Clubb v Edwards; Preston v Avery [2019] HCA 11
10 April 2019 – Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
In brief: The High Court dismissed the appeal in Clubb v Edwards. Kiefel CJ, Bell, and Keane JJ and Nettle J held that the Victorian prohibitions on protests within 150m of premises at which abortions are provided were valid as they do not impermissibly burden the implied constitutional freedom of political communication. Gageler J, Gordon J and Edelman J in separate judgments held that the provision could be read down or severed and so there was no need to consider the constitutional issue. The High Court unanimously dismissed the appeal in Preston v Avery holding that the equivalent Tasmanian prohibition was valid as not impermissibly burdening the implied constitutional freedom of political communication.
The test of invalidity
The test of invalidity for impermissibly burdening the implied constitutional freedom of communication about matters of government and politics is that set out in McCloy v New South Wales (2015) 257 CLR 178 (McCloy) applying Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange) ([4]-[5], [158], [435]) as follows:
1. “Does the law effectively burden the implied freedom in its terms, operation or effect?
2. If “yes” to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?
3. If “yes” to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?”
Justice Gageler held in relation to the Lange-Coleman-McCloy-Brown test the three staged structured proportionality analysis is simply an “intellectual tool” ([158]). Justice Gordon cautioned against reliance on a structured proportionality analysis in all cases concerning the implied freedom ([389]-[404]).
Justice Edelman was of the view that structured proportionality is a useful analytical tool, but one which requires restraint at each stage of its application ([408]). Justice Edelman notes the difficulties with the test of “reasonably appropriate and adapted” and suggests that a three stage proportionality test is more useful. In Australia proportionality requires the law to be suitable, necessary, and adequate in the balance between the purpose of the law and burden imposed on the freedom ([461]-[463]). Whether a provision is necessary turns on whether there were “alternative, reasonably practicable, means of achieving the same object but which have a less restrictive effect on the freedom” ([476]) i.e. an alternative which is “obvious and compelling” ([478]). Justice Edelman notes that “Parliament is generally in a better position than the courts to assess whether alternative means that have a less restrictive effect on the freedom might not achieve the legislative purpose as significantly or effectively” ([478]). The adequacy in the balance stage of the proportionality test must be “highly constrained” so that it is made “consistently with the limits of the judicial function”([495]). A law will only be inadequate in the balance where it involves “gross or manifest lack of balance between, on the one hand, the foreseeable magnitude and likelihood of the burden upon freedom of political communication and, on the other hand, the importance of the purpose” ([497]).
The Clubb Appeal
Clubb - Overview of the implied freedom
Chief Justice Kiefel, Bell and Keane JJ (the plurality) wrote that the implied freedom of political communication limits the government’s power to regulate communication in relation to matters of government and politics, but “[i]t does not confer a right to communicate a particular message in a particular way”. Statute may abrogate the common law right to protest or demonstrate. The issue is whether that statutory abrogation is valid ([8]). The plurality also noted that “[t]he implied freedom is not a guarantee of an audience; a fortiori, it is not an entitlement to force a message on an audience held captive to that message” ([98]).
Justice Nettle considered that the constitutional freedom of political communication is implied from ss7, 24, 64 and 128 of the Constitution and related sections and arises only to the extent necessary to give effect to those provisions. It is a constraint on legislative power and not a personal right of free speech, unlike the United States First Amendment right ([247]). Justice Edelman agreed ([453]). Justice Nettle noted that “although abortion is a subject matter of political controversy, it does not follow that all communications about abortion are political” ([249]). Justice Nettle held “[i]t is a freedom to communicate ideas regarding matters of political controversy to persons who are willing to listen. It 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” ([259]).
Clubb - Procedural history & threshold issue Mrs Clubb, the appellant in the Clubb v Edwards proceedings (the Clubb Appeal) challenged s185D of the Public Health and Wellbeing Act 2008 (Vic) (Public Health Act), which prohibits certain behaviour within a safe access zone (i.e. within a 150m radius of premises at which abortions are provided). “Prohibited behaviour” is defined in s185B(1) to include ([20]-[23]):
“(a) in relation to a person accessing, attempting to access, or leaving premises at which abortions are provided, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person by any means; or
(b) subject to subsection (2) communicating by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided and is reasonably likely to cause distress or anxiety; or
(c) interfering with or impeding a footpath, road or vehicle, without reasonable excuse, in relation to premises at which abortions are provided; …”
Mrs Clubb was convicted for breaching the prohibition for handing over an anti-abortion pamphlet to dissuade a couple from having an abortion, it was not addressed to law or policy makers ([11]). Mrs Clubb appealed to the Supreme Court of Victoria and parts of the appeal were removed to the High Court.
The Commonwealth Attorney General, intervening, argued that the Court should not determine the matter as there was no evidence that Mrs Club’s conduct involved political communication [25]. The plurality noted that:
“A discussion between individuals of the moral or ethical choices to be made by a particular individual is not to be equated with discussion of the political choices to be made by the people of the Commonwealth as the sovereign political authority. That is so even where the choice to be made by a particular individual may be politically controversial” ([29]).
The plurality considered that prohibiting this conduct does not interfere with the implied freedom ([31]). The Court will not normally determine a constitutional question which is merely hypothetical ([32]-[35]). However, in the circumstances “[i]t is expedient in the interests of justice to proceed to determine whether Mrs Clubb is entitled to have her conviction set aside on the grounds asserted by her in this Court” ([40]).
Justice Nettle noted that ordinarily, the Court will not consider whether a provision can be read down or severed unless and until the Court has first concluded that according to the natural and ordinary meaning of the law construed in context, having regard to its purpose, the law would be invalid without one or more provisions being read down or severed ([220]). In some circumstances, a challenge to the constitutional validity of a provision can be disposed of by reading down or severing the provision ([230]). The constitutional validity of s185D of the Public Health Act to the extent that it prohibits prohibited behaviour as defined in para (b) should be determined because it is not academic or hypothetical. Mrs Clubb’s conviction will either be quashed or affirmed depending on the outcome ([232]). Disposing of the matter on the basis of the threshold question would cause practical injustice and offer little practical ([238]-[242]).
Justice Gageler held that Mrs Clubb’s challenge to her conviction under the Public Health Act is “doomed to fail” given that she accepts the offence provision should be read in accordance with s6(1) of the Interpretation of Legislation Act 1984 (Vic) to exclude political communication if the implied constitutional freedom is infringed in its application to political communication ([131]-[132]). Justice Gageler agreed with Gordon J that the Court should not determine that issue because answering the question will not affect Mrs Clubb’s criminal liability ([133]ff). Justice Gageler distinguishes between severing and reading down a statutory provision ([139]) noting:
“it is worse than nonsensical to require a court to step through each of the three stages of the Lange-Coleman-McCloy-Brown analysis only to dismiss the challenge on the basis that the statute has a severable application to the circumstances of the case. …” ([146]).
Justice Gageler held that there is nothing in the text or context of the Public Health Act to indicate a contrary intention to the Interpretation Act presumption favouring severance of the offence provision ([149]). The offence provision applies to the conduct proved by the prosecution unless the Court is presented with sufficiently probative material to satisfy it that the conduct was political communication and therefore outside the scope of the provision ([152]). No such material was presented to the Court ([153]).
Justice Gordon considers that this is a case in which it is appropriate to consider severance by way of reading down the prohibition as a threshold question for two reasons. First, Mrs Clubb does not argue she was engaged in political communication. Secondly, if the prohibition burdened political communication, it could as a matter of statutory construction be severed ([330]). Justice Gordon notes that “[i]f a provision is invalid because it infringes the implied freedom and is not severable, then the provision is invalid in its entirety. The invalid provision could not be enforced against any person, regardless of the conduct or circumstances which led to the alleged breach of that provision. … ” ([333]).
Justice Gordon agreed that the relevant severance clause is s6 of the Interpretation of Legislation Act 1984 (Vic) ([339]). Her Honour found that there was no contrary statutory intention in relation to s185B of the Public Health Act and that para (b) of the definition of “prohibited behaviour” in s185B(1) could be read down as not extending to communication on governmental or political matters if necessary ([341]). However, due to the broad protections created by Pt 9A, of which s185B forms part, it cannot have been the intention of Parliament that if conduct in para (b) were invalid in its application to communication on governmental or political matters that the paragraph should be struck out in its entirety ([345]).
Justice Edelman considered it unnecessary to determine whether the Victorian provisions were invalid because even if they were, the provisions would be “severed” (or in other words “disapplied”) from circumstances of political communication and applied to Mrs Clubb ([410]-[411]). According to Edelman J, there were insufficient findings of fact that Mrs Clubb’s conduct involved political communication ([413]). Justice Edelman distinguished between the concepts of “reading down”, “severance” and “partial disapplication” ([416]-[431]). Justice Edelman held that the Public Health Act could not be read down or severed ([434]-[437]). However, s185D could be partially disapplied if necessary to avoid invalidity because that would not alter the policy or scheme of the legislation ([438], [443]). “If a provision is to be disapplied from particular facts or circumstances then unless the court is satisfied of the presence of those facts or circumstances its duty is to apply the legislation” ([442]). There were insufficient facts for the provision to be disapplied to Mrs Clubb ([441]).
Clubb – Burden Chief Justice Kiefel, Bell and Keane JJ held that the provision burdens the implied freedom ([43]). Justice Nettle was of the view that “it is not apparent that the proscription of prohibited behaviour within that area has any real effect on the implied freedom” ([250]). Rather, the proscription significantly reduces the ability of individuals like Mrs Clubb of influencing particular individuals to not abort a pregnancy. A woman’s decision to abort a pregnancy “is an apolitical, personal decision informed by medical considerations, personal circumstances, and personal religious and ethical beliefs, qualitatively different from a political decision as to whether abortion law should be amended” ([252]). The practical effect of the prohibition of prohibiting political protests in the 150m radius, and thus burdening the implied freedom, is qualitatively significant even if quantitatively insignificant ([255]).
Clubb - Legitimate purpose
At [51] the plurality write: “Within the present constitutional context, the protection of the dignity of the people of the Commonwealth, whose political sovereignty is the basis of the implied freedom, is a purpose readily seen to be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. Thus, when in Lange the Court declared that “each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia”, there was no suggestion that any member of the Australian community may be obliged to receive such information, opinions and arguments.”
Chief Justice Kiefel, Bell and Keane JJ held that the prohibition does not only affect those expressing anti-abortion views so does not discriminate against one side of the debate ([55]-[56]). Section 185D prohibits conduct that is “reasonably likely to cause distress or anxiety”, which is more than simply causing “discomfort” or “hurt feelings” ([58]).
“[S]uggestions to the effect that political speech cannot be truly free if it can be silenced for no reason other than to spare the feelings of those spoken about. … have no attraction in a context in which persons attending to a private health issue, while in a vulnerable state by reason of that issue, are subjected to behaviour apt to cause them to eschew the medical advice and assistance that they would otherwise be disposed to seek and obtain” ([59]).
The plurality was of the view that the provision is for a legitimate purpose namely, “protection against attempts to prevent the exercise of healthcare choices available under laws made by the Parliament” and further it “prevents interference with the privacy and dignity of members of the people of the Commonwealth through co-optation as part of a political message” ([60]).
Justice Nettle found a legislative purpose of securing “the protection of the safety, wellbeing, privacy and dignity of the people of Victoria is an essential aspect of the peace, order and good government of the State” and is consistent with the constitutionally mandated system of representative and responsible government ([258]).
Clubb - Reasonably appropriate and adapted
Chief Justice Kiefel, Bell and Keane JJ noted the McCloy test requires that any effective burden on the freedom be justified no matter how slight ([64]). The role for the Court is to determine whether a lack of balance in the pursuit of the law’s object means it can be seen to be irrational, and ultimately whether the burden is “undue” ([66]-[67]). For a law to be a rational response to a perceived mischief, and be reasonably appropriate and adapted to its purpose, the effect of the law must be proportionate to the end sought ([70], [74]). It is necessary to examine the nature and extent of the burden (i.e. its suitability) ([75]).
The plurality distinguished the current proceedings from Brown v Tasmania (2017) 261 CLR 178 for the reason that there was no evidence to demonstrate the special efficacy of on-site protests in anti-abortion campaigns unlike in relation to forestry matters ([81]). Another distinguishing feature was that the prohibited activity involved an attack on the privacy and dignity of others here and not in the context of forestry protests ([82]). The plurality considered “[w]ithin those zones, the burden on the implied freedom is justified by the very considerations of the dignity of the citizen as a member of the sovereign people that necessitate recognition of the implied freedom” ([82]). Outside this zone people have an unimpeded ability to express their views about abortions ([83]). The law in dispute is suitable as the prohibition has a rational connection to its purpose of promoting public health and of protecting the privacy and dignity of women accessing abortion services ([84]-[85]). The communication prohibition meets the third step of the McCloy test [102].
Justice Nettle was of the view that three-part proportionality test (suitability, necessity and adequacy in balance) should be applied in accordance with a number of criteria ([266]). Justice Nettle draws attention to the risk that in considering necessity in the proportionality test, the Court may pass from exercising judicial power to legislative power ([267]). The test of necessity does not allow the Court to assess “the relative merits of competing legislative models” ([269]). Adequacy of balance is to be assessed by considering whether the burden on the implied freedom is “grossly disproportionate or manifestly excessive” in comparison to the legitimate purpose ([270], [272]). “[T]he proscription of conduct of the kind referred to in para (b) of the definition of prohibited behaviour is rationally connected to the achievement of the purpose of securing the health and wellbeing of women accessing premises at which abortions are provided and is thus suitable in the relevant sense” ([276]).
Justice Nettle noted that an impugned provision is likely to be considered unnecessary “[i]f an obvious and compelling alternative of significantly lesser burden on the implied freedom” exists ([277]). None of Mrs Clubb’s suggested alternatives to the prohibition in para (b) of the definition of prohibited behaviour convinced Nettle J there were obvious and compelling alternatives ([285]-[291]). Justice Nettle was of the view that the proscription of conduct as defined in para (b) was adequate in its balance ([293]).
Clubb – Conclusion
The plurality held that the law is valid and the appeal should be dismissed ([7], [103]).
Justice Nettle agreed ([294]).
Justice Gordon dismisses the appeal ([326], [349]). Justice Gageler dismissed the appeal holding at [152] that:
“Whether valid in its entirety or invalid and severable in its application to political communication, the statutory prohibition must be treated by a court as applicable according to its terms to conduct proved by the prosecution absent the court being apprised of material sufficiently probative for the court to be satisfied that the conduct amounted to political communication.”
Justice Edelman found the Public Health Act cannot be read down or severed but could be partially disapplied if necessary. His Honour dismissed the appeal because there were no facts or circumstances on which the Court could disapply the provision to Mrs Clubb’s conduct ([442]).
The Preston Appeal
Preston – Procedural history Mr Preston, the appellant in the Preston v Avery proceedings challenged s9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) (Reproductive Health Act) which prohibits “prohibited behaviour” within an access zone, being 150m from premises at which abortions/terminations are provided. “Prohibited behaviour” is defined in s9(1)(b) as including “a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided” and in (c) “footpath interference in relation to terminations” ([110]). Mr Preston was convicted of contravening the prohibition for standing outside a Specialist Gynaecology Centre holding placards displaying words and images expressing his opposition to abortion, including statements from international human rights declarations ([106]). Mr Preston appealed to the Supreme Court of Tasmania. Parts of his appeal were removed to the High Court.
This was political communication and engagement in a “protest” within the meaning of the Reproductive Health Act ([154]-[155]). Justice Gageler considered that whether the prohibition on protest in the Reproductive Health Act infringes the implied constitutional freedom of political communication was a matter that the High Court should determine ([156]). In upholding the validity of the legislation, Nettle J considered that the word “protest” in s9 of the Reproductive Health Act means “expressing dissent from or support of terminations by means of a public demonstration in a manner able to be seen or heard by a person accessing or attempting to access premises at which terminations are provided” and is not limited to expressing opinions in opposition to terminations ([299]). The relevant offence does not specify the mental element and so a general intent to do the act charged is required ([300]).
Justice Gordon notes that the “the freedom does not exist or operate in a vacuum”. Her Honour continues “a democracy has many different freedoms, some of which conflict with each other. To take just one example, the entitlement to protest, if exercised without restraint, can interfere with other people’s privacy and expose them to abuse” ([357]). Justice Gordon considered the meaning of “protest” in the Access to Terminations Act and whether it was “political” ([363]). Her Honour considered that “[f]or a “protest” to be political, there needs to be a nexus between the protest (the communication) and “government or political matters”. And even if the control of an activity is politically controversial, not every communication about that activity will be political communication in the “constitutional sense”” ([363]).
Preston – Burden
The plurality considered that the differences between the Tasmanian and Victorian prohibitions did not lead to a different result in the Preston appeal ([116]). The Tasmanian provision prohibits “protests”, amongst other things, which “is apt to encompass the dissemination of a message “in relation to terminations” that concerns governmental or political matters” and thus burdens the implied freedom ([119]).
Justice Gageler noted the following features of the protest prohibition: it encompasses peaceful demonstration and silent vigils; it is content specific; “a protest on the subject of abortion is inherently political”; it is site-specific; it is time specific in its practical operation; while view-point neutral the practical effect of the prohibition is to curtail to a greater extent protests by those who disapprove of the availability of abortion services than those who approve ([163]-[171]). His Honour concluded that “the burden which the protest prohibition places on political communication is direct, substantial and discriminatory” ([174]).
Justice Nettle was of the view that while the provisions under consideration in the Clubb and Preston appeals differ, their practical effect is much the same in that they prohibit virtually any form of protest about abortions within the access zone that persons attending the premises could see or hear that would be likely to cause distress or anxiety to these persons ([303]). The Tasmanian prohibition may, like the Victorian provision, impact the implied freedom of political communication qualitatively but, there is nothing to suggest that it would have any quantitative effect as protestors are free to protest anywhere other than the access zone ([304]).
Justice Gordon considered that the burden on political communication created by the protest prohibition is insubstantial ([370]). Importantly, it does not target the source of political communication ([373]). Justice Gordon held:
“A law is not discriminatory, in a constitutional sense, because its practical effect might be – from time to time and depending upon the actions of a person – to restrict a person from expressing a particular point of view on a particular subject matter, which may or may not be political, at a time and place and in a particular manner” ([374]).
Justice Gordon also noted that the prohibition is content and viewpoint neutral, and put aside the arguments about the importance of on-sight protests ([375]-[376]). Her Honour held that the prohibition on protests in relation to abortions may impose a burden on political communication ([368]).
Justice Edelman held that the implied freedom extends beyond political communication by way of oral words to “signs, symbols, gestures and images” and thus, to protests ([455]). “Protest is almost inextricably linked with matters of political and governmental content” ([456]). Mr Preston’s communications were clearly political so the question of disapplication cannot be considered as a threshold question ([456]).
Preston – Legitimate Purpose
Chief Justice Kiefel, Bell and Keane JJ held that despite the Reproductive Health Act not containing a statement of objects, it clearly has the purpose of “protecting the safety, wellbeing, privacy and dignity of persons accessing premises where terminations are provided”, which is a legitimate purpose ([120]). The prohibition applies equally to pro and anti-abortion protests ([123]).
Justice Gageler held that it is not sufficient simply to consider whether there is a rational connection between the prohibition and a constitutionally permissible purpose ([176]). To be justified “the burden imposed by the prohibition on political communication needs to be in pursuit of a compelling governmental purpose and needs to be no greater than is reasonably necessary to achieve that purpose” ([185]). Justice Gageler held:
“In my opinion, the purpose of the protest prohibition as an element of s9(2)’s proscription of “prohibited behaviour” within an “access zone” is best identified as being to ensure that women have access to premises at which abortion services are lawfully provided in an atmosphere of privacy and dignity. The purpose so identified is unquestionably constitutionally permissible and, by any objective measure, of such importance as to be characterised as compelling” ([197]).
Justice Nettle held:
“Although views differ as to the moral and ethical propriety of the intentional termination of human pregnancy, it is now a lawful medical procedure in Tasmania. Accordingly, a purpose of improving the health and wellbeing of women by enabling their access to a lawful termination service, privately, with dignity and without harassment, stigma or shame, is a purpose which is consistent with the system of representative and responsible government mandated by the Constitution” ([307]).
In Gordon J’s view, the purpose of the protest prohibition is to provide persons lawfully accessing health services under the Reproductive Health Act with a safe passage to premises at which such services are provided. Its purpose is unrelated to political communication. It is a legitimate and permissible purpose ([380]-[381]). Justice Edelman noted that in its statutory context, including the absence of an express objects provision, “the purpose of the protest prohibition is to ensure that women of any age seeking access to medical termination services can do so in safety and without fear, intimidation or distress”. This is a legitimate purpose ([457]-[459]).
Preston - Reasonably appropriate and adapted
The plurality concluded that the prohibition is rationally connected to the above purpose ([124]). Their Honours noted “[t]he burden on political communication imposed by the protest prohibition is slight, in that, to the extent that it does affect political communication, it does so only within access zones, and without discriminating between sources of protest” ([127]). Chief Justice Kiefel, Bell and Keane JJ held that the burden on political communication by the restriction on protests is not manifestly disproportionate to the law’s legitimate purpose ([128]).
Justice Gageler concluded that:
“The 150 m reach of the protest prohibition around premises at which abortion services are provided must be close to the maximum reach that could be justified as appropriate and adapted to achieve the protective purpose of facilitating access to those premises in a manner compatible with maintenance of the constitutionally prescribed system of government. Nevertheless, I am satisfied that confining the protest prohibition within that 150 m limit leaves enough opportunity for protests to be held at other locations meaningfully proximate to the premises to warrant the conclusion that the burden that the protest prohibition places on political communication, although not insubstantial, is not undue” ([213]).
Justice Gageler cautioned that “Australian courts have no constitutional mandate to tinker with legislative design in order to improve on the product of democratic choice”. However, “Australian courts do have a duty ensure that such burden as a particularly democratically chosen legislative restriction places on political communication does not undermine the constitutionally prescribed system of government which made that democratic choice possible” ([207]).
Justice Nettle noted that the provision is suitable in the relevant sense because there is a rational connection between it and the purpose of “advancing the health and wellbeing of women seeking terminations of their pregnancies” ([313]). Justice Nettle did not accept Mr Preston’s arguments that the provision was unnecessary becasue obvious and compelling alternatives existed that would burden the implied freedom of political communications less significantly ([316]-[323]). The law is adequate in its balance ([324]).
Justice Gordon held that while the provision burdens the implied freedom of political communication, it is not a substantial burden, is directed to a legitimate purpose and the means adopted to achieve that purpose are compatible with the maintenance of the constitutionally prescribed system of representative and responsible government ([355]). Citing Nationwide News, Gordon J wrote, “[t]he balancing of the protection of other interests against the freedom to discuss governments and political matters is, under our Constitution, a matter for the Parliament to determine and for the Courts to supervise” ([384]). Justice Gordon concluded that the provision was appropriate and adapted to advance a legitimate purpose in line with the maintenance of the constitutionally prescribed system of government ([387]).
According to Edelman J, the proportionality test was satisfied in the Preston appeal and the legislation is valid ([409]). The protest prohibition is suitable for its purposes ([475]). Justice Edelman held that the burden imposed by the prohibition is “deep” and “wide”. Alternatives such as reducing the size of the access zone or only prohibiting communications that are reasonably likely to cause distress or anxiety might reduce the burden, but it’s unlikely that these would serve the purposes of the Reproductive Health Act to the same or a similar extent as the provision under question and thus, are not obvious or compelling ([485]). The burden on the freedom of political communication arising from the protest prohibition could not be said to be grossly and manifestly disproportionate to the extremely important purpose the provision served ([501]).
Preston – Conclusion
The High Court unanimously dismissed the Preston appeal ([129], [214], [325], [326], [355], [405] and [509]).
Read the decision on the High Court of Australia website.
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