• No results found

FREEDOM OF EXPRESSION AND MANIFESTATION OF RELIGION IN ABORTION SERVICE SAFE AREAS

N/A
N/A
Protected

Academic year: 2023

Share "FREEDOM OF EXPRESSION AND MANIFESTATION OF RELIGION IN ABORTION SERVICE SAFE AREAS "

Copied!
36
0
0

Loading.... (view fulltext now)

Full text

(1)

EMILY THOM

FREEDOM OF EXPRESSION AND MANIFESTATION OF RELIGION IN ABORTION SERVICE SAFE AREAS

Submitted for the LLB (Honours) Degree Faculty of Law

Victoria University of Wellington

2021

(2)

Abstract

Pro-life activity outside of abortion services began in New Zealand shortly after the first abortion clinic opened in 1974. Protest activity has varied from peaceful prayer and offers of support to insults, threats and violent attacks. The Contraception, Sterilisation and Abortion (Safe Areas) Amendment Bill was introduced to New Zealand’s Parliament in 2020 with the purpose of curbing all protest activity around abortion services. This paper criticises the broad scope of conduct that will be captured within the Bills prohibition on

‘communicating with a person in a manner that the ordinary reasonable person would know would cause emotional distress to a protected person’. This paper considers the burden that this prohibition places upon the rights to freedom of expression and manifestation of religion as protected by the New Zealand Bill of Rights Act 1990. After engaging in a comparative analysis to safe areas legislation implemented in the United States, United Kingdom, Canada and Australia, this paper concludes that the communicating prohibition in New Zealand’s Bill is overly broad. It will breach ss 14 and 15 of the New Zealand Bill of Rights Act and, as such, should be removed from the Bill.

(3)

Contents

I Introduction 4

II Abortion Protest in New Zealand 5

A The Range of Protest in New Zealand 5

B Engagement of ss 14 and 15 8

III Overview of the Bill 9

IV Safe Areas Legislation Overseas 10

A United States 10

B United Kingdom 10

C Canada 11

D Australia 12

V The Range of Protest Activity Captured by the Bill 12

A The 150 Metre Area 12

B Breadth of ‘Communicating’ 13

C Objective ‘Emotional Distress’ 15

VI Summary of Objection 16

VII Importance of Pro-Life Activity 17

VIII The Bill of Rights Vet 18

IX Emotional Distress Standard 20

A Emotional Harm and the NZBORA 20

B Emotional Harm and Privacy 21

C Emotional Harm in New Zealand Statute 22

D Conclusion 23

X Overseas Experience 23

A Overseas Standards 23

B Practical Result of Legislation Overseas 26

XI Sufficiency of New Zealand’s Current Law 27

XII Conclusion 30

(4)

I Introduction

For one hour every Wednesday a group of three to four elderly ladies meet to pray across the road from a private abortion facilitiy in Auckland.1 There are four lanes of traffic and two footpaths between the facility and the place where they set up their deckchairs because they cannot stand for the full hour.2 Sometimes they set up a sign saying, “you’re not alone”, or bearing the number of a local pregnancy help centre.3 Michele O’Neill, submitting to the Health Select Committee, often meets at this location, evidently compelled by her religious convictions to pray within view of the clinic. O’Neill explained her perplexion as to why her prayers in these circumstances might be prohibited under the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill (the Bill).4

The Bill was introduced in response to protest activity outside of abortion services in New Zealand.5 It seeks to eradicate this activity within an area of up to 150 metres around prescribed abortion services to protect those accessing or providing such services (protected persons).6 However, as I will argue, the communicating provision is overly broad.7 The provision will capture religiously motivated activities including pregnancy support offers and prayer. These activities engage both the rights to freedom of expression and manifestation of religion as protected by the New Zealand Bill of Rights Act (NZBORA).8 In view of the lack of harm these activities cause, their prohibition within safe areas cannot be demonstrably justified in New Zealand’s society.9 The communicating prohibition should be removed from the Bill.

1 Michele O’Neill “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee A (12 May 2021)”.

2 Michele O’Neill “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee A (12 May 2021)”.

3 Michele O’Neill “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee A (12 May 2021)”.

4 Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 (310-1).

5 (10 March 2021) 750 NZPD (Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – First Reading, Louisa Wall); and Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 (310-1) (explanatory note) at 1.

6 Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 (310-1) (explanatory note) at 1.

7 Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 (310-1), cl 13A(3)(b).

8 New Zealand Bill of Rights Act 1990, ss 14-15.

9 New Zealand Bill of Rights Act, s 5.

(5)

I will first consider the nature of pro-life protest in New Zealand. This will reveal an inherent connection between religion and protest. A limitation on pro-life protest, thus, also limits the right to manifestation of religion. It will also reveal a very broad scope of conduct, some of which has caused harm to protected persons. This gives legitimacy to the purpose of the Bill. I will then consider the ‘safe areas’ legislation already implemented in the United States, United Kingdom, Canada and Australia, drawing comparisons to New Zealand's Bill.

I will conclude this background analysis by examining the range of protest activity that will be captured by the Bill.

Having set the Bill in context I will proceed to consider whether the communicating provision, which limits ss 14 and 15 of the NZBORA, can be demonstrably justified under s 5. Following the Oakes test I will weigh the importance of pro-life activities to individuals participating, the harm caused to protected persons by those activities, the emotional distress standard required by the Bill, the impact of safe areas legislation overseas, and the sufficiency of New Zealand’s present law.10 Having weighed these factors I will conclude that the limits placed upon the rights to manifestation of religion and freedom of expression by the communicating provision cannot be demonstrably justified under s 5. Thus, the Bill should not be allowed to proceed in its present form.

II Abortion Protest in New Zealand

A The Range of Protest in New Zealand

The purpose of establishing safe areas around abortion facilities is to protect the safety and well-being, and respect the privacy and dignity of protected persons.11 The necessary corollary to this purpose is the existence of behaviour that places the safety, well being, privacy and dignity of protected persons at risk. Throughout the select committee submission process competing evidence was heard as to the existence and extremity of pro-

10 R v Oakes [1986] 1 SCR 103.

11 Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 (310-1) (explanatory note) at 1.

(6)

life activity throughout New Zealand.12 This may be explained by the broad range of activity that has occurred throughout history in New Zealand and around the world.

Pro-life activity outside abortion facilities began shortly after New Zealand’s first abortion clinic opened in 1974.13 The most extreme protests occurred between the 1970s and 1980s and included arson attacks, a firebombing, bomb scares, and threats.14 In the 1980s and 1990s Operation Rescue gained a reputation for taking measures to prevent people from entering facilities including trespass and obstruction, photography and ‘naming and shaming’.15 While Operation Rescue no longer has a presence in New Zealand, occasional acts of trespass and obstruction still occur.16

Other pro-life activities outside abortion facilities have included verbal and visual accusations of murder, and signage depicting successful abortions and dismembered foetus parts.17

More common forms of pro-life activities include signs reading “love them both” and

“pregnancy support”, sidewalk counselling and the offering of pregnancy support leaflets, and signage depicting foetuses at various stages of development. Many submitters described their pro-life activities as providing one last opportunity to women who may not have

12 See generally ALRANZ Abortion Rights Aotearoa “Submission to the Health Committee on the

Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020”; and Right to Life New Zealand Inc “Submission to the Health Committee on the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020”.

13 Megan Cook, “Abortion - Controversy: 1974 to 1980s” (5 May 2011) Te Ara The Encyclopedia of New Zealand <teara.govt.nz>

14 Alison McCulloch Fighting to Choose: The Abortion Rights Struggle in New Zealand (Victoria University Press, Wellington, 2013) at 94-95 and 241-242.

15 McCulloch, above n 14, at 242-244; and Margaret Sparrow “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee A (12 May 2021)”.

16 Abortion Providers Group Aotearoa New Zealand “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee A (19 May 2021)”; and Hilary Stapels

“Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee A (12 May 2021)”.

17 McCulloch, above n 14 at 244; see generally Royal Australian and New Zealand College of Obstetricians and Gynaecologists “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee B (19 May 2021)”; and PSA “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee A (28 May 2021)”.

(7)

understood the support available to them.18 These activities are often influenced by religious beliefs.

Finally there are pro-life activities which are expressly religious. These are most commonly in the form of prayer with or without the rosary and singing.19 40 Days for Life is one of New Zealand’s most sizeable pro-life campaigns. It is an international prayer project which encourages individuals to gather outside of abortion facilities over the 40 days of lent to pray.20 All those participating are required to sign a statement of peace.21

This evidence demonstrates that while much pro-life activity is non-violent, this is not always the case. While many pro-life petitioners claim that they intend their prayer, hymns and signs to demonstrate love towards protected persons, these activities are often perceived as judgmental and condemning. Evidence from those accessing abortion services have suggested that prayer can be just as offensive as chanting with placards and that even an offer of help can be condescending and traumatising.22 It is argued that this provides the necessary justification for prohibiting all manner of protest activity.23 This sentiment was expressed in Canada in R v Lewis where the Court considered offers of help and prayer vigils outside of abortion clinics to be expressions of disapproval.24

Submitters also argued that pro-life activities within New Zealand must be considered in the context of protests world-wide. Committee member Elizabeth Kerekere MP suggested that

18 See Merle Duxford “Submission to the Health Committee on the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020”; Frances Posthuma “Submission to the Health Committee on the

Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020”; and Leao Tildsley “Submission to the Health Committee on the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020”.

19 See Right to Life New Zealand Inc “Submission to the Health Committee on the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020”.

20 40 Days for Life (2021) <www.40daysforlife.com>

21 Family Life International New Zealand “Submission to the Health Committee on the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020” at 4.

22 PSA “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee A (28 May 2021)”; and Otago University Student Association “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence (5 May 2021)”.

23 ALRANZ Abortion Rights Aotearoa “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee B (19 May 2021)”; and PSA “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee A (28 May 2021)”.

24 R v Lewis (1996) 139 DLR (4th) 480 (BCSC), at [27] and [63].

(8)

even offers of pregnancy support are part of a bigger rhetoric.25 Similarly the Abortion Law Reform Association of New Zealand (ALRANZ) submitted that it is the fear of escalation of violence which makes protest behaviour unacceptable.26

Protest activity overseas has frequently included more violent forms of protest than in New Zealand. In the United States, protests outside of clinics have been substantial and often violent. Assault and battery occur frequently and death threats and threats of harm directed at abortion service providers are not uncommon.27 Bomb threats and arson attacks remain an occasional occurrence.28 Several people have also been killed in attacks on abortion clinics, the last death occurring in 2015.29 Deaths related to pro-life protests have also occurred in Canada and Australia. However, most recorded protest activity in all of these countries has been non-violent.30 Pro-life protests in New Zealand should be considered against the backdrop of more violent protest overseas, however, the importation of a violent sentiment to New Zealand should not be overstated.

Protest activity outside of abortion services in New Zealand has harmed the safety, well being, of protected persons. These concerns are pressing and substantial and, thus, are sufficiently important to permit the limitation of a right.31

B Engagement of ss 14 and 15

In Fighting to Choose: The Abortion Rights Struggle in New Zealand, Alison McCulloh maintains that the pro-life movement is essentially a religious one.32 This is illustrated in the Catechism of the Catholic Church which holds that human life must be respected and protected absolutely from the moment of conception.33 The nature of pro-life activities

25 “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee B (12 May 21) B.

26 ALRANZ Abortion Rights Aotearoa “Submission to the Health Committee on the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020” at 2.

27 2019 Violence and Disruption Statistics (National Abortion Federation, 2019) at 5 and 8.

28 2019 Violence and Disruption Statistics (National Abortion Federation, 2019) at 6 and 8.

29 2019 Violence and Disruption Statistics (National Abortion Federation, 2019) at 8-11.

30 2019 Violence and Disruption Statistics (National Abortion Federation, 2019).

31 R v Oakes, above n 10.

32 McCulloch, above n 14, at 53.

33 Catechism of the Catholic Church (St Pauls, Homebush (NSW), 1994), at [2270].

(9)

outside of abortion facilities largely reflect this religious conviction. Pro-life groups including the ‘Helpers of God’s Precious Infants’ draw a parallel to Jesus’ mother Mary, his disciple John and other followers who stood at the foot of the cross on the day of Jesus’

crucifixion.34 Like these three individuals, the Helpers of God’s Precious Infants wish to remain outside abortion facilities beside the unborn children in the hour of their crucifixion.35 This sentiment is echoed across pro-life organisations.36

The engagement of freedom of religion in the context of protest within abortion service safe areas has been recognised in courts overseas.37 The Canadian case R v Lewis directly considered whether freedom of conscience and religion enshrined in the Canadian Charter, upon which New Zealand’s Bill of Rights Act was modelled, was engaged by pro-life protests within a safe area.38 In Lewis the Charter’s protection of freedom of religion as well as freedom of expression was found to be engaged.39 Freedom of expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form.40 This encompasses pro-life protests.

III Overview of the Bill

The Bill will establish ‘safe areas’ around prescribed abortion services within which certain conduct is prohibited. An area will extend no further than 150 metres from any part of the abortion service premises.41 Safe areas will not automatically apply, rather, they may be established on the recommendation of the Minister of Health after consultation with the Minister of Justice.42 The Minister of Health must be satisfied that the safe area is necessary in light of the purpose of the Bill, and that the safe area can be demonstrably justified in a

34 “The Helpers of God’s Precious Infants” Eternal World Television Network <ewtn.com>

35 “The Helpers of God’s Precious Infants” Eternal World Television Network <ewtn.com>

36 See John Scheidler “At the Foot of the Cross” (31 March 2010) Pro-Life Action League

<https://prolifeaction.org>

37 See R v Lewis, above n 24, at [5]; and Dulgheriu v Ealing [2019] EWCA Civ 1490, [2020] 1 WLR 609 at [81].

38 Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK), s 2(a); R v Lewis, above n 24, at [5].

39 R v Lewis, above n 24 at [65] and [69]-[71].

40 New Zealand Bill of Rights Act 1990, s 14.

41 Clause 13C(1)(b).

42 Clause 13C(1).

(10)

free and democratic society as a reasonable limitation on people’s rights and freedoms.43 The necessity for and justification of the safe area will be reviewed every five years.44

The Bill states that a person must not engage in any ‘prohibited behaviour’ in a safe area.45 Prohibited behaviour is defined as follows:46

(a) Intimidating, interfering with, or obstructing a protected person––

(i) With the intention of frustrating the purpose for which the protected person is in the safe area; or

(ii) In a manner that an ordinary reasonable person would know would cause emotional distress to a protected person:

(b) Communicating with, or visually recording, a person in a manner that the ordinary reasonable person would know would cause emotional distress to a protected person.

If a constable reasonably believes that a person is engaging in prohibited behaviour in a safe area, and that person fails to stop upon request, a constable may arrest and take that person into custody without a warrant.47 They will be liable on conviction to a fine not exceeding

$1,000.48

The Bill is clear that religiously motivated intimidation, interference or obstruction of protected persons will be captured by s 13A(3)(a). However, on its face, it is unclear how far the net of liability will be cast under the s 13A(3)(b) communicating provision.

IV Safe Areas Legislation Overseas

Several other jurisdictions have established safe areas around abortion facilities. These include the United States, England, Canada and Australia. I will consider each of their provisions in turn.

43 Clause 13C(2)(b).

44 Clause 13C(3).

45 Clause 13A(1).

46 Clause 13A(3)(a)-(b).

47 Clause 13B.

48 Clause 13A(2).

(11)

A United States

The rights landscape in the United States differs from that in New Zealand. Safe areas legislation, in the few states where it has been implemented, is tightly restrained reflecting the primacy given to freedom of expression. In Colorado, for example, 30 metre safe areas have been established around all medical facilities. At their most restrictive these areas prohibit approaching within two metres of another person, without consent, for educational or counselling purposes.49 All forms of legal protest including picketing, pregnancy support offers and prayer are otherwise permitted within a safe area.

B United Kingdom

The United Kingdom does not have legislative provision for safe areas around abortion facilities. Rather, Public Space Protection Orders (PSPO) have been used to create safe areas around three abortion facilities to date.50 Established by the local council, each safe area is uniquely prescribed, however, all three have prohibited essentially the same conduct. At their most restrictive they prohibit engaging in any act or attempted act of approval or disapproval in relation to abortion services.51 This can be via graphic, verbal or written means and includes counselling and prayer. The display of text or images relating directly or indirectly to the termination of pregnancy is also prohibited.52

These PSPOs are more restrictive of protest activity than New Zealand’s Bill. Once established they create a blanket ban on specified activities and unlike in the United States, no exception of consent is provided for persons accessing abortion services who wish to pray with or discuss issues of abortion within a safe area.

While the safe areas established in the United Kingdom are very restrictive, they are also difficult to establish. Under the Anti-social Behaviour, Crime and Policing Act several

49 CO Rev Stat, title 18 § 18.9.122.

50 Public Spaces Protection Order (Mattock Lane) 2018; Public Spaces Protection Order (Rosslyn Road) 2019;

and Manchester City Council (Wynnstay Grove) Public Spaces Protection Order 2020.

51 Public Spaces Protection Order (Mattock Lane), art 4(i); Public Spaces Protection Order (Rosslyn Road), art 1(a); and Manchester City Council (Wynnstay Grove) Public Spaces Protection Order, art 1.

52 Public Spaces Protection Order (Mattock Lane), art 4(v); Public Spaces Protection Order (Rosslyn Road), art 1(e); and Manchester City Council (Wynnstay Grove) Public Spaces Protection Order, art 6.

(12)

conditions have to be met before a PSPO can be established.53 At the very least the protests must be likely to have a detrimental effect on the quality of life of those in the locality and be of a persistent or continuing nature such as to make the activities unreasonable and justify the restrictions imposed by the notice.54 A rigorous consultation process must be undertaken before a PSPO can be established.55 In New Zealand’s Bill, the Minister of Health’s responsibility to ensure the necessity and justification for a prescribed safe area is far less exacting.56

C Canada

Five provinces in Canada have passed safe areas legislation. British Columbia was the first, and several other provinces have modelled their safe areas provisions off of this legislation.57 The safe areas extend up to 50 metres from the boundary of abortion facilities and are established by the Lieutenant Governor in Council by regulation. At their most restrictive, British Columbia’s safe areas prohibit informing or attempting to inform a person concerning issues relating to abortion services by any means, and prohibit any act of disapproval in relation to abortion services by any means.58 In contrast to New Zealand’s Bill this provision is less restrictive of conduct where it requires a prohibited act to be in relation to abortion services, however, is more restrictive in that it does not require harm to be objectively likely to result.

D Australia

In Australia, Victoria’s legislation in particular bears resemblance to New Zealand’s Bill.

Both prohibit communicating and extend up to 150 metres from prescribed facilities.59 One notable difference is that a prohibited communication must be in relation to abortion and it

53 Anti-social Behaviour, Crime and Policing Act 2014 (UK), s 59.

54 Anti-social Behaviour, Crime and Policing Act, s 59(1)-(3).

55 See generally Public Spaces Protection Order to address behaviours outside the Marie Stopes Clinic, Mattock Lane: Consultation Report (Ealing Council, March 2018).

56 Section 13C(2).

57 Access to Abortion Services Act RSBC 1996 c 1; Access to Abortion Services Act SNL 2016 c A-1.02;

Respecting Health Services and Social Services Act RSQ 2016 c S-4.2; Safe Access to Abortion Services Act SO 2017 c 19; Protecting Choice for Women Accessing Health Care Act SA 2018 c P-26.83; Protecting Access to Reproductive Health Care Act SNS 2020 c 5.

58 Access to Abortion Services Act RSBC 1996 c 1, s 21(1)(a)(ii) and (b).

59 Public Health and Wellbeing Act 2008 (Vic), s 185B(1); and Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill, cl 13C(1)(b).

(13)

must be able to be able to be seen or heard by a protected person.60 This narrows the conduct that will be captured. Furthermore, a prohibited communication must be reasonably likely to cause distress or anxiety.61 Because this provision does not require distress or anxiety to relate to a protected person, courts may choose to import an ‘ordinary reasonable person’

standard into the provision. This would narrow the conduct captured so that tolerable protests would not be criminalised by the particular sensibilities of persons accessing abortion services.

V The Range of Protest Activity Captured by the Bill

A The 150 Metre Area

It is likely that a safe area of up to 150 metres was decided upon for New Zealand’s Bill because this was the distance adopted in similar legislation in Victoria. The 150 metre area was chosen in Victoria after consultation with a wide range of stakeholders.62 Australian hospitals and clinics provided examples of the locations where protesters would stand.63 In Clubb v Edwards Gageler J warned against the arbitrary application of a 150 metre area on the basis of legislation implemented in another state where the protest and legislative context may be different.64 Gageler J emphasised that a 150 metre area is not trivial but must be close to the maximum justifiable reach.65 It remains unclear why the distance of up to 150 metres has also been considered appropriate for New Zealand.

B Breadth of ‘Communicating’

Looking at the plain language of s 13A(3)(b), the word ‘communicating’ is very broad. In ordinary usage, communication can be carried out verbally or nonverbally.66 Therefore, it can encompass conduct ranging from speaking and signage to silent prayer. A very broad reading of ‘communicating’ was supported by MPs during the first reading of the Bill. Jan Logie MP stated that pro-life protesters will still be able to hold prayer sessions, however,

60 Public Health and Wellbeing Act, s 185B(1).

61 Section 185B(1).

62 Victorian Parliamentary Debates, Legislative Assembly, (22 October 2015) at 3976.

63 At 3976.

64 Clubb v Edwards [2019] HCA 11, (2019) 267 CLR 171 at [209].

65 Clubb v Edwards, above n 64, at [213].

66 Concise Oxford English Dictionary (12th ed, Oxford University Press, Oxford, 2011).

(14)

they may have to do this 150 metres down the road.67 Sarah Pallett MP noted that prayer to God is effective irrespective of where it is carried out.68 These references to prayer demonstrate that some MPs anticipate that prayer will be captured by the Bill. Support for a broad interpretation is also found in the select committee submissions where silent prayer was named as a form of conduct that disturbs the dignity of protected persons.69

Crown Law’s further briefing to the Attorney-General noted that in its current form the Bill risks criminalising helpful conversations with a legitimate purpose.70 In particular Crown Law expressed concerns that difficult conversations with clinicians and family members could be criminalised.71 Accepting that ‘communication’ may include some conversations with clinicians and family members, it is also likely to capture potentially helpful conversations with pro-life petitioners. Crown Law recommended that the Bill be amended to set out the specific forms of communication to be criminalised.72

Case law from Australia, Canada and the United Kingdom also supports the conclusion that New Zealand courts would find ‘communicating’ to include silent prayer. In the Australian case Clubb v Edwards the Court considered the constitutionality of safe areas provisions in the states of Victoria and Tasmania.73 The Victorian legislation, similar to New Zealand’s Bill, prohibits “communicating by any means in relation to abortion”.74 Tasmania’s provision is more narrow, prohibiting “a protest in relation to terminations” that is able to be seen or heard by protected persons.75 Gageler and Edelman JJ both considered whether silent prayer might be captured within these provisions.76 Gageler J recognised that silent

67 (10 March 2021) 750 NZPD (Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill – First Reading, Jan Logie).

68 (10 March 2021) 750 NZPD (Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill – First Reading, Sarah Pallett).

69 PSA “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee A (28 May 2021)”; and Otago University Student Association “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence (5 May 2021)”.

70 Matt McKillop Contraception, Sterilisation and Abortion (Safe Areas) Amendment Bill Our Ref: ATT395/322 (Crown Law, May 2021) at [6.1].

71 At [6.1].

72 At [7]-[8].

73 Clubb v Edwards, above n 64.

74 Public Health and Wellbeing Act, s 185B(b).

75 Reproductive Health (Access to Terminations) Act 2013 (Tas), s 9(1)(b).

76 At [167] and [475].

(15)

prayer might in particular circumstances amount to a public demonstration or protest.77 With reference to prayer, Edelman J stated that silent or quiet action can be a powerful form of protest and political communication.78 He referenced communicative power of silent action including wearing symbols of dissent, participating in a silent vigil, public prayer and meditation. Edelman J also noted that the Parliament of Tasmania intended for the protest prohibition to capture silent protests and vigils outside of termination clinics.79 New Zealand’s Bill appears to have drawn upon the Victorian safe areas legislation. Thus, Clubb v Edwards provides a strong indication that the New Zealand Courts would similarly consider silent prayer to be included within the scope of ‘communicating’. This is strengthened by the Courts suggestion that silent prayer would also fall within the more narrow Tasmanian prohibition on ‘protest’.

In the Canadian case R v Lewis the Court considered the constitutionality of a safe areas provision in British Columbia.80 The provision prohibits protest including any act or attempted act of disapproval with respect to issues related to abortion services, by any means.81 Saunders J held that the Act prohibited the defendant from expressing his sincerely held religious views, that abortion is not justifiable, in a safe area.82 Furthermore, he considered it would prevent the defendant from participating in prayer vigils within a safe area during which disapproval of abortion is expressed.83 This case again shows that religious views and silent prayer would likely be caught within New Zealand’s broader

‘communicating’ prohibition.

The United Kingdom’s three PSPOs all expressly prohibit acts of approval or disapproval of issues relating to abortion services including prayer, whether silent or otherwise.84 This express inclusion of prayer within the definition of “acts of approval or disapproval” further indicates that prayer will be captured by New Zealand’s Bill.

77 At [167].

78 At [475].

79 At [475]; and see Tasmania Parliamentary Debates, House of Assembly, (16 April 2013), p 50.

80 R v Lewis, above n 24.

81 Access to Abortion Services Act RSBC 1996 c 1, s 2(1)(b).

82 At [63].

83 At [63].

84 Public Spaces Protection Order (Mattock Lane) 2018; Public Spaces Protection Order (Rosslyn Road) 2019;

and Manchester City Council (Wynnstay Grove) Public Spaces Protection Order 2020.

(16)

Overall, it is highly likely that the Bill’s prohibition against ‘communicating’ will include religiously motivated verbal communication and offers of support, religious symbols, scriptial signage and verbal or non-verbal prayer. The ordinary reading of the safe areas provision, discussion in Parliament, the Crown Law Office’s further briefing to the Attorney-General, and legislation and case law from Australia, Canada and the United Kingdom all support this conclusion.

C Objective ‘Emotional Distress’

The scope of activity captured by the Bill is limited by the requirement that communication be carried out, “in a manner that an ordinary reasonable person would know would cause emotional distress to a protected person.”85 This is an objective requirement. The first draft of this provision, as drafted for the Abortion Legislation Bill, included a genuine mens rea requirement.86 Communication had to be carried out, in a manner that was intended to cause the protected person emotional distress, and would in fact cause emotional distress to an ordinary reasonable person in their position.87 However, a majority of the Abortion Legislation Committee considered that the thresholds for ‘prohibited behaviour’ were too high.88 They recommended that the subjective intention requirement be removed.89 Their recommendations also included a slight change to the wording of the objective emotional distress requirement. Namely, emotional distress need not be objectively caused to the ordinary reasonable person in the position of a protected person, but merely to a protected person. These recommendations were adopted and have remained in the Safe Areas Bill.90 The objective standard proves difficult when it comes to the divergence between the intention of pro-life petitioners and how they are received by protected persons. In general, pro-life petitioners say that their prayers and offers of support come from a place of love and a desire to help. However, protected persons often receive silent prayer as judgment and offers of support as condescension. As the representative for ALRANZ stated in her submission, referring to prayer and song, “There’s abuse and then there’s condescension,

85 Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill s 13A(3)(b).

86 Abortion Legislation Bill 2020 (164-2), s 15(3)(b)(i).

87 Section 15(3)(b)(i).

88 Abortion Legislation Bill (164-2) (commentary) at 20-21.

89 Abortion Legislation Bill (164-2) (commentary) at 20-21.

90 See s 13A(3)(b).

(17)

but it kind of all amounts to the same thing.”91 In Clubb v Edwards, Gageler and Edelman JJ both considered silent prayer within safe zones to explicitly or impliedly convey disapproval.92 It is this conveyance of disapproval that pro-choice advocates and protected persons in New Zealand object to as emotionally distressing.93 Gageler and Edelman JJ both considered silent prayer to fall within Victoria’s safe areas provision despite the requirement that captured communication be reasonably likely to cause distress or anxiety.94

The reference to a protected person in s 13A(3)(b) creates further issues. It is conceivable that protected persons accessing abortion services may be in a more vulnerable state than an ordinary reasonable person. It is widely accepted that the decision to have an abortion is difficult and emotionally challenging. A protected person may more readily be caused emotional distress by well-intended and kind-natured communications, such as an offer of prayer or a prayerful presence across the street. As such, the emotional distress limitation upon prohibited communication does little to protect petitioners who, compelled by their religious beliefs, pray silently or offer pregnancy support out of love for protected persons.

VI Summary of Objection

The rights contained within the NZBORA are not absolute but under s 5 are, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The Legislation Guidelines outline the approach to be taken to determine whether s 5 has been breached by the relevant bill.95 The approach broadly follows the two-part Oakes test adopted from Canada.96 The first part of this test asks whether the purpose of the proposed limit on the right is sufficiently important to justify its limitation. The purpose of protecting persons accessing and providing services at abortion facilities from harmful protect activity fulfils this requirement.

91 ALRANZ Abortion Rights Aotearoa “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee B (19 May 2021)”

92 Clubb v Edwards, above n 64, at [167] and [475].

93 ALRANZ Abortion Rights Aotearoa “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee B (19 May 2021)”; PSA “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee A (28 May 2021)”; and Otago University Student Association “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence (5 May 2021)”.

94 Clubb v Edwards, above n 64, at [167] and [475]; Public Health and Wellbeing Act 2008 (Vic), s 185B(b).

95 Legislation Guidelines (Legislation Design and Advisory Committee, March 2018) at 32-35.

96 R v Oakes, above n 10; see also Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.

(18)

The second part involves a three-step proportionality analysis:

(1) whether the limiting provision is rationally connected to its purpose;

(2) whether it impairs the right no more than is reasonably necessary for the sufficient achievement of its purpose; and

(3) whether the limit is proportionate to the importance of the objective.

If all parts of the test are answered in the affirmative then, despite the engagement of a right, no breach of the NZBORA will be found.

The first step in the proportionality analysis is satisfied. Limiting communication in safe areas will facilitate the protection of protected persons. This will uphold the purpose of the Bill. The second and third steps of the proportionality analysis are more contestable. These steps question whether the prohibition in safe areas of activities such as prayer and pregnancy support offers, is reasonably necessary for and proportionate to the protection of protected persons. I will conclude that in its present form, the Bill is not proportionate but breaches the NZBORA.

VII Importance of Pro-Life Activity

Religion is of fundamental importance to the lives of many. The 2018 census found that just over 50 percent of New Zealand’s population were affiliated with at least one religion.97 The United Kingdom Court of Appeal, discussing pro-life activity, held that religion is one of the most vital elements that go to make up the identity of believers and their conception of life.98 One of the defining characteristics of religion as affirmed by New Zealand’s courts is that it relates to a person’s nature and place in the universe.99 As such, it is axiomatic that one’s religious convictions are deeply important.

In Hansen v R, one of New Zealand’s leading Bill of Rights cases, the Supreme Court held that the more severe the deleterious effects of a measure are, the more important its purpose must be for proportionality to be found.100 The ‘communicating’ provision prohibits pro-

97 “Losing our religion” (3 October 2019) StatsNZ <stats.govt.nz>

98 Dulgheriu v Ealing London Borough Council, above n 37, at [78].

99 Centrepoint Community Growth Trust v Commissioner of Inland Revenue [1985] 1 NZLR 673 (HC), at 694- 695.

100 Hansen v R, above n 96, at [103].

(19)

life activities which are deeply important to those participating. Thus, a particularly compelling justification is necessary for the limitation of these rights to be considered proportionate.

VIII The Bill of Rights Vet

Under s 7 of the NZBORA, the Attorney-General is required to report to Parliament where a Bill appears to be inconsistent with New Zealand’s Bill of Rights. The Oakes test is employed to make this determination.101 By convention the Attorney-General will not report an inconsistency if a right is engaged, but not breached in light of s 5.

After receiving advice from the Crown Law Office, the Attorney-General found the Bill to be in breach of freedom of expression under s 14 of the NZBORA.102 He found the term

‘communicating’ in s 13A(3)(b) to be overly broad, capturing activity beyond that which is necessary to achieve the Bill’s purpose.103 Thus, failing the proportionality analysis, the Bill’s prohibition of ‘communication’ could not be a justifiable limit on s 14 of the NZBORA.104 The Attorney-General’s report provides strong support for the conclusion that the Bill’s communicating provision does in fact breach freedom of expression.

What strikes as concerning about the Attorney-General’s analysis is the absence of any mention of manifestation of religion. The conclusion from this is that either the Attorney- General considered that manifestation of religion is not burdened by the Bill, or that, in contrast to freedom of expression, the burden placed upon manifestation of religion is demonstrably justified under s 5. As previously established, the right to manifestation of religion must be burdened by the Bill. Concluding on his proportionality analysis relating to freedom of expression, the Attorney-General stated that the purpose of the Bill could not support a broad criminalisation of emotionally harmful communication within safe areas.105

101 Matt McKillop Contraception, Sterilisation and Abortion (Safe Areas) Amendment Bill Our Ref:

ATT395/322 (Crown Law, May 2021) at [3].

102 David Parker Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill (February 2021) at [2].

103 Parker, above n 102, at [15].

104 Parker, above n 102, at [15]-[21].

105 Parker, above n 102, at [18].

(20)

Further, it could not support the prohibition of silent distant protest.106 As the epitomical example of this is silent prayer it is unclear how the Attorney-General found the Bill to be in breach of freedom of expression, but not manifestation of religion.

A similar oversight of manifestation of religion can be observed in Parliament. Throughout Parliament’s consideration of safe areas, the right to manifestation of religion has seldom been discussed.107 Despite suggesting that silent prayer would be captured by the Bill,108 the vast majority of discussion has concentrated on freedom of speech.

While some crossover between the two rights is undeniable, the rights are distinct.

Manifestation of religion incorporates rights of observance and practise which go beyond mere expression.109 Many pro-life petitioners feel compelled for religious reasons to pray and offer support outside of abortion facilities. While this invariably involves some element of expression, it also involves the practise of one’s belief. The Bill is more severe in its deleterious effects because it limits petitioners’ rights to both expression and religious practices within safe areas. The purpose of the Bill must accordingly be sufficiently important to justify this substantial limitation.

IX Emotional Distress Standard

A Emotional Harm and the NZBORA

In their further briefing to the Attorney-General, Crown Law noted that emotional harm is at the lowest end of harms addressed by New Zealand’s criminal law.110 Despite the Bill engaging the NZBORA and encompassing a vast range of different protest activities, this low standard has been utilised. This creates inconsistency with other similar offences.

106 Parker, above n 102, at [18].

107 See generally (3 March 2020) 744 NZPD (Abortion Legislation Bill – Second Reading); and (10 March 2021) 750 NZPD (Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill – First Reading).

108 (10 March 2021) 750 NZPD (Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill – First Reading).

109 Report of the Special Rapporteur on freedom of religion or belief UN Doc A/HRC/31/18 (23 December 2015) at 19; see generally Human Rights in New Zealand 2010 (Human Rights Commission, December 2010) at 141.

110 Matt McKillop Contraception, Sterilisation and Abortion (Safe Areas) Amendment Bill Our Ref:

ATT395/322 (Crown Law, May 2021) at [5.2].

(21)

The New Zealand case Brooker v Police provides an example of an interaction between offensive language and behaviour under s 4(1)(a) of the Summary Offences Act (SOA), and freedom of expression under s 14 of the NZBORA.111 The defendant Brooker, believing a constable had acted unfairly towards him, sang, played his guitar and displayed a placard referring to police conduct outside of that constable's house.112

The location of Brooker’s actions is important. Similar to pro-life protests, Brookers protest was targeted, taking place outside the constable’s private home. Also like pro-life protests, Brookers conduct was comprised of song and the display of a placard. The Court expressed concern that this offence could directly impact personal freedom and liberty and had the capacity to be used as a tool to control unpopular and unwelcome speech.113 Despite the private setting and targeted nature of Brooker’s protest, Elias CJ stressed that, “Unpopular expression will often be unsettling and annoying to those who do not agree with it.”114 It may create unrest, dissatisfaction and even stir people to anger. However, it should be protected unless it is “likely to produce a clear and present danger of a serious substantial evil.”115 The majority of the Court concluded that offenses concerning public order should not be capable of being committed by mere emotional upset or anxiety.116 Mere ‘emotional distress’ is precisely the standard which will allow for the commission of an offence under the Bill. While the courts may require more than mere discomfort or hurt feelings,117 they would be hard pressed to limit ‘emotional distress’ so as to capture only particularly distressing communications. The Bill does not require emotional distress to be ‘serious’ as in the Harmful Digital Communications Act (HDCA),118 and the Bill has been drafted so as to capture a broad range of conduct, including silent prayer.

Morse v Police is another New Zealand case which considered the interaction between s 4(1)(a) of the SOA and s 14 of the NZBORA.119 The Court held that where rights are

111 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91 at [1]-[4].

112 Brooker v Police, above n 111, at [13] and [14].

113 Brooker v Police, above n 111, at [34].

114 Brooker v Police, above n 111, at [12].

115 Brooker v Police, above n 111, at [12].

116 Brooker v Police, above n 111, at [34], [42].

117 See Clubb v Edwards, above n 64, at [58].

118 Harmful Digital Communications Act 2015, s 4.

119 Morse v Police [2011] NZSC 45, [2012] 2 NZLR at [1].

(22)

engaged, offensive or disorderly behaviour must be considered through the eyes of the reasonable person who displays tolerance, takes a “balanced, rights-sensitive view”, and is,

“not unreasonably moved to wounded feelings…particularly when confronted by a protester”.120 While the Bill clearly engages the NZBORA, it does not import the standard of a reasonable person but the lower standard of a protected person.121 This may allow for a greater limitation of expression in light of the particular sensibilities of individuals accessing abortion services.

Rees v Police concerned the balance of intimidation under s 21(1)(d) of the SOA and s 14 of the NZBORA when animal rights activists protested outside a shop.122 The Court again emphasised that in light of the NZBORA, the fact that activities are troubling or annoying is insufficient.123

There is a necessity for high standards of harm where rights are engaged. Sections 14 and 15 both encompass elements of expression and are engaged by the Bill. While the above cases have focused on s 14, the principle that rights should not be curtailed on the basis of low level harms equally applies to s 15. Nonetheless the low ‘emotional distress’ standard has been utilised. This weighs against the Bill’s proportionality.

B Emotional Harm and Privacy

One of the purposes of the Bill is to respect the privacy of protected persons. The “right to privacy” has been suggested as justification for limiting expression under the Bill of Rights Act. New Zealand does not have an enshrined right to privacy, however, the right to privacy has been recognised in several international instruments including the International Covenant on Civil and Political Rights which New Zealand ratified in 1978.124

120 Morse v Police, above n 119, at [64]; see also at [40], [70] and [117].

121 Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 (310-1), cl 13A(3)(b).

122 Rees v Police [2007] DCR 9 (DC) at [10].

123 Rees v Police, above n 122, at [10].

124 International Covenant on Civil and Political Rights 999 UNTS 171, (opened for signature 19 December 1966, entered into force 23 March 1976), art 17; and see “Constitutional Issues & Human Rights” (19 August 2020) Ministry of Justice <www.justice.govt.nz>

(23)

Privacy is protected at common law through the torts of wrongful publication of private information and intrusion into seclusion.125 Both of these torts require a very high threshold to be met before they can be established. Namely, an intrusion of privacy must be highly offensive to the objective reasonable person with ordinary sensibilities.126 This high threshold shows a reluctance by the Courts to find a breach on the basis of mere emotional distress, especially in light of the need to protect freedom of expression.

C Emotional Harm in New Zealand Statute

The reluctance to criminalise on the basis of mere emotional distress is also reflected in New Zealand’s legislation. In the HDCA ‘harm’ is defined as ‘serious emotional distress’.127 Under s 22, an offence may only be committed by the posting of a digital communication if the communication was objectively harmful, harm was intended, and harm was in fact caused.128 In contrast, the Safe Areas Bill only requires a communication to be objectively emotionally distressing and emotional distress need not in fact be caused. This is a far lower standard.

The Harassment Act allows for a court to make a restraining order where mere ‘distress’

has been caused.129 However, the Act expressly requires that the degree of distress caused or threatened justifies the making of an order.130 Further, harassment must first be proved, distress must be objectively caused or threatened, and caused or threatened in fact.131 While the Harassment Act provides for a low “distress” standard, unlike the Safe Areas Bill, this is tightly constrained by further requirements.

D Conclusion

Generally the law is reluctant to criminalise for the cause of emotional distress, especially where the NZBORA is engaged. While the Bill must be considered in light of the increasing

125 Hosking v Runting [2005] 1 NZLR 1 (CA); C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672.

126 Hosking v Runting, above n 125 at [42]; Andrews v TVNZ [2009] 1 NZLR 220 (HC) at [1]; C v Holland, above n 125, at [3].

127 Harmful Digital Communications Act, s 4.

128 Harmful Digital Communications Act, s 22(1).

129 Harassment Act 1997, s 16(1).

130 Harassment Act, s 16(1)(b)(iii).

131 Harassment Act, s 16(1)(b)(i) and (ii).

(24)

recognition given to privacy, overall its provisions apportion far less protection to rights than comparable statutes. The Bill will, thus, be an outlier in the law for its lack of rights protections. This points against the proportionality of the Bill.

X Overseas Experience

A Overseas Standards

Across the United States, Canada and Australia where safe areas have been successfully implemented, the proportionality analysis adopted by Courts considering them has been similar in essence to the Oakes test applied in New Zealand.

The two United States Supreme Court decisions concerning safe areas, McCullen v Coakley and Hill v Colorado placed great emphasis on freedom of expression yet very little emphasis on manifestation of religion.132 Both of these rights are enshrined in the First Amendment and are burdened by the existing safe areas.133

In McCullen the Court found that a safe areas provision in Massachusetts, creating a 10 metre area around abortion facilities within which only protected persons could enter, violated the First Amendment.134 The Court accepted the respondents’ contended distinction between protesters and petitioners. While protesters seek to express their opposition to abortion, petitioners seek to inform women of the alternatives to abortion and offer support.135 Much pro-life activity outside of abortion facilities in New Zealand falls into the latter category, yet both will be captured by the Bill’s ‘communicating’ provision. The Massachusetts provision failed the ‘narrow tailoring’ test as the burden placed upon petitioners was found to be substantially broader than necessary to serve the purpose of the provision.136 In contrast, the Court in Hill upheld a safe area in Colorado which created two metre bubbles around persons within 30 metres of abortion facilities.137

132 McCullen v Coakley 573 US 464 (2014); Hill v Colorado 530 US 703 (2000).

133 United States Constitution, Art I.

134 McCullen v Coakley, above n 132, at 496-497.

135 McCullen v Coakley, above n 132, at 490.

136 McCullen v Coakley, above n 132, at 490-496.

137 Hill v Colorado, above n 132, at 734-735 and 740.

(25)

The constitutionality of 50 metre safe areas in British Columbia was considered in R v Lewis when a group of seven persons sang hymns and recited psalms for 20 minutes in a safe area.138 Later another individual displayed a sign saying, “Our Lady Guadeloupe, Patroness of the Unborn…Please help us stop abortion”.139 The British Columbia Provincial Court found the Act to be inconsistent with the Canadian Charter on the basis of a breach of freedom of expression, association and religion which could not be demonstrably justified due to a lack of proportionality.140 This decision was subsequently overturned by the British Columbia Supreme Court which considered the Act to fall within the range of the least intrusive legislative responses to achieve its important objective.141 Thus, the Act’s limitation of rights was demonstrably justified.

Australia’s state of Victoria has a similar rights analysis mechanism for Bills to New Zealand. On the second reading of a Bill the relevant minister or member must table a statement of the Bill’s consistency with the Charter of Human Rights and Responsibilities Act (Victoria Charter). Unlike the Attorney-General’s report on New Zealand’s Bill, the Minister of Health did give consideration to freedom of religion as protected by s 14 of the Victorian Charter.142 The Minister noted the strong connection between abortion views and religious beliefs and recognised that religious practices such as prayer could fall within the

‘communication’ provision.143 However, she considered the burden to be demonstrably justified as the Bill would only prohibit prayer about abortions that is ‘reasonably likely to cause distress or anxiety’.144

This reasoning raises concerns. The weight of authority demonstrates that prayer outside of abortion services is inherently considered to be ‘in relation to’ abortions. England’s the three PSPOs expressly include prayer within their definition of “protesting in relation to abortion

138 R v Lewis [1996] 4 WWR 27 (BCPC) at [4].

139 R v Lewis, above n 138, at [6]-[9].

140 R v Lewis, above n 138, at [53]-[54].

141 R v Lewis, above n 24 at [126] and [149].

142 Victorian Parliamentary Debates, Legislative Assembly, (22 October 2015) at 3974.

143 Victorian Parliamentary Debates, Legislative Assembly, (22 October 2015) at 3974.

144 Charter of Human Rights and Responsibilities Act 2006 (Vic), s 7; Victorian Parliamentary Debates, Legislative Assembly, (22 October 2015) at 3974.

(26)

services”.145 The distress or anxiety requirement is also unlikely to mitigate the range of conduct captured. In New Zealand throughout the select committee process submitters attested that the mere existence of people praying outside of abortion facilities can be emotionally distressing.146 Thus, the reasons provided by the Minister for the justification of the Victorian Bill in light of its limitation of freedom of religion are unconvincing.

Australia’s Minister for Health also concluded that freedom of expression was demonstrably justified under s 7 of the Victorian Charter.147 Factors that lead the Minister to come to this conclusion, which is contrary to that of New Zealand’s Attorney-General, include the severity of protests experienced by Australia, and the Victorian Charter’s express inclusion of a right to privacy.148 What is most notable about the Minister’s conclusions is their consistency. Both manifestation of religion and freedom of expression were recognised as being burdened by the proposed safe areas, and both burdens were considered demonstrably justified. Again this raises a question as to whether New Zealand’s Attorney-General gave adequate consideration to the right to manifestation of religion.

In Clubb v Edwards the High Court of Australia upheld the constitutionality of safe areas legislation in Victoria and Tasmania against allegations that they breached the implied freedom of political communication.149 In Victoria a pro-life petitioner had approached and offered a pregnancy-support pamphlet to a couple within a safe area.150 In Tasmania, an individual twice stood on a street corner in a safe area holding placards stating that every child has the right to life and depicting a foetus.151 The Court considered the Bill’s limitation of political communication to be demonstrably justified in light of the Bill’s purpose.152

145 Public Spaces Protection Order (Mattock Lane) 2018; Public Spaces Protection Order (Rosslyn Road) 2019;

and Manchester City Council (Wynnstay Grove) Public Spaces Protection Order 2020.

146 PSA “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence subcommittee A (28 May 2021)”; and Otago University Student Association “Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill 2020 – hearing of evidence (5 May 2021)”.

147 Victorian Parliamentary Debates, Legislative Assembly, (22 October 2015) at 3974.

148 Victorian Parliamentary Debates, Legislative Assembly, (22 October 2015) at 3973-3974; and see Charter of Human Rights and Responsibilities Act (Vic), s 13.

149 Clubb v Edwards, above n 64.

150 Clubb v Edwards, above n 64, at [11].

151 Clubb v Edwards, above n 64, at [106].

152 Clubb v Edwards, above n 64.

References

Related documents

3.10 Trends of complaints to the Ombudsman about Centrelink suggest other problems such as:  confusing and misleading computer generated correspondence  problems with accessing