Unlike the United States, Australia has no equivalent to the First Amendment right of free speech. Instead, Australians have an implied right of freedom of political communication arising from the phrase “chosen by the people” in the Constitution.
This distinction between the United States and Australian rights can become unclear and distorted, especially with constant exposure to American legal dramas such as Suits and Law & Order. However, the key distinction between the two jurisdictions is that our implied right is not a personal right of free speech but a constraint on legislative power.
But how did our right to political communication get mixed up in the national debate about safe access zones? Clubb v Edwards  HCA 11, a monumental 180-page, 509-paragraph judgment handed down by the High Court on 10 April 2019, has some of the answers.
Case note: Clubb v Edwards  HCA 11
In Clubb v Edwards, the High Court unanimously dismissed two appeals from the Supreme Court of Victoria (the Appeal of Mrs Kathleen Clubb) and the Supreme Court of Tasmania (the Appeal of Mr John Graham Preston) in relation to the constitutional validity of safe access zones around premises at which abortions are provided. Mrs Clubb and Mr Preston (the Appellants) argued that the zones limited their implied freedom of political communication.
With only one joint judgment (Kiefel CJ, Bell and Keane JJ) and four separate judgments (Gageler, Nettle, Gordon and Edelman JJ) the Court unanimously found safe access zones to be valid in respect of both appeals. However, whether the court could assess the validity of these laws with respect to Mrs Clubb’s appeal, split the court 4 (Kiefel CJ, Bell, Keane and Nettle JJ) to 3 (Gageler, Gordon and Edelman JJ).
What is a safe access zone?
A safe access zone is designed to protect the safety and well-being of women accessing services provided by abortion clinics. It is a creature of legislation that intends to create a zone that limits potentially offensive and degrading communication.
Any person who communicates in relation to abortion that can be seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided are liable to imprisonment. At present, only South Australia and Western Australia have failed to implement such vital protective measures for women.
The two appeals arose after the Appellants were charged and later convicted of the respective safe access zone offences in Victoria and Tasmania.
The Joint Judgment: Kiefel CJ, Bell and Keane JJ
Kiefel CJ, Bell and Keane JJ found strength in the argument advanced on behalf of the Attorney General of the Commonwealth that the pamphlet distributed by Mrs Clubb lacked connection with political choices and was not political in nature.
Despite this, an unusual confluence of factors meant the Court should dispense with the usual practice of refusing to determine the validity of legislative provisions which are academic or hypothetical in nature.
After determining that they could in fact assess the validity of the Victorian safe access zone laws, Kiefel CJ, Bell and Keane JJ applied McCloy v New South Wales (2015) 257 CLR 178;  HCA 34.
The joint bench determined that, in respect of both appeals, while the safe access zones may burden the implied freedom to political communication by inadvertently capturing political communications about abortion within the zone, the laws protected “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” and therefore was legitimate. Further, they held there was no manifest disproportion between the burden on political communication effected by the safe access zones and the law’s legitimate purpose.
In respect of Mr Preston’s appeal, Kiefel CJ, Bell and Keane JJ noted that the Tasmanian provision was more likely to be intrusive on the implied freedom as the Act did not provide an object, the provision was directed at “a protest” and the provision was not limited by a requirement that the protest be reasonably likely to cause distress or anxiety.
Gageler, Gordon, Nettle, Edelman JJ
In the separate judgments of Gageler, Gordon and Edelman JJ, their Honours held that there was no reason to consider the constitutional validity of the legislation in respect of Mrs Clubb’s appeal. However, they could consider the constitutional validity in respect of Mr Preston’s appeal as his communication, unlike that of Mrs Clubb’s, was political in nature.
In respect of Mrs Clubb’s appeal Gageler J agreed wholly with Gordon J. He added that there was no reason to embark on determining a constitutional question unless “ there has been shown to exist a state of facts which has made answering the question necessary in order to determine a right or liability in issue in the matter”. Gordon and Edelman JJ considered that it was not appropriate to consider whether, in circumstances where it would not have arisen and which may never arise, a legislative provision was invalid where it could be read down, severed, or disapplied in part.
In respect of Mr Preston’s appeal, which related to a political communication (as distinct from Mrs Clubb’s appeal) Gordon J held that the Tasmanian provision did burden the implied freedom of political communication. However, this burden was not substantial as it related to a restriction of political communication in respect of time, place and manner. Further, Gordon J held that the purpose of the prohibition was legitimate. The reasoning of Gageler J was largely in line with that Gordon J. Edelman J came to the same conclusion.
Nettle J agreed with the joint majority in that the validity of the provisions in respect of Mrs Clubb’s appeal should be reviewed for a number of reasons. In respect of both appeals, he agreed that there was a “relatively limited” burden on the implied freedom of political communication, however it was done so for a legitimate purpose and consistent with the system of representative and responsible government.
A number of other interesting points were also raised in this decision, including…
The stark difference between the United States and Australia
Throughout the course of the judgment some of their Honours discussed the distinction between the Australian implied freedom to political communication and the United States First Amendment right to free speech.
Nettle J repeated the distinction that the implied freedom in Australia is not a personal right of free speech like the United States, but rather a constraint on legislative power.
Edelman J noted the “stark difference” between Australia and the United States as the latter placed a “far greater weight to the constitutional guarantee of freedom of speech in the First Amendment” than the former did to the implied freedom of political communication. Providing an example, Edelman J stated if Mr Preston’s appeal had been heard in the United States Supreme Court it would have likely been successful and the Tasmanian legislation prohibiting such conduct would be held invalid.
Did the safe access zones discriminate against anti-abortionists?
Both Mrs Clubb and Mr Preston raised the argument that the law was unnecessarily burdensome in respect of people who were against abortion. In other words, they argued the safe access zones discriminated against those on the anti-abortion side of the debate.
Kiefel CJ, Bell and Keane JJ held that there was no discrimination between pro-abortion and anti-abortion communication within safe access zones. The law was neutral as it was “concerned with communicating “in relation to abortions” rather than “against abortions””. However, Kiefel CJ, Bell and Keane JJ noted that the safe access zone laws were more likely to be breached in practice by those on the anti-abortion side of the debate.
Gageler J disagreed with the joint majority on this point and found that the prohibition on such conduct within the safe access zones, in its practical operation, was discriminatory even though it is “viewpoint-neutral in its legal operation”.
Both Gordon and Edelman JJ found that it was not discriminatory and Nettle J did not go into detail on this point.
What does this mean?
This High Court decision is important for a number of reasons:
- The decision is a friendly reminder that the Australian implied freedom of political communication and the United States First Amendment right to free speech are very different. The two rights should not be confused and submissions in relation to the implied freedom to political communication should not proceed on the unstated premise that the two rights operate in a similar fashion (as Nettle J found that Mrs Clubb’s submissions were).
- The laws were found not to be discriminatory against anti-abortionists. However, the laws would be more likely to affect the pro-life side of the debate.
- The court’s decision validates the recent safe access zones implemented in NSW as well as those in other states and territories.
- Given the High Court has found safe access zone laws to be constitutionally valid, it is hoped that this may push the remaining two states (South Australia and Western Australia) which have not implemented safe access zones to do so.
In summary, the High Court this week unanimously found safe access zones around reproductive health clinics to be constitutionally valid and dismissed both appeals in so much as they had been removed to the court. Their Honours were split 4:3 on whether they could assess the constitutional validity of the Victorian laws, however the Majority (Kiefel CJ, Bell and Keane JJ and Nettle J writing separately) found that they could determine the validity of the Victorian laws for a number of reasons.
Amy is part of the Practical Law Team in Australia. Find out more about Practical Law solutions or request a trial today.