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Back to "Community & Associations Newsletter - May 2019"


High Court Decision Regarding ‘Safe Zones’ Clubb v Edwards [2019] HCA 11

In Clubb v Edwards [2019] HCA 11 the High Court of Australia dismissed the Supreme Court appeals of Ms Kathleen Clubb and Mr John Graham Preston, who were challenging laws regarding “safe zones” in Victoria and Tasmania.

Ms Clubb challenged s 185D of the Public Health and Wellbeing Act 2008 (Vic):

Prohibited behaviour

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

Mr Preston challenged s 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas):

Access zones

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

A “safe access zone” is a 150 metre radius around an abortion clinic, limiting the public’s ability to protest or communicate beliefs regardless of a pro-choice or pro-life stance. It allows for those who are employed at, or those who are accessing services at, abortion clinics to enter and leave safely.

The majority judgment in Ms Clubb’s case (the Victorian case which was heard on appeal from the Supreme Court) noted that it was not their position to consider whether the law was constitutionally valid.

Nevertheless, the joint judgment of Kiefel CJ, Bell and Keane JJ held that even though Ms Clubb’s expression was not ‘political’, the law protects “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 is therefore reasonable legislation.

The language in Mr John Graham Preston’s case, (the appeal from the Supreme Court of Tasmania), was held to be political in nature. Gordon J stated that although the implied freedom of political communication of the public would be impacted by the laws, the nature of the legislation is such that it is restrictive. The judgment in Mr Preston’s case reflects the fact that the implied freedom of political communication merely functions as a restraint on legislative power and does not afford personal rights of freedom of speech. Laws that purport to restrain political speech are unlikely to be held invalid where the law reasonably advances a legitimate purpose, and is reasonably appropriate and adapted to achieving that purpose (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520).

The court held at [120] that “protecting the safety, wellbeing, privacy and dignity” of persons accessing abortion clinics is paramount and accordingly, the laws enforcing safe access zones are constitutionally valid as they uphold the law’s legitimate purpose.

Lillian Kidman, Lawyer
Josephine Heesh, Partner

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