ACT Abortion-Protest Laws Strike the Balance

Politicians blather on from time to time around the world about their anti-abortion credentials, but this is most notably either a US phenomenon or a brief part of Abbott’s leadership gambit opus “Battlelines”.

Abortion is obviously not the same third-rail issue in Australia as it is in other parts of the world. In the Australian context, apart from the fringes, the most restrictive you will usually see a politician go is maybe arguing that abortions should be “legal, safe and rare” or that they should be part of a range of options with abortion as the last resort. But it is rarely part of the serious debate in Australia as to whether it should be Medicare funded, allowed only in more limited circumstances (instances of rape) or whether we should roll back the inclusion of RU486 on the Australian Register of Therapeutic Goods.

Regardless of your personal stance, it is very important to remember that the changes in Australian law have all happened really recently and have certainly not always been the norm. Victoria legalised abortion in 2008, Tasmania in 2013 (de-criminalised). In Queensland and South Australia, it is still not legal but there are some reasonable exemptions to allow abortion in the right circumstances, though it does remain a criminal offence on the books in Queensland.

Abortion drug RU486 was included in 2012 on the Register of Therapeutic Goods and on the PBS in 2013.

Victoria and Tasmania have included provisions for anti-protest zones that created bubbles around abortion providers, preventing those areas being used by protestors to harass women seeking to access safe and legal healthcare opportunities. Similar legislation was passed in the ACT and we are just seeing the first prosecution under those laws, with the accused facing fines of up to $3750.

Anti-protest laws have a dicey interaction with our implied freedoms and the line has always been legally and politically unclear.

From on High

In 2013, the High Court upheld Adelaide City Council legislation that prevented street preachers from preaching, canvassing, haranguing or distributing printed material within the area of the City of Adelaide without a permit.

At this point, I should note for the uninitiated that Australia holds no right to freedom of speech. The most we have is an implied freedom of political expression.

In South Australia v City of Adelaide, the High Court determined that although the Adelaide City by-laws did cause a burden the implied right of political expression they did not to the extent that it actually impugned the right to political expression.

This is the same question that often causes us to examine the United States in bewilderment; it is the balance between freedoms and protections. The way the US freedom of speech provisions have been interpreted allow objectionable speech whether it be the Ku Klux Klan or the publishing of pornography, depending on your personal disposition. There are reasonable prohibitions, but nowhere near as prohibitive as in Europe or Australia.

The Poppelwell Case

prowse prays for abortion

Three Canberra men, part of a prayer group, have been charged with an offence under section 87 of the Health Act 1993 (ACT), which makes it illegal to engage in prohibited conduct in a protected area.

Protected area means within 50 metres of a declared medical facility, in this case, the ACT Health building on Moore Street.

Prohibited conduct is a bit trickier.

The act defines prohibited behaviour as including intimidation, harassment, threats, capturing images and protest, amongst other prescribed behaviours.

It is alleged that the three men were holding a silent vigil and praying within the prohibited area and that this was a protest. This vigil involved sitting and walking only. The prosecutors relied also on tendency evidence to claim that the men were engaged in the protest despite any sort of “who, me?” position the men adopt. It is alleged that the men stood vigil, often with signs, at the main entrance every Friday for many years.



The case will likely be determined in the Magistrates Court by a determination of whether there was a protest or whether the law is compatible with the ACT Human Rights Act 2004. Likely, and I’m guessing here, sections 14-16 covering freedom of religion, freedom of assembly and freedom of expression.

Regardless of what happens in the Magistrates Court, there will no doubt be an appeal to the Supreme Court and likely the High Court to determine whether the Section prohibiting protest is inconsistent with the implied right to political speech.

The Director of Public Prosecutions gives the impression that he is hesitant to bring the prosecutions out of regard for the public interest test, but choosing to never enforce the law once it is on the books is not really an option, so it was inevitable that it was going to be tested and challenged constitutionally eventually. 

The decision will be handed down on 9 March 2018.

In my humble…

I’m glad of the fact and believe that we are stronger for not having the same divisive discussion on abortion that many other countries have.

Further to this, I’m glad that we don’t have the absolutist approach to public speech that the US has. There must necessarily be reasonable restrictions on most public acts.

However, the ACT law is problematic. People retain the right to express their opinions provided they are a certain distance from the providers of legal abortions. It operates as if there is no danger from people expressing these views provided they are in a certain geographical proximity, it claims that these acts of protest are equivalent to dangerous speech as opposed to valid political expression and it claims that the people conducting this form of speech are a problem that requires a unique distinction under the law.

It’s likely that we’ve gone too far in the inclusion of protests as prohibited action. Aggressive and vile acts of protest can definitely be used as a form of intimidation, but these acts are covered by the other definitions of the Act such as harassing, intimidating or threatening behaviour. To include protest, as its own category, probably tips the scale too far on the protection/freedom continuum and therefore risks a backlash, defeating the purpose of the legislation. If the stronghanded action instead leads to the validation or politicisation of acts of protest near medical clinics, then it has failed. My problem isn’t with what the three men did or didn’t do, my problem is with the wording of the law and whatever the next step is that we haven’t foreseen. In the arms of the wrong government, these laws enforce the precedence that can lead to protest being banned in other circumstances such as gagging environmental protestors outside of cage-egg farms or preventing protests outside of parliament or other objectionable gatherings.


UPDATE:  On 9 March 2018, Magistrate Theakston found each offence not proven and dismissed the charges which relied heavily on tendency evidence to show that the defendants must be engaged in a protest because of their previous behaviour.

Magistrate Theakston stated:

85.  I accept they were each engaged in silent prayer, and that such prayer involved no component of expression, communication or message to those around them.  The only reservation I have in that regard, arises from the presence of the rosary beads in the hands of Mr Clancy.  However, the presence of those rosary beads, without any other symbolic display or gesture, leaves me with a significant doubt about whether there was any expression, communication or message by Mr Clancy.

Full decision here.

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