Executive Director of SHFPACT, Tim Bavinton, reflects on the first legal test of the ACT's laws establishing protest exclusion zones at abortion clinics.
ON 9 March 2018, the ACT Magistrate’s Court dismissed charges against three men for allegedly violating ACT laws establishing protest exclusion zones around medical facilities providing abortion services. The three acknowledged their longstanding opposition to abortion and their prior involvement in vigils and protests at the same site over many years.
Keen observers are likely to view the decision either with concern or welcome it, depending on how it reflects their underlying beliefs about abortion.
At first glance of the headlines following the decision, the result could mistakenly be read as the failure of exclusion zones legislation. And it may likely to be heralded as some kind of victory by some. However, the decision by Magistrate Glenn Theakston carefully considers the operation and appropriateness of ACT laws and regulations, and the context of the behaviour for which the three men were charged. This case represented the first real legal test of the operation of these laws and regulations.
A closer reading of the decision itself sends some very clear signals about the limitation of protest outside abortion services, and substantially affirms existing ACT laws and regulations establishing protest exclusion zones to protect patient access to care. The decision rejects many of the arguments put forward by the defence that these laws and regulations are invalid, overreach, or didn’t apply in the particular circumstances.
Anti-abortion protestors are not afforded any great encouragement by the decision. It certainly does not represent the overturning of the exclusion zones. The charges were dismissed substantially on the Magistrate’s finding that silent prayer in these circumstances does not cross the line that would constitute it being found to be a form of ‘protest’. It does draw rather stark attention to that line, however, and the points where it may almost have been crossed in the particular circumstances of this case. The holding of rosary beads by one defendant was specifically mentioned.
In short, the laws providing for exclusion zones around abortion services are valid. The particular one in question at the ACT Health building in Moore Street was not unlawfully established, and does not overreach in achieving the purpose of limiting or removing impediments (in the form of protest and the presence of protesters) to access a health service. The decision does find the inclusion of Rudd Street within the proclaimed zone unnecessary, and helpfully clarifies the distinction between the outside of surrounding buildings included in the zone from activity inside them which would not be in the view of a person outside (such as nearby apartments or offices).
In a carefully nuanced argument citing previous legal decisions both in Australia and overseas, Mr Theakston found silent prayer does not amount to ‘protest’, when he affirmed that ‘protest’ necessarily includes an intention to ‘communicate’. And that silent prayer alone (when offered individually, without prominent props, and without ostentation) does not so communicate. His decision implicitly confirms that protest outside abortion services could be legal in the ACT, but not at times where it would impede access by those using the services.
This view sidesteps, perhaps, the meaning humans make of the intentions behind others’ actions. We implicitly interpret the behaviour of others as having significance and intention.
Praying silently at a place where a religiously-inclined person believes wrongdoing occurs is accurately read in most people in our community as an intentional statement. Why else would it happen? It begs the question asked by many, that if prayer about abortion is truly effective, then it is effective anywhere and at any time, not just outside abortion clinics. Similarly, if the decisions about laws we believe unjust or unfair are made in parliaments, then protest outside parliaments and lobbying of lawmakers must surely be more effective than protesting outside health clinics.
Whether or not you support or oppose a particular form of protest against a particular issue, what is revealed here is a very human truth that we DO put a symbolic value on ‘place’ when we protest. And the location and time chosen by the defendants in this case suggests, at the very least, their belief that it was significant or relevant to their prayer. Or to the recipient of their prayers. And that it can be so understood by others, whether passers-by, readers of news reports, or people seeking to use abortion services themselves. It is this insight that underpins the need for laws creating exclusion zones around abortion services.
It is clear that under ACT laws, no one can be prosecuted for holding an opinion about abortion, communicating that opinion to others, or seeking to influence how laws are made about abortion, unless one seeks to do so at a relevant health service at relevant times. This applies equally to those who would seek to restrict and re-criminalise abortion, and to those who advocate for safe, legal access to a necessary health service. The ACT’s laws reflect, and Mr Theakston’s decision confirms, the understanding that protest of any kind at specific times outside abortion services does impose an access barrier for people seeking to use those services, and that some restriction on the right to protest is warranted, reasonable and fair.
A resounding confirmation for the balance of civil and political rights was achieved in the ACT’s laws in this matter.