The High Court's hearing of an appeal by two anti-abortion activists has concluded with an argument about whether one had actually engaged in political communication.
Both were convicted and fined for protesting too close to abortion clinics in Melbourne and Hobart and have turned to the High Court on the basis that the Tasmanian and Victorian state legislation infringed their right of political communication.
Kathleen Clubb, a mother of 13, was convicted of breaching the Victorian law in 2016 and fined $5000.
Queenslander John Preston was convicted of three breaches of the Tasmanian law in 2014 and 2015 and fined $3000.
Barrister Guy Reynolds SC, who represents both, said he could not say whether Ms Clubb had engaged in political communication when she offered a pamphlet to a couple outside the East Melbourne Fertility Control Clinic in August 2016.
"This all about intention. There has been some form of unspecified communication for a purpose but we know not what is involved in that communication," he said.
Mr Reynolds said there was no evidence from the couple and Ms Clubb made no admissions on her arrest.
"That is why I can't say my client has engaged in political communication," he said.
"My client asserts that she is entitled to remain silent and at the end of the crown case if it hasn't been proved or there isn't a prima facie case that it's political, then she succeeds. She has absolutely no onus, evidential or legal, on the question of 'political'."
Mr Reynolds said material in the case of Mr Preston showed fairly clearly there was political discussion.
He was charged on three occasions, twice in September 2014 and again in April 2015, with handing out leaflets and holding placards approaching a woman outside the Specialist Gynaecology Centre in Hobart.
Commonwealth solicitor-general Stephen Donaghue QC said the burden imposed by the safe access laws on the implied freedom of political communication of protesters was slight.
"Ms Clubb wishes to challenge the law under which she was convicted on the basis that it unduly burdens political communication even though she did not herself engage in political communication of the constitutionally protected kind," he said.
Queensland solicitor-general Peter Dunning QC said the burden was slight. Queensland doesn't yet have legislation creating safe access zones around abortion clinics but it's considering it.
Jeremy Kirk SC, appearing behalf of the NSW Attorney General, said NSW had safe access zone legislation similar to Victoria. That came into affect in June.
"We would not come anywhere near saying that the laws here were grossly disproportionate .... in terms of the burden on the freedom," he said.
High Court Chief Justice Susan Kiefel reserved the decision of the court.
