First Reading

Bill introduced, and read a first time and ordered to be printed on motion by the Hon. Penny Sharpe.

Second Reading Speech

The Hon. PENNY SHARPE (10:28): I move:

That this bill be now read a second time.

Today, somewhere in New South Wales, women woke up wondering, "Am I pregnant?" Today, somewhere in New South Wales, some of those women hurried totake a pregnancy test and were delighted to find out the answer is yes. Today, somewhere in New South Wales, other women took that same test and saw the positive result with dread, fear or even panic. For some, they know they are just not ready to be a parent. Others have children already and cannot imagine how to fit another into lives and household budgets that already are stretched to the limit. Today, somewhere in New South Wales, some women woke up filled with excitement about their pregnancies, only to have that happy anticipation destroyed by the realisation that they had begun to miscarry. Today, somewhere in New South Wales, a woman sat in a doctor's office and heard the shattering news that the much-wanted child she is carrying has terrible health problems, problems that mean that child cannot survive and that even her own health is in danger.

And today, all across New South Wales, doctors, psychologists, counsellors, nurses, practice managers, receptionists and in some cases security guards got ready for their daily work at a reproductive health clinic where they are committed to providing the best reproductive health care for every woman who walks in their doors. These staff wonder what will greet them at their place of work. Like all health workers and allied professionals, they wonder how many patients they will see and what health care those patients will need. But they also wonder if, when they arrive at work, they will be photographed, followed, shouted at and threatened. They wonder if they will have to run the gauntlet of two or 10 or 20 people who are determined to bully and harass the staff, and the patients, at their clinic.

They wonder and they worry how many women seeking reproductive health care will have graphic images of dismembered foetuses shoved in their faces. How many will have leaflets full of lies about the dangers, risks and consequences of abortions shoved in their hands? How many will have holy water splashed in front of them, how many will have the intimidating experience of a camera or a phone shoved in their faces? How many women will these self-appointed sidewalk counsellors call "baby murderers"? How many women who are going to the doctor to receive the lawful treatment they need to look after their health—as is the right of every person—will arrive shaken and distressed by having had to push their way through people trying to shame and bully them? How many women and their partners, seeking to see their doctor about a range of issues associated with their reproductive health, will be pushed and shoved as they try to enter the clinic? How many will be threatened, intimidated, and harassed?

I have spoken to doctors, nurses, practice managers and receptionists who work at clinics in New South Wales. Women and men across New South Wales have told me their stories of what they experienced when going to a clinic. I cannot believe that our laws continue to allow this public shaming, interference and gross invasion of privacy to occur. At the clinic in Albury, the behaviour is so extreme that the clinic has been forced to employ a security guard to ensure that people entering the clinic are not harassed by those gathering outside. At the clinic in Surry Hills, regular reports to police detail a level of aggression, threats and intimidation that our current laws do not address. The practice manager at Surry Hills explained recently how the current laws are failing. He explained:

Over at least 15 years of reporting protesters to the local police on almost a weekly basis, there have been only a small handful of move-on orders issued during the whole time.

As members may know, a move-on order is temporary; it means that the protester has to leave for six hours. But as the practice manager explained, even that little protection is almost impossible to obtain. He said:

For any crime, there needs to be a victim, so the police require the woman to provide them with a witness statement. The police will explain that there is a likelihood that the protester will challenge the charges and she will be subpoenaed to attend court to provide evidence. Considering the distress that the woman and her partner have just been through, they almost universally decline to provide the statement rather than risk the need to go to court to face their tormentors again.

But even when a move-on order is issued this also happens. He said:

… protesters will nearly always lodge a formal complaint with the local area commander, the Commissioner of Police or the Ombudsman. If the police officer can't support the move-on order with a witness statement or detailed security footage, they have even been reprimanded and forced to issue an apology to the protester.

Let us think about this: People are out the front of these places harassing women going into a clinic and the police, under our current laws, are apologising to them because those people are actually allowed to be there under the current laws. These so-called sidewalk counsellors rely on their form one: a notice of intention to hold a public assembly.

The PRESIDENT: Order! I call the Hon. Richard Colless to order for the first time.

The Hon. PENNY SHARPE:The form one is the permission they have received from NSW Police under the Summary Offences Act to gather in a public place. The form one allows them to stand at the entrance and exit of the reproductive health clinic they are targeting and to make it as difficult as possible for those seeking to enter the clinic to get past without having to talk to or interact with them. They say they are there to help women. It is not helping anyone to push and shove those trying to enter a clinic, to threaten, intimidate and harass women and their partners about decisions they have made long before approaching the entrance of a clinic. Nor is it protesting our laws to try and coerce and manipulate women into not having an abortion.

The women attending reproductive health clinics can do nothing about changing the laws in relation to abortion in New South Wales. They are there for a range of reasons—including, quite simply, seeking advice on the best form of contraception. Those on the footpath shouting "baby murderer" at women do not know who those women are or why they are there. They do not know if a woman is the victim of rape. They do not know if she is ending a pregnancy because of a diagnosis of cancer. They do not know if she is struggling to come to terms with the fact that the child she longed for has a fatal medical condition. Thosesidewalk counsellors do not know, and they do not care. They do not care about those women, their actions do nothing to change the laws, and their behaviour certainly helps nobody. That is why women need safe access zones. This is why the Hon. Trevor Khan and I have co-sponsored the bill I introduced today. I will turn to the details of the bill. The bill inserts a new part 6A into the Public Health Act 2010. The bill states:

reproductive health clinics means any premises at which medical services relating to aspects of human reproduction or maternal health are provided, but does not include a pharmacy.

safe access zone means:

(a)the premises of a reproductive health clinic at which abortions are provided, and

(b)the area within 150 metres of:

(i)any part of the premises of a reproductive health clinic at which abortions are provided, or

(ii)a pedestrian access point to a building that houses a reproductive health clinic at which abortions are provided

The objects of the bill are very clear:

(a)to ensure that the entitlement of people to access health services, including abortions, is respected, and

(b)to ensure that people are able to enter and leave reproductive health clinics at which abortions are provided without interference, and in a manner that protects their safety and well-being and respects their privacy and dignity, including employees and others who need to access such clinics in the course of their duties and responsibilities.

The bill creates three new offences. The penalties of each offence are the same. The penalty for a first offence is 50 penalty units or imprisonment for up tomonths or both. For a second or subsequent offence the penalty is 100 penalty units or imprisonment for 12 months or both. New part 98C creates an offence to interfere with access of persons to reproductive health clinics. When we say "interfere with", this is what we mean:

… harass, intimidate, beset, threaten, hinder, obstruct or impede by any means.

(2)A person in a safe access zone must not interfere with any person accessing, leaving, or attempting to access or leave, any reproductive health clinic at which abortions are provided.

(3)A person who is in a safe access zone, must not, without reasonable excuse, obstruct or block a footpath or road leading to any reproductive health clinic.

New part 98D creates an offence of causing actual or potential distress or anxiety to persons in safe access zones:

(1)A person who is in a safe access zone must not make a communication that relates to abortion, by any means, in a manner:

(a)that is able to be seen or heard by a person accessing, leaving or attempting to access or leave, or inside a reproductive health clinic at which abortions are provided, and

(b)that is reasonably likely to cause distress or anxiety to any such person.

New part 98E creates an offence of capturing and distributing visual data of persons in safe access zones and states:

(1)A person must not intentionally capture visual data of another person, by any means, without that other person's consent if that other person is in a safe access zone.

…

(2)A person must not publish or distribute a recording of another person without that other person's consent if the recording:

(a)was made while that other person is in a safe access zone, and

(b)contains particulars that are likely to lead to the identification of that other person …

This section does not apply to the operation of security cameras, the activities of staff or clinics or police officers.This bill has been carefully drafted to ensure that the right to protest or campaign on the issue of abortion is not curtailed.

The bill does this by providing three exemptions to the operation of safe access zones. The provisions in the bill do not apply in these areas: the conduct occurring in a church or other building that is ordinarily used for religious worship, or within the curtilage of such a church or building; the conduct occurring in the forecourt of or on the footpath or road outside Parliament House in Macquarie Street, Sydney; or the carrying out of any survey or opinion poll with the authority of a candidate, or the distribution of any handbill or leaflet by or with the authority of a candidate during the course of a Commonwealth, State or local government election, referendum or plebiscite.

The bill is the result of consultation with lawyers, doctors, women's groups and others with interest and experience in the unacceptable behaviour that women are currently forced to endure under our current laws. In the course of our consultations, the issue arose of whether our bill would withstand a challenge to the High Court on the matter of implied freedom of political communication. Reverend the Hon. Fred Nile raised that today. To those with these concerns, I say that I am not afraid of that possibility. I am not afraid of what we are doing with this bill, and I will explain why.

This bill is balanced, as it protects the ability of citizens to protest as well as the right of citizens to seek medical treatment free from the interference of others. It is important to note that the implied freedom of political communication is not a personal positive right, such as the First Amendment in the United States. It is merely a limitation on legislative power that serves to protect the exercise of representative government. Even in the United States, the right of free speech and expression is subject to limitations for the protection of public order and public safety. Safe access zones in the United States have withstood legal challenge.

In Australia, the most recent case that sought to test the limits that parliaments can make on the implied freedom of political communication wasBrown v The State of Tasmania, in which former Greens leader Bob Brown challenged the validity of the Tasmanian Workplaces (Protection from Protesters) Act 2014. The High Court, by majority, held that while the Act pursued the legitimate purpose of protecting businesses and their operations from interferences from protesters, the burden imposed by the impugned provisions was impermissible because those provisions were not reasonably appropriate and adapted or proportionate to the pursuit of that purpose. Bob Brown was successful. In accepting that the protection of business operations was a legitimate object, Justice Nettle said:

The implied freedom of political communication is a freedom to communicate ideas to those who are willing to listen, not a right to force an unwanted message on those who do not wish to hear it, and still less to do so by preventing, disrupting or obstructing a listener's lawful business activities. Persons lawfully carrying on their businesses are entitled to be left alone to get on with their businesses and a legislative purpose of securing them that entitlement is, for that reason, a legitimate governmental purpose.

The Hon. Trevor Khan and I have taken a measured and considered approach in formulating the objects of the bill, the zone and the offences. This bill is reasonably appropriate and adapted to promote the legitimate object of maintaining the safety and dignity of people accessing reproductive health clinics and the safety of the staff of those clinics.

If the High Court is willing to accept that forestry businesses should be free from interference, I am sure that it would accept that people accessing reproductive health clinics and the people who work in them should also be able to do so free from interference. I note that in New South Wales, the whales that are currently migrating up our coast are given 300‑metre exclusion zones by law for their health and wellbeing. It is ironic that in New South Wales we have not been prepared to give women that same protection.

Some members may be aware that safe access zone laws in Victoria and Tasmania are being challenged by those who seek to be able to continue the behaviour I have described. That is not a reason to not support this bill. The laws in Victoria and Tasmania are valid until they are deemed not to be. I believe the challenges will fail, as they have failed in the United States and other jurisdictions when challenged.

Nowhere else in our community do we tolerate the behaviour that women in New South Wales are forced to endure as they try to access reproductive health clinics. Nowhere else in our community do we tolerate the behaviour in the workplace that staff at reproductive health clinics experience every day. This bill is reasonable and appropriate in providing protection, dignity and privacy to every citizen as they make health decisions about their own lives—health decisions that are in their best interests, absolutely necessary, and very well thought out.

I thank the people who have assisted in drafting and refining this bill over the past 12 months. I particularly acknowledge Claire Pullen, Emily Howie, Adrianne Walters, Richard Karaba, Matt Yeldham, Lliam Caulfield and my colleague the Hon. Adam Searle. I thank the organisations that have been campaigning for a long time on this issue. I acknowledge the work of Dr Mehreen Faruqi in pursuing this issue and standing up for women's reproductive rights. I thank the reproductive health clinics across New South Wales. The work they do is so important. I hope that the passage of this bill will make their workplaces much safer and less eventful places.

I thank the Hon. Trevor Khan for his willingness to co-sponsor this bill. Trevor has done more than just put his name to this bill; he has assiduously worked through its important technical legal aspects. Access to reproductive health services is not a Left or Right issue. It is an issue of privacy and respect, and Trevor has been willing to stand up for that. I thank him for it. I also acknowledge the women members in this Parliament, and I acknowledge my colleagues here today. So many of them, publicly and privately, have been very supportive of the development of this bill. If anyone wants an example of why having more women in all parties is important, they should look at this bill. We cannot dismiss what is happening to women in this State because it is hard or makes some people uncomfortable, or because it is necessary to fight powerful people who want to continue the status quo. There are many women in this place who are working hard, and I wish all strength to them as we try to convince our colleagues to pass this bill. Finally, I again quote from the practice manager at the clinic in Surry Hills:

When our clinic opened in Surry Hills, the first thing we noticed was how distressed women were after being intimidated and harassed by those gathered out the front of the clinic. When these people are not present, women arrive at the clinic, calm and showing no visible signs of distress or sadness. But when women arrive after having been confronted, they are emotionally shattered. Often trembling or breaking down in tears as they approach the front desk. These women tell us that this isn't sadness at having an abortion, it's distress and anger at having their privacy violated at such a sensitive and emotional time.

The current laws are failing women. No person seeking lawful medical advice and care should be forced to run a gauntlet of abuse. Every person has the right to expect their Government to protect them from being intimidated and harassed. We have an obligation to provide that protection, and with this bill we have the ability to do so. I commend the bill to the House.

Debate adjourned.

Legislative Council, 17 May 2018