The case of Clubb v Edwards, and a related Tasmania case, Preston v Avery, has sparked widespread interest and the High Court decision will have national impact.
In this case, the High Court is dealing squarely with a constitutional question. Safe access zone laws put physical limits on anti-abortion activity around clinics. The court has been asked to consider to what extent, if any, the state-based safe access zone laws burden constitutionally implied rights of political communication.
In Victoria, safe access zone laws were put in place under public health legislation and prohibit anti-abortionists from expressing their views within 150 metres of an abortion clinic. These laws were aimed at better protecting the safety, wellbeing, privacy and dignity of women and their partners seeking access to abortion services. One only needs to go for a walk down Victoria Parade in East Melbourne to see the laws in practice. A stark line with the number “150 metres” has been painted on the footpath to indicate this boundary.
The issue of how to balance the reproductive rights, safety and privacy of those seeking fertility control services against the activities of anti-abortionists is not new. Victoria’s safe access zone laws were introduced following a 2015 Supreme Court challenge by the East Melbourne clinic. In that case, Maurice Blackburn, together with the Human Rights Law Centre, commenced legal proceedings in the Supreme Court of Victoria on behalf of the clinic against the Melbourne City Council, seeking orders compelling the council to stop the ongoing harassment and intimidation of staff and patients entering the clinic. The 2015 court challenge was unsuccessful but legislative reform soon followed.
This current High Court case has the potential to challenge those reforms, in Victoria and interstate. The court has been asked to examine the balance of these competing interests. It is a relatively rare instance of the High Court adjudicating a matter where human rights are front and centre, albeit under the rubric of constitutional protections.
The human rights sector has engaged strongly with the matter. Notably, the High Court has allowed a number of human rights organisations to participate in the case as amicus curiae, or as friends of the court. The court has accepted written submissions from Maurice Blackburn, acting for the East Melbourne Fertility Control Clinic, the Castan Centre for Human Rights Law and the Human Rights Law Centre. The inclusion of amicus curiae parties has enabled human rights experts to provide substantial assistance to the court; assistance informed by both a practical understanding of the rights of groups affected and in-depth knowledge of human rights laws and principles. It will be interesting to see what weight the court gives to these submissions.
In addition to the engagement of the human rights community, Attorney-General’s offices across the country have exercised their rights to intervene in the matter. This is because many states have either recently passed safe access zone legislation, or they are looking at doing so. The states are understandably keen to preserve the operation of their laws and the proportionate and necessary protections they provide.
Given the public interest in the matter, all submissions have been made publicly available on the High Court website. This will be a significant decision. It has the potential to clarify, and perhaps advance, the way Australian law balances the reproductive rights of women with the rights of anti-abortion activists.
Jacinta Lewin is a senior associate in Maurice Blackburn’s Social Justice Practice representing the Fertility Control Clinic. She was previously a senior legal adviser at the Victorian Equal Opportunity and Human Rights Commission.