Fertility Control Clinic v Melbourne City Council – Apr 2015

In Fertility Control Clinic v Melbourne City Council, the Supreme Court considered whether the activities of anti-abortion protesters outside an East Melbourne fertility clinic providing family planning and reproductive services amounted to a ‘nuisance’ that Melbourne City Council was required to remedy under the Public Health and Wellbeing Act 2008.

The Fertility Control Clinic sought an order requiring the Council to take steps to stop the protestors’ activity outside the clinic because it was a nuisance. The Council argued that extending the meaning of ‘nuisance’ from private nuisance to public nuisance would be incompatible with protesters’ Charter rights to freedom of expression and peaceful assembly.

The Commission intervened under the Charter. The Commission argued that the meaning of ‘nuisance’ in the Act included both public and private nuisances. The Commission highlighted that the right of protesters to freedom of expression and peaceful assembly can be limited where necessary to protect the rights of patients and Clinic staff to privacy and to protect public order and public health.

The Council did not pursue its Charter arguments at the hearing. Without reference to the Charter, the Supreme Court found that ‘nuisance’ encompassed both public and private nuisances. The Court determined that the Council had not failed to exercise its powers to remedy the alleged nuisance caused by the activities of the protestors.

However, while the Supreme Court did not compel the Council to remove protesters from outside the fertility clinic, shortly after the case was decided the Victorian Government announced the creation of safe access zones around fertility control clinics to allow women to access terminations without harassment and intimidation.

View the Supreme Court’s decision here: Fertility Control Clinic v Melbourne City Council [2015] VSC 424