By Zeb Holmes and Ugur Nedim
The NSW government has passed laws to impose 150-metre ‘safe access zones’ around abortion clinics.
The new laws were passed through the legislative assembly by a majority of 61 votes to 18, and will see anti-abortion activists face prison time for interfering with persons who are attempting to access reproductive health clinics.
The proposed laws were introduced into state parliament by Labor MP Penny Sharpe and co-sponsored by National MP Trevor Khan.
They are embodied in the Public Health Amendment (Safe Access to Reproductive Health Clinical) Bill 2018, which amends the Public Health Act 2010 to insert the following offences, which each carry a maximum of six months imprisonment and/or a fine of $5,500 for a first offence, or 12 months in prison and/or a $11,000 fine for a second or subsequent offence:
Section 98C – Interfering with access of persons to reproductive health clinics
(2) A person who is in a safe access zone must not interfere with any person accessing, leaving, or attempting to access or leave, any reproductive health clinic at which abortions are provided.
(3) A person who is in a safe access zone must not, without reasonable excuse, obstruct or block a footpath or road leading to any reproductive health clinic at which abortions are provided.
A ‘reproduction health clinic’ is defined as ‘any premises at which medical services relating to aspects of human reproduction or maternal health are provided, but does not include a pharmacy.’
The ‘safe access zone’ is:
(a) the premises of a reproductive health clinic at which abortions are provided, and
(b) the area within 150 metres of:
- any part of the premises of a reproductive health clinic at which abortions are provided, or
- (ii) a pedestrian access point to a building that houses a reproductive health clinic at which abortions are provided.
‘Interfere with’ is defined as including, to ‘harass, intimidate, beset, threaten, hinder, obstruct or impede by any means.’
Section 98D – Causing actual or potential distress or anxiety to persons in safe access zones
(1) A person who is in a safe access zone must not make a communication that relates to abortions, by any means, in a manner:
(a) that is able to be seen or heard by a person accessing, leaving, attempting to access or leave, or inside, a reproductive health clinic at which abortions are provided, and
(b) that is reasonably likely to cause distress or anxiety to any such person.
Employees and other person who provides services to the reproductive health clinic are exempted.
Section 98E – Capturing and distributing visual data of persons in safe access zone
(1) A person must not intentionally capture visual data of another person, by any means, without that other person’s consent if that other person is in a safe access zone.
(2) A person must not publish or distribute a recording of another person without that other person’s consent if the recording:
(a) was made while that other person was in a safe access zone, and
(b) contains particulars likely to lead to the identification of that other person.
‘Capture visual data’ of another person means to capture moving or still images of the other person by a camera or any other means in such a way that:
(a) a recording is made of the images, or
(b) the images are capable of being transmitted in real time with or without retention or storage in a physical or electronic form, or
(c) the images are otherwise capable of being distributed.
(a) communicate, exhibit, send, supply or transmit, whether to a particular person or not, or
(b) make available for access, whether by a particular person or not, or
(c) enter into an agreement or arrangement to do any thing mentioned in paragraph (a) or (b).
The offence does not apply to:
(a) the operation of a security camera, for security reasons only, by or on behalf of a person operating a reproductive health clinic at which abortions are provided, or premises adjacent to or near such a reproductive health clinic, or
(b) a person employed or contracted to provide services at the reproductive health clinic at which abortions are provided, or
(c) a person otherwise acting for or on behalf of a person operating a reproductive health clinic at which abortions are provided, but only if the visual data is provided either to the person operating the clinic or to a police officer, or
(d) a police officer acting in the course of the officer’s duties as a police officer if the officer’s conduct is reasonable in the circumstances for the performance of those duties, or
(e) a person who has another reasonable excuse.
Pro-life versus pro-choice
‘Pro-life’ activists are up in arms about the new laws, arguing they unfairly impinge of freedom of speech. They have labelled themselves as “sideline counsellors” and believe they have the right to communicate their views to other individuals, including women who are attending a place where, they believe, horrific acts of killing unborn children occur.
‘Pro-choice’ activists argue that free speech does not extend to approaching and harassing vulnerable women. They believe the conduct of demonstrators amounts to harassment and abuse, pointing out that anti-abortion placards display violent and distressing imagery, and that protesters have verbally abused those entering clinics, going so far as to call them ‘murderers’ and threaten them.
In her second reading speech, NSW MP Penny Sharpe remarked,
“No person seeking lawful medical advice and care should be forced to run a gauntlet of abuse. Every person has the right to expect their government to protect them from being intimidated and harassed. We have an obligation to provide that protection.”
Opposition to the law
Despite being passed by an overwhelming majority of politicians, there were a number of notable opponents to the bill.
The Minister for Women, Tanya Davies, who is responsible for women’s rights, voted against the bill, stating:
“I believe that the bill will be counterproductive to the object of women having choice by denying support and informed choice to vulnerable women when they need it the most,” Ms Davies said. “I believe the penalties imposed by the bill are excessive, disproportionate and out of step with comparative legislation in NSW.”
The Minister for Prevention of Domestic Violence, Pru Goward, a former sex discrimination commissioner, also voted against the bill on the basis that it is an attack on freedom of speech.
Implied Freedom of Political Communication
The Australian Constitution explicitly guarantees just five rights:
- The right to vote (Section 41),
- Protection against acquisition of property on unjust terms (Section 51 (xxxi)),
- The right to a trial by jury for criminal cases in the higher courts (Section 80),
- Freedom of religion (Section 116), and
- Prohibition of discrimination on the basis of State of residency (Section 117).
In addition to these, the High Court has found that an implied right of free political communication exists due to the fact that it is essential for the operation of our system of representative government, which is created by sections 7, 24, 64 and 128.
The test of whether a law which affects this right is nevertheless permissible is contained in the case of Lange v ABC (1997):
- Does the law actually burden freedom of political communication? and
- If this is found, is the law “reasonably appropriate and adapted to serve a legitimate end” which supports a system with representative government?
The court in that case made it clear that “the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.”
The key issues in the context of the ‘safety zones’ laws are therefore:
- Whether harassing, intimidating, beseting, threatening, hindering, obstructing or impeding people who are entering or leaving a reproductive health clinic are forms of political communication, and
- Whether the new laws are ‘reasonably appropriate’ and ‘adapted… [the] legitimate end’, being to protect vulnerable women from interference, distress and anxiety.
In that regard, High Court challenges to similar laws in Victoria and Tasmania are already underway.
Only time will tell whether any similar challenge will be mounted against the New South Wales laws.