Exclusion-zones: High Court Submission

Exclusion-zones: High Court Submission

John Young has summarised the submission made by my legal team to the High Court of Australia, which we propose will show that abortion-facility exclusion zones are unconstitutional. The entire document is 24 pages long and can be read here on the High Court website, along with submissions from the Attorneys-General of the states and territories, and the Commonwealth Attorney-General – all of whom oppose us. American readers may be interested to note that SCOTUS and the Massachusetts bubble-zone case are mentioned in our submission on page 12. Careful readers will see that, on the day of my arrest, twenty police officers were briefed regarding my life advocacy within the exclusion zone. Twenty. This unjust law forces police to expend their energies on ordinary people instead of pursuing real criminals.

As has been stated before, this is a David and Goliath fight, for which much prayer and wisdom is required. Thanks to everyone who has supported our fight in any way. Donations to our legal defence fund are always welcome; for more details, please click here. [To find our document on the High Court website, scroll to the end of submissions and look for 08/06/18.] – Kathy.

Summary of our Submission 

As most readers know, Kathy Clubb’s appeal is to be heard by the High Court of Australia. Her legal team have issued a submission giving the case for the defence, which I will outline.

The charge on which she was found guilty in the Melbourne Magistrate’s Court was that she had broken the law in offering a leaflet to a couple about to enter the Wellington Parade abortion facility. The magistrate stated: “There is no evidence of duress or violence of any kind. The engagement between the Accused and the couple is brief and appears polite.” (Quoted on page 2 of Kathy’s barristers’ submission).

Despite this, the magistrate found her guilty and fined her $5000. Kathy’s barristers, in this submission, have outlined a number of reasons why the verdict should be overturned, the principal one being that Kathy’s action was political in character and is safeguarded by the right to political discourse guaranteed by the law.

The barristers argue that the action in question was manifestly political because it was to draw attention to the issue of abortion. “Further, the topic of abortion itself is inherently political… To change one’s mind on the ethics of abortion is apt to change the person’s mind on the politics of abortion. Further… Abortion outside abortion facilities is also inherently political, particularly when 20 police officers are present.” P4.

“… The Magistrate appeared to apply a dictionary definition of ‘political’ and to find that communications on abortion did not fall within that dictionary definition.” P5.

The submission points out that the topic of abortion is a topic of political debate in Australia and has been for many years, and that the position a person takes concerning abortion is likely to influence that person’s political decisions. “The submissions of the respondents and interveners which posit a rigid distinction between ethical and political communications are contrary to lived experience.” P7.

The objection that communications about abortion can still take place elsewhere is answered by the fact that these communications are typically most effective outside abortion facilities. “… It is reasonable to believe that a not insignificant proportion of protesters near abortion clinics believe that communicating near abortion clinics is the best way for them to influence public opinion. This is a further reason why it is beside the point to observe that the communications can still take place elsewhere.” P8.

The legislation in the present operation “is not only a content and place restriction; it is also, in its practical operation, a viewpoint restriction. It burdens one side of the debate of abortion substantially more than the other.” P9.

Exclusion-zones: High Court Submission

The law is also criticised for its vagueness. “It is inherently difficult to predict whether conduct is apt to cause distress or anxiety, particularly once those concepts extend to mere discomfort…“There is no bright line between communications which are in relation to abortion and those which are not. Is a communication seeking a vote for a political party the speaker knows to be pro-life a communication in relation to abortions?” P9.

The limits of the “Safe Access” are inherently unclear. For example, if abortions are provided at a large hospital or at a university or shopping complex, does the 150 metres extend beyond the limits of the hospital or just the building or room where the abortions are provided? Also, “nothing in the Magistrate’s reasons suggests she considers the offence could be proven only if the accused knew of the existence of the premises.” P.9.

“The vagueness of the Communication Prohibition means that it has a deterrent chilling or stifling effect on political communication over and above the provision’s immediate legal operation.” P10.

On pages 5 to 7 the submission gives a long series of prohibitions under this law which burden the freedom of political communication. These include the following. The prohibition applies to communication by any means. It need not be on the topic of abortion: it is enough that it be in relation to abortions. The prohibition applies whether or not the communication is in fact seen or heard: it is sufficient that it be able to be seen or heard. It applies even if the recipient of the communication consents to it. It applies to places where abortions are administered by way of a drug, which includes private residences. The prohibition applies whether or not distress or anxiety is in fact caused. It applies whether or not distress or anxiety is intended. It applies to communications by Members of Parliament. It applies during election periods and referendums. It applies where the communicator is seeking to discourage a person from obtaining an unlawful abortion.

The defence of political freedom for those who witness outside abortion facilities, and its violation by the present law, is summed up in the following statement. “The object pursued by s 185D in its present operation is particularly offensive to the constitutionally-prescribed system. What the law does, in fact, is to burden one side of the abortion debate more than the other. It discriminates, and it distorts political communication. And it does so to a viewpoint that is properly described as a minority viewpoint.” P.14.

The above is my brief outline of a long document which gives many case references to back up its arguments, including cases in other countries. The full document is on the Internet, together with many opposing submissions. [Click here to read the entire document on the High Court website.]

by John Young

by John Young

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