April 22nd 2017

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Articles from this issue:

COVER STORY The populist wedge: political disaffection comes to Australia

EDITORIAL Human Rights Commission needs to start afresh post Professor Triggs

CANBERRA OBSERVED Liberals' soul searching too painful to publicise

ABORTION Law condones the act as it criminalises the image

FOREIGN AFFAIRS Trump makes calculated response to Syrian atrocity

CHINA No easy way to reverse malignant one-child policy

FOREIGN AFFAIRS French election may determine Eurozone fate

ECONOMICS The taxing of companies: a clarifying perspective

PHILOSOPHY Rights bereft of obligations: or, Socrates versus the pig

MUSIC Classical colours: Mozart's fusion of opposites

CINEMA Beauty and the Beast: A fairytale of true enchantment

BOOK REVIEW Santamaria: a man against the tide

BOOK REVIEW The teen they would have made queen

Heartening response to readers' survey

Books promotion page

Law condones the act as it criminalises the image

by Augusto Zimmermann

News Weekly, April 22, 2017

On March 21, 2017, the Supreme Court of Victoria handed down a decision that related to protesting outside a fertility clinic.

This decision of the Supreme Court of Victoria arose from the appeal of a previous judgement in the County Court of Victoria in November 2015.

In a nutshell, the Court argued that images of dead unborn babies cannot be displayed in public because they are too disgusting and “may be so distressing as to be potentially harmful”.

The case upheld the criminal conviction of Michelle Fraser, a pro-life woman, for displaying an image of a dead foetus in public at a peaceful demonstration against abortion in 2013.

The effect of the decision is that showing any image of a dead foetus is obscene and therefore its display is a criminal act under laws that ban obscenity in several Australian jurisdictions.

I am unable to ascertain at this point whether there will be an appeal to the High Court from such an ill-conceived decision.

If the photo of a dead unborn baby is distressing, then is it not distressing to realise that 100,000 babies are brutally murdered in the womb in this country every year?

This ruling means that the truth about abortion practices can no longer be freely exposed.

Despite it being a Victorian decision, similar laws exist in other Australian jurisdictions that can be applied in the same way to stifle this type of political discussion.

This only goes to show that many judges in this country are more concerned about dead babies being shown in public than being concerned about protecting communication concerning political matters that is constitutionally protected.

It is a basic principle of constitutional law in Australia that no law can unreasonably burden free communication on political matters among voters. This implied freedom is a strong constitutional guarantee that has been developed by the High Court to recognise that this is so even where communication might be seriously offensive.

However, the confronting reality of abortion has now been (unconstitutionally) stifled by the unelected judiciary in the name of political correctness. There is much to be said about judges ignoring an important element of the Australian Constitution.

As Human Rights Law Alliance director Martyn Iles points out: “Often it is the shocking nature of a political communication which is the very thing that makes it effective, especially where, far from being gratuitous or unrealistic, the images are shocking precisely because they portray the truth about abortion to the public.”

The truth about abortion may be uncomfortable to many, but the solution is not judicial censorship of political communication. Instead, the solution is more public debate coupled with critical thinking about the seriousness of the problem.

Dr Augusto Zimmermann, LLB, LLM cum laude, PhD (Mon.) is a Law Reform Commissioner with the Law Reform Commission of Western Australia and Professor of Law (adjunct) at The University of Notre Dame Australia, Sydney. He is also Director of Post-Graduate Research and Former Associate Dean (Research) at Murdoch Law School. Dr Zimmermann is also a Fellow at the International Academy for the Study of the Jurisprudence of the Family (IASJF).

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Last Modified:
April 4, 2018, 6:45 pm