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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

Health Care (Safe Access) Amendment Bill

Second Reading

Adjourned debate on second reading (resumed on motion).

Ms LUETHEN (King) (11:06): I rise to contribute to the Health Care (Safe Access) Amendment Bill 2020. I thank the member for Hurtle Vale for bringing this bill and the Attorney-General for her help in answering my questions so far so that I can best represent my constituents' views. In government, this is a conscience vote and, as usual, I have given careful thought to views shared with me by my community members. I am thankful to those of you in my local community for taking the time to share your views on this important topic.

I have received feedback from my constituents for and against this bill. It is my intention to take a position that will take into account the wishes expressed to me by those who have made contributions. Key representations raised for my King electorate include a desire to ensure that we protect the rights of staff and patients to privacy, enabling safe access to any health services without fear of intimidation, harassment or obstruction.

I have had requests that community members will be able to continue to pray silently and requests for the right to freedom of speech and expression. This week, at my regular coffee catch-up a concern was raised whether the businesses surrounding these premises will still be able to effectively operate in the exclusion zone, and it is my understanding that this is so. Lastly, there is a desire that the women accessing these services will have access to appropriate counselling inside the health service locations to help them explore all the options regarding their decision.

The October 2019 SA Law Reform Institute report on abortion notes that SA Health services and the Pregnancy Advisory Centre provide support and decision-making regarding all reproductive options. I have had a request from the Australian Christian Lobby to consider support of silent prayer, restricting the legislation to only the Woodville site, and support for people to display written signs offering assistance.

I have closely read the abovementioned 2019 law reform abortion report and examined the bill to see how it supports all the representations made to me by my King community, and I have also considered what I myself can support as a conscience vote. It is my understanding that the bill aims to establish exclusion zones (health access zones) of at least 150 metres around protected premises. It is my understanding from my discussions with the Attorney-General that changes have been made to the current bill we are now considering to make it more specific about what types of behaviours are prohibited within the proposed health access zones. As at 16 June 2020, ‘prohibitive behaviour’ means:

(a) to threaten, intimidate or harass another person; or

(b) to obstruct another person approaching, entering or leaving protected premises; or

(c) to record (by any means whatsoever) images of a person approaching, entering or leaving premises; or

(d) to communicate by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, attempting to access, or leaving protected premises and that is reasonably likely to cause distress or anxiety;

I would certainly never support any persons being harassed, abused or assaulted. It is my understanding from conversations with the Attorney-General that the 2020 bill now mirrors Victoria's legislation, which limits the prohibition on communication within a health access zone to a communication which is 'reasonably likely to cause distress or anxiety’.

I have been advised that whether or not the communication is likely to cause a person distress or anxiety is a matter of fact to be determined objectively. Therefore, my understanding is that the bill in its current form will achieve the desire expressed by some of my constituents to protect people from harassment. It is also my understanding that the bill will support peaceful prayer if those praying do not attempt to communicate in any way with persons accessing these health services.

The safe access zones are proposed to protect the safety and wellbeing and respect the privacy and personal autonomy of persons accessing the services. With reference to freedom of speech, I have obtained information from the Attorney-General's office that the issue of health access zones was considered last year by the High Court in Clubb v Edwards and Preston v Avery 2019. In Clubb v Edwards, the High Court unanimously held Victoria's and Tasmania's health access zone legislation to be constitutionally valid, having found that neither states' laws offended the implied freedom of political communication.

Addressing the additional representations by the Australian Christian Lobby, I do support the proposal to pray silently if this does not interfere in any way with persons coming or going from the health services. Furthermore, it has been expressed to me by those who wish to pray that there is no intention to harass anyone accessing a health service, and I accept the sincerity of the individuals I have spoken personally to.

The Human Rights Law Centre has rightly pointed out that where silent prayer amounts to harassment, intimidation or obstruction it will be appropriately prohibited. I do not support the Australian Christian Lobby's suggestion to offer written signs of assistance to people accessing these health services because the law reform report tells us that the unwelcome nature of such conduct and its adverse effect have been widely noted.

The Human Rights Law Centre has said that many studies have identified the adverse impacts of anti-abortion activities outside clinics on patients and staff, including psychological distress, anger, fear and delays in accessing abortion or post-abortion care, which in turn can increase the risk of health complications. Accessing these services, as with accessing any health service, is a personal decision.

The right to protest must be balanced with other rights and freedoms. They include a right to reproductive health and rights to privacy and personal autonomy. Women should feel safe, secure and unquestioned as they make their decisions regarding their pregnancy. Over two-thirds of the survey respondents to the SALRI submissions supported the introduction of safe access zones. We need less judgement and angst in our world. We need more love, respect, kindness and understanding. We need to work together to find ways to eliminate harassment, abuse, intimidation and assault, especially when people are going about their everyday business accessing a medical centre, hospital, school or sporting facility, or just going to their workplace.

In preparing for this motion, I came across research that stated that 95 to 99 per cent of women surveyed at various times up to three years after a termination reported that this was the right decision for them. For the remaining 1 to 5 per cent who may regret their decision, research says that social stigma and low social support are the primary causes of their misery. This is where people who care deeply about others can offer their assistance and caring support if they know people in their circle of influence who might need their support. Also, there are counselling services that exist for this purpose in South Australia.

As a mother of two, I feel a pregnancy and becoming a mother is perhaps one of the most determinative aspects of a woman's life and, therefore, this must be her choice. It is my experience that often society's expectations about women today are limited by stereotypes, social customs and expectations. Women need to be able to make this choice to access these services unobstructed by others and, without this right, they do not have the same status as men. I cannot think of any examples of any protests or harassment which take place today to stop a man from accessing a health service. I commend the bill to the house.

The Hon. Z.L. BETTISON (Ramsay) (11:15): I rise to speak in support of the Health Care (Safe Access) Amendment Bill. This bill is about ensuring that women can have safe and private access to pregnancy advice. At its heart, this bill recognises that family planning is health care and that those needing and providing abortion services require and deserve the same respectful and private environment as applies to all other healthcare services.

The legislation is necessary to ensure women and staff can access this essential and sensitive healthcare service without fear, intimidation, harassment or obstruction. This bill, which supports safety for both patients and workers, will align South Australia with other Australian states that have passed similar legislation.

The High Court of Australia has found safe access zone laws to be constitutional and do not unnecessarily burden communication or the right to protest because the laws legitimately protect the safety, wellbeing, privacy and dignity of people accessing pregnancy advisory centres. Safe access zone laws enable the state to fulfil obligations to respect and protect human rights and to provide a safe place of employment under national and international law.

This legislation also protects women from conduct that has been recognised as violence against women. This legislation will prohibit the following behaviour within 150 metres of a pregnancy advisory centre:

to threaten, intimidate or harass another person;

to obstruct another person approaching, entering or leaving a protected premises;

to record images of a person approaching, entering or leaving protected premises; or

to communicate, or attempt to communicate, with a person about the subject of abortion.

Given that these protected premises are South Australian government health facilities, employing South Australian public servants in the health sector, placing a restriction on such behaviours seems eminently reasonable.

It is not acceptable that women attending a pregnancy advisory centre, whether it be to access an abortion or receive information, counselling or other health-related treatment, should be subjected to the unsolicited views of private individuals when entering or leaving. It is equally not acceptable that South Australian public servants be subjected to the same. The Charles Sturt council has received complaints from the Pregnancy Advisory Centre staff, visitors and local residents about protesters intimidating and harassing, blocking pedestrian access into the centre, displaying 'offensive' images and placing signage upon local private property.

Recently, the South Australian Law Reform Institute investigated safe access zones and this report made recommendations. This bill aims to legislate these recommendations, offering protections for staff, visitors and, most importantly, patients of pregnancy advisory centres. It brings South Australia into line with national standards. I commend the bill to the house.

Mr COWDREY (Colton) (11:19): I rise to give a brief contribution and to keep my community informed on this issue. I intend to vote in support of the bill at the second reading to continue debate. I will also be taking the opportunity in committee to ask a range of questions on behalf of members of my community. I am also interested in understanding the practical implications and operation of the bill in a local context. I will then provide a further and more fulsome contribution regarding my position at the third reading.

Mr SZAKACS (Cheltenham) (11:20): I rise briefly to put on the record my support for this bill as the local member for an area where this will have an acute effect on people's lives. I rise as a local member who does not have a lived experience of the harassment that these workers and women face on a daily basis attending this clinic, but that does not change my resolve to always use my voice in this house to stand up for workers' and women's rights broadly, particularly when it comes to accessing safe and accessible health care.

It also bemuses me that we sit in purgatory sometimes with these social issues, particularly what is a genuinely difficult issue around matters of life, but it always strikes me that, if this was an issue that was affecting men, this would have been done a decade ago. If this was an issue that had protesters harassing men who were seeking a vasectomy, we would not be standing here trying to debate the merits or otherwise of prayer or silent prayer. If this was an issue that was affecting men's contraception, or in fact any of the privileges that men enjoy in our community, this would have been an issue dealt with by now. That is why it is incumbent upon me as a man in this house to use my voice to wholeheartedly support this issue.

I will not be supporting amendments that seek to carve out the ability for silent prayer, and that is for a couple of reasons; one is that it is very clear in my mind that the carve out of silent prayer is a backhanded and subversive way to codify the right to harass women seeking health care. As the local member, I know the streets around this clinic pretty well. On my count, there are eight Christian churches within a 750-metre radius of this clinic, so if the question is about somewhere to pray I am sure that one of those churches would gladly open their doors in the free and democratic exercise of faith in this country.

A doorstep of an abortion clinic is not the place where I, who was raised a Christian and proudly define myself as a Catholic man, would stand to express my faith. My faith is entirely different from the abomination that we see on the steps of these abortion clinics. I congratulate those women who have stood and continue to fight this issue. I wish we were not having to fight it. I wish I was not standing here to lend my voice of support, but I will and always will.

Mr PATTERSON (Morphett) (11:23): I also acknowledge from the outset of this debate that, anytime in parliament we speak and discuss matters relating to abortion, many people have strongly held views. I received correspondence both for and against this bill in my electorate office and have answered those inquiries.

It is also useful to point out to them that this debate is not about whether abortion should or should not occur. That has been legal under certain circumstances in South Australia since legislation was passed in 1969. As part of that legislation, South Australian residents up to 23 weeks pregnant can have an early medication or surgical abortion in South Australia. That means that people attend pharmacies and public hospitals here in South Australia amongst many other patients, so they are not able to be identified. Where the issue has raised its head, most unfortunately, is at the Pregnancy Advisory Centre, and that is one of the matters this bill seeks to address.

Previous members have spoken of the very difficult and sometimes heartbreaking personal decisions that principally women, but oftentimes also their partners, have to make about whether to have an abortion. In just about every single case, this decision is not a decision taken lightly. In fact, it is an emotional decision that I acknowledge can cause anxiety and grief not only at the time but also long afterwards.

Under these circumstances, I am opposed to behaviour which is threatening, intimidating or harassing towards a person who is entering or leaving a protected premises as defined in this bill, whether they be workers or women or their partners attending the facility. I understand—not through lived experience but through having it explained to me as a local MP—that this behaviour can cause increased distress and anxiety. I have found that most people in the community are of the same view; some of those people may not be in favour of abortions but certainly understand that this behaviour increases anxiety.

I also acknowledge that in prohibiting certain behaviours, this bill will limit the ability of some individuals to express themselves. I am mindful of making decisions on restricting the right to protest. To my way of thinking, this matter is distinct from those rights of public assembly to communicate politically and that we should all seek to protect; rather, it becomes a restriction on the ability to communicate to someone else about a lawful, moral decision made by that individual.

If people are protesting against abortion, it is my belief that it is better to send the message to parliamentarians and the public more broadly and seek to make change via a peaceful, respectful protest—for example, on the steps of parliament—rather than get in the way of, or harass, or cause anxiety to individuals who are making a very difficult decision.

A previous version of this bill placed limits on all forms of communication within a health access zone, which would have had much more serious implications on freedom of speech. These were restrictions that I could not have supported. In terms of what is not classified as prohibited behaviour in a health access zone, the Attorney-General stated in her contribution that people would not be prevented from undertaking silent prayer as a consequence of this amendment bill.

The Minister for Environment and Water seeks to provide certainty in order to avoid any doubt in section 48C by inserting a new paragraph (c) in subsection (2), which would allow people to engage in silent prayer within a health access zone. This would enable people to peacefully and silently provide prayer for individuals as they enter or leave a protected premises. This provides the opportunity for people who feel a heartfelt desire to assist and express their faith.

I support this amended version of the bill, should it get up, which helps provide a balance that is of comfort to many people in our community—a comfort to those who would like to express their faith and care through silent prayer, while at the same time allowing people to enter and leave protected premises with dignity. It ensures that those people—principally women—accessing a legal medical procedure can do so safely and free of additional distress.

Dr CLOSE (Port Adelaide—Deputy Leader of the Opposition) (11:28): I wish to speak very briefly because, as is always the frustration with private members' business, the more we all speak, the less likely we are to actually effect change. I put on record my earnest support for this legislation and for the intent of the legislation. I look forward to further reform in abortion because, although the member for Morphett refers to abortion being legal, it is in fact still in the criminal code and in my view does not belong there.

I wish to put on record that I do not believe that the act of anyone seeking to influence a woman's choice about her pregnancy, and seeking to do that outside the place where difficult decisions are being made and difficult actions are being undertaken, is in any way legitimate freedom of speech. Freedom of speech exists in being able to express your views to the public generally—no problem—but to use that as a form of intimidation is not acceptable.

For me, that translates also to this notion of silent prayer. I do not know what goes on inside people's heads. I cannot say if they are communicating with God or not, and I cannot say whether they are attempting to communicate with God or not, but I can say that if people who are opposed to abortion are sitting and lining a street where a woman must walk past in order to go through one of the most difficult experiences of her life that woman will experience that as intimidation and threat.

I see no reason to excuse it on the basis of a claim to faith. If one has faith, one can communicate with one's god in any location. It does not exempt you from breaking the law. It is not acceptable for an animal rights activist who breaks into a facility and prays to say, 'I'm allowed to be here because I'm praying.' It is not acceptable for someone to break into my house and commit break and enter but say, 'I'm allowed to do that because I'm praying.' The importance of maintaining the respect and dignity for women who are going through this experience is paramount. I therefore will not be falling for the amendment being proposed by the member for Black, the Minister for Environment and Water.

I am open to hearing more about the question of the role of journalists. No-one wants to suppress the right of journalists to stand outside health facilities and report on matters that are of interest to the public, nor does anyone want to see that used by people who are seeking to influence the woman who is walking through the door in a way that dissuades her from making a decision that is hers to make. Therefore, at the moment I am leaning towards supporting the member for Heysen's amendment, but I am interested in making sure that we are preserving the rights of journalists to report legitimately on legitimate matters of public interest, rather than seeking to influence or shame women.

I thank the members who are going to be voting in favour of this and I respect those who choose not to. That is the right we have in a conscience vote and I hope that we are able to proceed with that hastily.

Mr ODENWALDER (Elizabeth) (11:31): I rise to make a very brief contribution. I do not want to delay the passage of this bill nor, indeed, any of the other important matters before us today. This is one of those odd times when we have to find a balance between freedoms and rights on both sides, and I think both those arguments have been very well expressed over the last few weeks during this debate. I think particularly of the member for West Torrens' contribution in detailing the Labor Party's particular history with freedom of association and freedom of protest, and I think that is a right and a freedom we should always fight jealously for.

Ultimately, in the balance we are talking about today, my vote will come down on the side of the women who are seeking to make these difficult decisions and seeking to implement these difficult decisions for their own health care and for their own lives. I do support this bill. It has not been difficult and I do respect that there are very strongly held views on both sides.

I echo the sentiments of the member for Morphett that this is not a bill about abortion; this is about women's safe and free access to legally acquirable health care and advice. I think we should support that. On balance, the measures in this bill provide that, and the freedoms they limit are worth the rights they confer on these women.

For the same reason, I also do not support the Minister for Environment's amendment to allow an exemption for silent prayer for all the arguments that have been put today. I obviously support people's right to prayer and right to their faith, but I agree entirely with the observations that have been made that if you believe in prayer it can be made anywhere and is as effective in your own home or in your church as it is on the front steps of a clinic.

Again, like the deputy leader, I am unclear entirely how the member for Heysen's amendments will affect this legislation, but I look forward to that debate in the committee stage. Other than that, I support the bill.

Mr MURRAY (Davenport) (11:34): I rise to briefly put on the record my views and the views expressed to me by members of my community in regard to this bill. I reiterate the point of view that this is not a debate about abortion. This is primarily a debate about a balance of rights, and I make it very clear that to me primacy must go to the right of privacy for people accessing what is a legal service. The right of people to do so free of vociferous and objectionable behaviour is, to me, the primary issue we need to focus on.

I am concerned about freedom of expression, and I reiterate and endorse some salient parts of the view of my colleague the member for Cheltenham in terms of our viewpoints, our cultural backgrounds, etc., but again this is not about whether we do or do not believe vis-a-vis abortion. It is primarily about balancing the rights of women who are seeking to access these services with the freedom of expression and, similarly, the freedom of the press.

The balance we strike during our debate will determine for me where I land in relation to this bill. There has been considerable concern in my community about the need for clarity on the way in which the zones are measured. The bill literally reads as if you have, for example, one foot and one arm inside an access zone, then you are deemed to be in it and you are up for $10,000. So it is very, very important that we provide clarity. For example, at the Flinders Medical Centre in particular there is a perception in the community that that whole precinct will be off limits, etc., and there is a determination on the part of many people to have that clarified.

I am particularly concerned about legislation that effectively bans a particular point of view. I note that the legislation enables protests of any sort on a topic other than abortion. It would therefore be quite permissible under the legislation, by way of example, to have a protest mounted, for argument's sake, on the subject of climate change and pillorying and/or criticising those who have used fossil fuel who arrive at the location of this facility. That may seem trite, but the point is that that can be, in my view, an alternative way of providing distress, harassment, etc. I think banning one point of view but enabling conflict and vociferous expression of protest, ostensibly on another subject, is a dangerous path for us to tread.

Similarly, I am opposed to carving out exemptions for so-called freedom of the press, if for no other reason than I think we will find a whole lot of amateur journalists attending the zones—none of them journalists in the strict sense of the word. Again, if we look at the legislation it is fairly relaxed in the way it prescribes what a journalist is. I am, I reiterate, opposed to any form of vociferous, objectionable and in-your-face protests against women accessing these services. As a result, I am supportive of the removal of exemption that is foreshadowed by the member for Heysen.

On balance, if we are to ensure the provision of the right to protest in these zones about a subject other than abortion, I think it is reasonable in terms of redressing that imbalance against people holding a particular point of view. It is not an unreasonable balance to afford people at least the right to be there and pray silently. In the event that there is no support for people being in the zone to pray silently, I cannot see how it is possible to allow any form of protest in these zones against these women for any reason whatsoever. Either we are providing them with privacy or we are not.

As I said, I will determine my final position depending on where we get to with some of those discussions. In so saying, I conclude my remarks.

Mr DULUK (Waite) (11:39): I also rise to speak on the Health Care (Safe Access) Amendment Bill. As many members have already canvassed in this house, we have all received representations from our constituents both for and against the bill as moved by the member for Hurtle Vale. I would like to acknowledge her strong interest in these areas and also the importance for parliament to continue to have these debates because they are very important. Indeed, they go to the heart of why we are here and also why we are here to represent our constituents.

I would like to foreshadow that if this bill passes at second reading, which I expect it to, I will be supporting the amendments as moved by the member for Black in terms of the provision of silent prayer in this legislation. There is a very important debate to be had in society around freedoms, freedom of speech, and of course fundamental freedoms of people to access services that are legal in a non-divisive manner as well, and how we balance that as a parliament versus the basic freedom of association and respectful and peaceful protest.

I know the Attorney-General in her remarks has stated that silent prayer will not be prohibited under this legislation and, as the member for Black said in foreshadowing the movement of his amendment, by enshrining that into this legislation we are ensuring that those assumptions are indeed correct and form part of this legislation. Certainly, at the committee stage I will be supporting the member for Black's amendments.

Mr PICTON (Kaurna) (11:41): I rise to indicate my support for this bill. I thank the people who have contacted me on both sides of the debate for their genuinely held beliefs. Personally, I have always supported a woman's right to choose and I believe that the majority of my electorate do. I also support the need to provide unobstructed access to health services. I understand that this bill involves restrictions; however, on balance, I believe that they are needed for sound reasons.

At its heart, and in its drafting, this bill is about preventing threats, preventing intimidation, preventing harassment and preventing obstruction of those women accessing these services. No threats or intimidation should apply to people in the zone, and I will take that approach at the committee stage as well if the bill is supported.

My personal view of the drafting of this legislation as presented is that silent prayer could occur as long as it does not intimidate, threaten or harass, which are the key tenets of this legislation. Hence, I do not believe that the member for Black's amendment is required or should be supported. I believe it is best that the protection against harassment is very clear in the law.

I indicate that I also therefore agree with the member for Heysen and his proposed amendments, and I agree that if those sections are removed that would provide additional clarity in regard to the protections. I thank people for raising their divergent views. I think it is welcome that we can have this debate, but on balance I will be supporting the legislation.

The Hon. A. PICCOLO (Light) (11:42): I will make a brief contribution. The issue has been well covered by a number of speakers both for and against the proposal. My understanding is that the main objective of this bill is to ensure the safety, wellbeing, privacy and dignity of people accessing abortion services, as well as health professionals and other people providing abortion services. I do not have a difficulty with that principle at all; in fact, in a civil society I think that is quite a reasonable expectation.

I would like to point out that in this clause there are two fundamental principles. There is the principle about a person's right to access services. Debate on this and other matters in the future should not be limited to health services. There is a whole range of other services that people have a right to access, if they are lawful, and it is important that we remember that in this debate and future debates. Every time we restrict these rights we then open the door for other rights to be also restricted in the future, and that brings me to my second point.

The second principle in this particular clause, which is very important, is effectively the right of assembly. The right of assembly is a fundamental principle in a democratic society, and that right of assembly should also not prohibit other people from exercising their rights as human beings in our society. Therefore, we need to find an appropriate balance.

I am also aware, from the years I have been on this planet, that a number of workers have also had their rights to freely access their workplace affected by protests. It would also be fair to say that a number of people on this side of the chamber may have participated in that behaviour and also actually encouraged that behaviour if they did not agree with those workers going to a certain place of work. That does concern me a bit.

If we are saying that a group of workers should be able to go to their workplace unhindered, no problem. I think it is a fundamental right that people should be able to go to their workplace—whatever the workplace is—unhindered, assuming that the activity is lawful. In this bill we are seeking to carve out a restriction on that right of assembly, and my concern is that passing such proposals opens it up to using the same argument in other workplaces in the future.

Where do we draw the line about that workplace? Is it based on whether or not you think the activities are appropriate? That is a very grey area, and we should think twice about that. Workers do have an absolute right to go to their workplace without intimidation, etc. Workers in health centres have that right as well, and I support that. However, let us not pretend that we do not support contrary behaviour in other places. We have, and we still do; we see it on the television quite regularly. That does puzzle and worry me.

Another concern—and I hope this will be clarified in the committee stage—is that we have heard two views in this bill about the so-called right to silent prayer. Personally I have difficulty with that language, 'the right to prayer'. I do not think anyone has a right to religion above other beliefs. The right to any belief should be protected by law, whether it is a religious belief or a non-religious belief. I do not have a difficulty with that; they should be protected.

I think there are some difficulties with carving out a protection for a 'right to prayer', which in this context may be interpreted as a religious belief. However, having said that, on this issue today I have heard the view expressed that the bill as it stands does provide for the right to silent prayer, but I have also heard people say that they do not support the right to silent prayer. That is a fair position, but my concern is whether or not the bill actually enshrines that. If it does not, will those people who do not believe in the right to prayer move amendments to remove it?

It cannot be both ways. You cannot have a bill that says, yes, it is implied in the bill that you can do it, and therefore you oppose the amendment to clarify that, but at the same time say if that is the case—as I understand the Attorney-General has advised—then you cannot stand here and support the bill without carving that out and removing it. It has to be one or the other.

Based on those questions, which will be answered in the committee stage, I indicate that, while I am not happy with the wording, my preference is to support the minister's amendment for that reason, because it does clarify it. If people want to clarify it, they should clarify it by supporting that amendment or clarify it by moving an amendment to remove it. At the moment it seems that we have two points of view in this debate which oppose each other. It cannot be both, and we need to clarify that. With those comments, I indicate I will support the bill and that I am more than likely to support the amendment put by the minister as well.

Ms COOK (Hurtle Vale) (11:48): I thank all members for their contributions, whether in support or providing alternative views, and look forward to a respectful committee stage. I hope we will not be held up for unnecessary reasons.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. A. PICCOLO: I would like to ask the question I flagged in my second reading speech. Does the definition of 'prohibited behaviour' include silent prayer?

Ms COOK: Any behaviour within the zone that intimidates, harasses or obstructs people attending the premises would be within that scope. No particular other behaviours, other than those intended to cause harm to the people attending the premises, is included in the scope.

The Hon. A. PICCOLO: Just to clarify, if a person was in silent prayer—not obstructing, not intimidating, etc., all the things which the member has already mentioned—that would not constitute 'prohibited behaviour'?

Ms COOK: I would question why anybody needs to loiter within 150 metres of a premises where a healthcare procedure is legally being accessed, but any behaviours being undertaken within that zone will be open to interpretation by the police. If they believe that that person is harassing, obstructing, intimidating or causing harm to the person, that person would be putting themselves at risk. I would suggest that there are millions of hectares of land outside the 150 metres where you can silently pray or do whatever you wish to do. As my mother said, 'God will hear you everywhere.'

Mr DULUK: A point of clarification for the member for Hurtle Vale: in relation to what the member for Light is referring to, is loitering deemed to be silent prayer?

Ms COOK: It is a case-by-case basis, but if the person who is present within the 150-metre zone has designs to intimidate, harass or threaten—imagine if it was your sister or your aunty—then you would consider that to be one of those other behaviours.

Mr COWDREY: Just to be clear, is the test based on the intent of the individual who is within that zone or the person entering the zone and their understanding of that behaviour?

Ms COOK: To clarify, the 'prohibitive behaviour' definition means to threaten, intimidate or harass another person, or obstruct another person approaching, entering or leaving protected premises. It is clearly defined in here, as well as the recording, etc., of images of people; so, that is then to be interpreted under the law. That is the definition. If you are doing any behaviour that causes this, then you put yourself at risk.

The Hon. D.J. SPEIRS: My question is in terms of the occurrence of silent prayer. Who would undertake that interpretation of one of those things that the member for Hurtle Vale mentions, that is, intimidating, threatening, etc? Whose job would it be under this legislation to make that interpretation?

Ms COOK: I think I have already said that, and it would be the police. It is a criminal activity. It is the police.

Mr COWDREY: My question is with regard to the local context of the Woodville area. Obviously, a range of council by-laws are in place at the moment which, in some ways, address some of the concerns regarding this issue from one side of the argument. From a practical perspective, what is the operational change that would be seen from this law? For instance, at the moment those groups that intend being outside that premises have to apply through the council to get a permit to be present in that area.

With the inclusion, I guess, of silent prayer, would you envisage that those people who have applied for a permit would then be able to enter that area, within which they are currently not permitted, if all they are engaging in is silent prayer?

Ms COOK: I think it is pretty clear. I am not sure where the misunderstanding would be. People are free to undertake activities outside the 150 metres. They are not going to be undertaking those activities that are deemed to harass, threaten, intimidate, provoke, whatever, people within that 150 metres. I think it is pretty clear.

The Hon. D.J. SPEIRS: It is certainly not clear, which is why we are asking these questions as parliamentarians. In her second reading speech, the Attorney-General of South Australia said that her view was that silent prayer would be allowed in these safe zones. My question to the member is: is it the view of the member for Hurtle Vale that silent prayer undertaken in a respectful, silent way would be allowed within these zones, or is her view contrary to the Attorney-General's?

Ms COOK: I am not a spokesperson for the Attorney-General, but what I will say again is that any behaviour—whether it is camping, cooking a barbecue, or whatever—that is designed to or is actually threatening, intimidating, provoking or harassing people attending a legal healthcare premises for the procedure of an abortion or to care for those people, then the interpretation or the judgement is an objective one by the police about what that behaviour is actually doing.

Mr MURRAY: While we are dealing with definitions, I have a question with respect to protected premises. Perhaps the best example of the concern I have and many of my constituents have is if I use Woodville as an example. I am keen to understand where the 150 metres starts and ends at the Woodville site. How is it measured? Is it from the front door, is it from the perimeter, is it from the building in which the abortions are conducted, or is it the site in its totality? I will provide an example to the member for Hurtle Vale. Woodville sits on a 1.6 hectare site. The site is 141 by roughly 114 metres in size.

Ms Cook: I know it is.

Mr MURRAY: Yes. The problem is it is all on one title, so it is not divisible in any legal sense as I understand it. My question is: are we measuring it from the front door? Are we measuring it from the perimeter? Where do the 150 metres start?

Ms COOK: The perimeter.

Mr MURRAY: The perimeter being the natural title; is that right?

Ms COOK: Yes, from the edge of the property. I cannot be more clear, I do not think. I am happy to take you and show you. But it is from the perimeter of the property.

Mr MURRAY: For clarity then, that means by way of example with my own electorate that the entire perimeter of Flinders Medical Centre is the operative boundary, not just inside Flinders itself but the entire perimeter including bus stations and the like which are within 150 metres.

Ms COOK: Thanks for your last question. It is the perimeter of the premises, the perimeter of the property, the edge boundary.

Mr COWDREY: I want to go back to the question again of 'intent' versus 'perceived' in terms of the behaviours that have been outlined as prohibited under the bill. What one person's perception of offensive behaviour is or what one person's interpretation of silent prayer is, whether somebody would be offended by that or not would be different depending on the person walking in the door.

So if we are leaving this to police discretion to make an interpretation based on that, are we effectively asking the person who has taken offence to the behaviour to report to police, or will the police be proactively determining behaviour based on these criteria and then making an assessment? I think this is absolutely crucial to this that we get this part right for the direction of SAPOL and for the clarity of behaviours in the area.

Ms COOK: Thanks for your thoughtful question. I refer you to the Summary Offences Act. These interpretations are undertaken all of the time by our trusted police officers who then use the test to whether this is actually harassing or causing harm under the definitions in the act and then ultimately it could be challenged and then it is up to the judiciary. That is how our laws operate. I think that might be his last question.

The ACTING CHAIR (Mr Pederick): You are going to have to find a friend after this one but, seeing it is a conscience vote, I will let you go, member for Colton.

Mr COWDREY: The judiciary do rely in some circumstances on the interpretation of parliament and the view that we put forward, so it is up to us to at least provide some level of clarity of what we would determine that to be here today.

Ms COOK: The intention really is irrelevant. It is actually what is reasonably likely to cause distress and anxiety to these vulnerable people attending. We all surely believe in this.

Mr PATTERSON: My question is in regard to the definition of 'public area'. From that, I assume that someone who buys a house—and we are not necessarily talking about just one specific site in Woodville but, as the member for Davenport said, the Flinders Medical Centre or whatever. If it is a private residence, if they so wish, are they able to potentially have behaviour that might be prohibited, but it is occurring on their private property?

Ms COOK: Sorry, could you repeat that little bit? Are you talking about within the 150-metre perimeter?

Mr PATTERSON: So, for example, either a protected premises now or one in the future that opens up. There is a private house in there, people have bought the house privately. They may undertake behaviour that, in this sense, is threatening, intimidating or harassing. But because it is on private property, would that be prohibited as part of this?

Ms COOK: I refer you back to other answers. If it is within the zone defined under this act and the behaviour is designed to cause distress or anxiety, then it would be prohibited wherever it occurs within that 150 metres.

Mr PATTERSON: In terms of the definition, it states:

…is entitled to use or that is open to, or used by, the public or a section of the public (whether access is unrestricted or subject to payment of money, membership of a body or otherwise).

Could you clear up what you mean by 'a section of the public'. How big is that? Is that classified as two people? Is it classified as a hundred, a thousand? As an example, would a church potentially be classified as open to a section of the public?

Ms COOK: I will clarify this. If your property is located within the 150 metres and you are within your property doing something—a rain dance or whatever with a kind of T-shirt on—nothing can be done about you within your private property unless you breach the law in terms of what you are doing to other people. In terms of a space, this could be a church or it could be a coffee shop or something. Is that what you are saying?

Mr PATTERSON: Yes, I have moved from private residence to now something that is a bit more open to the public but not just a public council park.

Ms COOK: If you are within the confines of the premises and you are not breaching any other law in terms of what you are doing to people, again it is within a property. It is not out on the streets intimidating, harassing and approaching people. That is different.

The Hon. D.C. VAN HOLST PELLEKAAN: I want to come back to the issue raised by the member for Colton and the Minister for Environment and Water. I have listened very closely to what the member for Hurtle Vale has said. One of the reasons we have this committee phase is so that we can ask some pretty open questions in a less formal environment to try to get a lot of things clarified. The other reason we do this is that not everything can be clarified to the nth degree, and down the track the judiciary will come back to some of this debate and look very closely at what the parliament wanted and specifically at what the proponent of legislation or changes to legislation wanted if it is passed.

I understand that there is a definition about intimidating or harassing or inappropriate behaviour, and I understand that there is an intention that the police would make that judgement if called upon to do so or if they thought of their own volition they would do so, but can I ask you directly: if silent prayer was occurring and it was not causing any harm under the definition of the obstruction zone with regard to intimidation, etc., do you believe that that silent prayer would be allowed under this bill? Is it your intention that that silent prayer within the 150 metres, which does not contravene the definition you have shared with us a few times, would be okay?

Ms COOK: Any presence or behaviour of any kind within the 150-metre zone that does not cause distress or anxiety to other people attending the clinic for the purposes of abortion, whether it be workers or visitors or patients, is okay—any behaviour. If you cause distress or anxiety, or you are there with intent to cause distress or anxiety, then so be it: you are subjected to the law.

There is no reason to carve out one behaviour over another within this act at all. This is a test for all behaviours outside, whatever you are doing. If you are undertaking silent prayer, why on earth do you have to be near a healthcare facility? It is a ridiculous notion, absolutely ridiculous.

People who attend church know they can pray wherever they like; there are the corners of the globe in which to do this. The only reason you would sit and loiter in front of a clinic where a woman, and her family, is at the most vulnerable point in her life is to threaten, intimidate, harass and try to subject that person to change their mind. Any behaviour that causes distress and anxiety is outlawed under this act.

The Hon. D.C. VAN HOLST PELLEKAAN: Chair, I am not trying to go into the judgements or the pros or cons of it, but if I understand the member correctly she is saying that the only reason a person would particulate in silent prayer within that zone around the facility would be to deliberately cause stress or anxiety. Consequently, putting aside the judgements of the police, in her mind, and her intention of the bill, silent prayer of any sort would be expressly forbidden under this bill?

Ms COOK: There is nothing expressly forbidden under this bill except a behaviour that is intended to cause, or actually causes, distress or anxiety.

The Hon. D.C. VAN HOLST PELLEKAAN: I get that because that is what you have said quite a few times—

Ms Cook: Correct—and I will keep saying it.

The Hon. D.C. VAN HOLST PELLEKAAN: And that will be true, but it is not the entire truth. There is more clarification that we need. I think if any one of us checks Hansard what the member said in her second-last answer and what I said in my second-last contribution actually do match. It is clear that the member does not want to give an answer and I respect her choice.

Ms Cook interjecting:

The Hon. D.C. VAN HOLST PELLEKAAN: Sorry?

Ms Cook: Not really; I just don't want anyone there.

The ACTING CHAIR (Mr Pederick): Hang on, one at a time. Just let him keep going.

The Hon. D.C. VAN HOLST PELLEKAAN: I did ask her a question. There is an amendment that is coming or not coming that is based on exactly what we are talking about at the moment. If the member does not want to, or is not in a position to, or thinks it is not appropriate to rule in or rule out silent prayer that does not fall under the definition of the harassment that she shared, then we will deal with the amendment, I am sure.

I am sure it is going to come; it will not come from me. I will ask a question following on from her statement—and I will paraphrase—'Why on earth would anybody loiter and undertake silent prayer unless they had an intention to intimidate or cause harm in other ways?' Would silent prayer that does not intimidate or fall under that definition, in her own mind (because that will be important later) fall within or outside of what would be allowed? I just ask for a really direct answer, not the definition again.

Ms COOK: Thank you. I refer to my previous answer.

Mr SZAKACS: My question is to the member for Hurtle Vale. Member, would it be fair to put it to you that your response in this regard would be that in determining the interpretation of 'harass, intimidate or otherwise' in terms of behaviour within an access zone, parliament and the court would be taken to the objects of the act?

The objects of the act in this case are the protection of the safety, wellbeing, privacy and dignity of people accessing health care. Would the interpretation of the behaviour in that zone be taken back to the objects of the act and whether the behaviour impedes upon the enjoyment of those objects by workers or people seeking health care?

Ms COOK: Thank you for the question: yes.

Progress reported; committee to sit again.

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