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Speech: Health Care (Safe Access) Amendment Bill - 2nd Reading, Committee Stage & Third Reading

The Hon. T.A. FRANKS: I thank those members who have made a contribution this evening to this bill and for their thought and consideration into their positions: the Hon. Ian Hunter, the Hon. Irene Pnevmatikos, the Hon. Mark Parnell, the Hon. Connie Bonaros, the Hon. Clare Scriven, the Hon. Dennis Hood, the Hon. Nicola Centofanti, the Hon. Stephen Wade (Minister for Health and Wellbeing) and the Hon. Rob Lucas (Treasurer and Leader of the Government in this place). It is fair to say there is a variety of opinions in this room. It is fair to say that everyone has given this some thought before we come to this debate before us.

In summing-up, I note that we have a bill before us that reflects the recommendations of the SALRI report. It is a reasonably heavy tome of October 2019 that is an extensive piece of work. I draw members' attention to Part 18—Safe Access Zones. Recommendation 49 states:

SALRI recommends that any new law in South Australia should include safe access zone provisions around premises where abortion services are provided and that the purpose of these provisions is to protect the safety and welfare, and respect the privacy and dignity, of people accessing the services and employees or other persons who need to access those premises in the course of their duties or responsibilities.

Recommendation 50 states:

SALRI recommends that any new law in South Australia should provide that a place will be within the safe access zone of premises at which the service of providing an abortion is ordinarily undertaken if it is in the premises or not more than the prescribed distance from an entrance to the premises.

Recommendation 51 states:

SALRI recommends that any new law in South Australia should provide that the prescribed distance is 150 metres.

Recommendation 52 states:

SALRI recommends that any new law in South Australia should provide that the operation of the safe access zone is not limited to the hours of operation of the premises and should be 24 hours a day and seven days a week, with no exceptions.

Recommendation 53 states:

SALRI recommends that safe access zones should be automatically established by legislation and not be by Ministerial decree.

Recommendation 54 states:

SALRI recommends that a new offence be established in South Australia—

I will repeat that: a new offence be established in South Australia—

to provide that it is an offence to engage in prohibited conduct in the safe access zone for an abortion services premises and 'prohibited conduct' should be defined to mean intimidation, obstruction, impeding access, harassment or other conduct that relates to abortions or could reasonably be perceived as relating to abortions and would be visible or audible to another person entering, leaving or in the premises; and would be reasonably likely to deter a person from entering or leaving, or from requesting, undergoing, performing or assisting in the performance of, an abortion.

Indeed, recommendation 55 states:

SALRI recommends that a new offence should be established in South Australia to provide that it is an offence for a person to make, publish or distribute a restricted recording of another person without the other person's consent and without reasonable excuse. A 'restricted recording' should be defined to mean an audio or visual recording of a person while the person is entering, leaving or in an abortion services premises, and which contains information that identifies, or is likely to lead to the identification of, the person being recorded.

Finally, recommendation 56 states:

SALRI recommends that there should be a maximum penalty of one year's imprisonment and/or an appropriate fine for each of the offences in Recommendations 54 and 55 above.

Far from this being a figment of my imagination, this is the recommendation of the South Australian Law Reform Institute, which was thoroughly researched and well tested, and heard from all opinions on this matter. Indeed, I have not ever heard anyone say that SALRI has it wrong on a majority of the recommendations that they put forward in government bills. It seems to only be when it is those conscience votes that somehow SALRI is not to be listened to or acknowledged.

I do acknowledge the extensive work of SALRI. I obviously have put such a bill before this place before. Indeed, it is almost a year since this place, this council, passed a very similar bill that also—

The Hon. S.G. Wade: More than a year. It was October.

The Hon. T.A. FRANKS: More than a year. Thank you, Minister for Health and Wellbeing. It is more than a year since we passed in this council such a safe access zone protection for those workers and patients, either working in the provision of abortion health care or seeking medical treatment, or those supporting them—their families, their friends, their loved ones.

It provides that 150 metres of respite from protest, specifically protest, because this bill does not, as the Hon. Dennis Hood alluded to in the ACT bill, outlaw all protest. It is very specific. It is that prohibited conduct: intimidation, obstruction, impeding access, harassment. That is what we are talking about here. This bill does not ban silent prayer. What it does ban is the ability for silent prayer to be used to intimidate, obstruct, impede or harass. That will be the test of this law.

The idea that somehow this law is not necessary because there have been no prosecutions is an incredibly circular argument that I really do not understand. The thing is we do not have a fit-for-purpose law, currently. The council around the Woodville PAC has had to retrofit and use its by-laws to address a situation that causes workplace stress to those working in that healthcare centre, that indeed provides an ongoing annoyance and hindrance to the residents around that healthcare service. I can vouch for many people I know who have either been supporting somebody or seeking abortion health care from that service, who have been harassed, who have felt that they were being shamed or watched, or that their dignity and privacy were being offended.

In fact, it is often not the patient, because certainly the patient is in no state, usually, to deal with those people, who probably do mean no harm. The patients, the supporters of the patients and the healthcare workers themselves tell me that that is not the way that they feel when they are watched, when they are impeded, when there are these protesters who, we all agree, do protest outside abortion healthcare services in South Australia. They feel that they need more protection than is currently afforded them.

Given the amount of abortion stigma and shame that is put on women, particularly, in our society, why on earth would you think that they are going to come out and call for these laws to protect them? They simply have a difficult experience made far more difficult on that day by our failure as a parliament to do what every other state and territory, except for WA, has so far done and ensure safe access zones around abortion health care.

I note that in the last half hour the Western Australian parliament has passed a safe access zone abortion healthcare bill through its lower house, so we could actually, finally, not be the last for such a reform, but we will see. Time will tell this evening whether we get through this debate tonight. I have to say that the idea that this bill is unnecessary is a little disingenuous, when we know that the SALRI report has recommended it and yet nobody who got up and spoke saying that this bill was not necessary mentioned the SALRI report.

The idea that people do not feel threatened, intimidated and harassed is certainly not my experience of those constituents I have spoken to; those workers in these healthcare services that I have spoken to; their professional associations, whether it is the AMA, the HSU or the ANMF and the like; or indeed, the very patients themselves. And I am here to say that human rights are universal and indivisible. You cannot cherrypick them. There are other rights at stake here when we debate this tonight. There is a right to health. There is a right to a safe workplace. There is a right to privacy. There is a right to respect for their decision.

While people have waxed lyrical about the right of freedom of speech—the free speech rights that are apparently trampled upon by this bill—I will note that is also disingenuous. We do not get to say whatever we like whenever we want to. In this place—the home of democracy and freedom of speech—I am afforded parliamentary privilege right now while I speak. I am also afforded the protection, through the President, from being harangued, harassed, intimidated and prevented from speaking when it is my turn.

I also note there are people in the gallery. Some would be supportive of this bill, some would be opposed to this bill. They do not have the right right now to speak at the microphone as I am doing, and should they do so, they would be removed from this place. Yet are we saying that this very parliament has trampled and stifled and ended free speech in South Australia? No, we do not, because we balance the responsibilities of free speech with the rights of free speech and indeed respect for dignity and democracy.

I will have more to say on the amendments that have been put up in the committee stage. I am somewhat frustrated that the other place did not debate the bill that this council sent down to it—that we had to start all over again with the member for Hurtle Vale with a bill in the lower house to try to get it through. I watched the extraordinary lengths that people went to to stifle that debate, to limit the time that that bill was given to get to that very respect, indeed, for freedom of speech and the right in this place to have our views noted for the record with the very votes that we carry, which is a real privilege, I have to say, in representing our constituencies.

We will not all agree, but I do think that this place does respect our differences of opinion. What I fear is that should we amend this bill tonight we will see, yet again, the games of the lower house, of the other place, used to not ever see this bill see the light of day and become an act and be assented to.

So I have every sympathy for the Hon. Dennis Hood's amendment, but I will not be supporting it tonight. I do, however, offer to the Hon. Dennis Hood two options. The first: I am happy to either move or support an amendment to the other bill that we will be debating tomorrow, the termination of pregnancy bill, to ensure that in the review clause that already exists within that bill we also look at safe access zones.

Should that bill not pass this council or parliament, I also say I will support or indeed sponsor a private member's bill to affect the same, and I would hope it would pass both of the houses of this parliament with rapid speed, because I think it would be in everyone's interest to see that review clause.

I note, finally, this bill is on those SALRI recommendations, but those SALRI recommendations also drew from the extensive experience in Australia over well over a decade of laws that have been tested—and tested in the High Court, because people who chose to protest outside abortion health care in various other jurisdictions were prepared to cross state boundaries to go and do that, to get arrested, to get it tested in the High Court.

This bill is a very safe option because it actually reflects legislation that has passed those very tests, those tests that have balanced things such as freedom of speech with the right to health care, the right to a safe workplace and the right to have your privacy respected. I look forward to the committee stage.

The Hon. C.M. SCRIVEN: This is for the record, so I am not trying to draw it out, so hopefully the honourable member will just simply answer the question quickly so that it is on the record. Could the mover advise how many times there have been prosecutions in regard to the Pregnancy Advisory Centre for the behaviour that apparently is going to be fixed by this bill?

The Hon. T.A. FRANKS: This bill will create a new offence, so there have been no prosecutions for an offence that does not yet exist, but I imagine there may well be people who seek to test it. However, I note that in the bill you have to really push to get to that point where you are charged with the offence of threatening, intimidating, harassing and impeding somebody's access or other prohibited behaviours.

This idea that somehow this bill is unusual, because the police might ask you to move on if they suspect you are about to commit an offence—it will allow the police the ability to manage this situation in a way that they have been seeking the power to do. The council has had to create a very unwieldy and not-fit-for-purpose permit system to address it. So I suspect that, while there have been no offences at the moment because this fit-for-purpose offence that has been recommended by the SA Law Reform Institute has not existed to this point. The fact that nobody has been charged or found guilty of an offence, or a prosecution that was successful, is an indication that we do need this law to address situations where there have been those tensions, those difficulties.

There has been fracas, arguments, melee and so on that those supporting the patients and the patients themselves have found, getting into heated arguments with the protesters and the like, where this will now provide the police the ability to be able to intervene, de-escalate the situation, ask those creating the offence to the patients, their supporters or the health workers, to move out of the 150-metre safe access zone. Should they not comply with that police direction, then that is when this offence will take effect, and I should imagine that there will be those who come and seek to test it, so potentially we will have a prosecution in the next year or so.

The Hon. C.M. SCRIVEN: I am not sure if the member misheard. My question was: how many times have been there been prosecutions in regard to the behaviour that this is allegedly going to fix? I did not refer to any particular offence.

The Hon. T.A. FRANKS: I did understand your question. This creates an offence that will be able to be fit for purpose for this behaviour.

The Hon. C.M. SCRIVEN: I draw the member's attention to Summary Offences Act, which defines disorderly or offensive behaviour to include 'threatening, abusive or insulting'. How many attempted prosecutions have there been in relation to the Pregnancy Advisory Centre at Woodville?

The Hon. T.A. FRANKS: Those are not the subject of this bill. This bill creates a new offence. If the honourable member wishes to talk about the Summary Offences Act or the Criminal Law Consolidation Act, the appropriate place would be when we debate bills with regard to that, and then you might ask those questions of the Attorney-General.

The Hon. C.M. SCRIVEN: It is a little interesting, given that the member was talking about other members being disingenuous. The simple question is in regard to the attempted prosecutions at the Pregnancy Advisory Centre, and that is why it is relevant to this bill, because this is the reason the member is saying that there is no fit-for-purpose offence currently in existence, yet there appears to be one that talks about threatening, abusive or insulting behaviour. How many attempted prosecutions have there been for the behaviour outside of the Pregnancy Advisory Centre? That is the question.

The Hon. T.A. FRANKS: I do not have that information to hand, so if the honourable member would be convinced to change her vote, should I undertake to get that information to her by the third reading, perhaps we could dig up the archives, but I am pretty sure that actually no matter what I say right now is not going to change your vote, the Hon. Ms Scriven.

The Hon. S.G. WADE: On the assertion that base criminal laws and summary offences laws are sufficient to deal with these sorts of issues, is the member able to advise whether any other state or territory has needed to have specific provisions in relation to health care access to protect access?

The Hon. T.A. FRANKS: Every other state and territory of Australia, with the exception of WA, has a law fit to create a safe access zone outside abortion health care of up to 150 metres, as is in this legislation. Each and every one of those jurisdictions in Australia—and I note that in WA the health minister there has introduced a bill that has now passed one chamber of that parliament. Every place in Australia has had, through either government legislation or private members' legislation, protections around abortion health care, because they have all required it.

What I would note—and I raised this the last time, a year and a bit ago, when we discussed this matter—if South Australia is the only jurisdiction in Australia that does not have this protection, those who seek to protest outside abortion health care will come to South Australia to protest outside the abortion health care services here. We know that from the High Court experience. We know that the people who seek to protest to stop abortions taking place in lawful healthcare services in Australia will travel a very long way to do so. South Australia, if it were to be the only jurisdiction not to have such a law, would be the jurisdiction where all of those who sought to protest abortion would come.

The Hon. C.M. SCRIVEN: I would just like to place on the record my understanding is there was one person who travelled from Tasmania into another state—I believe it was Tasmania. However, my question is in regard to the member's frequent reference to the SALRI report. From my reading of that report, I cannot see any reference by the authors of the report and those who were involved in that investigation in actually attempting to talk with women who had been offered and received assistance from people outside the abortion centres, such as a number of women who I mentioned in my second reading contribution. Can the member tell me whether there is something that I have missed in the report in regard to reaching out to those women to find out the assistance they received and how they would be affected if this bill was to proceed?

The Hon. T.A. FRANKS: I would actually note, despite what the Hon. Clare Scriven just informed the council, that both of the High Court challenges tested the very laws on which we are now basing our bill that we are currently discussing. In both of those situations people travelled over state borders to protest in those two jurisdictions. So there is at least—

The Hon. C.M. Scriven: How many people?

The Hon. T.A. FRANKS: You only said one, so there is more than one.

The Hon. C.M. Scriven: Yes, I think the other one actually moved to that state.

The Hon. T.A. FRANKS: Oh, they moved to the state! Even better!

The CHAIR: Order! We are not having a conversation here.

Members interjecting:

The CHAIR: Order! The Hon. Tammy Franks has the call. We will not have a conversation across the benches.

The Hon. T.A. FRANKS: I think the Hon. Clare Scriven asked me to explain to her a document that she read from the Castan Centre for Human Rights Law. I did not refer to that document; she did. If she does not comprehend it, that is her concern, and it is nothing to do with this particular discussion that we are having about clause 1. I do not understand why I am being asked about a document by the Monash University's Castan Centre for Human Rights Law and what it might mean.

Members interjecting:

The Hon. T.A. FRANKS: Oh, the SALRI report. You will have to be a bit clearer when you say which report, because I could not tell which one you were referring to. Could you ask the question again, if you are referring to the SALRI report?

The Hon. C.M. SCRIVEN: Certainly. What indications are there from the SALRI report that they reached out to women such as those who had received assistance outside abortion centres? I referred to some of the examples I used in my second reading contribution as an example of those women who have found it most beneficial to have that assistance offered outside abortion clinics.

The Hon. T.A. FRANKS: Thank you for the clarification, because I did not hear which report you were referring to in your original question. The SALRI consultation was actually an open process available to all people, not just in South Australia but, indeed, Australia and the world. Everyone was able to make a submission to it.

The Hon. C.M. SCRIVEN: Being open to everyone is quite different from actually seeking out the experiences of people who have benefitted. I think I will just leave that on the record.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. D.G.E. HOOD: I have a question on clause 4, new section 48E. New subsections (1) and (2) are of particular interest to me and I did outline them in my second reading contribution. It really comes down to the issue of the wording of how a police officer is to gauge the offence. It states:

(1) A police officer may, if the police officer reasonably suspects that a person has engaged, or is about to engage, in prohibited behaviour in a health access zone, direct the person to immediately leave the health access zone.

My question to the mover or to the minister—whomever is the right person to reply—is that this is a difficult issue, so how is that police officer supposed to reach a point of genuinely understanding if someone is about to do something? There may be times when that is appropriate, when you can judge or it seems likely that someone is about to do something, but I guess the point I am making is it is incredibly tenuous.

It really comes down to the individual judgement of that police officer, which may be perfect judgement or could be highly imperfect judgement. How does that particular phrase sit with either the mover, the minister or whomever the person I am asking this question to, and how do they see it holding up and being worked in practice?

The Hon. T.A. FRANKS: Thank you to the honourable member for the question. The first thing I did mean to add in my summary comments is we do entrust police with quite extraordinary powers and we do expect them to use their judgement. We are certainly not empowering them here to arrest somebody for the suspicion that they are about to engage. We give them the power to ask that person to leave the area and to move that person on if they have that suspicion. It does not in and of itself lead to a charge or arrest.

What does lead to this offence coming into play is then that person refusing to comply with the direction of the police officer. Indeed, it is a far less powerful position than that we charge police officers with every single weekend on Hindley Street. We have declared public precincts in this state where, indeed, the police officer does not even have to imagine that someone is going to engage in a prohibited behaviour but they have the ability to move them on, kick them out for days at a time and, indeed, have quite extensive and significant other powers that we do not often afford people. We do so because we have seen that that area is an area where the police need those extra powers.

This 150-metre safe access zone around abortion health care is, if the council supports it tonight, an area in which we believe we can trust the police to fulfil their duties, that significant power, with that judgement that we anticipate they will have. But, certainly, should the police not exercise their authority appropriately, it would not stand up in a court, so that is the balance we make here in terms of protecting the workers and the patients and those who support them.

The Hon. D.G.E. HOOD: I thank the member for her responses. I think that is exactly the crux of the issue for me. I do not want to put words into the honourable member's mouth but I think she said that in the case where it was not interpreted or was not used appropriately, it would be thrown out of court. Does that not therefore suggest, and I would like the member to respond if she is in agreement with this, that we acknowledge, or those supporting this at least would acknowledge, that clearly this is not absolutely crystal clear and that there is potential, as there may be in other circumstances—I agree, with the Hindley Street example; it is a good example. It may well be true in those examples as well but there is the possibility under these circumstances for it to be misused.

Whatever law we make, that sits uncomfortably with me. There is a high level of discretion, I guess is the point I am trying to make, with the individual police officer, who may well be antagonistic to these people at the site, for example, for whatever reason. They may be completely supportive of their view as well. That is entirely possible. But in the circumstance where they are antagonistic to that view, I think this interpretation creates a situation where that police officer has an inordinate amount of power and potentially can create a situation where these individuals' liberties are infringed. That is the point I am making. I wonder what the member would say to that.

The Hon. T.A. Franks: The minister seems very keen to make a contribution.

The CHAIR: The honourable minister.

The Hon. S.G. WADE: I am happy to defer to the member but the point I want to make is to reiterate the point that the honourable member made, which was that this parliament continually gives police significant discretionary powers, whether it is drug offences, whether it is the right to inspect a vehicle in relation to road traffic offences. We give police very significant discretions. They are not clear-cut and they are often challenged. Day after day after day, police have to account for themselves in the courts.

That does not mean that the parliament does not give police powers where it is not clear-cut. We trust police to make their best efforts. We rely on the courts to curb them when they exceed. I believe this is another example of appropriate police discretion in a very important area of protecting both—I commend the honourable member for continually referring to the rights of staff. I employ 44,000 staff right around South Australia and the staff at the Pregnancy Advisory Centre, like any other healthcare staff, have the right to come to work without being intimidated by protestors.

The Hon. T.A. FRANKS: I wish to add to that. There are a few things and one is that we are not implementing mandatory sentencing here; we are not having that sort of approach. I understand where the honourable member is coming from in terms of the significant powers that we give the police. We allow this policing by community consent but where you have concerns about how a police officer might use their powers, the remedy there is not actually to give them the powers in the first place, it is to not have the police investigating police where there are complaints of wrongdoing, and to have independent complaints and scrutiny on that process. Certainly, that is a much bigger discussion than the one that we are currently having.

The Hon. C.M. SCRIVEN: For clarification—and I appreciate that we had this conversation when we debated a similar bill but just for the record—section 48F creates an offence to publish or distribute a recording. 'A person must not, without the consent of another person, publish or distribute a recording of a person approaching, entering or leaving protected premises if the recording contains information that identifies or is likely to identify,' etc.

I just wanted clarification from the honourable member that if someone is within the 150 metres, if they are filming themselves and someone else comes into that camera shot without the first person's inclination or consent or whatever, is it envisaged that that person could potentially be in breach of this provision or is it the case that they had no intention to record another person and therefore they would not be in breach?

The Hon. T.A. FRANKS: I note that the full title of 48F is 'Offence to publish or distribute recording', not just to record but to publish or distribute those recordings. Indeed, the person must not, without the consent of the other person, publish or distribute a recording of a person approaching, entering or leaving protected premises if that identifies the person or is likely to identify the person entering those protected premises.

Should a person be filmed and they have no problem with being identified, there is no issue; should they be filmed and have a problem with being identified, there is an issue. We already have laws that are quite strict around, for example, filming schoolchildren or photographing outside schoolyards, playgrounds and the like. We already have protections where we do respect people's privacy for many good reasons—not just child protection but for others as well.

You do not have the right to go and film people and invade their privacy everywhere in this state. There are quite strict laws around that through various acts, but including the Surveillance Devices Act, so it is simply a nice balance, I think, that respects the right of this person to that privacy and ensuring their dignity and their access to health care without the fear of it being splashed on a social media page to their stigma, shaming and humiliation. Indeed, we do have humiliating and degrading filming laws for that very purpose as well, which were put up by the former Labor government.

The Hon. S.G. WADE: Could I reiterate the points the honourable member made. She made a number of references to privacy-style legislation. We do not have strict privacy legislation in South Australia, but under the Health Care Act we have very strict patient confidentiality provisions. It would be completely incongruous to say that you have to maintain people's confidentiality inside the door but outside the door you can film and publish. I think this is a responsible provision.

The Hon. C.M. SCRIVEN: I do not necessarily have a problem with this provision, but I do want to clarify whether there are any unintended consequences. My thinking is, as far as I am aware, and I am happy to be corrected, that other laws around that usually refer to the purposes for which you are distributing or whatever and not to a particular area. I am happy to be corrected if I am mistaken in that.

Opposite the abortion centre at Woodville, for example, there is a cafe or a restaurant now that has outside chairs. If someone totally unrelated to abortion in any shape or form is sitting there and takes a selfie or films a video of themself going out for their wedding anniversary or whatever it might be, and there are people approaching the clinic, and you naturally put that on Facebook—

The Hon. S.G. Wade: Really? Do you want to?

The Hon. C.M. SCRIVEN: Your own wedding anniversary—

Members interjecting:

The CHAIR: We are not having conversations across the chamber.

The Hon. C.M. SCRIVEN: I think it is not unusual when people go out for an event that they film themselves, either with a video or a photograph, and they post that on social media. This is a public cafe that has outside seating. All I want to know is: are there unintended consequences of this? This is totally unrelated to abortion or the fact that it is an abortion centre in that sense, in that this creates a zone, a geographical area, which as I understand it is unusual in this kind of legislation.

As I said, I do not actually have a problem with this clause in terms of how it applies to people who—not that we have had any evidence of it, although we have asked for it—deliberately film people who are going in for an abortion, even though we have not seen that happen here. My question is nothing to do with that because I support that provision in the sense of not allowing that to happen.

My question, which I think is a reasonable one, is: are there unintended consequences if you are taking a selfie, having a photo and you put it on Facebook because you happen to be within that zone? You might accidentally get someone who is entering the abortion clinic. I just want to know how that would be addressed.

The Hon. T.A. FRANKS: You may accidentally capture them and then it is an invasion of their privacy, so this would account for that and would allow them to ask you to take that down, for example, or give them some rights around their privacy if they are approaching, entering or leaving that protected premises. The example given of sitting in a cafe is not approaching, entering or leaving the protected premises.

The Hon. I.K. HUNTER: To further tease out that hypothetical that has been raised, if I am taking a photograph of myself at a cafe as a selfie and there is an abortion premises across the road 20 or 30 metes away, you are not going to be able to identify the stick figure that is in the background of the picture and you will not, therefore, be captured by this clause because a person would not be identified. However, if you sit at the cafe with an extension lens on trying to capture those people, then you will be. That is the distinction.

The Hon. C.M. SCRIVEN: Certainly, I hope that is the case, as the Hon. Mr Hunter has said. However, I am not sure that it necessarily is when you are on outside seating, the width of a road and someone is approaching. So I am not convinced of that but let's hope it does not occur.

The Hon. F. PANGALLO: I want to pick up on something the health minister said in relation to breaching of privacy that if somebody came out and it just so happened that their photograph had been taken or there was a camera there or whatever that it would be an invasion of their privacy. Is that what you are saying, health minister?

The Hon. S.G. Wade: Do you want to finish your comments?

The Hon. F. PANGALLO: All I wanted to say is: what happened when you had TV cameras and other people filming people coming out of COVID testing clinics without even seeking their consent? Would that have been a breach of their privacy?

The Hon. S.G. WADE: The legislation I was referring to was the Health Care Act at section 93(2) which provides:

…a person engaged or formerly engaged in connection with the operation of this Act—

in other words, healthcare services—

must not disclose personal information relating to a person obtained while so engaged except to the extent that he or she may be authorised or required to disclose that information…

The honourable member made a number of comments in relation to privacy related legislation. I was making the point in relation to health care. We have some of the strictest legislation to say you shall not disclose personal information. Primarily, that relates to the internal operations of healthcare services but, to me, it makes logical sense if you cannot identify a person receiving a healthcare service inside the door, why would we not protect their privacy outside the door?

The Hon. F. PANGALLO: I just wanted some clarity on that, health minister, not so much in this matter but in relation to COVID testing where people's privacy would have been breached. You would have been able to identify them. They would have seen themselves lined up, going in to have a test, so would that apply in that case under that section of the act?

The CHAIR: I will call the minister but we have explored this one a great deal. I think we will move on to the amendment after the minister's response.

The Hon. S.G. WADE: I think the Chair is suggesting that I do not need to give account for the Health Care Act. The honourable member is bringing up another bill.

The Hon. C.M. SCRIVEN: I move:

Amendment No 1 [Scriven–1]—

Page 2, lines 18 and 19 [clause 4, inserted section 48B, definition of health access zone, (b)]—Delete 'protected premises' and substitute 'boundary of the property on which the protected premises are situated'

In a letter to members of this place, the Hon. Tammy Franks had a section entitled 'How is a health access zone defined?' She stated:

The health access zone begins at the perimeter of a premises where an abortion is being legally performed and applies to any public area located within a 150 metre radius.

The reason for this amendment is quite simple. As it is clear to members, I do not agree that these exclusion zones are necessary or appropriate. However, if the bill does pass, I think it is entirely reasonable—indeed, I would say it is essential—that it should be absolutely clear where these zones begin and end. It is a fairly simple amendment, simply because I think it is reasonable for people to have clarity. That clarity was provided by the member in a letter and, therefore, it pretty much replicates that, except I think the word we have used is 'boundary' rather than 'perimeter'.

The Hon. I.K. HUNTER: I just want to reiterate, in relation to this amendment and all subsequent amendments, the comment I made in my second reading speech. Without entering into the debate about the merits of the amendments, a successful amendment here tonight will have the effect, I believe, of sending this bill back down to the lower house to go through their processes of private members' legislation, and my fear is that it will disappear and we will be back here next year with a brand-new bill trying to get this thing done all over again.

Whilst there may be meritorious arguments about the amendments, I will not be supporting any of them. I want this bill passed as it came up from the lower house, so we do not have to deal with this issue a third time next year. If there are amendments that are so meritorious, then let them be introduced in a private member's amendment bill at a later stage.

The Hon. C. BONAROS: I was actually about to sit down, but while I am on my feet, can I just echo the same sentiments that were expressed by the Hon. Ian Hunter and agree that I think there is merit to some of the amendments, particularly in relation to the review provisions, but it is not something that I think needs to be dealt with today and to hold up this debate. I am comfortable with the undertakings that have been given by the Hon. Tammy Franks in terms of dealing with those separately to this piece of legislation.

The Hon. I. PNEVMATIKOS: I would like to echo the comments made by the Hon. Ian Hunter and the Hon. Connie Bonaros. Certainly, I will not be supporting any of the amendments. As I indicated in my second reading speech, I think most of the amendments have very little value or merit in terms of being considered in this legislation. We need to pass this bill and start moving on. If there are particular issues that some of the members here want to pursue—I did not know we had such civil libertarians—then I would suggest that they pursue them at another time with their own bill.

The Hon. C.M. SCRIVEN: For the record—maybe the Hon. Mr Hunter can enlighten me—under what circumstances would we be coming back next year with a different bill? Are we intending to prorogue?

The CHAIR: I will go to the Hon. Mr Hunter, because I think he is the one who possibly raised that matter. The Hon. Mr Hunter.

The Hon. I.K. HUNTER: Many of us in the chamber have been in this situation before, where we have pinned our hopes on a bill going down to the lower house, or coming up from the lower house, and in a spirit of compromise adopted amendments, which had to go back to the lower house once again, and because they have an amazingly arcane process down there, which I cannot fathom, in how they deal with private members' legislation, those bills disappear for all time and never get back up to the top of the Notice Paper to be dealt with again.

In that situation, if that happens, if the amendment is successful tonight—and it may well be, depending on the will of the house—then my prediction is that that is exactly what will happen with this bill, and someone in the lower house will have to, once again, for a third time, construct a new bill to bring it back to our attention. I really do not want to see that happen.

The Hon. S.G. WADE: Very briefly, I think the other factor that might feed into the consideration of members is whether matters that are raised in this bill might be more appropriately picked up in the Termination of Pregnancy Bill tomorrow, for example, the review provisions. If we have a review provision in that bill, it does not need to be in this one.

The Hon. T.A. FRANKS: I will not be supporting this amendment. I note that the bill we have before us is something that is in accordance with the SALRI recommendations but is also in accordance with the pieces of legislation interstate that have been tested in the High Court, so the language that we have used in the bill that is before us being debated is language that has been used in those other jurisdictions. I am averse to straying from that language.

We should also not just send this bill off to the Bermuda Triangle of the other place, where legislation strangely disappears, never to be seen again. Potentially, should it even pass that particular test, it would open it up for another High Court challenge or, indeed, difficulties around where boundaries were not necessarily clear on these properties on which the protected premises are situated.

The Hon. D.G.E. HOOD: I will be supporting the amendment. It is a very simple amendment. It really just seeks to define what the boundary is. That is the thrust of this bill: to create an area around which protest or whatever it is cannot actually occur. To have that area clearly defined is actually very important, and I think this amendment serves to clarify that.

I do accept the argument that has been generally made that the other place has strange and convoluted processes by which private members' bills are passed. I accept that. It never ceases to confound me. But I do not accept the argument that that is a good reason not to amend the bill before us.

Our job as legislators is to make the best bill we can, surely. We amend government bills all the time. We amend other private members' bills all the time. I do not see why this would be any different. Surely my fellow legislators would like to see it being the best bill it can be. I think this amendment makes clearer what the boundary should be, and for that reason I think it is a worthwhile addition to the bill, which I disagree with, as I have outlined in my second reading speech. Nonetheless, this will improve it, and for that reason I will support it.

The Hon. T.A. FRANKS: I wish to note that when the Hon. Dennis Hood just made a contribution, he noted that this bill bans protest outside healthcare services providing abortion. I draw his attention to 48C(2), ' To avoid doubt, nothing in this Part prevents a person from' and specifically (b) in that section 'engaging in lawful protest, or otherwise engaging in lawful behaviour, within a health access zone in relation to a matter other than abortion'.

The Hon. D.G.E. HOOD: Last one from me, sir, thank you, just very quickly in response to the Hon. Ms Franks: I agree with her. She is right. I used the wrong word, but I think she understands my intent.

The Hon. I. PNEVMATIKOS: Point of order: there is a man sitting in the gallery. Is that man filming? I certainly want to clarify that issue, because there is no right to filming.

The CHAIR: The only filming in the gallery that is allowed is with my permission, and no-one has sought my permission, not in this evening session. So I make it clear to anybody that there is to be no filming unless there has been an application to me, and I am not aware of that. So there will be no filming from the gallery.

The Hon. C.M. SCRIVEN: I was just going to sum up before the amendment is put, if I may. I admit I did not go into much detail because I thought this was a fairly straightforward amendment, but it appears I do need to go into it a little bit more. At the moment the wording is 'protected premises means any premises at which abortions are lawfully performed'.

The premises would often be interpreted by a layperson as being the building in which abortions are performed, and someone could therefore rightfully think that they could protest or whatever they might want to be doing 150 metres from the wall of the building. I think that would be a not unreasonable assumption, but my understanding is that the intent of this is that it should be from the perimeter or the boundary.

Whilst I realise that this means that anyone who is going to be engaging in behaviour at an abortion centre under this amendment will actually need to move further away, I think it is only reasonable that that is very clear and that people have the right to know. Given that the Hon. Ms Franks actually included this in an explanatory paper, clearly there is some doubt around it, so I think it is worthy of being supported.

Amendment negatived.

The Hon. N.J. CENTOFANTI: I move:

Amendment No 1 [Cent–1]—

Page 3, after line 37 [clause 4, inserted section 48C(2)]—Insert 'or'

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

I made it clear in my earlier remarks why I feel I need to move this amendment standing in my name, so I will not speak at particular length on this amendment except to say that this is an argument about the fundamentals of freedom of expression. I feel somewhat comforted that the Hon. Tammy Franks has stated in her second reading speech, as well as tonight, that this bill does not prohibit silent prayer. I would hope that, if this bill is successful in its current form, judiciary officers will come back to this debate to understand the intent of the legislation. However, based on the experience in the ACT, I do not think an assumption can be made that silent prayer will not be deemed to be prohibited behaviour.

The Hon. T.A. FRANKS: I thank the member for her explanation of why she has been motivated to move this amendment. Indeed, I reiterate that this bill does not prohibit silent prayer, even within the safe access zone. What it does prohibit is the prohibited behaviours, and it ensures that claiming silent prayer as an alibi for enacting those behaviours is not given to people as a way to get around the law. Indeed, I have not based this on the ACT; I have based it on the Victorian example, where, I am told, there is silent prayer still around abortion health care. As long as it is not harassing, threatening or intimidating, it is not seen as prohibited behaviour and is responded to accordingly.

The Hon. C.M. SCRIVEN: I will be supporting this amendment. I note that in the other place, and also in the media, the Attorney-General stated that she does not consider that this bill bans silent prayer. If the Attorney-General does not think that, and other members do not think that it bans silent prayer, it would seem to me that making that clear by accepting this amendment would be the appropriate direction.

The Hon. D.G.E. HOOD: Very quickly, I indicate that I will also support the amendment. I think that this is a very small bar, and in fact it seems everyone is in agreement that this bill will not prohibit silent prayer. In that case, I would argue: why on earth would we not make it crystal clear for the courts, who may have a different view, or for a particular judge who may have a particular view? As we all know as legislators who have been doing this for some time, sometimes courts do not pay particular attention to Hansard—sometimes they do and sometimes they do not.

If we all feel as I do, and as I believe the mover of the amendment does, that this is something that we should not be prohibiting, why on earth would we not enshrine it in the bill, which looks like it will pass, to be sure that that is the case? I will certainly be supporting the amendment.

The Hon. T.A. FRANKS: Very briefly, I will note again that this is legislation that has seen the test of two High Court challenges. It does not prohibit silent prayer, but it does prohibit its use as an alibi to threaten, harass, intimidate and impede somebody either working in these healthcare centres or seeking to access that health care.

The Hon. S.G. WADE: On that point, my understanding of what the honourable member has said is that if silent prayer is conducted in a way that is intimidating or harassing, it would be an offence under the act and to put this provision in would actually excuse intimidating and harassing behaviour.

The Hon. T.A. FRANKS: I thank the Minister for Health and Wellbeing for clarifying that concern. For those who are not familiar with the history of this legislation, of how it has been tested, there could be an assumption made that there needs to be that exemption to protect that particular religious freedom. Indeed, we are aware that sometimes people may not even be religious or be people of faith, but they could potentially use this, for example, to have 20 or 30 people in a row praying while blocking passage to that particular healthcare service. We do not want to open the door to allow that sort of behaviour.

Indeed, I think to allow silent prayer to be used in that way denigrates those people of faith. I am certainly, as I mentioned in the second reading explanation, an agnostic person. I have studied comparative religion; I have an interest in some religions more than others. I noted in my second reading explanation that I am not a monotheist, but certainly this bill does not prohibit people of faith from engaging in their faith, but it does prohibit, for example, 20 or 30 people, which would be quite an intimidating presence, all praying with a visible presence to that person.

Let's get back to this: this is a person who has made a very difficult decision. Often they may not have ever thought they would be in that situation. When we access health care of any sort it certainly provokes anxiety in me. Simply going in for knee surgery earlier this year provoked a lot of anxiety in me, and I know that I was in need of the most calming and supportive environment, which I thanked the medical staff for providing me.

The receptionist in particular calmed me down and gave me that sort of comfort, and that is what we want people engaged and accessing a healthcare service to feel: we want them to be relaxed, able to have their dignity preserved, have good access to that health care and not be put in a position where they are feeling shamed, stigmatised, anxious or stressed in that situation. That is the least level of dignity that we can afford them.

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