This article is more than 2 years old

This article is more than 2 years old

The Turnbull government and Coalition governments in New South Wales and South Australia have defended Victorian laws protecting safe zones around abortion clinics.

Victoria’s laws creating safe zones of 150 metres around abortion clinics are the subject of a high court challenge. A bill to replicate that provision passed the New South Wales upper house last week.

In a full court press the commonwealth, NSW, South Australia, Queensland and Western Australian governments all intervened to argue the law banning communications that are “reasonably likely to cause distress or anxiety” does not infringe Australia’s limited constitutional protection of freedom of speech.

Sign up to receive the top stories in Australia every day at noon

The challenge has been brought by a religious picketer, Kathy Clubb, who 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.

Human rights groups and the Fertility Control Clinic have also applied to be heard in the case.

The Castan Centre for Human Rights Law pointed to research that in other cases protesters were found to: distribute models of plastic foetuses; implore patients not to “kill” their “baby”; castigate patients as murderers; heckle, threaten and verbally abuse patients and staff; display visually graphic material including posters displaying foetuses in buckets; provide misleading information that abortion results in infertility, failed relationships, mental illness and cancer.

Susie Allanson, a clinical psychologist at the Fertility Control Clinic, gave evidence that women had delayed seeking medical assistance due to protests that also harmed staff. She had experienced nightmares and sleep disruption.

In a submission to the high court the federal attorney general, Christian Porter, argued there was “no evidence” Clubb was engaged in political communication and the burden on political communication of the law was “slight and readily justified”.

The commonwealth argued communications about whether abortion should be lawful were political communications but dissuading a woman from seeking one may not be.

The submission is similar to Victoria’s defence that protesters are not engaged in public debate but rather targeting women for their medical choices in a way that will cause them to delay or not to seek those services.

The commonwealth argued that the protection of free speech in the Australian constitution is “not an end in itself” and is limited only to what is necessary to preserve representative government.

George Christensen attacks own government over abortion services funding Read more

“What is protected is the freedom to communicate political 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,” it said.

The commonwealth argued Victoria’s laws had a legitimate purpose and the burden it imposed was limited to regulating the “time, place or manner” of communications.

The NSW government also defended the legitimate purpose, arguing that the law established safe zones not because anti-abortion speech is “undesirable per se” but because the communications in safe zones are seen as a “potential source” of harm.

It rejected the suggestion the court should shrink the safety zones to less than 150 metres, arguing that to do so would make them less effective. The commonwealth warned the court should not substitute its judgment on the size of the safe zones.

The Queensland government accepted that the safe zone law could burden the time, place or manner of political communication, but argued in Clubb’s case it “imposed no burden on the free flow of political communication”.

Abortion laws: bill to establish exclusion zones around NSW clinics passes upper house Read more

The Western Australian government adopted many of Victoria’s submissions and argued that abortion protesters could get their message out in other ways.

The South Australian government argued communications in abortion safe zones were likely to be “unsolicited and made predominantly to an audience who are considering a difficult, personal choice regarding receiving medical care”.

It concluded the justification for the Victorian safe zone law is “incontrovertible”.

Clubb’s submissions in the case are due by 8 June, and submissions in a similar challenge to Tasmania’s laws are due by August.