Supreme Court declines to compel Melbourne City council to remove anti-abortionists from fertility clinic

Fertility Control Clinic v Melbourne City Council [2015] VSC 424 (26 August 2015)

On 26 August 2015, Justice McDonald of the Victorian Supreme Court handed down judgement in a case concerning the local government’s duties to remedy harmful activities of anti-abortionists outside an East Melbourne fertility clinic.

His Honour found that although the Melbourne City council (the council) has a duty to remedy nuisances under the Public Health and Wellbeing Act 2008 (Vic) (the Act) and that the anti-abortionists’ activities may constitute a nuisance, nonetheless in this case there had been no actual or constructive failure by the council to perform its duties under the Act.

Facts

The Fertility Control clinic (the clinic) provides a range of family planning and reproductive health services, including pregnancy termination. The clinic complained that for over 20 years, individuals belonging to a group known as the Helpers of God’s Precious Infants (HoGPI) have, among other things, harassed women entering or leaving the clinic, attempted to block their entry, made offensive, frightening and misleading statements to patients and staff, and caused significant injury to the personal comfort of staff members, patients and others.

The clinic complained to its local government, the council, claiming that the actions of HoGPI constituted a nuisance within the meaning of the Act. Under the Act, the council was required by ss 60 and 62 of the Act to take steps to remedy the alleged nuisance. The council responded to the complaint by stating that the only activity that arguably constituted a nuisance was the blocking of the entry and that the matter was better settled “privately” through a referral to the Victoria Police.

The clinic issued proceedings in the Supreme Court of Victoria, seeking orders:

• to compel the council to exercise the powers conferred upon it by the to remedy the nuisance; and
• a declaration that the advice from council that the matter was better settled privately through a referral to Victoria Police does not constitute “settling the matter privately” within the meaning of s 62(3)(b).

Decision

His Honour found that there was no basis on which to conclude that the council misdirected itself when addressing the question of whether the activities of HoGPI constituted a nuisance. He therefore declined to issue mandamus to compel the council to remedy the nuisance.

The wrong answer to the right question is not jurisdictional error

A writ of mandamus is only available where a jurisdictional error is found.

The clinic argued that the council had fallen into jurisdictional error by misconstruing the meaning of nuisance under the Act as being limited to private nuisances. In its response to the clinic’s complaint, the council concluded that the blocking of entry to the clinic was the only conduct that could constitute a nuisance. The clinic argued that the council’s response showed that the council had wrongly assumed that nuisance under the Act was limited to actionable interference with land, and therefore that council had not considered its duties to remedies the public nuisance caused by HoGPI such as annoyance, inconvenience or hurt to the public.

The Court agreed that “nuisance” under the Act was not confined to actionable interferences with land and that it includes both public and private nuisance. However this did not mean that the decision-maker had fallen into jurisdictional error.

The Court found that the decision maker addressed the right question, namely whether the HoGPI’s conduct fell within the definition of nuisance in the Act. The court also held that blocking entry to the clinic could potentially constitute both private and public nuisance. Therefore the council’s response to the complaint did not prove that the council construed nuisance in a way that is confined to private nuisance. Any errors made by the decision maker were errors made “within jurisdiction” and therefore of the kind that the decision maker was allowed to make.

However, the court found that the decision maker erred in advising that the clinic to settle the matter privately by referring HoGPI’s behaviour to Victoria Police. It made a declaration that a referral to the police was not ‘settling the matter privately’ within the definition of the Act at s62(3)(b). However, the court held that a decision-maker will not fall into jurisdictional error if they ask a question required by an Act, merely because the answer they give to the question is erroneous.

Rights arguments

Prior to the hearing the council raised arguments based on the implied constitutional freedom of political communication and rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Victorian Equal Opportunity and Human Rights Commission intervened, arguing that it can be lawful to limit rights to free speech and assembly in order to protect women’s rights to security and non-discrimination when accessing health services. The council abandoned its rights-based arguments at trial. 

Commentary

Shortly after the case was decided, the Victorian Government announced plans to create safe access zones around fertility control clinics. These zones will allow women to access terminations without being subject to harassment and intimidation. Similar zones were introduced in Tasmania in 2013, and also exist in the United States and Canada. The ACT government is also planning to introduce similar zones around premises offering terminations of pregnancy.

The full judgement can be found here: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2015/424.html?stem=0&synonyms=0&query=Melbourne%20and%20City%20and%20council%20and%20fertility%20and%20clinic

Beatrice Paull is a legal researcher at the Human Rights Law Centre and Emily Howie is the director of advocacy and research at the Human Rights Law Centre.