Anti-abortion campaigners tell the high court that safe zones breach their political freedom

Anti-abortion campaigners should be allowed to protest outside clinics, even if it harms the dignity of women entering the clinics or hurts their feelings, lawyers for anti-abortion protesters argued today.

On Tuesday the high court held a hearing into anti-abortion campaigners’ constitutional challenge against Tasmanian and Victorian laws prohibiting protests in “safe zones” outside abortion clinics.

Guy Reynolds, the counsel for the protesters, Kathleen Clubb and Graham Preston, argued for a radical expansion of the implied freedom of political communication to include a general right to protest in public places.

Reynolds began his case with criticism of Tasmania’s “eye-catching” safe zone law – which he said was a “straight up” ban on protest in relation to a particular topic – abortion – which is “often political in nature”.

Unlike the Victorian law – which prohibits communications that are “reasonably likely to cause stress or anxiety” – Reynolds said the Tasmanian law had “no tailoring towards any particular purpose” other than to ban anti-abortion views outside clinics.

Even the Victorian law would cover “just about any [speech] that is anti-abortion”, he said, with law-abiding citizens suffering a “chilling effect”.

Reynolds submitted safe zone laws breach the implied freedom of political communication because they ban conduct that would “not otherwise be unlawful”. Citing the great number of laws that already prohibit “besetting, harassing, obstructing and intimidating”, he argued the laws were not justified by public safety because their only incremental effect is to ban peaceful protests.

Justices Michelle Gordon and Virginia Bell posed that the purpose of the law was to preserve women’s dignity and prevent them being deterred from seeking medical services, with Bell citing women “in a vulnerable state” confronted with images of foetuses in varying states of development.

Reynolds replied this was “not a mischief that is established by evidence” and the law was not tailored to a ban on behaviour reasonably likely to affect access but rather was a ban on all protest.

Reynolds claimed that the effect of women delaying abortions was not “some form of grave physical harm” but rather the possibility of a “slightly worse result”, despite expert evidence from the Victorian case it could force women to get surgical abortions and later surgery is more complex.

Reynolds then claimed it was “difficult to say” and “not identified” by the Tasmanian government whether being deterred from seeking an abortion was itself a harm.

This earned an extraordinary rebuke from chief justice Susan Kiefel, who ordered him to “address the legal position” and not to adopt his clients’ personal ethical or moral position about deterring an abortion.

Reynolds submitted that “avoidance of psychiatric harm” is an important aim but “the avoidance of hurt feelings is not”, arguing that criticism and “the resultant loss of dignity” are “inherent in political speech”.

Reynolds compared anti-abortion views that may harm the dignity of women seeking abortion to “criticism of bankers” or “criticism of men by feminists” as “part and parcel” of political speech.

Kristen Walker, the solicitor general of Victoria, told the court the law was designed to tackle the “full spectrum” of behaviour that cause stress and anxiety – from “polite” statements directed at women’s personal medical decisions, to noisy protests featuring “images of dismembered foetuses” and “frightening false statements”, such as that abortion causes cancer.

Walker submitted that “on no view” is the law directed at the mere prevention of hurt feelings, arguing that women miss appointments and staff are often too afraid to go get a coffee because of persistent protest activity.

Earlier, Reynolds cited developing jurisprudence in Hong Kong about reasonable access to a highway to suggest that there is a general common law right to freedom of assembly and to use public places for protest.

Attempts to expand the Australian jurisprudence were given short shrift by Kiefel, who noted Australian law does not recognise a general right to communication of political matters, only an implied freedom that limits legislative power and is “not a personal right”. Reynolds conceded that his submission was “not the traditional view”.

Reynolds submitted that anti-abortion protests have “great communicative power” when held outside clinics that perform abortions, likening them to apartheid protests held at sporting events involving the South African national team.

The Victorian and Tasmanian governments have defended their laws on the basis it is legitimate to protect the safety, privacy and dignity of persons accessing lawful medical services, staff and others accessing abortion clinics.

Coalition governments in New South Wales, South Australia and the Commonwealth as well as Labor governments in Queensland and Western Australia have intervened in the case to defend safe zone laws.

The court adjourned on Tuesday afternoon. The cases are listed for two further days’ hearing.