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.

I Want A Reasonable Police Officer Dawg

Common sense is supposed to reign in the law, but so often it doesn’t, especially when the desired pre-conceived outcome disagrees with common sense.

The United States has a little thing called the 6th Amendment:

VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Similar protections for due process are also present under the 5th amendment.

A few hundred years of jurisprudence have qualified these rights into certain protections and processes that law enforcement and the courts are required to apply to ensure the constitutional rights of an accused are complied with.

For example: In a police interview, when a suspect requests a lawyer, the interview must end until a lawyer is supplied. If the police continue to question, they have breached the suspect’s rights under the 6th amendment and risk the admissibility of evidence. (Edwards v Arizona)

Sometimes the request is ambiguous and sometimes it isn’t but the Police think that a lawyer may get in the way of a conviction (they’re known for doing that).

This is not what’s up.

Warren Demesme voluntarily agreed to have a chat with the police at an interview down at the station. During the interview, Desmesme realised that he was being questioned as a suspect in the sexual assault of a child and promptly requested a lawyer. Or did he? Kindly parse the following sentence:

“I know that I didn’t do it, so why don’t you just give me a lawyer dawg ‘cause this is not what’s up.

Desmesme sought to have the evidence from the interview excluded at his trial. This was denied and he was convicted based on that evidence. Desmesme appealed on the basis that his 5th and 6th amendment rights were violated. The appeal was denied. Desmesme appealed again, to the Louisiana Supreme Court. The Louisiana Supreme Court denied to take the case but Justice Scott Crichton did pen an opinion explaining the Court’s refusal. The problem apparently originated from the trial court’s transcript, which recorded “lawyer dog” instead of “lawyer dawg“. Crichton J, completely unironically, wrote:

“the defendant’s ambiguous and equivocal reference to a ‘lawyer dog’ does not constitute an invocation of counsel that warrants termination of the interview.”

Perhaps if the transcriber had used a comma, the Louisiana Courts would have recognised asking for a “lawyer, dog” not a “lawyer dog”, whatever that is, but even that’s just unrequired sympathy for Chrichton J’s position. Desmesme was clearly speaking plainly, albeit colloquially, and transcription notwithstanding, there was no real ambiguity to actually resolve. By penning his brain vomit, Crichton J probably created enough reason to have the decision overturned in the US Supreme Court, should they agree to accept the petition.


In Davis v United States, Willie Davis was stopped during a traffic stop and the police found an illegal weapon in the car. Davis requested a lawyer, one wasn’t provided, the interview continued and Davis made incriminating statements. The Supreme Court held that if a suspect’s request:

“is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him…[H]e must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.”

The test is therefore whether a reasonable police officer in the circumstances would have understood the request.

The test of the reasonable person or, in this case, the reasonable police officer can always be manipulated. The Lousiana Supreme Court would probably be better legally placed if they had given no reasons at all instead of diving deep into a diatribe explaining the differences between “lawyer dog” and “lawyer dawg”. But perhaps Demesme should have more clearly articulated who he wanted as his lead counsel…get it? (I almost made it without a single terrible gag).

What if it had been a confession instead of a request? For example, if the accused had said “I touched that child dawg“. Would Louisiana have inserted the same ambiguity? “Well, I’m not sure what a “child-dog” is, so it’s not a confession”. That probably wouldn’t have been reasonable.

Slants and Pommiebashers – Trademarking Slurs in Australia and US

Early last week the US Patent and Trademark Office registered a trademark for a band called “The Slants” six years to the day after it was applied for.

The Asian-American band from Washington state attempted to trademark their name was refused on the basis that it was offensive. The Government argued that even though they have no right to limit private speech, registering a trademark is government speech so they can regulate their own speech within breaching the first amendment.

The Supreme Court in Matel v Tam unanimously decided along classic first amendment lines that even though the policy did not “play favorites”, limiting any speech was not permissible and that trademarks are an expression of private speech.

Our cases use the term “viewpoint” discrimination in a broad sense, and in that sense, the disparagement clause discriminates on the bases of “viewpoint.” To be sure, the clause evenhandedly prohibits disparagement of all groups. It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue. It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.

We have said time and again that “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U. S. 576, 592 (1969). See also Texas v. Johnson, 491 U. S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”)

The decision makes it unlikely that other trademarks that may be considered “offensive” will not likely face the chopping block anytime soon; well-known recent examples such as the Washington Redskins.



Australian Perspectives – Nucking Futs

Australian Intellectual Property law is not quite so lenient. There are the protections under s 18C of the Racial Discrimination Act 1975 (Cth) to make unlawful any act if:

(a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

But as best as I could tell this has never been applied to prevent registration of a patent or trademark. Instead, we have s 42(a) of the Trade Marks Act 1995 (Cth), which states that a trademark application will be rejected if “the trade mark contains or consists of scandalous matter“. “Scandalous” is not defined in the act or the associated regulations.

The Australian Trade Marks Office will determine, on a case-by-case basis, guided by:

  • the actual words or images applied for;
  • the intended market for the relevant goods and services; and
  • the level of acceptance of the terms within the general population.

Overt imagery or words will be considered scandalous but mere suggestion will not be sufficient. Words or images that are too similar to offensive content will also be scandalous.

  • Nucking Futs = Acceptable
  • Pommiebasher = Acceptable
  • Farkoff = Acceptable
  • Cunce = Acceptable
  • Kunt = Unacceptable

Out of these three, “Pommiebasher” was the most controversial as the trademark office considered whether the term was a form of racial vilification. Eventually, they decided that the term was “ordinary and acceptable, if colourful and colloquial, language”.

It may surprise many to know that Australians have no explicit right to free speech. Scandalous may be a high threshold but it errs on the side of allowing speech (trademarks) that may be crude or in poor taste but stops short of anything that is a bit too far beyond the pale.