In what comes as very positive news for Australian women, The High Court has rejected a claim on the rights to protest outside abortion clinics by anti-abortion advocates. The decision of the High Court serves to reinforce the validity of NSW’s safe access zone laws, which were enacted in 2018, and which reflect Victoria’s legislation with respect to abortion clinics, safe access zones, and a woman’s right to attend a clinic without harassment or vilification.

The judgement, handed down on Wednesday, April 10, 2019, saw the High Court unanimously dismiss two appeals against the Victorian and Tasmanian laws. These laws impose “safe access zones” of one hundred and fifty metres around abortion clinics.

The plaintiffs’ argument was based on the concept that Victoria’s safe access zone laws place a burden on the implied freedom of political communication as it currently stands in the Constitution. The majority of the Court, however, rejected this argument, with seven Justices additionally dismissing the argument unanimously as it pertains to Tasmanian law.

Exclusion zones of one hundred and fifty metres came into effect in NSW abortion clinics following the Legislative Assembly vote in June 2018. The legislation made it illegal to obstruct or harass people accessing abortion clinics. It also states that it is an offence to record people accessing abortion clinics without their consent.

The most controversial aspect of the law, however, was that it is now illegal to make “a communication that relates to abortions, by any means” that is “reasonably likely to cause distress or anxiety” to a person accessing or leaving a clinic. In NSW, this offence is punishable by a jail term of up to six months for a first offence and twelve months for a subsequent offence.

The challenge to the laws in Victoria was brought by anti-abortion protester Kathleen Clubb, who was charged in 2016 after entering the exclusion zone and attempting to hand a pamphlet to a couple entering a Melbourne abortion clinic. Ms Clubb’s appeal was dismissed by a minority of the Court without determining the constitutional validity of Victoria’s law, due to the fact that she had not proved her conduct fell within the definition of political communication.

Tasmania’s laws were appealed by John Preston after he was charged under the Reproductive Health Act which prohibits, in certain circumstances, “a protest in relation to terminations”. This followed Preston being apprehended outside a Hobart clinic with an anti-abortion placard in both 2014 and 2015.

Coalition MPs who voted in support of NSW’s safe access zones legislation included Premier Gladys Berejiklian and a majority block of MPs (including Labor and the Greens) in voting down 19 amendments proposed by conservative Liberal MPs. These amendments sought to curtail the law via measures including a reduction to the size of the safe access zone to fifty metres, elimination of the proposed jail sentence, and provision of exemptions for actions such as silent prayer inside the zone.

In a joint statement, Chief Justice Susan Kiefel, Justice Virginia Bell, and Justice Patrick Keane resolved that “those wishing to say what they want about abortions have an unimpeded ability to do so outside the radius of the safe access zones”. Their judgement further stated that: “A measure that seeks to ensure that women seeking a safe termination are not driven to less safe procedures by being subjected to shaming behaviour or by the fear of the loss of privacy is a rational response to a serious public health issue.”

The verdict on April 10 was welcomed by Labor MP Penny Sharpe (co-sponsor of the NSW legislation) as an “important day for women across Australia”.

“This definitive statement from the High Court means that the NSW laws drafted by myself and Trevor Khan are valid, and women in NSW are now fully protected by the laws passed by the Parliament last year,” Ms Sharpe stated.

Nationals MP and co-sponsor Trevor Khan said the judgment showed that “if we put aside partisan politics, our Parliament can produce important social change that improves a lot of ordinary people in our community”.

The High Court outcome is a great step forward for women, who deserve autonomy over their own bodies and their own reproductive rights.

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