The 2013 “Access to Terminations Act” Tasmanian law banned protests within 150 metres “access zones” of a termination clinic designed to protect women from being harassed or vilified.
The appeal by a convicted protestor will ask the High Court to test the balance between the Constitutional protection of free speech in the course of Political Discourse against the free access zone laws.
The law preventing political discourse in access zones must not be too wide. It must be precise and clear.
It must not unjustifiably interfere with political discourse.
My view is that the High Court will come down on the side of the validity of the access zone laws as they are very limited – only 150 metres in radius – and the access zones are a moderate and specifically targeted protection for a vulnerable class of persons which includes those seeking valid medical procedures.
I don’t think this case on this point will help those of us who want Section 18C repealed.
http://www.abc.net.au/news/2016-09-19/anti-abortion-protester-to-appeal-conviction-under-tasmanian-law/7856290
The Statute is:
REPRODUCTIVE HEALTH (ACCESS TO TERMINATIONS) ACT 2013 - SECT 9
9. Access zones
(1) In this section –
access zone means an area within a radius of 150 metres from premises at which terminations are provided;
distribute includes –
(a) communicate, exhibit, send, supply or transmit to someone, whether to a particular person or not; and
(b) make available for access by someone, whether by a particular person or not; and
(c) enter into an agreement or arrangement to do anything mentioned in paragraph (a) or (b); and
(d) attempt to distribute;
prohibited behaviour means –
(a) in relation to a person, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person; or
(b) a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided; or
(c) footpath interference in relation to terminations; or
(d) intentionally recording, by any means, a person accessing or attempting to access premises at which terminations are provided without that person's consent; or
(e) any other prescribed behaviour.
(2) A person must not engage in prohibited behaviour within an access zone.
Penalty:
Fine not exceeding 75 penalty units or imprisonment for a term not exceeding 12 months, or both.
(3) A person is not guilty of engaging in prohibited behaviour within an access zone by intentionally recording, by any means, a person accessing or attempting to access premises at which terminations are provided without that person's consent if, at the time of making the recording –
(a) the first-mentioned person is a law enforcement officer acting in the course of his or her duties as such an officer; and
(b) his or her conduct is reasonable in the circumstances for the performance of those duties.
(4) A person must not publish or distribute a recording of another person accessing or attempting to access premises at which terminations are provided without that other person's consent.
Penalty:
Fine not exceeding 75 penalty units or imprisonment for a term not exceeding 12 months, or both.
(5) If a police officer reasonably believes a person is committing or has committed an offence –
(a) under subsection (2) that involves recording, by any means, a person accessing or attempting to access premises at which terminations are provided, without that person's consent; or
(b) under subsection (4) –
the police officer may –
(c) detain and search that person; and
(d) seize and retain the recording and any equipment used to produce, publish or distribute the recording found in the possession of that person.
(6) If a person is convicted or found guilty of an offence under subsection (2) or (4), any item seized under subsection (5) is forfeited to the Crown and is to be destroyed or disposed of in a manner approved by the Minister administering the Police Service Act 2003.
(7) If a police officer reasonably believes a person is committing or has committed an offence under subsection (2) or (4), the police officer may require that person to state his or her name and the address of his or her place of abode.
(8) A person must not fail or refuse to comply with a requirement under subsection (7) or, in response to such a requirement, state a name or address that is false.
Penalty:
Fine not exceeding 2 penalty units.
(9) A police officer making a requirement under subsection (7) may arrest, without warrant, a person who fails or refuses to comply with that requirement or who, in response to the requirement, gives a name or address that the police officer reasonably believes is false.
The Australian Law Reform Commission said this of s18C in March this year (2016)
Constitution4.202
The constitutional validity of s 18C has not been tested before the High Court. The provision may be vulnerable to challenge on two fronts.[237]
4.203 The first is the question of whether s 18C is validly supported by the external affairs power under s 51(xxix) of the Constitution. This would arise if the provision extends beyond Australia’s international obligations under the ICCPR and CERD, which may be said to ‘focus on protecting against racial vilification and hatred rather than prohibiting offence or insult’.[238]
4.204 The second relates to the implied freedom of political communication. In this context, the High Court has observed that ‘insult and invective’ are a legitimate part of political discussion and debate.[239] The inclusion of the words ‘offend’ and ‘insult’ raises a possibility that the High Court, in an appropriate case, might read down the scope of s 18C, or find it invalid.[240]
Review of s 18C4.205 Australian racial vilification laws have long been the subject of academic and other criticism. For example, in 2004, Dan Meagher suggested that Commonwealth, state and territory laws, including s 18C of the RDA, lacked ‘sufficient precision and clarity in key respects’. As a consequence, an incoherent body of case law has developed, where too much is left open to the decision maker in each individual case.[241]
4.206 Meagher concluded that the primary goal of racial vilification laws in Australia—to regulate racial vilification without curbing legitimate public communication—is compromised by this lack of precision and clarity.[242]
4.207 The ALRC has not established whether s 18C of the RDA has, in practice, caused unjustifiable interferences with freedom of speech.[243] However, it appears that pt IIA of the RDA, of which s 18C forms a part, would benefit from more thorough review in relation to freedom of speech.