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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Health Care (Safe Access) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 June 2020.)

Mr PEDERICK (Hammond) (10:44): I move:

That the order of the day be postponed.

The house divided on the motion:

Ayes 3

Noes 39

Majority 36

AYES
Ellis, F.J. Murray, S. Pederick, A.S. (teller)
NOES
Basham, D.K.B. Bedford, F.E. Bell, T.S.
Bettison, Z.L. Bignell, L.W.K. Boyer, B.I.
Brock, G.G. Chapman, V.A. Close, S.E.
Cook, N.F. (teller) Cowdrey, M.J. Cregan, D.
Duluk, S. Gardner, J.A.W. Gee, J.P.
Harvey, R.M. Hildyard, K.A. Hughes, E.J.
Knoll, S.K. Luethen, P. Malinauskas, P.
Marshall, S.S. McBride, N. Mullighan, S.C.
Odenwalder, L.K. Patterson, S.J.R. Piccolo, A.
Picton, C.J. Pisoni, D.G. Power, C.
Speirs, D.J. Stinson, J.M. Szakacs, J.K.
Teague, J.B. Treloar, P.A. van Holst Pellekaan, D.C.
Whetstone, T.J. Wingard, C.L. Wortley, D.

Motion thus negatived.

Ms HILDYARD (Reynell) (10:50): I am proud to rise in support of the Health Care (Safe Access) Amendment Bill, and I will be proud to help progress much-needed abortion law reform in our parliament in the coming months. Across the globe, laws about women's rights to make decisions about their bodies and reproductive health, with the support of their health practitioners, are changing. It is time for us to make change here in South Australia.

We have a strong history of embracing progress, equality and choice. Last year, we proudly celebrated 125 years since women fiercely fought for the right to vote to advance the rights of women. In the words of YWCA Australia, their achievements were 'hard won', but we are not done. It is time for us to take another step in advancing the status of women. I wholeheartedly support this bill because I support the right of women to seek medical support and to make choices—sometimes difficult and heartbreaking, and always deeply personal—about their health, their bodies.

I support it because I fundamentally believe that women should never be harassed nor disrespected when making those choices. I have spent many years advocating to ensure women can live their lives free from harassment and disrespect. As with every other setting in their lives, women must have the right to seek medical treatment without being intimidated. It is wrong to subject women, and their partners, who may be contemplating a really difficult choice or crisis, to judgement and shame.

Our community is at its best when we offer kindness and love at moments when people are making hard decisions, when they may be distressed, not when we judge, belittle or frighten others. I trust women to make informed choices about their lives, their health and their bodies, and I support them in doing so. Our parliament should do likewise and trust South Australian women to make these decisions, in consultation with their health professionals, by supporting this bill.

I also support this bill because workers have a right to go to work without fear, persecution or intimidation. At work—and everywhere—people want and deserve to be treated with dignity and respect. They deserve to come home just as mentally, emotionally and physically healthy as they were when they left for their shift. Whether you work in retail, at a credit union or a pub, in the community sector or in a healthcare clinic, you should never be abused.

I always encourage people to have a voice, to protest, to speak up, to rally. I also encourage people to pray if it is their wish to do so and to find ways that work for them to find peace, to feel connected and loved. We live in a democracy where, thankfully, we can safely enable people to speak up, pray, protest, rally, but we must never encourage people to cause fear, to intimidate or abuse. Protest is healthy; persecution is not.

The type of anti-abortion activism seen outside medical clinics can cause distress to women seeking support, their loved ones, and the dedicated, compassionate workers entrusted to treat them. It is utterly unacceptable for our health professionals to be under duress before they even enter their workplace, to feel fear and anxiety as they go about their daily work. It is not okay.

South Australia has fallen behind nearly every other jurisdiction in Australia by not implementing these zones around abortion clinics. Similar laws have been tested by the High Court, with Tasmanian and Victorian laws that created safe access zones around clinics upheld and members of the judiciary agreeing that the intent of these laws was to protect women's rights to health, privacy and safety whilst accessing health services. This bill, introduced by the member for Hurtle Vale, implements a 150-metre exclusion zone for protesters around reproductive medical clinics. It protects the right to access health care without impinging on political expression.

Brigid Coombe, a fellow campaigner for women's rights, who worked at the Pregnancy Advisory Centre in Woodville for 18 years, says staff at the centre have been followed and photographed, making them feel threatened and unsafe. This harassment is not okay for any worker nor any woman anywhere. I say to these workers today that we hear you, we support you, many of us are here for you and we will do what we can to keep you safe. One in three South Australian women will access an abortion in her lifetime. It is essential that they can seek advice and support to make choices and access treatment without being publicly shamed. I say to those women that we are here for them, too.

This bill is supported by the South Australian Abortion Action Coalition, which includes health, legal, academic, social justice and advocacy professionals, who are urging members to demonstrate their support for the dignity and privacy of women needing these services. They say that this bill is vital for women accessing reproductive services and for staff, that it recognises abortion care as health care and that those needing and providing abortion services require the same safe environment for access as all other health care. I commend this bill to the house. I urge members to support it and, in doing so, to demonstrate their support for rights, dignity and respect for women and for all workers.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (10:56): I rise to indicate my support of the bill, and I have a few comments to add. I think the provisions of the bill have been well canvassed. I just place on the record that in 2015, in Victoria, there was an application before the Supreme Court to consider whether the City of Melbourne had an obligation to enforce the nuisance provisions of the Public Health and Wellbeing Act against a group harassing and intimidating people at a clinic that provides reproductive health services, including abortions. The court refused to make that order requiring the council to take specific action but found that the council's advice to the clinic to refer the matter to the police to have it dealt with as a private nuisance was not effective. Clearly, this was the beginning of exposing that there was no real protection for women or the workforce this bill now seeks to protect.

I think there are three areas that have dealt with pregnancy and/or fertilisation in my lifetime that have evoked considerable concern and public division with a passion. One was the early work for in-vitro fertilisation and the advances in science, which were pioneering at the time, creating test-tube babies, as they were described, to enable infertile couples to have children. It was very passionately opposed by members in the community who took the view that this was to supplement a determination by God. In the time of the 1980s, that was an issue of significance, even though perhaps today we see this as a very valuable tool available to couples or parties who are seeking to have children. Nevertheless, it was very hotly contested.

Stem cell research was another one, the use of unrequired frozen embryos, which have a 10-year life in South Australia before they have to be disposed of, and that means thawing them out and flushing them down the drain. There was major debate—again, a passionate contribution from the community—about the use of embryos, destroyed and used for the purpose of scientific research to help people with MS or Parkinson's, for example. These were the types of diseases that were raised. It was very passionate and heartfelt, and I respect that. As a mother, I supported both those reforms. I stand here privileged to have been able to have children without difficulty, but I do understand the plight of those who cannot and the enormous difference that science has made to couples who face that dilemma.

In this area, parliament gets a report every year that tells us there are about 4,000 abortions a year, what age group does it the most and whether they are married or single. This is the information we receive because it is a process, required by our laws, to report to us. I think there are some bigger picture issues that need to be resolved in that area, but that will be for another day.

The South Australian Law Reform Institute has done a body of work that will form the base of similar reforms I propose to introduce to the parliament when we are ready. There is still further stakeholder consultation being considered of amendments they are recommending. All those are being very carefully considered, but this is an area they did say does need to be followed. It has been done in Tasmania and it has been done in Victoria.

I briefly refer to the High Court. There has been reference to the High Court action that confirms the validity of legislation such as this. That is an important endorsement. It is also important that I note for the parliament's benefit that Christopher Brohier, who is a junior I think in the High Court challenge against this legislation, recently went on radio to suggest that this legislation would interfere with the right of private prayer for people who are objecting to this.

I take issue with that. I think the bill does not traverse that. I think it will allow for silent prayer. However, understand this: if there is someone who wishes to go beyond that and display words or images that are likely to bring about fear or anxiety in response by the person who is trying to enter the clinic, then they will be vulnerable to be prosecuted. That is precisely what this bill will do. If they wish to have silent prayer, and they wish to do that in the front area on the roadside within the 150 metres, in my view, and I make this very clear, that is perfectly valid.

I understand there is a foreshadowed amendment to actually cement that, but I do not think it is necessary. I will not oppose it, but we sometimes let things go through just to make them absolutely clear. Similarly, I make the point that this legislation now before the parliament accommodates a number of things that I as Attorney have asked the mover of the bill to incorporate, and she has done so. I appreciate that because they are weaknesses that I think would have made it very difficult to support in its previous form.

Firstly, I think there needs to be a provision for a financial penalty, as distinct from the original five-year imprisonment proposal, and so we are back to what I think is much more appropriate. Secondly, there is wording in this that follows the interstate approved High Court stamp of approval legislation so that we do not fall foul of inadvertent crushing of the right to speak of those who wish to do so.

There is a journalist clause in ours that gives special provision. I know the member for Badcoe has raised this. Again, I do not think it is absolutely necessary, but I am happy to leave it in there because it is very clear that it is not to silence people who have a passionate view about the principal issue of terminations or whatever other procedure becomes controversial. In my experience, they do about every 10 years and they are passionate, but on this issue we want to make clear that they do have a right to have a view and they can publish it. Most these days will do it on social media, but if they want to have the old-fashioned protest they can do it, but it has to be 150 metres away and not cause distress or anxiety for those who are going to use this service.

I remind members that this is not in any way varying or modifying or relaxing or making more strict the law in relation to terminations. It is purely to protect those who are lawfully entitled to seek one for that purpose.

Ms STINSON (Badcoe) (11:04): I would like to focus on just one aspect of the bill which I raised very early in the briefing phase, and that was to advocate for an exemption for media working in safe access zones. Clearly, as a former broadcast reporter, press freedom is very close to my heart and something that I believe we need to fight for every day, even in this country. In the last session, I prepared amendments following thorough consultation with media outlets across South Australia, and I thank those news directors and the MEAA for their input, which I took on board in preparing my suggested changes. I was pleased to see those suggestions taken up in the upper house and that a 'media carve out' is now part of the bill that comes to us.

Legitimate members of the media, unless they are themselves engaging in protest or harassment, should not be captured by these exclusion zones. The media have an important role in covering emerging events in and around our hospitals and health facilities, including health, crime and political stories, as well as protests. It is their job to bring that news to the public. An exemption for media is a safeguard ensuring the public has an understanding of what is happening in our community even if they themselves cannot bear direct witness.

I have listened to people's concerns that creating no-go zones, no matter where they are or for what purpose, is an affront to freedom of speech and freedom of association. Quite frankly, it is, and I take those concerns very seriously. Any curbing of individual freedom should be weighed incredibly carefully. Restricting rights cannot become the norm. However, in our democratic society, there are certain circumstances in which we do have our right to express ourselves curbed for the good of our greater community and for the good of more vulnerable citizens.

Right now, our freedom to gather in large public demonstrations has been curtailed for the good of our population's health in light of COVID-19. We have antidiscrimination laws against hate speech and vilification is not allowed. We have defamation laws that restrict what people can say, even if those comments may be true or genuinely held. This proposed restriction of rights through the establishment of safe access zones, I believe, does meet the test in terms of curtailing freedoms only to a degree that is tolerable in order to protect the rights of those who are in a far more vulnerable situation.

The bill balances competing rights. Patients and workers deserve the right to attend health centres without being harassed, without enduring protests or being recorded. Further, I do support a woman's right to choose, and therefore I support the right of a woman to access health services and seek advice without fear and without being intimidated or shamed. To those who say women are not intimidated, staff are not recorded or abused, and demonstrators already keep a distance from abortion facilities, I say, 'Great. Good on you for doing the right thing.' This change will have very little impact on the way you express yourself.

Importantly, people can still communicate, they can still protest, they can still hold signs, they can still make recordings, but at a distance. Allowing an exemption for media further tempers the minimal restrictions imposed by this bill. A sensible position has been reached and, while it does not fully satisfy the interests of any of the parties, it is a midway point that I think we can all live with, with only a minimal infringement on the rights and freedoms of the parties on all sides of this debate. I will be supporting this bill, and I commend the bill to the house.

Mr PEDERICK (Hammond) (11:08): I rise to speak to the Health Care (Safe Access) Amendment Bill. Let me say that I am a proud supporter of freedom of speech, but I am also a proud supporter of people's choice and women's choice. I have certainly witnessed—especially in this job and over time through my life, but mainly through this job as a local member—women and families who have had to make a very hard decision for a range of reasons, and it is a very difficult decision to decide whether or not to terminate an unborn life. At the end of the day, it gets back to the woman, who is the one making the hardest decision of all.

I have talked to people and seen heartbreaking scenes in my office. When you talk to them later on, whichever way they went with their decision, it is great to find out either way and help with any counselling you can give regarding their decision. I do not want people to think that I do not support choice, but apart from supporting the choice I support the right of a woman with the current abortion laws to seek that choice if she so decides. A lot of the time it is in consultation with their partner. What I do have an issue with is protests. I have heard the stories about photography, people harassing people, and that is not right and it should not happen, but I am very supportive of peaceful protest.

We have seen in recent times around the world and here in Australia exemptions for COVID rules, which is interesting to say the least, and sometimes those exemptions are made for very good reasons, but we have made such good progress, especially in this state. With our borders opening at midnight last night, we have to make sure that on the grander scale we make the right decisions.

But the problem—and it does not matter in protests whether it is to do with this or other issues—is that a lot of the time you get people on either side of the spectrum, as we have seen around the world recently. You could label them as the left-wing groups against right-wing groups, but these groups all come together and it turns into something far more than a peaceful protest, and I do not support that either way. But I do support choice.

I think protesting should be peaceful. We see and hear many people protest here on the steps of this house. We have people protesting against mining companies and that sort of thing. Do we ask for exclusion zones around mining and oil companies' offices? We are not doing that today. I remember back in the day, when John Bannon was premier, there was a very well-engineered South Australian Farmers Federation protest. I think Tim Scholz from Eyre Peninsula might have been the president of the South Australian Farmers Federation at the time.

It was a mass protest by farmers and it was very well targeted. I remember going to the meeting in SAFF headquarters and different groups went to different government offices and basically sat at the front and held them up. You would not get away with it these days because of the security personnel, who obviously have a job to do, and perhaps we helped engineer that.

It was surprising—and you would never get close to this now—that a group of us managed to get in the lift in the State Administration Centre and get to the 16th floor where the premier was. But, to be fair to the group of us in that lift—and there might have been eight of us, of which I was one—Tim may have talked to the premier directly, or at least to his senior staff, because the premier was going to come in the lift with us and at least talk to us on the way down, and I commend John Bannon for that. That diffused the argument, as we at least got to speak directly to the premier of the day. We promised him safe access to the ground, and that is what he got.

The interesting thing with this—and I will speak on behalf of the lobbying I have had in my electorate and more widely across the state in regard to this—is that I have not had very many people at all support this bill as it stands. In fact, by far the majority do not, and only two or three have met with me. As a politician, I am happy to meet with people, whether or not my views align with theirs, because I think that is what you need to do to keep fully informed to help make decisions and decide whether you want to vary decisions.

Something I have also learned, especially in politics—and I know it takes a while for some to get their head around it—is that sometimes you have to give a bit to get somewhere. We have seen it with bills like the one in relation to genetically modified canola and the ability to grow it in South Australia. I know that in my mind that bill was not where I wanted it to be, but at least it got us to a point where we could have the option for South Australian farmers to grow genetically modified canola next year. What I am getting at is the simple fact that perhaps there is a way through this legislation and a way for even me to support it with an amendment that I believe—

Mr Boyer interjecting:

Mr PEDERICK: That's alright; I will not even go there. I note that there will be, during the committee stage, an amendment lodged to clause 4:

Page 3, after line 34 [clause 4, inserted section 48C(2)]—Insert:

or

(c) engaging in silent prayer within a health access zone.

I will be interested in the debate, I will be interested in what I hear in the committee stage, but that may be the clause that gets me across the line. I will put that out there right now regarding support for this bill in the end because, as I said earlier in the debate, I fully support women, because I think they do a greater job than a man will ever have to do, and that is to either give birth to our children—it is a beautiful thing to witness—or sometimes make these decisions, which are terrible decisions. These decisions are made not just alone, sometimes with a partner, but at the end of the day it is the woman who is totally affected by this.

I know a lot of them will never forget, no matter what the outcome is, if they think it is for their betterment or their family's betterment. I know that in most cases these are decisions that are not made lightly at all—not lightly at all—and I fully respect people's ideas and views around it, especially when they are in that space.

I have seen the trauma. I have seen the trauma of miscarriage. It is not until you are engaging in starting a family that you suddenly realise. I know we are not talking about abortion here; I am talking about miscarriage. Miscarriage happens far more often and you only know these things when you are involved in the family process at the time. Miscarriage affects a lot of families and a lot of women, and it can have a very deleterious effect. I know that only too well.

I am very interested to see where this debate goes. I want to hear more debate around this amendment and maybe other amendments. I note the member for Badcoe's discussion around journalists, but at the end of the day I do not want people to ever get the wrong idea: I do support choice.

The Hon. A. KOUTSANTONIS (West Torrens) (11:18): In regard to this bill, I feel a little bit torn. I do not want to see anyone harassed when they are making medical choices. I do not want to see anyone intimidated when they are making medical choices. I do not want to see people who are already making one of the most difficult decisions of their lives put under any other pressure on top of the decision they have already had to take, or have chosen to take. It must be a horrific and terribly troubling part of anyone's journey to have to go through this process, and the last thing you would want, as you are seeking advice or getting medical advice on this, is to have people making you feel as if you are doing something that you should not be doing.

These are choices that people make with their doctor, and the parliament has already spoken on that, but now we are talking about something a little bit different. We are talking in my opinion about the right of assembly, the right of protest. The party I am in was formed out of a right to protest, out of a right to withdraw labour, out of a right to speak up against inequality and a right to assemble en masse, often in breach of the law, often illegally. That is how we got the eight-hour day. That is how we got women the right to vote. That is how we have now these rights that we all believe are inalienable: the freedom of the press, the right to assembly, the right to join a union, the right to withdraw your labour.

The legislation here says you should not be able to protest within 150 metres in a health and safety zone, but at 150 metres and one centimetre you can hold up any banner you want. But a journalist with a camera crew can approach anyone walking into this clinic and ask them questions. There is even an amendment being considered here because there are parliamentarians who fear we may be banning silent prayer. I do not know if the legislation bans silent prayer or not.

An honourable member interjecting:

The Hon. A. KOUTSANTONIS: I note that members are saying it does not. Fine, so therefore there would be no problem with inserting the amendment in the bill.

Ms Cook: Vegemite sandwich eating is okay too.

The SPEAKER: Member for Hurtle Vale!

The Hon. A. KOUTSANTONIS: I didn't know we were banning Vegemite sandwich eating.

Ms Cook: We're not banning silent prayer either.

The Hon. A. KOUTSANTONIS: Well, good, because we shouldn't ban silent prayer. My question that I have to contemplate here is: every time the parliament makes a decision on these issues, we are either granting a right or taking one away. Here, I think the intent is to do both. The intent is to grant people who are seeking these services the right to do it unhindered, unmolested, unencumbered by any sense of protest, but in response the parliament wants to outlaw—and the bill says it—what would otherwise be lawful behaviour.

I have a problem with that as a parliamentarian. I have a problem when the parliament seeks to take away the right of assembly. I do not think taking away the right of assembly gets the outcome we are looking for here. The real question we should be grappling with here is: why are people who are seeking these services having to deal with the infrastructure that is in place now, that should be better to avoid this altogether without us having to pass legislation? Is not the real question here: why are you not spending more money on this infrastructure rather than banning democratic rights and withdrawing them?

It seems to me that what we are attempting to do here is, because there is a car park in place rather than any other form of infrastructure: 'I know what we'll do. We'll make it illegal to protest.' That is not how it works in democracies. The thing about protests is that they are uncomfortable. We saw that last week in this country with the Black Lives Matter protest. They are uncomfortable. These are uncomfortable images for us to witness. They are difficult to grapple with.

Our police commissioner last week had to grapple with this question. As the state controller he had to decide whether or not to allow a protest against police brutality during a pandemic. What did he do? He allowed the protest. I bet you the health advice that was in place in New South Wales and other jurisdictions would not have erred on the same level the police commissioner came down on. Of course, I do not have access to the health advice, so I do not know what the police commissioner was told or not told.

I will be less generous to my friends on the government benches. There is a lot of union bashing that goes on in the government. I have lived through WorkChoices. I have seen what it is that employers want to do to stop workers organising. Once the parliament gets a taste of banning protest, it is not that much of a step to take five years from now, 10 years from now, 20 years from now, for example: 'Teachers shouldn't protest at a school. It's an educational environment. Perhaps they should protest 400 metres away so the children don't have to see teachers withdrawing their labour.'

How about nurses at a hospital, protesting outside an emergency ward that is underfunded or where they have had their hours cut, or people are dealing with broken arms and injury and casualties? Do they really have to be putting up with this protest? Perhaps we should bring in a law that says, 'Workers can't withdraw their labour and can't protest at certain types of facilities.' We do it at abortion clinics.

There is another way of doing this. There are other ways of making sure that people and families who are going through these choices do not feel molested. I do not want those remarks to say that somehow I am pro-choice. What I am saying is this is not a question of liberty; this is a question of infrastructure—that is the fundamental question here. It is a question of the location of the services and the way they are managed. What you do not do is use statute in the parliament to take away democratic rights.

I have to say I started in the union movement in the Labor Party. I am from the union movement, I am proud a unionist and I will be to the day I die. The idea that I would vote for any measure that takes away the right to assemble, I have to say, does not sit well with me. That is not passing judgement on others who vote for it. I understand their intent—I do—but the fundamental question here is: should we ban a protest?

We have enshrined in here the protection of the fourth estate, the media, because we believe in the freedom of the press. Protest or offering non-sanctioned pregnancy counselling—whatever it is called that these protesters are attempting to do—quite frankly, I am not very comfortable with, to be honest, but I do not have a problem with people sitting away and silently praying. I do not have a problem with that at all; I can see the point. But I cannot conceptualise that it is okay for a journalist with a camera crew to walk up to anyone walking into this service and ask them questions but anyone else has to be away.

How does the parliament grapple with those two opposing ideas? But I see the point. What the member for Badcoe has attempted is to make sure that any other protest that occurs there is covered. I think that makes sense, but I do not understand why we have to go down this path when it really is a question of logistics rather than democratic freedoms, rather than liberty. I am concerned that these measures will be used in other forms of other pieces of legislation.

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