Clubb v Edwards

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

Matter No M46/2018

KATHLEEN CLUBB  APPELLANT

AND

ALYCE EDWARDS & ANOR  RESPONDENTS

Matter No H2/2018

JOHN GRAHAM PRESTON  APPELLANT

AND

ELIZABETH AVERY & ANOR  RESPONDENTS

Clubb v Edwards
Preston v Avery

[2019] HCA 11

10 April 2019

M46/2018 & H2/2018

ORDER

Matter No M46/2018

1. So much of the appellant's appeal from the judgment of Magistrate Bazzani made on 11 October 2017 as has been removed into this Court is dismissed.

2. The appellant pay the respondents' costs.

Matter No H2/2018

1. So much of the appellant's appeal from the judgment of Magistrate Rheinberger made on 27 July 2016 as has been removed into this Court is dismissed.

2. The appellant pay the respondents' costs.

On appeal from the Magistrates' Court of Victoria (M46/2018) and the Magistrates Court of Tasmania (H2/2018)

Representation

G O'L Reynolds SC with F C Brohier and D P Hume for the appellant in both matters (instructed by Khor & Burr Lawyers and DL Legal Lawyers)

F L Dalziel with J M Davidson for the first respondent in M46/2018 (instructed by Director of Public Prosecutions (Vic))

K L Walker QC, Solicitor-General for the State of Victoria, with K E Foley and S Gory for the second respondent in M46/2018 and for the Attorney-General for the State of Victoria, intervening in H2/2018 (instructed by Victorian Government Solicitor)

M E O'Farrell SC, Solicitor-General for the State of Tasmania, with S K Kay for the respondents in H2/2018 (instructed by Solicitor-General for Tasmania)

S P Donaghue QC, Solicitor-General of the Commonwealth, with C L Lenehan and C G Winnett for the Attorney-General of the Commonwealth, intervening in both matters (instructed by Australian Government Solicitor)

P J Dunning QC, Solicitor-General of the State of Queensland, with F J Nagorcka for the Attorney-General of the State of Queensland, intervening in both matters (instructed by Crown Solicitor (Qld))

C D Bleby SC, Solicitor-General for the State of South Australia, with P D Stirling for the Attorney-General for the State of South Australia, intervening in both matters (instructed by Crown Solicitor's Office (SA))

G T W Tannin SC with F B Seaward for the Attorney-General for the State of Western Australia, intervening in both matters (instructed by State Solicitor for Western Australia)

J K Kirk SC with Z C Heger for the Attorney-General for the State of New South Wales, intervening in both matters (instructed by Crown Solicitor's Office (NSW))

T J Moses for the Attorney-General for the Northern Territory, intervening in H2/2018 (instructed by the Solicitor-General for the Northern Territory)

The Castan Centre for Human Rights Law, The Fertility Control Clinic (A firm) and The Human Rights Law Centre appearing as amici curiae in M46/2018, each limited to its written submissions

LibertyWorks Inc appearing as amicus curiae in H2/2018, limited to its written submissions

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Clubb v Edwards
Preston v Avery

Constitutional law (Cth) – Implied freedom of communication about governmental or political matters – Where s 185D of Public Health and Wellbeing Act 2008 (Vic) and s 9(2) of Reproductive Health (Access to Terminations) Act 2013 (Tas) prohibit certain communications and activities in relation to abortions within access zone of 150 m radius around premises at which abortions are provided – Where appellants engaged in communications and activities in relation to abortions within access zone – Whether communications and activities in relation to abortions are communications about governmental and political matters – Whether provisions effectively burden implied freedom – Whether provisions imposed for legitimate purpose – Whether provisions reasonably appropriate and adapted to that purpose – Whether provisions suitable, necessary and adequate in balance.

Constitutional law (Cth) – Implied freedom of communication about governmental or political matters – Severance, reading down and disapplication – Where appellant charged and convicted of offence against s 185D of Public Health and Wellbeing Act 2008 (Vic) – Where it was not contended that appellant's conduct involved political communication – Where substantial overlap with issues raised in proceedings in relation to interstate Act – Whether s 185D able to be severed, read down or partially disapplied so as to have valid operation in respect of appellant – Whether appropriate to proceed to determine constitutional validity of s 185D.

Words and phrases – "access zone", "adequate in its balance", "calibration", "compatible with the maintenance of the constitutionally prescribed system of representative and responsible government", "compelling purpose", "dignity", "discriminatory", "legitimate purpose", "necessary", "partial disapplication", "political communication", "privacy", "prohibited behaviour", "proportionality testing", "protest", "rational connection", "reading down", "reasonably appropriate and adapted", "safe access zone", "severance", "structured proportionality", "suitable", "undue burden", "viewpoint neutral".

Interpretation of Legislation Act 1984 (Vic), s 6.
Public Health and Wellbeing Act 2008 (Vic), ss 185A, 185B, 185C, 185D, 185E.
Reproductive Health (Access to Terminations) Act 2013 (Tas), s 9.

1. KIEFEL CJ, BELL AND KEANE JJ.   The Parliaments of the States of Victoria and Tasmania have decriminalised the termination of pregnancies by artificial means in certain circumstances[1].  In addition, the legislature of each State has sought to provide that those seeking access to, or working in, premises where terminations are available are protected from hindrance.

   [1]Abortion Law Reform Act 2008 (Vic); Reproductive Health (Access to Terminations) Act 2013 (Tas).

2. In Matter M46 of 2018 ("the Clubb appeal"), the appellant, Mrs Kathleen Clubb, challenges the validity of s 185D of the Public Health and Wellbeing Act 2008 (Vic) ("the Public Health Act"), which, by virtue of the definition of "prohibited behaviour" in s 185B(1), prohibits, in certain circumstances, "communicating by any means in relation to abortions". Section 185D was inserted into the Public Health Act by the Public Health and Wellbeing Amendment (Safe Access Zones) Act 2015 (Vic) ("the Safe Access Zones Act").

3. In Matter H2 of 2018 ("the Preston appeal"), the appellant, Mr John Graham Preston, challenges the validity of s 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) ("the Reproductive Health Act"), which, by virtue of the definition of "prohibited behaviour" in s 9(1), prohibits, in certain circumstances, "a protest in relation to terminations".

4. Each of the appellants argues that the challenged provision is invalid because it impermissibly burdens the freedom of communication about matters of government and politics which is implied in the Constitution ("the implied freedom").  This argument falls to be resolved by application of the test for invalidity stated in Lange v Australian Broadcasting Corporation[2] as explained in McCloy v New South Wales[3] and Brown v Tasmania[4]. 

   [2](1997) 189 CLR 520; [1997] HCA 25.

   [3](2015) 257 CLR 178; [2015] HCA 34.

   [4](2017) 261 CLR 328; [2017] HCA 43.

5. The test to be applied was adopted in McCloy by French CJ, Kiefel, Bell and Keane JJ[5], and it was applied in Brown by Kiefel CJ, Bell and Keane JJ[6] and Nettle J[7].  For convenience that test will be referred to as "the McCloy test".  It is in the following terms[8]:

   1.Does the law effectively burden the implied freedom in its terms, operation or effect?

   2.If "yes" to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?

   3.If "yes" to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? 

   [5](2015) 257 CLR 178 at 193‑195 [2].

   [6](2017) 261 CLR 328 at 363‑364 [104].

   [7](2017) 261 CLR 328 at 398 [236], 413 [271], 416‑417 [277]‑[278].

   [8]McCloy v New South Wales (2015) 257 CLR 178 at 193‑195 [2] as modified by Brown v Tasmania (2017) 261 CLR 328 at 363‑364 [104]. See also (2017) 261 CLR 328 at 375‑376 [155]‑[156], 416 [277], 478 [481].

6. The third step of the McCloy test is assisted by a proportionality analysis which asks whether the impugned law is "suitable", in the sense that it has a rational connection to the purpose of the law, and "necessary", in the sense that there is no obvious and compelling alternative, reasonably practical, means of achieving the same purpose which has a less burdensome effect on the implied freedom.  If both these questions are answered in the affirmative, the question is then whether the challenged law is "adequate in its balance".  This last criterion requires a judgment, consistently with the limits of the judicial function, as to the balance between the importance of the purpose served by the law and the extent of the restriction it imposes on the implied freedom[9].

   [9]McCloy v New South Wales (2015) 257 CLR 178 at 193‑195 [2]‑[3].

7. The appellants argued that the challenged laws fail to satisfy the McCloy test.  In addition, they invited the Court to approach the question as to the validity of the challenged provisions on the footing that they derogate impermissibly from what their Senior Counsel described as the right to protest and demonstrate.  This invitation cannot be accepted, for reasons that may be stated briefly. 

8. It is well settled that the implied freedom is a limitation upon the power of government to regulate communication relating to matters of government and politics.  It does not confer a right to communicate a particular message in a particular way[10].  The common law right to protest or demonstrate may be abrogated by statute.  The issue in each appeal is whether the statutory abrogation is valid.  Senior Counsel for the appellants acknowledged in the course of argument that to accept his invitation would be contrary to the settled understanding in this Court's decisions.  Notwithstanding that acknowledgment, he advanced no basis on which this Court might now adopt a different understanding of the juridical nature of the implied freedom, and so the invitation must be rejected.

   [10]Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 150; [1992] HCA 45; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560; Levy v Victoria (1997) 189 CLR 579 at 623‑624, 625‑626; [1997] HCA 31; Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 223‑225 [107]‑[112], 246‑248 [184]‑[188], 298 [337], 303‑304 [354]; [2004] HCA 41; APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 451 [381]; [2005] HCA 44; Unions NSW v New South Wales (2013) 252 CLR 530 at 551‑552 [30], 554 [36], 574 [119]; [2013] HCA 58; McCloy v New South Wales (2015) 257 CLR 178 at 202‑203 [30]; Brown v Tasmania (2017) 261 CLR 328 at 359‑360 [88]‑[90], 407‑408 [258], 430 [313], 503‑504 [558]‑[560].

9. The statutory provision challenged in each appeal operates within a "safe access zone", which is the area within a radius of 150 m from premises at which terminations are provided.  In each case, the restriction is confined to communications about terminations that are able to be seen or heard by a person seeking access to such premises.  There is thus an overlap of issues that arise in the appeals.  Accordingly, the convenient course is to deal comprehensively with those issues in the Clubb appeal, and then to address the different aspects of the issues that arise in the Preston appeal.

   The Clubb appeal

   The charge

10. Mrs Clubb was charged in the Magistrates' Court of Victoria with the following offence:

    "[Mrs Clubb] at East Melbourne on the 4/8/16 did engage in prohibited behaviour namely communicating about abortions with persons accessing premises at which abortions are provided while within a safe access zone, in a way that is reasonably likely to cause anxiety or distress."

11. On 4 August 2016, Mrs Clubb was seen by police to be standing at the eastern boundary of the East Melbourne Fertility Control Clinic ("the Clinic") shortly after 10 am.  Mrs Clubb stood about 5 m from the entrance to the Clinic with pamphlets in her hand.  At 10.30 am she approached a young couple entering the Clinic, spoke to them, and attempted to hand them a pamphlet.  The young man declined the proffered pamphlet and moved, with the young woman, away from Mrs Clubb.  The evidence did not establish what was said between Mrs Clubb and the young couple, but the pamphlet that Mrs Clubb proffered offered counselling and assistance to enable pregnancy to proceed to birth.

    The proceedings

12. The Magistrate upheld the validity of the law under which Mrs Clubb was charged, concluding that it imposed no burden upon the implied freedom because the Public Health Act is not directed at political communication. The Magistrate found that Mrs Clubb communicated with the young couple for the sole purpose of a discussion relevant to abortion, and proceeded to convict Mrs Clubb of the offence charged.

13. Mrs Clubb appealed to the Supreme Court of Victoria. In that Court, she advanced three grounds of appeal. On 23 March 2018, Gordon J, pursuant to s 40 of the Judiciary Act 1903 (Cth), ordered the removal of that part of the appeal concerned with two of those grounds into this Court.

14. Mrs Clubb subsequently filed an amended notice of appeal in this Court. She now contends, in substance, that s 185D of the Public Health Act, read with para (b) of the definition of "prohibited behaviour" in s 185B(1), impermissibly burdens the implied freedom and is therefore invalid, so that the charge against her should have been dismissed.

    Legislation

15. Part 9A of the Public Health Act is entitled "Safe access to premises at which abortions are provided". The purpose of Pt 9A is set out in s 185A, which provides:

    "The purpose of this Part is –

    (a)to provide for safe access zones around premises at which abortions are provided so as to protect the safety and wellbeing and respect the privacy and dignity of –

    (i)people accessing the services provided at those premises; and

    (ii)employees and other persons who need to access those premises in the course of their duties and responsibilities; and

    (b)to prohibit publication and distribution of certain recordings."

16. "[A]bortion" is defined in s 185B(1) by reference to the Abortion Law Reform Act 2008 (Vic). That Act defines "abortion" in s 3:

    "abortion means intentionally causing the termination of a woman's pregnancy by –

    (a)      using an instrument; or

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

    (c)      any other means".

17. Section 185C of the Public Health Act sets out the principles that apply to Pt 9A:

    "The following principles apply to this Part –

    (a)the public is entitled to access health services, including abortions;

    (b)the public, employees and other persons who need to access premises at which abortions are provided in the course of their duties and responsibilities should be able to enter and leave such premises without interference and in a manner which –

    (i)protects the person's safety and wellbeing; and

    (ii)      respects the person's privacy and dignity."

18. The offence‑creating provision in Pt 9A is s 185D, which provides:

    "A person must not engage in prohibited behaviour within a safe access zone.

    Penalty:120 penalty units or imprisonment for a term not exceeding 12 months."

19. "[S]afe access zone" is defined in s 185B(1) to mean "an area within a radius of 150 metres from premises at which abortions are provided". 

20. "[P]rohibited behaviour" is defined in s 185B(1) to include:

    "(b)subject to subsection (2), communicating by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided and is reasonably likely to cause distress or anxiety".

21. Sub‑section (2) of s 185B provides that "[p]aragraph (b) of the definition of prohibited behaviour does not apply to an employee or other person who provides services at premises at which abortion services are provided".

22. Section 185D, read with para (b) of the definition of "prohibited behaviour", will be referred to in these reasons as "the communication prohibition".

23. "[P]rohibited behaviour" is also defined to mean:

    "(a)in relation to a person accessing, attempting to access, or leaving premises at which abortions are provided, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person by any means; or

    ...

    (c)interfering with or impeding a footpath, road or vehicle, without reasonable excuse, in relation to premises at which abortions are provided; or

    (d)intentionally recording by any means, without reasonable excuse, another person accessing, attempting to access, or leaving premises at which abortions are provided, without that other person's consent".

24. Section 185E provides that a person must not, without the consent of the other person or without reasonable excuse, publish or distribute a recording of a person accessing, attempting to access, or leaving premises at which abortions are provided, if the recording contains particulars likely to lead to the identification of that other person and the identification of that other person as a person accessing premises at which abortions are provided.

    A threshold issue

25. The Attorney‑General of the Commonwealth, intervening in the proceeding pursuant to s 78A of the Judiciary Act, submitted that it would be inappropriate for this Court to determine whether the communication prohibition impermissibly burdens the implied freedom in the Clubb appeal because there is no evidence that Mrs Clubb's conduct actually involved political communication.  It was argued that, although the evidence does not establish what Mrs Clubb actually said to the couple seeking access to the Clinic, it may be inferred that her conduct in proffering the pamphlet was directed solely at dissuading the young lady from having an abortion.  On that basis, in its application to Mrs Clubb s 185D imposed no burden on the implied freedom. 

26. It was then said on behalf of the Attorney‑General that, even if the communication prohibition were held to impermissibly burden the implied freedom in some areas of its application, the prohibition is to be construed in accordance with s 6(1) of the Interpretation of Legislation Act 1984 (Vic) so as not to apply to communications about governmental or political matters. Section 6(1), which mirrors s 15A of the Acts Interpretation Act 1901 (Cth), relevantly requires that every Act "shall be construed as operating to the full extent of, but so as not to exceed" legislative power:

    "to the intent that where a provision of an Act, or the application of any such provision to any person, subject‑matter or circumstance, would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid provision to the extent to which it is not in excess of that power". 

27. Construed in this way, the communication prohibition would be valid in its application to Mrs Clubb's conduct whether or not it might impermissibly burden the implied freedom in other areas of its application.

28. Mrs Clubb resisted the Attorney‑General's submission, arguing that this Court should hold that her communications were political in the requisite sense, and further that the communication prohibition could not be severed into valid and invalid areas of application.

29. There is force in the submission of the Attorney‑General.  The implied freedom protects the exercise by the people of the Commonwealth of a free and informed choice as electors.  A discussion between individuals of the moral or ethical choices to be made by a particular individual is not to be equated with discussion of the political choices to be made by the people of the Commonwealth as the sovereign political authority.  That is so even where the choice to be made by a particular individual may be politically controversial.  In Cunliffe v The Commonwealth[11], Brennan J (as he then was) said:

    "The immunity from legislative control which the Constitution implies in order to secure freedom of political discussion does not preclude the making of laws to control any activity the control of which might be politically controversial."

    [11](1994) 182 CLR 272 at 329; [1994] HCA 44.

30. In APLA Ltd v Legal Services Commissioner (NSW)[12], Hayne J, referring to the observations of Brennan J in Cunliffe, explained that laws that seek to control "communications about events (actual or hypothetical) and about rights and remedies ... are not directed at communications about whether the happening of events should be regulated differently or whether available rights and remedies should be changed". 

    [12](2005) 224 CLR 322 at 451 [380]. See also at 350‑351 [26]‑[28], 403‑404 [217]‑[220], 477‑478 [447]‑[453].

31. In the present case, the communication effected by the handing over of the pamphlet by Mrs Clubb lacked any evident connection with the electoral choices to be made by the people of the Commonwealth.  It was designed to persuade a recipient against having an abortion as a matter for the individual being addressed.  It was not addressed to law or policy makers, nor did it encourage the recipient to vote against abortion or to take part in any public debate about the issue.  It may therefore be accepted that the proscription of this communication did not involve an interference with the implied freedom. 

32. On behalf of the Attorney‑General it was noted that in Knight v Victoria[13] the Court unanimously reaffirmed that, as stated in Lambert v Weichelt[14]:

    "[i]t is not the practice of the Court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties".

    [13](2017) 261 CLR 306 at 324 [32]; [2017] HCA 29.

    [14](1954) 28 ALJ 282 at 283.

33. In Knight[15], the Court declined to deal with a constitutional question which was hypothetical because it had not arisen and might never arise.  The Court explained that[16]:

    "it is ordinarily inappropriate for the Court to be drawn into a consideration of whether a legislative provision would have an invalid operation in circumstances which have not arisen and which may never arise if the provision, if invalid in that operation, would be severable and otherwise valid".

    [15](2017) 261 CLR 306 esp at 317 [6], 326 [37].

    [16](2017) 261 CLR 306 at 324 [33], citing British Medical Association v The Commonwealth (1949) 79 CLR 201 at 258; [1949] HCA 44 and Tajjour v New South Wales (2014) 254 CLR 508 at 585‑589 [168]‑[176]; [2014] HCA 35.

34. It is generally accepted that courts will not determine whether a statute contravenes a constitutional provision or guarantee unless it is necessary to secure and protect the rights of a party against an unwarranted exercise of legislative power[17].  That practice has been followed both in this Court and in the Supreme Court of the United States[18].

    [17]Universal Film Manufacturing Co (Australasia) Ltd v New South Wales (1927) 40 CLR 333 at 356; [1927] HCA 50. See also at 342, 350‑351.

    [18]Attorney-General for NSW v Brewery Employes Union of NSW (1908) 6 CLR 469 at 590; [1908] HCA 94; Lambert v Weichelt (1954) 28 ALJ 282; Chicago & Grand Trunk Railway Co v Wellman (1892) 143 US 339 at 345.

35. The practice is based upon prudential considerations[19].  It has been said that for the Court to proceed to determine the validity of a statute where a case does not require it may create the appearance of an "eagerness" that may detract from the Court's standing[20].  A further, and powerful, prudential consideration is that justice does not require the question to be resolved.  These considerations do not detract from the understanding that whether a statute impermissibly burdens the implied freedom is not to be answered by reference to whether it limits the freedom on the facts of a particular case, but rather by reference to its effect more generally[21].  As noted above, the implied freedom is not a personal right; it is to be understood as a restriction upon legislative power.

    [19]Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 473 [249]; [2001] HCA 51.

    [20]Attorney-General for NSW v Brewery Employes Union of NSW (1908) 6 CLR 469 at 590.

    [21]Unions NSW v New South Wales (2013) 252 CLR 530 at 554 [36].

36. It would ordinarily be inappropriate as a matter of practice for the Court to determine a question as to the validity of a statute by reference to the Constitution where doing justice in the case did not require it[22].  But the practice is "not a rigid rule imposed by law which cannot yield to special circumstances"[23].  As was acknowledged on behalf of the Attorney‑General, whether or not the Court should entertain Mrs Clubb's appeal is a matter for the Court.  And while the Court will generally be astute to adhere to the practice, this case exhibits three unusual features which together warrant the Court dealing with the matter as an exception to its usual practice. 

    [22]Knight v Victoria (2017) 261 CLR 306 at 324‑325 [32]‑[33].

    [23]Universal Film Manufacturing Co (Australasia) Ltd v New South Wales (1927) 40 CLR 333 at 350‑351.

37. First, the line between speech directed towards agitating for legislative change, or changes in the attitude of the executive government to the administration of a law, and speech directed to the making of a moral choice by a citizen may be very fine where politically contentious issues are being discussed. 

38. Secondly, while it may be accepted that there is no intersection between the implied freedom and the facts of the Clubb appeal, it cannot be said that the question may never arise.  The likelihood of the question arising is obvious; indeed, the Solicitor‑General of the Commonwealth was not disposed to argue that the Preston appeal does not involve political communication. 

39. Finally, if Mrs Clubb's contentions in relation to the invalidity of the communication prohibition were to be accepted, she would be entitled, subject to the possibility of the prohibition being applied so as to give it a valid operation in respect of non‑political speech, to have her conviction set aside.  Mrs Clubb disputed the contention that the prohibition can properly be applied in a way that does not exceed the power of the Victorian Parliament to regulate non‑political communication.  And so, considerations of judicial economy do not strongly favour adhering to the practice in this case.  That is because it would be necessary for the Court finally to resolve this dispute in favour of the view advanced by the Solicitor‑General of the Commonwealth in order to uphold his threshold submission. 

40. In these circumstances, the prudential considerations reflected in the rule of practice referred to in Lambert do not weigh decisively against entertaining Mrs Clubb's contention that the communication prohibition impermissibly burdens the implied freedom.  It is expedient in the interests of justice to proceed to determine whether Mrs Clubb is entitled to have her conviction set aside on the grounds asserted by her in this Court.

    A burden on the implied freedom?

41. The first step in applying the McCloy test is to ask whether the communication prohibition burdens the implied freedom.  To answer that question, it is necessary to consider the terms, legal operation and practical effect of the statute[24].

    [24]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567; Wotton v Queensland (2012) 246 CLR 1 at 30 [78], 31 [80]; [2012] HCA 2; Unions NSW v New South Wales (2013) 252 CLR 530 at 548‑549 [19], 553‑554 [35]‑[36], 572 [112], 578 [135], 586 [166]; Brown v Tasmania (2017) 261 CLR 328 at 353 [61], 398‑399 [237].

42. Mrs Clubb argued that the communication prohibition effectively proscribes many communications which can be characterised as "political", including communications about whether governments should encourage or discourage abortions and whether laws should be changed to restrict or facilitate abortions.  Mrs Clubb submitted that in its legal operation the prohibition proscribes such communications, and in its practical operation it deters them.

43. The Solicitor‑General for Victoria accepted that the prohibition may capture a broad range of communications.  Even though it is not expressly targeted at communications concerning governmental and political matters, it may apply to such communications.  On that basis, it must be accepted that the prohibition burdens the implied freedom.  A consideration of the nature and extent of the burden can best be left until discussion of the third step of the McCloy test[25].

    [25]Unions NSW v New South Wales (2013) 252 CLR 530 at 555 [40]; Brown v Tasmania (2017) 261 CLR 328 at 360 [90], 398‑399 [237].

    Legitimate purpose

44. For the purposes of the second step of the McCloy test, a purpose is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government, and therefore legitimate, if it does not impede the functioning of that system[26].

    [26]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561‑562, 567; McCloy v New South Wales (2015) 257 CLR 178 at 203 [31].

45. As will be seen, Mrs Clubb argued that the true purpose of the communication prohibition is the suppression of public expression of anti‑abortion sentiment, and that this is not a legitimate purpose. An important theme of her argument in this regard was that the connection between the prohibition and its purpose as propounded by the Solicitor‑General for Victoria is so tenuous or remote that this "true purpose" can be discerned notwithstanding the terms of the Public Health Act. To this end, Mrs Clubb deployed arguments that were intended to demonstrate the absence of a rational connection between the prohibition and the purpose put forward by the Solicitor‑General. These arguments were also directed to negativing the suitability of the prohibition for the purposes of the third step of the McCloy test.  For the sake of convenience, some of these arguments will be addressed under this heading, with others being considered under the heading of "Suitability" in the discussion of the third step of the McCloy test.

46. The Solicitor‑General for Victoria submitted that the activities of protesters had previously created an environment of "conflict, fear and intimidation" outside abortion clinics, and that these activities were harmful to both patients and staff in a number of ways. It was said to be the concern about the effect of these activities on women accessing abortion services, and on clinic staff, and not the suppression of anti‑abortion views, that led to the enactment of the Safe Access Zones Act. In particular, it was said that existing laws did not adequately protect women and staff against the effects of these activities.

47. In this regard, s 185A of the Public Health Act expressly declares the purpose of Pt 9A to be the protection of the safety and wellbeing of, and the preservation of the privacy and dignity of, persons accessing lawful medical services, as well as staff and others accessing the premises in the course of their duties, within the area of a safe access zone.

48. In the Second Reading Speech for the Bill for the Safe Access Zones Act, the Minister explained why this protective purpose was focused within the area of the safe access zones[27]:

    "It is unreasonable for anti‑abortion groups to target women at the very time and place when they are seeking to access a health service, or to target health service staff.  The impact of such actions on these women must be understood within the context of their personal circumstances.  Many are already feeling distressed, anxious and fearful about an unplanned pregnancy, or a procedure that they are about to undergo.  To be confronted by anti‑abortion groups at this time is likely to exacerbate these feelings.  It is intimidating and demeaning for women to have to run the gauntlet of anti‑abortion groups outside health services."

    [27]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2015 at 3975.

49. An additional aspect of the purpose of the challenged legislation relates to the preservation and protection of the privacy and dignity of women accessing abortion services.  Privacy and dignity are closely linked; they are of special significance in this case.  That significance will be discussed at greater length later in these reasons, but at this point it is desirable to note the protection of dignity as an aspect of the purpose of the communication prohibition.

50. Aharon Barak, a former President of the Supreme Court of Israel, writing extra‑judicially, said[28]: 

    "Most central of all human rights is the right to dignity.  It is the source from which all other human rights are derived.  Dignity unites the other human rights into a whole."

    [28]The Judge in a Democracy (2006) at 85 (footnotes omitted), cited in Monis v The Queen (2013) 249 CLR 92 at 182‑183 [247]; [2013] HCA 4.

51. Generally speaking, to force upon another person a political message is inconsistent with the human dignity of that person.  As Barak said[29], "[h]uman dignity regards a human being as an end, not as a means to achieve the ends of others".  Within the present constitutional context, the protection of the dignity of the people of the Commonwealth, whose political sovereignty is the basis of the implied freedom[30], is a purpose readily seen to be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.  Thus, when in Lange[31] the Court declared that "each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia", there was no suggestion that any member of the Australian community may be obliged to receive such information, opinions and arguments.

    [29]The Judge in a Democracy (2006) at 86, cited in Monis v The Queen (2013) 249 CLR 92 at 182‑183 [247].

    [30]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560; Unions NSW v New South Wales (2013) 252 CLR 530 at 548 [17]; McCloy v New South Wales (2015) 257 CLR 178 at 206 [42], 257 [215]‑[216], 280 [303], 283‑284 [317]‑[318].

    [31](1997) 189 CLR 520 at 571.

52. Mrs Clubb submitted that the communication prohibition does not serve a legitimate purpose compatible with the maintenance of the constitutionally prescribed system of representative and responsible government because the object pursued by the prohibition is offensive to that system in that it burdens the anti‑abortion side of the abortion debate more than the pro‑choice side.  Mrs Clubb also argued that to prohibit communications on the ground that they are apt to cause discomfort is not compatible with the constitutional system.  In this regard, it was said that political speech is inherently apt to cause discomfort, and causing discomfort may be necessary to the efficacy of political speech.  These submissions should not be accepted, for the reasons which follow. 

53. In dealing with Mrs Clubb's submissions, some reference to the nature of the burden on the implied freedom is necessary because it bears on the second step of the McCloy test.  In Coleman v Power[32], McHugh J, for example, said:

    "Ordinarily ... serious interference with, political communication would itself point to the inconsistency of the objective of the law with the system of representative government."

    Discriminatory?

    [32](2004) 220 CLR 1 at 52 [98]; [2004] HCA 39.

54. It is an important part of Mrs Clubb's argument that the communication prohibition discriminates against her side of the debate about abortion.  A law that burdens one side of a political debate, and thereby necessarily prefers the other, tends to distort the flow of political communication. 

55. Contrary to Mrs Clubb's contention that the communication prohibition is aimed at, and biased against, the anti‑abortion viewpoint, the prohibition is not directed exclusively at anti‑abortion communication. In truth, the prohibition is viewpoint neutral. That is so as a matter of the ordinary meaning of the text of para (b) of the definition of "prohibited behaviour" in s 185B(1), which is concerned with communicating "in relation to abortions" rather than "against abortions". The ordinary meaning of the text is confirmed by s 185B(2); that provision would be unnecessary if only anti‑abortion communications were caught by the definition. It is also confirmed by the consideration that a person seeking access to premises where abortions are provided is likely to be caused distress or anxiety by attempts by pro‑choice activists to co‑opt her as part of their message as well as by the reproach of anti‑abortionists.

56. It may well be that the prohibition is likely to be breached in practice more frequently by those espousing an anti‑abortion message than by those of a contrary view, but it is simply not the case that the prohibition targets only one side of the controversy.  The mischief at which the prohibition is directed, namely interference by activists with those seeking access to premises where abortions are provided to obtain, or to assist in providing, abortions, may arise no less from the activities of those espousing a pro‑abortion message as from those espousing an anti‑abortion message.  The privacy and the dignity of the persons intended to be protected by the prohibition may be adversely affected by either kind of communication.  And, in the nature of things, pro‑abortion activities outside a clinic where abortions are provided are apt to attract countermeasures by anti‑abortion activists.

    Discomfort or hurt feelings

57. Mrs Clubb argued that if the objects of the communication prohibition are truly those set out in s 185A, then s 185D lacks a rational connection to those objects because it applies to conduct apt to cause no more than "discomfort" or "hurt feelings".

58. This argument ignores the plain words of the statutory text.  The conduct in question must be "reasonably likely to cause distress or anxiety", not mere discomfort or hurt feelings.  The connection required by the prohibition between the communication and the potential to cause distress or anxiety to another person is not illusory.  In the context of para (b) of the definition of "prohibited behaviour", the word "likely" bears its ordinary meaning, namely, "to convey the notion of a substantial – a 'real and not remote' – chance regardless of whether it is less or more than 50 per cent"[33].

    [33]Boughey v The Queen (1986) 161 CLR 10 at 21; [1986] HCA 29.

59. The tendentious suggestion that the communication prohibition might be engaged by conduct apt to cause no more than "discomfort" or "hurt feelings" calls to mind suggestions to the effect that political speech cannot be truly free if it can be silenced for no reason other than to spare the feelings of those spoken about.  Suggestions to that effect may have some attraction in the context of public conflict between commercial or industrial rivals or in the context of a political debate between participants who choose to enter public controversy.  But they have no attraction in a context in which persons attending to a private health issue, while in a vulnerable state by reason of that issue, are subjected to behaviour apt to cause them to eschew the medical advice and assistance that they would otherwise be disposed to seek and obtain.

60. One may conclude that the second step of the McCloy test is satisfied.  The purposes of the communication prohibition do not impede the functioning of the constitutionally prescribed system of representative and responsible government.  To the extent that the purposes include protection against attempts to prevent the exercise of healthcare choices available under laws made by the Parliament, those purposes are readily seen to be compatible with the functioning of the system of representative and responsible government.  Further, a law that prevents interference with the privacy and dignity of members of the people of the Commonwealth through co‑optation as part of a political message is consistent with the political sovereignty of the people of the Commonwealth and the implied freedom which supports it[34].

    [34]cf McCloy v New South Wales (2015) 257 CLR 178 at 206‑207 [42]‑[45], 220‑221 [93].

    Advancing the legitimate purpose:  is proportionality testing necessary?

61. The Solicitor‑General for Victoria submitted that it is not necessary in this case to undertake all of the proportionality testing involved in the third step of the McCloy test.  That was said to be because any burden on the implied freedom is minimal and the burden is imposed to further a compelling legislative purpose.  It was said that all that is required in the present case is that the means adopted by the law are rationally related to the pursuit of that compelling purpose.  It was said that there is ample evidence of a rational connection between the legislative purpose and the communication prohibition. 

62. The Solicitor‑General submitted that the public interest in protecting those accessing abortion clinics from harm is so compelling that any restriction on the implied freedom is more than balanced by the benefits sought to be achieved.  In addition, she argued that the communication prohibition is no broader than is necessary to achieve its object, because it is not possible to eliminate the prohibition, or reduce its scope, while still retaining its effectiveness.

63. These submissions by the Solicitor‑General should not be accepted.

64. It may be accepted that when the burden on the implied freedom is very slight it becomes difficult to say, consistently with the limitations on judicial power, that alternative measures are available that would be less burdensome while at the same time equally efficacious.  However, McCloy requires that any effective burden on the freedom must be justified[35].  It could hardly be said that a measure which is more restrictive of the freedom than is necessary can rationally justify the burden[36].

    [35]McCloy v New South Wales (2015) 257 CLR 178 at 201 [24]. See also Brown v Tasmania (2017) 261 CLR 328 at 369 [127].

    [36]Brown v Tasmania (2017) 261 CLR 328 at 370 [130].

65. Further, that a burden upon the implied freedom is of small magnitude and for a compelling legitimate purpose does not dispense with the need to determine whether the impugned law is reasonably appropriate and adapted to the achievement of its purpose[37].

    [37]McCloy v New South Wales (2015) 257 CLR 178 at 213 [68]; Brown v Tasmania (2017) 261 CLR 328 at 369 [127].

66. At this point in the application of the McCloy test, the focus has shifted to the relationship between the purpose and the extent to which the implied freedom is burdened.  The issue for the courts is not to determine the correct balance of the law; that is a matter for the legislature.  The question is whether the law can be seen to be irrational in its lack of balance in the pursuit of its object.  While it may be accepted that the court will reach that conclusion only where the disproportion is such as to manifest irrationality, it is desirable, in the interests of transparency, that the court face up to, and explicitly deal with, this question.

67. The ultimate question to which the enquiry is directed is whether the burden effected by the law is, as stated in Lange[38], "undue".  In the plurality judgment in McCloy[39], it was said:

    "The inquiry must be whether the burden is undue, not only by reference to the extent of the effect on the freedom, but also having regard to the public importance of the purpose sought to be achieved.  This is the balance which necessarily, and logically, inheres in the Lange test."

    [38](1997) 189 CLR 520 at 569, 575. See also McCloy v New South Wales (2015) 257 CLR 178 at 214‑215 [71].

    [39](2015) 257 CLR 178 at 218 [86].

68. In this context, to speak of an impermissible burden on the implied freedom is to speak of a burden that is undue in the sense that it is disproportionate to the law's effect in achieving its legitimate purpose[40].  So in Brown[41], the impugned law was held invalid by Kiefel CJ, Bell and Keane JJ because of the "overreach of means over ends".  In that case, the impugned law, in its operation and effect, burdened the implied freedom in a way that exceeded the rational pursuit of the legitimate purpose of protecting businesses from disruption by protesters.

    [40]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 569, 575. See also McCloy v New South Wales (2015) 257 CLR 178 at 214‑215 [71].

    [41](2017) 261 CLR 328 at 365 [109].

69. The question whether a law is "adequate in its balance" is not concerned with whether the law strikes some ideal balance between competing considerations.  It is no part of the judicial function to determine "where, in effect, the balance should lie"[42].  Rather, the question is whether the law imposes a burden on the implied freedom which is "manifestly excessive by comparison to the demands of legitimate purpose"[43].

    [42]Brown v Tasmania (2017) 261 CLR 328 at 422‑423 [290].

    [43]Brown v Tasmania (2017) 261 CLR 328 at 422‑423 [290]. See also McCloy v New South Wales (2015) 257 CLR 178 at 219‑220 [89]‑[92].

70. Proportionality testing is an assessment of the rationality of the challenged law as a response to a perceived mischief that must also respect the implied freedom.  A law which allows a person to be shot and killed in order to prevent damage to property can be seen to have a connection to the purpose of preventing damage to property.  It may also be accepted that other means of preventing damage to property would not be as effective.  Nevertheless, the law is not a rational response to the mischief at which it is directed because it is manifestly disproportionate in its effect on the peace, order and welfare of the community.  In the same way, it is only if the public interest in the benefit sought to be achieved by the legislation is manifestly outweighed by an adverse effect on the implied freedom that the law will be invalid.

71. In McCloy[44], the plurality said:

    "To say that the courts are able to discern public benefits in legislation which has been passed is not to intrude upon the legislative function.  The courts acknowledge and respect that it is the role of the legislature to determine which policies and social benefits ought to be pursued.  This is not a matter of deference.  It is a matter of the boundaries between the legislative and judicial functions."

    [44](2015) 257 CLR 178 at 220 [90].

72. It is important to be clear that what is involved is not a comparison of the general social importance of the purpose of the impugned law and the general social importance of keeping the implied freedom unburdened.  Rather, what is to be balanced are the effects of the law – in terms of the benefits it seeks to achieve in the public interest and the extent of the burden on the implied freedom.  Such an exercise is familiar as an exercise of judicial power from cases including Sankey v Whitlam[45], Hinch v Attorney‑General (Vict)[46] and Hogan v Hinch[47].  And as the plurality noted in McCloy[48], "notions of balancing may be seen in Castlemaine Tooheys Ltd v South Australia[49], in the context of the s 92 freedom".

    [45](1978) 142 CLR 1 at 39, 43; [1978] HCA 43. See also at 63‑64, 98‑99.

    [46](1987) 164 CLR 15 at 85‑87; [1987] HCA 56. See also at 26‑27, 41‑43, 50, 75.

    [47](2011) 243 CLR 506 at 536‑537 [32]; [2011] HCA 4.

    [48](2015) 257 CLR 178 at 219 [87].

    [49](1990) 169 CLR 436; [1990] HCA 1.

73. The proportionality analysis applied in McCloy and Brown accords with the foundational authority of the decision in Lange, where the Court said[50]:

    "Different formulae have been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed. Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts."

    [50](1997) 189 CLR 520 at 562.

74. Furthermore, the abstract and indeterminate language of the second limb in Lange[51] (which was stated as the third step of the McCloy test) can be a source of difficulty in its application.  The proportionality analysis referred to in McCloy and Brown addresses this and explains how the conclusion required by Lange – whether the burden is "undue" – is to be reached.  In addition, a structured proportionality analysis provides the means by which rational justification for the legislative burden on the implied freedom may be analysed, and it serves to encourage transparency in reasoning to an answer[52].  It recognises that to an extent a value judgment is required but serves to reduce the extent of it.  It does not attempt to conceal what would otherwise be an impressionistic or intuitive judgment of what is "reasonably appropriate and adapted"[53].

    [51]cf Unions NSW v New South Wales (2013) 252 CLR 530 at 576 [129].

    [52]McCloy v New South Wales (2015) 257 CLR 178 at 216 [75]; Brown v Tasmania (2017) 261 CLR 328 at 369 [125].

    [53]McCloy v New South Wales (2015) 257 CLR 178 at 216 [75]; Brown v Tasmania (2017) 261 CLR 328 at 369 [125].

    Suitability

75. Whether a law that burdens the implied freedom is justified in accordance with the third step of the McCloy test requires a consideration of the nature and extent of the burden.  In this regard, the Solicitor‑General for Victoria submitted that any burden on the implied freedom is incidental:  not all communication about abortions is political, and the communication prohibition is not directed to political communication.  Only communications about abortions are targeted.  Further, any effect on political communication is insubstantial because, outside a safe access zone, people may protest and express their views about abortions however they choose.  It was said that all that is involved in s 185D is a "time, manner and place" restriction[54] that is tailored to meet a legitimate purpose and to leave political communication otherwise untrammelled.

    [54]Citing Brown v Tasmania (2017) 261 CLR 328 at 462 [420].

76. Mrs Clubb argued that the prohibition applies exclusively to the anti‑abortion side of the debate.  This argument has already been considered and rejected. 

77. Mrs Clubb's other arguments under this heading will now be examined.  That examination reveals that these arguments seriously exaggerate the effect of the prohibition on the implied freedom.

    The protection of people in safe access zones

78. Mrs Clubb argued that the circumstance that the prohibition is directed to communications in relation to abortions, whether or not the communication is in fact seen or heard, is an impermissible burden on the freedom.  Further, it was said that because there need not be an actual person accessing or leaving the premises for the purposes of an abortion, the prohibition applies whether or not distress or anxiety is in fact caused to any person and irrespective of whether there is in fact harm to safety, wellbeing, privacy or dignity.

79. Mrs Clubb's argument that the prohibition is excessive in its effect because it does not require proof of actual harm to any person fails to appreciate the protective purpose of the legislation.  The prohibition on communicating about abortions in a safe access zone is intended to protect and preserve a corridor of ready access to reproductive healthcare facilities rather than merely to punish an actual interference with a person seeking such access.  It is the creation of safe access zones that prevents a situation in which an unwilling listener or viewer cannot avoid exposure to communication about abortions outside the clinic because they are obliged to enter the clinic from the area in which activists are present.  That the prohibition may be breached without a person actually hearing or seeing a communication about abortions, or actually being caused distress or anxiety, is an aspect of the prophylactic approach of creating safe access zones. 

    On-site protests

80. Mrs Clubb argued that abortion has been a topic of political debate in Australia for many years.  It was said that it is, and has been, a characteristic feature of that debate that many of those who have views on the issue choose to express those views outside or near premises at which abortions can be obtained.  As a result, political communications about abortions are often most effective when they are engaged in at a place where abortions are provided.  Further, it was said that persons entering or leaving premises at which abortions are provided are especially vulnerable to distress or anxiety, and, as a result, the prohibition is likely to proscribe or deter all or almost all communications in relation to that topic, and so to proscribe political communications in relation to abortion near abortion facilities is to proscribe those communications in the very location that they are typically most effective.

81. It may be noted immediately that Mrs Clubb's submission that anti‑abortion communication is most effective when it occurs near an abortion clinic is not supported by any finding of fact or evidence.  In this regard, the present case may be contrasted with Brown[55], where it was established as a matter of fact that "on‑site protests against forest operations and the broadcasting of images of parts of the forest environment at risk of destruction are the primary means of bringing such issues to the attention of the public and parliamentarians".  There was thus no evidence in the present case upon which an argument for the special efficacy of on‑site protests as a form of political communication about the issue of abortion could be based. 

    [55](2017) 261 CLR 328 at 400 [240].

82. In any event, there is a more important point of distinction between this case and Brown.  The on‑site protests against forest operations discussed in Brown did not involve an attack upon the privacy and dignity of other people as part of the sending of the activists' message.  Even if the argument for Mrs Clubb as to the special potency of on‑site protests as a mode of political communication were to be accepted, her argument would still fail because the implied freedom is burdened only within the safe access zones.  It is within those zones that intrusion upon the privacy, dignity and equanimity of persons already in a fraught emotional situation is apt to be most effective to deter those persons from making use of the facilities available within the safe access zones.  This, after all, is the very reason for Mrs Clubb's activities.  Mrs Clubb's own argument demonstrates that the legitimate purpose which justifies the burden is at its strongest within the perimeter of the safe access zones.  Within those zones, the burden on the implied freedom is justified by the very considerations of the dignity of the citizen as a member of the sovereign people that necessitate recognition of the implied freedom.

83. Those wishing to say what they want about abortions have an unimpeded ability to do so outside the radius of the safe access zones.  The 150 m radius of the safe access zones serves merely to restrict their ability to do so in the presence of a captive audience of pregnant women seeking terminations and those involved in advising and assisting them.  In relation to the radius of the safe access zones, the Minister explained in her Second Reading Speech[56]:

    "A zone of 150 metres was chosen after consultation with a wide range of stakeholders.  Hospitals and clinics provided examples of the activities of anti‑abortion groups and the places where they confronted patients and staff.  This included waiting at places where patients parked their cars and at public transport stops.  Some health services asked for a much larger zone, but after careful consideration it was determined that a zone of 150 metres would be sufficient to protect people accessing premises."

    [56]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2015 at 3976.

84. The impugned law is suitable, in that it has a rational connection to its purpose.  The communication prohibition has a rational connection to the statutory purpose[57] of promoting public health.  Unimpeded access to clinics by those seeking to use their services and those engaged in the business of providing those services is apt to promote public health.  A measure that seeks to ensure that women seeking a safe termination are not driven to less safe procedures by being subjected to shaming behaviour or by the fear of the loss of privacy is a rational response to a serious public health issue.  The issue has particular significance in the case of those who, by reason of the condition that gives rise to their need for healthcare, are vulnerable to attempts to hinder their free exercise of choice in that respect[58].

    [57]Unions NSW v New South Wales (2013) 252 CLR 530 at 557‑558 [50]‑[55], 561 [64], 579 [140]‑[141]; McCloy v New South Wales (2015) 257 CLR 178 at 217 [80].

    [58]Hill v Colorado (2000) 530 US 703 at 728‑729.

85. In addition, the communication prohibition has a rational connection to the statutory purpose of protecting the privacy and dignity of women accessing abortion services.  As noted above, that connection accords with the constitutional values that underpin the implied freedom. 

    Necessity

86. The unchallenged evidence in this case is that, in contrast to the pre‑existing law, the effect of the communication prohibition has been to reduce the deterrent effect of anti‑abortion activities near premises where abortions are provided. There was evidence before the Magistrate from Dr Allanson of her observations that until the commencement of Pt 9A of the Public Health Act in 2015, attempts by the Clinic to engage the assistance of the police and the Melbourne City Council to help stop harassment of the Clinic's patients by anti‑abortion groups were ineffective.

87. Mrs Clubb submitted that the communication prohibition is not necessary to achieve the objects referred to in s 185A because there are less burdensome alternatives. Mrs Clubb sought to develop this argument in a number of ways, each of which may be dealt with briefly.

88. First, she drew attention, as an example, to para (a) of the definition of "prohibited behaviour".  This argument cannot be accepted.  The communication prohibition is necessary because non‑violent protest that would not fall within para (a) of the definition of "prohibited behaviour" may well be apt to shame or frighten a pregnant woman into eschewing the services of a clinic.  As was said by Saunders J in R v Lewis[59]:

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

    [59](1996) 139 DLR (4th) 480 at 493 [32]. See also R v Spratt (2008) 298 DLR (4th) 317 at 338‑339 [80]‑[81].

89. Silent but reproachful observance of persons accessing a clinic for the purpose of terminating a pregnancy may be as effective, as a means of deterring them from doing so, as more boisterous demonstrations.  Further, there is the pragmatic consideration that "the line between peaceful protest and virulent or even violent expression against abortion is easily and quickly crossed"[60].

    [60]R v Spratt (2008) 298 DLR (4th) 317 at 338 [80].

90. The communication prohibition gives effect to a legislative judgment that the laws in Victoria prior to the enactment of the Safe Access Zones Act did not adequately protect women seeking to access reproductive health clinics from activities which, though non‑violent, had the potential to deter them from availing themselves of those facilities. The legislative judgment that activities falling short of intentional intimidation, harassment, threatening behaviour or physical interference in terms of personal violence were also capable of deterring unimpeded access to clinics cannot be said to impose an unnecessary burden upon the implied freedom. The statement of compatibility in relation to the Bill for the Safe Access Zones Act tabled by the Minister for Health in accordance with the Charter of Human Rights and Responsibilities Act 2006 (Vic) explained[61]:

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

    (a)They can only be enforced after the harmful conduct has occurred and there are significant difficulties in enforcing such laws.  This is particularly the case in relation to conduct directed toward women accessing legal abortion services.  Although such conduct has often extended to criminal conduct, women and their support persons are generally unwilling to report the conduct to police or assist in a prosecution which would expose them to the stress and possible publicity of a criminal proceeding.  The intensely private nature of the decision that the protesters seek to denounce, effectively operates to protect the protesters from prosecution for criminal conduct.

    (b)It will not fully protect staff members and others from the harmful effect of the otherwise peaceful protests given their sustained nature and the background of extreme conduct against which they occur.  Staff and members of the public are entitled to be safe and to feel safe in undertaking their lawful work activities and accessing lawful health services. 

    I consider that it is necessary to create a safe access zone around premises at which abortions are provided, and prohibit certain communications in relation to abortions within that zone, in order to prevent the harm and not just to respond to inappropriate conduct when it occurs."

    [61]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2015 at 3973.

91. Mrs Clubb also argued that a less burdensome law could have excluded conduct apt to cause no more than discomfort.  That argument has already been considered and rejected.

92. Mrs Clubb argued that the communication prohibition is unnecessarily burdensome because of the absence of a requirement that an offending communication actually be heard or seen by any person.  Such a requirement would lessen the effectiveness of the prohibition.  A contravention of the communication prohibition can be proved without the need to call a person protected by the legislation to give evidence.  That can readily be understood as an aspect of the protection of the privacy of women seeking access to abortion services.

93. Mrs Clubb also argued that the burden on the implied freedom is unduly heavy because of the absence of a requirement that the communication occur without the consent of the recipient.  That argument should be rejected.  Such a requirement would mean that in many, practically speaking all, cases the harm to which the prohibition is directed would be done before consent is sought.  In addition, such a requirement would facilitate avoidance of the prohibition by the simple expedient of having someone within the safe access zone consent to receiving an otherwise prohibited communication.

94. Next, Mrs Clubb argued that the extent of the burden might have been reduced by providing for an exception to the prohibition during election campaigns.  That argument too should be rejected.  In the nature of things the need for abortion services and the anxiety and distress associated with accessing those services is not lessened during election campaigns.  If anything, the contrary is likely to be the case.

95. Mrs Clubb also argued that the communication prohibition is excessive in its effect because it is a strict liability offence not confined by a mens rea requirement.  Once again that is not so.  The prohibition is not engaged unless there is an intentional act of communication of matter relating to abortions, and that act must be performed in a manner that is capable of being heard by a person who may be accessing or attempting to access the relevant premises.  Further, the communication must occur, and be intended to occur, within 150 m of premises at which abortions are provided[62].  Whether the matter communicated is reasonably likely to cause distress or anxiety is a matter of fact to be determined objectively. 

    [62]He Kaw Teh v The Queen (1985) 157 CLR 523 at 528‑529, 546, 549‑550, 574, 591‑592; [1985] HCA 43.

    Adequacy of balance

96. If an impugned law's purpose is compatible with the constitutionally prescribed system of representative and responsible government, the law will nevertheless be invalid if it pursues that purpose by means that have the effect of impermissibly burdening the implied freedom[63]. 

    [63]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567‑568.

97. As noted above, it is no part of the implied freedom to guarantee a speaker an audience, much less a captive audience.  As Nettle J observed in Brown[64]:

    "The implied freedom of political communication is a freedom to communicate ideas to those who are willing to listen, not a right to force an unwanted message on those who do not wish to hear it[65], and still less to do so by preventing, disrupting or obstructing a listener's lawful business activities.  Persons lawfully carrying on their businesses are entitled to be left alone to get on with their businesses and a legislative purpose of securing them that entitlement is, for that reason, a legitimate governmental purpose."

    [64](2017) 261 CLR 328 at 415 [275].

    [65]McClure v Australian Electoral Commission (1999) 73 ALJR 1086 at 1090 [28]; 163 ALR 734 at 740‑741; [1999] HCA 31; Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 245‑246 [182]; Attorney‑General (SA) v Adelaide City Corporation (2013) 249 CLR 1 at 37 [54]; [2013] HCA 3; Monis v The Queen (2013) 249 CLR 92 at 206‑207 [324]. See and compare Cox v Louisiana (1965) 379 US 536 at 553‑556; Frisby v Schultz (1988) 487 US 474 at 484‑488; Hill v Colorado (2000) 530 US 703 at 715‑718; McCullen v Coakley (2014) 134 S Ct 2518 at 2545‑2546.

98. The implied freedom is not a guarantee of an audience; a fortiori, it is not an entitlement to force a message on an audience held captive to that message[66].  As has been noted, it is inconsistent with the dignity of members of the sovereign people to seek to hold them captive in that way. 

    [66]Hill v Colorado (2000) 530 US 703 at 729; Ontario (Attorney‑General) v Dieleman (1994) 117 DLR (4th) 449 at 723‑724; R v Spratt (2008) 298 DLR (4th) 317 at 339‑340 [82]‑[84].

99. A law calculated to maintain the dignity of members of the sovereign people by ensuring that they are not held captive by an uninvited political message accords with the political sovereignty which underpins the implied freedom[67].  A law that has that effect is more readily justified in terms of the third step of the McCloy test than might otherwise be the case.

    [67]McCloy v New South Wales (2015) 257 CLR 178 at 206‑207 [42]‑[45], 220‑221 [93].

100. The burden on the implied freedom is slight in respect of both its subject matter and its geographical extent.  Within the safe access zones, the only burden on the implied freedom is upon communications about abortions, and that burden is limited to preventing the capture of an audience.  In these circumstances, one cannot say that a smaller safe access zone would be as effective in restricting the ability of those who wish to have their say about abortions in the presence of a captive audience of pregnant women and those involved in advising and assisting them, while at the same time imposing a lesser practical burden on the implied freedom. 

101. In addition, in McCloy the public interest served by the impugned legislation was held to be the minimisation of the risk of the corruption of the electoral process.  There the impugned legislation was seen to pursue objectives that "support and enhance equality of access to government, and the system of representative government which the freedom protects"[68].  For similar reasons in the present case, difficulties in the balancing exercise do not loom as large as they sometimes may.  The balance of the challenged law can, in significant part, be assessed in terms of the same values as those that underpin the implied freedom itself in relation to the protection of the dignity of the people of the Commonwealth.

     [68]McCloy v New South Wales (2015) 257 CLR 178 at 221 [93].

102. In summary in relation to the third step of the McCloy test, the limited interference with the implied freedom is not manifestly disproportionate to the objectives of the communication prohibition.  The burden on the implied freedom is limited spatially, and is confined to communications about abortions.  There is no restriction at all on political communications outside of safe access zones.  There is no discrimination between pro‑abortion and anti‑abortion communications.  The purpose of the prohibition justifies a limitation on the exercise of free expression within that limited area.  And the justification of the prohibition draws support from the very constitutional values that underpin the implied freedom.  Accordingly, the communication prohibition satisfies the third step of the McCloy test.

     Conclusion and orders

103. So much of the appellant's appeal from the judgment of Magistrate Bazzani made on 11 October 2017 as has been removed into this Court should be dismissed.

104. The appellant must pay the respondents' costs.

     The Preston appeal

     The charge

105. Mr Preston was charged in the Magistrates Court of Tasmania with breaching s 9(2) of the Reproductive Health Act on two occasions in September 2014 and on one occasion in April 2015.

106. The events which give rise to the charges occurred within 150 m of the Specialist Gynaecology Centre situated at 1A Victoria Street, Hobart.  On each occasion, Mr Preston was on the footpath of Macquarie Street near its corner with Victoria Street and was able to be seen with placards which included statements such as "EVERY ONE HAS THE RIGHT TO LIFE, Article 3, Universal Declaration of Human Rights" and "EVERY CHILD HAS THE RIGHT TO LIFE, Article 6, UN Convention on the Rights of the Child" and depicting, among other things, a representation of a foetus at eight weeks.  Mr Preston also had leaflets in his hand and was carrying a media release. 

     The proceedings

107. The Magistrate found that the offences charged were proved beyond a reasonable doubt. Her Honour then proceeded to determine the argument raised by the defence that s 9(2) of the Reproductive Health Act, read with para (b) of the definition of "prohibited behaviour" in s 9(1), impermissibly burdened the implied freedom. Her Honour rejected that defence, concluding that the legislation is valid.

108. Mr Preston sought review of the decision of the Magistrates Court in the Supreme Court of Tasmania. In that Court, he advanced eight grounds of review. On 23 March 2018, Gordon J, pursuant to s 40 of the Judiciary Act, ordered the removal of that part of the appeal concerned with six of those grounds into this Court. 

109. Mr Preston subsequently filed an amended notice of appeal in this Court, which advanced six grounds of review, contending in substance that the Magistrate should have found that s 9(2) of the Reproductive Health Act, read with para (b) of the definition of "prohibited behaviour" in s 9(1), impermissibly burdens the implied freedom.

     Legislation

110. Section 9 of the Reproductive Health Act relevantly provides:

     "(1)     In this section –

     access zone means an area within a radius of 150 metres from premises at which terminations are provided;

     ...

     prohibited behaviour means –

     ...

     (b)a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided; or

     ...

     (2)A person must not engage in prohibited behaviour within an access zone.

     Penalty:Fine not exceeding 75 penalty units or imprisonment for a term not exceeding 12 months, or both."

111. "[T]erminate" is defined in s 3(1) of the Act as follows:

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

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

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

     (c)      any other means –

     but does not include –

     (d)the supply or procurement of any thing for the purpose of discontinuing a pregnancy; or

     (e)the administration of a drug or a combination of drugs for the purpose of discontinuing a pregnancy by a nurse or midwife acting under the direction of a medical practitioner".

112. Section 9(2), read with para (b) of the definition of "prohibited behaviour", will be referred to in these reasons as "the protest prohibition".

113. The expression "prohibited behaviour" is also defined to mean:

     "(a)in relation to a person, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person; or

     ...

     (c)      footpath interference in relation to terminations; or

     (d)intentionally recording, by any means, a person accessing or attempting to access premises at which terminations are provided without that person's consent".

114. The expression "footpath interference" is not defined in the legislation.  It seems that the expression was derived from s 2(1) of the Access to Abortion Services Act 1995 of British Columbia, which prohibits "sidewalk interference".  In R v Lewis[69], it was said that the expression "sidewalk interference" corresponded with "sidewalk counselling", a form of private health communication. Having regard to s 9(2) of the Reproductive Health Act, the expression "footpath interference" would catch conduct apt to waylay the user of a footpath in an access zone seeking access to a clinic in relation to a termination.

     [69](1996) 139 DLR (4th) 480 at 512 [108].

115. Finally, s 9(4) provides:

     "A person must not publish or distribute a recording of another person accessing or attempting to access premises at which terminations are provided without that other person's consent."

     The differences between the Tasmanian and Victorian prohibitions

116. It is apparent that the Reproductive Health Act differs from its Victorian counterpart in a number of respects. First, the Reproductive Health Act does not expressly state its objects. Secondly, the impugned prohibition is directed at "a protest" about terminations. Thirdly, the scope of the operation of the prohibition is not limited by a requirement that the protest be reasonably likely to cause distress or anxiety.

117. It might be said that the case to be made for the invalidity of the protest prohibition as an impermissible burden on the implied freedom is stronger than the case to be made against its Victorian counterpart because the prohibition is directed squarely at what is a familiar form of political communication, because the Tasmanian legislation does not articulate the objects that justify its intrusion on the implied freedom, and because the protest prohibition does not require a potential to cause distress or anxiety.  It might also be said that the Victorian legislation is an example of an obvious and compelling alternative measure less intrusive upon the implied freedom.  In the end, however, these differences do not warrant a different result in the Preston appeal.

     A burden on the implied freedom

118. Mr Preston submitted that in the phrase "protest in relation to terminations", the word "protest" should be understood as referring exclusively to a protest expressing a message that is in opposition to terminations.  Mr Preston argued that the protest prohibition is in terms directed to "protest", which is a characteristic mode of political communication.  It was said that the prohibition imposes a more direct burden on political communication than the Victorian legislation because its sole focus is "protest".

119. The Solicitor‑General for Tasmania accepted that a protest in relation to terminations may in some cases contain political communication.  That concession was rightly made.  The protest prohibition is a burden on the implied freedom.  Given the express inclusion of "footpath interference" in the definition of "prohibited behaviour", it is impossible to understand the word "protest" in the prohibition on protest as referring to anything other than a public demonstration about abortion.  In context, the term "protest" is apt to encompass the dissemination of a message "in relation to terminations" that concerns governmental or political matters.

     Legitimate purpose

120. The Solicitor‑General for Tasmania submitted that, notwithstanding the absence of a statement in the Reproductive Health Act of its objects, the protest prohibition can readily be seen to serve the purpose of protecting the safety, wellbeing, privacy and dignity of persons accessing premises where terminations are provided. That submission should be accepted.

121. While the Reproductive Health Act is not as explicit as to its objects as its Victorian counterpart, its purpose is apparent from its terms and subject matter as well as from the Second Reading Speech for the Bill for the Reproductive Health Act. The Minister for Health, having stated that "without the provision of a full range of safe, legal and accessible reproductive services, women experience poorer health outcomes"[70], went on to identify, as a significant obstacle to women accessing safe termination services, the "stigma" and "shame" associated with having to run the gauntlet of protesters in order to gain access to medical clinics providing those services[71].  She went on to say[72]: 

     "[S]tanding on the street outside a medical facility with the express purpose of dissuading or delaying a woman from accessing a legitimate reproductive health service is ... quite unacceptable."

     [70]Tasmania, House of Assembly, Parliamentary Debates (Hansard), 16 April 2013 at 44.

     [71]Tasmania, House of Assembly, Parliamentary Debates (Hansard), 16 April 2013 at 50‑51.

     [72]Tasmania, House of Assembly, Parliamentary Debates (Hansard), 16 April 2013 at 51.

122. The object of the prohibition is to protect the safety and wellbeing, physical and emotional, of persons accessing and leaving abortion clinics and to ensure that women may have unimpeded access to, and doctors may provide, terminations.

123. Mr Preston argued that the prohibition does not serve a legitimate purpose because it applies exclusively to anti‑abortion protests and could apply to protests against the Reproductive Health Act itself. Contrary to this submission, the prohibition is viewpoint neutral. It would be contravened by a protest in favour of the Reproductive Health Act. One cannot ignore the use of viewpoint neutral language rather than an obvious alternative, such as "protest against abortions", if the legislation was targeted only at anti‑abortion protests. Further, protest about terminations is a public demonstration or manifestation of opinion in relation to one or other side of the debate about terminations. Whichever side of the debate is engaged in the public demonstration or manifestation, the emotional temperature within the access zone will be raised, and that, it can readily be accepted, will create a disincentive to a person previously disposed to seek access to medical advice and assistance in relation to a termination. Further, as noted earlier, pro‑abortion activities outside a clinic where abortions are provided are likely, in the nature of things, to attract countermeasures by anti‑abortion activists.

     Suitability

483. One obvious manner in which the width of the burden upon the freedom of political communication could have been significantly lessened would have been by a law that imposed an access zone that was smaller than a 150 m radius (70,000 m²) such as, for example, the approximately 11 m radius (380 m²) used in the Massachusetts law considered in McCullen v Coakley[583].  However, the reduction of the zone would likely have protected far fewer of those accessing the premises.  Even with the area chosen of 70,000 m², and the likelihood that almost all women would be protected, the findings of fact by Magistrate Rheinberger indicate that some women could be targeted.  Her Honour concluded that "[p]rotesters wanting to communicate their political beliefs in relation to terminations of pregnancies in a manner that may target women who may be accessing or attempting to access the premises" can still protest outside the access zone, but close enough to allow meaningful opportunity for communication[584].

     [583](2014) 134 S Ct 2518.

     [584]Police v Preston and Stallard (unreported, Magistrates Court of Tasmania, 27 July 2016) at [53].

484. In any event, it cannot be said to be obvious or compelling that the purposes of the legislation would be able to be served to the same extent by an access zone with, for example, a radius of 120 m or 130 m.  At that degree of specificity such a judgment is peculiarly within the province of Parliament as advised by stakeholders, experts, and committees.  As the Minister said in the Second Reading Speech of the Victorian legislation[585], which adopted the same radius, that particular distance was chosen "after consultation with a wide range of stakeholders", including health services who had asked for a "much larger zone"[586].

     [585]Public Health Act, s 185B(1) (definition of "safe access zone").

     [586]Victoria, Legislative Assembly, Parliamentary Debates (Hansard), 22 October 2015 at 3976.

485. A second manner in which it might be said that the burden upon the freedom of political communication could have been reduced is by altering the focus of the protest prohibition so that rather than targeting all protests, with their strong association with political communication, the prohibition targeted only communications that are reasonably likely to cause distress or anxiety[587].  A burden upon political communication will generally be deeper where political communication is specifically targeted, so replacing the broader requirement of protest with a requirement for distress and anxiety might be said to reduce the burden.  However, in the course of submissions no example was given of a circumstance in which protest outside premises where terminations are provided would not cause distress or anxiety to a person within the class of vulnerable persons accessing the clinic.  The Solicitor-General for the State of South Australia acknowledged in oral submissions that he could not conceive of any such circumstance.  No other party or intervener provided one.

     [587]See Public Health Act, s 185B(1) (definition of "prohibited behaviour", para (b)).

486. In summary, a law with the same purpose as the protest prohibition, but that imposed a significantly lesser burden upon the freedom of political communication, could have been enacted. However, despite the depth and width of the burden, it is unlikely that the purposes of the Reproductive Health Act could have been served to the same or a similar extent without imposing a burden that was similarly deep and wide. At the least, the possibility that the purposes could be so served by alternative means is neither obvious nor compelling.

487. At first blush, the conclusion that the protest prohibition was reasonably necessary does not sit comfortably with the conclusion reached by the joint judgment in the majority in Brown v Tasmania that the protest prohibition in that case was not reasonably necessary for its purpose[588]. The Reproductive Health Act denies any meaningful "on-site" protest by excluding a putative protester from a 70,000 m² area around the relevant premises, and potentially considerably more for protesters who travel without tape measures, in a built-up urban area.  Although there was found to be some, undoubtedly limited, scope for a protester to "target" off-site a woman seeking to access premises at which terminations are provided, the same scope existed under the Workplace Protesters Act for a protest to be conducted near forest operations at places that were away from business premises or business access areas[589].

     [588](2017) 261 CLR 328 at 373 [146].

     [589](2017) 261 CLR 328 at 356-357 [77], 367 [117].

488. One potential difference between the cases is the agreed fact in the special case in Brown v Tasmania that "[r]ecent protest activity in Tasmania … has made use of photographs and film to enable dissemination of the activity in the media and the internet, particularly on YouTube, Facebook and Twitter"[590].  However, it is hard to see how the absence of this evidence of recent media use in the Preston appeal could favour validity when that evidence could only have been obtained in the last five years by contravening a prohibition on recording in the access zone a person accessing or attempting to access the premises[591] and a prohibition on publishing or distributing recordings[592]. In any event, even if some weight were to be put on the absence of online media communication in the more distant period prior to the enactment of the Reproductive Health Act, the exclusion of on-site protest, coupled with the recording prohibition, has the effect of neutering a communicative tool that could have been foreseen in 2013 to become powerful.

     [590]See (2017) 261 CLR 328 at 387 [191], 400 [240].

     [591]Reproductive Health Act, s 9(1) (definition of "prohibited behaviour", para (d)).

     [592]Reproductive Health Act, s 9(4).

489. A reconciliation of the decision in Brown v Tasmania and the decision in the Preston appeal at this stage of proportionality testing lies in the conclusion reached in the joint judgment in Brown v Tasmania about the scope of application of the Workplace Protesters Act.  In contrast with my interpretation of the Workplace Protesters Act[593], the joint judgment did not interpret the restriction on protest to be confined to the areas of unchallenged operation of the Forest Management Act 2013 (Tas), which would have eliminated any burden upon the freedom of political communication. Instead, the joint judgment concluded that the restriction went "far beyond" that which was reasonably necessary for the purposes of application of the relevant provisions "to prevent damage and disruption to forest operations", unlike the "substantially less restrictive" measures of the Forest Management Act[594].  Indeed, if the terms of the Workplace Protesters Act were read literally then they would have restricted protests anywhere within 800,000 ha (8 billion m²) of permanent timber production zone land if any forest operations, such as the clipping of the branches of a tree, took place anywhere within that zone[595].

     [593](2017) 261 CLR 328 at 502-506 [556]-[563].

     [594](2017) 261 CLR 328 at 373 [146]; cf at 423 [291].

     [595](2017) 261 CLR 328 at 481 [489], 494 [533].

490. The area covered by the Reproductive Health Act is reasonably necessary to fulfil its purposes to the desired extent. By contrast, the interpretation adopted in the joint judgment in Brown v Tasmania of the Workplace Protesters Act, which treated it as applying well beyond those areas where the Forest Manager had denied access to the public in the exercise of powers under s 21, s 22, or s 23 of the Forest Management Act, was considered to impose a substantial burden upon the implied freedom of political communication without any substantial additional furtherance of the statutory purposes.

     (3) Adequacy in the balance

491. Professor King's monograph on social rights begins by asking:  "What is more important, having the ability to preach politics on Hyde Park Corner, or ensuring that we have a fighting chance to live past heart disease or breast cancer?"[596]  An assessment of whether a law is adequate in the balance involves the metaphor of balancing "the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom"[597].

     [596]King, Judging Social Rights (2012) at 1.

     [597]McCloy v New South Wales (2015) 257 CLR 178 at 195 [2].

492. As Professor King's rhetorical question indicates, a decision by a court that a law is inadequate in the balance, despite the legitimacy of its purpose, could have large consequences.  In instances where there are limited means to give effect to the statutory purpose, a conclusion of inadequacy in the balance could mean that Parliament could not legislate at all to achieve a legitimate purpose since even the means that are found, at the second stage, to be reasonably necessary to implement that policy will be invalid.  In other words, a decision by a court that a law is inadequate in the balance could, in some instances, mean that implementation of any measure to respond to that public policy concern is prohibited because of the burden it places upon the freedom of political communication.

493. Perhaps due to the significance of this possible consequence, it has been said that some other jurisdictions have effectively abandoned the stage of whether a law is adequate in the balance.  This third stage has been treated by some courts as superfluous to the stage of whether the means adopted by the law was reasonably necessary for its purposes.  Dr Yowell has observed that the European Court of Human Rights has treated the two as equivalent[598], and that over a ten-year period in Canada there was no case in which this limb made any difference to the conclusion reached on the application of the necessity limb[599].

     [598]Yowell, Constitutional Rights and Constitutional Design (2018) at 31, referring to Lithgow v United Kingdom (1986) 8 EHRR 329 at 372 [120].

     [599]Yowell, Constitutional Rights and Constitutional Design (2018) at 31, referring to Trakman, Cole-Hamilton and Gatien, "R v Oakes 1986-1997:  Back to the Drawing Board" (1998) 36 Osgoode Hall Law Journal 83 at 95, 105.  See also Hogg, Constitutional Law of Canada, 5th ed (2007), vol 2 at 152.

494. In Germany, by contrast, the third stage of proportionality testing has been said to have "high relevance"[600] because "balancing is constantly practised by the judiciary"[601].  Professor Grimm, a former Justice of the Federal Constitutional Court of Germany, has argued that a court "risks self-deception when all the value-oriented considerations have been made under the guise of a seemingly value-neutral category"[602].  However, these value judgments can be highly contested.  It is no coincidence that the widely accepted hypothetical example that Professor Grimm gives of balancing rights is extreme.  That example is a hypothetical law that permits a thief to be shot to death by police if that is the only way to protect property[603].  When balancing rights and freedoms, such a law is suitable in the sense that it has a rational connection with the purpose of protecting property rights.  The reasonable necessity stage is satisfied because shooting is allowed only if no other means are available to protect the property rights.  But the right to life would not be adequately protected in the balance struck by the law between a person's right to life and the liberty of the police to act so as to protect property[604].

     [600]Grimm, "Proportionality in Canadian and German Constitutional Jurisprudence" (2007) 57 University of Toronto Law Journal 383 at 393.

     [601]Grimm, "Proportionality in Canadian and German Constitutional Jurisprudence" (2007) 57 University of Toronto Law Journal 383 at 395.

     [602]Grimm, "Proportionality in Canadian and German Constitutional Jurisprudence" (2007) 57 University of Toronto Law Journal 383 at 395.

     [603]Grimm, "Proportionality in Canadian and German Constitutional Jurisprudence" (2007) 57 University of Toronto Law Journal 383 at 396.

     [604]Grimm, "Proportionality in Canadian and German Constitutional Jurisprudence" (2007) 57 University of Toronto Law Journal 383 at 396.

495. The Australian foundations of the implied freedom of political communication are inconsistent with an open-ended value assessment at the adequacy in the balance stage.  The approach to adequacy in the balance must be highly constrained.  This is, in part, because the freedom of political communication arises only as an implication to secure the effective operation of the constitutional system of representative and responsible government.  The very representative and responsible government that it secures involves legislative implementation of policy decisions.  Thus, it has been said that the stage of adequacy in the balance in Australia requires the judgment to be made "consistently with the limits of the judicial function"[605].  There are two significant constraints consistent with the permissible constitutional limits of the judicial function that exist to prevent an approach at this stage from operating as a judicial reassessment of the importance of the public policy priorities of the legislature.

     [605]McCloy v New South Wales (2015) 257 CLR 178 at 195 [2].

496. The first constraint is that the courts cannot "substitute their own assessment for that of the legislative decision-maker"[606].  This means that the value judgment must respect "the role of the legislature to determine which policies and social benefits ought to be pursued"[607].  The assessment of the importance of purpose is not the judge's idiosyncratic policy preference.  Instead, the first constraint directs attention to the importance that Parliament has given to the purpose.  The weight that Parliament has given to legislative purpose is ascertained in the same way that legislative purpose itself is discerned.  One factor will be the place of the particular law within the relevant statute and its importance to the furtherance of the statute's purposes.  Other factors will be the context in which the law was enacted; the legislative facts including the mischief to which Parliament was responding; and the importance expressly assigned to that response in the statute or in extrinsic materials.  And it may also be relevant to consider the systemic context in which the law was enacted, including, if Parliament has legislated to protect some right, the importance of the right within the legal system and the extent to which it is embedded in the fabric of the legal system within which Parliament legislates[608].

     [606]McCloy v New South Wales (2015) 257 CLR 178 at 219 [89].

     [607]McCloy v New South Wales (2015) 257 CLR 178 at 220 [90].

     [608]Federal Commissioner of Taxation v Tomaras (2018) 93 ALJR 118 at 137 [101]; 362 ALR 253 at 276-277.

497. The second constraint is that a law will only be inadequate in the balance if it involves gross or manifest lack of balance[609] between, on the one hand, the foreseeable magnitude and likelihood of the burden upon freedom of political communication and, on the other hand, the importance of the purpose.  That constraint recognises that, in a representative democracy, freedom of political communication is only one facet of formal representative and responsible government.  Another facet is the ability of Parliament to make laws for peace, order and good government, including those laws that provide substantive aspects of a free and democratic society and laws that guarantee social human rights[610], such as "respect for the inherent dignity of the human person"[611].

     [609]Brown v Tasmania (2017) 261 CLR 328 at 422-423 [290].

     [610]King, Judging Social Rights (2012) at 187.

     [611]R v Oakes [1986] 1 SCR 103 at 136.

498. The balancing exercise, constrained in the manner discussed, should not involve rigid categories of review based on either the nature or the extent of the burden upon freedom of political communication.  Rather, in each case, when considering the extent to which the freedom of political communication is burdened, the balancing exercise should be "properly attuned to" the nature of the freedom and should reflect "the gravity of the threat" in the particular case to the systemic integrity of the constitutional system of representative and responsible government[612].

     [612]Allan, The Sovereignty of Law (2013) at 247.

499. As I have explained in relation to the reasonable necessity stage, when the protest prohibition was enacted, the foreseeable burden on freedom of political communication was both deep and wide. However, the purpose of the protest prohibition was of great importance to Parliament. The protest prohibition served the Reproductive Health Act's integral purposes of, at a lower level of generality, ensuring that women have access to termination services in a confidential manner without the threat of harassment. At the higher level of generality, the Reproductive Health Act is concerned with basic issues of public health. These social human rights goals involving respect for the dignity of the human person involve deep-seated issues of public policy within the legal system generally.

500. The extreme importance of the protest prohibition is also apparent from the extrinsic materials preceding the Reproductive Health Act. In those materials it was observed that the previous law had been based on nineteenth century United Kingdom and Irish laws that did not recognise "safe medical practices; community standards; and women as competent and conscientious decision makers"[613].  The proposed changes were "part of a broader strategy to improve the sexual and reproductive health of all Tasmanians, especially vulnerable populations"[614]. In the Second Reading Speech for the Reproductive Health Act, the Minister concluded by saying that[615]:

     "Today members are, quite simply, being asked to vote for or against women's autonomy, to vote for or against a bill that respects all views on terminations, and to vote for or against a bill that acknowledges women as competent and conscientious decision-makers and recognises that a woman is in the best position to make decisions affecting her future and her health."

     [613]Tasmania, Department of Health and Human Services, Information Paper relating to the Draft Reproductive Health (Access to Terminations) Bill (2013) at 4.

     [614]Tasmania, Department of Health and Human Services, Information Paper relating to the Draft Reproductive Health (Access to Terminations) Bill (2013) at 17.

     [615]Tasmania, House of Assembly, Parliamentary Debates (Hansard), 16 April 2013 at 52.

501. The burden upon freedom of political communication cannot be said to be in gross and manifest disproportion to the importance of the purpose.

     Proportionality testing and different constitutional traditions

502. The parties to and interveners in this appeal helpfully referred to a number of cases from overseas jurisdictions.  The reasoning in other jurisdictions can sometimes be useful in application of the tests at each of the three stages of proportionality reasoning.  But it is necessary, at the very least, to treat those decisions "with some caution"[616].  Even in relation to very similar circumstances the result might appropriately be different in other countries because of their different legal contexts and traditions.  For instance, one contextual difference between Australia and countries such as the United States[617], Canada[618], and Germany[619] is that important law reform in respect of terminations in Australia has occurred by legislation without the driving force of constitutional decisions.  But perhaps the most significant difference between different jurisdictions is the different weight that is afforded to particular constitutionally protected values.  A good illustration of this is the way that the circumstances in this appeal would have been approached in the United States.

     [616]Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 125; [1994] HCA 46. See also Coleman v Power (2004) 220 CLR 1 at 48 [88], 75-76 [187]‑[188].

     [617]Roe v Wade (1973) 410 US 113; Planned Parenthood of Southeastern Pennsylvania v Casey (1992) 505 US 833.

     [618]R v Morgentaler [1988] 1 SCR 30.

     [619]Kommers and Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd ed (2012) at 373-394.

503. The Supreme Court of the United States does not explicitly adopt a proportionality analysis.  Instead, its First Amendment jurisprudence has been characterised by one writer, now Justice, as involving "increasingly technical, complex classificatory schemes"[620].  It has been argued that United States constitutional law developed its "complicated, variegated approach to rights, in part because of its deep ambivalence toward balancing"[621].  But balancing cannot be avoided, even if freedom of speech is thought generally to be a constitutional trump card over other, incommensurate values:  "[e]ven when we are most adamant in our principles, we find ourselves – as rational beings – doing the sort of reasoning and weighing of contrary considerations that a belief in incommensurability is commonly thought to preclude"[622].  Indeed, Breyer J has said that where "important interests lie on both sides of the constitutional equation" then "the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests"[623].  This approach, which Breyer J said had been applied in various constitutional contexts including freedom of speech cases, is functionally identical to proportionality although it conflates reasonable necessity and adequacy in the balance by taking into account, in one step, "both of the statute's effects upon the competing interests and the existence of any clearly superior less restrictive alternative"[624].

     [620]Kagan, "Private Speech, Public Purpose:  The Role of Governmental Motive in First Amendment Doctrine" (1996) 63 University of Chicago Law Review 413 at 515.

     [621]Stone Sweet and Mathews, "Proportionality Balancing and Global Constitutionalism" (2008) 47 Columbia Journal of Transnational Law 72 at 164.

     [622]Waldron, "Fake Incommensurability:  A Response to Professor Schauer" (1994) 45 Hastings Law Journal 813 at 824.

     [623]District of Columbia v Heller (2008) 554 US 570 at 689-690. See also United States v Alvarez (2012) 567 US 709 at 730.

     [624]District of Columbia v Heller (2008) 554 US 570 at 690.

504. Even if the approach taken by the Supreme Court of the United States were not able to be characterised as akin to structured proportionality, the balancing process that it undertakes involves affording far greater weight to the constitutional guarantee of freedom of speech in the First Amendment[625] than Australian law would afford to the implied freedom of political communication.  The circumstances of the Preston appeal are an excellent illustration of the different weighting that is afforded in Australia to the freedom of political communication, which is limited to what is necessary for the effective operation of the constitutional system of representative and responsible government[626]. In contrast with the result in this case, it is almost beyond argument that the relevant provisions of the Reproductive Health Act would be invalid on the present approach taken by the United States Supreme Court.

     [625]Which reads, relevantly:  "Congress shall make no law ... abridging the freedom of speech".

     [626]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 561.

505. Prior to 2014 in the United States, judicial injunctions that responded to particular physical circumstances and were capable of judicial expansion or contraction when those circumstances changed had been upheld by the Supreme Court of the United States[627].  None of those cases is comparable with the circumstances of a general legislative provision that extends to peaceful protests.  In one Supreme Court decision, a limited injunction had been amended after it did not adequately respond to specific instances at one clinic of blocking public access and physical abuse[628].  In another the injunction responded to particular large-scale blockades impairing access to four medical clinics.  The police were unable to prevent those blockades.  The conduct included grabbing, pushing, shoving, yelling, and spitting at women who tried to access the clinic's services[629].  In both cases, a majority of the Supreme Court upheld part of the injunctions but struck down certain aspects of them[630].

     [627]Madsen v Women's Health Center Inc (1994) 512 US 753; Schenck v Pro-Choice Network of Western New York (1997) 519 US 357.

     [628]Madsen v Women's Health Center Inc (1994) 512 US 753 at 758-759.

     [629]Schenck v Pro-Choice Network of Western New York (1997) 519 US 357 at 362‑364.

     [630]Madsen v Women's Health Center Inc (1994) 512 US 753 at 776; Schenck v Pro‑Choice Network of Western New York (1997) 519 US 357 at 377, 380.

506. Also prior to 2014, a law had been upheld by a slim majority of the United States Supreme Court[631], where the law had only imposed particular restrictions upon knowingly approaching within 8 ft (2.5 m) of people for the purpose of engaging in sidewalk counselling without their consent, inside an area of 100 ft (30 m) of the entrance to a health care facility[632].  Even that decision to uphold the very limited restriction on freedom of speech, which imposed no fixed no-access zone, was said by some commentators to be "inexplicable on standard free-speech grounds"[633] and a "candidate[] for most blatantly erroneous [decision] … slam-dunk wrong"[634].  It was also said that if the majority had treated the law as content-based and applied strict scrutiny to it, the law would have been invalid[635].

     [631]Hill v Colorado (2000) 530 US 703 at 725-726, 730.

     [632]Hill v Colorado (2000) 530 US 703 at 707-708.

     [633]McConnell, in Sullivan, "Sex, Money, and Groups:  Free Speech and Association Decisions in the October 1999 Term" (2001) 28 Pepperdine Law Review 723 at 747, quoted in McCullen v Coakley (2014) 134 S Ct 2518 at 2545 fn 4.

     [634]Tribe, in Sullivan, "Sex, Money, and Groups:  Free Speech and Association Decisions in the October 1999 Term" (2001) 28 Pepperdine Law Review 723 at 750, quoted in McCullen v Coakley (2014) 134 S Ct 2518 at 2545-2546 fn 4.

     [635]Sullivan, "Sex, Money, and Groups:  Free Speech and Association Decisions in the October 1999 Term" (2001) 28 Pepperdine Law Review 723 at 736.

507. The only truly comparable decision of the Supreme Court of the United States concerning access zones around premises at which terminations are provided involved a Massachusetts law that was held to be invalid.  In that case, McCullen v Coakley[636], the law imposed an access zone with a 35 ft (11 m) radius covering public ways or sidewalks around the entrances and driveways of the clinics.  The area was required to be clearly marked[637].  The restriction applied only during business hours of the clinic.  The restriction was, according to a majority of the Court, content neutral[638].  Nevertheless, the legislation was unanimously held to be contrary to the First Amendment.  Although the access zone involved only an 11 m radius, there was evidence that the petitioner was able to speak to "far fewer people" because she was unable to "distinguish patients from passersby outside the Boston clinic in time to initiate a conversation before they enter the buffer zone"[639].

     [636](2014) 134 S Ct 2518.

     [637](2014) 134 S Ct 2518 at 2526.

     [638](2014) 134 S Ct 2518 at 2534.

     [639](2014) 134 S Ct 2518 at 2535.

508. The contrast between the invalid Massachusetts law and the vastly broader, but valid, Reproductive Health Act in Tasmania demonstrates the stark difference between the manner in which freedom of speech is approached in the United States and the approach to the implied freedom of political communication in Australia. The access zone under the Reproductive Health Act covers 70,000 m² of area.  By contrast, the Massachusetts law covered 380 m².  The 70,000 m² access zone created by the Reproductive Health Act is not required to be marked, with the effect that its boundaries would not be clearly known to a protester. By contrast, the Massachusetts law required marking. The content of the prohibited communication in the protest prohibition is specifically targeted towards protests in relation to termination. It is not content neutral in the sense in which that concept was applied by the majority of the Supreme Court in McCullen v Coakley; it is concerned with "listeners' reactions to speech" so it would be subject to strict scrutiny in the United States[640]. By contrast, a majority of the Supreme Court held that the Massachusetts law was content neutral. And yet, whilst the Massachusetts law was unanimously held by the Supreme Court of the United States to be inconsistent with the First Amendment and invalid, the Reproductive Health Act is unanimously held by this Court to be consistent with our constitutional tradition and valid.

     [640](2014) 134 S Ct 2518 at 2531-2532.

     Conclusion:  the orders on each appeal

509. Each of the appeals, so far as they have been removed into this Court, must be dismissed.