High Court of Australia

Clubb v Edwards [2019] HCA 11

Preston v Avery

10 Apr 2019

Case Number: M46/2018 H2/2018

Before

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ

Catchwords

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

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

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

Interpretation of Legislation Act 1984 (Vic) – s 6.

Public Health and Wellbeing Act 2008 (Vic) – ss 185A, 185B, 185C, 185D, 185E.

Reproductive Health (Access to Terminations) Act 2013 (Tas) – s 9.
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