The Health Committee has examined the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill and recommends by majority that it be passed. We recommend all amendments unanimously.

The Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill is a Member’s bill in the name of Louisa Wall, MP. It would amend the Contraception, Sterilisation, and Abortion Act 1977.

The bill aims to protect the safety and wellbeing, and respect the privacy and dignity, of women accessing abortion facilities and practitioners providing and helping with abortion services. It seeks to do so by providing a regulation-making power that would enable safe areas to be set up around specific abortion facilities.

Under the bill, the Minister of Health, in consultation with the Minister of Justice, could recommend that regulations be made to create a safe area at specified premises where abortion services were provided. The size and location of the safe area would be determined after taking into account the circumstances of the individual facility. The bill provides that the safe area could be no more than 150 metres from any part of a protected facility.

The bill would prohibit certain behaviour towards specified people within safe areas. A person convicted of engaging in prohibited behaviour within a safe area would be liable for a fine of up to $1,000.

The Speaker of the House has declared that this bill is a conscience issue for members. As a result, voting is on a personal basis rather than by party. We appreciate that abortion is a sensitive topic about which people have a range of opinions. Like the people who submitted on this bill and other members of Parliament, we as a committee also hold a range of views.

Given that abortion is a health service, some of us believe that the legislation is necessary to protect consumer rights under the Code of Health and Disability Services Consumers’ Rights. Some of us also consider that the bill is needed to ensure that employers of abortion providers can meet their obligations under health and safety legislation.

Conversely, others of us consider that the absence of information about complaints to district health boards and the Police demonstrates that safe areas are not needed. Those of us with this view believe that existing legislation that deals with harassment and intimidation is sufficient. Examples of the legislation include the Summary Offences Act 1981, the Trespass Act 1980, and the Harassment Act 1997.

Some of us believe that the bill represents a balance of rights and were particularly concerned that the bill include a process that would remove the requirement for a person seeking abortion advice to have to give evidence in court if they experienced behaviour prohibited under this legislation.

Some of us consider that the duty to uphold freedom of expression is paramount, and highlighted the concerns raised by the Attorney-General in his report on the bill. We discuss these concerns in more detail later in this commentary.

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We have no issues regarding the legislation’s design to bring to the attention of the House.

Section 7 of the New Zealand Bill of Rights Act 1990 (NZBORA) and Standing Order 269 set out what the Attorney-General must do when a provision in a bill appears to be inconsistent with any of the rights and freedoms contained in NZBORA. Section 7 requires the Attorney-General to bring the provision to the attention of the House of Representatives. Standing Order 269(1) specifies that the Attorney-General must indicate the provision to the House and how it appears to be inconsistent with NZBORA.

On 17 February 2021, the Attorney-General presented a report on the bill to the House under section 7 of NZBORA and Standing Order 269. He concluded that clause 5 of the bill appeared to be inconsistent with the right to freedom of expression as affirmed in section 14 of NZBORA. In particular, he was concerned that the bill would criminalise “communicating” in a way that was objectively emotionally distressing. We set out his concerns about the clause in more detail below.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

We spent some time discussing how clause 5 of the bill could be amended to make it consistent with NZBORA so that the limitations on a person’s right to freedom of expression were minimal and could be justified.

As introduced, clause 5, new section 13A(3)(b), would prohibit a person from communicating with, or visually recording, a person in a manner that an ordinary reasonable person would know would cause emotional distress to a protected person. We accept the Attorney-General’s conclusion that the term “communicating” is too broad. Accordingly, we recommend amending clause 5 by replacing proposed section 13A. Our amendment would remove the definitions of “prohibited behaviour” and “protected person” and specifically define the types of behaviour that would be prohibited in a safe area.

Most of us do not want abortion providers to have to wait for a long time for a safe area to be established. We discussed how this type of situation could be mitigated and whether the application process could be streamlined. We considered whether a “blanket” approach could be used to create safe areas rather than by a case-by-case basis. The options we considered included prescribing safe areas for all “bricks and mortar” premises (as opposed to mobile abortion providers) or for providers of surgical abortions. We also considered whether the locations of a list of providers specified in the bill could be automatically covered by a safe area for a period of 12 months after the bill was enacted. This would provide protection during the time required to enable providers to determine whether they wanted to apply for a safe area and for an application to be considered and taken through the regulation-making process.

We understand that a blanket approach is less likely to comply with NZBORA, and believe that a case-by-case approach would be simpler. However, most of us would like the process for applying for a safe area to be relatively simple without delays for providers.

We sought advice on whether the bill could be amended to enable any parts of the application process to progress more quickly. We note that the approval process for a safe area, which the Ministry of Health would administer, would generally involve the following steps:

• An abortion provider would likely make a request stating that they considered that a safe area was needed at the site where they provided services. The request would include the reason for it, details about the size and location of the premises, and the type and use of surrounding premises.

• The ministry would consider the request on a case-by-case basis depending on the circumstances of the provider. It would apply the criteria in new section 13C(2) as proposed by the bill and consult the Ministry of Justice about any NZBORA matters.

• The ministry would then advise the Minister of Health about the application based on its consideration relevant to the specific premises.

• The Minister of Health would consult the Minister of Justice according to the requirement in new section 13C(1) and then make a decision.

• If the Minister approved an application, they could recommend that a regulation be made to apply a safe area to the provider. The regulation would need to be approved by Cabinet and authorised by the Governor-General.

• The regulation would be published in the Gazette and on the New Zealand legislation website. It would come into force 28 days later.

We discussed whether a time frame for the application process should be included in legislation. However, we note that the time frame for processing an application would depend on a range of factors. They include the complexity of the application and whether the safe area intersects with private property, which may require owners to be consulted. A time frame could also result in an application being analysed less carefully so that the deadline could be met. For these reasons, we consider that it could be difficult to prescribe an appropriate time frame.

We have therefore not included a time frame in the legislation. However, we would still expect the Ministry of Health to provide advice to the Minister of Health within a reasonable period and for applications to be processed promptly.

Clause 5, which would insert new section 13C(2), provides that the Minister of Health could recommend the making of regulations. As introduced, the Minister would need to be satisfied that prescribing a safe area was necessary to protect the safety and wellbeing of certain people, and to respect their privacy and dignity. The people are: those accessing abortion services, providing or assisting with providing abortion services, seeking advice or information about abortion services, or those providing or assisting with providing advice or information about abortion services.

We do not believe that providers should need to wait for harm to occur before a safe area was established. We consider that this is particularly important given that the regulation-making process for safe areas could take some time.

Accordingly, we recommend amending section 13C(2)(a). Our proposed amendment would require the Minister to be satisfied that the safe area was desirable to address any risk to safety and well-being, rather than that it was necessary.

New section 13C(3)(a)(i), inserted by clause 5, would require the Director-General to review the regulations to determine whether the prescribed safe area was still necessary. This would need to be no later than 5 years after regulations were made, followed by subsequent intervals of no more than 5 years. To align with our previous amendment, we recommend that the reference to “necessary” be replaced with “desirable”.

As introduced, the bill does not contain a definition of “premises”. We recommend inserting a definition of “premises” in clause 4, amending section 2. This term would be defined as “the building in which the abortion services are provided” and “the land on which that building is sited”. We consider that this amendment is needed to make it clear whether land is included in the definition of premises. This is because different interpretations could significantly change the maximum permitted extent of a safe area.

We acknowledge that “premises” could be a very large area if, for example, a hospital that provided abortion services was situated on a very large parcel of land. We note that the Minister would need to take into account the individual circumstances of each location and the size of the premises when deciding whether to recommend a safe area, and the extent of any safe area.

On 25 August 2021, we invited the Attorney-General to comment on whether our recommended amendments to the bill were consistent with the rights and freedoms affirmed in NZBORA. On 1 September 2021, the Attorney-General responded to us stating the following:

• The revised draft you have provided to me (PCO 23098/9.0) addresses the concerns I expressed about the Bill as introduced. The communicative behaviour criminalised by clause 13A(1)(c) is narrower than the original proposal. The broad phrase “communicating with” has been replaced by three new tests, which are all narrower than the original proposal and have appropriate exemptions built in. In particular, I note that:

• 1. there appears to be little prospect that communication from support persons or service providers would be criminalised under the revised draft, as a result of the exemptions in clause 13A(1)(c)(i)-(ii); and

• 2. “engaging in protest” in clause 13A(1)(c)(iii) is narrower than the previous phrase “communicating with”, which means that communicative activities which cannot be regarded as a “protest” and might commonly be seen at or nearby a hospital (such as an individual engaging in silent prayer) will not risk being criminalised.

• I consider that, while the revised draft of the Bill would limit freedom of expression within a safe area under section 14 of the Bill of Rights Act, it would do so in a way that is demonstrably justified in a free and democratic society under section 5.

• I have reached that view because I consider that the safe area restrictions would serve the important purpose of protecting people providing and accessing abortion services from intimidation and emotional harm, and that the proposal would not limit rights and freedoms more than is necessary to achieve that purpose. Freedom to protest in relation to abortion would be maintained in all places outside of safe areas.

We thank the Attorney-General for providing this feedback. We would also like to recommend that he table a formal paper to the House outlining his opinion on the amendments recommended by the committee. We consider that this would be very helpful for other members of Parliament during the second reading of the bill.