Laws could not halt the intimidation of abortion clinic patients and staff until "safe access zones" were imposed around Victorian providers in 2015, the High Court has been told.
Counsel for the Victorian government, the state's solicitor-general Kristen Walker QC, said claims that a raft of civil and criminal law existed to deal with protesting outside the clinics simply weren't true.
Explaining the Victorian government's intentions in legislating to create the "safe access zones," Ms Walker said police and Melbourne City Council officials regularly attended the East Melbourne Fertility Control Clinic at its request, without diminishing protest activities.
She said the laws relating to nuisance activity proved ineffective.
Prosecution for intimidation, harassment or threatening conduct could only take place after the harmful conduct occurred and women attending the clinic were generally unwilling to assist in police prosecutions.
"The intensely private nature of the decision the protesters seek to denounce effectively operates to protect the protesters from prosecution for criminal conduct," according to an affidavit from one clinic doctor.
Ms Walker said the criminal law potentially required an affected person to testify.
The legislation creating the safe access zones had been designed to ensure prosecutions could proceed without calling an affected person to give evidence of the conduct of protesters.
The High Court is hearing appeals from two anti-abortion activists who are arguing that the legislation establishing protester exclusion zones in Victoria and Tasmania infringes their right of political communication, implicitly guaranteed under the constitution.
Kathleen Clubb, a mother of 13, was convicted breaching the Victorian law in 2016 and fined $5000.
Queenslander John Preston was convicted of three breaches of the Tasmanian law in 2014 and 2015 and fined $3000.
Ms Walker said the "safe access zones" legislation didn't target political communications.
"The effect on political communications....is insubstantial. It doesn't single out political communication. It doesn't discriminate on the basis of viewpoint," she said.
Tasmanian solicitor-general Michael O'Farrell SC said his state's legislation was not designed to impinge on political communication.
"Nowhere in the scheme of the act, its context or its history could it be suggested that there is a direct attempt by the legislature to stifle political communication," he said.
Commonwealth solicitor-general Stephen Donaghue QC said at the heart of the concept of what the Americans termed "sidewalk counselling" was the notion of trying to persuade particular women to make a particular moral choice about their own behaviour.
"That is not a communication we say that is directed to electoral choice so it's not the kind of thing the implied freedom is about," he said.
The hearing continues on Thursday.