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High Court affirms safe access to abortion clinics

The High Court of Australia has handed down its judgment in response to a challenge to the validity of Victorian and Tasmanian abortion service safe access zone laws.

user iconGrace Ormsby 11 April 2019 The Bar
High court of Australia
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The laws, which promote the safety, dignity and privacy of women seeking reproductive healthcare have been upheld by the court, affirming the use of 150-metre buffer zones outside health clinics in the two states, the Human Rights Law Centre has said.

The challenge, mounted by two anti-abortionists, saw the High Court asked to determine whether legal provisions are consistent with the implied freedom of political communication in the Australian Constitution.

Each appellant argued against a provision under which they had been charged as being “invalid because it impermissibly burdens the freedom of communication about matters of government and politics which is implied in the constitution”, the judgment of Chief Justice Susan Kiefel, Justice Virginia Bell and Justice Patrick Keane explained.


Kathleen Clubb had been charged under section 185D of the Public Health and Wellbeing Act 2008 (Vic) (the Public Health Act) in the Magistrates’ Court of Victoria with engaging in “prohibited behaviour namely communicating about abortions with persons accessing premises at which abortions are provided while within a safe access zone, in a way that is reasonably likely to cause anxiety or distress,” the High Court judgment noted.

John Preston had been charged in the Magistrates Court of Tasmania with breaching section 9(2) of the state’s Reproductive Health Act on two occasions in September 2014, and again in April 2015 for holding placards, leaflets and a media release, it was also explained.

In the 180-page, 509-paragraph judgment, the appeals of Mrs Clubb and Mr Preston were dismissed, with both ordered to pay costs for the respondents’.

Chief Justice KiefelJustice Bell and Justice Keane applied the McCloy test to test the anti-abortionists’ claims, with Mrs Clubb and Mr Preston having argued that “the challenged laws fail to satisfy” that test.

It was noted that “the implied freedom is not a guarantee of an audience; a fortiori, it is not an entitlement to force a message on an audience held captive to that message”.

Further, “it is inconsistent with the dignity of members of the sovereign people to seek to hold them captive in that way”.

McCloy was also cited by Chief Justice KiefelJustice Bell and Justice Keane when they said that “a law calculated to maintain the dignity of members of the sovereign people by ensuring that they are not held captive by an uninvited political message accords with the political sovereignty which underpins the implied freedom”.

For Justice Stephen Gageler, he considered that “if the freedom of political communication was to be relied on to impugn her prosecution for the offence created by section 185D of the Public Health Act, the practical onus was on Mrs Clubb to bring such material forward. She did not do so”.

He also considered that Mr Preston’s appeal must be dismissed.

Both Justice Geoffrey Nettle J and Justice Michele Gordon also agreed that the challenges from both individuals should fail, but provided their own reasonings as to the decision, while Justice James Edelman noted a unanimous rejection of the Reproductive Health Act’s invalidity, and considered there to be “no good reason to adjudicate upon the validity of section 185D of the Public Health Act”, among other considerations.

For Dr Susie Allanson, a clinical psychologist at Melbourne Fertility Control Clinic for 26 years, the High Court’s rejection of the challenge is a win for women accessing services and also for staff working in abortion clinics.

“Since the safe zones came into effect, women and staff are no longer a target when they walk up to the clinic, and women no longer carry the heavy burden of being publicly attacked for seeking medical care,” she explained, calling it a great result that enshrines respect for women’s choices.

For the Human Rights Law Centre’s Adrianne Walters, the High Court decision acknowledged the importance of privacy, safety and equality in healthcare access.

“With today’s decision, women in Victoria and Tasmania never again need to worry about being forced to run a gauntlet of abuse to access abortion care,” she relayed.

“Safe access zones are here to stay,” Ms Walters continued.

With anti-abortionists outside clinics causing serious distress, fear and anxiety to patients and staff, she then noted that “women seeking reproductive healthcare in WA and SA are being harassed by anti-abortionists because their governments have failed to protect them”.

“There can be no excuse for delaying safe access zone laws,” she stated.

For Maurice Blackburn principal lawyer, Jennifer Kanis, safe access zones protect a woman’s rights in safely accessing lawful health services where other legal protections have failed.

In welcoming the High Court’s decision, she noted that safe access zone laws protect the privacy, safety and dignity of women seeking reproductive health care.

“We are pleased that this decision upholds the primacy of privacy and health outcomes for women,” she exclaimed.

“Maurice Blackburn acted pro bono in this matter because safe access zones are effective in preventing abuse and intimidation,” Ms Kanis highlighted.

She also explained Maurice Blackburn’s role in the Supreme Court challenge that precipitated these laws, and how they will “continue to fight for women to be free to access reproductive healthcare”.

The Human Rights Law Centre was represented alongside Melbourne Fertility Control Clinic by Maurice Blackburn lawyers as intervenors in the case to defend Victoria’s laws as necessary to ensure women and staff can access clinics free from harassment and abuse, a statement said.


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