Conviction for causing distress to a person attending an abortion clinic upheld by Supreme Court of Victoria

Clubb v Edwards [2020] VSC 49 (19 February 2020)

Summary

The Supreme Court of Victoria has dismissed an appeal against a conviction for communicating, in a safe access zone, about abortions in a manner ‘reasonably likely to cause distress or anxiety’.

Background

Safe access zone laws came into operation in Victoria in 2016. The laws prohibit a range of behaviour within 150 metres of an abortion service and are designed to stop the harassment, intimidation, obstruction and filming of patients and staff accessing abortion services.

Section 185D of the Public Health and Wellbeing Act 2008 (Act) makes it an offence to engage in ‘prohibited behaviour’ in a safe access zone[i], while section 185B(1)(b) prohibits a person from “communicating by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided and is reasonably likely to cause distress or anxiety” (communication prohibition).

The Victorian Supreme Court’s decision came nearly one year after the High Court of Australia upheld the communication prohibition as a reasonable limitation on the constitutionally implied freedom of political communication (see case note here).

The Facts

Ms Clubb was part of the 'The Helpers of God's Precious Infants’, who notified police of an intent to breach safe access zone laws. Subsequently, Ms Clubb approached a couple as they entered the East Melbourne Fertility Control Clinic and attempted to speak to them and hand over a pamphlet. The couple declined and moved on.

Ms Clubb was holding two pamphlets titled “Pregnant? Worried?” One contained photos of foetuses and described purported “complications” of abortion. The second pamphlet did not mention abortion, but said “If you’re facing an unplanned pregnancy and don’t know what to do, call us at Pregnancy Counselling Australia.”

Ms Clubb was found guilty of breaching the communication prohibition in Victoria’s safe access zone laws by a Magistrate. She appealed the decision on the grounds that there was no evidence that she communicated in relation to abortion; that there was a failure to make a finding that an actual communication had occurred; and that the test of whether the communication was “reasonably likely to cause distress or anxiety” was wrongly applied.

The Decision

Whether there was evidence of a communication in relation to abortion

His Honour was satisfied that it was open for the Magistrate to find that there had been a communication in relation to abortion.

Kennedy J held that the phrase “communication in relation to abortion” encompasses all types of communications (including words or conduct). As had been observed by the High Court, the communication prohibition recognises that non-violent protests can “shame or frighten a pregnant woman” from entering a clinic, and that “silent but reproachful observance of persons accessing a clinic” can deter access to healthcare.[ii]

In this case, both pamphlets were communications “in relation to abortion.” The first pamphlet was “clearly a document” in relation to abortion because of its images and express discussion of the topic. Even though the second pamphlet did not use the word abortion, it was also a communication in relation to abortion because it offered counselling to determine “what to do” in the context of an unplanned pregnancy, raising the question of whether the pregnancy was to be maintained or not.

His Honour then found that Ms Clubb had “communicated” with persons by attempting to speak to the couple and hand over a pamphlet. This communication, by words and conduct, was found to “relate to abortion” on the basis:

• that Ms Clubb was at the scene representing an anti-abortion group;

• that Ms Clubb had been asked by police not to breach the safe access zone laws;

• that the communication occurred inside a safe access zone;

• that there was a communication by words, as well as an attempt to hand over abortion-related material, which was declined by the couple; and

• of evidence of Ms Clubb’s intention to breach the law (her possession of the pamphlets and statement to police that she did not intend to change her behaviour and was entitled to offer ‘help’ to women).

His Honour accepted that the words Ms Clubb said could not be heard by police, and that it was unclear which part of the pamphlets were sighted by the couple. However, the law does not require proof of the precise contents of communications; only that they are “in relation to [the topic of] abortions.”[iii]

Whether there was a failure to make a finding that there was an actual communication?

Ms Clubb also submitted that the Magistrate made no finding that there was an actual communication in relation to abortion (as opposed to an intention to engage with the couple).

Kennedy J found that a “fair construction” of the finding showed that Her Honour used the words “defiantly” and “deliberately” to explain both Ms Clubb’s “actions” and the manner in which she had “communicated”.[iv] The Magistrate had made findings of both intention and that an act of communication had occurred.

Whether the communication was “reasonably likely to cause distress or anxiety”

The Magistrate found that the engagement between Ms Clubb and the couple was reasonably likely to cause the couple ‘at the least, discomfort’.

Kennedy J confirmed the finding of the plurality in the High Court that causing mere “discomfort” is not sufficient to constitute an offence under section 185D. The test involves an objective consideration of whether a communication under the section is “reasonably likely to cause distress or anxiety.”[v]

However, his Honour emphasised the importance of the finding in the High Court that persons in circumstances of the couple would already likely “be feeling distressed or highly vulnerable”.[vi] This, combined with the fact that Ms Clubb approached the couple as a stranger raising an issue of a highly personal nature as they approached an abortion clinic, created a “substantial chance”[vii] of causing distress or anxiety to the couple, or a “significant emotional reaction or psychological response.”[viii] This was more than discomfort.

Commentary

This decision highlights the important role that Victoria’s safe access zone laws play in safeguarding the privacy, safety, wellbeing and dignity of women accessing abortion services.

The decision indicates a need to consider the overall nature, intent and likely impact of communications by protestors on patients inside safe access zones, not just their strict words or conduct, when determining whether or not they have breached safe access zone law prohibitions.

It also indicates that the phrase “reasonably likely to cause distress or anxiety” needs to take into account the vulnerability of patients and the highly personal nature of abortion.

A copy of the judgment is available here.

[i]  A “safe access zone” is defined as “an area within a radius of 150 metres from premises at which abortions are provided.” See Public Health and Wellbeing Act 2008 (Vic) s185B(1).

[ii] Clubb v Edwards & Anor; Preston v Avery & Anor [2019] HCA 11 [89]; Clubb v Edwards [2020] VSC 49 [51]. 

[iii] Clubb v Edwards [2020] VSC 49 [75].

[iv] Ibid [90].

[v] Clubb v Edwards & Anor; Preston v Avery & Anor [2019] HCA 11 [95], [246]; Clubb v Edwards [2020] VSC 49 [104]. 

[vi] Clubb v Edwards & Anor; Preston v Avery & Anor [2019] HCA 11 [48], [59], [259], [283].

[vii] Ibid [58]; Clubb v Edwards [2020] VSC 49 [109].

[viii] Clubb v Edwards [2020] VSC 49 [109].