On the Case: Issue 22

Religious freedom, freedom of political communication and exclusion zones around abortion clinics

In this edition of On The Case, Professor Michael Quinlan, Dean of The University of Notre Dame Australia, School of Law, Sydney discusses the only Australian case so far to consider the legality of exclusion zones around abortion clinics: Police v Preston¹. Whilst this is a Tasmanian case, similar exclusion zones have been put in place recently in the Australian Capital Territory, the Northern Territory and in Victoria. They have also been considered for introduction in Queensland² and in New South Wales³. Whilst those proposing these laws have argued for their introduction on the basis that they are said to ensure that women can access lawful terminations, in practice they have resulted in arrests, criminal convictions and fines for pensioners for praying or standing quietly too close to a clinic where terminations are conducted. In this case, the legislation was used to prosecute three elderly Christians for holding a placard with a picture of a foetus and holding some leaflets too close to an abortion clinic⁴.

In brief

Mr John Graham Preston is a 59 year old pensioner. He lives in Queensland but travelled to Hobart in order to protest in relation to the termination of pregnancy taking place in that city. He stood alone on the footpath outside the Specialist Gynaecology Centre in Hobart on 5 and 8 September 2014. On 14 April 2015 he was joined by two other pensioners, Mr Raymond Stallard (61) and his wife, Mrs Penny Stallard (57). Mrs Stallard is unusually short as a result of a congenital disorder.

Section 9(2) of the Reproductive Health (Access to Terminations) Act 2013 (Tas) (the Act) prohibits "prohibited behaviour" in "an area within a radius of 150 metres from premises at which terminations are" provided in Tasmania (the "exclusion zone."). Under the Act "prohibited behaviour" relevantly includes:

a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided…

On 8 September 2014 Mr Preston was holding a picture of a foetus and some leaflets in the exclusion zone⁵. Ms Sarah Heald intended to visit the premises and although Mr Preston did not approach her she said that "she felt quite intimidated" and uncomfortable" seeing Mr Preston standing there alone⁶. Nevertheless Mr Heald approached Mr Preston, told him that he should not be standing there and that she thought his placard "was misleading representation of the foetal age."⁷ Mr Preston said that the picture "was obviously not to scale."⁸ On 14 April 2015, Mr Preston and the Stallards were holding right to life signs with an extract from the UN Convention on the rights of the child within the exclusion zone. They were arrested when they refused to obey a direction from Constable Oakes to move to another area⁹. Mr Preston was charged under s9(2) of the Act for all three occasions and he and the Stallards were charged under that provision and under s15B(2) of the Police Offences Act 1935 (Tas) for the 14 April 2015 incident where they were also alleged to have failed "to comply with a direction of a police officer." The case was heard by Magistrate CJ Rheinberger in the Criminal Division of the Magistrates Court of Tasmania. The Magistrate found that all the charges proven.

Failure "to comply with a direction of a police officer."

The Magistrate first dealt with the charge under s15B(2) of the Police Offences Act 1935 (Tas) for the 14 April 2015 for failure "to comply with a direction of a police officer." Constable Oakes had clearly given a direction. The issue was that if Preston and the Stallards had moved to the location they were asked to move to they could have still been within the 150m exclusion zone¹⁰. They argued that people driving along the road near where they were told to move to could be driving to the clinic and see or hear their protests. They argued that the police had no power to give such a direction because Mr Preston and the Stallards could have been engaging in illegal activities if they continued to protest in accordance with that direction. Following the decision in Lusted v Corneloup¹¹, the Court accepted that if the police had no power to give the direction this offence could not be made out. Constable Oakes gave evidence that in giving the direction to Preston and the Stallards he was not thinking of the 150m exclusion zone but he was seeking "to prevent the protest being within hearing or sight of people accessing or attempting to access the premises."¹² The Magistrate found this offence proven as a result of her finding that s9(2) of the Act does not prohibit all protests within 150m of an abortion clinic but only protests which are within that area which can be seen or heard by people who are actually accessing or attempting to access the clinic¹³. This could be quite a small area and much less than 150m¹⁴. As she said:

In my view the person should not be regarded as accessing or attempting to access the premises until they are doing just that, going into the premises or attempting to enter the premises and then consideration is given to at which point if any whilst doing that is the person can see or hear the protest.¹⁵

This is a very important finding in the case. This finding meant that, if Preston and the Stallards had followed Constable Oakes' direction, they would have moved to an area where there protest could not be, seen or heard by people actually accessing or attempting to access the abortion clinic (even though it was partly within the 150m exclusion zone) the Magistrate found that the constable's direction was lawful. This is because it would not have been a direction which may have resulted in continuing illegal activity (protesting contrary to the Act) by Mr Preston and the Stallards.

Engage in prohibited behaviour within an access zone: the horizontal plane defence

Preston and the Stallards admitted that they were protesting but, relying on s28 of the Acts Interpretation Act 1931 (Tas) argued that, as the premises where terminations were carried out was on the first floor and they were protesting at ground level they were not in a 150m radius of the premises¹⁶. Section 28 of the Acts Interpretation Act 1931 (Tas) provides that:

In measurement of any distance for the purposes of any Act, that distance, unless the contrary is expressly provided, shall be measured in a straight line on a horizontal plane.

The Magistrate rejected this argument finding that "premises" in s9(2) of the Act means the building where the abortion clinic is situated rather than the premises where terminations" take place so that distance is measured from the ground floor rather than from the actual floor of the clinic¹⁷. In reaching this conclusion the Magistrate looked at earlier cases on the word "premises" and at the purpose of the legislation as revealed by the second reading speech.

The illegal abortions defence

Mr Preston and the Stallards argued that the Police had not proved that the premises were relevantly licenced to carry out lawful terminations¹⁸. The Magistrate rejected this argument¹⁹. The finding that "it is sufficient to prove the charge to establish that the premises are premises at which terminations are provided"²⁰ is significant. It means that the Tasmanian legislation and potentially exclusion zones legislation in other states and territories prohibit protests and other prohibited behaviors not only in proximity to licensed clinics where lawful terminations occur but also in the vicinity of unlicensed clinics where unlawful abortions occur.

Implied freedom of political communication

Mr Preston and the Stallards argued that s9(2) of the Act was contrary to the freedom of political communication which the High Court found to be implied in the Australian Constitution in Lange v Australian Broadcasting Corporation²¹ and modified by Coleman v Power²². This is the same argument which has been raised in the challenge brought by Bob Brown to the Tasmanian exclusion zones which aim to prevent environmentalists from protesting heard by the High Court in May 2017²³. In Police v Preston the Magistrate applied the proportionality test as explained by the High Court in McCloy v New South Wales²⁴ which involved first considering if the law burdened freedom of political communication²⁵. The Magistrate found this was the case here²⁶. The next question was whether the purposes of the legislation was legitimate and whether the means to achieve those purposes were compatible with "the functioning of the system of representation government."²⁷ Mr Preston and the Stallards argued that s9(2) would apply to every clinic across Tasmania but no party led evidence about how many clinics there were in Tasmania²⁸. The Magistrate found that the purpose of the legislation was "to protect persons accessing or attempting to access premises at which terminations are provided from being confronted with a protest in relation to terminations" and referred to the second reading speech in support of the view that such protests in Victoria had caused "considerable distress, shame and anxiety."²⁹ She concluded that "the primary purpose of s9 of the Act is to provide clear access to the premises without being subjected to conduct which is designed to dissuade them from following through with a legal decision."³⁰ The Magistrate found that the legislation imposed a slight restriction on that freedom of political communciation and that this was not unconstitutional³¹. As a result she found that the legislation "could be compatible with the constitutionally prescribed system of government."³² Although not strictly relevant to the case itself, the Magistrate indicated her view that silently praying would not be protesting³³.

Religious freedom

Section 46(1) of the Tasmanian Constitution³⁴ provides that:

(1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

Mr Preston and the Stallards gave evidence of the religious motivation for their actions³⁵ as follows:

Mr Preston and the Stallards gave evidence on the hearing as to their religious beliefs. Mr Preston said that he lives in Brisbane that he is a Christian and that he and his family attends a Baptist church in South Brisbane. He has been a Christian since he was 14 and he believes that human life has been created in the image of God uniquely and that human life is of absolute importance as referred to in the Scriptures. That God knows us even when we are growing in our mother's womb and in particular he believes in the incarnation of Jesus as God coming into the world born in his mother's womb and that that validates human life at every stage. Mr Preston explained that t the Bible teaches people to care for one another and in particular to help those who are most vulnerable or defenceless. He consider that a child in the womb would be probably the most vulnerable category of human beings and that they are completely defenceless. He believes that it is right and necessary that people come to the aid of those who are vulnerable and defenceless which includes unborn children³⁶.

Those beliefs motivated his actions on 5 and 8 September 2014 and on 14 April 2015. Mr Preston said that he made the placard, P3, that he had bought the photograph of an eight week pre-born foetus and attached it the cardboard. On the placard he included some writing from the UN Convention on the rights of the child and Mr Preston gave evidence that he believes the UN Convention on the rights of the child support his Christian position on the value of human life. Essentially the proposition is that every child has the right to life³⁷.

Mrs Stallard believes that because every life is sacred that each life should therefore be preserved and that people needed to be protected before they were born as they do not have a voice and she wanted to be one of the voices for the people who do not have a voice. Mrs Stallard said that religion plays a place every single day of her life and it is in her waking, her sleeping, her working, her attitudes and she regards every part of her life as being governed by her Christian beliefs. During her evidence Mrs Stallard was asked what role religion played in her taking her part in the protest on 14 April 2015 and she said that the word of God was directing her to speak up, to protect the poor, to protect those who have no vice for themselves and to stand in affray for them. Further Mrs Stallard said that the word of God is also a reference to the Bible and that God speaks to her through his word each day as she reads it in the Bible³⁸.

Essentially as I understood Mrs Stallard's evidence she regards herself as a practicing Christian, and as part of her Christian beliefs she believes that every life is screed, that an unborn life does not have a voice, and that as part of her Christian beliefs she needs to stand up for people without a voice which led her to protest with Mr Preston. Mrs Stallard also said that through her actions on 14 April 2015 she wanted to convey to all Tasmanians which includes politicians that they need to think about what sort of families people want to have and that the State should be full of people who live and work and then it would be a better State.³⁹

Whilst the Magistrate found that the evidence of Mr Preston and the Stallards did not "necessarily support a claim that the decision to engage in protest activity was based on any canon of their religion"⁴⁰ she was satisfied that it was open on the evidence "to proceed on the basis that Mr Preston and the Stallards were, partly at least, motivated in their protest activity by their religious beliefs."⁴¹ She found however that s9(2) was reasonably necessary to protect public order and that it was not unconstitutional as follows:⁴²

the freedom of conscience and the free profession and practice of religion does not extend to any conduct that the person believes they must engage in as a result of their religious beliefs. In my view [s 46(1) of the Tasmanian Constitution] is guaranteeing that a person has a right to practice their religion and conduct themselves in a manner that is in pursuit of those religious beliefs as long as the conduct does not infringe public order and morality⁴³.

and

In my view in expressing your religious belief that it should be done in a manner that respects the rights and reputation of other people. Contained within that right to express that religious belief it may be subject to a lawful restriction which may be reasonable necessary to protect public order. Further the restriction imposed on protest activity by s9 of the Act is reasonably necessary because the expression of a religious belief that amounts to a protest activity within 150 metres of premises where the protest activity can be seen or heard by persons attempting to access the premises protects public order, In my view the prohibition on the protest activity affected by s9 o the Act correctly curtails the guarantee of religious freedom because it falls within the public order exception⁴⁴.

Conclusion

The charges were found proven against Mr Preston and the Stallards. Mr Preston has appealed and his appeal will be heard by the Full Court of the Tasmanian Supreme Court. The hearing has been delayed pending the High Court's determination of the Bob Brown case referred to above. The Stallards subsequently had their fine commuted and no conviction recorded.

Significance

As then Justice Kirby observed in 1995 "termination of pregnancy is a subject which is prone to engender very strong feelings.⁴⁵" It is a practice about which there are divergent views in society and this position is not likely to change. Exclusion zone legislation in Tasmania, the ACT and Victoria has not resulted in the cessation of prayer and "protests" which continue to occur in the exclusion zones. They afford protesters with an opportunity to demonstrate their commitment and to get this issue of abortion into the papers and on the news.

As Jacqueline Maley recently observed, the day a woman enters an abortion clinic "is probably one of the worst days of her life."⁴⁶ Most "protersters" stand near abortion clinics to provide women with real choice. They provide information, practical support, funds, clothing, short term housing, protection from coercion from overbearing men pressuring their partners to abort and they pray. They are there because they care about women and they also care about human foeteses, embryos and babies. They are there because some women do change their mind and go on to enjoy one of the happiest days of their lives: the birth of a baby. This fact was a significant factor in the United States Supreme Court's decision against the Massachusetts' exclusion zone in McCullen⁴⁷.

The motivations of the "protestors" prosecuted in this case in Hobart are illustrative of the problem that such legislation creates – it criminalises the behaviour of otherwise law abiding citizens for seeking to peacefully live according to their principles and their religious faith with no animus and posing no threat of violence or intimidation to anyone. It is true that people can pray anywhere. But when events such as the Lindt siege, the London Bridge terrorist attacks, the Manchester bombings and the London fire occur people are drawn to visit and to pray at those places. Similarly they are drawn to reflect and to pray at the holy places in the Holy Land, Gallipoli, the Tomb of the Unknown Soldier, the Cenotaph, to cemeteries and to churches. For human beings proximity to places where things happen, proximity to the remains of the deceased and proximity to God are all important places for reflection and for prayer. The views of people who, for reasons of conscience or religion, seek to peacefully pray or peacefully protest ought not lead to them being treated as criminals and is unlikely to lead to them changing their convictions. This is certainly so for those motivated by religious beliefs. As Laycock and Berg have observed:

[C]ommitted religious believers argue that some aspects of human identity are so fundamental that they should be left to each individual, free of all nonessential regulation, even when manifested in conduct. For Religious believers, the conduct at issue is to live and act consistently with the demands of the Being that they believe made us all and holds the whole world together⁴⁸. No religious believer can change his understanding of divine command by any act of will…Religious beliefs can change over time…But these things do not change because government says they must, or because the individual decides they should … [T]he religious believer cannot change God's mind⁴⁹.

We will need to wait to see what the High Court has to say about exclusion zones and what the Tasmanian Full Court has to say in the appeal from this case before we know the extent to which exclusion zone legislation will continue to be introduced and enforced across Australia.

¹ Senior Constable Scott Wilkie v John Graham Preston [2016] TASMC (27 July 2016) (Police v Preston)
²Health (Abortion Law Reform) Amendment Bill 2016 (Qld) s24
³Summary Offences Amendment (Safe Access to Reproductive Health Clinics) Bill 2017 (NSW)
⁴Police v Preston and Stallard [2016] TASMC
⁵Police v Preston [5]
⁶ ibid
⁷ ibid
⁸ ibid
⁹ Ibid [7]-[8]
¹⁰ Ibid [18]-[20]
¹¹ [2011] TASMC 25
¹²Police v Preston [19]
¹³ Ibid [20]
¹⁴ Ibid [20]
¹⁵ Ibid [27]
¹⁶ Ibid [23]
¹⁷ Ibid [25]
¹⁸ Ibid [26]
¹⁹ Ibid [26]
²⁰ Ibid [26]
²¹ (1997) 189 CLR 520
²² (2004) 220 CLR 1
²³Robert James Brown v The State of Tasmania [2017] HCA 3
²⁴ [2015] HCA 34
²⁵Police v Preston [32]
²⁶ Ibid [33]
²⁷ Ibid [32]
²⁸ Ibid [35]
²⁹ Ibid [37]
³⁰ Ibid [38]
³¹ Ibid [54]
³² Ibid [41]
³³ Ibid [42]
³⁴Constitution Act, 1934 (Tas)
³⁵ Ibid [58]-[70]
³⁶ ibid [58] 
³⁷ ibid [59]
³⁸ ibid [64]
³⁹ ibid [65]
⁴⁰ Ibid [75]
⁴¹ Ibid [77]
⁴² Ibid [86]
⁴³ Ibid [74]
⁴⁴ ibid [86]
⁴⁵CES v Superclinics Australia Pty Ltd (1995) 38 NSWLR 47, 70
⁴⁶ Jacqueline Maley They call themselves helpers of God's precious infants, but they are not here to help" Sydney Morning Herald (10-11 June 2017 ⁴⁷ See e.g. McCullen v Coakley, Attorney General of Massachusetts 573 US (2014) (McCullen). For a summary Michael Quinlan, "The United States' Supreme Court considers the legality of exclusion zones around abortion clinics" On the Case: Issue 11
⁴⁸ Douglas Laycock and Thomas Berg, Same-Sex Marriage and Religious Liberty 99 VIR. L.REV 1.[2013]3
⁴⁹ Ibid 4.