Introduction

We are opposed to the Contraception, Sterilisation and Abortion (Safe Areas) Amendment Bill.

In September 2019, we presented written and oral submissions to the Abortion Legislation Select Committee.1 Based on our research and legal analysis, our submission included comments on the introduction of safe areas. Having considered the Contraception, Sterilisation and Abortion (Safe Areas) Amendment Bill we re-submit to you the relevant and amended section of our previous submission.

This Bill seeks to “protect the safety and well-being, and respect the privacy and dignity, of women accessing abortion facilities and practitioners providing and assisting with abortion services.” A consequence of the Bill, however, is that it limits New Zealanders’ right to freedom of expression. Although our laws do recognise that there is sometimes a need to limit our freedom of expression, we consider that this is an unjustifiable limitation because it does not meet the criteria for doing so: it does not serve a sufficiently important purpose; and it is not a rational, reasonable or proportionate response. The Committee therefore should not recommend this Bill to the House.

While we oppose the Bill, we also propose a series of recommendations to improve it, should it pass. These focus on our concerns with the definition of prohibited behaviour, and the criteria for prescribing a safe area. First, however, we will address the reasons why we believe this Bill fails to sufficiently respect New Zealanders’ right to freedom of expression.

Recommendations

The introduction of safe areas limits the fundamental right to freedom of expression for every New Zealander. While this right is subject to reasonable limitations, the proposed legislation fails on two primary counts. First, it does not serve a sufficiently important purpose because current legislation is suitable for responding to disorderly or offensive behaviour, intimidation or obstructing a public way.27 Rather than relying on speculation we should follow the British example and, prior to legislative change, conduct “an in-depth assessment to understand the scale and nature of the protests and to establish if more needs to be done to protect those requiring an abortion.”28 Second, the proposed legislation also fails to deliver a rational, reasonable, or proportionate response because it is broad in its test for designating safe areas, sets a low threshold in its definition of prohibited behaviour which in practice is likely to result in a complete restriction of freedom of expression, and fails to distinguish between behaviour that is criminal or simply an annoyance, inappropriately leaving this important consideration to the courts. The Committee, therefore, should not recommend this Bill to the House.

If the Bill is to be passed into law, however, we recommend that our specific and significant concerns should be addressed as follows:

1. Make the test for designating a safe area more specific, such that a safe area must be deemed necessary to achieve certain specified outcomes rather than relying on very broad concepts such as “dignity” and “well-being,” which are open to interpretation. This will also assist the Director-General in conducting the efficacy of the safe area during their mandatory reviews outlined in clause 13C(3);
2. Provide a clearer definition of what causing emotional distress as recognised by “an ordinary reasonable person” entails;
3. Remove clause 13A(3)(b)–that prohibited behaviour includes “communicating with” protected persons–or alternatively, strengthen this clause to include “with the intention of frustrating the purpose for which the protected person is in the safe area”;
4. Clarify the distinction between mere annoyance or irritation and criminalised harm, so that this is explicit for the courts; and
5. Require information regarding where safe areas exist to be publicly available and regularly updated to remove uncertainty.

While these recommendations are intended to improve the drafting of the Bill, they do not resolve our overarching concerns with limiting New Zealanders’ freedom of expression. This freedom is fundamental to the functioning of our democracy and should only be limited when in cases that are “demonstrably justifiable.” The Contraception, Sterilisation and Abortion (Safe Areas) Amendment Bill fails to meet the required criteria, and therefore we submit that it should not become law.