Anti-abortion activist charged with breaching the law claims the Victorian legislation is in conflict with the implied freedom of political expression

A mother-of-13 has argued in court that a Victorian law banning protesters from harassing people within 150 metres of abortion clinics is discriminatory.

Anti-abortion activist Kathleen Clubb faces one charge of engaging in prohibited behaviour within a safe access zone after she allegedly harassed a couple outside East Melbourne Fertility Control Clinic in August 2016.

The 51-year-old is the first person to be charged under the new law and while she doesn’t deny her actions, she believes she has the right to do what she did.

Clubb’s barrister, Frederick Christopher Brohier, says the legislation is invalid because it impinges the implied freedom of political expression.



He also says the law is being used against people with pro-life beliefs, and not those on the other side of the debate.

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“We say it’s discriminatory in its application because it applies to the one side of this issue,” he told the Melbourne magistrates’ court on Thursday.

Magistrate Luisa Bazzani said it appears the law was designed that way by parliament.

“I accept it’s designed to prohibit people who are pro-life protesters from the zone.”

But it does not mean people who are pro-choice can approach those in the exclusion zone either, she said.

“It would be wrong ... for me to approach and, for example, say ‘what a great job you’re doing, what a great idea having an abortion’,” Bazzani said.

“I shouldn’t be saying ‘that’s a great idea’ and you shouldn’t be saying ‘don’t do this’.”

Safe access zones near Victorian abortion clinics came into effect in May 2016 in accordance with legislation banning protesters from harassing people within 150 metres of such premises.

Under the law, it is an offence to communicate with people entering or leaving in a way that is “reasonably likely to cause distress or anxiety”.

“When you come to consider whether this law offends the implied freedom of communication ... it affects all of Victoria,” Brohier said.

The Victorian government is standing firm against Clubb’s constitutional challenge.

“The state is here to uphold the validity of the law,” crown counsel Melinda Richards SC said.

She will outline the Victorian attorney general’s submissions on Friday.