Free speech against abortion hasn’t got a prayer

When is free speech and peaceful protest in a free society against the law?

Angela Shanahan

Apparently only when it is about, abortion.

In Tasmania, Victoria and the ACT, exclusion zones have been put in place to prevent any anti-abortion demonstration, and in NSW the Greens are advocating similar zones.

On Wednesday, Graham Preston was the latest person to be fined for such a protest. Preston was arrested in Hobart in April last year for standing peacefully near an abortion clinic, holding a sign saying: “Everyone has the right to life, Article 3 Universal Declaration of Human Rights.” The back said: “Every child has the right to life, Article 6 Convention on the Rights of the Child.” Another sign held by someone else showed an unborn child eight weeks from conception. Preston was fined $3000.

There is a right to peaceful protest. However, our freedom of speech is under attack from restrictive anti-protest laws that prioritise political ideologies over individual rights. These laws are not aimed at protecting the rights of vulnerable women against harassment or at violent protest. They are aimed at any dissent, no matter how passive, against the activities of an abortion clinic. What is more, the laws are aimed only at anti-abortion sentiment and unlikely to be used against those expressing pro-abortion sentiment.

The law that has allowed these exclusion zones is extremely unclear. The exclusion zone in Tasmania is very broad, 150m, and includes two major churches, and the act is meant to capture a broad spectrum of behaviour.

As claimed in the minister’s second reading speech, cited in Preston’s case, this will not stop sermons unless they are “broadcast by loudspeakers”, or friendly discussion. However, it will stop “vocal anti-choice protest” and “silent protest outside termination clinics that purport to be vigilant of sorts or peaceful protests but, which by their very location, are undoubtedly an expression of disapproval”. Preston argued that his protest was an extension of his religious views but, while the magistrate accepted that point, the form of silent protest was construed to be a disturbance of public order.

In the ACT, where exclusion zones also have been enforced by fines, the denial of the right to protest has been extended to the silent prayers of a single individual.

Kerry Mellor is part of a group that has been assembling to pray outside 1 Moore Street every Friday for 18 years. In the past they had a sign that said “pray to end abortion”, some “choose life” signs and holy pictures. They were essentially religious protests and didn’t have any material to give out. Most people wanting abortion went in the side door. A few people looked askance or spat at the group, and sometimes people joined in the prayers. But there was never any great confrontation. The group became a sort of Canberra institution, “the people outside the abortion clinic”.

After the exclusion zone around the ACT abortion clinic run by Marie Stopes International was put into place in March, Mellor was fined $750, in April. However, he was able to contest and it was withdrawn because he wasn’t in the exclusion zone but on an opposite corner. So then the ACT government changed the zone.

The zone now includes most of the street and a good portion of other streets to make it difficult for anyone to see any of the group.

However, recently on Friday morning, Mellor was within the zone accompanied by others. There were six police and three vehicles including a paddy wagon. Other members of the group moved on. Mellor claims, “I was alone … I prayed silently, the sergeant greeted me and asked me did I know I was within the protected area. Was I aware I was engaged in prohibited behaviour? I replied that prayer is not prohibited. He said it was in that area.”

Mellor continued to pray silently with his hands in his pockets. He didn’t display his rosary but they continued to ask what he was doing. Mellor asked what was the evidence of protest. Then, according to Mellor, the policeman said he saw him “bow his head and make sign of the cross” and this was evidence of his offence of protest in protected area. Prayer was the defining element of the offence. Mellor has been issued a criminal infringement notice. He does not intend to pay a fine because he feels his religious liberty, his right to peaceful silent religious expression, is being infringed. He says the only way to resolve this is in a court.

In the ACT it is not surprising that the law is being used to uphold the rights of abortion providers against those who oppose abortion. Aside from the green-left ideological complexion of the ACT government, the Stopes clinic is run as an adjunct of the government health clinic. It operates out of an ACT government health facility, for which it is charged a peppercorn rent of $1 a year.

The introduction of the exclu­sion zone is an unnecessary infringement of citizens’ rights des­pite support for the legislation by the ACT Human Rights Commission. The claim by ACT MP Shane Rattenbury that “sometimes single viewpoint pamphlets have been handed out”, and his implication that this is offensive, has ramifications for the right of protest and the nature of all public discourse.

Preston is keen to appeal the magistrate’s ruling and his lawyer is examining the 23-page decision. He cannot and will not pay the $3000 fine; in the past he has gone to jail for this reason in Queensland, effectively a political prisoner. Most media outlets have ref­used to report his imprisonment.

In the US the Supreme Court has overturned similar exclusion zones. You do not have to share Right to Life’s view about abortion to be concerned about this dangerous development.

Related: Article 3 Universal Declaration of Human Rights.

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  • Angela Shanahan
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