by DL Legal Lawyers)
MS F.L. DALZIEL: If it please the Court, in respect of the matter of Clubb, I appear for the first respondent with my learned junior, MS J.M. DAVIDSON. (instructed by Director of Public Prosecutions (Vic))
MS K.L. WALKER, QC, Solicitor-General for the State of Victoria: If the Court pleases, I appear in both matters for the Victorian Attorney-General with MS K.E. FOLEY and MS S. GORY. (instructed by Victorian Government Solicitor)
MR M.E. O’FARRELL, SC, Solicitor-General for the State of Tasmania: May it please the Court, in the matter of Preston I appear for the respondents, together with my learned friend, MS S.K. KAY. (instructed by Solicitor-General of Tasmania)
MR S.P. DONAGHUE, QC, Solicitor-General of the Commonwealth of Australia: If it please the Court, I appear with MR C.L. LENEHAN and MS C.G. WINNETT, for the Commonwealth Attorney-General intervening in both matters. (instructed by Australian Government Solicitor)
MR P.J. DUNNING, QC, Solicitor-General of the State of Queensland: May it please the Court, I appear with my learned friend, MS F.J. NAGORCKA, for the Attorney-General for Queensland intervening in both matters. (instructed by Crown Law, Brisbane)
MR C.D. BLEBY, SC, Solicitor-General for the State of South Australia: May it please the Court, I appear with my learned friend, MS P.D. STIRLING, for the Attorney-General for South Australia who intervenes in both matters. (instructed by Crown Solicitor’s Office, Adelaide)
MR G.T.W. TANNIN, SC: May it please the Court, with my learned friend, MS F.B. SEAWARD, I appear for the Attorney-General for Western Australia intervening in both matters. (instructed by State Solicitor for Western Australia)
MR J.K. KIRK, SC: May it please the Court, I appear with my learned friend, MS Z.C. HEGER, for the Attorney-General of New South Wales intervening in both matters. (instructed by Crown Solicitor’s Office (NSW)
MR T.J. MOSES: May it please the Court, in the Preston matter I appear for the Northern Territory Attorney-General intervening. (instructed by Solicitor-General’s Chambers)
KIEFEL CJ: Mr Reynolds, I think you need leave to file some supplementary submissions.
MR REYNOLDS: Yes, I do.
KIEFEL CJ: I think there is no contest about that; the parties consent. You have that leave, Mr Reynolds. Could I also mention that the first respondent needs leave to file a notice of contention - or is that Victoria? Yes.
MR REYNOLDS: I had not caught up with that, I am afraid, your Honour.
KIEFEL CJ: I think there was a summons filed some time ago.
MS WALKER: Yes, your Honour, it was filed out of an abundance of caution because, as the Court would no doubt be aware, the basis on which the magistrate decided the validity of the provisions is different from the basis on which the - - -
KIEFEL CJ: The magistrate did not, on the approach taken, get into justification?
MS WALKER: Perfectly right, your Honour. So out of an abundance of caution we filed that summons to issue a notice of contention just to be very clear that that was the approach the Attorney was taking. It has obviously been apparent from the written submissions that that is indeed the approach the Attorney has taken.
KIEFEL CJ: Yes.
MS WALKER: And we would submit that, having filed that notice of contention early and made sure that all parties were on notice of the way the case was to be run, there is certainly no prejudice in now effectively either deciding that the notice of contention is unnecessary or granting leave to issue that notice of contention.
KIEFEL CJ: Yes, thank you. Mr Reynolds, is there any objection to the notice of contention?
MR REYNOLDS: Your Honour, I have not seen it and I should have. But from what my learned friend just said it is superfluous, really.
KIEFEL CJ: The written argument follows the notice of contention.
MR REYNOLDS: I do not understand it to be raising anything which is not otherwise already in issue.
KIEFEL CJ: Yes. On that basis, there will be leave.
MR REYNOLDS: Would your Honour pardon me for a moment? Your Honours, before we commence I need to raise just one matter for more abundant caution, and it is this, that there seems to be between what I will call the core parties in the matter – I am excluding the interveners – an issue about evidence and the status of certain evidence and whether it can be relied upon. Can I attempt, very briefly, just to indicate what the issues are, as I understand them, and what our suggestion - - -
KIEFEL CJ: Is this just in the Clubb matter or in both?
MR REYNOLDS: I think it is both, for reasons I will indicate in a moment. What I provide is, I hope, a succinct but, perhaps, superficial summary and it will not take very long.
GORDON J: Could you just identify for me, up front, what the evidential issue is, rather than the material?
MR REYNOLDS: Your Honour, the issue on which the evidence impacts is primarily on whether protests outside abortion clinics causes women psychiatric harm. That is the main issue. On that – if I can just give your Honours a checklist to begin with – Victoria – I may have missed one out but I think they rely on about six things – is, first of all, what is called the Allanson affidavit. Secondly, the Goldstone affidavit, thirdly, the White report, fourthly, what I will call the Hayes/Lowe study, fifthly, what I will call the Foster article and, sixthly, what I will call the Humphries’ summary which is a summary of a masters candidate’s thesis. That was all before the magistrate in Victoria, no issue about that.
Now, in the Tasmanian case, as I understand it relevantly, there was not any evidence directed to this kind of issue. However, in what is volume 11 of the book of authorities - it is called authorities - there is an attempt - I am not impugning anyone’s propriety but there is an attempt to introduce three things: first of all, there is the Humphries thesis, in other words, the full version of it; second of all, there is what I will call the Cozzarelli article of 1994; and, thirdly, there is the Cozzarelli article of 2000. None of that was in evidence but as I understand it Tasmania wishes to rely on that material on the issue that I have indicated. Now, in addition to that - - -
KIEFEL CJ: I am sorry, what was the issue that you indicated?
MR REYNOLDS: Primarily, your Honour, the issue of whether or not protests outside abortion clinics cause the women psychiatric harm.
KIEFEL CJ: I see, yes. Yes, you did indicate that.
MR REYNOLDS: There is a little bit more than that but I do not think your Honours will be misled for present purposes by that summary. Now, the final step is that we have provided by way of supplementary authority, again perhaps doing what Tasmania has been doing, an article by two doctors, Dr Turner and Dr McCaffrey and also by an academic, Ms Garratt, headed “The High Court, Abortion Clinic Speech Restrictions and the Assessment of Harm”, and that very briefly is a critique of the evidence that has been relied upon - I think it is confined to Victoria. Now, that is what your Honours, I suggest, need to know.
What we suggest would be desirable is that all of that material be before your Honours evidentially as it were, and that each of us can rely on it to the extent that it favours our arguments. Now, that is assuming that - that is our attitude if everything goes in.
KIEFEL CJ: But the article that you have referred to - is it not evidence?
MR REYNOLDS: Well, I would suggest that it is not in the sense that there would not be anything stopping me from having it before me now and just putting the points to your Honours by way of critique, for example, saying there is no control here. But there has been a suggestion by Victoria that it amounts to evidence and I am simply raising it with your Honours. So that is what we suggest - - -
KIEFEL CJ: Well, do I take it then that there is going to be argument about the status of these – not the evidence that was before the magistrates in a different category, but that there is going to be argument addressed to what the Court does with the evidence upon which Tasmania relies and upon which you seek to rely. Is that how it is to be approached?
MR REYNOLDS: Essentially. Yes, your Honour. I mean no one can dispute that the Victorian material is part of the record but where - your Honours know the principles. We are dealing here with an issue of constitutional fact in relation to an issue which has some analogy with a matter in rem and it would be, we submit, highly unsatisfactory to have two cases determined on different factual substrata. The appropriate and, we submit, convenient thing to do is to allow the material in, all of it and allow each of the parties as I said - - -
KIEFEL CJ: But it is not evidence.
MR REYNOLDS: Your Honour, I do not think it is either.
KIEFEL CJ: Neither is your article. Did the authors of this article swear affidavits to support an application for intervention, which was refused by Justice Gordon?
MR REYNOLDS: Yes, your Honour. I gather that there was an attempt by some group to try and intervene in the matter and they tried to introduce some affidavits. As I understand it, your Honour Justice Gordon rejected the application. I think in a loose sense the people who wrote this article we seek to rely on are affiliated with that group, if I could put it that way.
KIEFEL CJ: Yes, I see. We will proceed on the basis that those who seek to have the Court have regard to this material in some way will address the question of why and on what basis and anyone who suggests that the Court should ignore the material will also address that question.
MR REYNOLDS: As your Honour please. Can I simply indicate that I am not proposing to address those issues further unless invited to do so.
KIEFEL CJ: On what basis are we going to be left with this article? Are you going to rely upon it?
MR REYNOLDS: Yes.
KIEFEL CJ: What status do you say it has? It is an opinion, is it, untested opinion?
MR REYNOLDS: Of sorts, yes, your Honour, but these are matters, each of them – I will give your Honours a brief summary later on in my submissions, perhaps that may be the time to reappraise the matter – but they are all matters which it would be open to me to submit in any event. When I say “all of them”, most of them are. Perhaps if I can leave it there until I deal with the detail.
KIEFEL CJ: All right. When you come to rely upon it you might deal with it and deal with its relevance at the same time.
MR REYNOLDS: Your Honours, just a couple of things before I commence the substance of my submissions. First up, a small apology – our team had lost all our baggage until about yesterday afternoon so we are a little bit - - -
KIEFEL CJ: I heard about your misfortune, Mr Reynolds.
MR REYNOLDS: We are a little bit ragged and I may be jumping around trying to find references but, hopefully, it will not affect the substance of things too much. The other matter is this – your Honours should now have a synopsis for each of the two cases.
KIEFEL CJ: Yes, we do.
MR REYNOLDS: I am proposing to deal with the Preston Case first of all - if your Honours have that outline – and to present the detail of that particular argument first. Your Honours will see that at paragraph – if your Honours go to the synopsis – that the first issue we raise is the question of construction. The relevant legislation is contained in a number of places but the one I will be using is the one annexed to our submissions in-chief. There is annexure there of the key section which is section 9 of the Reproductive Health (Access to Terminations) Act 2013.
The principal prohibition – the relevant one – is in section 9(2) which states that:
A person must not engage in prohibited behaviour within an access zone.
“Access zone” is defined in section 9(1) to be an area of, basically, 100 metres from the premises. But the particular proscription that is in issue in this case is the definition of “prohibited behaviour” in paragraph (b), namely:
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 –
Under section 3 of the Act, which is to be found quoted at paragraph 9 of our submissions in-chief, one finds the definition of “terminate”, picking up the word “terminations”, and your Honours see that it includes abortifacient drugs, instruments and any other means. That is a definition of the word “terminate”. But, the Acts Interpretation Act 1931 (Tas), in section 24, says that:
where any word is defined every derivative of that word shall have a corresponding with such definition.
So we submit, clearly, that the word “terminations” in paragraph (b) has effectively the same meaning as “terminate” does in section 1.
Now, going back to paragraph (b) you will see the proscription is rather, I suggest, unusual because it is in terms a ban on protests – straight up, namely, it is narrowed to be in relation to a particular topic. I am not going to discourse on the meaning of “protest” but obviously it would cover most forms of criticism or negative commentary or negative communications in relation to the relevant topic. It would also cover many forms of communication from words, to signs, to symbols, to conversation et cetera.
KIEFEL CJ: That stands in contrast to the Victorian Act which, I think, uses the words “communicating by any means” in relation to termination – in relation to abortion.
MR REYNOLDS: Quite so. Exactly. The Victorian one is wider and would obviously include protest. But it is a rather, I submit, eye-catching matter that there would be an attempt by the legislature to focus as the primary aim of a proscription a protest in relation to a particular topic, particularly when, relevantly, protests are – no one would dispute – often political in content, and we will be coming to this in more detail later on, but where the particular topic, abortions or terminations, is a matter of controversy, a matter of great public debate and is, as it were, a hot issue in politics, both in this country and we have seen perhaps in the last couple of weeks, it is an enormously important political issue elsewhere, although I do not suggest that in Australia it has quite the same piquancy as it does elsewhere.
But this will cover, obviously, any form of anti-abortion protest although also any more widely any form of protest in relation to that topic. The words “able to be seen or heard” mean it is visible or audible.
GORDON J: Do you accept that they are words of limitation?
MR REYNOLDS: They have to be, your Honour, yes.
GORDON J: On the word “protest”?
MR REYNOLDS: Yes, they have to be. And one comes back, then, to paragraph (b):
by a particular person –
we suggest the word “a” means any. That is a hypothetical rather than an actual person. The word “accessing” is clear enough. The expression “attempting to access” has been the subject of some discussion in the submissions. We say that it means someone within the access zone who is on their way to the relevant premises. The Tasmanian respondents, as I will perhaps call them, suggest that it is more closely confined in area, in substance, because it relates to somebody who is actually trying but failing to enter the relevant premises. So as a rough summary the debate between us here is that if someone is roughly in the general vicinity of one of these premises and is on their way to the premises, then we say they are attempting to access.
NETTLE J: Within the 150 metre radius.
MR REYNOLDS: Yes, has to be, but, as Justice Gordon mentioned, there is a further circumscription - namely, that it has to be visible or audible by such a hypothetical person. We submit that what I will call the Tasmanian approach is not correct. There is no reference here to a notion of an unsuccessful attempt. If one looks at what Tasmania is saying, that would mean that the relevant person would have to be probably fairly close to the entrance of the clinic in most cases to be said on their view to be attempting an access. We say that is not how this should be interpreted.
The best indicator, we submit, that Tasmania is wrong in that respect is to be found by looking at the same words where they appear in paragraph (d) of the definition of “prohibited behaviour”. Your Honours will see that there is reference to:
intentionally recording, by any means, a person accessing or attempting to access premises -
Now, without boring into that in any detail, that is obviously stopping records being made of somebody going into one of these clinics, et cetera, and associating them with such a clinic.
On our view, that proscription would cover a situation where someone is, let us say – measurements are misleading here – 25 metres away from the entrance and we say that it would be verging on the absurd to say that the proscription in paragraph (d) would not cover that sort of situation or, as the relevant person walks closer towards the relevant premises, if that proscription really only applies when you are virtually knocking on the door then it would mean that there was not much utility in the proscription because one could evade its operation by using my expression “recording people who were on their way to the premises but not actually immediately attempting access”.
The other expression that is mentioned there in paragraph (b) is “premises at which terminations are provided”. I took your Honours to the definition of “terminate” in section 3. So that will include all forms of abortifacient drug, for example RU486, and similar drugs, nor, as the magistrate held at paragraph 26, does this have to relate to lawful terminations. This word in the plural, “terminations”, will include the singular. Can I refer in that regard to the Acts Interpretation Act (Tas), section 24(d). While I am there if I give your Honours the reference to the equivalent Victorian provision, which is in section 37(d) of the Interpretation of Legislation Act (Vic).
Now, if one looks at the word “premises”, that will include, we submit, a lot of places, at least potentially. It can include private homes; it could include hospitals, public or private; what are traditionally called GPs’ surgeries; any premises, for example, where an obstetrician or gynaecologist practises; also medical centres; and, as I say, a variety of other places where legally or otherwise an abortion is provided.
I have used the word “provided”. That is at the end of paragraph (b). We submit that that refers to any place where a termination is available if required, so it would apply even if the particular premises did not amount to premises where there had in fact previously been an abortion. For example, it is not very realistic, but if one had a shingle outside an office premises indicating that abortions were available on reasonable request, then even if the particular premises had not previously had a termination performed we would submit it would come within that proscription.
Otherwise, just to take one example, if you had a new clinic – I will call it an abortion clinic – opening up and obviously no previous medical services had been provided, we submit that a protest at its opening would be caught by this because, at that clinic, abortions are available if required.
In contradistinction, if your Honours will have noticed, but it is very important, to the Victorian Act there is not any tailoring in paragraph (b) towards, we would submit, any particular purpose, at least not obviously. As we will be looking at later, the Victorian Act talks about a communication on a topic which is reasonably likely to cause distress or anxiety. This proscription applies without any such rider or caveat. It also, if one looks at paragraph (d), it ends:
without that person’s consent -
So a, what I will call a consensual discussion which amounts to a protest in relation to terminations, would be caught as well. So, to take a more practical example or a more realistic example than the one I just gave, even, for example, if a woman who was in the early stages of pregnancy invited someone to indicate why they thought she should not proceed with a termination then it would come within this proscription. Now, to particularise that a little further - - -
KIEFEL CJ: The consent relates only to recordings.
MR REYNOLDS: I am sorry?
KIEFEL CJ: The requirement of consent relates to recordings, not just any discussion.
MR REYNOLDS: Yes, perhaps I did not make it clear, your Honour. The point I am making is that paragraph (b) does not have those words and that the fact that paragraph (b) does not but paragraph (d) does shows at least implicitly, some legislative animadversion to this issue. Put another way, how could one construe paragraph (b) as not covering consensual protest where consensual protest has been specifically excluded from (d).
So, for example, if a woman, and I am - can I just say this at this point, where, as I said a little while ago, in an area of high political controversy I am going to attempt to approach the issues in this case with what might be called a philosophy of strict legalism, but every now and then I have to touch on the sort of issues on which there is such a split in the community, but I will be doing that only very rarely.
Now, I am just going to touch slightly on such an issue here by giving your Honours the example of a situation where a woman who is the early stages of pregnancy is going to the clinic and wants to seek advice and she says, for example, something like “My boyfriend is pressuring me to have an abortion. Do you have any advice on that issue or what my options are?”
Now, using that as an example, if somebody in this vicinity were to respond and say well, I suggest you should not have an abortion and that you should consider these other options which I do not need to adumbrate or there are these other counsellors that you can speak to, or it is a financial issue, perhaps raise that - - -
BELL J: I think we have the general sense. You contend that that consensual discussion would come within the concept of a protest in relation to termination?
MR REYNOLDS: If it came within the definition of “protest”. So just to - - -
BELL J: How might it come within that definition for a person to make a request of another for information on the topic of abortions and be supplied with an answer to that request?
MR REYNOLDS: Well, as I said, your Honour, if within the answer there is implicitly or explicitly something which can fairly be described as a protest in relation to termination, then it would, and I gave an example a moment ago.
One example would be - and I think these are the words I used - I say that you should not have an abortion and that it is not the best thing to do and there are other alternatives which are better generally and suggest better for the individual. Now, one could give - - -
GORDON J: Can I just test that, Mr Reynolds. For this, you started as I wrote down, that the definition of the word “protest” is to be read as implying negative criticism or negative comment.
MR REYNOLDS: Yes, your Honour. In relation to that particular topic, one could perhaps even go broader than that.
GORDON J: Go where, sorry?
MR REYNOLDS: One could perhaps even go slightly broader than that as well, but - - -
GORDON J: Well, I am just trying to work what you say the word “protest” means. Justice Bell’s question was trying to elicit, I think, as I understood it, what are the parameters of that word “protest”. Is it something which requires more than, for example, a private discussion between two individuals about there are alternatives available to you? Does it require something further and what is it, what are the parameters, what do you say we are to read “protest” as meaning in this context?
MR REYNOLDS: Well, your Honour, anything which is anti-abortion would come within that descriptor.
BELL J: Including a response to a request for information by a member of the public.
MR REYNOLDS: Yes.
BELL J: I see. Mr Reynolds, it seems to me that in analysing what might or might not come within the terms of the offence created by section 9(2), it would be useful to look at the elements of liability and to consider whether the presumption of mens rea applies to the offence.
Since, if it does, one would look to proof of the general intent to commit the offence as requiring proof that a person had knowledge of the circumstances which give the Act its criminal character. And if that is one way, that is the correct way of looking at the provision, that might operate to reduce the drastic consequences that you posit respecting the width of the concept of premises at which terminations are provided.
I do not understand it to have been in issue in these proceedings that the premises were known to be premises at which abortions were provided. But depending upon whether or not the offence has a mental element, the notion that one might commit the offence by happening to be protesting about abortions outside a doctor’s surgery at which are known to the public an abortion has been or might be provided, may be answered by consideration of that aspect.
MR REYNOLDS: Well, your Honour, can I respond in this way. I am dealing with the issue of whether what I will call an anti-abortion response to a question – invitation made by the woman – would come within this phrase. Now, the question of mens rea in relation to knowledge that the premises are an abortion clinic, for example, I submit, is different from the one that I am addressing because - - -
BELL J: Mr Reynolds, I was taking you, by my question, to your earlier submission but, may I add, making the same point that if the offence is one of mens rea then it might equally address the concept of protest in the sense that a person responding to a request for information in the circumstances that you posit. It might be very difficult to see that they would come within the external elements of the offence and, indeed, the mental element, if it has a mental element.
MR REYNOLDS: Your Honour, all I am really saying at the moment is that that would come within a protest in relation to termination and it would not affect the force of what I am saying if, for example, this is nearer to that issue a prosecutor had to show that a person, the recipient of the question, knew that what they were saying constituted “a protest in relation to terminations”. Now, they would know that what they were saying was of negative import in relation to that topic, that it was anti-abortion, so even if one takes as a given that there is, say, that extra element, then I respectfully submit it would not gainsay the proposition that I am getting to at the moment.
BELL J: Mr Reynolds, are you going to give us your submission respecting the elements of the section 9(2) offence? That would be, for my part, helpful.
MR REYNOLDS: Well, your Honour, at the moment I am trying to construe it and, in a sense, everything that I say is directed towards precisely what needs to be proved. And I am on this topic of what amounts to a protest in relation to terminations. I think I have dealt with all the other aspects in paragraph (b), and also if your Honour goes to section 9(2) the concept of an access zone and I am basically finished with that.
The only other thing that I would say in terms of what might be called the practical operation of this provision is that its effective operation would be to proscribe protest in relation to abortion where that protest was, as I would put it shorthand, not otherwise unlawful.
Now, your Honour Justice Nettle and also your Honour Justice Gordon dealt with a similar issue to this in the Brown Case, bringing in for consideration the various other forms of law, in a broad sense, which impacted upon the relevant proscription in that case.
If one looks at this issue of protest in this area, there are an enormous number of laws that would impact on what I might call various forms of protest. To take a somewhat flippant one, hitting someone over the head with a sign which was a protest would obviously be an assault. There is a whole string of other offences.
We have given them in the summary we have provided and it is not easy. I am sure, at least two or probably three of your Honours having done that exercise in Brown know that it is not easy to lift everything from a statute which could fairly be said to impact on the lawfulness of a protest, but if one assumes that all of those forms of protest are not the forms of protest to which this is directed, then the essential effect of paragraph (b) is to proscribe forms of protest in relation to terminations which are not otherwise unlawful.
What is, as it were, the residue – I think one of your Honours used the expression “increment” in Brown – when one looks at all of the various forms of protest which are otherwise proscribed, and including in this Act, for example paragraph (a):
besetting, harassing, intimidating, interfering with, threatening . . . obstructing or impeding –
et cetera. What is one left with? At the end of it all, the effective proscription here is one of what might be called, in summary, a peaceful or peaceable protest because just about everything else one can think of is otherwise proscribed either by this very section or by other general laws that forbid trespass and nuisance, insulting behaviour and a whole lot of other things which we have listed and which I am not going to go through.
KEANE J: Mr Reynolds, do you accept that, within (b), a protest has to be able to be seen or heard by the other person as a protest, as opposed to helpful advice?
MR REYNOLDS: In other words, that they have to interpret it as a protest?
KEANE J: What they are seeing or hearing has to be able to be seen or heard by them as a protest?
MR REYNOLDS: It is a bit that that is not an element in the offence. The question would be whether what is said or done is to be characterised as a protest.
KEANE J: As a negative criticism?
MR REYNOLDS: Yes – essentially, yes.
KEANE J: So, the person, the recipient, has to understand that what is being said is negative.
MR REYNOLDS: Your Honour, I would not even go that far. But, for most practical purposes, that would be the case. But, I am jibing at embracing that as an element; that is all I am saying.
GORDON J: Is that because you perceive it to be something whereby the protest could be stopped under this provision even though there was nobody walking past at the time, i.e. as a preventative measure rather than requiring people to actually be the subject of the protest?
MR REYNOLDS: In part, your Honour. The next thing I was going to say is that that is our interpretation of the word “a” in that formulation. So, I said, it is a hypothetical, namely, if there were to be “a” person. So, to that extent also I am at cross-purposes with – or not at cross-purposes, I have put a submission which is contrary to what your Honour Justice Keane is putting to me; from that point of view and, as your Honour Justice Gordon says, it is linked with that, very much so.
GAGELER J: Mr Reynolds, the word “a”, indicates very clearly that protest is used as a noun and not as a verb. A natural reading of “a protest” in a context such as this is at a reverse to “a public demonstration”.
MR REYNOLDS: I would not, with respect, embrace that. The first example that comes to mind, for those reasons, is that if I am talking with my junior upstairs and there is a disagreement between us as to what propositions should be put, that barrister may say, I protest strongly against – it has certainly happened to me – you not putting this point and I think - - -
GAGELER J: Would anyone, sensibly observing the two of you having an animated discussion, say that the two of you are engaged in a protest?
MR REYNOLDS: Your Honour, they would say that what he is saying amounts, in awe, to a protest. I might say, you can protest all you like, but I am not putting that because I do not think it is arguable.
NETTLE J: You have slipped into the verb form.
MR REYNOLDS: Sorry, your Honour.
NETTLE J: You have slipped into the verb form away from Justice Gageler’s noun form as used in the legislation.
MR REYNOLDS: Yes. Your Honour, I submit there is not any - - -
NETTLE J: I mean, it is unlikely that if you express vehement disapproval of your junior’s performance upstairs that they would say of you that you are conducting a protest. They would say of you that you are conducting a trenchant criticism of his performance.
MR REYNOLDS: Perhaps, your Honour, in the interest of civility, we might leave that – put that example to one side. But, if I can return to what your Honour Justice Gageler was saying, the word, in its noun form and in its verbal form, we submit are not relevantly different and that, providing there was a – as I have said before, it was anti-abortion or negative in respect of abortion – it could come within the expression “a protest”, et cetera.
I probably cannot take that any further, but the matter that your Honour raises as to whether or not it has to be seen as a public protest is, with respect, perhaps relevantly not a practical issue because if one is in this public area 150 metres from the premises, most of the protests will be in public in any event. But I appreciate your Honour is testing what I am saying.
GAGELER J: Could I just test it a little further? If there were a private conversation between two people 145 metres from the entrance to the relevant premises, which was where one is expressing approval or disapproval of abortion, and if that private conversation is capable of being overheard by someone walking past on their way to access the premises, you would say that the definition is fulfilled, as I understand it.
MR REYNOLDS: Yes, I would. To pick up that example - the boyfriend, in the example that I used earlier, arrives when the woman is approaching the clinic and delivers what I will call a tirade against abortion because he wants to keep the child and for other reasons, and that is overheard by somebody, I say that that would come within the notion of a protest. It could constitute a protest in relation to terminations. I do not think I can take that any further, your Honour.
Can I deal with, next, the issue of burden? We dealt with that in our submissions at paragraphs 3, 4 and 5. Your Honours will see that we have summarised the next question, that is, after construction, what might be called the first Lange issue is whether the impugned law effectively burdens the freedom in its terms, operation or effect. That question relates to the manner in which the impugned provision affects the freedom generally rather than the operation of the provision in this particular case.
We go on to say – I do not take this to be a matter of dispute – that the law will effectively burden the freedom if it prohibits or puts some limitation on the making or content of political communication, that being a qualitative question to be answered by reference to the legal operation and practical effect of the law.
We submit that when one looks at paragraph (b), and that is of course the impugned provision that we are talking about, that satisfies that test. I am not sure that that is a hot matter of dispute between me and the Tasmanian respondents, but, whether it is or is not, it is probably convenient to dilate in some detail what we say about burden, because we are going to have to look at this in any event on the issue of proportionality.
Now, your Honours will see in paragraph 5 that there are a number of points that have been made in that regard and can I summarise them briefly - well, not very briefly, but by referring to them in this order. First of all, this a protest on prohibition which your Honours considered that is the notion of protest in Brown particularly at paragraphs 88, 150, 182 to 183 and 294 and we submit that protests or demonstrations are a characteristic method of political communication and that the - - -
GAGELER J: I am sorry, I am going back to an earlier question, but are you using the word “demonstration” interchangeably with “protest”?
MR REYNOLDS: Not interchangeably, your Honour, but obviously “protest” will include the forms of protest that your Honour put to me. I am trying to show burden on political speech so it is easier to pick up on the substance of what your Honour put to me, for example, that we are talking about public protest, but I am not limiting myself to that, but that is the easier forensic hit, as your Honour knows is to focus on that type of protest and that is where I will veer towards that because it helps me, hopefully, to get a little bit of momentum on the burden argument by focusing more on that public aspect.
GAGELER J: It is also related to the facts of your case, the public protests, is it not?
MR REYNOLDS: Yes, your Honour. The point that I am trying to make is that if one looks at the burden on political speech, this notion of protest, and what I will call the right to protest, is a critical aspect of our system of government. It is a means of communication relevantly by the electors to the elected, by the electors to other electors, by the electors to the Executive and it is a critical means of getting the media to assist in such communications and it is critical to putting pressure on government.
We have given your Honours a brief quote, or a single page, from - apparently not. This is one of the matters I was referring to earlier. There is a book called Freedom of Speech, your Honours probably know, the second edition of which is by Eric Barendt and your Honours will have in a moment – said there would be some infelicity and here it is. Perhaps if I can read the relevant paragraph which is at page 268 and what the author says is that:
For many people, participation in public meetings or less formal forms of protest-marches and other demonstrations on the streets, picketing, and sit-ins-is not just the best, but the only effective means of communicating their views. Leader-writers, journalists and other writers, politicians, and celebrities can use the mass media, but these opportunities are regularly available only to a small minority. Taking part in public protest, particularly if the demonstration itself is covered on television and widely reported, enables people without media access to contribute to public debate. A right of peaceful assembly –
which is related, I interpolate:
is an important freedom, even though individuals can also write letters to newspapers, participate in radio phone-in programmes, and engage in discussion on the Internet. One has only to recall the impact of the worldwide protests and demonstrations before the war in Iraq to appreciate the value of this right to millions of people who might otherwise have felt completely voiceless on a matter of fundamental political significance.
KIEFEL CJ: Do I take it, then, Mr Reynolds, that you say the question of what burden is effected upon the implied freedom is to be assessed more generally, not just by reference to the conduct of the appellant on the particular day?
MR REYNOLDS: Yes, your Honour, we have said that the – this is in paragraph 3 – question relates to the manner in which the impugned provision affects the freedom generally, rather than to the operation of the provision in this particular case. I did not understand that to be a matter which was of any dispute in this Court’s jurisprudence, perhaps mistakenly.
KIEFEL CJ: But I think some of the submissions, if not in the Tasmanian case and the Victorian case, take a different approach.
MR REYNOLDS: So far as they do, we submit that they are wrong, that that the question at this stage of the inquiry is one which is more generalised. We say that that is clear on the cases.
NETTLE J: Mr Reynolds, in Brown, Dr Brown gave sworn, uncontradicted evidence that protesting next to the chainsaw so as to attract the television cameras was critical to the effect of the protest. There is no evidence of that kind in this case, is there, or is there?
MR REYNOLDS: No, but I am going to come to that in a moment, if it is convenient.
NETTLE J: Certainly.
MR REYNOLDS: If your Honour will forgive me for trespassing upon – actually, a bit more than that. If your Honour would like me to deal with that now, I can. But I think, your Honour, in about three or four minutes I will be coming to that.
NETTLE J: Certainly.
MR REYNOLDS: That is the notion of onsite that I am coming to next. This, as Professor Barendt said, is linked to other rights such as the right of peaceful assembly – I will explain what I mean about “right” in a moment – the right of reasonable use of a highway. It is also connected with the right to petition Parliament.
There is a reference I have to volume 10 of Holdsworth, A History of English Law, which I have mislaid. I will supplement later, if I may. But this right of petition is referred to in the Bill of Rights in 1689. Your Honours will recall also what Justice Murphy said in a case called Neal v The Queen [1982] HCA 55; (1982) 149 CLR 305 at 316 to 317. He referred there, quite famously, to Mr Neal’s right to be an agitator.
Now, I just want to dwell, if I may, on this notion of right for a moment. The traditional view is that we do not have rights, certainly not as the rights are understood elsewhere. They pop up implicitly in canons of construction but generally speaking we look to the notion of a right so far as we talk about it as something that is a sort of residual thing which is left over after one removes all of the relevant proscriptions. That is the traditional view and that is how I think Sir Owen Dixon explained one difference between our Constitution and the US on one occasion.
But there is, to some extent, a change in that and I wanted to advert to that just for a couple of minutes. Unfortunately we do not have a copy for your Honours because we had to try and copy it by hand but there is a famous statement by Lord Denning in a case called Hubbard v Pitt (1976) 1 QB 142 at 178 to 179 where he talked about the right to protest and that was referred to by the House of Lords in a case called DPP v Jones [1999] UKHL 5; (1999) 2 AC 240 and relevantly at 287 at letter E that passage is quoted and likewise at page 288 at letter D there is quote from another English judge referring to the right to protest.
Now, this line has been picked up, and I will deal with this very briefly, in Hong Kong, and your Honours should have and my friends should have a decision of Yeung May-Wan & Ors v Hong Kong Special Administrative Region [2005] HKCFA 24; [2005] 8 HKCFAR 137. The relevant passage is at paragraphs 42 to 43.
This is a judgment your Honours will note of the Chief Justice Li and Justices Chan and Ribeiro and also Sir Anthony Mason and what is conspicuous about paragraph 42 in the light of earlier comment is the repeated emphasis on this notion of right and your Honours see there in that paragraph - I will not read it to you - a shift there in this notion of what amounts to a right or whether there is any such thing as a right at common law. Here they are talking about the right to use the highway or reasonable use of the highway.
Can I give your Honours some further references? They quote DPP v Jones at the bottom of paragraph 42. There is a reference to Lord Hutton at 290H - I would suggest G to H is a better reference, that Lord Clyde at 279F also refers to a right and Lord Hutton also refers to a freedom and at page 288 D to E there is reference by Lord Irvine to the right to demonstrate.
They go on to talk about demonstration - this is at paragraph 44 but of course they have an express provision about that and to that extent the passage ceases really to be relevant, although I will give your Honours just a reference to another case in Hong Kong called Leung Kwok Hung v HKSAR. It is in the same volume of those reports and the particular passage is at page 245 at letter B in paragraph 1 of the judgment which talks about the freedom of peaceful assembly.
KIEFEL CJ: Mr Reynolds, even if you are in a position to call right of protest or demonstration a right, it is always subject to legislative restriction and that is what we are concerned with here, not the concept of rights. We are concerned with whether or not the legislation burdens that freedom.
MR REYNOLDS: If your Honours go to the very end of my synopsis, I am laying the ground work – this is paragraph (ix) – for a submission on proportionality, which picks up what Sir Anthony Mason said in Nationwide News about the extent to which the law derogates from relevant common law rights. Now, I have to lay the ground and that is what I am doing for that submission.
KIEFEL CJ: But there is no common law right of expression of political matters. It is regarded in the authorities since then and certainly since Lange as a freedom, which is not the same as a personal right. What we are concerned with is the limits of legislative power in relation to freedom.
MR REYNOLDS: Your Honour, I am raising for your Honours’ consideration whether you would like to determine that there is a right to protest and that there is a right to demonstrate. I think in addressing your Honour Justice Nettle earlier I conceded that is not the traditional view. I am raising a view which is not traditional but which has some support elsewhere and I am raising for your Honours’ consideration whether your Honours would like to follow that.
There are, of course, implicitly and otherwise, many cases which are against this approach. I conceded that but I am submitting, if I may be blunt, that a statement of the kind made inter alia, inter alios, by Sir Anthony Mason in the Hong Kong Case is something which your Honours would notice and give some weight to in that regard, particularly when it is conjoined with a submission made later on by Sir Anthony in the Nationwide Case about the evaluation on proportionality of the extent to which any common law right has been infringed.
Your Honour, it is no more than that but it is also no less than that. The reference I was fumbling for from - - -
EDELMAN J: You would go further than paragraph 42. In paragraph 42 he is talking about a freedom to use the highway for the purposes of passage and repassage. You are suggesting that there is a common law freedom to use a highway or public places not just for passage and repassage but for public communication.
MR REYNOLDS: Well, I pick up the next paragraph, and I have sort of glossed over things in the interest of time, but yes, reasonable use of a highway would include public protest, but also, to develop it in one sentence, by analogy with this - and your Honours can look at Hubbard v Pitt and DPP v Jones - your Honours would consider whether just as there is a right of reasonable use of a highway there is not also a right to demonstrate.
GORDON J: But, Mr Reynolds, as I understood it from this case generally, it starts from the proposition, does it not, that Article 27 of the basic law gave them, residents, freedom of speech, of assembly and of demonstration? It was dealing with a particular right under their basic law, which is not consistent with the way in which this Court historically looked at these concepts, giving rise to the implied freedom.
MR REYNOLDS: Your Honour, that is certainly what they get to - - -
GORDON J: To put it more bluntly, you have section 7 and section 24 in our Constitution in radically differently terms from the basic law of Hong Kong.
MR REYNOLDS: Your Honour, I have conceded part of that before. And, that is, paragraph 44 is about an explicit right of peaceful demonstration. But, paragraph 42 is not dealing with that. It is dealing with a common law and that constitutes an important statement, I would suggest, about the common law which is a heritage we share with those in Hong Kong and the UK and they are addressing, I would suggest, indubitably the notion of common law in that paragraph. Of course, they go on to consider the basic law further on. The reference I was fumbling for before to Holdsworth about the connection to the right to petition and the right to public meeting is in volume 10 at page 702. I said I would move on to the notion of onsite.
KIEFEL CJ: That might be a convenient time. We will take the morning break.
AT 11.16 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.31 AM:
KIEFEL CJ: Yes, Mr Reynolds.
MR REYNOLDS: Moving next to a notion of onsite, that is a matter which your Honours considered in various passages in Brown. The proscription here applies to access zones, that is, around abortion clinics. We submit that such areas are of critical importance for anti-abortion protest and, at least arguably, the critical sites for such protest.
We submit that it is notorious that such areas are traditionally used for anti-abortion protest and that much - perhaps most - abortion protest occurs there and that such protests have been important to citizens in promoting anti-abortion views, and such protests have made the anti-abortion view more well known.
No doubt one of the reasons for the proscription is the prevalence of such protests which everyone would have seen from time to time in the media. These protests are relevantly within the characterisation of “onsite” and such protests have, as your Honour Justice Gageler said in paragraph 191 of the Brown Case, great communicative power and in particular to attract the attention of the public and the politicians. We submit to deny anti-abortion protests in these areas substantially burdens the freedom. Can I refer in that regard to paragraph 193 of Brown and to the decision in Levy 189 CLR at pages 622 to 623.
Can I mention at this stage what I respectfully suggest is a very good article, which your Honours should have a copy of, before the High Court, by Shireen Morris and Adrienne Stone, which is a galley proof and has draft pages like the US reports. In a general sense, I commend it to your Honours’ attention. If I may respectfully say, so much of the - - -
KIEFEL CJ: It would probably be more helpful if you had told us the point you wanted to make from it.
MR REYNOLDS: The point that I wanted to make from it is, first of all, a general one, and that is that your Honours would be aided by reading the article because it is very clear and hits a lot of the important issues. Relevantly, to the point that I am making, there is discussion of this notion of onsite in this context, particularly at page 13 at point 7, and page 7 at about point 8, particularly with footnotes 38 to 40.
Sorry, just before I finish on that, one takes as an example your Honours, or most of your Honours, are old enough to remember the anti-apartheid protests in the 1970s and also to remember where they were occurring and they were principally at sporting contests, usually rugby at which the South Africans were playing.
Now, a proscription on anti-apartheid protests at sporting contests where the South Africans were playing would have had an enormous effect on the ability of the protestors to use their, as your Honour Justice Gageler - - -
NETTLE J: That is because everyone liked watching rugby. No one likes watching abortion clinics. It is a bit different.
MR REYNOLDS: Well, your Honour, it is a question – it is a more general point about the importance of certain sites to certain sorts of protests.
NETTLE J: No, no, but it is more important than that. That is why the evidence in Brown was important. Brown gave sworn evidence uncontradicted. It was critical to the success of his campaign to get cameras up close. We just do not have that and - - -
MR REYNOLDS: No, we do not and I have put it in terms of notoriety. Your Honour would be well aware that there has been – traditionally been some play in the definition of that concept, for example, Sir Owen Dixon talked about something like “everything which a reasonably intelligent person could be presumed to know about”. Now if, for example, one takes Sir Owen’s test here, I put various points in relation to notoriety which I stand by in that respect. No, I do not have that evidence and do I wish I did to be able to tell your Honour here it is, yes, I do. But, in my respectful submission, it is a very difficult task for Tasmania, especially having banned this sort of thing, to say that it is not an important site for anti-abortion protest.
We all know that is the whole reason for the legislation is that there is throughout this country has been an – this has been a sort of focal point for anti-abortion protest as it, can I also say, has been in many places worldwide, particularly in the United States and Canada. This is the spot to which anti-abortion protestors flock and I submit that there cannot be any reasonable dispute about that proposition.
It is no good to them to be able to exercise their, if it be a right, a right to protest down on the Derwent River handing pamphlets to the seagulls. They need to be able to go to a particular spot and that is where the, as your Honour Justice Gageler said, their protests will have the most communicative power. That is where it will get most attention. It will have media attention and it will get the attention of the other electors and of the elected and of the Executive. It is a, in my respectful submission, common sense proposition which we invite Tasmania to dispute if there is going to be an issue about it and we submit that there should not.
BELL J: Mr Reynolds, it may be one thing to say that it is notorious that protestors have sought to attending near vicinity of abortion facilities to make their views known. It is rather less clear, and particularly it does not seem to me to be supported by the evidence in this case, that that has been with a view to attracting public attention to the broader debate.
If one turns, for example, to the evidence of Mr Preston at core appeal book 42, it is at line 40 – his position is he seeks to make his views known and he is seeking to deter women about going into the clinic to terminate their pregnancy. I think Mrs Stallard’s evidence was to much the same effect. On the following page she said it was her intention to dissuade people from going into the premises.
So that one understands that people of strong, generally speaking, religious convictions seek to be near facilities where women are going to go to terminate a pregnancy because of a conscientiously held belief that it is part of their mission to dissuade them from proceeding with that action. That is very distinct from the value of an onsite protest as a means of getting public attention.
If we go back to the apartheid demonstrations, my own recollection is not that protestors got attention because they were standing outside sporting facilities, they got attention when they ran onto the field and were arrested. The notion of onsite as a valuable means of communication depends very much on the circumstances and, as Justice Nettle says, it is one thing in the Brown Case but the evidence here simply seems to me not to support the broader proposition you make.
MR REYNOLDS: Your Honour, I do not suggest that every person who would come within this proscription would come within the sort of banner-waving public protestor notion that is part of the discussion we had before. But the second thing is, as I said a while ago, I am looking at – if your Honours go to the outline again – paragraph 3, the second proposition, we are looking at the question of the manner in which the impugned provisions affects the freedom generally rather than the operation of the provision in a particular case.
So, sure, there may be situations – I concede as much – where you can come within this proscription and yet not be, as I say, within this general category of public political protest. Of course you can, and we have discussed it before.
BELL J: The point, Mr Reynolds, that I am raising with you is the absence of any foundation for the inference to be drawn that there is a particular utility from the point of view of a person seeking to persuade electors on an issue of significance such as this one about being within 150 metres of a facility.
MR REYNOLDS: Again, I would be repeating myself, your Honour.
BELL J: Yes.
MR REYNOLDS: I have put some propositions about notoriety and I am sure - - -
GAGELER J: Mr Reynolds, do you persist with the argument that you have put in writing to the effect that what the Americans call sidewalk counselling is, itself, political communication?
MR REYNOLDS: Is itself political communication? It may be.
GORDON J: Can you just explain to me why you say may be?
MR REYNOLDS: Because it all depends on the content of the counselling. To take an example – and I have already said to your Honour Justice Bell – one can easily posit examples of sidewalk counselling that are not political. I concede to that. But it would not be difficult, for example – with the aid of an Australian constitutional lawyer – to formulate a spiel which was used in sidewalk counselling which does constitute political speech. It will all depend upon the precise nature of exactly what is said in the counselling and it can take all manner of forms. The other thing I want to move to – and I am in danger of slipping behind in time when I am trying to deal with that - - -
KIEFEL CJ: I am sure you can remedy that, Mr Reynolds.
MR REYNOLDS: What, by sitting down, your Honour? Your Honour, the next thing is content, the notion of content-based prohibition and the simple point is that the proscription here is by reference to the content of the speech, that is, communications in relation to abortion. Your Honours know the cases which suggest or which state that restrictions on communications which target particular ideas or information - it has been held that such restrictions will only be justified by a compelling justification.
Can I give your Honours some references to that? Your Honour Justice Nettle in McCloy dealt with it at paragraph 252. It is in Australian Capital Television through Sir Anthony Mason in 177 CLR at pages 143 to 144. It is also in the decision in Cunliffe 182 CLR at 299 and Justice Kirby touched on it Levy 189 CLR at 647.
Can I move on from that then to a related point, is the notion of discrimination and the submission here is that in its practical effect this law discriminates against anti-abortion speech. Now, I cannot submit and I do not submit that, ex facie, this provision in some way discriminates against anti-abortion speech. But, picking up in particular what was said in the Brown Case at paragraph 199, I do submit that the practical effect of the law is to do so for a number of reasons. One is the points that I made before about the notoriety that much anti-abortion protest has occurred outside abortion clinics.
Nor is there any suggestion, as I understand it – at least, evidentially – that these are places to which pro-abortion protestors flock. It is not a case where it is suggested, for example, that this is a common forum for both pro and anti-abortion protestors. It is also, as I said before, notorious that anti-abortion protests have a long history at these places. The effect of a law such as this one is, in its practical effect, to deprive anti-abortion protestors of one of their primary fora for such protests – and probably their most effective forum.
That discrimination, I submit, causes a distortion in the free flow of information. It discriminates against a particular point of view and privileges the position of the other side. I am picking up, in the use of those words, statements, for example, by your Honour Justice Keane in Unions NSW 252 CLR 530, at paragraph 158; by your Honour Justice Nettle in McCloy, at paragraph 215; and in the Australian Capital Television Case, at page 174 per Justices Deane and Toohey.
The next point is, in short, that abortion is a topic of high political controversy. The issue of legalisation, the extent of legalisation - - -
KIEFEL CJ: Except that it has been settled by the legislation. That is not to say that people will not continue to hold their views, but when you say it is not a current controversy, is it, legislation has dealt with it?
MR REYNOLDS: Your Honour, the extent of legalisation, the conditions that need to be satisfied before abortions are granted will, and one suspects, will always be a matter of controversy. The availability, for example, the number of clinics which provide these services, the permissibility of protest at such places - - -
KIEFEL CJ: Do I take it what you mean to say, Mr Reynolds, is that these are matters about which a significant section of the community will always seek to persuade politicians?
MR REYNOLDS: That is part of it, your Honour.
KIEFEL CJ: Rather than it being a current political controversy?
MR REYNOLDS: Your Honour, that is part of it but not, with respect, the whole of it. One also looks at the issue of enforcement by the Executive of such laws and on the restrictions of such laws.
Some of your Honours will probably remember that there used to be a restriction which talked about risk to the health of the mother. There was, let us say, a very wide view taken in some quarters about that question and a very narrow view taken in others, and that therefore raised the issue of whether there would be enforcement by the Executive of those taking, for example, a very wide view of what amounted to be the health of the mother.
We have touched on the position in other countries such as the US, where this is, as recent events show, possibly the most red-hot political issue in the whole of the United States. This article by Ms Morris and Ms Stone deals with this issue at pages 5 to 8, especially at page 5, point 5. Obviously, what I am saying on this point has even more force if one takes a broader interpretation of the notion of political. It is a legitimate and frequently agitated subject of political debate.
The burden is also direct, we submit, noting Brown at paragraph [199]. It clearly targets communication, namely, abortion protests. Its legal operation operates on political communication. It is a significant proportion. A significant proportion of the communications burden is political. And to pick up a statement in McCloy at paragraph 93, it affects the ability of a person to communicate with another about matters of politics and government. There is not any relevant defence, at least not in this case, although there is a qualification in section 9(3). There are potentially a large number of these access zones, picking up our discussion earlier about premises.
On the issue of mens rea, which was raised with me earlier, the effective of the magistrate’s judgment here is not to articulate elements which have what I will call a mens rea content, so the position we will be taking in both matters is a little neutral, if I may put it that way, because although your Honours are only dealing with a portion of this case there is a residue which is the subject of appeal where other points, particularly construction issues, are going to be dealt with.
So, given that in both cases there is not, by the magistrate, any articulation of mens rea elements, if your Honours were to find that mens rea is a requisite element, then that will be more strength to my client’s plural arm on the remitter.
BELL J: That might depend on matters which would include, I suppose, the way the matter was conducted. It may be that there was no issue that, for example, the defendants in the Tasmanian proceedings had knowledge of the facts and circumstances that constituted their acts to be criminal, in which case little might turn on the fact that the magistrate did not in terms advert to mens rea.
MR REYNOLDS: Your Honour, in general terms, I accept what your Honour says. Obviously, it will depend on that. I am just dealing with the matter generally to indicate why it is that I am taking the stance that I have, rightly or wrongly, but given that – I withdraw that.
In the Tasmanian case, notwithstanding that no mens rea elements were adopted by the magistrate, the Tasmanian response has not raised this as an issue. So one assumes or one is entitled perhaps to assume that they do not articulate a mens rea requirement. It is different in the Victorian case, and I will be dealing with that because there is a specific submission.
BELL J: Mr Reynolds, how can we deal with a challenge to the validity of the legislation without determining what the elements of the offence that it creates are? That affects its scope, surely.
MR REYNOLDS: Yes, and, your Honour, I am putting a submission, or about to, which deals with that aspect whilst having prefaced it simply with an explanation as to why there is a rather odd situation in terms of how that issue arises but, of course, the construction impacts on validity. That is obviously why we dealt with it first up. What we say, and I can deal with it fairly briefly, is that if, as Tasmania submits, the purpose of this legislation is inter alia what I will call a health and safety purpose - I can give your Honours the cases if necessary in due course - but your Honours recall that it is stated in this Court on a number of occasions that the so-called presumption of mens rea in that context is not strong.
That is the first point. The second point which arises in relation to the Tasmanian legislation is a short but important point and that is, if your Honours go back to paragraph (d) where your Honours will see - that is in the definition of “prohibited behaviour” - that the first word is “intentionally”. Now, the use of that word there, where it does not, either in that form or with a similar mental requirement, does not appear in paragraph (b), suggests that if Parliament had wanted that form of mens rea requirement or something similar, then they would have said so and said so explicitly.
NETTLE J: Is that right? I mean, Sweet v Parsley all those years ago said these sorts of things do not make a great deal of difference when you are deciding whether the presumption is rebutted - - -
MR REYNOLDS: Well, your Honour, you will recall when one analyses these cases, it is more than a little ad hoc, if I can put it that way. It is, as I say, a question of construction. One seeks to grab hold of whatever one can to go either way and there are cases that have got similar offences that have been held to require mens rea, there are cases which have not. They are the two main points that I would put to your Honours.
NETTLE J: So, do you say there is no mental element in (b) then at all?
MR REYNOLDS: Well, I am not saying, no mental element. Part of my difficulty is that I am like Odysseus trying to grab hold of a phantom here and knowing what is put by Tasmania, in particular, as to what the mens rea requirements are. All I am doing - and I appreciate it is not altogether satisfactory - is putting a couple of general points on the question of mens rea and strict liability.
NETTLE J: But as Justice Bell says, we have got to decide in order to work out the scope of the effect on the implied freedom.
MR REYNOLDS: Yes.
NETTLE J: Either it is for mens rea or it is He Kaw Teh, is it not?
MR REYNOLDS: Probably.
NETTLE J: And likely the latter, given that it is a statutory regulatory offence, as Tasmania says about health.
MR REYNOLDS: Well, in that area that, as I said a moment ago, the presumption is not as strong so - - -
NETTLE J: Quite, therefore one would not expect intent as a rule, as an element of the offence, but you would expect honest and reasonable mistake and knowledge of the facts which constitute the offence, would you not?
MR REYNOLDS: Well, it all goes to whether there is a requirement that there be knowledge as to the premises, and if there were then you need to deal with this issue of whether honest and reasonable mistake of fact in that regard was appropriate. In terms of whether - - -
BELL J: That is a classic difficulty with cases of this kind, but one looks to not just the Act in (b), an act amounting to a protest, but there are surrounding circumstances, and if you go to He Kaw Teh it would be difficult to see, absent clear language, that the requirement would not be to establish not just the voluntary intentional act of protest, but knowledge of the circumstances that made the act criminal.
MR REYNOLDS: Well, your Honour, it would be mainly in relation to whether they are premises at which terminations are provided, because if one construes the notion of able to be seen or heard by a person accessing or attempting to access the way that I have construed it, it is difficult to see what the mens rea requirement would be if one were to argue for it.
I dealt with premises a moment ago. As to whether it is a protest, I would submit the debate is a fairly errant one. One is probably - take an example of something said, if what is said constitutes a protest in relation to terminations, I would submit that would be enough and there would not be any additional mens rea element on that. So, if one were able to characterise the relevant communication in that way, that would be sufficient.
Your Honours, that deals with burden. In terms of compatible purpose, that is dealt with in paragraphs 6 to 11 of our outline and we start with a proposition of whether the purpose of the impugned provision is legitimate in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. And we have italicised the words in the purpose of the impugned provision which here, of course, is paragraph (b).
So there are a couple of questions, what is the purpose and, second, is it compatible. Unlike the Victorian case, there is not an express statement of statutory purposes. So we have said in our reply, particularly at paragraphs 5 to 13, the submissions for the Tasmanian respondents hint at a substantial number of possible purposes which rather suggests that this was not an issue which was particularly well thought through. I do not mean by counsel, I mean by the legislature.
But at paragraph 67 of their submissions, when they seem to focus on the notion of the purpose of the impugned provision, the respondents raise four purposes, which we have set out at paragraph 8 of our outline. And your Honours will see that that statement there is, in effect, identical to that found expressly in the Victorian Act but the Tasmanian respondents say “me too”. We say, implicitly, that these four purposes are the purpose of the impugned provision. We take up the cudgels on each of those points – that is, as to whether or not the impugned provision does have any or all of those purposes.
We also submit that the second purpose there relating to dignity is not a compatible purpose insofar as - - -
KIEFEL CJ: Why is that, in the sense that, according to McCloy at paragraph 31, the relevant purpose is one which:
does not impede the functioning of that system –
of representative government. How do you say respecting the dignity of persons impedes the functioning of the system of representative government? I would have thought it enhances it.
MR REYNOLDS: This, in a sense, is an old chestnut. It is inherent, we submit, in political speech that either groups or individuals will be criticised and otherwise the subject of comment, with a resultant loss of dignity. It is part and parcel of what is a sine qua non of political speech. It would not obviously apply just in this context. For example, criticisms of bankers or of men by feminists, or of a variety of other things - - -
KIEFEL CJ: But that is to say no more than speech should be free. That is not really addressing the question that Lange poses: how is this purpose inconsistent with or incompatible with notions of representative government?
MR REYNOLDS: Well, because so much of political speech must have the quality of affecting the dignity of any number of people potentially and because that is, we submit, a truism, it is not a compatible purpose to say that the purpose of a particular provision is to respect the dignity of another person. It is too much part and parcel of what is involved in so much political speech. It is a short response but I submit that is the gist of it.
KEANE J: Mr Reynolds, is there any case which deals with such a direct attack on individuals who are targeted in a way that they can be targeted by the kind of site-specific protests you talk about? Are there any cases which deal with that and which say that attempts, for example, to shame particular individuals, seen to use particular facilities, is not apt to protect their dignity in a way that is consistent with the implied freedom?
MR REYNOLDS: Your Honour, for what it is worth, I cannot think of a case.
KEANE J: It would be unusual, would it not, the notion – or it would be counterintuitive, perhaps – the notion that legislation that is intended to protect the privacy and the dignity of individuals against shaming behaviour – it would be counterintuitive to think that that was inconsistent with the implied freedom because the very basis of the implied freedom is the dignity of the Australian people. Insofar as the people who are being shamed are members of the sovereign people, legislation that protects their dignity is surely compatible with it.
MR REYNOLDS: Your Honour, can I first hive off the question of privacy because I do not make that submission about compatibility in relation to that? But, I do stand my ground on the issue of dignity. Again, I come back to the point – and I am sorry to be repetitive – that it is – one cannot, as it were, qualify or undermine what I have said about the importance of speech which does affect people’s dignity by looking to the references to the Australian people as the ultimate source of the freedom.
GORDON J: Justice Nettle in Brown described it as a distinction being drawn between the implied freedom and this idea that you can “force an unwanted message on those who did not wish to hear it”.
MR REYNOLDS: Yes, well - - -
GORDON J: The question which arises is, is that something to which there is a distinction to be drawn and, if so, how does it apply here? Here, you have somebody seeking to do something which is lawful, i.e. entering a premise which provides a service, a medical service. So, is there a distinction to be drawn in that situation between something which is a burden on the implied freedom of political communication and something where you are thrusting an unwanted message on someone seeking to enter that premise?
MR REYNOLDS: We have jumped ahead to this dignity purpose, and it is not dissimilar to the notion of the incompatibility of hurt feelings which we also submit is not compatible. Your Honour will remember, with respect, the very powerful judgment of Justice Hayne in the Monis Case on that point. There is just too much of political speech and it is so central to so much of political speech to criticise, to reflect on the dignity of others, and to, if it be the case, hurt their feelings that to say that that is compatible with the freedom we submit is basic. There are many purposes which would be compatible but just to focus on people’s dignity or the dignity of a portion of society or their feelings or what have you just is too much in conflict with these three aspects of political discussion.
GORDON J: What about their right to access medical services or their ability to access medical services? The purpose of that is to permit free access to access these services. Is the restriction then incompatible – the purpose incompatible?
MR REYNOLDS: There are provisions here that deal with – say paragraph (a) – obstructions to access. When I looked at the fundamental operation of this provision and tried to make the point that it is directed, at least primarily, to peaceful protest, we submit that the mere fact of there having been anti-abortion protest in this vicinity does not impact on access. Evidentially, we come to this later on. The only basic responses to that, as I understand it, are, one, that if such protest occurs it may cause – may cause – some women to delay having the service; and, secondly, an argument which I confess I do not fully understand that it might deter some women from having an abortion.
Now, they are the only sort of points that are raised, as I understand it, against me on this issue of access. Now, I have jumped ahead to the question of proportionality and the factors that are relevant thereto, but, as I say, if one goes back to this notion of peaceful protest, as I explained earlier, or protest not otherwise unlawful, it is difficult to see that that would have any kind of impact on the notion of access, particularly when one considers, as your Honour Justice Nettle did in the Brown Case, that there are so many other laws that deal with blocking, impeding and what have you, and you have one here in paragraph (a) of this very legislation.
That is what I would say on that. I am in danger of falling behind here, your Honours, and I need to deal briefly with the issue of privacy. We do not suggest that is an incompatible purpose but we do suggest that there is nothing in the text of paragraph (b) which suggests any privacy purpose and we submit that it is difficult to see how any person’s privacy would be harmed if that particular paragraph were repealed.
Both with and without such a law anyone can attend the area – there is no proscription on that. Anyone can view the women and other relevant persons who are seeking to gain entry and no one will generally know whether the person who is approaching the clinic is a friend, a doctor, staff, a courier, a fireman, or whether they are pregnant or whether they are not, what service they are seeking at this particular establishment.
There is no such purpose in the text and one cannot point to what I will call any orthodox sense of privacy of which paragraph (b) speaks expressly or implicitly. If my opponents need to go to some vaguer, broader, unorthodox notion of privacy, then I submit that would be likely to run into compatibility problems, particularly if it ends up being in effect a form of asserting hurt to feelings or, as it would sometimes be called, “wounded dignity”.
But, as I understand it, the submission is not put with that precision and if it were -I doubt that it will be – they much prefer polities in justifying such laws to keep things very general, but if it were put with any specificity, one suspects, as I say, one would run into this problem of compatibility.
I think I have dealt with the issue – perhaps for too long – about the dignity purpose. Can I move to the purpose of safety. I have inserted, as your Honours will see in paragraph 8, the word “[physical]”. That is simply for clarity because I want to distinguish between, on the one hand, threats to physical safety, which is (iii), and, on the other hand, the notion of wellbeing, where I have inserted “[psychological]”. As I say, my purpose is to keep things clear and to keep those two purposes discrete.
In terms of safety, if one goes back to paragraphs (a) and (c) of the definition of “prohibited behaviour”, it would be impossible to argue that those paragraphs do not have some kind of safety purpose in them, at least to some extent. My point is that, when one looks at paragraph (b), particularly if one analyses its operation as I have put it, it is difficult, I submit, to see how it has any connection to physical safety if one assumes that we are talking here about this residual category of what I have called peaceful protest, then this law, which is intended to operate where other laws in relation to physical violence, for example, do not operate – this is in our synopsis that we provided and was the subject of leave earlier. The Tasmanian Parliament has dealt with what I will call all the usual threats to physical safety in the usual sorts of laws about assault and what have you.
If one looks at paragraph (b), it does not, we submit, on any reasonable view have a connection with preventing acts which would constitute, for example, violent or physical acts which would constitute a threat to safety. Those other acts, if they did, would for the most part be caught up by these other proscriptions in other laws.
NETTLE J: Is that to say that (b) is not necessary for safety?
MR REYNOLDS: No, not at all.
NETTLE J: It does not meet the criterion of necessity, you say?
MR REYNOLDS: That criterion has - - -
NETTLE J: “Criterion”, “test”, whatever it be described as, it does not meet it, you say?
MR REYNOLDS: If I can put it a slightly different way, there is no increment vis-à-vis physical safety provided by that paragraph which is not otherwise in other laws.
NETTLE J: Then we come to appropriateness and adaptiveness, and assuming one was stepping through the steps that we did, or at least some of us did, in Brown and others have done before, would it come then to a submission that, because it is covered otherwise, (b) is not necessary to the achievement of safety?
MR REYNOLDS: Yes. If your Honour jumps ahead to paragraph 16 and to (iv), I will be putting that point in that way, citing your Honour’s judgment in Brown.
NETTLE J: That is fine. If this is not that, then what is this directed to? If this is not directed to necessity, then to what is it directed?
MR REYNOLDS: We submit – and this is in paragraph 10 of our outline - - -
NETTLE J: Ten?
MR REYNOLDS: Ten – is that the purpose of paragraph (b) is to prevent protests in relation to abortions within 150 metres of premises where abortions are provided and we submit that that is not a compatible purpose.
KEANE J: Is it not conceivable that (b) is directed to, at least in part, the possibility of a physically violent reaction to provocation?
MR REYNOLDS: I submit not because that is a matter already dealt with by other laws. It is already proscribed. It is already unlawful to do those things.
KEANE J: It is unlawful to provoke?
MR REYNOLDS: Your Honour, again, provocation, depending on what one means, again is part - - -
KEANE J: I mean, provocation is a defence. But, insofar as the possibility that, for example, someone is accompanied by a male person who reacts violently to the protest, what law covers that – just the law about assault?
MR REYNOLDS: Reacts violently.
KEANE J: Reacts, perhaps, violently, leading to a fracas or an affray.
MR REYNOLDS: Your Honour, I will need to backtrack because we are into riot, affray, breaches of the peace.
KEANE J: No, no. Your argument is that this provision (b) is not capable of serving a purpose relating to protecting the physical safety of persons. Insofar as it is apt to prevent provocative behaviour that may lead to a fracas, why is it not apt to serve that purpose?
MR REYNOLDS: Your Honour, again, one needs to distinguish between whether – to use your Honour’s terms – there is a fracas or there is not. But, assuming there is not, we are dealing then with a situation of provocative speech – on your Honour’s example – which is, as you say, provocative.
KEANE J: Some people might take some language used in protests as fighting words.
MR REYNOLDS: Your Honour, there are, in our supplementary submissions, a whole lot of things we have pointed to which deal with - - -
KEANE J: Do any of them say, do not use fighting words?
MR REYNOLDS: Disturbing the peace – which is number 7 on our list – would fall into that category. And, there are also – it has not been included under “physical safety” because, I submit, it is not. If your Honour goes to the heading, “Psychological wellbeing”, one gets threatening words – this is number 32 – which would cover that or offensive behaviour which is also there, number 33.
GORDON J: Well, if you are right, Mr Reynolds, then this additional provision is not going to impose much burden, is it?
MR REYNOLDS: Well, your Honour, it imposes, we submit, a very important burden.
GORDON J: Well, we are trying to work out what the additional burden is if that is right. And it does not seem to, on that analysis of what you just put to us, to be very much at all.
MR REYNOLDS: Well, no. I submit there is a very big burden. A very big burden because it is a ban on protest at these important sites on this important topic, a ban, as I have said, on peaceful protest and that is important, and it does have operation and an important operation.
BELL J: Accepting for the present that (b) might be seen as addressed to peaceful protest in contradistinction to the behaviours in (a), its function might be seen in terms of a context of protection of safety, privacy and dignity.
To be targeted in circumstances where women attending an abortion clinic are in a vulnerable state, require advice and treatment within a confined period of time and if the presence, for example, of a large number of people standing, holding pictures dramatically portraying foetuses at various stages of development, is confronting that might deter women from entering the facility and obtaining the advice and any treatment that they reasonably require and that bears on their physical safety, on their psychological safety, to say nothing of their privacy and their dignity.
MR REYNOLDS: Your Honour, we do get to this in detail evidentially later on, on proportionality, and I am going to be addressing your Honour in detail about, as I said, these two points: one, deter, two, delay. But just to anticipate things, we submit that the evidence of such, that being - let me use the phrase - that that is not a mischief which is established by evidence and that is what comes up in the proportionality context.
GORDON J: I thought this submission was directed at, in effect, challenging the purposes that had been identified by Tasmania as the reason for the provision.
MR REYNOLDS: It is.
GORDON J: What we are putting to you - - -
BELL J: Indeed.
GORDON J: Sorry.
BELL J: No, sorry, go on.
GORDON J: What we are putting to you is, is that those purposes are just as Justice Bell put to you, not something which can be sliced and diced in the way you have. One has to look to it and to see what it is, is the identified purpose of the provision and is it not the position that it seeks to enable a woman to enter a facility undeterred in order to achieve and receive whatever treatment and advice she needs. Absent the provision, she is deterred from entering the facility to achieve and receive that which she is lawfully entitled to receive.
MR REYNOLDS: Well, your Honour, the best way of gauging, we submit - and there is some support for this in the authorities - to gauge the purpose of the provision is to look at what exactly it does, and it is in terms only a proscription on protest. It is not linked with the sorts of matters that your Honour talked about and it has not - and I know we are jumping ahead - been established by evidence that such, as we have put it, peaceful protest, would be apt to have this deterring and delaying effect that is talked about. Nor would one, looking at the legislation, infer reasonably that that is what the purpose of it was.
There is nothing in the context, we suggest, that suggests it. And what we are down to, we submit, is a view that has been taken by the legislature in the Parliament that this type of protest is, to use a word that appeared in one of the second reading speeches, is just unacceptable.
Now, one can talk about, there is a possibility of protest causing this, that or the other thing, and there are all manner of things which are possible consequences of protest. But we are dealing with a more specific question, namely, what is the purpose of this particular provision, and if it were aimed at the matters that your Honour raised it would have been easy enough to have a tailoring of the expression which dealt with the particular mischief which was perceived to be a problem.
So if we are talking about access, for example, one could easily – one does not need it, I might add, because of paragraphs (a) and (c) – but if that were the purpose, and we submit it is not, then one would tailor this ban on protesting to some effect on access, reasonably likely to affect access or reasonably likely to have some other consequence which would have the net result of affecting access.
This is just a banning protest simpliciter and we submit it is a rather extraordinary law. One of your Honours said in Brown at paragraph [210] - and I think we picked this up in our submissions at paragraph 52 - that a ban on protest is simply not compatible.
I refer your Honours, as I did a moment ago, to your Honour Justice Gageler’s statement in paragraph [210] which talked about constraining:
the conduct of protesters as protesters –
that being:
to limit freedom of political communication.
To limit freedom of political communication is not:
compatible with the maintenance of the . . . prescribed system . . . To constrain the conduct of protestors as protestors may be a means to a legitimate end, but it cannot be a legitimate end in itself.
That is what we say the purpose is. If - this is by way of fall-back, in paragraph 11 of our submissions – if this mischief is to eliminate the possibility of upset feelings, then your Honours know what we say about that. It is not, we submit, directed to any – if one talks about psychological wellbeing, we distinguish between, on the one hand, psychological harm, and, on the other, hurt feelings.
Your Honours have heard what I have said about hurt feelings but we submit that, if psychological wellbeing in the relevant purpose is interpreted to refer to psychological harm, then this particular provision does not have that purpose.
If I move to reasonable proportionality, your Honours will see from our outline the way we approach it from paragraphs 12 to 16. We start with the traditional Lange question – this is in paragraph 12 - as modified in Coleman – about whether the impugned provision is reasonably appropriate and adapted to advance the relevant purpose in a manner compatible with the constitutionally prescribed system of government.
Your Honours subsequently in McCloy, or some of your Honours, particularly at paragraph 2, elaborated on that particular test; likewise four of your Honours in the decision in Brown, your Honour Justice Nettle supporting that approach. At least four members of this Court in McCloy and at least four in Brown have adopted that approach. We would respectfully adopt that approach having the support, as I say, of four Justices in those two cases.
We go on in our submissions to say – this is at paragraphs 14 and 15 – that if there is any effective burden on the freedom it has to be justified and that it is for those supporting the impugned legislation to justify it in its measures which burden the freedom. At 15, the greater the burden on the freedom, the greater the justification required. We submit, as we submitted before, that the burden imposed by this particular paragraph (b) is substantial and that a substantial justification is required or, to use an expression your Honour Justice Gageler used in Brown, that it warrants strict scrutiny and requires a compelling justification.
The approach that we have taken in paragraph 16 has been to articulate, as it were, a series of minor premises. By that I mean factors which can be first of all factored into this approach taken by a majority in McCloy and Brown or, for that matter, to a different approach, for example, the one that your Honour Justice Gageler adopted in Brown. What we are seeking to do is to mention the – I withdraw that – to highlight these integers which we submit can be factored into the judicial evaluation or approach to the Lange test regardless of the precise approach that is adopted.
I was going to go through each of those but, in the interests of time and given your Honours’ familiarity with this area, I will not do that. But what I do need to do is to deal with each of the four purposes and highlight what we say about each of these factors in relation to them.
I will deal first with privacy, and I am going to track each of these factors through: (i) the nature and extent of the burden is a constant - your Honours know what I say about that. As for (ii), we submit that the extent of that as a mischief and, for that matter, its scope, have not been established by evidence; (iii) that the law does not, we submit, advance a privacy purpose; (iv) that it is not tailored to that purpose, as I noted before; (v) that it goes way further than is reasonably necessary to advance that purpose; and (vi) that other laws – this is in the summary we provided – including this law, and I am referring of course to paragraph (d) of our recording and section 9(3), deal with this issue of privacy and advance that purpose; (vii), if one focuses on the precise mischief, the alleviation of which is the law’s purpose, we submit – I said it a moment ago as well in the different context of purpose – it is unclear what the precise mischief is, or privacy mischief. We suggest that that itself suggests that it is not terribly important.
So far as (viiii) is concerned I should say this, that this factor is not directed to finding an obvious and compelling alternative which effects the relevant purpose but which has a lesser impact on the freedom. It is slightly different. It is directed to that being on justification, that in justifying the law the polity, we submit, needs to explain why its chosen means are reasonably proportionate and in some cases that may involve demonstrating to some extent why other laws would not achieve the same purpose but with less impact on the freedoms. So it is, if you like, a relevant factor approach which waters down that factor from the way it was, for example, treated by the majority in McCloy.
NETTLE J: Does not your proposition run counter to Murphy?
MR REYNOLDS: I submit not. All I am suggesting is that when one focuses on the notion of reasonably appropriate and adapted, et cetera, et cetera. But there is an a priori restriction on what your Honours are entitled to take into account in that broad inquiry. As I said a moment ago, it really just points up that if the legislature is attempting to demonstrate that what they have done is reasonably appropriate and adapted, then in some cases, not all, it may be relevant to say well why did – explain why they chose a particular means or mode of proscription when they could have chosen another means which was less – had less impact on the freedom but which may have worked either just as well or in a similar way to the proscription. But that is the gist of what we mean by that fact.
If I can go back to (viii), the point we do make is that if Tasmania states precisely what it is trying to achieve here then it may very well be that we can make a suggestion about an obvious and compelling alternative that deals with that. But I submit that is unlikely.
The final point – I see the time - is the point we discussed earlier in (ix). I think your Honours are apprised of it. Your Honours, in terms of time the way I have structured my submissions is to put the bulk of my argument on the Tasmanian argument, and I anticipate I will be a bit longer than the two hours we estimated on that. But I will be correspondingly shorter – I think much shorter – in dealing with the second case. If the Court pleases.
KIEFEL CJ: Thank you, Mr Reynolds. The Court will adjourn until 2.15.
AT 12.47 PM LUNCHEON ADJUORNMENT
UPON RESUMING AT 2:17 PM:
KIEFEL CJ: Yes, Mr Reynolds.
MR REYNOLDS: Your Honours, before the luncheon adjournment I was dealing with the issue of reasonable proportionality in the Tasmanian matter, addressing the test which we have set out at paragraph 12 of our written outline, namely, whether the impugned provision is reasonably appropriately adapted to advance the relevant purpose in a manner compatible with the system of government.
We dealt with the – I am dealing with each of the four purposes by reference to the nine points in paragraph 16 and this is all directed towards whether the burden which we say is substantial has been justified in this case. As I said before the adjournment, I am trying to identify various factors which can be inputted, as it were, into whichever approach your Honours take to that question and in particular to the approach taken by four Justices in McCloy and four Justices in Brown.
The next purpose I am dealing with is this purpose of respecting dignity, that is, respecting the dignity of the relevant persons. I did not say it before, but perhaps I should have, that we are dealing here not with women – just with women looking to have abortions – but we have nominated in paragraph 7 the other relevant persons that we are talking about here, at least according to the submissions made against us.
Now, as far as this purpose of dignity is concerned, if I can track these various factors and I will do so fairly briefly, the nature and extent of the burden, as I have said before, is a constant and I will not repeat the submissions we have made on that. As to (ii), that is the extent to which the mischief and its scope have been established by evidence, we submit that it has not been and we really challenge Tasmania to indicate how it is that that has been established.
As to (iii), we have submitted previously and I repeat it again that the law does not advance this purpose of dignity and as to (iv), again we have said it before, that it is not tailored to that purpose; point (v), that it goes further than is necessary for any purpose of dignity; (vi) that there are other laws on this issue of dignity which are in our hand-up; (vii) that it is unclear what the precise mischief is that is sought to be addressed by this law, that is, the precise mischief vis-à-vis, dignity and we suggest that that of itself suggests that it is not a terribly important purpose.
In terms of whether there are other reasonable ways of achieving this purpose, again we throw down the gauntlet to Tasmania to state what it is exactly that they are trying to achieve vis-à-vis dignity and if they can make that specific then we will attempt to rise to the challenge as to whether or not there is another way of achieving that purpose without this degree of effect on the freedom. As to point (ix), we have dealt with the relevant common law rights, as I have submitted previously.
So that deals with this test of reasonable proportionality in relation to this purpose of dignity. We submit that paragraph (b), the relevant impugned provision, is not reasonably appropriate and adapted to advance that purpose and certainly not in a manner compatible with the constitutionally prescribed system of government. We say it is not a particularly strong case at all on either of those first two purposes in relation to reasonable proportionality.
So far as what we have called in paragraph 8 the purpose of protecting the physical safety of the relevant persons is concerned, again I note that I have interpolated the word “physical” and I am going to address that purpose as if that was the purpose sought to be established. Again, if we go to paragraph 16, the nature and extent of the burden is a constant.
The second point, namely, the extent to which the mischief has been established by evidence – is a matter on which I have to spend a little bit of time on. As I understand the argument, what is put against my clients in both of these cases on this issue is two things: first of all, that “protest” within this proscription may cause delay in having an abortion which may – may – affect the quality of the outcome for the patient; and the second is that “protest” may cause a woman to be deterred from having an abortion – I am not quite certain how this works – either at that clinic or possibly deterred from having an abortion at all.
Now, I will be coming back to the studied opacity of the way that second point has been put against us but before I deal with the argument I have to deal a little bit with the issue identified at the outset, namely, the status of the evidence on these issues before your Honours. I identified at the outset of the case what that evidence was and I will not repeat that.
There are about half a dozen matters – pieces of evidence – that are in evidence on any view in the Victorian case. There are three documents which Tasmania appears to want to rely on which are not in evidence and of course we wish to rely on the article by Dr Turner and others ourselves.
I said before that we submit that the appropriate course would be to allow all of that material in as proof of relevant constitutional facts in both of these cases. I think it was put to me earlier that our article, that is Dr Turner’s article, is either not evidence or there is not much in the way of evidence at all and we submit that that is a fair characterisation of the document. To put it another way, what it does is to list a series of problems with the evidence in the Victorian case, and the point I made before, and I repeat now, is that it would be open to me to make those points as an advocate and to that extent those points are not really evidential.
So that is our submission so far as the evidence is concerned subject to one additional point and that is that – or a couple of points. The first is that it would, I respectfully submit, be undesirable if your Honours are dealing with two cases of this kind where, particularly on this issue of reasonable proportionality, you have a substantial amount of evidence in the Victorian case but no evidence if this extra material is not allowed in in the Tasmanian case, no evidence dealing with those points which can be relied upon in the Tasmanian case.
Unless there be any doubt we submit that if we are not allowed to rely on our article then Tasmania should not be allowed to rely, first of all on the material adduced in the Victorian case and second of all, on the three articles which they have placed in the appeal book.
KIEFEL CJ: What about the materials that are referred to in the second reading speech for the Tasmanian legislation, including the references to what occurred at the fertility control clinic in Melbourne?
MR REYNOLDS: Your Honour, so far as that can be used, it is what it is, and to the extent that the second reading speech can be utilised for restricted purposes the Interpretation Acts deal with it. We would submit, at least from my recollection, I think there was only one of those three documents that was referred to, namely, the Humphries thesis by the woman who was a candidate for a masters. Now, we submit that that should not go in either but - - -
GORDON J: It does explain, at least in part, one of the reasons why the legislation was passed.
MR REYNOLDS: Yes. It is referred to in the - - -
GORDON J: It identifies the percentage of people who were interviewed who felt stigmatised by the protests.
MR REYNOLDS: Yes, but as I say, there are other points of view, in particular even within that thesis there are some points that can fairly be made by our side as well. I hope that is clear. We submit that that is the approach your Honours should take, particularly given the breadth of your Honours’ power to admit evidence on constitutional facts in these cases.
What I will do, if I may, is to deal with all the evidence, or the evidence which perhaps can fairly be described as evidence provisionally but with those caveats. What I mean by that is I am going to deal with the Victorian evidence, what I will call the Tasmanian prospective evidence and also with our article, and summarise very briefly what the points are that are made in that material. Your Honours can rule in due course on which materials your Honours wish to rely.
KIEFEL CJ: Well, more to the point, what points you make about the materials. That is what we are really interested to hear.
MR REYNOLDS: Yes, your Honour, I am about to do that. The reliance is – can I deal first with this issue of delay which looks to be an issue that has more meat on it than this notion of deterrence? Reliance is placed by Victoria on two affidavits by Ms Allanson, first of all.
KIEFEL CJ: I think it is Dr Allanson, is it not?
MR REYNOLDS: Yes, I think she has a PhD but I do not think she is a medical practitioner, she is a psychologist – and also by a medical doctor, Dr Goldstone. Both of those affidavits are to be found in volume 6 of 7 in the core appeal book in the Clubb matter – that is the Victorian matter. The relevant paragraph in the Allanson case – the Allanson affidavit, I am sorry – is at paragraph 50 which is on page 18 of volume 6. That says – and it is rather revealing, the way it is drafted:
That patients may delay their treatment as a result of protestors –
I interpolate, not specified what sort of protestors we are talking about - violent, peaceful, obstruction or whatever:
is particularly concerning in light of research and best practice guidelines indicating that delayed access to health care may result in significant health consequences. For example, women only have the option of accessing a medical abortion (in comparison with a surgical abortion) up to nine weeks gestation; surgical options after twelve weeks gestation are more complex –
Dr Goldstone says something similar and that is to be found at page 247 of that same appeal book, relevantly, at paragraph 11 of his affidavit where he says:
Also, for women who have already decided to have an abortion, protest activity around a clinic may lead them to delay attending the clinic for treatment. From a medical perspective, delaying treatment can also lead to –
I interpolate, unspecified:
negative medical outcomes. Generally speaking, an abortion at a later gestational ages exposes the patient to greater health risks than an abortion performed at an earlier stage.
In both of those two paragraphs your Honours will have noted that they are talking – both of them - about possibilities. They say “may” or “can”. They do not provide any data for this, that is of people that have delayed or it has had this effect. It does not rise much above mere assertion.
NETTLE J: Mr Reynolds, was this material the subject of cross-examination in the Magistrates Court?
MR REYNOLDS: This is the Victorian material. No, it was not.
NETTLE J: So it is uncontradicted?
MR REYNOLDS: It is in that sense unchallenged by cross-examination, yes. That is obviously of some significance in that case, or it might be, to your Honours.
NETTLE J: But we are treating it as if it were referable to both proceedings, are we not, or we are asked to?
MR REYNOLDS: Again, if this material is going to be used against my client in the Tasmanian case then it would be a bit harsh, I submit, to say that because defence counsel in the Victorian case did not cross-examine on it then that redounds to the prejudice of the Tasmanian defendant because of the course that was taken in the other case.
It would also be unsatisfactory for your Honours to appraise the two matters in a differential way on this point, so I submit that that takes away a little bit of the sting of what your Honour says to me also for the Victorian case. But I have to concede that the way the case was conducted in Victoria – first of all, there was not any cross-examination and, secondly, there was not any contrary evidence either. It is not altogether satisfactory but that is where we are.
The next point – I have only a few more to go; only three or four – is that this evidence does not distinguish between what I have been calling peaceful protest on the one hand and other forms of protest on the other. If the purpose of the evidence is to demonstrate that there is a connection between delaying and a possible adverse outcome and peaceful protest then we say it does not get there. One can well imagine why other more violent forms of protest – this is part of the problem with all of the series or articles and evidence in this context – it just does not make the point cleanly enough - - -
GORDON J: It may make the point in this sense, that the second reading speech, at least for the Tasmanian legislation, the relevant Minister described, I think, that there was nothing peaceful about shaming complete strangers about private decisions that they made about their bodies. It may very well be that when you are dealing with this distinction between peaceful and non-peaceful that you may have a different view of what constitutes a peaceful protest.
MR REYNOLDS: Well, your Honour, I used that expression in a particular sense and I explained that before and that is the point that I am making, as it were, with that footnote and if one adopts a different version of what amounts to peaceful then that may impact on the validity of the point that I am trying to make.
The next thing, the adverse outcomes are not specified. Let me be clear about that, I am not suggesting that delay could not impact on the outcome. Of course it might, particularly it might impact in two ways: first of all if there is delay within the period for a medical abortion, then I concede there is a possibility of some unspecified, slightly more adverse consequence in that eventuality; and secondly, I concede that if the delay were to have caused the patient, as I will call her, to have to have a surgical rather than a medical abortion, then that could in some circumstances lead to what I will call complications or an outcome which would not otherwise have occurred.
But the difficulty is also that your Honours are trying to evaluate this issue of reasonable proportionality with some reference to the sort of mischief which would be avoided if this law were not valid and that obviously requires some focus on exactly how much better the result might be with such a prohibition and the difficulty is, we may be talking here, even though I have made the concessions I have made, with differences in outcome that are not huge. They may just be, and they do not go into any detail, slightly more discomfort or something of that description.
The other point that I would make is that both of these – this is a point made by Dr Turner and the other doctors in the article, is that both of these doctors have an affiliation with clinics that are, to put it bluntly, abortion clinics. To that extent that affiliation may impact upon how much weight ought to be given to their opinions and that is a matter which Dr Turner discusses at pages 8 to 9 of his article.
He also refers to certain other problems which I will mention briefly with the page number - on page 1 that there is a disproportionate focus on this fertility control clinic; on page 2 there is a failure to obtain data that accounts for the different sorts of protests - in other words that is the point I made before, that we do not know what sort of protest is alleged to have caused this delay - page 2, that the overseas experience that is referred to may well be different; page 3, there is no control group; page 3, there is difficulty in establishing what is called the baseline emotional state of the individuals concerned; page 4, there is the possibility of third party influence on the data collected. On the same page, third party influence also there is a risk of that in relation to completing the questionnaires.
On page 5, that the terminology that has been used may have skewed the relevant data. Also on page 5, this issue of author bias is addressed. Page 6, there is no evidence, and this is important, of recognised psychiatric harm in the evidence reviewed. On page 8 - - -
BELL J: Mr Reynolds, can I come back to this question of what is the significance of frank psychiatric injury to the issues with which we are concerned? I do not understand it to have been put. I am a little unsure why we are spending time attacking it.
MR REYNOLDS: Well, your Honour, on reasonable proportionality, it is important to know whether we are talking about what I have been calling hurt feelings on the one hand or actual psychiatric harm on the other and in this proportionality analysis I submit it makes a very big difference if one is factoring in what we have been calling - - -
BELL J: The matter I am taking up with you is, as I understand it, it has not been suggested that the purpose of the legislation is the avoidance of frank psychiatric injury.
MR REYNOLDS: Well, your Honour, if that is so then I perhaps do not need to take it any further. But my understanding is, with respect, that is incorrect and that what is suggested - and we are dealing here about physical harm of course - your Honour is, with respect, jumping to the next issue which is what I have called psychological wellbeing - and on that topic I understand the argument that is put against me is it runs this way, that protest unspecified may cause hurt feelings, upset in women and that that upset may then proceed to actual depression, that being a recognised psychiatric illness. Now, if that argument is not put against me – I understand it is – and we are only talking about “hurt the feelings” then relevantly on purpose - - -
BELL J: There is a distinction between what you describe as “only hurt feelings” and “frank psychiatric injury”.
MR REYNOLDS: Yes.
BELL J: Mr Reynolds, in any event you go back – you were taking us, I think, to the lack of evidence of frank psychiatric injury. That is the point you make, is it?
MR REYNOLDS: No. This is physical harm here and I am dealing, I agree, compendiously with what is in Dr Turner’s report and your Honour is picking up on the fact that I did mention psychiatric disorder - - -
BELL J: That is the matter I am picking up.
MR REYNOLDS: But that is slightly out of order, but I am just giving your Honours a - - -
BELL J: I am just responding to your submission. That was my query and you have addressed it. Thank you.
MR REYNOLDS: Fair enough, your Honour. Just to repeat that then, if I may, I have dealt with all of the basic points made by Dr Turner, most of which are fairly general but I take Justice Bell’s point that so far as I referred to psychiatric disorder that does not come under this heading. So this proposition that the evidence establishes – proves a mischief of delay, really I cannot say it goes absolutely nowhere, but I do submit that it is of – not of a matter that your Honours would give substantial weight to because of the caveats which I have indicated and that we are not talking, in the scheme of things, about some form of grave physical harm. It is the possibility of a slightly worse result.
Now, so far as deterrence is concerned on this notion of physical safety, I confess I am having problems identifying what the argument is against me and how that is established by any of these materials. As best I can understand it, it is that protest or perhaps peaceful protest causes women to be deterred. That much seems to be clear, but what they are deterred from it is difficult to say. It is not clear whether it is having an abortion, whether it is using this particular facility or whether it is just another way of putting the point about delay, meaning deterred for a period.
So I invite my friends to explain how that works, in particular by reference to the evidence because, for what it is worth, I have not been able to understand it sufficiently to formulate it for your Honours and then respond to it. In general terms, the issue is dealt with, to some extent, at pages 10 to 11 of Dr Turner’s report who discusses – and for reasons I mentioned before, I will not go into this – the possible benefits that may accrue if there is deterrence of a woman from having an abortion. This is one of the points that I said - - -
BELL J: Mr Reynolds, is that a submission you rely on?
MR REYNOLDS: Your Honour, I mentioned before that I was attempting to approach the matter, I think I put it, in a spirit of strict legalism. I said there were two or three points where - - -
BELL J: And this is one of the two or three?
MR REYNOLDS: Yes.
BELL J: Do you rely on it?
MR REYNOLDS: I have to put at least - - -
BELL J: The answer is yes.
MR REYNOLDS: - - - touch on this. Now, I said - - -
KIEFEL CJ: You do not have to put it at all.
MR REYNOLDS: I am sorry, your Honour.
KIEFEL CJ: You do not have to put it at all. You are senior counsel and you should be putting arguments which are properly addressed to the legal issues, not the opinion of someone who holds a personal, ethical, moral position. You do not adopt that position, Mr Reynolds, and you know that.
MR REYNOLDS: Your Honour, the difficulty I have is that I am responding to a deterrence from a particular thing which, as I explained, has not been identified and all I am saying is that there is another view.
KIEFEL CJ: If you are having difficulty understanding the submissions put against you, perhaps you best leave things to reply.
MR REYNOLDS: Your Honour.
KIEFEL CJ: It might be revealed to you in that process.
MR REYNOLDS: Your Honour. The other reference I will give to your Honours on this point about a deterrence is my reference to the article of – I think it is Dr Cozzarelli – the 1994 article at page 4889 of the appeal books - - -
GORDON J: Is this tab 69, Mr Reynolds?
MR REYNOLDS: Yes, it is - I am sorry, your Honour – which, about halfway down the main portion of text, says that:
during the entire period in which the study was conducted there were no instances in which a woman decided not to enter the clinic after being confronted by the anti-abortion demonstrators.
Now, we go back to these – that is the view of the evidence other than to say in relation to deterrence that the same problems I identified in relation to this evidence on delay also obtain here – missed possibilities, mere assertion, does not differentiate, peaceful protest, adverse outcomes not specified, et cetera.
Going back to these factors then at (iii), we submit that it is doubtful if there is any advance on physical safety which is the result of this law, I am sorry. As to deterrence, that is, I submit, unclear and as to delay it is weak. Fourthly, this is (iv), it is not tailored to that purpose. Fifthly, it goes way further than is reasonably necessary. Sixthly, there are many other laws, a great many, that deal with physical safety including paragraphs of this particular law and as to (vii), the precise mischief which is aimed at, namely, the alleviation of delay, it is difficult for the reasons I mentioned to say that that is of huge importance and your Honours have heard about the difficulty in formulating a response on the issue of deterrence. As to (viii), I do not think I need deal with that or with (xi).
Can I then deal with the final of these four purposes and after this section it will be - I will be fairly brief - that is, as to physiological wellbeing. Now, again I distinguished previously the distinction between psychiatric harm on the one hand and hurt feelings on the other. When I deal with these factors, I have to address that distinction to some extent.
So far as the first factor is concerned, again that is a constant. So far as the second is concerned, again I have to go into the evidence in a little bit of detail, not a huge amount I might add. The key problem here is that the need - I withdraw that - the failure evidentially for the respondents in these two cases to show a connection between peaceable protest and psychiatric harm, your Honour Justice Bell put to me that your Honour did not think that was even an issue and I submit that, as Dr Turner noted in the reference I gave before, I think it is page 6 at about point 8, none of these studies establish that, that is, they do not establish that peaceable protest or even protest causes hurt feelings which in turn causes depression.
All we get, I would submit, at most from the evidence adduced in the Victorian case is that it is suggested that by reference to some unspecified form of protest, hurt feelings have been occasioned and that some of the women may have felt depressed for a short time as a result.
Now, can I point your Honours briefly in the direction of evidence to the contrary, or material. There is, first of all, the reference to the Turner article, which I have referred to at page 6, point 8. Next, in volume 6 of the core appeal book, in the Clubb Case, there is an article by I think it is Dr Foster and others, which I understand to be the only peer review article that your Honours have.
GAGELER J: What about the Cozzarelli article that you took us to before? Is that not peer reviewed?
MR REYNOLDS: I do not think so, your Honour. I will have that checked. Whilst I am dealing with Foster, at page 204 of the appeal book, page 82 of the article, in the first column about a third of the way down it is noted:
This 2000 study by Cozzarelli and Major . . . found that women experienced negative emotions upon interacting with abortion protesters at 1 h postinteraction, but these effects were not present during the follow –up data collection 2 years later. In other words, the negative effects of protester interaction did not extend beyond the short term - - -
GAGELER J: The short term being two years?
MR REYNOLDS: That is what they are saying, but if one goes to the study by Cozzarelli which is the follow–up study to the one they refer to, the 2000 study, they go back to this and at pages 4914 to 4915, if your Honours go to the very bottom of page 4914, this is the article at pages 274 to 275, they say:
Although significant variation existed among the women we studied, on average, they seemed to find these encounters unpleasant, to be negatively affected by them in the short term, but not to suffer any significant long–term harm as a result of encountering picketers.
Your Honours can read the rest of that paragraph. A similar summary is given in the Humphries thesis. The full copy of that is behind tab 68 of the joint book of authorities, so described. At the bottom of page 4841, it cites the two Cozzarelli articles as saying:
Total exposure to the picketers was not a significant unique predictor of pre-abortion anxiety and only a small significant relationship between these two variables was found. This is similar to previous research findings that seeing the picketers was not associated with higher levels of post –abortion depression -
Then it goes over the page. If your Honours go to about line 20 on the following page it says, yet again citing Cozzarelli:
seeing the picketers before having an abortion was not associated with higher levels of post-abortion depression -
We submit that this material does not substantiate the connection between protest and depression, and particularly not peaceful protest and depression. Some evidence of course of an adverse emotional reaction for a period in some instances, but we submit that that is in the equation the reasonable proportionality equation, that is, not of substantial importance. On the other hand, we concede that if depression had been proved to be the result of peaceful protest then that would be a very significant matter relevant to this reasonable proportionality equation, but it is just not there.
If I can proceed briefly through the other factors – I will not mention the numbers as I go through them – the law does not advance the purpose of preventing psychiatric harm, although it may possibly stop some hurt feelings. It is not tailored to the achievement of even alleviating or preventing hurt feelings, far less psychiatric harm. It goes, in proscribing all peaceful protest, way more than is reasonably necessary to advance these purposes.
Other laws deal with psychiatric harm and similar in Tasmania. The avoidance of psychiatric harm, as I have said, is important but we submit that the avoidance of hurt feelings is not. Your Honours, those are the submissions which I make in the Tasmanian case of Preston.
Your Honours should also have our synopsis in the Victorian matter of Clubb v Edwards, to which I now turn. Although your Honours will find that we have conveniently dealt with the gist of our argument on the way through here, I do not think your Honours are going to see anything in the synopsis which is new, that is, the submissions which we are making here pick up the whole of what we have said in the Tasmanian matter mutatis mutandis.
Obviously, I have to identify the relevant differences and note their significance, and that is really all I am attempting to do in dealing with the Victorian case, particularly given the time it has had to take me to mount the argument for both of them.
Can I deal with construction, that is in relation to the Victorian Act, which is the – I withdraw that - the Public Health and Wellbeing Act and your Honours will be able to utilise the annexure to our submissions. In chief, in the Victorian case, that is the appellant’s submissions, at the back of them there is an annexure in the – I am only going to focus on the principal differences and deal with those under these same headings of construction, burden, purpose and reasonable proportionality.
The key proscription is in paragraph (b) which your Honours will notice talks about, not about protest, but about communicating by any means in relation to abortions. I said before that this notion of communication was broader than protest and to that extent the burden is greater but it would obviously include protests in relation to abortions.
The other important difference of course is the expression “reasonably likely to cause distress or anxiety”. Now, those words involve some interpretational issues and can I indicate briefly what they are. The word “likely” usually refers to possibilities but it can fairly refer also, in some circumstances, to a probability. The expression “distress or anxiety” was interpreted, as we have noted in our submissions, to refer to discomfort by the magistrate. That was – that which means refers to uneasiness or disturbance of one’s peace as does – well, distress similarly means anxiety or sorrow or pain and suffering and anxiety also refers to distress or uneasiness of mind.
Now, the context here, of course, is outside one of these clinics and in the context also of a woman or women who are considering abortion in any of these situations which we concede is a matter which would be likely to create a measure of emotional fragility.
Now, on a restrictive – that is pro-prosecution interpretation of these words they would cut in to cover any reasonable possibility that relevant communication might cause some discomfort to a woman – or particularly to a woman who was already or may well be in a state of emotional fragility.
Now, if one focuses on that situation, which is not the only situation but I submit it is probably the main one, and looks at the extent of the proscription it would arguably cover just about anything which was anti-abortion – any communication because of the – and if one adds what is sometimes called chilling effect – by that I mean that one adds in some – and I am using it in this sense – reluctance on the part of law-abiding citizens to breach the criminal laws, one can well imagine why anyone who was even thinking of any anti-abortion communication in this context would feel that there was a substantial risk that it would offend this particular proscription. I ask rhetorically what could one safely say in this context of an anti-abortion kind, which would not be caught by this provision, at least arguably?
GAGELER J: Mr Reynolds, are you actually going to give us a positive submission as to how these words should be interpreted?
MR REYNOLDS: Yes, and I do so now, your Honour. We submit that it should be interpreted on the question of validity - your Honour, I will explain what I mean – I understand why your Honour is gibing.
KIEFEL CJ: I do not think that is a correct expression for what Justice Gageler’s question to you was. Withdraw it, Mr Reynolds.
MR REYNOLDS: Yes, I do, your Honour. What I mean by that is that that is the interpretation which we do adopt.
GORDON J: Sorry, I am lost, Mr Reynolds. Could you just state for me again what is the interpretation you adopt?
MR REYNOLDS: That it refers to possibilities. It refers to mere discomfort. This is what we have put in our submissions.
EDELMAN J: It could not possibly be mere discomfort. On your submission, it must be at least mere discomfort.
MR REYNOLDS: Yes. Well, no, I am sorry, your Honour. We have put in in the submissions that discomfort – and that is what the magistrate held – would be enough and that is the interpretation which - - -
EDELMAN J: Yes, but not limited to discomfort. In other words, serious psychiatric harm must fall within the provision, surely?
MR REYNOLDS: Yes, that would, certainly.
GORDON J: So we have possibilities. We have as a minimum, mere discomfort.
MR REYNOLDS: Yes, your Honour. Well, I do embrace that as the interpretation – discomfort – and in this context, outside this clinic. That is the interpretation, your Honour. That is the construction and that is what we put in the written submissions. But what I was getting at, when I responded to your Honour Justice Gageler, is that although the State of Victoria has not raised this possibility, one of the arguments on construction, which found favour with at least three members of this Court in Monis, where the expression was offensive, I think, where the three Judges in what I will call the statutory majority - - -
NETTLE J: Minority?
MR REYNOLDS: I am sorry, your Honour?
NETTLE J: Statutory minority or majority?
MR REYNOLDS: Majority, found a construction, as I recall, which put upon the word “offensive” or, I think it was “offensive”, the interpretation very seriously or seriously. Now, that is an open interpretation here, particularly picking up what the statutory majority said in Monis, namely, the usual Interpretation Act provision about reading such words and second of all, the principle of legality.
Now, that is in essence the debate here, is whether the words should be read in the restrictive way we have posited in our written submissions or whether they should be given this additional content that was in the Monis Case. Now, your Honour Justice Gageler is looking at me quizzically. I can understand why, with respect.
The difficulty I have is that the partial nature of this case, that is, I am dealing with first of all validity where I want to argue obviously a construction that refers to mere possibilities and the like. On the other hand, a construction which is in accordance with the Monis statutory majority would also provide, at least potentially, particularly in this case, some potential scope on appeal in the residue of the case when it goes back to the Victorian Supreme Court. So that is - I am being candid - - -
KIEFEL CJ: What the statutory majority as you refer to in Monis did was to narrow the operation of the statute.
MR REYNOLDS: Yes, your Honour.
KIEFEL CJ: What you are doing is quite the opposite.
MR REYNOLDS: Well, no, it would narrow it to, if it had to be so, very serious distress.
KIEFEL CJ: No, you are saying that (b) would apply to anything that causes mere discomfort. You are widening its operation.
MR REYNOLDS: In that sense, yes.
KIEFEL CJ: In any sense, that is it.
MR REYNOLDS: Yes, your Honour.
KIEFEL CJ: You find no support from Monis for that proposition.
MR REYNOLDS: No, I am not saying there is. I am saying the statutory majority stands for an entirely opposite approach. But they are the two ways it can be construed and it is a question for your Honours which way you adopt.
I do not think I need deal with any other construction issues, other than in relation to this issue of a strict liability. This issue is raised by the respondents in this case. I would rely on the same points that I made when this issue arose in relation to Tasmania, namely, health and safety purpose which is here overt; secondly, the use of the word “intentionally” in paragraph (d).
But there is a further point here and that is, if your Honours go to paragraphs (c) and (d), the words “without reasonable excuse” are used. That, we submit, suggests that if Parliament had wanted a defence like that – and that would include an honest and reasonable mistake of fact – then that is some indication that they would have said so explicitly. But I have the same awkward straddle on that issue that I had in the Tasmanian case.
So far as burden is concerned, in essence we repeat what we have said in the Tasmanian case. Again, there are two differences that have to be factored in. I have mentioned them already, that is, first, the distinction between communication in relation to abortions as opposed to protests; and, second of all, the expression “reasonably likely to cause distress or anxiety”.
GAGELER J: Do you say that your client’s communication, in this case, was political communication?
MR REYNOLDS: Your Honour, the difficulty - there is a substantial difficulty about that.
GAGELER J: You could start with yes or no and then follow it with an explanation.
MR REYNOLDS: I cannot, your Honour. I will explain why. There is not a finding exactly as to what was the precise matter communicated. That is why I am attempting not to answer that question which, if the case had been run by the prosecutor, for example, saying that they wanted to prove, as an element of the offence, that it was – sorry, your Honour, let me start again – I am getting tired.
If this question of political or otherwise was an element in the case, then the appropriate way for it to have been dealt with would have been for the Commonwealth to have said that that is how the statute should be construed and to have sought, first of all, a finding in the alternative because the issue of political was dealt with in a separate judgment, a finding in the alternative that the communication identified was not political.
KIEFEL CJ: But you have a finding against you by the magistrate, have you not?
MR REYNOLDS: I do not think so, your Honour.
KIEFEL CJ: Appeal book 289, paragraph 4:
The protestors were not agitating for any political reform or legislative change.
MR REYNOLDS: Your Honour, this is in the judgment on validity and to the extent - - -
GORDON J: The events of 4 August are described by the magistrate on pages 294 and 295, are they not, of the core appeal book where the magistrate sets out what the magistrate observed, having watched the relevant video of the event and describes what occurred.
MR REYNOLDS: The difficulty, your Honour, is that on page 295 there is not any finding here as to what the pamphlets were and as to what their precise content was.
KIEFEL CJ: But in any event, Mr Reynolds, as I understood your submissions this morning, the question of whether there is a burden is not answered by the single instance. You rely upon what has been said about the effect of the freedom more generally.
MR REYNOLDS: Yes. That is the point that we make on burden, by reference to the authority or authorities we quote in our submissions. It is a more generalised inquiry on the issue of burden.
KIEFEL CJ: I do not mean to prevent you from meeting the case put against you, which seeks to limit the argument in a way which is not perhaps entirely consistent with those reasons.
MR REYNOLDS: We submit that the respondents in the Victorian case have some work to do on that proposition. I think I have put it as the matter is well established that the question of burden is assessed in the more general way. As we have put it in paragraph 3 of our outline in this case, again it relates to the manner in which the impugned provision affects the freedom generally.
If I can move to the notion of compatible purpose, there is a substantial difference here to which we have adverted from time to time, and that is that in this legislation there is an express purpose - this is in section 185A – but it is expressed to be, your Honours will note:
The purpose of this Part –
In our submissions before we adverted to the importance of focusing on what is the purpose of the relevant impugned provisions, which here is paragraph (b). Some of these purposes are clearly picked up by some of the proscriptions in this part, but we submit that this particular provision does not have any of those four purposes identified in section 185A.
If we deal with privacy, that is obviously - section 185E is about privacy. Likewise, if one takes section 185B and paragraph (d) of “prohibited behaviour”, one has:
intentionally recording . . . person accessing –
If you go to section 185E, that is about distribution of recordings. Now, obviously there is a privacy purpose involved there but we submit that that is not the purpose of this provision in paragraph (b). Likewise with dignity, that is expressly referred to in section 185A but we say not – it is not the purpose of paragraph (b). Likewise with physical safety, that obviously picks up paragraphs (a) and (c) of the definition of “prohibited behaviour” but we submit that is not the purpose of (b).
GORDON J: Does this same argument apply to the application of section 185C and the principles which we are told by sections 4(3) and 11A are - this Act - we are to use in the application, operation and interpretation of this Part.
MR REYNOLDS: Well, your Honour we are dealing here with purpose. As I understand it, this is talking about something slightly different. It does talk about safety, wellbeing, privacy and dignity, but it does not, we submit, add anything relevantly to section 185A so far as articulation of purposes is concerned.
GORDON J: The reason why I ask that is that I thought that under this Act there was a requirement, a statutory requirement in terms of objectives where the principles were set out, which is set out in section 4(3) and when you go through to section 11A it tells you that when you are dealing with those principles for the purpose of this part, you have to adopt what is set out in 185C. So even if you are right about 185A, you have to deal with 185C, do you not?
MR REYNOLDS: Well, your Honour, the argument is in effect the same and we submit that on these four purposes - safety, wellbeing, privacy and dignity - your Honours see the argument in more detail in the Tasmanian case, but that is not what a proscription on what amounts to peaceful communication - - -
EDELMAN J: So, as I understand it, you accept that subparagraph (a) falls within the purposes of the part?
MR REYNOLDS: Yes.
EDELMAN J: What is the difference between harassing and communicating in a way which is reasonably likely to cause distress and anxiety?
MR REYNOLDS: Well, your Honour, we submit that the latter is a much lower threshold. One can mention something which has a likelihood of causing distress without it amounting to harassment and one can think of many examples of that depending on the context. Simply to mention something which someone - where there is a likelihood, albeit reasonable, and someone could be caused anxiety I would submit – I mean there may be some examples of harassment that come within that, I do not dispute that, but this is a lower threshold that we are talking about here when one talks about simply a likelihood of distress.
I think I have covered this issue of purpose in this Victorian case, as we have said in our submissions and the purpose we adopt – or we submit that the purpose of this impugned provision is to proscribe communication near abortion premises which might cause upset or discomfort. We submit for reasons I have put earlier in great detail that is not a compatible purpose.
So far as reasonable proportionality is concerned, the arguments on these four purposes are relevantly the same except that the State of Victoria has – this is using my list in paragraph 13(vi) – obviously has other privacy laws, other laws about dignity, physical safety and psychological wellbeing.
The only other point that I would make is that so far as psychological wellbeing is concerned, so far as that purpose is concerned, if one goes to (iii) and (iv) there is some tailoring to the notion of psychological wellbeing by the use of the words “reasonably likely to cause distress or anxiety”. If the Court pleases, those are my submissions.
KIEFEL CJ: Ms Dalziel.
MS DALZIEL: Thank you, your Honour. May it please the Court, the first and the second respondent have made a fairly clear divide between the areas that will be covered by each of us. So the submissions that I will advance orally will only be addressed to the elements of the offence. I will of course adopt the submissions made on behalf of the second respondent and also to a limited degree submissions made on behalf of the Fertility Control Clinic, as noted at paragraph 2 of the outline.
So turning to the elements of the offence, the written reply sets out four elements which we submit to the Court are the elements of the offence. It is clear from the way that they have been drafted that each of (a), (b) and (d) include an element of intention and it is our submission that this is not a strict liability offence, nor is it an absolute liability offence. It is an offence which requires proof of general intent. It is knowledge in certain circumstances and intention to commit certain acts.
My learned friend for the appellant noted there is a difference in the wording between paragraphs (b), (c) and (d) in that paragraph (d) referred to “intentionally recording by any means”. It is our submission that that inclusion of the word “intentionally” there is to cover inadvertent or mistaken recordings. It is very possible for someone filming either with a camera or a phone to pick up things in the background and it is our submission that what the word “intentionally” there in paragraph (d) is intended to cover is inadvertent recording in the background of an otherwise lawful recording.
NETTLE J: Well, that does require a specific intent, then – paragraph (d)?
MS DALZIEL: Yes, it means intending to record people accessing – if I might just summarise accessing, attempting to access and leaving as accessing for the purposes of brevity. What would be required for (d) is establishing that the accused intended to film a person accessing the premises and also was in the zone.
Insofar as (c) and (d) refer to “without reasonable excuse” it may be that, having submitted that in (d) “intentionally” is required, “without reasonable excuse” is somewhat otiose, particularly as police are permitted to film and so forth. But one can concede examples of where someone, a security guard, for example, is filming someone leaving, there is CCTV at the premises, and it films people coming and going from the premises at the FCC. So that would be filming, but it has a reasonable excuse, which is the protection of the premises and the clients coming and going.
Similarly, with paragraph (c): “without reasonable excuse”. Well, people do sometimes impede footpaths and roadways with perfectly reasonable excuses – having fallen over, dropped your luggage. There are reasons to have done this and so it is obvious, as our submission, what is intended there is it is a strict liability offence there. If you are impeding the footpath and the roadway without a reasonable excuse, then the offence has been committed.
There was a reference also made to the public welfare nature of this legislation and that may militate against it being a mens rea offence rather than a strict liability offence. In He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, Justice Brennan noted a formulation of Lord Scarman in five aspects. This is at pages 566 to 567 of the judgment.
One of the - I hesitate to read it out loud, but one of the suggestions of Lord Scarman was that the only situation in which the presumption can be displaced, that is of mens rea, is where the statute is concerned with an issue of social concern. Justice Brennan commented on that at page 567 and said that he considered that it was:
too categorical an approach –
and that it was:
not possible to decide that mens rea can be excluded only where the subject-matter answers a given description –
that one needed to consider:
the whole of the statutory context.
That is our submission here. Turning now to what we submit are the content of the elements which are set out very briefly at paragraph 2.10, taking them somewhat out of order, looking at (d) first, what is written is “the communication occurred, and was intended to occur, within a safe access zone”. We submit that that means the accused must know that they are in the zone. They must be in the zone and they must know that they are in the zone.
GAGELER J: Why would not it be have knowledge of the facts that put them in the zone?
MS DALZIEL: Intending to be in the zone would encompass having knowledge of the facts that they are indeed in the zone. If someone thought that they were in the zone but were in fact not, they may well have been intending to be in the zone but the way the section is drafted which is that - - -
GAGELER J: Well, really I am asking does the defendant need to know more than that he or she is within 150 metres of premises at which abortions are provided.
MS DALZIEL: No. Section 185D says:
A person must not engage in prohibited behaviour within a safe access zone -
and it is sufficient for the prosecution to prove that the person intended to be within 150 metres, that is, within the safe access zone and that they intended to be where they were, that is, within 150 metres but it is our submission we would not need to prove that they knew that there was a safe access zone there. Really, that they had to be within that distance but not that there was a safe access zone.
Of course, practically speaking, the two will not come into conflict because where somebody is communicating about abortions in a way that is able to be seen or heard by somebody accessing one of these premises they will know that they are in a safe access zone because they know the nature of the premises. So, factually I do not imagine that it would arise that a person would in fact be within 150 metres but have no idea whatsoever that there was a safe access zone. Our submission is that is sufficient to prove that they were within the zone, even if they did not happen to know that the zone existed.
NETTLE J: What if they are honestly and reasonably mistaken about them being inside the zone?
MS DALZIEL: Then, we would not have established knowledge. I am submitting that they must know they are in the zone.
NETTLE J: I see.
MS DALZIEL: So, if they believe that they are 150 metres out and have an honest and reasonable basis for that belief then we would have failed on knowledge or intention.
GAGELER J: I do not understand what you mean by “know there is a zone”. Do they have to know about the legislation?
MS DALZIEL: No, your Honour.
NETTLE J: But, they must know that they are within 150 metres from an abortion clinic.
MS DALZIEL: Yes.
BELL J: Does not the knowledge of the abortion clinic come in, in relation to the element that you have as element (b), the intention that the communication, the intentional communication, in circumstances in which the communication was able to be seen or heard by a person accessing, or attempting to access or leaving premises at which abortions are provided? No one is required to know the law. You do need to establish that the person was present within the access zone. And, they need to know the facts and circumstances that make their conduct unlawful. So, they need to know that they are, as a matter of fact, within 150 metres of an abortion clinic. But, you pick up the knowledge of the fact that there is a place where abortions are being provided, in element (b), do you not?
MS DALZIEL: Yes, your Honour, which takes me to elements (a) and (b), which I will deal with together. The first is that the accused must intend to “communicate” about abortions. It seems pretty straightforward but they must not – we must prove that they are intending to communicate about abortions not, perhaps, about pregnancy as a general proposition or – I cannot think of another example, but we must prove an intention to communicate about abortions, in particular. It could be one of many topics but there must be that topic as one of the intended subjects.
GAGELER J: To communicate to anyone?
MS DALZIEL: That is the next aspect of the element, your Honour, which is that they must intend to communicate “in a manner”. We submit that the formulation does not require proof that they intended to communicate to any particular person but, rather, it prohibits, or proscribes, the manner of communication. So, we submit, that they must know that the communication – whether it be holding a placard, wearing a t-shirt, chanting, whatever the form of visual or oral communication is carried out in a manner which is visible – or would be visible – to somebody who was accessing the premises.
The question arises, well, is somebody communicating if they are standing there at three in the morning and no one was around but for themself holding their sign about abortions within the safe access zone, whether that could be something that is a communication which would fall within this provision. If the provision is read, as I have just submitted, which is that the communication – the prohibition – is just about the manner of the communication, its physical manifestation, then, arguably, that would be caught by the legislation.
NETTLE J: There would have to be someone there, surely?
MS DALZIEL: That would be an attempt at communication, perhaps, because there is no one to receive it so there is no communication. It is shouting into the wilderness perhaps, but no one hears it so is it a communication?
NETTLE J: Nor could it be a matter that could be seen or heard by someone accessing the clinic unless someone was there.
MS DALZIEL: Indeed, your Honour, but it is our follow submission that we do not need to prove that it was heard by somebody who was actually attempting to access; rather, it must be made in such a way that it would be able to be heard if there were such a person there.
EDELMAN J: It depends on whether you read “able” as being able in the circumstances.
MS DALZIEL: Yes. I tend to read it almost as “capable” but I am trying to avoid a gloss on the legislation. It is able to be heard by somebody accessing or leaving, if there were such a person there. For example, if, in this clinic, the security guard was standing outside and a friend of hers had just stopped by to have a chat, they are standing right by the gate, somebody is communicating about abortion within the safe access zone. It is able to be heard by somebody who would be coming or going from the premises because there is somebody right there.
The question is whether that is what is intended to be captured or whether what is really being intended to be captured is when somebody is accessing or attempting to access or leaving, and we have to prove that. I am afraid I have got myself into a slight tangle in the discussion.
GAGELER J: I do not want to take you out of order but are you going to tell us what is meant by “accessing” or “attempting to access”?
MS DALZIEL: Somebody walking into the premises or making their way into the premises. “Attempting to access” would be somebody who is perhaps making their way there but is deterred for some reason or chooses not to for some reason but has attempted to access. “Leaving” is of course somebody who has left the premises. “Attempting to access”, we submit, is put in there to cover people who may have been deterred from entering the premises by reason of some conduct or that they have attempted to do so but changed their mind for some reason, but they were indeed intending to go in there until that change of mind.
GAGELER J: As I understand Mr Reynolds’ submission, “attempting to access” covers anybody within the safe access zone, within 150 metres of the premises, who is heading towards the door. Do you accept that or do you say it is only what can be seen from the door or very near the door?
MS DALZIEL: It could be somebody who had just crossed the 150-metre line and was making their way towards the clinic, but - - -
EDELMAN J: You say that falls within “accessing”?
MS DALZIEL: That would be accessing, yes, if we could establish that that person was walking to the clinic. Of course, at that distance it would be very difficult for anybody observing to know whether they happen to be going down to the milk bar or going to the clinic. Where people are who can see and hear the communication may well inform proving the intent of the communicator whether it is able to be seen and heard by somebody accessing the clinic or not.
There is such a broad range of people who may be accessing the clinic who fall within this provision: employees, clients and anybody who has a reason to be going there. The example was given of the delivery man. So it is difficult for someone to know what anyone is planning to do when they are walking over the 150-metre line, which is why the focus is on the manner of the communication, not necessarily proving that the accused knew anything about a particular person walking past.
So, on that example, if someone is walking past on their way to the milk bar, they are walking past the gate or walking towards the gate of the clinic, and there is a communication made, it is able to be seen or heard by a person accessing the clinic, but we do not prove that somebody actually has.
NETTLE J: But you contend “able” means “capable” rather than – does it mean any difference? Is there any difference between “capable” and “able” in that context?
MS DALZIEL: No, in our submission. It is capable of being heard, and coming back to it, we do not need to prove that it was heard by somebody accessing the premises and - - -
BELL J: A slightly more restrictive interpretation but consistent, I think, with the general tenor of your submission, addressing the notion of the lone protestor at 3.00 am, would be that one would consider whether the hypothetical person accessing or attempting to access the premises would be constrained by the opening hours of the premises. So that would exclude the offence being committed other than during the opening hours and perhaps allowing a margin both before and after.
MS DALZIEL: So for staff arrivals for example.
BELL J: Yes.
MS DALZIEL: Yes, your Honour, practically speaking, it seems to make more sense that the conduct which is prohibited is not the voice in the wilderness, but conduct which is capable of being heard by somebody accessing or able to be heard by somebody accessing or leaving the clinic and that would tend to indicate that it must be done at a time when people may be going there and, indeed, they are going to or from the clinic.
BELL J: Yes.
GAGELER J: If I could just translate that into very practical terms. What you are saying is that it is enough that the person intends that the sign be big enough to be read by anybody who might be going into the clinic or that the sound be loud enough to be heard by anybody who might be going into the clinic. Is that the way you put it?
MS DALZIEL: Indeed, your Honour, and as in the case of Clubb, the sound was not very loud but Ms Clubb was very close to the people to whom she was communicating and so we did not have to prove particular volume. But by the video and so forth, we could see that communication – well, we could prove that communication had taken place.
We might move then onto the question of reasonably likely to cause distress and anxiety. My learned friend submitted that that would cover both the probability or the possibility of distress or anxiety. Perhaps it is a quirk of Victoria, but in interpreting legislation in Victoria which involves the word “likely”, it would be used as probability, not possibility.
Victoria follows the view that recklessness is the foresight of probability, not possibility, follows Crabb in all aspects, and when the legislation uses the word “likely”, it would be interpreted as the foresight of probability, not possibility.
KIEFEL CJ: Is that a reference to the Acts Interpretation Act?
MS DALZIEL: No, your Honour. It is more a matter of just practice in Victoria, that where legislation, particularly criminal legislation, is wanting to advert to possibility, it is explicitly stated.
KIEFEL CJ: Do you cite authority for that?
MS DALZIEL: I cannot, your Honour, but I confess it had not occurred to me that possibility might be put forward.
KIEFEL CJ: Would you like to put a note in?
MS DALZIEL: Yes, your Honour.
BELL J: I think in Boughey v The Queen (1986) 161 CLR, there is discussion of the meaning of “likelihood” in the context of criminal statutes there in relation to proof of murder, but the point that is made is the need to look at the particular statutory context and that in light of decisions such as Tillmans Butcheries v The Australasian Meat Industry Employees Union and other cases that are there cited at page 20 of the decision, and I think there are some decisions touching on the concept of likelihood in the context of statutory schemes that permit the detention of people at the expiration of their sentences if they are serious sexual offenders that might also be relevant.
MS DALZIEL: Thank you, your Honour. With the Court’s leave, we will file a note by the end of next week, if that is possible.
KIEFEL CJ: Perhaps a little sooner.
MS DALZIEL: The end of this week, your Honour.
KIEFEL CJ: Thank you.
MS DALZIEL: So close of business Friday.
KIEFEL CJ: And, of course, the appellant will have a right of response within seven days.
MS DALZIEL: Continuing on the topic of anxiety or distress, each is a normal English word and it is our submission that glosses such as “hurt feelings” or “discomfort” distract from the terms of the legislation which are anxiety or distress and that it is by no means a complicated matter for a finder of fact to decide whether a particular communication would be reasonably likely to have that effect.
We submit that the accused does not need to have foresight or a probability or possibility of the likely effect. Rather, it is an objective assessment of the nature of the communication. We submit that for two reasons. One is because of the way it is phrased in the Act, which is “reasonably likely”, which tends to suggest an objective test and, second, is that using the communication in this case of Ms Clubb it would be very difficult to prove on the facts before the Court that Ms Clubb intended distress or anxiety to be the result.
Indeed, it would appear that she thought she was helping. That appears to be the tenor of the evidence and that may well occur in many circumstances. So we submit that the legislation suggests the objective test and that is supported by the purposes of the Act. Unless there is anything further, those are the submissions.
GAGELER J: I actually have a question about distress or anxiety - to whom?
MS DALZIEL: Yes, thank you. I failed to refer to that. To a person in the class of people who are accessing, attempting to access or leave, so not to a reasonable person but to a hypothetical member of that class. That class may contain very fragile people and it may contain very robust people but to a notional member of the class of people who, either as clients of the clinic or employees or people having a reason to be there by reason of their employment, are a notional member of that class. Not picking the most sensitive and not picking the most robust.
We make that submission because the quality of the communication is being assessed as capable of being heard or able to be heard by somebody falling into that class and so the reasonably likely effect of it is, again, to a person falling within that class.
KIEFEL CJ: To someone within that class?
MS DALZIEL: Yes. Because one of the purposes of this provision is to enable the prosecution without calling the person who has been communicated to – we do not wish to impute any particular frailty or robustness to that person or make any stereotypical judgments about someone based on their appearance or what they happen to be doing, so it is very much a notional member of that class.
KIEFEL CJ: Yes, thank you. Solicitor for Victoria.
MS WALKER: If the Court pleases. In McCloy, Chief Justice French and your Honours Justices Kiefel, Bell and Keane said that:
It is not possible to ignore the importance of a legislative purpose in considering the reasonableness of a legislative measure because that purpose may be the most important factor in justifying the effect that the measure has on the freedom.
I will not take the Court to McCloy at this point, but the reference there is to paragraph 84 of the joint judgment at page 218 of the reported version.
I want to start, your Honours, with the purpose of Part 9A of the Victorian Act and, in particular, of course of paragraph (b) of the definition of “prohibited conduct” because that background, your Honours, demonstrates very clearly the mischief to which the law was directed.
Women seeking abortions in Victoria and staff of clinics where abortions are provided have for decades been subject to a variety of conduct that has ranged from, at one end, harassment, obstruction, threatening behaviour and assault, at the other end of the spectrum a polite but, nonetheless, distressing approach from a complete stranger directed to a woman’s personal decision to have an abortion and in the middle a range of other conduct - large, noisy groups of people congregating outside the clinic entrance, chanting, praying and holding signs of pictures of dismembered foetuses and people making offensive, frightening and false statements about abortion such as “abortion will lead to cancer”.
So, the legislation is directed to that variety of behaviour. There is also evidence that I will come to – material before the Court – demonstrating that clinic staff have reported that women arrive in a distressed and anxious state. In some cases, women did not attend the clinic – at least at the appropriate time – because of the presence of protestors and, thus, did, in fact, occasion delay in receipt of medical services and there has been concern about the long-term impact of these behaviours on staff who have been subjected to them very regularly, almost on a daily basis, at least when the clinic is open.
So, enacting Part 9A of the Victorian Act, Parliament was responding to the full spectrum of those behaviours and we accept that the harmful conduct does extend to matters that would not traditionally be considered harassment or intimidation and that would not perhaps necessarily lead to a recognised diagnosis of psychiatric harm falling within the DSM-IV, for example.
It is also apparent from the legislative history – and I am going to take the Court to that in a little more detail – that existing laws were unsatisfactory and did not address the problems that were being confronted by women and staff at the clinics. But, on no view, your Honours, is this legislation directed to the preservation of – or to the prevention of hurt feelings. Nor, is it necessary to demonstrate that any particular person suffered actual or frank – as your Honour Justice Bell put it – psychiatric harm or depression.
Nor, can I say at the outset, is the concept of privacy, which I will come to as one of the aspects of the purpose of the legislation, confined to what one might call informational privacy, that is the recording of a person who is entering or leaving a clinic. The concept of privacy is a broader one that deals with the private decision that a woman is contemplating making or perhaps has decided already to make, about her own bodily autonomy and the medical treatment that she wishes to receive. That broader notion of privacy is certainly something that we rely upon.
Your Honours, can I start in terms of the material before the Parliament and in turn before this Court that demonstrates the nature of the mischief to which the legislation was directed - can I start with the Minister’s statement of compatibility and second reading speech in the Parliament. Your Honours will find that in volume 12 of the joint book of authorities at tab 76, commencing at page 5203.
As your Honours would be aware, in Victoria the legislative record commonly includes both a statement of compatibility under the charter and a more traditional second reading speech, and what the Court has here is both of those. At page 5204 of the joint book the Minister is in the course of giving the statement of compatibility and she explains the Parliament’s view of the mischief that is being addressed by this legislation. Commencing in the first column, at around line 20, there is a new paragraph. The Minister says6:
Women accessing legal abortion services are entitled to have their privacy respected, to feel safe and to be treated with dignity. However, there have been numerous incidents of women and their support people being confronted by persons outside clinics seeking to denounce their decision. This extends to harassing and intimidatory conduct, following people to and from their private vehicles or public transport, forcing written material upon them despite a clear unwillingness to receive that information, and verbal abuse. Women and their support people have reported that they have found such conduct very distressing and in many cases psychologically harmful.
Can I pause there? The reference to “psychologically harmful” should not there be understood as the Minister asserting a recognised psychiatric disorder. She is speaking of something less. In addition, the Minister goes on to deal with the impact on staff who:
have experienced sustained harassment and verbal abuse over many years, often being followed . . . being physically blocked –
again, resulting:
in significant psychological damage and stress for some staff. The impact of such conduct as well as otherwise peaceful protests around premises that perform abortions, needs to be understood against the background of the most extreme cases –
and the Minister there points to the fatal shooting that occurred at one particular clinic. The Minister says, at the very bottom of the column:
This, and other similar events internationally, create an environment in which even peaceful protest activity can have a more harmful effect upon the wellbeing of staff and visitors to premises than might ordinarily be the case.
So, it is a contextualised and factually specific assessment of the harms that have been occurring at clinics prior to the passage of the legislation. At the bottom of the second column, still on that page, the Minister refers to the:
safe access zone of 150 metres –
because – and, having been determined:
because it provides a reasonable area to enable women and their support people to access premises . . . without being subject to such communication –
and notes that there have been:
instances of staff being followed to local shops and services, and subjected to verbal abuse. Such conduct has often occurred well beyond 150 metres.
So again, a factual basis for the proposition that the conduct in issue has been occurring at least within the 150 metre radius that ultimately Parliament selected to define the zone. Again, continuing on page 5205, the Minister then commences the second reading speech. Can I just note there, at the bottom of the right-hand column on that page, a reference to the:
Victorian Law Reform Commission’s 2008 final report on the law of abortion. That report also discussed the issue of safe access zones around hospitals and clinics that provide abortion services.
The Commission had commented that the issue had been raised with it about protecting people outside abortion clinics citing concerns that the safety and wellbeing of patients and staff were jeopardised because of the intimidation and harassment by anti-abortion protestors. The Minister then observes that no formal recommendation was made by the Commission and Parliament did not, at that time, when it decriminalised abortion in Victoria in 2008, Parliament did not at that time enact the safe access zone regime.
The Minister said the government preferred to adopt a wait and see approach to assess whether decriminalisation would lead to an abatement of the protests and observed that unfortunately it has not. The Minister at page 5206 continues to, at about line 25, observe about the impact of protests on women and says that it:
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.
Targeting health services in this way can also have impacts on women’s health and wellbeing. For example, health services have reported that some patients are too afraid to attend clinics when anti-abortion groups are out the front, or to return for follow-up appointments because of their experience when previously accessing the clinic.
The Minister goes on in the next column to talk about the study that was conducted:
in relation to one Victorian clinic –
about the experience that women had when accessing services at the clinic and again the negative impact on staff of clinics who have to face the protests:
day after day, year after year –
and the Minister observes:
This affects their working life to the point that some staff members are too afraid to leave their office to get a coffee unless a security guard is present.
Now, your Honours, that material is further reflected in the Victorian Law Reform Commission report which the Minister referred to. That is found at volume 12, tab 75 of the joint book of authorities. I probably do not need to take your Honours to that except to observe that the Commission had observed the same kinds of factual issues around the nature of the protests and the harm that it has caused to women and staff by those protests.
So, your Honours, that material, in my submission, plainly demonstrates the mischief to which this legislation was directed at the time of enactment and there is absolutely no reason to doubt the correctness of the statements made in the second reading speech about that mischief, either in relation to the nature of the activities that were happening or in relation to the harms that have been caused to women and to staff and indeed to other people accessing the clinic, by that conduct.
The Court is entitled to accept and rely on the legislative record in that regard. Having said that, perhaps in a “belt and braces” approach to the exercise, the Court has before it affidavit material that confirms the propositions articulated by the Minister in both the statement of compatibility and the second reading speech.
In particular, as the Court is aware, there is an affidavit by Dr Allanson, who has worked at the Fertility Control Clinic in East Melbourne for many, many years -I think she may have now retired; I am not 100 per cent sure about that – and an affidavit of Dr Philip Goldstone, who has worked at many clinics around Australia. So to the extent it is suggested that Dr Allanson can only give evidence about one particular clinic, that is true - that is what she gives evidence about – but Dr Goldstone has worked at many clinics.
The two affidavits also annex various research studies which the deponents of the affidavits rely on to support the opinion evidence that they give, and indeed in both cases the observational evidence they give about both the behaviour and the impact on women who experience that behaviour when coming in and out of the clinic.
Can I note, perhaps for the Court’s convenience, that at page 494 of the Court book is a document that was handed up to the magistrate by the Attorney-General for Victoria at the time of the trial, which is really submissions to the Magistrates Court setting out the findings of fact that the magistrate was asked to make in relation to the constitutional issue.
I do not want to take the Court through that document now but we do say it is a convenient summary of the factual material that was before the Magistrates Court and indeed is now before this Court and we adopt that document as a submission to this Court about the factual background.
But the Attorney-General does not ask the Court to make detailed or specific findings of fact. In particular, for example, we do not think it would be appropriate for this Court to start making findings based on the material put by my learned friend that seeks to dispute some of the affidavit material.
Before I come to the additional so-called evidence or article that my learned friend seeks to rely upon, I would like to take the Court reasonably briefly to some of the affidavit material. I am not going to take your Honours through it in complete detail but it does, I think, again assist in understanding the nature of the behaviours and the harm and it was of course, as has been observed, unchallenged at trial.
Dr Allanson’s affidavit commences at page 7 of the Court book. Commencing at page 9, paragraph 11, she observes that she frequently observed protestors standing outside the clinic almost every day for the 25 years that she had worked at the clinic. They often had posters and pamphlets and they:
were generally there from 7.30am until 10am. This period of time coincides approximately with the arrival time of the FCC day procedure patients.
She observes at paragraph 12 that:
patients and staff often attempted to avoid the protestors by diverting down one or two bluestone laneways . . . protestors would enter the laneway to follow patients and stand, pray, sing or yell directly outside FCC consulting rooms.
She observes at paragraph 14 that:
once a month . . . there was a larger group of between 50 and 100 protestors -
And at paragraph 15, on some occasions:
the protestors also conducted forty-day vigils, where they were generally present for the entire day for forty consecutive days.
Now, she deals then with the activities of the protestors, and I will note, your Honours, that she exhibits copies of various handouts and photos of placards and pamphlets et cetera. I am not going to take the Court through that material, but again it is there should the Court wish to see the kinds of behaviours that were occurring before the legislation was enacted.
But she then at paragraph 18 speaks from her own observations of the protestors prior to the commencement of the Act, as well as from speaking to staff and patients, the following activities:
(a) approached women who appeared to be coming into [the clinic], either on foot or alighting from a car . . .
(b) walked next to and followed women, even when the women made it clear they didn’t want the protestors there;
(c) tried to block a woman’s entry into [the clinic];
(d) made statements that the patients said they found both offensive and frightening – for example, words to the effect of ‘an abortion will lead to cancer or infertility’ . . .
(e) handed out pamphlets containing misleading and false information about contraception and abortion . . .
(f) handed out leaflets about religion and anti-abortion organisations;
(g) blocked the pathway to the [clinic] –
et cetera and she observes that:
The protestors’ singing, praying and yelling could be heard within FCC –
She observes at paragraph 22 some additional features of the activities:
(a) one regular protester hung from his neck a relief sculpture of foetuses in progressive stages of development;
(b) the protestors displayed poster-sized photos of well-developed or dismembered foetuses;
(c) one woman carried two newborn dolls; and
(d) on the larger monthly Saturday protests, there was an array of signs and a life-size statue of the Madonna with a baby in her arms.
She then gives evidence at paragraph 28 and continuing about the effect on her personally as a member of staff of the clinic. She describes some of the things that were said to her by protestors in paragraph 28. She describes her reaction to the protests. At paragraph 38 she gives evidence that:
four employees from the FCC, including me, were interviewed and examined
by clinical psychiatrist 
Dr Gregory
White 
. . . Dr White
found that our exposure to the
protestors’ activities created a risk to our emotional and physical
health -
in findings relating to particular physical symptoms and of course that report is exhibited to her affidavit and I do not seek to take the Court to it. She also gives evidence about the effect of the protestors on patients and their companions and can I make perhaps - I do note the time - one observation to conclude, unless the Court wishes to sit on, but Mr Reynolds suggested that Dr Allanson’s affidavit about delay was given at paragraph 50 was in a sense hypothetical and said that she gave no evidence of data about actual delay.
Well, in fact, Dr Allanson gives very clear evidence about a specific person that she can identify whose treatment was delayed as a consequence of the protestors and your Honours will see that at paragraphs 43 and 44. So we contend that Dr Allanson’s affidavit provides, in a sense, additional material that assists the Court to understand in greater detail than one finds in the second reading speech, but consistently with the second reading speech, the purpose of the law and the mischief to which it is directed. Now, if the Court is content I will stop there.
KIEFEL CJ: Yes, thank you. The Court will adjourn until 9.30 am tomorrow for pronouncement of orders and otherwise to 10.00 am.
AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 10 OCTOBER
2018
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