The picketing of abortion clinics has been a hot button issue for many years in the US. Those protests are often portrayed as a 'clash' of rights between religious freedom and peaceful assembly on one hand, and a woman's right to privacy and control of her body on the other.
However, the recent Supreme Court decision in Fertility Control Clinic v Melbourne City Council shows that the extent to which rights are protected will often turn on the nature and scope of a decision maker's power under legislation.
The case also demonstrates that even though a decision maker may make a legal error, that doesn't necessarily give rise to a legal remedy.
A nuisance?
The Fertility Control Clinic provides pregnancy termination (among other services) at a private clinic in East Melbourne. For at least a decade, members of a religious group called the 'Helpers of God's Precious Infants' (or 'HoGPI', for short) have gathered outside.
The Clinic contacted Melbourne City Council claiming that HoGPI had engaged in nuisance by, among other things, harassing women as they entered the clinic, trying to block access to the clinic, and singing loudly outside consultation rooms.
In Victoria, councils have a duty to investigate a nuisance in their district under the Public Health and Wellbeing Act 2008. If a council finds that a nuisance exists, it has to take certain kinds of action under the Act.
The Council wrote back to the Clinic, stating that it thought most of HoGPI's actions weren't a 'nuisance' within the meaning of the Act (other than maybe blocking entry to the clinic), and recommending that the Clinic ‘settle the matter privately’ by contacting Victoria Police.
What the clinic argued
The Clinic brought proceedings in the Supreme Court arguing that the Council failed to discharge its statutory duty by misinterpreting the meaning of 'nuisance' under the Act. The Clinic sought an order compelling the Council to address the HoGPI protests as a 'nuisance'.
The Clinic also sought a declaration that the Council's advice that the Clinic contact Victoria Police did not meet the statutory definition of 'settling the matter privately'.
Errors by the Council were within power
The Court found that – even though the Council had made a legal error in concluding that HoGPI's conduct wasn't a 'nuisance' under the Act – the Council had not failed to exercise its powers under the Act, and the Council's error was within power.
In other words, the Council had performed its duty under the Act by considering whether a nuisance existed, even if it had made a mistake by misinterpreting the meaning of 'nuisance'. Therefore, the Court didn't make any orders compelling the Council to reconsider the Clinic's letter or address HoGPI's conduct in any particular way.
The Court also found that the Council made an error in recommending that the Clinic 'settle the matter privately' through Victoria Police. Again, however, the Council's error was within power: the Council had discharged its duty by recommending a way for the Clinic to resolve the matter privately, even if it had made a mistake by recommending a means of resolution that wasn't 'private' at all.
The Court made a declaration that referral to Victoria Police was not a method of 'settling the matter privately' under the Act.
No reliance on the Charter or constitutional issues
The Council initially raised issues under the Commonwealth Constitution and the Victorian Charter of Human Rights and Responsibilities 2006.
The case potentially raised questions of conflicting rights under the Charter. Section 38 of the Charter requires public authorities, including councils, to act compatibly with human rights and give proper consideration to a relevant right when making a decision.
Relevant Charter rights in this context include the right to free movement, and the right not to have one’s privacy arbitrarily interfered or reputation unlawfully attacked.
Conversely, the following Charter rights of HoGPI members were potentially engaged: freedom of thought, conscience, religion and belief; freedom of expression; and the right to peaceful assembly and free association.
The Court did not have to grapple with whether the Public Health and Wellbeing Act 2008 was a burden on the implied freedom of political communication under the Australian Constitution.
Ultimately, neither party relied on those arguments.
Watch this space: new buffer zone laws
A Bill making it an offence to engage in certain behaviour within 150 metres of an abortion clinic has been introduced into, and second read in, the Legislative Assembly.
Victorian Government clients wanting further information or advice can contact:
Managing Principal Solicitor
03 8684 0247
Senior Solicitor
03 8684 0425
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