Introduction

Most Australian states and territories have introduced exclusion zones around clinics which terminate pregnancies (Access to Terminations Act 2013 (Tas) s. 9(2); Wellbeing Act 2008 (Vic) s. 185D; Pregnancy Law Reform Act 2017 (NT); Safe Access Act 2018 (NSW); Termination of Pregnancy Act 2018 (Qld)). The remaining states are considering doing so (The Greens, 2017; Government of Western Australia Department of Health, 2019). These laws make a range of activities illegal if they take place near a clinic. Many of the proscribed activities such as harassment, intimidation, besetting, threatening, hindering, obstructing or filming anyone attempting to access such places would already have been unlawful in most places under other general laws (New South Wales (NSW) 2018a; Queensland Law Reform Commission 2017, para 248). No prosecutions for breach of exclusion zone laws to date have involved these behaviours, and they are not the subject of this chapter. All prosecutions to date have instead been for peaceful communications about abortion in the excluded zone (Police v. Preston 2016; Edwards v. Clubb 2017; Bluett v. Popplewell 2018; Lynch 2018; Pierre 2019). It is this aspect of these laws and specifically the criminalization of prayer and sidewalk counselling which is the subject of this chapter. Sidewalk counsellors for the purposes of this chapter are people who seek to provide information near abortion clinics about alternatives to the termination of pregnancy and about practical assistance which is available to those who choose to continue their pregnancies to term (McCullen v. Coakley 2014).

While this chapter does not address any potential bases on which such laws might be challenged under Australian or international law, it is necessary background to note that the Victorian and Tasmanian exclusion zone laws have been found to be valid by Australia's highest court, the High Court of Australia (Clubb v. Edwards; Preston v. Avery 2019). Although s. 116 of the Australian Constitution includes a prohibition on the Commonwealth legislating to prevent ‘the free exercise of any religion’, it has been read narrowly by the High Court such that no religious believer has succeeded in such a case. The provision only applies to the Commonwealth and not to state laws.