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High Court Judgments

High Court Judgments

By Andrew Yuile

Judgment 

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Constitutional law

Implied freedom of political communication

Kathleen Clubb v Alyce Edwards; John Graham Preston v Elizabeth Avery [2019] HCA 11 (10 April 2019) concerned the validity of Victorian and Tasmanian laws prohibiting communications and protests near abortion clinics. Kathleen Clubb was convicted of an offence under s185D of the Public Health and Wellbeing Act 2008 (Vic), which prohibits a person from communicating in relation to abortions to persons accessing or attempting to access premises where abortions are provided, if the communication is reasonably likely to cause distress or anxiety. John Preston was convicted of an offence under s9 of the Reproductive Health (Access to Terminations) Act 2013 (Tas), which prohibits protests in relation to terminations that are able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided. Both appellants argued that the relevant sections impermissibly burdened the freedom of political communication about governmental matters implied into the Commonwealth Constitution.

In relation to the Victorian Act, Gageler J, Gordon J and Edelman J held that the validity of the section should not be decided. Ms Clubb had not contended that her communication was political. Gageler J held that in the absence of appropriate facts, the validity of the section should not be decided.

Gordon J held to the same effect and also held that s185D would be severable from a case with facts involving political communication. Edelman J also held that s185D was severable. Their Honours dismissed the Clubb appeal for those reasons. The rest of the Court held that s185D of the Victorian Act burdened the implied freedom but was justified by the legitimate purposes of the provisions, being the protection of the safety, wellbeing, privacy and dignity of persons accessing the relevant premises. The whole Court held that s9 of the Tasmanian Act burdened the implied freedom but was justified by the same legitimate purposes as the Victorian Act. Kiefel CJ, Bell and Keane JJ jointly; Gageler J separately dismissing the Clubb appeal because the appellant had not engaged in political communication, and concurring on the Preston appeal; Nettle J separately concurring with the plurality in both appeals; Gordon J separately dismissing the Clubb appeal because the appellant had not engaged in political communication and because s185D was severable, and concurring on the Preston appeal; Edelman J separately dismissing the Clubb appeal because s185D was severable, and concurring on the Preston appeal. Appeals removed from the Magistrates Court (Vic) and the Magistrates Court (Tas) dismissed.

Native title

Extinguishment of rights – definition of “leases”

In Tjungarrayi v Western Australia; KN (deceased) and Others (Tjiwarl and Tjiwarl #2) v Western Australia [2019] HCA 12 (17 April 2019) the High Court considered whether petroleum exploration permits and mineral exploration licences came within the definition of “leases” within s47B(1)

(b)(i) of the Native Title Act 1993 (Cth). In each appeal, the appellants made a native title claim, including over areas of vacant Crown land. In each claim, the traditional laws and customs acknowledged and observed by the claim group in relation to the claim area conferred rights of exclusive possession. However, those rights were extinguished by acts of partial extinguishment prior to the enactment of the Native Title Act. Generally, extinguishment of rights is permanent. However, s47B(1)(b)(i) relevantly provides that historical acts of extinguishment are to be disregarded for the purposes of a claim over vacant Crown land, unless the area is covered by a “lease”. The issue for the High Court was whether a petroleum exploration permit granted under the Petroleum and Geothermal Energy Resources Act 1967 (WA) and a mineral exploration licence granted under the Mining Act 1978 (WA) were “leases” within s47B. The trial judge held they were not. The Full Federal Court disagreed, relying on s242(2) of the Native Title Act. That section extends the meaning of “lease” in certain circumstances, and relevantly provides that “[i]n the case only of references to a mining lease, the expression lease also includes a licence . . . or an authority”.

A majority of the High Court held that s242(2) was engaged only where the operative provision of the Native Title Act contains an express textual reference to a “mining lease”. Section 47B(1)(b)(i) did not contain such a reference and so s242(2) could not apply. It followed that the petroleum exploration permit and mining exploration licence could not be “leases”. Kiefel CJ, Bell, Keane and Edelman JJ jointly; Gageler J, Nettle J and Gordon J separately concurring. Appeal from the Full Federal Court allowed. 

Andrew Yuile is a Victorian barrister, ph (03) 9225 7222, email ayuile@vicbar.com.au. The full version of these judgments can be found at www.austlii.edu.au.


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