NETTLE J. I agree with Kiefel CJ, Bell and Keane JJ that so much of each appeal as has been removed into this Court should be dismissed with costs. My reasons, however, are in some respects different from theirs.
The Clubb appeal
The threshold question
The principal question for decision in the Clubb appeal is whether, by proscribing the kind of conduct identified in para (b) of the definition of "prohibited behaviour" in s 185B(1) of the Public Health and Wellbeing Act 2008 (Vic) ("the PHW Act"), s 185D of the PHW Act imposes an unjustified burden on the implied freedom of political communication. First, however, it is necessary to dispose of what the Attorney-General of the Commonwealth, intervening, referred to as a threshold question of whether the Court should determine that issue.
The Attorney-General of the Commonwealth contended that the conduct of the appellant, Mrs Clubb, did not amount to political communication and, therefore, that her argument that s 185D imposes an unjustified burden on the implied freedom of political communication is an academic or hypothetical question which should not be decided. It was submitted that the Court should thus dispose of the matter on the basis that, assuming without deciding that s 185D would so burden the implied freedom of political communication, para (b) of the definition of prohibited behaviour could be read down pursuant to s 6(1) of the Interpretation of Legislation Act 1984 (Vic) as excluding governmental or political communications. That approach was supported by the Attorney-General of Queensland, but opposed by the Attorney-General for Victoria and the Attorney-General for New South Wales.
In response, Mrs Clubb submitted that there was insufficient evidence before this Court to determine whether or not her conduct amounted to political communication. Counsel for Mrs Clubb assented to the proposition that he was not in a position to mount a positive case that Mrs Clubb's conduct was a political communication. His position was, however, that, if upon its proper construction para (b) of the definition of prohibited behaviour excludes political communications, the Crown would be required to prove that Mrs Clubb's conduct was not a political communication.
The approach of the Attorney-General of the Commonwealth is based on obiter dicta observations of Gageler J in Tajjour v New South Wales to the effect that, where an impugned law is attacked as an infringement of the implied freedom of political communication but it appears that potentially offending provisions of the law are severable, it may be sufficient to resolve the attack to hold that, assuming without deciding that the impugned law infringes the implied freedom, the potentially offending provisions can be severed. The idea traces back to some earlier decisions of the Court in which it was held or implied that, assuming without deciding that an impugned law were a restriction on the freedom of interstate trade and commerce guaranteed by s 92 of the Constitution, the potentially offending provisions of the law could be read down pursuant to s 15A of the Acts Interpretation Act 1901 (Cth) or cognate Commonwealth or State provisions to the extent necessary to avoid that conclusion. The Commonwealth also referred to the approach which the Court took to an hypothetical issue in Knight v Victoria of what the position would have been in that case if a judicial officer had been appointed to the parole board and was required to decide whether Knight's application for parole should be granted.
Ordinarily, the Court would not have regard to the application of a reading down or severance provision to an impugned law unless and until the Court has first come to the view that, according to the natural and ordinary meaning of the impugned law construed in context and having regard to its purpose, the impugned law would be invalid unless read down or unless one or more of its provisions were severed. As Dixon J observed in Bank of New South Wales v The Commonwealth on the severance provision in s 6 of the Banking Act 1947 (Cth):
"For this reason, no doubt, s 6 is framed as a statement of intention and not as a command addressed to the Court. The question of interpretation is whether, after the extent to which the intended operation of the enactment is invalid has been ascertained, it is nevertheless the expressed will of the legislature that the whole or any part of the rest of the intended operation of the enactment should take effect by itself as a law of the Commonwealth. In so stating the question I have preferred to speak of the two parts of the intended operation of the statute rather than of portions of its provisions capable and incapable of valid enactment. The latter way of stating the matter suggests that the problem is one of separating clauses or expressions. But more often than not, when a statute or statutory instrument goes beyond the Constitution the question for the Court is whether a provision too widely or generally expressed should be confined in its operation to so much of the subject it is capable of covering as is constitutionally competent to the legislature, or, as it is sometimes said, whether the general words are to be read and applied distributively". (emphasis added)
That said, however, there have been occasions on which severability has been considered before validity. In Cam & Sons Pty Ltd v The Chief Secretary of New South Wales, s 40B(1) of the Fisheries and Oyster Farms Act 1935 (NSW) required persons selling fish for human consumption to bring such fish for sale in the market in the district or in a market established by a trading society under the Co-operation Act 1923 (NSW). Section 1(3) of the Fisheries and Oyster Farms Act contained the following severability clause:
"This Act shall be read and construed subject to the Commonwealth of Australia Constitution Act, and so as not to exceed the legislative power of the State, to the intent that where any provision of this Act, or the application thereof to any person or circumstance is held invalid, the remainder of this Act, and the application of such provision to other persons or circumstances shall not be affected."
Dixon, Williams, Webb, Fullagar and Kitto JJ held:
"Plainly s 40B(1) cannot validly operate, consistently with s 92 of the Constitution, to prevent the plaintiff from disposing of its fish in the course of inter-State trade; but s 1(3) makes it impossible to hold that s 40B(1) is intended to have such an operation. … The section must therefore be construed … so as to leave untrammelled the freedom of trade and commerce among the States for which s 92 provides. So construed, it is plainly valid."
Notably, their Honours expressed that conclusion before rejecting the respondents' argument that s 40B(1) was valid in its full operation because it was merely regulatory.
In Carter v The Potato Marketing Board, the Court was called upon to decide whether s 15(3) of the Primary Producers' Organisation and Marketing Act 1926 (Qld) - which imposed a penalty on any person who sold or delivered potatoes to, or bought or received any potatoes from, a person other than the Potato Marketing Board - had valid application to a transaction involving the appellants. This Court (Dixon, McTiernan, Williams, Webb, Fullagar and Kitto JJ) unanimously stated:
"The legislation contains a severability clause, and, unless the transaction to which the charge relates is itself one of inter-State commerce falling within the protection of s 92, the questions raised by the contentions for the appellants will depend upon the application of that clause with respect to sub-s (3). That is to say, it will depend upon the extent to which, having regard to the scope of the protection afforded by s 92, the severability clause validly may give an operation to the material part of sub‑s (3) and upon the extent to which, as a matter of interpretation, it does so. …
That the appeal must depend upon the possibility of giving the provisions a severable or distributive application is apparent almost from a bare perusal of the provisions in question. For, consistently with the decided cases, it would not be easy to deny that if the general language of sub-s (3) were given a literal application it would include transactions of inter-State commerce and interfere with the freedom of trade commerce and intercourse among the States. On the other hand it is just as difficult to deny that if by appropriate words of restriction or exception or by a corresponding implication, the operation of sub-s (3) was confined to the domestic trade of the State and the possibility of interference with the freedom of inter-State commerce was excluded, it would be competent to the State to enact such a law." (emphasis added)
It may be, however, that the emphasised sentence of their Honours' judgment meant no more than that it was plain on the decided cases that, if s 15(3) were given its full literal scope, it would offend s 92. That is supported by their Honours' later statement:
"Certainly the language in which sub-s (3) is expressed, interpreted naturally, and without the imposition of any artificial restriction by reference to constitutional limitations, extends to inter-State transactions upon which it cannot validly operate. To that extent it would be invalid."
Their Honours had earlier observed that "[i]t is seldom, if ever, desirable to decide any question of constitutional validity in abstracto and independently of the facts" and concluded that the transaction in respect of which the appellants had been charged did not fall within the protection of s 92. They thus disposed of the appeal on the basis that s 15(3) could be given a severable and distributive application.
Grannall v Marrickville Margarine Pty Ltd provides greater support for the idea of dealing with severability before validity. At issue in that case was whether s 22A(1)(b) of the Dairy Industry Act 1915 (NSW) (which prohibited a person from manufacturing table margarine without a table margarine licence) was a statutory attempt to restrict the freedom of interstate commerce in margarine guaranteed by s 92 of the Constitution. Section 2(2) of the Dairy Industry Act was a standard form severability clause. Section 22C was an overriding provision enabling the Minister to grant a special permit for the manufacture or preparation of table margarine for export from Australia, and sub‑s (2)(a) required the special permit to contain such conditions as the Minister thought necessary to ensure that none of the margarine manufactured thereunder was to be sold or distributed within the Commonwealth. Section 22C(3) made it an offence to breach any condition imposed by the special permit. Dixon CJ, McTiernan, Webb and Kitto JJ held that s 22A did not infringe s 92 of the Constitution. But in the course of reasoning to that conclusion, their Honours made the following passing observations regarding severability:
"One provision of the original Act forbids the exportation of margarine from New South Wales unless it is submitted first for examination, a certificate is obtained that the margarine has been prepared in accordance with the Act, and the package is branded as prescribed: s 21. Export from New South Wales necessarily includes delivery into another State and accordingly there may be some doubt as to the validity to that extent of this section. But it is clearly severable; indeed probably it would be read distributively as a result of the severability clause, if it were considered constitutionally incapable of applying to inter-State trade. The section can have no bearing upon the validity of s 22A(1)(b)." (emphasis added)
The statement that s 21 was "clearly severable" conveys that it was considered not to be inappropriate to assess severability before, and independently of, the determination of validity. It may appear equivocal, inasmuch as their Honours then went on to observe that "probably it would be read distributively … if it were considered constitutionally incapable of applying to inter-State trade" (emphasis added). But their Honours then dealt specifically with s 22C on the basis of severability before reaching a concluded view about its validity:
"When, therefore, sub-s (3) of s 22C makes contravention of a condition an offence it purports to penalize, among other things, the sale from New South Wales into another State of a commodity which it assumes has been brought into existence. To this extent at all events s 22C may well be considered to infringe upon the freedom of inter-State trade established by s 92. … It is not difficult to suppose that under the doctrines affecting the severance of invalid from valid statutory provisions which it has been the object of 'severability clauses' to exclude and to reverse, the invalidity of part of the operation of the provisions in question … might have been regarded as infecting the whole of s 22C and a question might have existed as to the presumed dependence thereon of s 22A itself. But clauses of the description of s 2(2) were designed to prevent such a result … Even if it were considered that the whole of sub‑s (2)(a) of s 22C fell because it could not extend to inter-State transactions and it were further considered that sub-s (1) could not survive the separation of sub-s (2)(a), no ground exists for discovering in the statute an affirmative intention that s 22A should have no operation unless s 22C proved valid and operative."
Fullagar J, writing separately, reasoned to similar effect. His Honour held that it was not necessary to form any opinion as to the validity of s 22C as s 2(2) made it plain that the validity and operation of s 22A could not be affected by any vice which could be discovered in s 22C.
Nominal Defendant v Dunstan is also pertinent although less compelling. It turned on the operation of certain provisions of the Motor Vehicles (Third Party Insurance) Act 1942 (NSW). Section 92 was not a central issue. The Court (Dixon CJ, Taylor and Owen JJ) observed in passing that, to the extent that s 7(1) of the Act might be considered to offend s 92 in its application to motor vehicles exclusively engaged in interstate trade, it could be read by virtue of s 3 of the Act to apply to all motor vehicles other than those exclusively engaged in interstate trade, commerce or intercourse.
By comparison, some of the clearest support in the s 92 cases for deciding this matter on the basis of the threshold question is in the observations of Barwick CJ, in dissent, in Harper v Victoria. In that case, the plaintiff challenged provisions of the Marketing of Primary Products Act 1958 (Vic) as a substantial impediment to his interstate trade in the importation and retail sale of eggs from outside of Victoria. The majority (McTiernan, Taylor, Menzies and Owen JJ) held that the impugned provisions did not infringe the freedom of interstate trade and commerce, and thus in effect that there was no need to consider any question of severability. Barwick CJ held that it was appropriate to decide the matter on the basis of severability without the determination of validity. His Honour reasoned thus:
"Where such a provision as s 3 of the Acts Interpretation Act [1958 (Vic)] is available [now s 6 of the Interpretation of Legislation Act], and the statute can be given a distributive operation, its commands or prohibitions will then be held inapplicable to the person whose inter-State trade would thus be impeded or burdened. Of course, the question of validity or applicability will only be dealt with at the instance of a person with a sufficient interest in the matter; and, in my opinion, in general, need only be dealt with to the extent necessary to dispose of the matter as far as the law affects that person.
...
I have confined my attention to the situation of the plaintiff and the particular interest which he has in the question of the invalidity or in that of the applicability of the Act. In consequence, I have no need in this case to consider the question whether the prohibition on sale by retail in s 41D has a direct as distinct from a consequential or remote operation upon the inter-State trade of an importer of eggs into Victoria who sells his eggs by wholesale. That question, which I do not regard as directly arising in this case, remains unresolved as far as I am concerned."
Similarly, in Buck v Bavone Stephen J (with whom Mason J and Jacobs J agreed) disposed of a s 92 attack on s 12 of the Potato Marketing Act 1948 (SA) by holding that, assuming without deciding that s 12 were a restriction on the freedom of interstate trade and commerce, it could be read down or severed. Stephen J considered that there was much to be said for the view that "s 92 should be applied only for the protection of transactions actually existing which come within it and not to imaginary cases", and stated:
"A law should not, in my view, be declared invalid when no interested party's interstate trade is shown to have been burdened by it and when there may never exist any trade so circumstanced as to be liable to be so burdened."
Taken as a whole, these cases support the idea that there are matters in which it is sufficient to dispose of an attack on the constitutional validity of a provision to conclude that, assuming without deciding that the impugned law would otherwise be invalid, it could be read down or severed in its operation in relation to the plaintiff and so be considered as valid to that extent. There is also this Court's statement in Lambert v Weichelt that "[i]t is not the practice of the Court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties". As the Attorney‑General of the Commonwealth submitted, these considerations led this Court to adopt the approach in Knight that, assuming without deciding that the provision there in suit would have otherwise offended the Kable doctrine - because it provided for the possibility of a judicial officer being appointed to a parole board that was statutorily bound to make a parole decision in a designated fashion - the provision could be read down to exclude judges from the board.
Despite the occasional utility of that sort of approach, however, the suggestion that the Clubb appeal should be resolved on that basis has little to commend it. As the matter stands, Mrs Clubb has been convicted of a criminal offence of contravening s 185D of the PHW Act by engaging in conduct of the kind described in para (b) of the definition of prohibited behaviour in s 185B(1). She was so convicted consequent upon the Magistrate's rejection of Mrs Clubb's contention that, insofar as s 185D proscribes conduct of the kind referred to in para (b) of the definition of prohibited behaviour, s 185D is invalid as an unjustified burden on the implied freedom of political communication. Following conviction, Mrs Clubb appealed against conviction to the Supreme Court of Victoria on grounds including that the Magistrate had erred in holding that, insofar as s 185D proscribes conduct of the kind referred to in para (b) of the definition of prohibited behaviour, it is not an unjustified burden on the implied freedom of political communication. The determination of that ground of appeal was thereafter removed into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth) as a cause or part of a cause involving the interpretation of the Constitution.
Contrary, therefore, to the submissions of the Attorney‑General of the Commonwealth, the constitutional validity of s 185D insofar as it proscribes conduct of the kind referred to in para (b) of the definition of prohibited behaviour is not an academic or hypothetical question. If it were held that the proscription of that kind of conduct is an unjustified burden on political communication, and so an infringement of the implied freedom of political communication, it would follow that Mrs Clubb was wrongly convicted and that her conviction should be quashed. Alternatively, if it were held that the proscription in s 185D of that kind of conduct is not an unjustified burden on political communication, and so not an infringement of the implied freedom, then, subject to any other grounds of appeal yet to be considered by the Supreme Court of Victoria, the conviction would be affirmed. Either way, Mrs Clubb has a direct and immediate interest in the question of whether, insofar as s 185D proscribes conduct of the kind referred to in para (b) of the definition of prohibited behaviour, it is an unjustified burden on the freedom of political communication and thus an infringement of the implied freedom.
There are also a number of constructional problems in resolving the appeal on the basis that, assuming without deciding that the proscription in s 185D of the para (b) conduct were otherwise an infringement of the implied freedom of political communication, s 185D could be read down under s 6(1) of the Interpretation of Legislation Act to the extent necessary to avoid that result.
First, in the ordinary course of events it would not be appropriate to apply s 6(1) unless the Court has reached the view that, upon its natural and ordinary construction having regard to its context and purpose, the provision would amount to an unjustified restraint on the implied freedom of political communication. Otherwise, the exercise could result in the Court giving the provision a more limited reach than Parliament intended without there being any constitutional need to do so.
Secondly, it is doubtful that s 6(1) would apply to s 185D in its proscription of the para (b) conduct. Granted, as the Attorney‑General of the Commonwealth submitted, provisions such as s 6(1) may permit a distributive construction of provisions that would not be possible under the ordinary rules of statutory construction. But s 6(1) cannot apply in the face of a "contrary intention"; and a "contrary intention" for the purposes of severance provisions such as s 6(1) is an intention that the legislative enactment "have either a full and complete operation or none at all". Here, such an intention can be discerned. Although the concept of governmental or political communication has been stated in simple terms - a communication which could facilitate the making of a free and informed choice as an elector - previous decisions of this Court show that determinations of whether a communication satisfies that description are fraught with difficulty and disagreement. Against that background, it can hardly be supposed that Parliament envisaged a police officer dealing with the immediacy of an abortion protest within 150 m of premises where abortions are provided making an informed decision as to whether the protest is or is not a governmental or political communication. Yet, in effect, that is what would be required if para (b) of the definition of prohibited behaviour were read down as excluding governmental or political communications. The police officer could not or at least should not arrest or charge a culprit without having reasonable grounds to do so and that would require the police officer forming a view as to whether there were reasonable grounds to conclude that the communication was not a governmental or political communication.
Those concerns are reflected in the statement of French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission:
"The court should not strain to give a meaning to statutes which is artificial or departs markedly from their ordinary meaning simply in order to preserve their constitutional validity. There are two reasons for this. The first is that if Parliament has used clear words to encroach upon the liberty or rights of the subject or to impose procedural or other constraints upon the courts its choice should be respected even if the consequence is constitutional invalidity. The second reason is that those who are required to apply or administer the law, those who are to be bound by it and those who advise upon it are generally entitled to rely upon the ordinary sense of the words that Parliament has chosen. To the extent that a statutory provision has to be read subject to a counterintuitive judicial gloss, the accessibility of the law to the public and the accountability of Parliament to the electorate are diminished. Moreover, there is a real risk that, notwithstanding a judicial gloss which renders less draconian or saves from invalidity a provision of a statute, the provision will be administered according to its ordinary, apparent and draconian meaning." (footnote omitted)
There being doubt as to whether s 185D in its proscription of the para (b) conduct is severable, it would not be appropriate for this Court to proceed on the basis that, because Mrs Clubb has not demonstrated that her conduct was a political communication, it is unnecessary to decide on the constitutional validity of s 185D.
There are also pragmatic reasons why this Court should determine whether the proscription in s 185D of para (b) conduct is an unjustified burden on the freedom of political communication. As will be recalled, that issue of law was raised before the Magistrate for determination as a preliminary question. The Crown did not then contend that s 185D could or should be read down as excluding communications on government or political matters; it was content for the matter to be litigated on an all-or-nothing basis. In deciding the issue of law on that basis against Mrs Clubb, the Magistrate held that abortion protests as described in the affidavit evidence (for the purpose of "constitutional fact finding") "could never be described" as political because abortion is "a medical procedure legally accessible by women" (emphasis added). Hence, on the law as determined by the Magistrate, whether Mrs Clubb's conduct amounted to a communication on a government or political matter could not thereafter be treated at the hearing as an issue of (adjudicative) fact, and evidence adduced by Mrs Clubb directed only to that issue would have been inadmissible as irrelevant.
Had the Magistrate determined that s 185D on its face impermissibly burdened the implied freedom and so read the provision as limited to communications other than on government or political matters, her Honour would have had occasion then to decide the non-trivial question of whether the effect of that limitation was to introduce an element of the offence, which the Crown would be bound to prove in all cases, or merely an exception within s 72 of the Criminal Procedure Act 2009 (Vic), as to which no proof would be necessary unless raised by the evidence. As the matter proceeded, however, no question as to onus of proof arose, because the preliminary determination shut out proof on that issue.
As a result of this procedural history, no finding has yet been made as to whether Mrs Clubb's communication is on a government or political matter. Thus, if this Court were now to decide the preliminary question by assuming without deciding that the prohibition is limited to communications other than on government or political matters, the matter would need to be remitted to the Magistrate for rehearing. At that point, it would be open for the first time to Mrs Clubb, and indeed the Crown, to lead evidence bearing upon, and to address submissions to, whether the charged conduct amounted to a governmental or political communication. And at that point it would be necessary for the Magistrate to decide the very point proposed to be assumed (viz, whether the law would offend the Constitution and so requires reading down).
Moreover, if the Magistrate persisted in the view that the prohibition is ex facie constitutional, or alternatively accepted that it should be read down but held that the charged conduct was not a governmental or political communication, Mrs Clubb would then be entitled to appeal to the Supreme Court of Victoria on the questions of law so determined; and, if unsuccessful, to apply for leave to appeal to the Court of Appeal; and, if such leave were granted but the appeal dismissed, to apply for special leave to appeal to this Court.
In those circumstances, there would be a practical injustice and little practical advantage in this Court disposing of the matter on the basis of the threshold question. It is preferable that this Court decide now whether, upon its proper construction, the proscription in s 185D of conduct of the kind described in para (b) of the definition of prohibited behaviour infringes the implied freedom of political communication.
Facts and legislative provisions
The facts of the Clubb appeal and the relevant legislative provisions are set out in the judgment of Kiefel CJ, Bell and Keane JJ and need not be rehearsed. But it is necessary to say something more at this stage of the elements of the offence created by s 185D of the PHW Act comprised of engaging in conduct of the kind specified in para (b) of the definition of prohibited behaviour.
The offence is a regulatory statutory offence and, consequently, although s 185D does not specify a mental element, it may be taken that it requires a general intent to do the act charged. Accordingly, in any prosecution for contravention of s 185D comprised of conduct of the kind specified in para (b) of the definition of prohibited behaviour, it would be incumbent upon the Crown to prove both that the accused did, and that the accused intended to, communicate at a point within a 150 m radius of premises where abortions are provided in relation to abortions in a manner which would be able to be seen or heard by a person accessing, attempting to access or leaving the premises.
It would be open to the Crown to establish that general intent by proving that the accused believed that he or she was within a radius of 150 m of premises at which abortions are provided, and that the accused there communicated regarding abortions by means which would be capable of being seen or heard by a person accessing, attempting to access or leaving the premises. It would not be necessary for the Crown to prove that a person accessing, attempting to access or leaving the premises in fact saw or heard the communication. Parliament's use of the words "able to be seen or heard", as opposed to words such as "is seen or heard", and the problems of proof which, as will be seen, Parliament noticed the Crown would face if proof of the offence required calling a person who had heard or seen the communication, imply a statutory intention that "able to be seen or heard" is an objective conception tantamount to "would be capable of being seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided". Nor would it be necessary for the Crown to prove that the accused believed that the communication would be capable of being seen or heard by a person accessing, attempting to access or leaving the premises. But the accused would be entitled to raise the possibility that he or she had an honest and reasonable belief that the communication was incapable of being seen or heard by a person accessing, attempting to access or leaving the premises; in which event the Crown would be left with the persuasive if not evidential burden of excluding that possibility beyond reasonable doubt.
By contrast to the requirement for proof of a general intent to commit the act charged, there is no presumption in relation to regulatory statutory offences that intent to cause specified consequences is an element of the offence charged; and, in the case of a contravention of s 185D comprised of prohibited behaviour of the kind described in para (b) of the definition, there is no reason to discern a statutory intention that an accused must intend that a charged communication be reasonably likely to cause distress or anxiety. To the contrary, the objectivity of the expression "reasonably likely to cause" and the difficulty which Parliament noticed the Crown would face in proving a specific intent to communicate in the stipulated manner bespeak a conclusion that Parliament intended it to be enough for the Crown to establish that the conduct would be reasonably likely to cause distress or anxiety to a person accessing, attempting to access or leaving the premises whether or not the accused intended it to have that effect. Once again, however, it would be open to an accused to raise the possibility that he or she had an honest and reasonable belief that the communication would not be reasonably likely to cause distress or anxiety; in which event the Crown would be left with the persuasive if not evidential burden of excluding that possibility beyond reasonable doubt.
Burden on the implied freedom
The constitutional requirement of freedom of political communication is a necessary implication arising from ss 7, 24, 64 and 128 and related sections of the Constitution and thus extends only so far as is required to give effect to those sections. It arises because it is necessary in order to give efficacy to those provisions that the people be free to communicate concerning government and political matters which could affect their choices in federal and State elections and constitutional referenda or that could throw light on the performance of ministers of state or the executive branch of government. Unlike the United States First Amendment right of free speech, the implied freedom is not a personal right of free speech but a constraint on legislative power. The question of whether a law imposes a burden on the implied freedom is thus to be determined according to the law's effect on political communication as a whole rather than on an individual or group's preferred mode of communication. Where a restriction is limited to a preferred mode of communication, it will not infringe the implied freedom unless it significantly compromises the ability of affected persons to engage in political communication and, even then, only if and because it has a significant effect on political communication as a whole.
Many of Mrs Clubb's submissions proceeded from an unstated premise that the implied freedom of political communication operates in similar fashion to the First Amendment right of free speech and that, because some United States authority suggests that conduct of the kind in which Mrs Clubb engaged would be protected by the First Amendment, it should be concluded that her conduct was protected by the implied freedom of political communication. As will appear, once Mrs Clubb's arguments are stripped of that misconception, they must be rejected.
The content of the freedom to discuss government and political matters is to be ascertained according to what may be for the common convenience and welfare of society from time to time, and hence its ascertainment requires an examination of changing circumstances. The range of matters which may qualify as government and political matters is broad and, in one sense, it is enough to say of a matter that it is political if it is a matter of political controversy. But bearing in mind the restricted nature of the implied freedom, there is a danger that the idea of it being enough that a matter is one of political controversy can be pressed too far. It does not follow from the fact that a subject matter is a matter of political controversy that all communications regarding that subject matter are political communications. More specifically, although abortion is a subject matter of political controversy, it does not follow that all communications about abortion are political. It may be accepted that a communication as to whether abortion law should be changed to prohibit abortion or restrict the circumstances in which it is lawful is a political communication: it is apt to facilitate the making of a free and informed choice as an elector. By contrast, a communication between a woman and her doctor as to the possible physiological and psychological sequelae of the woman undergoing an abortion is an apolitical, personal communication.
A law is taken to impose an effective burden on the implied freedom of political communication if it at all prohibits political communication unless perhaps the prohibition or limitation is so slight as to have no real effect. By proscribing prohibited behaviour within a 150 m radius of premises at which abortions are provided, s 185D prevents persons engaging in political communications about abortion within that area. To that extent, s 185D imposes a restriction on the implied freedom of political communication. But inasmuch as s 185D leaves persons free within the law to say and do whatever they wish about abortion at any point more than 150 m from premises at which abortions are provided, it is not apparent that the proscription of prohibited behaviour within that area has any real effect on the implied freedom.
Unlike some other cases in which this Court has been concerned with time, manner and place restrictions of political communication, there is no evidence here that confining political communications about abortion to a distance of not less than 150 m from premises at which abortions are provided imposes an appreciable restriction on the total number of opportunities for, or effectiveness of, political communication about abortion. In particular, there is no evidence here or reason to suppose that the proscription of prohibited behaviour within the 150 m radius of abortion premises deprives protesters of the ability to generate the type of attention necessary or more likely than other forms of communication to sway hearts and minds as to the need for abortion law reform.
What the evidence does reveal is that the proscription of prohibited behaviour within the 150 m radius significantly compromises the ability of persons like Mrs Clubb to accost and harangue women and other persons as they attempt to access premises at which abortions are provided, and thereby to deter them from aborting their pregnancies or deter persons who support and treat them from aiding them to do so. Accordingly, it may be inferred that the effect of s 185D is significantly to reduce the ability of persons like Mrs Clubb to influence particular women to forbear from aborting their pregnancies. But as has been observed, a woman's decision whether or not to abort her pregnancy is not a political decision. It is an apolitical, personal decision informed by medical considerations, personal circumstances and personal religious and ethical beliefs, qualitatively different from a political decision as to whether abortion law should be amended. For the same reason, a communication directed to persuading a woman as to whether or not to abort her pregnancy is not a political communication but a communication concerning an entirely personal matter. It stands in contrast to what Hayne J described in Monis v The Queen as a single governmental or political communication embodying personal attacks on individuals.
Admittedly, the possibility cannot be excluded that deterring a woman from aborting her pregnancy could sooner or later result in her concluding that abortion should be outlawed, and, in that sense, affect her political choices. But in the scheme of things, the chance of a Damascene conversion of those proportions is surely very limited, and, in any event, such effect on the implied freedom of political communication as the proscription of prohibited behaviour might thus engender would be entirely adventitious. As authority in this and other contexts shows, it would not be an effective burden on the implied freedom.
Apart from authority, there might be something to be said for the view that s 185D does not impose any effective burden on the implied freedom of political communication. Previous decisions of this Court, however, have established that the test of whether a law imposes an effective burden on the implied freedom is qualitative, not quantitative, and that the existence of a burden is to be assessed by reference to the terms, operation and effect, both legal and practical, of the law in question. As Hayne J observed in Monis:
"submissions about 'little' burdens are contrary to and seek to discard the established and unchallenged doctrine of the Court. They do so by seeking to reformulate the accepted boundaries of the freedom, within which the freedom is absolute. Those boundaries are passed only when the impugned law is found to be reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the constitutionally prescribed system of government and the freedom of political communication which is its indispensable incident. By these submissions the first respondent and the interveners sought to reset the boundaries to some quantitative measure. By this means the constitutional freedom would be subordinated to small and creeping legislative intrusions until some point where it could be said that there are so few avenues of communication left that the last and incremental burden is no longer to be called a 'little' burden. This is not and cannot be right."
In terms, s 185D coupled with para (b) of the definition of prohibited behaviour proscribes communicating by any means in relation to abortions within a radius of 150 m of premises at which abortions are provided in a manner that is able to be seen or heard by persons accessing, attempting to access or leaving the premises and is reasonably likely to cause distress or anxiety. In operation, given that most forms of political protest about abortion conducted within 150 m of premises at which abortions are provided would likely be seen or heard by persons accessing, attempting to access or leaving the premises, and, as has been observed, would likely cause appreciable distress or anxiety to a significant proportion of them, the practical effect of the provision is all but to prohibit political protest about abortions within the 150 m radius. Qualitatively, it must be accepted that that is significant, even if it is quantitatively insignificant.
Reasonably appropriate and adapted to serve a legitimate purpose
The question then is whether the law is justified as reasonably appropriate and adapted to the achievement of a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution. That entails the two‑step inquiry adumbrated in Lange v Australian Broadcasting Corporation, as recently restated in Brown v Tasmania, as to whether the law is for a legitimate purpose consistent with the system of representative and responsible government and, if so, whether the law is appropriate and adapted to the achievement of that purpose.
Legitimate purpose
As the plurality emphasised in Brown, it is important in ascertaining the purpose of an impugned law not to confuse its purpose with its effect. Generally speaking, the identification of the purpose of an impugned law is to be arrived at by ordinary processes of statutory interpretation and therefore according to the text of the statute considered in context, informed by the mischief to which it is directed and having regard to relevant extrinsic materials. If the purpose of the law thus presents as one of preventing particular kinds of conduct, the fact that the law may have the effect of preventing conduct more generally is ordinarily to be regarded as immaterial.
As the law now stands in Victoria, abortion is a lawful medical procedure which women are entitled to undergo in accordance with medical advice as they may choose is appropriate for them. As is apparent from the terms of s 185A of the PHW Act, and is confirmed in the extrinsic materials, the purpose of the proscription of prohibited behaviour is to protect the safety and wellbeing of women, support persons, and others such as staff, as they access premises at which abortions are provided. That is a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution. Just as persons lawfully going about their commercial business are entitled to get on with it unimpeded by the unwelcome, disruptive antics of insistent protesters, women seeking an abortion and those involved in assisting or supporting them are entitled to do so safely, privately and with dignity, without haranguing or molestation. The protection of the safety, wellbeing, privacy and dignity of the people of Victoria is an essential aspect of the peace, order and good government of the State of Victoria and so a legitimate concern of any elected State government. A legislative purpose of securing its people that entitlement is thus consistent with the system of representative and responsible government mandated by the Constitution.
Counsel for Mrs Clubb contended that the protection of dignity as such is not a legitimate purpose consistent with the system of representative and responsible government because all political speech has the potential to or does affect the dignity of at least some others. So to contend misconceives the nature of the implied freedom. It is a freedom to communicate ideas regarding matters of political controversy to persons who are willing to listen. It is not a licence to accost persons with ideas which they do not wish to hear, still less to harangue vulnerable persons entering or leaving a medical establishment for the intensely personal, private purpose of seeking lawful medical advice and assistance. A law which has the purpose of protecting and vindicating "the legitimate claims of individuals to live peacefully and with dignity", as is the case here, is consistent with the implied freedom.
Appropriate and adapted
"Insubstantial burden"
The Attorney-General for Victoria argued that where, as here, a law imposes an "insubstantial burden" on the implied freedom of political communication and can be seen as rationally connected to the achievement of a compelling and legitimate purpose, the law should be held to be reasonably appropriate and adapted to the achievement of that purpose, and therefore valid, simply on the basis that it falls within the realm of matters in which it is open to Parliament to make a selection of means for the achievement of a compelling, legitimate purpose without being "second-guessed" by the court's undertaking of any more detailed analysis of the law's appropriateness and adaptedness.
There are a number of problems with that submission. First, it is not the law that the size of the burden which a law imposes on the implied freedom is determinative of whether the law imposes an unjustified burden on the implied freedom. The predominance given to the size of the burden sits uneasily with existing authority.
Secondly, the submission is conclusory. It asserts that the purpose of the law is compelling - which presumably means that its purpose should be regarded as more compelling than at least some other purposes - without revealing how or why it should be so regarded.
Thirdly, in effect the submission invokes European human rights jurisprudential conceptions of margin of legislative respect or tolerance. Those ideas have been rejected in relation to the implied freedom. The question here is whether the means which Parliament has chosen are appropriate and adapted to the achievement of a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution. The extent of a burden may feature in the assessment of the appropriateness and adaptedness of the means chosen. But where, as in this case, a party seeking to impugn the validity of a law presents what she submits are obvious and compelling alternatives, it is not open to determine definitively that the law is appropriate and adapted to the achievement of a legitimate purpose until and unless those alternatives have been excluded and a conclusion reached that, in view of the legitimacy of purpose and degree of burden, the law does not go beyond what could reasonably be required for the achievement of that purpose.
Justification "calibrated" to burden imposed
The submissions of the Attorney-General of the Commonwealth were similar. He contended that where, as here, an impugned law imposes but a "slight" degree of burden on the implied freedom, the appropriateness and adaptedness of it may be assessed according to the adage that the degree of justification required for a law which infringes the implied freedom is to be "calibrated" according to the degree of burden, and therefore that the requisite degree of justification is "slight". The Attorney-General added that the "calibrating factors" which here support that conclusion are that the impugned law in terms applies equally to both the pro-abortion and anti-abortion sides of the debate and that the impugned law is a time, manner and place restriction as opposed to a restriction directed to particular persons or particular political content; although, as the Attorney-General accepted, the latter consideration is subject to the qualification that a time, manner and place restriction may require a higher degree of justification where the restricted time, manner and place of political communication is shown to be an especially important part of one or the other side's or a person's communicative capacity.
Those contentions face similar difficulties to the submissions of the Attorney-General for Victoria. The Commonwealth's proposed approach does not regard the supposed "slightness" of the burden as the predominant factor in assessing the validity of the law, and to that extent it is more consistent with the established and unchallenged doctrine of the Court as to the accepted boundaries of the freedom within which the implied freedom is absolute. Like the Victorian Attorney-General's submissions, however, the Commonwealth's contentions are conclusory. They offer no guidance as to what absolute or relative degree of burden is to be regarded as so "slight" as to make it appropriate to prefer the suggested process of a "calibration" to a more thorough assessment of appropriateness and adaptedness. Nor do they provide any justification for abstaining from a necessity analysis where, as here, the party seeking to impugn the validity of the law has presented what she submits are obvious and compelling alternatives. Further, by focussing on calibrating factors, like a non‑discriminatory burden affecting both sides of the debate equally, and the impugned law imposing a time, manner and place restriction, they substitute for principles of analysis capable of general application facts which in some contexts may but in others should not lead to the conclusion that an impugned law is appropriate and adapted to the achievement of a legitimate purpose. For example, as the Attorney-General of the Commonwealth acknowledged, a law which, in terms, applies equally to both sides of the debate may, in some circumstances, restrict the capacity of one side of the debate more severely than the other or restrict one point of view more severely than most. Where that is so, it will be of little consequence that the law in terms applies equally to both or all sides of the debate. The question will be whether the discriminatory effect of the impugned law can be justified as reasonably appropriate and adapted to a legitimate purpose. Similarly, it is of limited assistance to ask whether a restriction is limited to a time, manner and place without also inquiring whether it affects an especially significant means of communication, and then, if it does, whether it can be justified according to established criteria.
Utility of proportionality testing
Consistently with the plurality's adoption of three-part proportionality testing in McCloy v New South Wales, and the acceptance by a majority in Brown that three-part proportionality testing can be of assistance in the determination of whether a law is appropriate and adapted to serving a legitimate purpose consistent with the system of representative and responsible government established by the Constitution, I adhere to the view, which I expressed in Brown, that three-part proportionality testing comprised of the tests of suitability, necessity and adequacy in balance affords an appropriate method of assessing whether a law is reasonably appropriate and adapted to serving a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution. But with the benefit of reading in draft what the plurality has written in this matter, it is apparent that what I wrote in Brown concerning the content of the necessity test requires some modification. As it now appears to me, in cases in which three-part proportionality testing is applied its application should proceed in accordance with the following criteria:
(1) A law is reasonably appropriate and adapted to achieving a legitimate end consistent with the system of representative and responsible government if it is suitable, necessary and adequate in its balance.
(2) A law is suitable if it exhibits a rational connection to the purpose of the law and a law may be seen to have a rational connection to its purpose if the means for which the law provides are capable of realising the law's purpose.
(3) Up to a point, views may reasonably differ as to whether a law which burdens the implied freedom of political communication is necessary for the achievement of a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution. Within that range, it is for Parliament to decide what is necessary for the achievement of the purpose. It is only when and if Parliament's selection lies beyond the range of what could reasonably be regarded as necessary that the law will be adjudged as unnecessary. One circumstance, among others, in which that may appear to be the case is where a party seeking to impugn the law can point to an obvious and compelling alternative which is equally practicable and available and would result in a significantly lesser burden on the implied freedom.
(4) A law is adequate in its balance if it presents as suitable and necessary in the senses described unless its effect upon the implied freedom is grossly disproportionate to or goes far beyond what can reasonably be conceived of as justified in the pursuit of the law's purpose.
In Brown, I confined the test of necessity to the determination of whether there are such obvious and compelling alternatives of significantly lesser burden on the implied freedom of political communication as to imply that the impugned law was enacted for an ulterior purpose inconsistent with the constitutionally prescribed system of representative and responsible government. I did so because the Court has recognised that what is necessary to achieve a given legislative purpose must be, to a large extent, within the purview of Parliament and, therefore, that the ascertainment of what is reasonably appropriate and adapted to a legitimate purpose is not a prescription to engage in the assessment of the relative merits of competing legislative models. To engage in such an exercise would risk passing beyond the border of judicial power into the province of the legislature. I was also concerned that there is a degree of epistemic uncertainty involved in deciding whether an alternative measure would achieve the same objective as an impugned law while imposing a lesser burden on the implied freedom. I concluded that it was appropriate to confine the necessity test in the manner I did as a means of minimising the risk of the Court exceeding its constitutional competence and of limiting the epistemic uncertainty of assessing the ability of alternatives to achieve the same result as an impugned law with lesser burden on the implied freedom than the impugned law.
On reflection, I accept that to frame the test in the terms I did was too stringent. In addition to cases of obvious and compelling alternatives indicative of an ulterior purpose, it is conceivable that there may be cases falling short of ulterior purpose where an obvious and compelling alternative would result in such a lesser degree of burden on the implied freedom as to show that the impugned law is not necessary in the relevant sense. There are also cases where the circumstances and the state of the evidence, or lack of it, leave the court unpersuaded that the degree of burden which the impugned law imposes on the implied freedom is necessary for the achievement of the legitimate purpose for which the law was enacted. Australian Capital Television Pty Ltd v The Commonwealth and, more recently, Unions NSW v New South Wales are examples. The test of necessity must allow for cases of those kinds and conceivably for other possibilities, and so needs to be more flexible than I allowed in Brown.
Even so, it remains that the test of necessity is not a prescription to engage in the assessment of the relative merits of competing legislative models. Legislation should not be adjudged unnecessary unless it is clear that Parliament's selection lies beyond the range of what could reasonably be regarded as necessary to achieve the legitimate purpose for which the law was enacted or unless the circumstances and state of evidence are such as to afford the court an insufficient basis to conclude whether the degree of burden is necessary.
As to adequacy in balance, I remain of the view expressed in Brown that the test of adequacy should be one of an outer limit beyond which the extent of the burden on the implied freedom of political communication presents as manifestly excessive by comparison to the demands of legitimate purpose. That necessitates the court making an assessment of the importance of the purpose of the law as against the extent of the burden which it imposes on the implied freedom of political communication; and in making that assessment it is necessary to keep in mind that it is principally for Parliament to decide whether a legitimate purpose is of sufficient importance to warrant the extent of its impingement on the implied freedom. As has been observed, the law is yet to yield a principled manner of determining the importance of a legitimate purpose, or how its importance should be weighted relative to burden. A test of a manifestly excessive burden by comparison to the demands of legitimate purpose recognises and makes due allowance for the inherent difficulties of the process.
I recognise that the assessment of adequacy in balance has been criticised as the weighing of incommensurables. But it is to be observed that the need to weigh incommensurables is hardly unprecedented in the law, and the process is not inutile. In one way or another, courts are not infrequently called upon to weigh competing values that could never plausibly be reduced to any single metric of evaluation - for example, in the identification of a common law duty of care or in the sentencing of a criminal offender. And despite the imprecision of those processes, they are the best available means of fulfilling essential functions. Conceptually, the weighing of the importance of the purpose of a law against its impingement upon the implied freedom of political communication is no different.
A court may be assisted in its assessment of adequacy in balance by reference to principles of the common law. Several of those principles are the product of or reflected in competition between freedom of expression and other personal and social interests, including reputation, privacy, and the avoidance of psychological injury. Where the protection of such an interest has long been seen to justify the recognition of a cause of action or criminal offence notwithstanding an interference with free speech, coherence suggests that legislation protecting related interests to a comparable extent would not generally be struck down as excessive. At the same time, the court should be mindful not to "carry into constitutional discourse an undue romanticism about the common law". The recognition that Parliament may legitimately alter the balance struck at common law requires that the test of adequacy in balance be whether the legislative decision-maker's assessment is grossly disproportionate or manifestly excessive.
The test coheres to the assessment of infringement of express constitutional guarantees and thereby provides a degree of precision which should be regarded as acceptable. At the same time, it alleviates the open‑endedness of the court's comparison of importance of purpose with burden, and, to a considerable extent, it mitigates the difficulty of weighing incommensurables. Most importantly, it leaves Parliament unhindered within the broad range of what is reasonably open to be achieved.
It was suggested in the course of argument that the adequacy in balance test is largely unnecessary or rendered redundant by reason of the necessity test. That is not so. It is correct that the adequacy in balance test is only ever reached where an impugned law has first passed the necessity test, and thus that, generally speaking, whether a law is appropriate and adapted is more likely to turn on the question of its suitability or necessity than on whether it is adequate in its balance. But that is not to say that adequacy in balance will never be decisive.
Consistently with the approach taken to express constitutional guarantees, it should be accepted that an impugned law that otherwise presents as suitable and necessary for the achievement of a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution is not to be regarded as inadequate in its balance unless it so burdens the implied freedom of political communication as to present as grossly disproportionate to or as otherwise going far beyond what can reasonably be conceived of as justified in the pursuit of that purpose.
Suitability
Relevantly, the means which the PHW Act provides to achieve its purpose is the proscription of prohibited behaviour within a radius of 150 m of premises at which abortions are provided. Prohibited behaviour is precisely defined by s 185B(1) by proscription of the kinds of behaviour which, it appears, Parliament considered to constitute a real risk to the safety, wellbeing, privacy and dignity of persons accessing or attempting to access or leaving premises at which abortions are provided. The proscription of prohibited behaviour of the kind referred to in para (b) of the definition is thus a means which is logically capable of achieving the purpose of s 185A: preventing the kind of molestation and haranguing which Parliament considered to constitute a real risk to the safety, wellbeing, privacy and dignity of persons accessing or attempting to access or leaving premises at which abortions are provided. Notably, there was evidence before the Magistrate that the experience of staff at the East Melbourne Fertility Control Clinic was that the introduction of the proscription of prohibited behaviour has had a positive effect for the wellbeing of patients and staff. It follows that the proscription of conduct of the kind referred to in para (b) of the definition of prohibited behaviour is rationally connected to the achievement of the purpose of securing the health and wellbeing of women accessing premises at which abortions are provided and is thus suitable in the relevant sense.
Necessity
As has been emphasised, the means chosen by Parliament to achieve a legitimate purpose consistent with the system of representative and responsible government are not to be considered unnecessary just because the court might think that there is another way of achieving the same objective with arguably less impact on the implied freedom of communication. A law may be adjudged unnecessary in the relevant sense if there is an obvious and compelling alternative of significantly lesser burden on the implied freedom that is equally practicable and available. But it is incumbent on a party challenging a law on the basis that it infringes the implied freedom of political communication to identify any obvious and compelling alternatives which that party contends would or might impose a lesser burden on the implied freedom. In cases involving the determination of whether an impugned law is justified, notions of burden of proof and persuasion are largely misplaced. Where it appears that a law imposes a burden on the implied freedom, the court is bound to hold the law invalid unless persuaded that it is appropriate and adapted to the achievement of a legitimate purpose. But it does not follow from the need for the court to be persuaded that an impugned law is justified that the court must go in search of and be able to exclude as impracticable every possible alternative of conceivably lesser burden on the implied freedom, still less that a party seeking to uphold the impugned law is required to demonstrate that there are no such alternatives. If an obvious and compelling alternative of significantly lesser burden on the implied freedom is presented, or presents itself, to the court, it is likely to prove determinative. Otherwise, the issue will not arise.
Mrs Clubb contended that there were a number of obvious and compelling alternatives. The first was to repeal para (b) of the definition of prohibited behaviour. Her argument was that, since para (a) of the definition of prohibited behaviour encompasses all of the types of conduct which characteristically interfere with the safety, wellbeing, privacy and dignity of persons entering or leaving premises, the only thing that para (b) adds to the proscription is conduct that does no more than cause mere "discomfort". It followed, in Mrs Clubb's submission, that, if Parliament had omitted para (b) from the definition of prohibited behaviour, the provision as so constituted would have been adequate to achieve the stated purposes of s 185A with a substantially lesser burden on the implied freedom of political communication.
That submission breaks down at a number of levels. To begin with, as can be seen from the Statement of Compatibility, Parliament enacted para (b) of the definition of prohibited behaviour conscious that proscriptions like para (a), being framed in terms of offences and misfeasances, cannot be enforced until after the harmful conduct has occurred, and because Parliament was persuaded that experience had shown that there are significant difficulties with their enforcement. There is no reason to doubt that is so.
Secondly, although it is true that para (a) prohibits significant aspects of the conduct in which anti-abortion advocates have historically engaged, para (b) is ex facie designed to reach conduct that may not amount to any of the criminal offences or misfeasances listed in para (a). Examples of such conduct in evidence before the Magistrate included unsolicitedly drawing near to a woman as she accesses or attempts to access premises at which abortions are provided, forcing literature on her which recites lists of "Possible Physical Complications of Abortion" and "Possible Psychological Post Abortion Complications", and advocating alternatives to abortion and "help", thereby to dissuade her from entering the premises. In some of the United States First Amendment cases regarding abortion protests, conduct of that kind is described with disarming American euphemism as "sidewalk counseling". In the Victorian legislation, and in the Tasmanian legislation which is in issue in the Preston appeal and which derives in part from Canadian precedent, some examples of such conduct are proscribed as "interfering with or impeding a footpath" or "footpath interference", though, again, that proscription does not seem apt to cover all instances of conduct that might fall within the scope of para (b).
In this matter, some instances of conduct that might fall within para (b) were more graphically elucidated in experiential evidence presented to this Court by the Castan Centre for Human Rights Law, appearing as amicus curiae:
"(a) Protesters approaching, following or walking alongside people approaching clinic premises, distributing pamphlets, and distributing plastic models of foetuses.
(b) Protesters equating foetuses with babies by imploring patients not to 'kill' their 'baby', and castigating patients as murderers.
...
(e) Protesters displaying large and graphic posters depicting what purported to be foetuses post‑abortion, foetuses in buckets, or skulls of foetuses.
(f) Protesters distributing visually graphic literature containing medically inaccurate and misleading information warning that abortion results in infertility, failed relationships, mental illness and cancer." (footnotes omitted)
Thirdly, para (b) of the definition makes no mention of "discomfort". In terms, it proscribes conduct which is "reasonably likely to cause distress or anxiety", no doubt with a view in part to the kind of conduct just recited. It is specious to contend, as in effect Mrs Clubb contended, that "distress or anxiety" in para (b) means nothing more than mere "discomfort".
Fourthly, it is apparent from the Statement of Compatibility that Parliament considered that there was good reason to conclude that the kind of conduct covered by para (b) is productive of distress or anxiety:
"Women and their support people have reported that they have found such conduct very distressing and in many cases psychologically harmful. This is compounded by the fact that many women seeking abortion services are highly vulnerable to psychological harm by reason of the circumstances that have contributed to their decision to undergo an abortion.
...
Provisions that only prohibit intimidating, harassing or threatening conduct, or conduct which impedes access to premises are inadequate for a number of reasons".
Those concerns are borne out by evidence adduced by the Attorney‑General for Victoria before the Magistrate, and which was before this Court, of Dr Susie Allanson, who worked as a sessional clinical psychologist at the East Melbourne Fertility Control Clinic for 26 years and who observed the activities and conduct of protesters and the effect that harassment had had on her and her patients.
Mrs Clubb suggested that another obvious but less burdensome alternative to the proscription of para (b) conduct would be to limit the proscription by means of one or more of the following exclusions:
(a) an exclusion for conduct apt to cause no more than discomfort;
(b) an exclusion for communications which are consented to;
(c) a requirement that the communications in fact be seen or heard;
(d) a "carve out" for political communications;
(e) a materially smaller safe access zone;
(f) a "carve out" during elections;
(g) a mens rea requirement for one or more of the actus reus elements of the offence.
Those suggestions are unconvincing. To the extent that "no more than discomfort" may be conceived of as a mental state of lesser seriousness than distress or anxiety, the legislative requirement that conduct be reasonably likely to cause distress or anxiety serves to exclude conduct apt to cause no more than discomfort.
The notion of excluding communications which are consensual is unrealistic. In reality, what is the likelihood of persons who are accessing or attempting to access premises at which abortion services are provided consenting to communications in relation to abortions with people like Mrs Clubb? And even if that were a realistic possibility, an exclusion of consensual communications would put major problems of proof in the way of a successful prosecution for breach of the proscription. In most cases it would require the Crown to call the person or persons affected by the communication in order to negative the possibility of consent. And as is apparent from the Statement of Compatibility, one of Parliament's concerns in enacting para (b) of the definition of prohibited behaviour was to avoid the necessity of calling persons affected by proscribed communications, because previous experience showed that such persons were generally unwilling to become involved in court proceedings and that involvement in court proceedings was likely to exacerbate the distress or anxiety to which they have already been subjected. The absence of an exclusion of consensual communications thus presents as a rational choice of means to achieve the purpose of the proscription.
The suggestion of imposing a requirement that a communication in fact be seen or heard encounters similar difficulties. It would mean that, in order to mount a successful prosecution, the Crown would have either to call a person or persons affected by the subject communication or else to adduce circumstantial evidence sufficient to establish beyond reasonable doubt that a person accessing the premises saw or heard the conduct. Given the understandable reticence of affected persons to become involved in court proceedings and the likely harmful effects on them of doing so, Parliament's decision to set the standard at the lower level of what is able to be seen or heard presents, again, as a rational choice. It was necessary for the achievement of the purpose of the provision.
The idea of a "carve out" for political communications or during elections can be dismissed. A carve out for political communications would mean that anti-abortion and pro-abortion protagonists would be free to conduct protests anywhere in the 150 m radius area regardless of the distress or anxiety they would be likely to cause women and others accessing or attempting to access the premises. That would significantly frustrate the purpose of the proscription. And since there is no evidence or other reason to conclude that persons cannot engage in political communication about abortion beyond the 150 m radius to the same extent and as effectively as they can within it, a carve out for political communications or during election periods would do very little to alleviate the burden on the implied freedom of political communication. What it would mostly do is allow persons like Mrs Clubb to continue within the 150 m radius to engage in communications designed to deter women from undergoing abortions and to deter persons who support and treat them. That would be to undermine the purpose of the statute without any quantitative lessening of the burden on the implied freedom. The proposed carve outs are not obvious and compelling alternatives.
That is also the answer to the suggestion to reduce the 150 m radius. Since there is no evidence or other reason to imagine that persons cannot engage in political communication about abortion outside the 150 m radius as much and as effectively as they can within that radius, there is equally no reason to suppose that reduction of the radius to something less than 150 m would have a significant quantitative effect on the freedom of political communication. By contrast, as appears from the Statement of Compatibility, any reduction in the radius would be likely to compromise the effectiveness of the proscription:
"A safe access zone of 150 metres has been determined to be appropriate because it provides a reasonable area to enable women and their support people to access premises at which abortions are provided without being subjected to such communication. As I have explained, the conduct has included following women and their support persons to and from their private vehicles and public transport. There have also been many instances of staff being followed to local shops and services, and subjected to verbal abuse. Such conduct has often occurred well beyond 150 metres. However, I consider that 150 metres is a reasonable area that is necessary to enable women and their support persons to access premises, safely and in a manner that respects their privacy and dignity. While such conduct has occurred beyond 150 metres of some abortion services, having a clear safe access zone of 150 metres will enable abortion services to advise women of how they can best access the premises without the risk of such conduct, such as where they can park their vehicles or use public transport."
No reason has been advanced to doubt the accuracy of those observations.
That leaves for consideration the idea of including added mens rea requirements. Reference has already been made to the mental element of an offence contrary to s 185D comprised of conduct of the kind specified in para (b) of the definition of prohibited behaviour in s 185B(1), and to the reasons which informed Parliament's decision to make it an offence of general intent. Seen against that background, it is apparent that making specific intent an essential element of an offence would not be an obvious and compelling alternative. It would substantially emasculate the provision as a deterrent against persons engaging in that kind of prohibited behaviour within 150 m of premises at which abortions are provided. And it would also do very little to reduce the burden on the implied freedom of political communication. As has been explained, although the burden is qualitatively significant, it is quantitatively imperceptible. And logically, what is already so low as to be imperceptible cannot perceptibly be reduced by further reduction. All it would do is increase the incidence of apolitical, personal communications of the kind now prohibited by para (b) within the 150 m radius.
In the result, none of Mrs Clubb's suggestions is an obvious and compelling alternative.
Adequacy in balance
For the reasons earlier stated, an impugned law that otherwise presents as suitable and necessary for the achievement of a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution should not be regarded as inadequate in its balance unless it so burdens the implied freedom of political communication as to present as grossly disproportionate to or as otherwise going far beyond what can reasonably be conceived of as justified in the pursuit of that legitimate purpose.
As has been explained, the proscription of conduct of the kind identified in para (b) of the definition of prohibited behaviour imposes a relatively limited burden on the implied freedom of political communication. It does so for a legitimate purpose of protecting the safety and wellbeing of women, support persons, and others such as staff, as they access premises at which abortions are provided, and that purpose is consistent with the system of representative and responsible government mandated by the Constitution. The effect of the proscription on the implied freedom, although qualitatively not insignificant, is quantitatively minimal. The proscription is not grossly disproportionate to and does not go far beyond what is necessary for the achievement of the purposes identified in s 185A of the PHW Act. It should be concluded that proscription of conduct of the kind identified in para (b) is adequate in its balance.
Conclusion in the Clubb appeal
It follows that, although the proscription in s 185D of para (b) conduct has a perceptible, qualitative effect on the implied freedom of political communication, it is a justified burden and therefore a law enacted for a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution which is appropriate and adapted to the achievement of that purpose.
The Preston appeal
The Preston appeal involves different considerations but the result is the same. Section 9 of the Reproductive Health (Access to Terminations) Act 2013 (Tas) ("the RHAT Act") creates an access zone within a radius of 150 m from premises at which terminations are provided and, within the access zone, proscribes "prohibited behaviour" of five kinds defined in s 9(1) of the RHAT Act as follows:
"(a) in relation to a person, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person; or
(b) a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided; or
(c) footpath interference in relation to terminations; or
(d) intentionally recording, by any means, a person accessing or attempting to access premises at which terminations are provided without that person's consent; or
(e) any other prescribed behaviour."
The principal argument of the appellant, Mr Preston, in support of the contention that s 9 of the RHAT Act is invalid as an unjustified burden on the implied freedom of political communication centres on the proscription in that provision of conduct of the kind specified in para (b) of the definition of prohibited behaviour. Mr Preston contended that "protest" in that context has what he submitted is its ordinary meaning of expressing a message in opposition to something - in this case to terminations - and that, because expressing opposition to a topic about which there is political debate (as there is about terminations) is a characteristic mode of political communication, it is clear that the proscription imposes a significant burden on the implied freedom of political communication. In Mr Preston's submission, it is also a particularly obnoxious and illegitimate burden on the implied freedom because it is in terms directed solely to protests which express an opinion in opposition to abortion; applies to protests whether or not they are consented to; applies to a protest even if the protester has a proprietary right to be on the premises where the protest is conducted; and is not limited to protests that cause or would be likely to cause anxiety or distress.
Facts and legislative provisions
As with the Clubb appeal, the facts and relevant legislation for the Preston appeal are set out in the judgment of Kiefel CJ, Bell and Keane JJ and need not be repeated. But it is necessary to say something more of the meaning of "protest".
Mr Preston submitted that "protest" would be apt to cover a private conversation between two individuals if one of those individuals were expressing a view in opposition to terminations. He also submitted that because protest in its ordinary meaning connotes objection or disapproval, "protest in relation to terminations" refers only to expressing a message in opposition to terminations.
Up to a point the first of those submissions may be accepted. It is apparent from its context, and, as will be seen, from the considerations which informed the enactment of s 9 of the RHAT Act, that "protest" is used in s 9 in the sense of expressing dissent from or support of terminations by means of a public demonstration in a manner able to be seen or heard by a person accessing or attempting to access premises at which terminations are provided. That would include both a public demonstration by one or more protesters and also one or more protesters engaging a person or persons accessing or attempting to access premises at which terminations are provided on the topic of terminations. There is, however, no basis in the text of the provision to limit its operation to expressions of opinion in opposition to terminations. The use of the general phrase "in relation to terminations" (emphasis added) indicates an intention to capture protests both for and against terminations.
It is also necessary to say something about the mental element of the subject offence. Like the offence created by s 185D of the PHW Act, the offence created by s 9 of the RHAT Act comprised of prohibited behaviour of the kind specified in para (b) is a regulatory statutory offence which, because it does not specify the mental element of the offence, may be taken to require a general intent to do the act charged. In that respect, it stands in contrast to the specific intent required in the case of an offence constituted of conduct of the kind described in para (d) of "intentionally" recording a person accessing or attempting to access premises at which terminations are provided without that person's consent. Accordingly, in a prosecution for an offence of contravention of s 9 of the RHAT Act comprised of engaging in prohibited behaviour of the kind specified in para (b), it would be sufficient for the Crown to prove both that the accused did, and that the accused intended to, protest in relation to terminations within a 150 m radius of premises at which terminations are provided in a manner that was able to be seen or heard by a person accessing or attempting to access premises at which terminations are provided.
It would be open to the Crown to establish such a general intent by proving that the accused believed that he or she was within a radius of 150 m of premises at which terminations were provided and there protested in relation to terminations in a manner able to be seen or heard by a person accessing or attempting to access the premises. As under s 185D of the PHW Act, the use of the words "able to be seen or heard" as opposed to "is seen or heard" indicates that it would not be necessary for the Crown to prove that a person accessing or attempting to access the premises in fact saw or heard the protest. It would be enough for the Crown to prove that it was capable of being seen or heard by a person accessing or attempting to access the premises.
It would not be necessary for the Crown to prove that the accused believed that the protest would be seen or heard by a person accessing or attempting to access the premises. But in like fashion to the position under the PHW Act, it would be open to the accused to raise the possibility that he or she had an honest and reasonable belief that the protest would not be seen or heard by a person accessing or attempting to access the premises, in which event the Crown would be left with the persuasive if not evidential burden of excluding that possibility beyond reasonable doubt.
Burden on the implied freedom
Just as with s 185D of the PHW Act, so too here it may be accepted that s 9 of the RHAT Act imposes a qualitatively recognisable burden on the implied freedom of political communication - by proscribing political communication regarding terminations within the access zone. It may also be accepted that, at least in terms, s 9 of the RHAT Act goes further in its restrictive effect on the implied freedom of political communication than s 185D of the PHW Act, because, in contradistinction to para (b) of the definition of prohibited behaviour in s 185B(1) of the PHW Act, para (b) of the definition of prohibited behaviour in s 9(1) of the RHAT Act singles out protests as such and proscribes them within the access zone without an express limitation to communications which are reasonably likely to cause distress or anxiety. In practical reality, however, the two provisions have much the same effect. On the basis of the experiential and research evidence that was considered by Parliament and that is before this Court, and as a matter of common sense and ordinary experience, the reasonable likelihood is that virtually any form of protest about terminations within the access zone capable of being seen or heard by persons accessing the premises at which termination services are provided would cause distress or anxiety to persons accessing or attempting to access the premises.
Similarly, as in the Clubb appeal, although it must be recognised that the proscription of protests in relation to terminations in the access zone may have a qualitative effect on the implied freedom of political communication, there is no evidence or other reason to conclude that the proscription of a protest in relation to terminations in the access zone would have a significant quantitative effect on the free flow of political communication. As under s 185D of the PHW Act, under s 9 of the RHAT Act protesters are entirely free to conduct lawful protests regarding terminations anywhere except in the access zone, and, as in the Clubb appeal, there is nothing here to suggest that persons cannot protest in relation to terminations just as often and just as effectively outside the access zone as they can within it.
Certainly, as in the Clubb appeal, the proscription of protests in relation to terminations in the access zone reduces the capacity of protesters to harangue women seeking terminations of their pregnancies. Thus, it must be accepted that the proscription significantly reduces the capacity of persons like Mr Preston to influence women not to go through with a contemplated termination. But, for the reasons earlier given, a woman's decision whether to terminate her pregnancy is not a political decision and a communication directed to persuading her not to terminate her pregnancy is not a political communication. It is a communication concerning an apolitical, personal matter. It follows, as was explained in the Clubb appeal, that the proscription of conduct of the kind described in para (b) of the definition of prohibited behaviour does not impose a quantitatively significant burden on the implied freedom of political communication.
Legitimate purpose
As appears from the Second Reading Speech, the enactment of the proscription of conduct delineated in para (b) of the definition of prohibited behaviour proceeded from a recognition on the part of the legislature that women are entitled to a full range of safe, legal and accessible reproductive services necessary for improving their health and wellbeing, and, to that end, that women should be enabled to access lawful termination services privately, with dignity and without harassment, stigma or shame. In that respect, it is apparent that the legislature's resolve was informed by the experience in Victoria and by research findings that abortion protests outside premises where terminations are provided deprive women seeking terminations of their pregnancies of their privacy and dignity, stigmatise and shame them in a manner likely to be productive of obvious signs of distress, and heighten their already high levels of psychological distress with significant risk of negative impact upon post-abortion psychological adjustment. Thus, the legislative purpose of proscribing protests in relation to terminations in the access zone as it appears from the text of the proscription read in context presents as the advancement of women's health through the enablement of women's access to lawful termination services, privately, with dignity and without the adverse psychological impact of being subjected to the harangue of abortion protesters.
Although views differ as to the moral and ethical propriety of the intentional termination of human pregnancy, it is now a lawful medical procedure in Tasmania. Accordingly, a purpose of improving the health and wellbeing of women by enabling their access to a lawful termination service, privately, with dignity and without harassment, stigma or shame, is a purpose which is consistent with the system of representative and responsible government mandated by the Constitution.
Mr Preston contended to the contrary. Based on an assemblage of isolated words and phrases gleaned from the Second Reading Speech, Mr Preston submitted in effect that the true purpose of the proscription is to handicap the anti-termination side of the debate - by deterring speech which the pro‑termination side of the debate regards as "unacceptable" - and that a purpose of handicapping one side of a political debate is quite clearly not a legitimate purpose.
That contention elides the effect of the proscription with its purpose. Granted, the effect of legislation is sometimes emblematic of its purpose, and here it may be accepted that the effect of the proscription of protests in relation to terminations in the access zone is to hamper or handicap anti-termination protests to that extent. But that does not mean that the effect of the legislation is the same as its purpose. Legislation restricting the availability of classified information serves to illustrate the point. A restriction of availability of classified information may have an effect on the defence debate. But, upon proper analysis of the terms of the legislation, it may appear that its purpose is to protect national security regardless of its effect on political communication. Here, for the reasons already stated, the proscription of conduct in para (b) of the definition of prohibited behaviour is not limited to anti-termination views. And it is apparent from the way in which para (b) confines the proscription to protests staged in the access zone that are able to be seen or heard by a person accessing or attempting to access the premises at which termination services are provided that the purpose is to protect the health and wellbeing of women seeking termination of their pregnancies by shielding them from the haranguing, shaming and stigmatising of anti-termination protesters in close proximity to the premises. By leaving anti-termination protesters free to protest wherever and by whatever means they choose outside the access zone, the terms of the proscription forcefully deny that the purpose of the proscription is to silence or handicap the anti-termination side of the debate.
In his written submissions, Mr Preston embraced the reality that the aim of anti-termination protests in close proximity to premises where termination services are provided is to "shame" women to forbear from terminating their pregnancies and he submitted that "shaming" women to that end is a legitimate aspect of political communication. He referred by way of analogy to the change in Australia's treatment of her indigenous peoples consequent upon the creation of a sense of shame as to the way in which indigenous peoples were treated in the past. Counsel for Mr Preston did not say so in terms but the argument that appears to be implicit in those submissions is that by "shaming" women to the point that they forbear from terminating their pregnancies, there might ultimately emerge such a generalised sense of "shame" regarding the intentional termination of human pregnancy as to lead to a change in the law to prohibit it, and that it cannot be a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution to prevent that occurring.
There are two answers to that. The first is that, although the "shaming" of a woman who has gone to premises to obtain the termination of an unwanted pregnancy might result in her forbearing from terminating the pregnancy, or at least delaying it, there is no evidence that it would have the effect of converting her into a protagonist for the anti-termination cause. The second answer, which in effect repeats something earlier noticed in relation to the Clubb appeal, is that, even if the proscription of protests in relation to terminations in the access zone did result in a reduction in the number of hearts and minds converted to the anti-termination mission, it would be an adventitious consequence of the proscription, not the result of an improper purpose of limiting or restricting the free flow of political communication.
Appropriate and adapted
That leaves the question of whether the proscription of conduct of the kind identified in para (b) of the definition of prohibited behaviour is justified as a law that is appropriate and adapted to the achievement of a legitimate purpose consistent with the system of representative and responsible government mandated by the Constitution.
Suitability
The preceding discussion of the proscription of the conduct described in para (b) demonstrates that it is rationally connected to the purpose of advancing the health and wellbeing of women seeking terminations of their pregnancies and thus is suitable in the relevant sense.
Counsel for Mr Preston contended to the contrary that, because the proscription of protests in relation to terminations in the access zone singles out abortion protests as such and thereby targets a category of protest largely comprised of political communications - leaving other forms of protest untouched - and because, in contrast to para (b) of the definition of prohibited behaviour in s 185B(1) of the PHW Act, the proscription is not expressly limited to protests "reasonably likely to cause distress or anxiety", the proscription is not rationally connected to the purpose of advancing women's health and so is not suitable in the relevant sense.
That contention is unpersuasive. The fact that the proscription is restricted to protests about terminations is consistent with and fortifies the conclusion that the proscription is aimed at giving effect to the purpose of sparing women seeking terminations from exposure to what are considered to be the deleterious effects on their health and wellbeing of subjection to haranguing by anti‑abortion or pro-abortion protesters near to premises where terminations are provided. Since there is no suggestion that other kinds of protest - such as, for example, industrial protests - would have a similarly deleterious effect upon the health and wellbeing of such women, it makes sense that those other forms of protest are not mentioned. And as already noticed, the absence of a requirement that protests be reasonably likely to cause distress or anxiety, although a point of textual distinction to the proscription in para (b) of the definition of prohibited behaviour in s 185B(1) of the PHW Act, in effect makes little difference.
Necessity
Mr Preston contended that the proscription of protests in relation to terminations within the access zone was not necessary in the relevant sense because there were obvious and compelling alternatives productive of significantly lesser burden on the implied freedom of political communication. In his submission, they were:
(a) eliminating para (b) of the definition of prohibited behaviour, with the effect that a protest would not be proscribed unless it amounted to besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding a person within the meaning of para (a) of the definition of prohibited behaviour;
(b) incorporating a requirement in para (b) of the definition that a protest be reasonably likely to cause shame to a person accessing or attempting to access the premises at which termination services are provided;
(c) making it a defence that a person charged is able to establish that the protest "had no relevant adverse effect";
(d) making it a defence that a protest is engaged in with the consent of any person able to see or hear the protest;
(e) incorporating a "carve out" for political communications;
(f) incorporating a "carve out" for communications in or near Parliament (as is incorporated in comparable New South Wales legislation);
(g) incorporating a "carve out" for communication by or with the authority of a candidate during an election or referendum (as is incorporated in comparable New South Wales legislation);
(h) incorporating a "carve out" for protests made with the consent of the landowner.
None of those suggestions is an obvious and compelling alternative. As has been seen, Parliament enacted para (b) of the definition of prohibited behaviour in s 9(1) of the RHAT Act to protect the health, wellbeing, privacy and dignity of women accessing premises at which terminations are provided. Paragraphs (a) and (c) of the definition of prohibited behaviour go some way to achieving that objective. But a protest in relation to terminations could be conducted in the access zone in a manner that studiously avoided commission of any of the misfeasances described in paras (a) and (c) of the definition and yet be just as effective in depriving women accessing the premises of their privacy and dignity and stigmatising and shaming them to an extent productive of psychological infirmity. Elimination of para (b) would therefore substantially dilute the effectiveness of the proscription. It would not operate as an alternative of equal efficacy.
Incorporating a requirement in para (b) that a protest in relation to terminations be reasonably likely to cause shame to a person accessing or attempting to access premises at which termination services are provided would make little difference. For reasons earlier stated, any protest in relation to terminations conducted in the access zone would likely infringe the privacy and dignity of women accessing the premises at which termination services are provided and thereby risk engendering the psychological sequelae which the proscription is designed to prevent. Thus, to make reasonable likelihood of causing shame a specific element of the proscription would do little to change the practical effect of the proscription. And given that the proscription leaves protesters free to conduct protests in relation to terminations outside the access zone, and that there is no evidence or other reason to accept that political protest against terminations outside the access zone is any less effective as a tool of political persuasion than protest within, such difference as the proposed change would make to the burden on the implied freedom of political communication would appear to be negligible.
Similar considerations negate the suggestion that it would be an obvious and compelling alternative to provide for a defence of "no relevant adverse effect". It also suffers from the added difficulty that "relevant adverse effect" is a concept about which views are very likely to differ. Given the content of the experiential and research evidence already mentioned, it may be inferred that the majority of women accessing premises at which termination services are provided (or who have ever done so) would likely take the view that staging a protest in relation to terminations in the access zone has serious relevant adverse effects on such women and, more generally, relevant adverse systemic effects on the accessibility of legally available termination services. By contrast, it may be assumed that the majority of anti-abortion protesters genuinely believe that such protests are not productive of adverse effects and that the only relevant effect of them is a beneficial effect that they may result in at least one woman forgoing or delaying the termination of an unwanted pregnancy. Given that divide in opinion, a defence of relevant adverse effect would be impracticable.
A defence of consent would for all intents and purposes be meaningless. The possibility that women accessing premises at which termination services are provided would consent to the conduct of a protest in relation to terminations within 150 m of the premises is de minimis.
The idea of "carve outs" for certain kinds of communications has largely been dealt with. For the reasons already given in respect of the Clubb appeal, such carve outs would compromise the efficacy of the proscription in achieving its purpose of protecting the health, wellbeing, privacy and dignity of women accessing premises where termination services are provided while having minimal beneficial effect on the implied freedom.
Finally, the suggested exception of protests staged on land with the consent of the owner is irrelevant. Whether or not a protest is conducted with the consent of the owner, it will, if it is able to be seen or heard by a person accessing premises at which termination services are provided, have exactly the same effect on that person.
In sum, none of Mr Preston's contentions casts any doubt on the necessity of the proscription of the conduct in para (b) of the definition of prohibited behaviour in s 9(1).
Adequacy in balance
For the same reasons, none of Mr Preston's contentions provides a reason to accept that the proscription of protests in relation to terminations within the access zone so burdens the implied freedom of political communication as to present as grossly disproportionate to or as otherwise going far beyond what can reasonably be conceived of as justified in the pursuit of the law's legitimate purpose. It has not been demonstrated that the law is not adequate in its balance.
Conclusion in the Preston appeal
In the result, it should be concluded that the burden imposed on the implied freedom of political communication by the proscription of the conduct described in para (b) of the definition of prohibited behaviour in the access zone is minimal and is a justified burden as a law that is reasonably appropriate and adapted to the achievement of the legitimate purpose of advancing women's health through the enablement of women's access to lawful termination services without subjection to the harangue of abortion protesters.