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Dr Ronli SifrisSenior Lecturer, Monash Law FacultyDeputy Director, Castan Centre for Human Rights LawEmail: ronli.sifris@monash.eduTwitter: @ronlisifris

Children by ChoiceUnplanned Pregnancy and Abortion in Australia ConferenceAugust 2017

15 August, 2017

Presentation prepared with, and stemming from research conducted with, Dr Tania Penovic

15 August, 2017

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Medical Director, Gateway Health Medical Clinic, Wodonga:

‘I think it’s been very effective in providing us & our patients with privacy.’

Susie Allanson, clinical psychologist, East Melbourne Fertility Control Clinic:

‘our patients [were] being harmed…we feel like it’s a much safer ….experience for our patients

now.’

Sarah van der Wal, doctor:

‘it’s taking away the completely fabricated shame of accessing the service’

Nurse & midwife in large hospital:

‘It means that, to me, women are equal and entitled to reproductive services without fear of

judgement, vilification…’

YES

Do safe access zones work?

15 August, 2017

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Human rights opposing safe access zones

Human rights supporting safe

access zones

Human rights challenges

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Nurse & midwife in large hospital:

‘It’s an acceptance that the rights are lesser & that the voice is lesser. And the equality is not there. It’s an acceptance that there's this disparity in

equality.’

Social worker:

‘[With] almost any other health issue, the community would say

“how dare you stand outside that clinic & protest about someone getting a health service, how dare

you?”’

GP in regional Victoria:

‘I think it’s really saying that it’s okay to look the other way when someone else’s rights are being infringed upon. I see it as akin to looking away

when a racial slur is occurring, or someone with a disability is being undermined.’

Susie Allanson, clinical psychologist, East Melbourne Fertility Control Clinic: : ‘The

protesters’ chronic harassment and intimidation is a form of violence against women.’

In the words of interviewees…

Human rights supporting safe access zones

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Freedom of speech

15 August, 2017

Dr Sarah van der Wal:‘There is absolutely nothing about safe access zones that stops people from expressingthe view that they do not support terminations of pregnancy. You can write a newspaperarticle, you can tell anybody who wants to listen, you can write a book, you can go onsocial media. There's absolutely every right for you to have that. You can stand 150metres away … and loudly declare that you do not support termination. What you can'tdo is restrict people’s access, and I think that’s what the safety zones allow. They stoppeople from physically obstructing, and emotionally obstructing, access to the service. SoI don’t think it is curbing people’s right to free speech, because no one is suggesting thatyou cannot have that opinion, or vocalise that opinion. What they are suggesting is thatyou can't throw pig’s blood at people.’

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• There is no right to free speech in the Australian Constitution BUT there is an implied freedom of political communication (IFPC).

• In order to determine whether the safe access zone provisions infringe the IFPC we need to consider:1. Do the safe access zone provisions impose a burden on political

communication? If so,

2. Is the burden justified?

Would the laws survive a Constitutional challenge?

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Arguably yes because:

1. High Court has set a low bar for this limb of the test.

2. While abortion is an intensely personal matter, it is also political.

3. The burden on political communication only needs to be slight.

Do the safe access zone provisions impose a burden on political communication?

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1. Compatibility testing: Are the safe access zone provisions compatiblewith the implied freedom of political communication?

2. Proportionality testing: Are the safe access zone provisions suitable, necessary and adequate in the balance?

Is the burden justified?

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• the purpose of the law must not impede the functioning of the system of representative government.

• There are a number of objectives which could be ascribed to the safe access zone provisions which the High Court has previously held to be compatible with representative government: Preventing traffic disruption: A-G (SA) v Adelaide Protecting women’s safety: Levy v Victoria Preserving public order to the extent that they prevent physical violence: Coleman v

Power protecting people from intrusive, seriously offensive communications: Monis v The

Queen per Crennan, Keifel, and Bell JJ • Even without analogous case law, it is submitted that the objective of

securing women’s access to health care free of intimidation or harassment is an objective that is compatible with our system of representative government.

Compatibility testing: Are the safe access zone provisions compatible with the implied freedom of political communication?

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Proportionality testing: Are the safe access zone provisions suitable, necessary and adequate in the balance?

Suitable?

Necessary? Adequate in the balance?

Subjective test so difficult to predict High Court decision!

In my view, safe access zone provisions meet the proportionality test and do not infringe the IFPC.