State government tells high court that anti-abortion protesters are not engaged in public debate but are targeting women for their medical choices

This article is more than 2 years old

This article is more than 2 years old

“Safe access zones” around abortion clinics do not breach Australians’ limited right to free speech because protesters are not engaged in public debate but rather targeting women for their medical choices, the Victorian government has said.

The Victorian government has made the submission to the high court, warning that without safe access zones some women who need abortion services will decide “to delay or not to seek those services at all”.

The high court is hearing two constitutional challenges against safe access zone laws in Victoria and Tasmania at the same time as a group of Labor and Nationals MPs in New South Wales begin a push for that state to introduce zones of 150m around abortion clinics, the same buffer that applies in Victoria.

One high court case has been brought by religious picketer Kathy Clubb, the first person to be charged under Victoria’s laws. Clubb was fined $5,000 for approaching a couple in the safe zone outside an East Melbourne clinic in August 2016 and trying to hand them pamphlets.



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Clubb argues that Victoria’s Public Health and Wellbeing Act breaches her rights because it seeks to prevent anti-abortion political speech by banning communications that are “reasonably likely to cause distress or anxiety” to someone accessing a clinic.

Clubb submits that the law prevents her from most effectively communicating her message, to dissuade women seeking abortions from doing so.

The Australian constitution does not have an explicit guarantee of free speech but the high court has determined in a number of decisions that there is an “implied freedom of political communication”.

Constitutional questions on the implied freedom are determined by judging whether a law places a burden on political communication and then if it is reasonably appropriate and adapted to achieve a legitimate end.

The Victorian government submitted that the legislation “is not directed to political communication” and had an “insubstantial” effect on it.

It argued that although “some individuals might be engaging in political communication, in other cases the aim is to deter women from having an abortion, often through imposing guilt and shame”.

It said that communication is “not directed at public debate” – such as influencing the choice of voters – but rather is “directed at influencing a personal and private medical choice”.

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“The expressed object of protecting the safety and wellbeing of, and respecting the privacy and dignity of, persons accessing lawful medical services, as well as the staff and others accessing the premises in the course of their duties, is plainly a legitimate end.”

The Victorian government noted that anti-abortion protests may deter or delay women from seeking abortion services, causing adverse medical effects, and constitutes an “intrusion into a private medical decision”.

“Political communication about abortion is permitted; just not in the safe access zone ... what is denied to protestors is the capacity to confront women who are seeking to access abortion services, and the staff who provide those services.”



The Victorian government argued that women and staff accessing the clinic were a “captive audience” for protesters who had no choice to turn away or avoid the protesters. “The implied freedom does not guarantee a right to a captive audience,” it said.

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In the magistrate’s court, Clubb had argued that the communication prohibition extends to non-violent protest including prayer vigils, peaceful and silent protests.

The Victorian government responded that even if prohibited conduct “falls short of harassment” it nevertheless is “likely to cause anxiety or distress”.

Written submissions in the Victorian case are due in June and in the Tasmanian case by August.

In July the Labor for Choice group will use the party’s national conference to attempt rule changes to bind its parliamentarians to vote in favour of safe, legal and accessible abortions.

In a new section on reproductive health, the draft Labor platform proposes a commitment to work with states and territories to implement safe access zones.