A women's health clinic is taking Melbourne City Council to court to force it to protect the health and wellbeing of patients and staff. Maurice Blackburn associate Lizzie O'Shea says the anti-abortion activists outside the clinic are not exercising their rights to free assembly, they are threatening the health of vulnerable women.

For decades, patients and staff of Melbourne’s Fertility Control Clinic, which provides abortions and other reproductive services, have been subjected to harassment and intimidation by members of a group called Helpers of God’s Precious Infants (HOGPI). Patients and staff are yelled at, abused, called murderers and whores. They are told all sorts of misinformation about reproductive health, horrifying imagery is regularly on display, and sometimes HOGPI members try to blockade people from entering the clinic.

There is nothing polite or peaceful about their behaviour, and the vast majority of Australians would be appalled by it. In fact, when a security guard was shot dead by an anti-abortion activist Peter James Knight a decade ago, HOGPI was back on the street the next day, harassing people. Needless to say, it is very difficult to treat patients in this climate, especially when much time is wasted trying to calm patients down after they have run the gauntlet of abuse to arrive at the front door.

HOGPI members do not consider themselves to be protesting; they consider themselves as being on the front line of trying to stop abortions. Freedom of expression is fundamental to our democracy, and I would defend the rights of pro-lifers to express their views on the steps of Spring Street. But this is not about opinions strongly held or expressed, it is about harassment. The conduct is a threat to the health of women who access the clinic and the wellbeing of staff who work there.

Yesterday, the Fertility Control Clinic issued proceedings in the Supreme Court against the City of Melbourne. This case is about public health. The council is the subject of this case because of duties it has under the Public Health and Wellbeing Act 2008. Under section 60, a council has a duty to remedy as far as is reasonably possible all nuisances existing in its municipal district. The definition of nuisance includes activities that are dangerous to health. In this instance, the activities of HOGPI cause harm to staff members, who suffer increased levels of stress and fear being assaulted. It causes distress to patients and jeopardises their ongoing care, especially if they are too upset, threatened or frightened to return to the clinic for follow-up treatment.

Maurice Blackburn, which is representing the clinic, is asking the court to make an order in mandamus, or perform a duty imposed by law. We have formally written to the council twice asking Melbourne City Council to remedy this nuisance, and the clinic has made numerous advances to many different authorities over the years, including the council. These complaints have fallen on deaf ears. It is with great reluctance that the clinic has resorted to litigation, and it is very much open to resolving this outside of this court process.

Because it is a council matter, not a police one, it was with some surprise that I read the comments of Lord Mayor Robert Doyle yesterday. Doyle indicated he was sympathetic to the clinic’s concerns but essentially, in respect of the allegations of inaction, his hands were tied. “Unless we are there, it is very, very difficult; we refer to police. We have felt quite impotent in what we have been able to do,” Doyle said. “That’s why I’m delighted that these move-on laws will apply to these protesters.”

While we welcome the spirit of Doyle’s comments, in our view he is wrong. The new, amended “move on” powers are the purview of police; they have nothing to do with councils. The amendments to these powers have no relevance to whether they could be used against HOGPI. The police already had such powers at their disposal for a long time before these amendments and did not put them to use in this case. We also respectfully disagree with his praise of the “move on” powers, as the broad-ranging nature of the amendments gives rise to a very real possibility they will be susceptible to abuse.

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Moreover, the council has very clear powers under the Public Health and Wellbeing Act to remedy the nuisance, including specifically bringing proceedings to penalise individual nuisances. The council also has a range of powers it could use, including the making or enforcing of bylaws as necessary. There are many examples of how other jurisdictions have dealt with this issue, including in Tasmania, where an access zone of 150 metres was recently put in place around a similar health service. The bottom line is that the council’s impotence is a function of politics, not law.

Having said all that, we are thrilled that Doyle finally seems to recognise that there is actually a problem with what is happening outside the clinic. Until now, the council had refused to acknowledge that this was the case — when we wrote to councillors, they denied a nuisance was even occurring.