Ms Patten (Northern Metropolitan) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities, I make this statement of compatibility with respect to the Public Health and Wellbeing Amendment (Safe Access) Bill 2015.
In my opinion, the Public Health and Wellbeing Amendment (Safe Access) Bill 2015, as introduced to the Legislative Council, is compatible with the human rights protected by the charter. I base my opinion on the reasons outlined in this statement.
Overview of bill
The bill will insert a new section into the Public Health and Wellbeing Act 2008 that creates 150-metre zones of safe access around premises that provide reproductive health services. It also provides for an offence of intentionally distributing a recording of a person accessing, or attempting to access, premises at which reproductive health services are provided.
The bill is in line with the objectives of the Public Health and Wellbeing Act 2008, which are focused on the state’s significant role in promoting and protecting public health and wellbeing, and the role of the state in assisting in responses to public health concerns of national interest. It has positive objectives to promote conditions of health, protect and prevent against illness, and reduce inequalities. These objectives line up effectively with the intention of this bill, which seeks to protect access to vital and lawful health services through a targeted amendment.
The act goes on to place an emphasis on the principles of evidence-based decision-making and primacy of prevention, which suits well measures that protect the mental and physical wellbeing of citizens using lawful reproductive health services
Human rights issues
Freedom of expression
Section 15(2) provides that every person has the right to freedom of expression. The right covers expression regardless of whether the content or ideas are regarded as offensive or shocking, and is not limited by the manner or form of the expression.
Section 185B(1) of the bill creates an offence of engaging in prohibited behaviour within a safe access zone. Prohibited behaviour is defined in the bill to include a range of activities, from besetting, harassing and intimidating, to communicating in relation to reproductive health services. Section 185B(1) may limit the right to expression to the extent that, within a safe access zone, certain behaviours associated with expression (including oral communications and written signs) are prohibited.
Section 15(3) of the charter act provides for an internal limitation of this right in limited, proscribed circumstances. In my view this is one such circumstance, and this bill places a lawful restriction that is reasonably necessary to protect the rights of other persons per section 15(3)(1).
The provision of a safe access area is a critical component of this bill, as the activities reported outside of these clinics (including threats, harassment, verbal abuse, and singing loudly so as to be overheard in consultation rooms while women are receiving medical advice and treatment) heavily infringe of both the rights to privacy (section 13(a) of the charter act) of clients and staff, and the protection of public order and public health (s15(3)(b)).
I believe that this restriction is also in line with section 15(3)(2) of the charter act, which provides for such restrictions on freedom of expression for the protection of public health, as the activities outside these clinics represent a traumatising occurrence for women seeking lawful health services, as well as for the staff working at such a clinic. Reports of these issues deterring women from seeking health services further support the need to protect public health, and as such this is a proportionate, limited response designed to uphold the objectives of the Public Health and Wellbeing Act 2008.
Impeding access, or intrusively interfering, with individuals as they access lawful health services is both an infringement of privacy and an obstruction of public health. This limitation reasonably restricts the right in order to achieve its purpose.
As such I believe the limitation on freedom of expression to be reasonable and justified under section 7(2) the charter act.
Freedom of religion
Section 14 of the charter act provides that every person has the right to freedom of thought, conscience, religion and belief. This right includes having or adopting a religion or belief of choice, and demonstration, observance, and practice thereof.
Section 185B of this bill could be suggested to limit this right, in that 185A defines prohibited behaviour so as to include ‘communicating in relation to reproductive health services’. Communication of this nature may include prayer or religious discussion if it pertains to reproductive health services, or if it was intimidating, harassing, or otherwise prohibited under section 185A of the bill.
In my opinion, these rights are not relevant to the provisions inserted by the bill in relation to communication, as the bill does not seek to limit freedom of religion, but rather prevent harassment and intimidation of individuals accessing health services. Views on bioethical considerations are not limited to the religious. The behaviour prohibited by the bill is injurious to public health and wellbeing, and infringes on the rights of women to access medical health services.
While it is deemed acceptable to restrict freedom to manifest religion or belief if such limitations are prescribed by law, and necessary for matters such as public health and the fundamental rights and freedoms of others, I do not believe that this bill limits freedom of religion, in that the prohibition is targeted to behaviour not solely associated therewith.
The right to peaceful assembly
Section 16(1) of the charter act provides that every person has the right to peaceful assembly and freedom of association. Section 185B creates the offence of engaging in prohibited behaviour within a safe access zone, which may restrict the ability of some individuals to assemble and undertake such behaviour.
Section 16(1) is predicated on the word ‘peaceful’, and the behaviour described in section 185A of the bill (including besetting, harassment, and communication pertaining to private medical services) does not fall within this category. Nor is any such assembly permitted to limit the rights of others through impeding access to health services, or distributing recordings in regards to private medical information.
Preserving order in public places, and protecting the rights of others from infringement, will support the reasonable limitation of this right. I submit that this limitation is reasonable and justified, in that it does not prohibit assembly or association, but rather prohibits a set of behaviours that infringe on the rights of others.
Freedom of movement
Section 12 of the charter act provides that every person has the right to move freely within Victoria. In my opinion, this right is not relevant to the provision under section 185B of the bill, as there is no intention to restrict movement within an access zone. The restriction is on prohibited behaviour in such a zone, and this does not restrict the ability of an individual to enter or leave a safe access zone.
Section 20 of the charter act provides that a person must not be deprived of his or her right to property other than in accordance with law.
Section 185D of the bill provides police with the power to seize material related to an offence under section 185B or 185C of the bill. This may include video cameras, posters, or documentation. Such a seizure is required in order to cease the offence.
Without the ability to seize material, an offence could continue to be carried out, to the ongoing detriment of the people within an access zone. In the case of a recording, this seizure is necessary in order to avoid a possible distribution of information that would violate a person’s right to privacy under section 13(a) of the charter act. Publishing or distributing a recording of someone accessing or attempting to access a reproductive health service may reveal private medical information, and as such a seizure would be justified.
For this reason I believe the limitation to be reasonable and justified under section 7(2) of the charter act.
For these reasons, I consider that the bill is compatible with the Charter of Human Rights and Responsibilities.