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Published online by Cambridge University Press: 01 January 2025
This article examines the High Court of Australia’s treatment of the concept of dignity as both a value animating the implied freedom of political communication and as a legitimate reason to limit the exercise of that freedom. It does so through the lens of Clubb v Edwards, Preston v Avery, where the Court found that laws establishing safe access zones around abortion clinics were compatible with the implied freedom. The use of dignity as a prism through which to view the interests at stake in both abortion and speech cases is a familiar feature of developments abroad, and the Court has laid the foundations for recognition of dignity as one of the axiological bases of the implied freedom in a manner that generally emphasises individual autonomy over other conceptions of dignity that might be described as operating as a constraint on behaviour to protect other interests. Yet, while the Court has used dignity as the common measure with which to commensurate competing claims, it has yet to convincingly address concerns regarding incommensurability that attend the balancing stage of proportionality review, not to mention the potential objection that its reliance on dignity is not properly grounded in the text and structure of the Constitution. In light of these issues, the role of dignity ought to be tethered to its central role in facilitating political participation so as to more clearly link the concept to the text and structure of the Constitution, and to identify what is at stake when women’s ability to access reproductive health care is impaired or denied.
The authors prepared submissions for the Castan Centre for Human Rights Law, which appeared as amicus curiae in Clubb v Edwards. We thank Heli Askola, Liz Campbell, Julie Debeljak, Patrick Emerton, Kathryn James and Maria O’Sullivan for helpful discussions and Antonia Glover for excellent research assistance.
1 M46/2018 & H2/2018, Clubb v Edwards & Anor, Preston v Avery & Anor [2019] HCA 11, 10 April 2019.
2 Public Health and Wellbeing Amendment (Safe Access Zones) Act 2015 (Vic) section 5, inserting Public Health and Wellbeing Act 2008 (Vic) part 9A; Reproductive Health (Access to Terminations) Act 2013 (Tas) section 9.
3 Briefly, safe access zones create a physical area around abortion clinics within which certain conduct is proscribed – relevantly including communication about abortion.
4 For a detailed discussion of this case, and safe access zones more broadly, see Ronli Sifris, Tania Penovic and Caroline Henckels, ‘Advancing Reproductive Rights Through Legal Reform: The Example of Abortion Clinic Safe Access Zones’ (2020) 43 University of New South Wales Law Journal 1078.
5 J Goldsworthy, ‘Functions, Purposes and Values in Constitutional Interpretation’ in Rosalind Dixon (ed), Australian Constitutional Values (Hart, 2018), 43, 44; E Arcioni and A Stone, ‘The Small Brown Bird: Values and Aspirations in the Australian Constitution’ (2016) 14 International Journal of Constitutional Law 60, 67.
6 Arcioni and Stone (n 5) 67; Rosalind Dixon, ‘Functionalism and Australian Constitutional Values’ in Rosalind Dixon (ed.), Australian Constitutional Values (Hart Publishing, 2018) 3, 13 (suggesting that dignity finds ‘at least some degree of weak support in the text and structure of the Australian Constitution’.)
7 (1992) 177 CLR 1 at 77.
8 Australian Capital Television v Cth 1992) 177 CLR 106 at 169, 174 per Deane and Toohey JJ; Theophanous v The Herald & Weekly Times (1994) 182 CLR 104 at 178–179 per Deane J; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 339 per Deane J, 383 per Toohey J.
9 Street v Queensland Bar Association (1989) 168 CLR 461 (section 117).
10 Sections 24, 25, 51(ii), 51(iii), 71, 80, 86, 88, 90, 92, 109, 116 and 118.
11 Street (n 9) 521–522 per Deane J.
12 See, for example, Paolo Carozza, ‘Human dignity in constitutional adjudication’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar, 2011) 459, 467.
13 E.g., among many others, Basic Law of Germany (1949) Article 1; Constitution of Greece (2008) article 2(1): Constitution for Bosnia and Herzegovina (1995) preamble; Constitution of Finland (2011) section 1; Constitution of South Africa (1995) article 1.
14 E.g. Constitution of India (1949), article 51A(e); Interim National Constitution of the Republic of the Sudan (2005), article 32(3); Constitution of Vietnam (1992) article 63.
15 See Adeno Addis, ‘Human Dignity in Comparative Constitutional Context: In Search of an Overlapping Consensus’ (2015) 2 Journal of International and Comparative Law 1, 16–17 (with further references).
16 E.g. Basic Law of Germany (1949). See, for a sceptical view on dignity as a right as opposed to a value, Conor O’Mahony, ‘There is no such thing as a right to dignity’ (2012) 10 International Journal of Constitutional Law 551.
17 Erin Daly, Dignity Rights: Courts, Constitutions, and the Worth of the Human Person (University of Pennsylvania Press, 2012).
18 E.g. Daly (n 17) 3–6, 20–23, 102.
19 It is generally accepted that rather than being an individual right, the freedom functions as a limitation on legislative power: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, and further emphasised e.g. in Brown v Tasmania (2017) 261 CLR 328, 466 [433] (Gordon J): ‘The implied freedom of political communication is not a personal right’.
20 See also, discussing US abortion cases, Reva B. Siegel, ‘Dignity and the Politics of Protection: Abortion Restrictions under Casey/Carhart’ (2008) 117 Yale Law Journal 1694, 1738–1739 (dignity as life, dignity-as-liberty (autonomy), and dignity as equality). More generally, Daly (n 17) divides the treatment of dignity into dignity as individuation (autonomy), dignity as the minimum necessities of life, and dignity as living without humiliation, and R. James Fyfe, ‘Dignity as Theory: Competing Conceptions of Human Dignity at the Supreme Court of Canada’ (2007) 70 Saskatchewan Law Review 1, refers to dignity-as-liberty (autonomy) and dignity-as-constraint. See further Neomi Rao, ‘Three concepts of dignity in constitutional law’ (2011) 86 Notre Dame Law Review 183.
21 To be clear, Clubb is not a case involving competing dignity as-autonomy and dignity-as-constraint claims. Rather, by addressing access to abortion clinics in practical terms through supressing the activity of anti-abortionists, Clubb involves the weighing of competing dignity-as-autonomy claims. Nevertheless, we explore this version of dignity due to its prominent role both in abortion and speech cases, and to compare this approach with that adopted in Clubb.
22 Immanuel Kant, Groundwork of the Metaphysics of Morals (HJ Paton trans., Harper & Row, 1964) 96: ‘Act so that you treat humanity, whether in our own person or in that of another, always as an end and never as a means only’.
23 See generally Daly (n 17). See also Ronald Dworkin, Taking Rights Seriously (Bloomsbury Publishing, 2013) 156 referring to dignity being comprised whenever a person is ‘forced, against [their] will, to devote an important part of [their] activity to the concerns of others,’ which might provide the basis for ‘a constitutional liberty of abortion, as an aspect of [womens’]… constitutional right to dignity’; John A Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton University Press, 1994) 16, suggesting that reproductive autonomy is of ‘central importance to individual meaning, dignity, and identity’.
24 Clubb (n 13) [49]-[50] (Kiefel CJ, Bell and Keane JJ), citing Aharon Barak, The Judge in a Democracy (Princeton University Press 2006) 86. The dignity-as-autonomy approach is also apparent in Brennan J’s judgment in a High Court decision concerning whether the sterilisation of a young disabled woman should be ordered under the guardianship jurisdiction. Brennan J held that ‘each person has a unique dignity which the law respects and which it will protect,’ and that respect for human dignity requires ‘that the whole personality be respected’: Secretary, Department of Health & Community Services v B (‘Marion’s Case’) (1992) 175 CLR 218, 267 (Brennan J).
25 Thornburgh v. American College of Obstetricians & Gynecologists 476 U.S. 747, 772 (1986) (Supreme Court of the United States); Planned Parenthood v. Casey 505 U.S. 833, 851 (1992) (Supreme Court of the United States); Stenberg v. Carhart 530 U.S. 914, 920 (2000) (Supreme Court of the United States). R. v. Morgentaler [1988] SCR 30, 166, 172 (Supreme Court of Canada); Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519 (Supreme Court of Canada) [136]; Winnipeg Child and Family Services (Northwest Area) v. D.F.G [1997] 3 S.C.R. 925 [37] (Supreme Court of Canada); F, A. L. s/ Medida Autosatisfactiva, Expediente Letra “F”, N° 259, Libro XLVI (13 March 2012) [16] (Supreme Court of Argentina); Sentencia T-009/09, 16 January 2009, headnote (Constitutional Court of Colombia); Exp. No. 02005-2009-PA/TC (Constitutional Tribunal of Peru); Decision 48/1998 (IX.23) AB [3(b)] (Constitutional Court of Hungary). See further Daly (n 17) 93; Donald Kommers, Edward Elgar, ‘Autonomy, Dignity and Abortion’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (2011) 441, 447, 454. See also Dale Carpenter, ‘Autonomy (of Individuals and Private Associations)’ in Mark Tushnet et al. (eds), The Oxford Handbook of the U.S. Constitution (Oxford University Press, 2015) 555, 567–570; Paola Bergallo and Agustina Ramón Michel, ‘Constitutional developments in Latin American abortion law’ (2016) 135 International Journal of Gynecology and Obstetrics 228, 230.
26 E.g. Thornburgh v. American College of Obstetricians & Gynecologists 476 U.S. 747, 772 (1986) (Supreme Court of the United States). See Daly (n 17) 92–93. See also Luis Roberto Barroso, ‘Here, There, and Everywhere: Human Dignity in Contemporary Law and in the Transnational Discourse’ (2012) 35 Boston College International and Comparative Law Review 331, 382–384; Kommers (n 25) 452.
27 Planned Parenthood v. Casey (n 25) 851; R. v. Morgentaler (n 25) 166 (Supreme Court of Canada).
28 Rodriguez v. British Columbia (Attorney General) 1993. 3 S.C.R. 519 [136] (Supreme Court of Canada); Winnipeg Child and Family Services (Northwest Area) v. D.F.G, 1997. 3 S.C.R. 925 [37] (Supreme Court of Canada).
29 Daly (n 17) 92–93. See also Barroso (n 29) 382–384.
30 Daly (n 17) 109.
31 See further Reva B. Siegel, ‘Dignity and sexuality: Claims on dignity in transnational debates over abortion and same-sex marriage’ (2012) 10 International Journal of Constitutional Law 355, 365; Christopher McCrudden, ‘Human Dignity and Judicial Interpretation of Human Rights’ (2008) 19 European Journal of International Law 655, 698.
32 E.g. Siegel (n 20) 1767–1796; Barroso (n 26) 353, 375–76; David Feldman ‘Human dignity as a legal value: Part 1’ (1999) Public Law 682, 699–700; Horst Dreier, ‘Human Dignity in German Law’, in Marcus Düwell et al. (eds), The Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives (Cambridge University Press, 2014) 375, 383; Paolo Carozza ‘Human dignity in constitutional adjudication’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar, 2011) 459, 460; Christoph Möllers, ‘Democracy and Human Dignity: Limits of a Moralized Conception of Rights in German Constitutional Law’ (2009) 42 Israel Law Review 416, 438.
33 Rao (n 20) 222–223, 231; Daly (n 17) 52; Fyfe (n 20) 5. Gerald Dworkin in The Theory and Practice of Autonomy (Cambridge University Press, 1988) 6 also notes that the concept of autonomy is likened to dignity, among other ideas, and contrasts this with paternalism (at 123): ‘There must be a violation of a person’s autonomy (which I conceive as a distinct notion from that of liberty) for one to treat another paternalistically. There must be a usurpation of decision making, either by preventing people from doing what they have decided or by interfering with the way in which they arrive at their decisions’.
34 Siegel (n 20); Rosalind Dixon and Martha Nussbaum, ‘Abortion, Dignity and a Capabilities Approach’, in Beverly Baines, Daphne Barak-Erez, Tsvi Kahana (eds), Feminist Constitutionalism (Cambridge University Press (2011) 64, 70; Mahlmann (n 27) 387.
35 39 BVerfGE I, 1975 [145], [146]; 88 BVerfGE 203, 1993 [377], [380] (Constitutional Court of Germany); Attorney-General v X [1992] 1 IR 1 [33]-[35] (Supreme Court of Ireland); Gonzales v Carhart 550 U.S. 124 (2007) (IV) (A) (Supreme Court of the United States).
36 See Steven J Heyman, Free Speech and Human Dignity (Yale University Press, 2008); Frederick Schauer, Free Speech: A Philosophical Enquiry (Cambridge University Press, 1982) 15–72); Guy E. Carmi, ‘Dignity Versus Liberty: The Two Western Cultures of Free Speech’ (2008) 26 Boston University International Law Journal 277.
37 Heyman (n 36); Rao (n 20) 212; Daly (n 17) 93–96; Robert Post, ‘Equality and Autonomy in First Amendment Jurisprudence ‘(1997) 95 Michigan Law Review 1517. See Cohen v California 403 U.S. 15, 24 (1971) (Supreme Court of the United States); R v Big M Drug Mart Ltd 1985] 1 S.C.R. 295, 346 (Supreme Court of Canada). See also RWDSU Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd [2002] 1 SCR 156, 172 (McLachlin CJ and LeBel J) (Supreme Court of Canada).
38 Carmi (n 36); Erin Daly, ‘Human Dignity in the Roberts Court: A Story of Inchoate Institutions, Autonomous Individuals, and the Reluctant Recognition of a Right’ (2011) 37 Ohio North University Law Review 381. A prime example is Germany, where the approach to dignity taken in constitutional review is one that is grounded in dignity-as-constraint rather than autonomy, including in freedom of expression cases. Even political speech, which receives the greatest degree of protection, is controlled for civility. See Carmi (n 36) 325–333; Ronald J. Krotoszynski, Jr, ‘A Comparative Perspective on the First Amendment: Free Speech, Militant Democracy and the Primacy of Dignity as a Preferred Constitutional Value in Germany’ (2004) 78 Tulane Law Review 1549.
39 Clubb (n 1) 56 [193].
40 See Daly (n 17) 95–96 (with further references).
41 Hill v. Colorado, 530 U.S. 703 (2000) (Supreme Court of the United States).
42 Rowan v. United States Post Office Dep’t, 397 U.S. 728, 736 (1970) (Supreme Court of the United States) (regarding sending unwanted sexual materials to a person’s home).
43 Like other reasons for limiting free speech in US case law, privacy is framed as a ‘government interest’ rather than a constitutional value (or individual interest, for that matter).
44 Cohen v. California (n 37) 21). Like the US cases, a concern in Clubb was the impact of the conduct on the privacy of people attending abortion clinics. The US Supreme Court has held that although privacy interests (that would permissibly limit free speech) will generally be less compelling in a public place, in some instances such as accessing abortion clinics, privacy interests are regarded as strong: see Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 767–68 (1994) (Supreme Court of the United States); Fischer v. City of St. Paul, 894 F. Supp. 1318 (D. Minn. 1995) (United States District Court for the District of Minnesota); Hill v Colorado (n 41); Brown v City of Pittsburgh, 543 F. Spp. 2d 448 (2008) (United States District Court for the Western District of Pennsylvania).
45 Hill v Colorado (n 41) at 716. See also Frisby v. Schultz (1988) 487 U.S. 474 (Supreme Court of the United States); (picketing in front of doctor’s residence).
46 See Anonymous, ‘Too Close for Comfort: Protesting Outside Medical Facilities’ (1988) 101 Harvard Law Review 1856, 1863, 1865 (with further references).
47 Heyman (n 36) 149. See also Jeremy A. Miller, ‘Dignity as a New Framework Replacing the Right to Privacy’ (2007) 30 Thomas Jefferson Law Review 1. Other laws involving speech about abortions could be characterised in this way, such as the law at issue in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (Supreme Court of the United States), requiring a physician to impart certain information to a patient prior to an abortion, including the ‘probable gestational age of the unborn child’: see Jane Maslow Cohen, ‘A Jurisprudence of Doubt: Deliberative Autonomy and Abortion’ (1992) 3 Columbia Journal of Gender and Law 175, 238–243; see also Rebecca J. Cook and Bernard M. Dickens, ‘Human Rights Dynamics of Abortion Law Reform’ (2003) 25 Human Rights Quarterly 1, 48: such measures are ‘a form of authoritarian denial of individual self-determination’.
48 Canadian courts have adopted a similar analytical frame toward anti-abortion conduct directed toward captive audience, referring more expressly to dignity: Ontario (Attorney-General) v. Dieleman, 117 DLR (4th) 449 (1994) [559] [641] (Ontario Court of Justice); R v Lewis, [1996] 39 C.R.R. (2d) (Supreme Court of British Columbia) [101]. See also, concurring, R v Spratt, R v Watson, CA029830; CA029841 (2008) [71]-[72] (Court of Appeal for British Columbia). As with Clubb, the legislation at issue in Lewis stipulated dignity as a legislative objective: Access to Abortion Services Act, S.B.C., ch.35, §§ 1–14 (1995) (Can.) See also Canadian Centre for Bio-Ethical Reform v. City of Grande Prairie (2018) ABCA 154 [77] (Court of Appeal of Alberta). See further Richard Albert, ‘Protest, Proportionality, and the Politics of Privacy: Mediating the Tension between the Right of Access to Abortion Clinics and Free Religious Expression in Canada and the United States' (2005) 27 Loyola International and Comparative Law Review 1, 29.
49 See Clubb (n 1) 57 [196] (Gageler J): ‘Coleman and Monis should not be understood as authority for the proposition that a purpose of curtailing unsolicited, unwelcome, uncivil or offensive speech is incompatible with the constitutionally prescribed system of representative and responsible government.…the better explanation ...is that protecting against unwanted or offensive communication is a permissible purpose the capacity of which to justify a burden on freedom of political communication can vary in different contexts’.
50 (2004) 220 CLR 1, 91 [239] (citations omitted). See also Adrienne Stone, ‘Insult and Emotion, Calumny and Invective: Twenty Years of Freedom of Political Communication’ (2011) 30 University of Queensland Law Journal 79.
51 See Arcioni and Stone (n 5) 74–75: ‘there are two views of freedom of political communication competing for ascendency in the Australian High Court. One is informed by an appreciation of the vigour and variety of a robust and even offensive political debate. The other is more attentive to the harms caused by offensive speech, particularly in a private context. The precise balance of these competing values is not yet clear’.
52 Notably, on gender lines: see further Gabrielle Appleby and Ngaire Naffine, ‘Civility, gender and the law: critical reflections on the judgments in Monis v The Queen’ (2015) 24 Griffith Law Review 616.
53 (2013) 249 CLR 92, 131 [67] (French CJ).
54 Monis (n 53) 182-183 [247] (Heydon J) (citing Barak (n 24)).
55 Clubb (n 1) 26 [97] (Kiefel CJ, Bell and Keane JJ); 56–57 [194]-[196] (Gageler J).
56 Clubb (n 1) 13–14 [51] (Kiefel CJ, Bell and Keane JJ) (‘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’).
57 Clubb (n 1) 27 [98]-[99] (Kiefel CJ, Bell and Keane JJ). See also Brown (n 19) 414–415 [275] Nettle J: ‘The implied freedom of political communication is a freedom to communicate ideas to those who are willing to listen, not a right to force an unwanted message on those who do not wish to hear it’.
58 See Daly (n 17) 95.
59 Clubb (n 1) 13 [51] (Kiefel CJ, Bell and Keane JJ) (footnotes omitted). The judges made the same finding with respect to the Tasmanian legislation (at [128]).
60 Clubb (n 1) 16 [60] (Kiefel CJ, Bell and Keane JJ) (emphasis added). See also Clubb (n 1) 67 [258] (Nettle J): ‘The protection of the…dignity of the people of Victoria…is thus consistent with the system of representative and responsible government mandated by the Constitution’ (citations omitted).
61 Clubb (n 1) 23 [85] (Kiefel CJ, Bell and Keane JJ) (emphasis added).
62 Clubb (n 1) 27 [99] (Kiefel CJ, Bell and Keane JJ) (emphasis added).
63 Clubb (n 1) 22 [82] (Kiefel CJ, Bell and Keane JJ) (emphasis added). See also Clubb v Edwards & Anor; Preston v Avery & Anor [2018] HCATrans 206 (9 October 2018) (Keane J): ‘the very basis of the implied freedom is the dignity of the Australian people. Insofar as the people who are being shamed are members of the sovereign people, legislation that protects their dignity is surely compatible with it’.
64 Or the normative basis for political participation—the reasoning is less than clear in this regard.
65 Adrienne Stone has made a similar point previously in ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law Review 374, 391 393, 398, arguing that autonomy plays an ‘instrumental role in promoting representative and responsible government’ and that it is arguable that ‘democratic government presupposes or logically implies the autonomy of citizens’. Thus ‘the system of representative and responsible government instituted by the Constitution logically requires, or is premised upon, some respect for the autonomy of the individual’ and consequently, ‘it is possible that the freedom of political communication could be grounded in a concept of representative and responsible government that requires some protection of personal autonomy,’
66 We thank Patrick Emerton for raising this point.
67 The Lange-Coleman-McCloy-Brown test requires the Court to ask: (1) whether the law effectively burdens the implied freedom in its terms, operation or effect; (2) if so, whether the purpose of the law is legitimate, in the sense of being compatible with the maintenance of the constitutionally prescribed system of representative and responsible government; (3) if so, whether the law is 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: as stated in Clubb (n 1) [5] (Kiefel CJ, Bell and Keane JJ).
68 Clubb (n 1) [101] (Kiefel CJ, Bell and Keane JJ) (emphasis added).
69 Clubb (n 1) [101] (Kiefel CJ, Bell and Keane JJ) (emphasis added).
70 (2017) 261 CLR 328, 467–8 [438]. Gordon J did not elaborate on this point further in Clubb. As Dixon puts it, legislative objectives that ‘advance constitutional values’ will be weighted more heavily in the balancing calculus than those that ‘sacrifice’ the values underpinning the implied freedom: Rosalind Dixon, ‘Calibrated Proportionality’ (2020) 48 Federal Law Review 92, 109.
71 In McCloy v New South Wales (2015) 257 CLR 178, 221 [93], French CJ, Kiefel, Bell and Keane JJ held: These are provisions which support and enhance equality of access to government, and the system of representative government which the freedom protects. The restriction on the freedom is more than balanced by the benefits sought to be achieved’.
72 For a summary of critiques, see Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality (Oxford University Press, 2012) at 45–71.
73 Gageler J, the only current member of the Court not to support structured proportionality, remarked in Brown that the balancing stage ‘is too open-ended, providing no guidance as to how the incommensurables to be balanced are to be weighted or as to how the adequacy of their balance is to be gauged’: Brown (n 19) 377 [160].
74 On incommensurability and proportionality, see, for example, Virgílio Afonso Da Silva, ‘Comparing the incommensurable: Constitutional principles, balancing and rational decision’ (2011) 31 Oxford Journal of Legal Studies 273; Francisco J Urbina, ‘Incommensurability and Balancing’ (2015) 35 Oxford Journal of Legal Studies 575.
75 E.g. Julian Rivers, ‘Proportionality, Discretion and the Second Law of Balancing’ in George Pavlakos (ed.), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Hart, 2007) 167; Julian Rivers, ‘The Presumption of Proportionality’ (2014) 77 Modern Law Review 409, 426–427; Başak Çali, ‘Balancing Human Rights? Methodological Problems with Weights, Scales and Proportions’ (2007) 29 Human Rights Quarterly 251, 253, 256–257, 264–265; Stavros Tsakyrakis, ‘Proportionality: An assault on human rights?’ (2009) 7 International Journal of Constitutional Law 468, 482–484; Gregoire C. N. Webber, ‘Proportionality, Balancing and the Cult of Constitutional Rights Scholarship’ (2010) 23 Canadian Journal of Law and Jurisprudence 179, 183, 194.
76 Clubb (n 1) [158] (Gageler J).
77 See, for example, Robert Alexy, A Theory of Constitutional Rights (Oxford University Press, Julian Rivers trans., 2002) 100, 401; Klatt and Meister (n 71) 698–699.
78 Per Nettle J in Clubb (n 1) [271]: ‘courts are not infrequently called upon to weigh competing values that could never plausibly be reduced to any single metric of evaluation… despite the imprecision of those processes, they are the best available means of fulfilling essential functions. Conceptually, the weighing of the importance of the purpose of a law against its impingement upon the implied freedom of political communication is no different’.
79 See, for example, Aharon Barak, Human Dignity: the Constitutional Value and the Constitutional Right (Cambridge University Press, 2015) 112–113 (‘In determining the relative weight of those considerations, the constitutional value of human dignity should be considered)’. See also R. George Wright, ‘Dignity and Conflicts of Constitutional Values: The Case of Free Speech and Equal Protection’ (2006) 43 San Diego Law Review 527 (arguing that dignity can be used to commensurate claims in cases involving the freedom of speech in the US Constitution).
80 See Addis (n 15) 11. See further McCrudden (n 31) 717–718.
81 Krotoszynski (n 38) 1579, 1582–83.
82 Drucilla Cornell and Sam Fuller, ‘Introduction’ in Drucilla Cornell et al. (eds), The Dignity Jurisprudence of the Constitutional Court of South Africa (Fordham University Press, 2013) 3, 12–13.
83 McCrudden (n 31) 716.
84 McCrudden (n 31) 719.
85 Neomi Rao, ‘On the Use and Abuse of Dignity in Constitutional Law’ (2008) 14 Columbia Journal of European Law 201, 211.
86 Feldman (n 32) 688.
87 See, Frederick Schauer, ‘Speaking of Dignity’, in Michael J. Meyer and William Allan Parent (eds), The Constitution of Rights: Human Dignity and American Values (Cornell University Press, 1992) 178. See also Winfried Brugger, 'Ban On or Protection of Hate Speech? Some Observations Based on German and American Law' (2002) 17 Tulane European and Civil Law Forum 1, 19 (regarding competing autonomy claims in hate speech cases). Heyman suggests that in cases where speech and privacy rights collide, a common metric can be found in ‘freedom to develop and express one’s personality’ and/or ‘freedom to participate in the social, cultural, and political life of the community’, which correspond to dignity-as-autonomy considerations: Heyman (n 36) 70.
88 McCrudden (n 31) 722.
89 See Daly (n 17) 135–136.
90 E.g. Dworkin (n 85) 319-320 (democracy requires that human dignity is respected).
91 See Daly (n 17) 135; Cook and Dickens (n 47) 45.
92 Cook and Dickens (n 47) 43, 44–45. See the discussion on the link between dignity and democracy in Daly (n 17) 132–139: ‘As constitutional interpreters, [courts]…vindicate the right to dignity, but they often do so for the purpose or with the effect of strengthening the basis of citizenship, which is the means by which democracy is practiced’.
93 Stenberg v. Carhart (n 25) 920; R. v. Morgentaler (n 25) 172 (Supreme Court of Canada).
94 We do not suggest that an Australian state that had failed to so legislate would have made that omission contrary to a constitutional understanding of dignity, but rather that if dignity is the value that underpins equal civic participation, the state may be under a moral duty to prohibit certain behaviour that impinges on women’s ability to participate in public life.
95 Empirical research demonstrates that anti-abortion activity outside clinics has the effect of deterring people from having abortions: see, for example, Ronli Sifris and Tania Penovic, ‘Anti-abortion protest and the effectiveness of Victoria’s Safe Access Zones: An Analysis’ (2018) 44 Monash University Law Review 317–340.
96 Daly (n 17) 136.
97 Planned Parenthood v. Casey (n 25) 923.
98 Gonzales v. Carhart (n 35) 1641 (Ginsburg J, dissenting).
99 Exp. No. 02005-2009-PA/TC (2009) [5] (Constitutional Tribunal of Peru).
100 McCloy (n 70) 207 [45] (French CJ, Kiefel, Bell and Keane JJ).