On 10 April 2019, the High Court unanimously rejected the appellants' challenges to Victorian and Tasmania laws which prohibit certain communications and activities in relation to pregnancy termination in 'access zones' around premises at which pregnancy terminations are performed.
In Victoria and Tasmania, certain communications in relation to pregnancy termination (abortion) are prohibited within a radius of 150 metres from premises at which abortions are provided. The relevant prohibitions are as follows:
- in Victoria, a person is prohibited from communicating in relation to abortions in a manner able to be seen or heard by persons accessing or attempting to access premises at which abortions are provided, if the communication is reasonably likely to cause distress or anxiety (s 185D of the Public Health and Wellbeing Act 2008 (Vic), the Victorian provision);
- in Tasmania, a person is prohibited from engaging in protests in relation to terminations that are able to be seen or heard by a person accessing premises at which terminations are provided (s 9(2) of Reproductive Health (Access to Terminations) Act 2013 (Tas), the Tasmanian provision).
Each of the appellants were convicted of an offence under these provisions, Mrs Clubb in Victoria and Mr Preston in Tasmania. The appellants appealed their convictions, including on the ground that the provision under which they were convicted was constitutionally invalid because it burdens the freedom of communication on governmental and political matters which is implied in the Constitution. In each appeal, the ground of appeal related to the implied freedom of communication on governmental and political matters was referred to the High Court.
The issue for determination by the High Court was whether the prohibitions on communication was justified by reference to a legitimate purpose.
A majority of the Court dismissed each of the appeals. The lead judgment was written by the Chief Justice, with Bell and Keane JJ joining those reasons. Nettle J agreed with the lead judgment, but provided separate reasons, thus forming the majority.
In relation to the Victorian provision, the majority found the prohibitions were justified by a legitimate purpose, it being: the protection of the safety, wellbeing, privacy and dignity of persons accessing lawful medical services. The same purpose was cited as justification for the Tasmanian provision, with the addition of the purpose of ensuring unimpeded access to medical services.