Australia: Western Australia Parliament Passes Law Establishing Safe Access Zones for Abortion Clinics

On August 12, 2021, the Parliament of Western Australia passed the Public Health Amendment (Safe Access Zones) Bill 2021 (WA) to establish “safe access zones” in and around premises where abortions are performed. The bill prohibits certain conduct in such areas.

A press release by the Western Australia government upon the passage of the bill explained that it “will provide for a safe access zone which will include the protected premises and any area within 150 metres of the boundary. It will apply 24 hours a day, seven days a week”:

Prohibited behaviours within the zones includes:

  • harassing, intimidating and threatening a person accessing premises at which abortions are provided;
  • communicating by any means in relation to abortion in a manner that can be seen or heard by a person accessing the premises and is reasonably likely to cause distress or anxiety;
  • impeding a footpath, road or vehicle without reasonable excuse, in relation to abortion; and
  • recording by any means, without reasonable excuse, another person accessing premises at which abortions are provided, without that other person’s consent.

The new law will also prohibit a person from publishing and distributing recordings of another person accessing premises at which abortions are provided, if the recording could identify that person, without their consent or reasonable excuse.

Engaging in a prohibited behaviour in a safe access zone could attract a maximum penalty of [AU]$12,000 [about US$8,800] and 12 months’ imprisonment.

Health Minister Roger Cook stated that “[f]or far too long women had to run the gauntlet of people outside abortion clinics. It is already a difficult and intensely personal decision without having to encounter a protest before undergoing a legal medical procedure.”

Safe Access Zones in Other Australian Jurisdictions

The passage of the bill in Western Australia means that all Australian jurisdictions now prohibit protesting and related conduct in areas surrounding abortion clinics. Laws providing for specific exclusion zones around abortion clinics were passed in Tasmania in 2013, the Australian Capital Territory and Victoria in 2015, the Northern Territory in 2017, New South Wales and Queensland in 2018, and South Australia in 2020. Marie Stopes Australia, a national family planning organization, published a report in 2020 that provides information on the provisions in six of the jurisdictions.

In April 2019, the High Court of Australia, the highest court in Australia’s court hierarchy, ruled that the Tasmanian and Victorian laws are constitutionally valid. (Clubb v Edwards & Anor; Preston v Avery & Anor [2019] HCA 11.) According to a summary issued by the court,

[i]n relation to the Victorian Act, a majority of the Court considered that the burden imposed by the communication prohibition was justified by reference to its legitimate purposes, including the protection of the safety, wellbeing, privacy and dignity of persons accessing lawful medical services. The other members of the Court considered that the challenge to the communication prohibition should be dismissed without determining the validity of the prohibition because it was not established that [the appellant’s] conduct involved political communication. In relation to the Tasmanian Act, the Court unanimously held that the burden imposed by the protest prohibition was justified by reference to its legitimate purposes, which include the protection of the safety, wellbeing, privacy and dignity of persons accessing premises at which abortions are provided and ensuring unimpeded access to lawful medical services.

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