PUBLIC HEALTH AMENDMENT (SAFE ACCESS TO REPRODUCTIVE HEALTH CLINICS) BILL 2018

2nd Reading Speech

24 May 2018


The Hon. ADAM SEARLE (17:11): I make a contribution to the debate on the Public Health Amendment (Safe Access to Reproductive Health Clinics) Bill 2018 as a son, as a person with two sisters, as a partner, as a father with two daughters and as a friend of many women I know personally and professionally and who have enriched and shaped my life. I hope that in my contribution I speak in support of these women, because this bill is about the personal autonomy and agency of women. These women are our friends, our relations and our partners and lovers, and they may seek to attend reproductive health facilities. As we have heard in this debate, women who seek to attend reproductive facilities do so for a wide variety of reasons, not only to obtain a termination of pregnancy. This legislation is premised upon the simple idea that women should be able to access needed medical services without being accosted, harassed or intimidated in any way.

The Hon. Shayne Mallard and others said that this legislation is not about the legality of abortion, or whether the current state of the law should be changed; we debated that matter in this place not long ago. In today’s debate, the issue that has predominantly been raised against this bill is that the bill is somehow an infringement on fundamental rights and freedoms, such as the right to political communication and religious freedom. Some members in their contributions have waxed lyrical about High Court cases and other high constitutional principles. Let us be very clear: This is a nonsense. Before I develop that argument, let us look at the issue of fundamental rights and freedoms as ventilated in this House. I am not the first contributor to this debate to make this point. Where was that concern in 2012, when this Parliament enacted electoral funding reforms restricting the right to make political donations only to natural persons on the electoral roll, thus depriving many other civic societal institutions of the right to participate and be heard? Where was that spirit at 2:24 a.m. today when we were debating further electoral funding reforms, even in the shadow of earlier reforms having been struck down by the High Court?

The Hon. Trevor Khan in his contribution today made the telling point about where that concern lies, when this Parliament, without the support of this side of the House, enacted the mining protest laws providing for imprisonment of up to seven years for persons offending against that statute. I note that a previous contributor to this debate suggested that my side of politics likes to have its cake and eat it, because we opposed those other changes, whereas we as a party are supporting this bill. I will return to that earlier point, because this bill does not infringe on fundamental rights and liberties. I will try to develop that argument as intelligibly as I am able.

The fact is that in relation to fundamental rights and freedoms we are not just debating what any one of us might colloquially refer to as a moral right; instead we are debating those rights that have been recognised by law, the High Court in particular. In the case ofUnions NSW and Ors v State of New South Wales, the judgement went through the history of Longley, the ABC and the ACTV case to look at where this implied freedom of political communication came from and what it was about. In the ACTV case, Justice Brennan spoke of the need for there to be a free flow of political communication, so that electors may form judgements. Chief Justice Mason stated that it was only through uninhibited publication that the flow of information can be secured and the people informed. The case was about maintaining the integrity of the electoral process underpinning the system of representative government.

Unlike in the United States, the right of the implied freedom is protected in Australia by law only insofar as it maintains the integrity of the system of representative government. The question posed in Longley is whether a piece of legislation burdens the freedom, either in its terms, in its operation or in its effect. To work this out, we need to determine whether the legislation at issue is reasonably appropriate, adaptive or proportionate to serve a legitimate end in a way that is compatible with the maintenance of our system of representative government. We can burden the freedom, but only to secure that proper and appropriate end. It was held that the law only burdens the freedom of communication about government or political matters, and that is the limitation of it.

What do we have with this legislation? This legislation, in my observation, does not deal with political communication, because the behaviour it captures and seeks to prevent in order to prevent harassment and intimidation of women accessing reproductive health services is not one of seeking to engage in a discourse about public affairs. The bill does not seek to prescribe behaviour of persons seeking to have a public discussion about the state of the law, whether that is for abortion or any other topic. It does not in any way inhibit, prevent or restrict people’s rights, in other public places, to have discussions about wide matters of political interest or public affairs to inform the public, whether in relation to an electoral process, which is really with the implied freedom has its operation, or more generally about issues such as abortion.

When you take away all the trappings and window dressing that many people who have written to us have tried to dress it up in—and in many contributions today—it becomes clear that the activities that the bill seeks to address are to try, one way or another, to persuade individuals to not seek medical treatment. It is not about trying to engage someone on their way to a clinic about abortion law generally, but whether they should undertake or have access to a particular service. In the way I just described it, there is a judgement on the part of those who are—to use a term that we have heard here today—sidewalk counsellors. There is an assumption that everybody going in and out of these places is after one type of service. As we heard from the Hon. Sarah Mitchell and others, women attend those places for a wide variety of medical needs but the judgement is that they are there for one purpose. The sidewalk counsellors and their urgers and spruikers are not there to engage in a wide-ranging discussion about public affairs or even abortion law reform; they are there to persuade those individuals to not seek medical treatment.

Let us just change the setting a little bit. Imagine protesters of this kind were trying to prevent people from accessing a clinic to undertake chemotherapy for cancer. In the context of this bill, we would have no hesitation in saying that interfering with, impeding or intimidating people from doing that is heinous and that a stop should be put to it. What if the protesters were trying to stop people from accessing blood transfusions or other life-saving procedures such as organ transplants? If members looked at it in that way, most would reach the view that legislation in this setting was necessary to ensure safe access to medical services—that is what this bill is about. In his contribution, the Hon. Trevor Khan said—and I agree—that the bill is about a matter of common decency. It has been introduced so that women we know can safely access important medical services. It is not about political communication, ideology or philosophy. It is not about what you or I believe is the way the world should run. It is about people who make an informed decision about accessing medical services, and allowing them to do that.

We have heard a lot of talk today about the High Court’s decision in the Bob Brown case. I will not labour members with legal analysis but make only one point. Why did the High Court strike that case down? It was not just to protect the right to protest. It was because the legislation set up a regime, which was said to have as its legitimate aim the protection of lawful forestry operations and public safety—that is, the safety of individuals and workers. But the High Court judges found that the powers of direction, removal and arrests, and the offences created by the legislation, were not to secure those aims of public safety and permission of lawful activity, but to stop protests in an area per se. That is why the High Court struck down the legislation in the Brown case. The legislation that we are debating today does not seek to stop protest, silent prayer or sidewalk counselling. It only says that people cannot do that in a particular space for reasons that are legitimate and appropriately and proportionately adapted to the evil of harassment of individuals, and to provide that safe zone. People can protest or have silent prayer vigils on the outskirts of the 150-metre zone; it does not stop them from protesting or having a prayer vigil.

It has been said that there is no need for the bill because existing law covers the behaviours that we seek to proscribe. But that is true only in part. To come within the grasp of the criminal law, offending has to be at a higher level. As we have heard from the Hon. Bronnie Taylor, individuals have to jump through a lot of hoops to commence a criminal action. Move-on powers are only short term and those who are moved on can return within a short time. I will look at the issue of harassment and intimidation. Yes, violence is illegal and there are laws that deal with it. But women who are in the vulnerable circumstance that leads them to attend the clinics and reproductive health centres are highly sensitive. They are going through a difficult time. Sometimes, the mere presence of people praying, displaying literature and seeking to approach them is threatening and intimidating; in a different circumstance, when they were feeling more robust, it would not be. They are not being protected by the existing law from feeling harassed and intimidated in those circumstances.

There is a fundamental disconnect in what we are describing because, on the one hand, many opponents of the bill have said that it is only silent prayer and that it is only trying to provide people with another legitimate, alternative choice. Speakers have also said that women are getting harassed and intimidated, and people are approaching them and seeking to impede their access to these facilities. I have seen that with my own eyes. I know these things go on. Not everybody engages in that kind of activity but the overstepping of the mark in that context is so often and repeated that the law needs to intervene. In the last couple of weeks we have even seen television footage of what goes on outside some of those clinics. The law is currently inadequate and needs to change. This bill is that change.

I will now talk about sidewalk counsellors. They are not qualified to be counsellors, although they are well‑meaning in some circumstances. But people attending these clinics and seeking these services need qualified professionals to provide them with guidance and support, not a well-meaning volunteer who may end up doing more harm than good. Those people are not qualified professionals. In the correspondence and contributions by some members today, we have been told that these people are simply seeking to provide choice for women. That is a very disturbing spin on what we are discussing today. Its subtext is that any woman attending these clinics and seeking these services has not thought long and hard—for days and perhaps weeks—before seeking out the medical services. The arrogance of that assumption is, frankly, breathtaking. Let us look at this question: At this most difficult personal and private time, would any woman want to discuss these matters with a total stranger who is not qualified to give them counselling—and to talk publicly on the sidewalk about this most personal and private matter that they are experiencing? When you paint that picture, you see how ludicrous and false the proposition is. It is not what is going on and the arrogance of people who say that it is invites the reasonable observer to think that they are completely disconnected from the real world.

There have been a lot of letters and correspondence to members of Parliament. Perhaps unwisely, I have chosen to respond to a number of them—many in support of the bill; some less so. I have tried politely but firmly to express my view. Members can imagine how nonplussed I have felt when, instead of engaging in a respectful discourse, the respondents have come back with a terminology that is vicious—and sometimes, frankly, unhinged—but in a language that is colourful and, indeed, violent. This is the real subtext of the opposition to the bill: Not to support women and give them choice, but to bend them to people’s world view—people should behave as these people think, rather than make their own informed choice. By suggesting that women need to be given choice is to say that they are not making an informed choice and that they lack that capacity. That is terribly insulting.

This is the real agenda I see in the opposition to this bill, not offering women a real choice but trying to make women behave as they think they should behave. If you do not accept that, then you are called to judgement, marked down and subjected to harassment, just as the women seeking medical services are themselves harassed and intimidated, sometimes by the mere presence of people but more often because those people seek to approach, impede and deliberately harass them. That is not acceptable and this law will put a stop to it. I have to say: My party does not have a free vote about this, not because we do not believe in conscience but because this is not a conscience matter.

This is about the integrity of access to medical services in this State. This is about law enforcement measures, and that is why we as a party are voting this way. I understand other parties have taken a different approach and that is a matter for them, but for us this is an important matter of public policy and we stand together on it. This law will protect women. It will ensure the integrity of the provision of health services in this State. It will also help to protect the workers at these clinics. It will promote a safer, more civilised and respectful society. I commend the bill to the House.