This Research Note is an update of a Research Note prepared in September 2015 in response to the Public Health and Wellbeing Amendment (Safe Access) Bill 2015, introduced by Australian Sex Party MLC Fiona Patten on 18 August 2015. The paper is updated to reflect the Andrews Government's Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015, which provides for similar zones to protect access to abortion clinics (sometimes known as 'access zones', 'bubble zones' or 'buffer zones'). Specifically, this Research Note:
§ provides a brief background on protests at abortion clinics in Melbourne;
§ presents information on the two proposed Victorian exclusion zones;
§ discusses the human rights and constitutional implications of limiting freedom of expression and political communication; and
§ briefly presents the experiences of abortion clinic exclusion zones in other jurisdictions, including Tasmania, the Australian Capital Territory, New South Wales, Canada and the United States.
The Fertility Control Clinic was set up in East Melbourne 1972 by abortion campaigner Dr Bertram Wainer, and was the first of its kind in Australia.[footnote 1] It provides abortion services as well as treatment for miscarriages, vasectomies, contraception advice and general sexual health services. The number of protesters outside the clinic ranges from three to 12 persons most days, with the group expanding to 50-100 persons once a month.[footnote 2] Staff at the clinic have frequently complained that protesters endanger their personal comfort and safety.[footnote 3] In 2001, a security guard was murdered at the East Melbourne clinic by a gunman not affiliated with any of the other protesters.[footnote 4]
The Helpers of God's Precious Infants are an international anti-abortion organisation. In Melbourne, they protest six mornings a week outside the Fertility Control Clinic on Wellington Parade, East Melbourne and maintain a presence at clinics in Carlton, Richmond and St Albans at least one day a week.[footnote 5] They have maintained a presence outside the East Melbourne clinic for over 20 years.[footnote 6] During parliamentary sitting weeks, they demonstrate at the rear entrance to the Victorian Parliament.[footnote 7] They have stated that their activities are aimed at 'encouragement and assistance' and that they 'always act within the law and we never incite or instigate violence'.[footnote 8]
Fertility Control Clinic v Melbourne City Council
In March 2014, the Fertility Control Clinic sought a writ of mandamus[footnote 9] against the Melbourne City Council for failing to do anything about the nuisance caused by the protesters. The Supreme Court of Victoria's judgment was handed down on 26 August 2015. The court heard that the actions of the protesters include:
§ approaching women apparently coming to the Clinic, imposing their presence even when clearly unwelcome;
§ harassing women entering or leaving the Clinic, engaging in arguments with the women and passers-by;
§ attempting to block women's entry to the Clinic;
§ blocking the footpath outside the Clinic;
§ entering the laneway that runs along the side of the Clinic to follow patients or stand and pray, sing and shout outside the Clinic's consulting rooms;
§ jostling and striking people passing the area and entering the Clinic;
§ making offensive, frightening and misleading statements to patients and staff;
§ engaging in loud singing, praying and shouting, clearly audible in the Clinic;
§ intimidating and harassing patients of the Clinic, with the effect of deterring patients from attending the Clinic; and
§ causing significant injury to the personal comfort of staff members, patients and others.[footnote 10]
Justice McDonald considered that, 'prima facie, such conduct is a private nuisance by reason of impeding the Clinic's enjoyment of its property and a public nuisance by reason of the elements of annoyance, inconvenience or hurt to members of the public'.[footnote 11]
Under s 60 of the Public Health and Wellbeing Act 2008(Vic), a Council has 'a duty to remedy as far as is reasonably possible all nuisances existing in its municipal district'. However, under s 58(1) such nuisances must be, or must be liable to be, 'dangerous to health or offensive'. Justice McDonald found that it was within the Council's jurisdiction to 'erroneously conclude that the conduct [footnote of the protesters] was neither offensive nor dangerous to health'.[footnote 12]
Two Bills currently sit before the Victorian Parliament with the intent of introducing safety access zones around abortion clinics in Victoria. Fiona Patten of the Australian Sex Party introduced the Public Health and Wellbeing Amendment (Safe Access) Bill 2015 in the Legislative Council on 18 August 2015.[footnote 13] This Bill was debated in the upper house on 2 September 2015,[footnote 14] prior to which the Government committed to re-introducing the Bill as a Government Bill with stronger enforceability and administrative provisions.[footnote 15] The Government also noted that penalties would need to be revised to correspond with other public nuisance offences.[footnote 16] The Minister for Health, Jill Hennessy, second read the Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015 in the Legislative Assembly on 22 October 2015.[footnote 17] Discussion about the provisions of these two Bills is provided below. Some commentary regarding the operation of the right to freedom of expression and the implied freedom of political communication in conjunction with these provisions is also provided.
Private Member's Bill
The Australian Sex Party's Public Health and Wellbeing Amendment (Safe Access) Bill 2015 was introduced with the purpose of 'providing safe access zones around premises offering reproductive health services' (cl 1).[footnote 18] Specifically, it sought to insert a new 'Part 9A—Safe access to reproductive health services' into the Public Health and Wellbeing Act 2008 (Vic), to commence on the earlier day of the day of proclamation or 1 December 2015.
The proposed Part included two new offences: engaging in prohibited behaviour in a safe access zone and publishing or distributing a recording of a person accessing or attempting to access reproductive health service premises (proposed ss 185B and 185C). Both were punishable by 500 penalty units[footnote 19] or up to 12 months imprisonment.
According to the explanatory memorandum:
The penalty provisions are designed to reflect the serious, discriminatory nature of such behaviour. The deterrence impact should be viewed in light of previous violent encounters around such clinics ... The penalties reflect the importance of avoiding such escalation, and providing clarity around the rights to safe access to such services, and privacy in so doing.[footnote 20]
Proposed Part 9A also included new definitions. 'Safe access zone' was defined as 'an area within a radius of 150 metres from premises at which reproductive health services are provided'. Reproductive health services included services 'relating to advice, medication and treatment in respect of reproductive health, including the prevention and termination of pregnancy'. Prohibited behaviour within these zones included:
(a) besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding a person;
(b) communicating in relation to reproductive health services in a way that could be seen or heard by a person accessing (or attempting to access) reproductive health service premises;
(c) interfering with or impeding a footpath; or
(d) intentionally recording a person accessing (or attempting to access) reproductive health service premises without their consent; or
(e) any other prescribed behaviour.
Under proposed s 185B(2), intentionally recording a person accessing reproductive health service premises, without their consent, would also be prohibited behaviour within a safe access zone, unless the person doing the recording is a police officer performing official duties, is an employee or contractor of the reproductive health service, or another prescribed person. It would then be a separate offence to distribute such recordings (proposed s 185C), and police officers were given the power to seize any recordings or material related to either of the new offences where they had reasonable grounds to believe that it 'was used, or is about to be used, in relation to the offence or likely offence' (proposed s 185D).
When the Bill was introduced, the Scrutiny of Acts and Regulations Committee (SARC) questioned whether the offence of communicating about reproductive health services within a safe access zone (and the associated penalty) complied with both Constitutional limitations and the s 15 freedom of expression provided for in Victoria's Charter of Human Rights and Responsibilities (see below).[footnote 21]
The Government Bill differs in a number of significant ways to the private member's Bill. Firstly, it seeks to introduce safe access zones around 'premises at which abortions are provided', rather than premises providing reproductive health services (cl 1, s 185A). Secondly, the prohibited behaviours within a safe access zone are more specific. Thirdly, the penalties for engaging in prohibited behaviour in a safe access zone or distributing recordings are 120 penalty units (rather than 500 penalty units) or 12 months imprisonment. Fourthly, broader police enforcement and seizure powers are introduced. Lastly, the Bill is due to commence on the earlier day of the day of proclamation or 1 July 2016[footnote 22] (cl 2).
The revised purpose of the Bill limits the application of safe access zones. It also has the added purpose to 'protect the safety and wellbeing and respect the privacy and dignity' of people accessing the services of premises at which abortions are provided and employees of such premises (proposed s 185A(a)). Under the definitions provided for by proposed s 185B, pharmacies are expressly excluded from being premises covered by the safe access provisions. New principles are also inserted to guide the interpretation of offences including that 'the public is entitled to access health services, including abortions' (proposed s 185C).
Prohibited behaviour also has more specific application under the new proposed s 185A definition. The besetting and harassing etc. provisions are unchanged, but rather than being prohibited in relation to any person they are prohibited in relation to 'a person accessing, attempting to access, or leaving premises at which abortions are provided'. Importantly, the communicating offence provision has an added clarification whereby it is only an offence when such communication is 'reasonably likely to cause distress or anxiety', and employees or service providers at the premises are excluded from this prohibited behaviour. The two remaining prohibited behaviours (impeding a footpath, road or vehicle, and intentionally recording) are both only prohibited if they are engaged in without 'reasonable excuse'.
The offence to publish or distribute a recording of a person without consent also allows for a 'reasonable excuse' and only applies where the recording 'contains particulars likely to lead to the identification' of the person recorded, and identify them 'as a person accessing premises at which abortions are provided' (proposed s 185E).
Police officers are also given enforcement powers. Under proposed s 185F, police officers of the rank of sergeant of above may apply for a search warrant in relation to the prohibited behaviour of intentionally recording a person or the s 185E offence of publishing or distributing such a recording. They are also given seizure powers under proposed s 185G, and must comply with announcement requirements before entry under proposed s 185H.
Victoria has a Charter of Human Rights and Responsibilities Act 2006 which sets out certain rights that legislators must take into account, including the right to freedom of expression (s 15). Further, the High Court has determined that an implied freedom of political communication is provided for in the Australian Constitution, and this can apply to state legislation.[footnote 23] The implications of these two freedoms in relation to exclusion zones are discussed below.
Victorian Charter and freedom of expression
It is noted in the <href="#page=13">Statement of Compatibility to the Australian Sex Party's Bill that the proposed offence of engaging in prohibited behaviour within a safe access zone may limit the freedom of expression provided for in s 15(2) of the Charter of Human Rights and Responsibilities.[footnote 24] However, this limitation could be considered as falling within s 15(3) of the Charter, which allows for limitations on freedom of expression where they are reasonably necessary to 'respect the rights and reputation of other persons' (such as their right to privacy under s 13) or 'for the protection of national security, public order, public health or public morality'.[footnote 25] Further, under s 7 of the Charter, rights 'may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom', and taking into account: the nature of the right; importance of the limitation; extent and nature of the limitation; relationship between the limitation and its purpose; and the availability of any less restrictive means reasonably able to achieve the same purpose.
In the statement of compatibility for the Government Bill, there is extensive discussion about balancing the right to privacy under s 13 (for women and worker's accessing clinics) with the s 15 right to freedom of expression and s 16 right to freedom of peaceful assembly. Ultimately, the Minister noted 'I consider that it is necessary to create a safe access zone around premises at which abortions are provided, and prohibit certain communications in relation to abortions within that zone, in order to prevent the harm and not just to respond to inappropriate conduct when it occurs' and that the limitations on freedom of expression and peaceful assembly are 'reasonable and necessary to protect the rights and interests of persons accessing or working in premises in which lawful abortion services are provided'.[footnote 26]
Implied freedom of political communication
The implied freedom of political communication was first set out by the High Court in Lange v Australian Broadcasting Corporation.[footnote 27] Here, it was found that given the system of government set out in the Australian Constitution, there is an implied freedom of political communication 'limited to what is necessary for the effective operation of that system of representative and responsible government'.[footnote 28]
Whether restricting communication in relation to reproductive health services is a violation of the implied freedom to political communication in theConstitutiondepends on the type of political debate actually protected by that freedom. The High Court has not conclusively decided on this. In Coleman v Power, the majority preferred 'a civil, accessible and rational discourse'[footnote 29] which allowed for restrictions aimed at preventing breaches of the peace or violent behaviour.[footnote 30] In the more recent case of Monis (on which the High Court was split), Chief Justice French accepted 'unreasonable, strident, hurtful and highly offensive communications' as part of the political debate.[footnote 31] Here, Justice Heydon lamented that the inclusions of such 'sadistic, wantonly cruel and deeply wounding blows' within the definition of political communication indicated that the implied freedom may in the future be considered by the Court as a 'noble and idealistic enterprise, which has failed, is failing and will go on failing'.[footnote 32] A challenge to abortion clinic exclusion zones would be required in the High Court 'to mediate these conflicting positions and to shed further light upon the type of debate that the implied freedom of communication serves to protect'.[footnote 33]
Nonetheless, the High Court has ruled that limits can be placed on political communication. If it is determined that access zone laws place a burden on political communication, it could be a valid burden if it is found that the purpose of providing safe access to reproductive health services is a legitimate purpose 'compatible with the maintenance of the constitutionally prescribed system of representative and responsible government',[footnote 34] and the restrictions are 'appropriate and adapted to achieving that legitimate object or end'.[footnote 35] Further, a burden on political communication could be justified if access zones are considered as 'necessary for the attainment of some overriding public purpose', such as public order and safe access to health services.[footnote 36] For example, the High Court has previously found Victorian legislation to be valid when it restricted the political communication of duck protesters because the law was targeted at public safety, and only applied to a small geographic area during a specific and limited time (i.e., hunting zones during duck hunting season).[footnote 37]
It has been argued that the general prohibition of 'protests' in the Tasmanian access zones could be struck out as being too broad if interpreted by the High Court (see the Tasmanian provisions below).[footnote 38] The private member's Bill included an even wider definition of communicating as a prohibited behaviour and would probably not withstand scrutiny by the High Court.[footnote 39] Similarly, the relatively severe penalties included in the private member's Bill may have led to a restrictive reading of such provisions.[footnote 40] The Government provisions are more targeted and limited in operation, with penalties more commensurate to other nuisance offences,[footnote 41] thereby strengthening the argument that they are 'appropriate and adapted'. The ACT provisions also provide a useful example of 'less restrictive' and 'reasonably practicable' options (see below).
It is worth noting that there are many precedents for limitations on public behaviour in Victoria. For example, the Parliamentary Precincts Act 2001(Vic), includes provisions allowing authorised officers to give a person a direction to leave or not enter the parliamentary precincts for up to seven days 'if the authorised officer believes on reasonable grounds that the direction is necessary for the good order and security of the Parliamentary precincts' (s 16). This has the effect of excluding the top steps of the front entrance to Parliament from public protests.[footnote 42]
There are a number of provisions restricting behaviour in State forests. The Sustainable Forests (Timber) and Wildlife Amendment Act 2014 amended the Sustainable Forests (Timber) Act 2004 to provide for 'timber harvesting safety zones' under Part 7A of the Act, which commenced on 28 May 2014. According to the second reading speech, the new zones were introduced in order to: 'deter unlawful protest activities that are unsafe and disrupt timber harvesting operations'.[footnote 43] The safety zones apply to timber harvesting coupes and the state forest within 150 metres of the boundary of that coupe, and are notified at the site and on the VicForests website.[footnote 44] Unauthorised access to these zones carries a punishment of 20 penalty units. In addition, exclusion orders can be issued by the courts prohibiting an offender from entering a timber harvesting safety zone or an area of state forest for a period of up to 12 months.[footnote 45] In conjunction with these zones, the Secretary of the Department retains the right to declare areas of State forest to be 'public safety zones' under the Safety on Public Land Act 2004, where unauthorised persons cannot carry out any activity in contravention of the public safety zone declaration (punishable by 20 penalty units).[footnote 46]
Police and protective services officers have powers to direct people to 'move on' under the Summary Offences Act 1966. A direction to move on can be made where the officer suspects that a person is breaching or likely to breach the peace, is endangering or likely to endanger the safety of another person, or is likely to cause injury or damage or is a risk to public safety (s 6(1)). However, a direction to move on cannot be made to a person picketing a place of employment, demonstrating or protesting about a particular issue, or behaving in a way to publicise the person's view about an issue (s 6(5)). Contravention of a direction to move on attracts a penalty of five penalty units. Similarly, under s 4(e) of the Summary Offences Act, it is an offence to obstruct a footpath with a car or goods 'to the annoyance of any person', punishable by five penalty units.
Tasmania is the only Australian jurisdiction which currently has specific exclusion zones around abortion clinics, while the ACT has recently passed legislation that is yet to commence. Similar zones have also been proposed in NSW. The provisions in each jurisdiction are described below, with a focus on the definition of prohibited behaviour and the operation of the zone. Some brief commentary on exclusion zones in international jurisdictions is also provided.
Tasmania introduced 'access zones' around abortion clinics at the same time it decriminalised abortion, under the Reproductive Health (Access to Terminations) Act 2013 (Tas).[footnote 47] Under s 9 of the Act, access zones are defined as 'an area within a radius of 150 metres from premises at which terminations are provided'. Persons cannot engage in 'prohibited behaviour' in these access zones, at the risk of a fine of 75 penalty units[footnote 48] and/or 12 months imprisonment. Prohibited behaviour under s 9 includes:
(a) besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding a person;
(b) any protests relating to terminations that can be seen or heard by a person attempting to access premises providing terminations;
(c) footpath interference in relation to terminations;
(d) intentionally recording a patient attempting to access the clinic; or
(e) any other prescribed behaviour.[footnote 49]
There is an exception to the prohibited behaviour of intentionally recording a person where that behaviour is reasonable conduct of a law enforcement officer acting in the course of their duties (s 9(3)).
The Health (Patient Privacy) Amendment Bill 2015 was passed by the ACT Legislative Assembly on 29 October 2015 to create privacy zones around approved medical facilities.[footnote 50] ACT Minister for Justice Shane Rattenbury had previously presented an Exposure Draft to the ACT Legislative Assembly on 6 August 2015, outlining amendments to the Health Act 1993 (ACT) to provide for prohibited behaviour within protected areas.[footnote 51] The Exposure Draft underwent community consultation which closed on 11 September 2015,[footnote 52] and the resulting Bill was presented to the Legislative Assembly on 17 September 2015.[footnote 53] The Bill was amended by the Government during consideration in detail including amendments to push the commencement date of the Bill out to 6 months after its passage to allow for administrative arrangements.[footnote 54]
Protected areas and protected periods are limited under the scheme. Under s 86, protected areas around approved medical facilities must be declared by the Minister, and such a declaration is a disallowable instrument.[footnote 55] The Minister must be satisfied that the area is 'sufficient to ensure the privacy and unimpeded access for anyone entering, trying to enter or leaving an approved medical facility', while also being 'no bigger than necessary to achieve that outcome'. Following amendments to the Bill in the Assembly, this zone must be no less than 50 metres around the facility. Civil Liberties Australia have noted that they prefer this approach—where the Minister is required to set an exclusion zone, and where the size of the zone is not prescribed by legislation and can be tailored to each clinic—as it is capable of excluding private property from the zone and strengthens arguments that the zone is 'appropriate and adapted to the circumstances'.[footnote 56] In addition, these zones only apply during 'protected periods' which include the hours of 7am to 6pm each day of operation of the clinic, and 'any other period declared by the Minister' (proposed section 85(2)).
Prohibited behaviour within the Bill has an intent element whereby 'harassment, hindering, intimidation, interference with, threatening or obstruction of another person' or 'an act that can be seen or heard by a person' in the protected area during the protected period is prohibited where it is intended to stop that person entering the facility, or 'having or providing an abortion' in the facility (s 85(1) definition). Following consultation, this intent element was also extended to the 'capturing of visual data' which is only prohibited behaviour where that recording is intended to stop a person entering the facility, or having or providing an abortion at the facility (s 85(a)). Similarly, publishing that visual data is only an offence where it is published with 'the intention of stopping a person from having or providing an abortion' (punishable by a maximum of 50 penalty units[footnote 57] and/or 6 months imprisonment) (s 87).
Protests 'by any means' in relation to the provision of abortions in the facility are also forms of prohibited behaviour during the protected period (proposed s 85). Engaging in prohibited behaviour within a protected area is punishable by a maximum of 25 penalty units[footnote 58] (s 87(1)).
NSW Greens MLC Dr Mehreen Faruqi sought leave to introduce the Abortion Law Reform (Miscellaneous Acts Amendment) Bill as a Private Member's Bill in May 2015, but the motion has been postponed a number of times.[footnote 59] The Bill seeks to decriminalise abortion in NSW, and introduce exclusion zones to 'make it an offence to protest, harass, intimidate or film without consent a person accessing abortion services within a 150 metre radius of an abortion clinic'.[footnote 60] Polling by Essential Research in NSW in July 2015 indicated that 54 per cent of respondents thought it should be illegal to protest outside a medical clinic that provides abortions, while 30 per cent thought it should be legal.[footnote 61]
The province of British Columbia in Canada has had exclusion zone laws in place since 1996 under its Access to Abortion Services Act. Under this Act, access zones around specific facilities are determined by the Lieutenant Governor in Council by regulation and encompass the land 50 metres from the boundaries of the parcel of land on which a specified facility is located. Persons must not engage in certain activities in access zones including: engaging in sidewalk interference; protesting, besetting, physically interfering or attempting to interfere with a service provider; and intimidating or attempting to intimidate a service provider. Graphic recording and harassment is also prohibited in the access zone. Local governments such as Calgary, Alberta and Toronto, Ontario have also enacted access zone provisions around specific clinics, while other clinics have sought individual injunctions against protest groups.[footnote 62] The Canadian Charter of Rights and Freedoms has similar provisions protecting freedom of expression as those in Victoria, and it was held as early as 1996 that access zones around abortion clinics were a reasonable impairment on that right as 'freedom of expression may be impaired geographically, by time and by manner'.[footnote 63]
United States of America
The United States has a violent history of protests against abortion.[footnote 64] Under the Freedom of Access to Clinic Entrances Actcertain activities are prohibited in the USA including intentionally injuring, intimidating or interfering with persons obtaining or providing reproductive health services; intentionally injuring, intimidating or interfering with persons lawfully exercising their right of religious freedom at a place of religious worship; and, intentionally damaging or destroying a property because it provides reproductive health services or is a place of religious worship.[footnote 65] A first offence under this Act is punishable by a fine and/or 12 months imprisonment, and subsequent offences are punishable by a fine and/or three years imprisonment. These offences do not constitute an exclusion zone as there is no specific area that protesters cannot enter, but injunctive relief prohibiting a person from attending a clinic can be sought after a first offence. A number of States in the US have also enacted 'buffer zone' laws around abortion clinics in addition to the Federal offences, although a 2014 Supreme Court ruling has found such zones to be a violation of the US Constitutional right to free speech.[footnote 66]
Since the early 1990s in France, it has been an offence under the Public Health Code to prevent or attempt to prevent a termination of pregnancy or preliminary acts, punishable by two years' imprisonment and a fine of 30,000 euros. This includes disrupting access to the termination facilities, the free movement of persons within these facilities, or the working conditions of staff; and/or by employing moral or psychological pressure, threats or any act or intimidation on either staff, women accessing the services, or people accompanying them.[footnote 67] In South Africa, it is an offence to prevent the lawful termination of a pregnancy or to obstruct access to a facility for the termination of a pregnancy, but it is not illegal to protest.[footnote 68] Recently, there have also been calls in the UK for buffer zones to restrict the recording of people accessing abortion clinics.[footnote 69]
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[footnote 4] P. Anderson (2014) 'Deluded pro-life crusader Peter James Knight kills guard, but wanted more dead after he brought his gun and hatred to an abortion clinic in Melbourne', Herald Sun, 11 March.
[footnote 5] Helpers of God's Precious Infants (date unknown) 'Prayer sites – Australia', Helpers of God's Precious Infants website; See also A. Cooper & A. Carey (2015) 'East Melbourne abortion clinic lawyers demand end to pro-life "nuisance"', The Age, 3 June.
[footnote 6] J. Vuk (2014) 'Rank and vile, that's the charge of the life brigade', The Age, 17 March.
[footnote 9] A writ of mandamus is a court order that commands an entity to either perform, or refrain from performing, a particular act. Here, the writ was being sought to require the Melbourne City Council to resolve the nuisance.
[footnote 11] ibid., [footnote 31].
[footnote 12] ibid., [footnote 32].
[footnote 13] F. Patten (2015) '<href="#page=13">Introduction and first reading: Public Health and Wellbeing Amendment (Safe Access) Bill 2015', Debates, Victoria, Legislative Council, 18 August, p. 2487.
[footnote 14] See, Victoria, Legislative Council (2015) 'Second reading: Public Health and Wellbeing Amendment (Safe Access) Bill 2015', Debates, 2 September, pp. 2854–2874.
[footnote 15] A. Savage (2015) 'Victorian Government confirms support for abortion clinic buffer zone laws', ABC News, 1 September.
[footnote 16] Ibid.
[footnote 17] J. Hennessy (Minister for Health) (2015), 'Second reading: Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015', Debates, Victoria, Legislative Assembly, 22 October, pp. 20–23.
[footnote 18] At the time of writing, the Bill was still at the second reading stage in the Legislative Council.
[footnote 19] 500 penalty units currently equals $75,835 (penalty units are indexed for inflation every financial year); See Department of Treasury and Finance (2015) 'Indexation of fees and penalties', DTF website.
[footnote 20] Explanatory Memorandum, Public Health and Wellbeing Amendment (Safe Access) Bill 2015, p. 3.
[footnote 22] As opposed to the earlier day of the day of proclamation or 1 December 2015 in the private member's Bill.
[footnote 23] See Coleman v Power (2004) 220 CLR 1.
[footnote 24] F. Patten (2015) '<href="#page=13">Statement of compatibility: Public Health and Wellbeing Amendment (Safe Access) Bill 2015', Debates, Victoria, Legislative Council, 19 August, p. 2544.
[footnote 25] ibid.; The right to freedom of expression and these associated exceptions are also contained in Article 19 of the International Covenant on Civil and Political Rights (United Nations), to which Australia is a signatory.
[footnote 26] J. Hennessy (Minister for Health) (2015), 'Statement of compatibility: Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015', Debates, Victoria, Legislative Assembly, 22 October, pp. 3973–3974.
[footnote 27] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
[footnote 28] ibid., p. 561.
[footnote 29] E. Jones (2014) 'Implementing protest-free zones around abortion clinics in Australia', Sydney Law Review, 36, p. 174.
[footnote 30] Coleman v Power (2004) 220 CLR 1, p. 2.
[footnote 31] Monis v The Queen (2013) 249 CLR 92, p. 131 [footnote 67]; See Jones, op. cit., p. 174; In this case, the potential political communication involved letters Mr Monis was sending to relatives of Australian soldiers killed in active service, found to be offensive under s 471.12 of the Criminal Code (Cth).
[footnote 32] Monis v The Queen (2013) 249 CLR 92, pp. 180 [footnote 241], [footnote 251].
[footnote 33] Jones, op. cit., p. 174.
[footnote 34] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, p. 567; Coleman v Power (2004) 220 CLR 1, p. 51 [footnote 95].
[footnote 35] ibid.
[footnote 36] Levy v Victoria (1997) 189 CLR 579, p. 619; Coleman v Power (2004) 220 CLR 1, p. 102.
[footnote 37] Levy v Victoria (1997) 189 CLR 579, p. 619–620.
[footnote 38] Jones, op. cit., p. 183; M. Stokes (2013) 'Tasmanian ban on abortion clinic protests may not be constitutionally valid', The Conversation, 25 November; See also, A. Stone (2013) 'Tasmania's abortion protest law is probably constitutionally valid', The Conversation, 29 November.
[footnote 39] Prohibiting communication in relation to reproductive health services in the safe access zone may also have been problematic as it could apply to communication by the reproductive health service provider.
[footnote 40] Coleman v Power (2004) 220 CLR 1, pp. 53-4, 56, 66.
[footnote 41] See Public Health and Wellbeing Act 2008 (Vic), s 61.
[footnote 42] See H. Taylor (2011) Accessing Abortion: improving the safety of access to abortion services in Victoria, Parliamentary Intern Report, June, p. 18.
[footnote 43] P. Walsh (Minister for Agriculture) (2013) '<href="#page=66">Second reading: Sustainable Forests (Timber) and Wildlife Amendment Bill 2013', Debates, Victoria, Legislative Assembly, 31 October, p. 3797.
[footnote 46] In 2005, the Australian Democrats sought to extend these provisions to apply to protesters outside abortion clinics in Victoria, but no legislation was introduced; See P. Heinrichs (2005) 'Democrats push for clinic law', The Age, 28 August.
[footnote 47] See R. Sifris (2015) 'Tasmania's Reproductive Health (Access to Terminations) Act 2013: an analysis of conscientious objection to abortion and the "obligation to refer"', Journal of Law & Medicine, 22, pp. 900–914.
[footnote 48] Tasmanian penalty units are indexed annually. In 2015–16, a penalty unit is $154, with the current penalty for engaging in prohibited behaviour within an access zone amounting to $11,550. See, Department of Justice (Tas) (2015) 'Value of Indexed Amounts in Legislation', Tasmanian Department of Justice website.
[footnote 51] S. Rattenbury (Minister for Justice) (2015) 'Health (Patient Privacy) Amendment Bill 2015—exposure draft: Papers and statement by member', Debates, Australian Capital Territory, Legislative Assembly, 6 August, p. 2417.
[footnote 52] See ACT Parliamentary Counsel (2015) 'Consultation Period: 20 July 2015 to 11 September 2015', ACT Legislation website.
See also, the Explanatory Statement to the Bill which outlines the human rights implications of the Bill.
[footnote 54] Australian Capital Territory, Legislative Assembly (2015) Debates, 29 October 2015.
[footnote 55] A disallowable instrument must be tabled and is open to Parliamentary veto (disallowance); See, Australian Government (2015) '<href="#D">An A–Z of key jargon', ComLaw website.
[footnote 58] Currently $3,750.
[footnote 59] See NSW Legislative Council (2015) Legislative Council Notice Paper No. 34—Thursday 29 October 2015, Parliament of NSW, p. 2668.
[footnote 60] Greens NSW (2015) Make it Happen: the Greens NSW Plan to Reform Abortion Laws and Stand up for Women's Reproductive Rights, media release, Greens NSW, 8 March.
[footnote 61] Essential Media Communications (2015) 'Right to Protest', Essential Vision website, 7 July; See also, M. Faruqi (2015) Greens MP Reiterates Call for Protest Exclusion Zones Outside Abortion Clinics Following New Polling, media release, NSW Greens, 8 July.
[footnote 62] For the efficacy of these options see F. Wu & J. Arthur (2010) A Survey of Anti-Choice Protesting Activity at Canadian Abortion Clinics, Abortion Rights Coalition of Canada, October.
[footnote 63] R v Lewis (unreported, Sup Ct, BC, 1996, No CC960120)p. 100; See R. E. Dean & S. Allanson (2004) 'Abortion in Australia: access versus protest', Journal of Law & Medicine, 11, p. 513; The Constitution Act 1982 (Can), Part 1, cl 1 and 2.
[footnote 66] McCullen v Coakley 523 U.S. __ (2014); See L. Bassett (2014) 'Abortion clinic buffer zones crumble around the country', Huffington Post, 7 July.
[footnote 67] See 'Abortion Law France', Women on Waves; United Nations (date unknown) 'Population Policy Data Bank: Abortion Policy: France', United Nations.
[footnote 69] T. McTague (2014) 'Labour calls for US-style 'buffer zones' around abortion clinics to stop protesters hassling patients', Daily Mail, 9 December.