Congratulations and thanks to Adrianne Walters, a Senior Lawyer at the Human Rights Law Centre in Australia, which intervened in the High Court of Australia in support of Victoria’s safe access zone laws. We thank her for submitting this summary and comment about this useful decision:
High Court of Australia, Kathleen Clubb v Alyce Edwards & Anor; John Graham Preston v. Elizabeth Avery & Anor, [2019] HCA 11, Judgment of April 10, 2019. Decision online. Press Release.
Last week, the High Court of Australia upheld laws that protect the safety, privacy and well-being of women seeking access to abortion services. [The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia.]
Background to safe access zones
Safe access zones have been introduced in most states in Australia since 2013 and have ended decades of harmful anti-choice harassment and abuse outside abortion clinics. Only two states have not yet introduced them.
Most safe access zone laws in Australia create a 150-metre buffer zone outside abortion clinics in which certain behaviours are prohibited, including harassing, obstructing, intimidating and filming patients and staff.
The constitutional challenge
The safe access zone laws of two states, Victoria and Tasmania, were challenged in the High Court.
In Victoria, Mrs Kathleen Clubb was charged and convicted of engaging in prohibited behaviour in a zone; specifically, communicating about abortion in a manner “reasonably likely to cause distress or anxiety” to a couple trying to enter a clinic in Melbourne.
In Tasmania, Mr Graham Preston, was also charged and convicted with engaging in prohibited behaviour in a zone. In his case the prohibited conduct involved “a protest” about abortion that was able to be seen or heard by a person accessing a clinic.
Both Mrs Clubb and Mr Preston appealed to the High Court. They argued that the laws they were convicted under were invalid because they impermissibly burdened the freedom of political communication, which is implied in the Australian Constitution.
The High Court’s decision:
The High Court dismissed the appeals of Mrs Clubb and Mr Preston. A majority of judges upheld the validity of Victoria’s safe access zone laws (three judges declined to determine the validity question because it was not established that Mrs Clubb’s conduct involved political communication). All seven judges determined and upheld the validity of Tasmania’s laws.
In upholding the laws, the High Court recognised that while they do burden the freedom of political communication, the laws serve a critical purpose in making sure women can access the healthcare they need, and staff can carry out their work, without being harassed and abused. As one of the judges noted “women seeking an abortion and those involved in assisting or supporting them are entitled to do so safely, privately and with dignity, without haranguing”.
The High Court also found that the challenged parts of the laws were reasonably appropriate and adapted to achieving that critical purpose. In a joint judgment, three judges noted that “a measure that seeks to ensure that women seeking a safe termination are not driven to less safe procedures by being subjected to shaming behaviour or by the fear of the loss of privacy is a rational response to a serious public health issue.”
It was noted that the freedom of political communication “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.” The majority acknowledged the unique challenges faced by pregnant women confronted by extreme anti-choice activists outside clinics, noting that “it is no part of the implied freedom to guarantee a speaker an audience, much less a captive audience.”
The High Court’s decision is a big win for women’s rights in Australia. The decision confirms our right to access the healthcare we need without having to forgo our safety, privacy and dignity to get there. It means safe access zone laws are here to stay.
Related Resources:
The Human Rights Law Centre intervened in the High Court in support of Victoria’s safe access zone laws. Amicus Curiae brief.
Adrianne Walters, “Big win for women’s reproductive freedom, but still a long way to go,” Sydney Morning Herald, April 11, 2019. Australian newspaper article.
High Court of Australia, Kathleen Clubb v Alyce Edwards & Anor; John Graham Preston v. Elizabeth Avery & Anor, [2019] HCA 11, Judgment of April 10, 2019. Decision online. Press Release.
Abortion Law Decisions webpage: links to domestic, regional and international decisions, maintained by the International Reproductive and Sexual Health Law Program, Faculty of Law, University of Toronto English and Spanish online.
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Compiled by the Coordinator of the International Reproductive and Sexual Health Law Program, reprohealth*law at utoronto.ca For Program publications and resources, see our website, online here. TO JOIN THIS BLOG: enter your email address in upper right corner of this webpage, then check your email to confirm the subscription.
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