Second Reading: Public Health and Wellbeing Amendment

Ms HENNESSY (Minister for Health) — I move:

That this bill be now read a second time.

Speech as follows incorporated into Hansard under sessional orders:

This bill is designed to support women’s reproductive health choices by ensuring that all women can access health services that provide abortions without fear, intimidation, harassment or obstruction.

In 2008, the Parliament took the historic step of passing the Abortion Law Reform Act to decriminalise abortion and modernise the law so that it was unambiguous, widely understood and reflected general community standards. The act implemented the recommendations of the Victorian Law Reform Commission’s 2008 final report on the law of abortion. That report also discussed the issue of safe access zones around hospitals and clinics that provide abortion services.

The Law Reform Commission commented that, during its consultations, several people raised the issue of protection outside abortion clinics, citing concerns that the safety and wellbeing of patients and staff were jeopardised because of the intimidation and harassment by anti-abortion protesters. Although the commission did not make a formal recommendation on this issue, which fell outside the commission’s terms of reference, it encouraged the then Attorney-General to consider options for a legislative response.

At the time, the government preferred to adopt a wait-and-ssee approach; to assess whether the decriminalisation of abortion would lead to an abatement of the protests, obstruction and harassment of women and staff accessing abortion services.

Unfortunately it has not, so I bring this important bill before the house.

This bill acknowledges that Victorian women have a right to access legal reproductive services without fear, intimidation or harassment. Women also have a right to access these services without having their privacy compromised.

Staff who work at places where abortions are performed have a right to enter and leave their workplace safely, every day, without being obstructed, interfered with, hindered or harassed.

By providing for safe access zones around premises that perform abortions, this bill will ensure that women and staff can access these premises safely, without experiencing the stress, fear and anxiety that can occur when they encounter anti-abortion groups outside these premises.

Some members of our community have deeply held views about abortion. This is their right, and they are free to express their views. The bill does not seek to prevent people from holding or expressing their views.

However, Parliament has clearly mandated that abortion services are legal health services. Expressing deeply held views does not carry with it a right to subject others to fear and intimidation.

It is unreasonable for anti-abortion groups to target women at the very time and place when they are seeking to access a health service, or to target health service staff. The impact of such actions on these women must be understood within the context of their personal circumstances. Many are already feeling distressed, anxious and fearful about an unplanned pregnancy, or a procedure that they are about to undergo. To be confronted by anti-abortion groups at this time is likely to exacerbate these feelings. It is intimidating and demeaning for women to have to run the gauntlet of anti-abortion groups outside health services.

Targeting health services in this way can also have impacts on women’s health and wellbeing. For example, health services have reported that some patients are too afraid to attend clinics when anti-abortion groups are out the front, or to return for follow-up appointments because of their experience when previously accessing the clinic.

The general aim of anti-abortion groups is to deter women from accessing abortion services. In recent consultations on the proposed bill, health services have reported that their activities are having an impact.

A 2011 study in relation to one Victorian clinic where abortions are performed found that 85 per cent of women surveyed reported seeing protesters outside the clinic, 74 per cent reported seeing anti-abortion displays such as posters and props, 55 per cent reported that protesters had said things to them, 60 per cent reported that protesters had tried to hand them anti-abortion information and 20 per cent had someone attempt to block their entry to the clinic.

Health services have reported that staff of clinics that have been targeted by anti-abortion groups have also been severely affected by the daily harassment they endure. Facing this day after day, year after year, has had a negative impact on their mental health. This affects their working life to the point that some staff members are too afraid to leave their office to get a coffee unless a security guard is present.

A recent Supreme Court decision considered whether the City of Melbourne had an obligation to enforce the nuisance provisions of the Public Health and Wellbeing Act against a group harassing and intimidating people at a clinic that provides reproductive health services, including abortions. The court refused to make an order requiring the council to take specified action, but found that the council’s advice to the clinic to refer the matter to police and have it dealt with as a private nuisance was not effective. The case illustrates that current laws are unsatisfactory, and that women and staff are not adequately protected from harassment in the circumstances I have outlined.

The rights to freedom of expression and freedom of thought, conscience, religion and belief are fundamental to a democratic society and are protected in Victoria under the Charter of Human Rights and Responsibilities Act.

However, the rights to express, communicate or demonstrate one’s views or beliefs are not absolute. They do not create a right to harass and intimidate a person providing or accessing a legal health service.

Both patients and staff of abortion services have a right to privacy and must be allowed to access health services and to work in an environment free of fear, harassment and abuse. Behaviour that seeks to or has the effect of dissuading, frightening or intimidating patients or staff of health services is not, in my view, acceptable, respectful or consistent with the intention of the charter.

This bill has been carefully designed to strike an appropriate balance between various rights and freedoms that are fundamental to a democratic society. It is targeted specifically at conduct that can cause fear, anxiety and intimidation and is restricted in its scope and reach so as not to unjustifiably impact on the rights of people to freedom of expression.

There are precedents for these laws. Broadly similar laws to protect women who are seeking abortions and clinic staff from harassment and intimidation have been enacted in Tasmania, Canada and various North American states, although the provisions of these laws may vary, reflecting diverse circumstances in different jurisdictions.

This bill is in line with general community views. A 2013 Newspoll survey of Victorians commissioned by the Public Health Association of Victoria found that over 80 per cent of Victorians surveyed supported safe access zones around abortion clinics.

Mr Speaker, I now turn to the provisions of the bill.

The bill inserts a new part 9A into the Public Health and Wellbeing Act to provide for a safe access zone of 150 metres around premises at which abortions are carried out. Its purposes are to:

protect the safety, wellbeing and privacy and dignity of people accessing the health services provided at those premises, and of staff and other persons who need to access the premises in the course of their duties and responsibilities; and

prohibit publication and distribution of certain recordings that could identify people accessing those premises.

A zone of 150 metres was chosen after consultation with a wide range of stakeholders. Hospitals and clinics provided examples of the activities of anti-abortion groups and the places where they confronted patients and staff. This included waiting at places where patients parked their cars and at public transport stops. Some health services asked for a much larger zone, but after careful consideration it was determined that a zone of 150 metres would be sufficient to protect people accessing premises.

Within the safe access zone it will be an offence to engage in ‘prohibited behaviour’ which is defined in the bill to include:

besetting, harassing, intimidating, threatening, impeding or obstructing a person by any means, where the behaviour relates to a person accessing or leaving premises at which abortions are provided;

communicating in relation to abortions in a manner that could possibly be seen or heard by a person accessing or leaving premises at which abortions are provided where the communication is reasonably likely to lead a person to suffer distress, upset or anxiety;

impeding a footpath, road or vehicle without a reasonable excuse;

intentionally recording a person accessing or leaving premises at which abortions are performed, without that person’s consent, and without a reasonable excuse.

The offence of communicating in relation to abortions in a manner that would be reasonably likely to lead a person to suffer distress, upset or anxiety must be read in the context of the purpose and guiding principles outlined in the bill. It is intended to cover the diverse range of activities that are undertaken on a regular basis by the people who have persistently stationed themselves outside abortion clinics and have handed out upsetting materials, displayed distressing and sometimes graphic images and props to upset and dissuade women from obtaining abortions. Health services have reported that protesters sometimes engage in acts of disturbing theatre; for example, displaying a doll in a pram spattered with fake blood or standing silently with their mouths taped shut. Therapeutic communications by health service providers will not be prohibited.

This offence does not require that an individual who is accessing or leaving such premises must actually see or hear the activity. The purpose of the provision is to ensure that this behaviour does not take place inside the zone in a manner that is visible or audible to those entering or leaving the premises. A sermon about abortions conducted inside a church that falls within a safe access zone that cannot be heard outside the church would not be captured by these laws.

People engaging in prohibited activities may have a variety of different motives for their actions. They may be seeking to protest about abortion, or may genuinely believe that they are helping women in need, saving lives, providing alternatives to abortion or educating people about abortion and its impacts, among other reasons. Nonetheless, when this conduct takes place directly outside health services providing abortions, it has the effect of intimidating, and causing anxiety to, many patients and health service staff.

In two cases, the bill provides that prohibited behaviour inside the safe access zone is not an offence where there is a reasonable excuse.

Impeding a footpath, road or vehicle outside a clinic for a legitimate purpose (for example, to undertake construction or maintenance works or because emergency services personnel require diversion of pedestrians or traffic for public safety reasons), will not be an offence.

Similarly, recording a person seeking to access premises where abortions are provided is only an offence where it occurs without the person’s consent, and without a reasonable excuse. Examples of a reasonable excuse would include the recording by security cameras installed by a company contracted by a health service, legitimate recording undertaken by Victoria Police in gathering evidence for enforcement purposes, or legitimate news reporting by a media organisation outside a hospital. This offence will be limited to circumstances where the recording could identify an individual and which identifies a person as a person accessing premises at which abortions are performed.

The offences in the bill are summary offences that attract a maximum penalty of 120 penalty units or up to 12 months imprisonment. These penalty levels recognise the seriousness of the offences in question and the impact a breach would have on women wanting to safely and privately access a health service where abortions are performed.

The 150-metre safe access zone relates to premises at which both medical and surgical abortions are performed. The measurement will be defined from the external perimeter of the premises. Pharmacies that merely supply drugs that may induce an abortion are not covered.

The bill provides that these new provisions of the Public Health and Wellbeing Act will be enforced by Victoria Police. Victoria Police currently enforce the Summary Offences Act, which contains a range of similar offences, for example, relating to trespassing, public order and threatening behaviour. Given their experience, skills and capabilities, Victoria Police are best placed to enforce the new offences.

While police will generally exercise their discretion and issue warnings to move people to a location outside the safe access zone, the bill will enable police officers to apply to a Magistrates Court for a search warrant where required to obtain evidence of the commission of the offences in the bill relating to recording, publishing or distributing a recording. The bill ensures police can collect evidence of such an offence, but requires a warrant to ensure that there is external scrutiny and no undue interference with the privacy of citizens.

Victoria has a proud history of activism and peaceful protests and this bill does not change that. The offence provisions have been carefully developed to target specific behaviours that are aimed at deterring people from accessing or providing legal medical services. Individuals can still protest and express their views about abortions outside safe access zones.

Mr Speaker, standing on the street outside an abortion clinic with the aim or effect of shaming or stigmatising women who are trying to access a legitimate reproductive health service, or staff who work there, is not acceptable to this government.

In the development of this bill the Victorian government has consulted with many important stakeholders within our community. These include public and private hospitals and day procedure centres and their representative bodies, women’s groups, the Human Rights Law Centre, the Law Institute of Victoria, Liberty Victoria, unions, health groups and community groups.

I would like to take this opportunity to thank each of these stakeholders for their active engagement in discussing this important policy initiative with the Victorian government. I am pleased to say the overwhelming majority of these stakeholders are in step with the Victorian community on this issue, and are overwhelmingly supportive of the proposed legislation.

I also wish to acknowledge and pay tribute to the work of Fiona Patten, a member of the Legislative Council, who took the initiative of developing a private members bill to address this longstanding problem.

In conclusion, patients, their support persons and staff accessing abortion clinics have a right to privacy. People have a right to access legal health services without being frightened by harassing and intimidating behaviour. Vulnerable people, such as pregnant women seeking access to legal medical services, should be protected from undue interference.

Mr Speaker, they deserve better.

This bill entitles women and those accompanying them to access these services in a safe and confidential manner, and without the threat of harassment. It enables staff to access their workplace without being verbally abused, obstructed or threatened.

I commend the bill to the house.