The recent new abortion clinic exclusion zone laws in NSW specify that it is illegal to obstruct and harass people accessing clinics or record them without their consent within 150 metres of an abortion clinic or a hospital that provides terminations. All well and good. Nobody should be harassed or hindered from going about their legal business. What is contentious about this new legislation though is the provision that makes it illegal for a person who is in a safe access zone to ‘make a communication that relates to abortions, by any means, in a manner… that is reasonably likely to cause distress or anxiety to any such person.’ These laws mirror similar legislation that exists in Tasmania, Victoria and the ACT.

Once again a subjective measure of criminal behaviour has been enshrined in Australian legislation. What causes anxiety or distress to an individual is relative and can’t always be determined at the time that contact is made. Perhaps handing a woman a leaflet advertising a pregnancy support centre will cause her distress, perhaps it won’t. What this provision represents is a ‘future tense’ crime. That is, an action by a person can be either a crime or not a crime dependent on the agency of another person. If the same action causes one person distress, it is criminal; if it does not, then it is a lawful act.

No woman entering an abortion clinic should be harassed, intimidated or restricted. Most people would agree with this. But existing laws already prohibit this kind of behaviour in a public place. For instance in NSW, Section 197 of the Law Enforcement (Powers and Responsibilities) Act 2002 gives a police officer the power to direct a person to move on from a public place if they are obstructing somebody or harassing and intimidating them. If women are being abused or harassed outside of abortion clinics then existing legislation gives police the power to take action.

In this respect, the new exclusion zone legislation is redundant. The most offensive behaviour that occurs outside of abortion clinics is already illegal. Which leads one to wonder – why haven’t these existing powers been exercised? If harassment and intimidation is routine outside of abortion clinics, as we are led to believe, then we would expect to see move-on orders issued regularly and arrests made if protesters failed to comply.

It seems, however, that the new legislation isn’t really about intimidation or harassment. The provisions about communication and potential anxiety and distress make it clear that the main objective of the law is to create an environment where a woman can enter an abortion clinic without being exposed to the fact that there are people who both disagree with her choice, and who seek to change her mind. When faced with a difficult decision, and having decided that an abortion is your best course of action, there is no doubt that the presence of people who clearly disagree with you is bound to make you feel uncomfortable.

In a liberal society though, feeling uncomfortable at times is the price we pay for our freedom. A liberal society isn’t utopia and it isn’t without its conflicts and human failings. Seeing people advocate for positions that you disagree with can be upsetting, but making somebody feel uncomfortable about their choices isn’t assault or abuse.  If we are to exist in anything other than an enforced monoculture, we must acknowledge that we will come across ideas and opinions that we don’t like. What’s important about women and abortions, is that they can freely exercise their choice, even if it is a difficult one – no abortion protester can prevent them from doing so. And yet peaceful protesters are being prevented from exercising their choice to express a political opinion in a public space.

In two cases coming before the High Court, the exclusion zone laws in Victoria and Tasmania are being challenged in what can best be described as two incidences of civil disobedience. The bases of these cases are that exclusion zone laws are unconstitutional because they deny protesters the implied freedom of political communication that has been acknowledged by various decisions of the High Court. This freedom isn’t granted to individuals, but rather it acts as a burden on government, which cannot then pass laws that limit this freedom.

John Graham Preston was convicted in 2016 and fined $3,000 for protesting outside an abortion facility in Hobart. Preston wasn’t abusing, intimidating or harassing anyone – he was arrested for holding up a sign within the 150 metre exclusion zone. He has appealed his conviction and his case is due to appear before the High Court this year.

The second case involves appellant Kathleen Clubb who protested within an exclusion zone in Victoria in 2016 and was also convicted and fined $5,000. She will be opposed in court by no less than the Victorian Solicitor-General Kristen Walker, Commonwealth Solicitor-General Stephen Donaghue QC, NSW Solicitor-General Michael Sexton SC, Queensland Solicitor-General Peter Dunning QC, West Australian Solicitor-General Chris Bleby SC and barristers acting for private abortion clinics. A David versus Goliath case if ever there was one.

Once we agree that location-based protest can be rightfully restricted we open ourselves to expansion of these powers. Gathering at certain locations in full view of the public is a very effective tool of protest, and protest is often intended to make people feel uncomfortable or even distressed in order to have an impact. Location-based protest has been used to good effect at logging sites, nuclear facilities and to protest live exports at ports and wharves. If location-based protest is prevented at abortion clinics, if we empower government to enact such laws with our tacit agreement, what is to stop the introduction of further laws that extend to public protest at other locations?

It is in support of these ideas, that LibertyWorks has been granted leave to appear in the High Court as amicus curiae in the matter of Preston v. Avery. We believe that at heart this is an issue of freedom of speech and freedom of expression relevant to us all, no matter our personal stance on abortion.

George Orwell was on the money when he said in his forward to Animal Farm: ‘these people don’t see that if you encourage totalitarian methods, the time may come when they will be used against you instead of for you.’ Opposing abortion clinic exclusion zones has nothing to do with whether or not you agree with the protesters or their methods, and everything to do with preserving a pluralistic, free and open society.