There’s a controversial ‘exemption’ to NSW’s new abortion clinic safe access zones

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While an exemption in the safe access zone laws has “potential for abuse”, it could be the thing that protects the laws from being struck down in the High Court.

This month, ‘safe access zone’ laws were introduced in NSW making it illegal to communicate, film or intimidate a woman within 150m of an abortion clinic.

However, there’s an ‘exemption’. During the course of government elections, referendums and plebiscites, a person can get the authority of a candidate to conduct surveys and distribute leaflets within the safe access zone. This presents an opportunity for anti-abortion activists to align themselves with a candidate to take advantage of the exemption.

Angus Macinnis, a lawyer with Stevens Vuaran Lawyers, also says some people aren’t concerned about the consequences of their bad behaviour. “If you’re a candidate who is genuinely interested in being elected, then the electoral rules [that govern what’s appropriate campaigning material] operate as a check and balance because you don’t want to risk disqualification. But if you’re not a genuine candidate, then disqualification isn’t such a problem for you.”

Similar safe access zones exist in Tasmania, the ACT, the Northern Territory and Victoria. The Victorian and Tasmanian laws are currently being challenged in the High Court on the basis they infringe the constitution’s implied freedom of political communication. There is no equivalent exemption in the Victorian and Tasmanian legislation.

There is no equivalent exemption in the Victorian and Tasmanian legislation.

To that end, Macinnis says the NSW exemption does reduce the risk of the NSW legislation being struck down by the High Court. He thinks “it’s a good way of balancing the beneficial effect of the legislation with the need to ensure the freedom of political communication.”

The Safe Access Zones Bill was co-sponsored by Labor’s Penny Sharpe MLC and the Nationals’ Trevor Khan MLC. Penny Sharpe says the exemption was deliberately designed to protect the right to protest and campaign on the issue of abortion.

“The effect is that those seeking political office or those campaigning in a referendum or plebiscite can make their views known to voters within the exclusion zone. The example is this: in Surry Hills, within the zone there are lots of units and terrace houses. Without the exemption, it could not be possible to letterbox these houses, even though it is a legitimate thing to do during an election.”

“Even though the exemption has potential for abuse,” says Dr Tania Penovic, Senior Lecturer of Law at Monash, “we should focus on the benefits of NSW’s safe access zones. Already, the zones are deterring anti-abortion protesters from standing outside clinics. And, it is important that the privacy, dignity and wellbeing of women is a priority.”