New Zealand Law Society - Clearer guidance needed for abortion clinic ‘safe areas’

Clearer guidance needed for abortion clinic ‘safe areas’

The New Zealand Law Society | Te Kāhui Ture o Aotearoa has told a parliamentary select committee that the definition of “prohibited behaviour” in proposed ‘safe areas’ for abortion facilities is inconsistent with the New Zealand Bill of Rights Act and needs to be reconsidered.

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The Contraception, Sterilisation and Abortion (Safe Areas) Amendment Bill proposes amending the 1977 Act to provide for regulations to set up safe areas around specific abortion facilities on a case-by-case basis.

The Bill is needed to rectify a process error made in Parliament during progress of the Abortion Legislation Bill in 2019, but the Law Society told the Health select committee today that it is essential the proposed definition of “prohibited behaviour” is amended to ensure the Bill is consistent with fundamental rights and freedoms.

“The critical difference between the original ‘safe areas’ proposal in the 2019 Bill and the proposal in this Bill is the redrafted definition of “prohibited behaviour”,” Law Society spokesperson Paul Rishworth QC told the committee.

“The Law Society agrees with the Attorney-General that the proposed definition is inconsistent with the right to freedom of expression, as it criminalises “communicating” in a manner that is objectively emotionally distressing. The way the definition is currently drafted is likely to lead to interpretation difficulties and is unnecessarily complicated. It also doesn’t clearly articulate what the prohibited behaviour actually is”, Mr Rishworth said. 

“The definition of “prohibited behaviour” needs to be completely reconsidered. It would be better to clearly set out the types of behaviours that are intended to be prohibited in safe zones. That is the approach taken by some Canadian provinces and Australian states. It would clearly signal the types of behaviour intended to be prohibited, rather than relying on very broad concepts of “intimidating, interfering with, or obstructing” for example, as currently set out in the Bill”.

“Ideally, any changes to the proposed definition would be made available for public submissions but in any event ought to be subject to a new Bill of Rights vetting process by the Attorney-General”, Mr Rishworth said.

The Law Society has recommended that more specific prohibitions might include such things as protests, signs or banners, and “counselling” (being attempts to advise or persuade a person to refrain from making use of abortion services).

Further information

The Law Society’s submission on the Bill is available here.

The Bill is available here.