Monash Feminist Amicus submission on abortion law challenge now available

Alongside feminist legal studies group members, Drs Ronli Sifris, and Dr Caroline Henckels I have authored an amicus curiae (friend of the court) submission on behalf of the Castan Centre for Human Rights to the High Court in the important case of Clubb v Edwards and Attorney-General for Victoria. Our submission was prepared with pro bono assistance from the wonderful Kate Eastman SC and K&L Gates.

sad woman

Image: Artist I heart: Lisa Congdon by Brian West, CCBY-NC-SA 2.0


The Clubb case involves a constitutional challenge to the Victorian safe access zone laws around abortion clinics. Safe access zones are sometimes called bubble zones because they create a bubble around an abortion clinic in which certain conduct is prohibited. The legislation is a response to picketing of clinics by anti-abortion protesters for more than two decades.

To find out more about abortion clinic safe access zone laws and where they exist in Australia, you can read my explainer.

The Victorian legislation has been challenged in the High Court by Kathleen Clubb, an active member of the anti-abortion group known as Helpers of God’s Precious Infants. Last October, Clubb was convicted of communicating about abortions in a manner reasonably likely to cause anxiety or distress within the safe access zone around Melbourne’s Fertility Control Clinic. In her challenge to the legislation, Clubb has submitted that Victoria’s safe access zone law infringes on freedom of political communication implied in the Commonwealth Constitution.

The case is being heard by the High Court on 9 -11 October 2018.

The Castan Centre submission (as it states) “brings an empirical perspective on the practical impact of Part 9A of the Public Health and Wellbeing Act on Victorian women” and draws upon qualitative empirical research we have undertaken into the operation of the Public Health Act.  Together with Dr Ronli Sifris, I have been conducting semi-structured interviews with Victorian health professionals working in medical clinics which provide abortion services in Victoria, in order to evaluate the nature and effect of anti-abortion protests around clinics and the impact of safe access zones. Our research is described in a research paper titled ‘Anti -Abortion Protest and The Effectiveness of Victoria’s Safe Access Zones: An Analysis’ to be published in 2019 by Monash University Law Review and a paper titled Expanding the Feminization Dimension of International Law: targeted anti-abortion protest as violence against women’ to be published in the Cambridge International Law Journal later this year.

Our research demonstrates that protests outside abortion clinics have negatively impacted on women’s safety and privacy, as well as their ability to access lawful medical procedures free from intimidation and harassment. The research shows that women’s safety, privacy, health and wellbeing have in fact been impacted negatively by the protests. As a proud feminist, I am hopeful that our research will highlight the importance of promoting women’s health, dignity, privacy and well-being.

Please read our submission here. We’ll let you know how the case goes.



Explainer: what are abortion clinic safe-access zones and where do they exist in Australia?

This Article was originally published in The Conversation on 14 June 2018.  

Tania Penovic, Monash University

New South Wales recently became the fifth Australian jurisdiction to enact legislation that establishes safe-access zones around abortion clinics.

The legislation is a response to picketing of clinics by anti-abortion protesters for more than two decades. These protesters characterise themselves as “sidewalk counsellors” but their conduct has included verbal abuse, threats, impeding entry to clinics, displaying violent imagery and acts of “disturbing theatre” such as pushing a blood-splattered doll in a pram.

Safe-access zones are sometimes called bubble zones because they create a bubble around an abortion clinic in which certain conduct is prohibited. NSW will now impose safe-access zones of 150 metres around clinics that provide abortions.

Safe-access zone laws enable the state to fulfil obligations to respect and protect human rights under international law. They also protect women from conduct that has been recognised as violence against women.

Similar zones operate in Tasmania, the ACT, the Northern Territory and Victoria.

What does the NSW legislation look like?

The Public Health Amendment (Safe Access to Reproductive Health Clinic) Bill 2018 was introduced by Labor MP Penny Sharpe and co-sponsored by Nationals MP Trevor Khan. The NSW Parliament passed the law last Friday after Premier Gladys Berejiklian, who supported the bill, granted Liberal MPs a conscience vote.

The legislation prohibits conduct that includes interfering with any person accessing or leaving a clinic, filming without consent and communicating about abortions in a manner that is reasonably likely to cause anxiety or distress.

People who engage in prohibited conduct inside the zone may be fined up to A$5,000 and/or imprisoned for up to six months for a first offence. A subsequent offence can have them fined up to A$10,000 and/or imprisoned for up to 12 months.

Like NSW, the laws enacted in Tasmania and Victoria create safe-access zones of 150 metres around clinics. In the ACT, the health minister determines the radius of the zone but it must be at least 50 metres.

Safe-access zones protect women from harassment by anti-abortion protesters.

Elvert Barnes/Flickr



Similar laws don’t operate in Queensland, South Australia or Western Australia. Queensland’s abortion laws (which only allow abortion when the continuation of the pregnancy poses a serious risk to a woman’s physical or mental health) are under review. The review will look at how the laws should be amended, as well as whether to include safe-access zones.

The NSW legislation does not decriminalise abortion. This remains in the NSW Crimes Act but is subject to exceptions on grounds of physical or mental health, with reference to economic or social factors. So it’s important to note that the safe-access laws are somewhat independent of the legality of abortion itself.

High court challenges

The Victorian legislation has been challenged in the High Court by Kathleen Clubb, an active member of the anti-abortion group known as Helpers of God’s Precious Infants. Founded in the US, the group picketed the Fertility Control Clinic in East Melbourne for more than two decades and has been actively engaged in anti-abortion protests in Albury, NSW.

Last October, Clubb was convicted of communicating about abortions in a manner reasonably likely to cause anxiety or distress within the safe-access zone around the East Melbourne clinic. In her challenge to the legislation, Clubb has submitted that Victoria’s law infringes on freedom of political communication implied in the Commonwealth Constitution.

Tasmania’s safe-access zones are also the subject of a challenge brought on the same constitutional grounds. This one was brought by Graham Preston, a Queensland-based anti-abortion protester, who has been convicted of breaching the Tasmanian legislation.

These challenges have important ramifications for the NSW legislation. If the Tasmanian or Victorian laws are found to be constitutionally invalid, a challenge to the NSW legislation would yield a similar outcome.

Why are these laws important?

In her second reading speech, NSW MP Penny Sharpe said:

No person seeking lawful medical advice and care should be forced to run a gauntlet of abuse. Every person has the right to expect their government to protect them from being intimidated and harassed. We have an obligation to provide that protection…

Safe-access zones protect individuals from intrusions into privacy by strangers who seek to interfere in deeply personal decisions. They protect the rights to health-care services, the right of women to decide the number and spacing of their children, the right to security of person, as well as equality and freedom from cruel, inhuman and degrading treatment.
The ConversationThe rights of patients and others who need access to clinics in which abortions are provided cannot be safeguarded while protesters retain a presence and attract a captive audience. Those who wish to vocalise their opposition to abortion remain free to do so, but at a distance that protects the rights of others.

Tania Penovic, Senior Lecturer, Faculty of Law, Monash University

This article was originally published on The Conversation. Read the original article.

Abortion in limited cases finally legalised in Chile

In 2011, I published a piece in the journal Human Rights Quarterly where I presented a rebuttal of a book arguing that abortion is prohibited under international law under all circumstances. In my review I concluded that the book
calls repeatedly for principled analysis, intellectual integrity and an end to revisionist interpretation yet fails to meet its own challenge. A principled analysis might have acknowledged that the core human rights instruments do not coincide with [the author’s] philosophical position and explored her vision for the development of international law, including means of addressing conflicts of rights.
Until August 2017, Chile was one of just 6 countries in the world that had a complete ban on all abortions (even where the mother’s or baby’s life was at stake), jailing both the woman and the doctor involved in the procedure. This law was put into place in 1989 under during the dictatorship of General Augusto Pinochet.
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Pro Choice March, Santiago, July 2013. Photo: Santaigo Times, by Ashoka Jegroo Creative commons

When the first female President of Chile, Michelle Bachelet was re-elected in 2014 (after previously serving as President from 2006 to 2010), she declared reproductive rights an important focus of her tenure.  The Bachelet government put forward a bill  in 2015 which legalised abortion in cases of rape, foetal disability, and danger to the life of the mother.

That bill has been the subject of two years of political wrangling and debate, and was challenged in Chile’s Constitutional Court. On 21 August 2017 the Court upheld the constitutionality of the bill, meaning that abortion will be lawful when the pregnancy results from rape, when the pregnancy endangers the mother’s life and when the foetus is not viable.

A short YouTube video about the change to Chile’s abortion laws and the case can be found here. The quote included from Pinochet’s advisor is especially chilling.

In 2016, I was in Santiago, Chile, and met with Lidia Casas Baccera, a lawyer who was involved in the case. She asked me whether she could use a review I had written in Human Rights Quarterly . Of course I agreed and the review was translated and included in the materials put before the court scrutinising the Bachelet amendment. It is really exciting that the court has upheld the Bachelet amendment.

Between her two presidential terms, Bachelet served as the inaugural executive director of UN Women.  Her government has now succeeded in bringing an end to unjust laws that have punished and endangered women while denuding them of autonomy and rights. She will finish her term as president in March next year, leaving a proud legacy of advancing women’s equality.