Tasmania's abortion protest law is probably constitutionally valid

Earlier this week, constitutional law academic Michael Stokes predicted the High Court of Australia would overturn new Tasmanian legislation banning anti-abortion lobbyists from protesting within 150 metres of abortion clinics. But past cases examining freedom of political communication in Australia suggest this is unlikely.

Background to the bill

Tasmania’s parliament recently passed the Reproductive Health (Access To Terminations) Bill which decriminalises abortion in that state.

One section of the bill has provoked a debate about freedom of speech and constitutional law. Section 9 of the bill creates “access zones” of 150 metres around abortion clinics. In these zones, the following activities are prohibited:

1. “besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding” a person

2. a “protest in relation to terminations” that can be seen or heard by people accessing a clinic

3. “recording, by any means” a person accessing a clinic without that person’s consent.

The aim of these provisions is obviously to allow women to enter a clinic for the purposes of a termination without disruption or obstruction.

Freedom of political communication in Australia

The Australian Constitution provides some protection for speech and expression under the “freedom of political communication” doctrine. However, as its name suggests, it only covers “political communication” rather than “speech” or “expression” as a whole.

In fact, it is narrower still: the protection is conferred on only political communication relevant to federal politics rather than political communication generally.

That limitation is the first potential stumbling block for a challenge to this law. It is very likely that protest against the legality of abortion is “political communication” in the relevant sense.

While the decriminalisation of abortion is a state political matter, the Commonwealth has influence over abortion funding, which may bring this issue into the federal sphere. Still, it is not clear that in all cases those affected by this law are engaging in political communication of that kind. Where protesters are simply seeking to dissuade individual women from undergoing an abortion (without comment on broader matters of policy), it could be argued that the communication relates to personal choices and is not relevantly “political”.

Even so, there is a stronger basis to defend this provision. A second basic principle of freedom of political communication is that it is not absolute. The High Court has been clear from the doctrine’s inception, that even when a law limits freedom of political communication, it will be valid if it is a “reasonable” limitation and pursues a valid legislative object that is itself compatible with the Constitution.

For this reason, the High Court recently upheld (by a 6:1 majority) laws preventing preaching in Adelaide’s Rundle Mall despite them clearly placing a burden on political communication.

To determine whether a law imposes a reasonable limitation on political communication, it is relevant to consider whether it is directed to a “legitimate end”; and whether it uses reasonable means.

Preventing obstruction

Section 9 does seem directed to a legitimate end. It is designed to ensure unobstructed access to the premises where terminations are performed.

In the Rundle Mall case, it was accepted that the Adelaide City Council could prevent the “obstruction” of the roads and secure their “safe and convenient” use. The rationale for limiting protest outside of abortion clinics may be even stronger.

Women entering these premises may be particularly vulnerable to harm caused by protesting and it is arguable that their privacy rights are infringed by these activities.

Three High Court judges have explicitly recognised that the right to be protected from intrusion can justify a limitation of political communication, and a challenged law was upheld on this basis.

Too broad?

The only question remaining, then, is whether the means used by the law are reasonable. Michael Stokes is troubled by two features of the law. First, that it is not limited to protests that involve violence or are likely to provoke violence, and secondly that it applies only to protests about terminations, rather than protest generally.

The first point is inconsistent with previously decided cases. The High Court has held that a law directed at preventing insult can validly restrict political communication only where it is intended to or is likely to cause a violent response.

However, this law is directed at a quite different end: ensuring safe, unobstructed access to abortion clinics. There is no reason why it would be necessary to limit such a law to violent or provocative protests. In the Rundle Mall case, for instance, there was no suggestion that the preachers were violent or provoking violence: their obstruction of the roads was sufficient.

The law’s focus on protest about terminations (rather than protest generally) is almost certainly unproblematic. Under free speech law in the United States, a law that targets a particular message is usually held invalid.

However, the High Court has never accepted such a rule and nor have any other courts around the world. To succeed, then, this argument would require the High Court to change the law and to move it in a direction that is almost unique in world terms. That is not impossible, but always unlikely.

If there is an argument to be made against this law, it is on a different ground altogether. It might be said that the 150 metre zone is too large or that the restriction ought to be subject to exceptions – for example, where protestors agreed to abide by certain restrictions.

Such an argument – an argument that less restrictive means are available – is always a possibility. But here it should be remembered that the High Court has not generally been inclined to interfere with the detail of a law simply because some less restrictive means can be imagined.

It would be necessary to show that these “less restrictive means” are also “reasonable practicable”. Therefore, it remains open for the Tasmanian government to show that the buffer zone was a reasonably practical measure, and, on that grounds, valid.

What’s likely to happen

The High Court’s established approach to freedom of political communication therefore provides strong arguments in favour of the validity of this law. Also, it is worth remembering how difficult it is to challenge a law for infringing political communication.

In the 20-year history of this doctrine, the High Court has invalidated one Commonwealth law (in 1992), altered the common law once (in 1997), and limited the application of one state law (in 2004). All other High Court challenges based on the freedom of political communication have failed.

As a final point, it should be noted that buffer zones are not unheard of in other countries. It is especially telling that the United States Supreme Court has upheld laws or injunctions imposing “buffer zones” outside hospitals, clinics and doctors homes on three occasions: in 1994, 1997 and 2000.

If the US Supreme Court – which presides over the strongest right of freedom of speech in world – can be convinced to uphold such a law, it seems very likely that the High Court of Australia could be too.

Adrienne Stone receives funding from the Australian Research Council to research freedom of expression and constitutional law.