On Thursday, the Supreme Court of New South Wales ruled that recent legislation banning protests in or near places of worship was unconstitutional because it impinged upon the implied freedom of political communication.
The case was brought by Josh Lees, an organiser of the Palestinian Action Group whose weekly protests take place in Hyde Park north, just across the road from St Mary’s Cathedral.
Those unfortunate enough to be in the office with me that day had to endure my loud complaining about double standards. “So, I can get arrested for praying outside an abortion clinic but protesting outside a church is fair game?”
In 2018, the NSW parliament prohibited not only protests outside abortion clinics, but criminalised the making of any form of communication relating to abortions that is capable of being seen or heard “by a person accessing, leaving, attempting to access or leave, or inside, a reproductive health clinic at which abortions are provided, and that is reasonably likely to cause distress or anxiety to any such person.”
Similar laws were introduced in every state and territory in Australia over the past decade, with the constitutionality of the Victorian and Tasmanian laws being tested in the High Court by Kathy Clubb and John Preston respectively. Clubb and Preston had each been charged with breaking those laws: Clubb by attempting to hand a pamphlet offering counselling and pregnancy assistance to a couple trying to enter a Melbourne abortion clinic; Preston by standing across the street from a Hobart abortion clinic with placards that had statements such as “Every child has the right to life” written on them.
Almost every state attorney-general sought to intervene in these High Court cases in defence of the exclusion zones, including then- NSW Attorney-General Mark Speakman.
In a decision that addressed both Clubb and Preston’s charges, the High Court ruled that the laws were constitutionally valid. While the law did infringe on the right to political communication, it was deemed necessary to protect another right, being the right to access so-called health care.
The apparent contradiction between this ruling and the one handed down in the NSW Supreme Court last week raises some questions, such as whether the law protects abortion clinics but not churches, or why abortion is seen as a right but religious practice isn’t, or whether there is something especially objectionable about opposing abortion that it should be prioritised in a ban?
As much as I would have loved to find some type of anti-life judicial conspiracy in all this, the answer is far less problematic than it appears at face value.
The distinction made by the court between the laws about abortion clinics and the laws about places of worship seems to come down to who the law is trying to protect.
The laws about abortion clinics prohibit any type of communication that can be seen by, and is reasonably likely to cause distress or anxiety to, a person trying to access or leave an abortion clinic. This would mean that a protest could technically occur while the clinic was closed, or at a time when no staff or patients were entering or leaving.
By way of contrast, the particular law about places of worship that was challenged did not rely on the presence of anyone entering or leaving a place of worship. For the purpose of the law, the people affected by the protest could be other random passersby with no link to the place of worship.
The difference might sound subtle but it is important, because the law that got deemed unconstitutional went beyond protecting the freedom of religion, but protected anyone who was in the vicinity of the place of worship, which was deemed by the judge to be unnecessarily broad to protect the legitimate right to worship.
While it hasn’t been tested, the wording of the judgment made it appear that if the law was narrowed only to ban protests that could be seen or heard by people entering or exiting a place of worship and was reasonably likely to cause them distress or anxiety, it might be treated favourably.
If the NSW government has the same reading of the judgment as I do, then I imagine they will pass a law along those lines as quickly as possible.
To be clear, the exclusion zones around abortion clinics are wrong and should be overturned because not only do they unnecessarily ban legitimate objection to abortion and even prayer, they also operate to prevent women being offered alternatives to abortion that are never suggested by the “pro-choice” crowd. But that doesn’t mean this recent court decision amounts to a persecution, even though it looked like it at first blush.