12 March 1991 - Current
Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015
24 November 2015
|COUNCIL||Second reading||RACHEL CARLING-JENKINS|
Dr CARLING-JENKINS (Western Metropolitan) — I rise today to speak on the Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015, a bill introduced by the government. This bill's purpose is to provide — and I quote from the bill — 'safe access zones around premises at which abortions are provided'. I wish to dispute this wording. This bill is not really about safe access, for these zones are not safe. They are not safe for women and they are not safe for the pre-born children they carry into but not out of the premises.
First I need to lay some necessary groundwork or foundational comments to my contribution. Women, I believe, are victims of the abortion industry. While the ads that these clinics put out may say that abortions are low risk, they fail to create a full picture of the impacts — the physical impacts, the emotional impacts, the scars and the grief. Abortion trauma, sometimes referred to as post-abortion grief, frequently destroys relationships, shatters families both present and future and leads to crippling emotional strain. Abortion is not a solution to a problem, only a symptom of one.
Anne Lastman, who is a colleague and a friend, in her book Redeeming Grief — Abortion and its Pain quotes a 2011 study by Coleman, published in the British Journal of Psychiatry, a peer-reviewed journal. Coleman found that of all mental health problems of women 10 per cent are related to abortion. Anne writes:
This was one of the largest ever studies on this topic using 877 181 participants out of which 163 831 had had an abortion. This study took care to avoid all data which could lead to the mantra 'bias' by its stringent criteria for inclusion/exclusion of previous studies which were deemed questionable.
Professor Coleman, who has done much work into this area of mental health issues in women, presents the most comprehensive study to date and according to her this study was carried out in order to offer the best and most valid information to those seeking abortion and for women to be clearly informed and to make informed decision when deciding whether or not to abort.
This study showed some astonishing figures: 34 per cent increase in anxiety disorders (e.g., OCD, panic attacks and some of the symptoms experienced over time like sadness, uncontrollable weeping, loss of concentration, loss of joy of life).
110 per cent greater risk of alcohol and substance abuse, leading to other self-abuse as a result of being under these influences.
155 per cent greater risk of attempting suicide and suicide ideation (persistent thinking about suicide).
This is a study which is not old or antiquated but is a new and reliable one using and analysing other reputable studies (meta-analysis) by reputable researchers without the 'religious mantra'. This study says clearly please watch out, abortion seriously hurts women and men and babies and society. If the health of women is something we are all interested in, which then leads to health of society, then abortion is not the answer.
On a personal note, this past Sunday I spoke to a woman who, while now aged in her 40s, vividly remembers the abortion she had in her teens with deep regret and sadness. While she, unlike many women, has taken steps to ensure that she has recovered, she described to me that she knows she has passed through her grief and need not carry guilt any longer. However, her regret is still palpable. For many, abortion is a death experience where one's personal choice and experience does not negate but rather adds to the suffering.
Abortion Grief Australia, which proclaims, 'It is time we listen to the pain', says this about this experience of abortion:
These traumatised women and men have an innate belief that what is destroyed in the abortion is an unborn baby, regardless of size or gestation and irrespective of the values and beliefs of doctors, lawmakers, family, partner et cetera.
Conflicted and unable to express the enormity of their grief, the traumatised struggle with feelings of isolation that usually leaves them questioning their own mental health.
Many believe they can never be whole or have joy in their life again, that the pain will never go away.
The emotional strain of abortion can be overwhelming for the very young and those already struggling to cope with other issues.
Now that I have laid the foundation, I will turn to the essence of this bill. This bill ignores the realities of the dangers of abortion. This bill seeks to make it a crime for any pro-life communication within a radius of 150 metres of an abortion clinic. Much of the debate around this bill has centred on the controversial clinic in East Melbourne. However, we are voting on a law tonight which will place no-go zones around all Victorian abortion clinics, public hospitals and private hospitals where abortions are performed and possibly even doctors clinics. While the bill has purposely excluded pharmacies which dispense RU486, it apparently will apply to the GP clinics.
The Guardian newspaper recently reported Minister for Health, Jill Hennessy, as telling ABC radio, 'The legislation would also apply to GP clinics prescribing the abortion pill, RU486'. If this is indeed the case, there are around — I would like to remind the house — 40 000 GPs in Victoria and an estimated 10 000 GP clinics. There are many with such clinics in the CBD. Should this extreme law pass, with a 150-metre radius around each clinic, almost the entire CBD will be a no-go zone for pro-life activism.
Earlier this year I assisted the government to repeal Victoria's move-on laws as an unfair restriction on free speech. I supported the Summary Offences Amendment (Move-on Laws) Bill 2015 based on the principles of freedom of speech, freedom of association, freedom of assembly and basically the equality of all humans. These principles form the heart of DLP political philosophy. We know them to be integral to guaranteeing the conditions for a public discourse that will progress us towards a civil society. Freedoms are a right, a responsibility and a risk. Freedoms are at the heart of human dignity and the common good, principles which I am committed to upholding and which I do not see within this bill.
At the time that the move-on laws were repealed the Attorney-General, Martin Pakula, stated: 'Victoria doesn't need Bjelke-Petersen-style laws designed to silence dissent and outlaw peaceful protests'. What a fickle and short-sighted government — because this is exactly what this bill is about. So it is okay to be a union protester loudly proclaiming your objections to unfair or unsafe work practices, but hold a prayer vigil outside an abortion clinic and not only will you be moved on but you will be hit with a fine or threatened with imprisonment of up to 12 months. It is also okay to block access to businesses and hold huge violent protests for and against racism, but if these laws are not clarified, Bernie Finn's peaceful March for the Babies becomes illegal.
These laws are so extreme that a protest or vigil held outside clinic hours is also going to be subject to the penalties. As it stands, this bill is impractical and discriminates against and therefore seeks to restrict religious freedoms. One of the many Dr Marie Stopes abortion clinics is at 182–184 Victoria Parade, East Melbourne. The 150-metre radius — or the no-go zone — encompasses the Greek Orthodox church next door and all the grounds of the Australian Catholic University. Pro-life discussion, which may cause distress under this bill, will be prevented outside this church, on the grounds of the Australian Catholic University, on the grounds of the Catholic Education Office and on part of St Patrick's Cathedral property.
The Very Reverend Father Kosmas Damianides from the Holy Church of the Annunciation of Our Lady, which is the second oldest Greek Orthodox church in Australia, is at 186 Victoria Parade, East Melbourne, and he has expressed grave concerns about this bill and what its implications may be for his parishioners, who may well discuss their pro-life views outside the church, which practically shares a wall with an abortion clinic. I hope members can see from this that the proposed no-go zone restricts far more speech than is necessary to achieve the legitimate interests of protecting public safety, patient access to lawful services and the unobstructed use of public footpaths and streets. The High Court, in assessing this legislation, will have to ask whether the size of the zone is reasonably appropriate and adapted to serve the government's legitimate ends.
This bill, in my opinion, aggressively, unnecessarily and disproportionately targets free speech and political communication on a contested subject which is protected under our constitution. I read now from a legal opinion which I have been given permission to use. It was written for Mr Dan Flynn, an Australian legal practitioner and Victorian director of the Australian Christian Lobby. It was written by N. G. Rochow and F. C. Brohier and was on the matter of the validity of clause 5 of the Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015. In this opinion they claim:
Our view is that the bill effectively burdens the implied freedom of political communication and … there are strong arguments that it is not —
and at this point they reference a ruling from Lange v. Australian Broadcasting Corporation  —
'reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government' … and hence may be invalid.
Furthermore, this opinion refers to Slaveski v. Smith . They state that in this case the Court of Appeal said of the High Court's approach:
If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question.
There will certainly be an interesting High Court case coming from this bill.
Further on in the opinion the lawyers write:
In Monis three judges of the High Court held that the relevant section (which prohibited offensive communications by use —
in this case —
of the postal service) was invalid as it infringed the implied freedom. French CJ (with whom Heydon J agreed) considered that — 'unreasonable, strident, hurtful and highly offensive' communications fall within the range of robust political debate. Hayne J held that elimination of communications giving offence without more was not a legitimate end for legislation. Political debate was not and could not be free from passion or appeal to emotion or insult and invective — the giving and taking offence was inevitable.
The right of freedom of expression is a fundamental right in a free society.
My last point. They wrote:
In Monis, the three judges who found the relevant section invalid, substantially agreed that political communications in Australia legitimately included that which was offensive and hurtful, and that a provision which attempted to prohibit such discourse was invalid.
I find comfort in the fact that, based on this, this bill will be subjected to a legal challenge in the future, just as the laws in Tasmania are. Senior counsel in the opinion provided to Mr Flynn stated that there is a strong argument that the prohibition of communications within 150 metres will offend the implied freedom of political communication and will be found to be unconstitutional and invalid by the High Court.
There are two more facts around this case which I feel necessary to bring once again to the attention of this house, albeit briefly. Firstly, there is the 2001 case where a security guard was shot and killed. This was a tragedy — a tragedy which would not have been avoided if this law was in place. The man who undertook this crime stole a gun, cycled to Melbourne, lived as a hermit and shot the guard. He acted alone. He acted contrary to pro-life values. He was a lone wolf, if you will. Legislation, tragically, will never be able to stop such a determined and misguided individual.
Secondly, I would like to point out that in the case of Fertility Control Clinic v. Melbourne City Council earlier this year the lawyers for the Fertility Control Clinic did not plead the facts in this case. I would dispute that the result of this case is a trigger for such a bill as this. There was no finding of harassment or intimidation. Furthermore, there was no proof that existing laws do not protect women from harassment and intimidation.
This bill is a disproportionate response to a misleading story, fabricated for the advantage of the abortion industry. The true effect of this bill, if not amended, will be to make peaceful protest, prayer, support workers and counsellors illegal in the vicinity of abortion clinics.
So I turn now to the false narrative underlying this bill. This bill and the commentary around this bill has been based on a gross misunderstanding at best, vicious and deliberate lies at worst. I am now going to quote extensively from work prepared by the Helpers of God's Precious Infants and directed to Minister Hennessy, where they set out the false accusations against the work that they currently do. They also point out the false and misleading information supplied in relation to this bill. Basically they believe that the bill's premise is based on a misconception and not on reality, and I would agree with this. We have been told that this bill is designed to support women's reproductive health choices. However, this is how the Helpers responded:
In fact, this bill is designed to get rid of us from outside the abortion business. It fails to support a woman's right to choose to give birth to her baby. We pointed out this flaw in our submission to the DHHS, but you have overlooked this in presenting the bill to the Parliament.
The extensive consultation process did not actually listen to these groups. Another claim made in the presentation of this bill is that it will enable staff to access their workplace without being verbally abused, obstructed or threatened. The Helpers stated:
In fact, staff are not verbally abused, obstructed or threatened by us —
the Helpers —
as we pointed out in our submission. Once again, you have ignored our evidence and misled Parliament by making false and malicious claims about us.
Furthermore, the Helpers have been accused of criminal conduct, to which they respond:
In fact, no Helper has ever been found guilty of any criminal offence outside an abortion centre. This is in spite of our actions being photographed, filmed, witnessed by security guards and members of the general public and MCC officers and police. In over 20 years of what you describe to Parliament as daily harassment, the abortion business has failed to provide a single piece of physical evidence to substantiate any claim against us. On the other hand, abortion business staff and security guards have committed numerous offences against us: assault (as proven in court), theft, vandalism, kicking … making obscene comments to us, et cetera. We have many of these incidents on video, as you would expect. You have misled Parliament by failing to mention the offensive and sometimes criminal behaviour of staff of the abortion business and by falsely implying that our behaviour is criminal.
There has also been a claim that while the Helpers may genuinely believe they are helping women, they are actually intimidating and causing anxiety to them. The Parliament has been given the impression that the Helpers are not helping anyone and are ignorant of the alleged harm that they are allegedly causing. They write:
In fact, it is mothers themselves who have told us that they are grateful for our help. You failed to mention this to Parliament, even though it formed a large part of our submission. You have also failed to acknowledge the good work we have done, as proved by the testimonies of those whom we have helped. The bill does not provide for any private or government organisation to fill the gap that would be left in the absence of the services that we now provide.
In discussion around the bill there has been a lot of reference to the 2011 study of the Victorian abortion business. They write:
… you did not mention to Parliament that this is the Fertility Control Clinic.
… that this survey is not peer-reviewed and was not published in any professional journal. As such, its reliability is questionable.
There have been claims made that the bill will strike an appropriate balance. The Helpers write:
In fact, you have completely ignored our submission of 42 pages; you have not addressed any of the issues we raised in that submission and you have not informed Parliament of your failure to do so. We point out that the charter requires that in any conflict of rights, policymakers will adopt the least restrictive approach to balancing those rights. It is hard for us to imagine a more restrictive approach than the one you have taken. By failing to address our submission and failing to address this requirement of the charter, you have misled Parliament as to the effect of the bill.
Far from being about privacy, this bill is about isolation — the isolation of women from information about options. The bill fails to understand the nature of the work of the Helpers as advocates, not protesters.
I wish to acknowledge that this debate is being observed tonight by members of the Helpers as well as by at least one mother and her daughter, who were rescued by the Helpers outside an abortion clinic. I also wish to acknowledge the photo sent this morning to all members of this place of a healthy baby girl saved by her mother with the assistance of the Helpers, sent by Ben O'Brien on behalf of the Helpers of God's Precious Infants. It was in our inbox this morning.
As I have mentioned before in the house, there is a human face to this debate — a debate about whether facts are being drowned out in favour of a well-crafted but rather misleading story. In a state where there is no mandatory counselling, no need for a GP referral for an abortion, no need to provide information about holistic health care alternatives and no need for a woman to be informed about the options available to her, such as pregnancy support, many women speak about turning up at an abortion centre without fully thinking through their decision. In the absence of any other avenue for promoting choice, the people outside abortion clinics are often the only ones providing an alternative — a real choice.
Earlier this year the Herald Sun published a letter headed 'Protesters helped me'. It says in part:
I approached an abortion clinic, about five years ago.
I was 12 weeks pregnant. The pregnancy was unexpected and I made an appointment at the clinic …
… I was gently approached by an older lady who gave me a brochure. Her only words were, 'Do you really want to do this?'. I said, 'No'.
People speak negatively about 'the protesters' at the front of abortion clinics, but these lovely people saved me and my baby.
I ask members of Parliament to vote against this bill so that women like me can have real choice.
This afternoon I had the privilege of meeting the author of this letter and her four-year-old daughter. She described to me the care and support she received and continues to receive from this group of committed individuals. I cannot understand how anyone can suggest that the birth and life of this healthy little girl should have been prevented.
If emotive arguments do not work for you, I will return to being an academic once more. In 2012 the journal Contraception published an article by Foster et al. headed 'Effect of abortion protesters on women's emotional response to abortion'. The authors did this because little was known about women's experiences with and reactions to protesters and how protesters affect women's emotional responses to abortion. They interviewed almost 1000 women seeking abortions between 2008 and 2010. Most facilities that they went to reported a regular protester presence. One-third identified protesters as being aggressive towards their patients. Nearly half of the women interviewed said that they had seen protesters. The conclusion in this report is that while protesters may upset some women seeking abortion services, there are no lasting effects. It states:
… exposure to protesters does not seem to have an effect on women's emotions about the abortion one week later.
This peer-reviewed article has been ignored in the preparation of this bill in favour of abortion clinic-sponsored research and in favour of the opinion of those who profit from this industry.
This law is simply not reasonable; 150 metres is a disproportionate response. The penalties are disproportionate responses; 120 penalty units or up to 12 months imprisonment is quite a punishment for praying the rosary, displaying a poster on church grounds or holding an open-air discussion group. I look forward to this bill being considered in the committee stage where I can explore some of the concerns that I have outlined and hopefully provide some assurances for those who presently feel they are the victims of a targeted attack on their religious and political freedoms.
I wish to thank the 13 MPs in the other place who voted against this bill: Robert Clark, the member for Box Hill; Neil Angus, the member for Forest Hill; Richard Riordan, the member for Polwarth; Gary Blackwood, the member for Narracan; David Southwick, the member for Caulfield; Tim Bull, the member for Gippsland East; Murray Thompson, the member for Sandringham; Bill Tilley, the member for Benambra; Martin Dixon, the member for Nepean; Nick Wakeling, the member for Ferntree Gully; Michael Gidley, the member for Mount Waverley; Graham Watt, the member for Burwood; and David Hodgett, the member for Croydon. I thank these principled individuals, and I would urge everyone in this place to consider their principles within this argument. I would urge everyone voting in this house tonight to really consider their vote. To vote for this bill in its current form is to vote against the very principles that this Parliament was founded on.