Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill

Tēnā koe e te Māngai o te Whare. Tēnā koutou katoa. I move, That the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill be now read a second time.

To begin, I would like to acknowledge the 890 interested groups and individuals who submitted on this piece of legislation, and note that 97 submitters were heard here in Wellington and by video conference. I want to acknowledge the advice of the Ministry of Health and the Ministry of Justice, the advice from the Office of the Clerk, and also the work of the Parliamentary Counsel Office.

I also want to note, under Standing Order 269(5) that the Health Committee also had to consider the advice from the Attorney-General. The section 7 reports, I think, are incredibly important. They highlight bill of rights issues—therefore human rights issues—and I want to take the opportunity, actually, to acknowledge the work of the Hon David Parker and the Office of the Attorney-General. I’d like to thank Liz Craig, as the chairperson, for her diligent work, and in doing so, we have an amazing Labour team, but I also want to highlight the members of the Opposition, particularly Simon Watts, also Chris Bishop, and Penny Simmonds, who I thought played an incredibly constructive role, I hope she doesn’t mind me saying, but given her reservations about this piece of legislation. I want to acknowledge Jan Logie, who did an incredible amount of work, and just generally thank the Health Committee for the thoroughness of their recommendations to the House. I want to note that they recommended by majority that this bill be passed, and they recommended all amendments unanimously. I actually think that is a very important point.

I’d like to reinforce what this bill is about. It 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 by providing a regulation-making power that would enable safe areas to be set around specific abortion facilities. I think focusing, at this stage, on the Hon David Parker’s inconsistencies with the New Zealand Bill of Rights Act is really important. Essentially, he said that there were freedom of expression issues—and freedom of expression in terms of being able to seek, receive, and impart information and opinions of any kind in any form. I want to commend the select committee’s engagement, then, with the Attorney-General, and, in fact, their diligence in providing the evidence to overcome this particular inconsistency.

I have an opportunity tonight, after the select committee wrote to the Attorney-General asking that he present a formal paper to the House revising the opinion, given his initial report on the bill, and therefore the inconsistency. So with the leave of the House, I’d just like to quote from a letter from the Attorney-General dated 10 November 2021: “My concerns have now been addressed. 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.”

He goes on to highlight two specific examples: “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 ‘engaging in protest’ in clause 13A(1)(c)(iii) is narrower than the previous phrase ‘communicating with’, which means that communication activities which cannot be regarded as a ‘protest’ and might commonly be seen at or nearby a hospital”—and I want to emphasize this—“(such as an individual engaging in silent prayer) will not risk being criminalised.” I chose to highlight that particular contribution from our Attorney-General because I think that the work the select committee have undertaken to ensure now this bill is New Zealand Bill of Rights Act - compliant should reassure this House.

I particularly want to focus on some of the amendments proposed and how the committee made some of the decisions that they did. They have removed the definitions of “prohibited behaviour” and “protected person”, and they have done so to enable a clearer articulation of what will happen within a safe area, what will be criminalised within a safe area, but also from their perspective, to protect the victims of this type of abuse from having to give evidence if a prosecution was bought. So the prohibited activities, for example, are going to be “advising or persuading A to refrain from accessing or providing abortion services”, “informing A about matters relating to the provision of abortion services unless it was when the services were being provided”, and “engaging in protest about matters relating to the provision of abortion services.”

Because they now have removed a definition of who a protected person is, there will be no requirement for that person to give evidence in court. There is an exception to that rule, and it is related to the visual recording of a particular person. They have, through their deliberations, said that within the context of someone being visually recorded, the police have been very clear that they would interpret this provision to mean that a person would need to give evidence about their reason for being in a safe area. The committee were comfortable with this approach, and, obviously, with their comfort comes my comfort as well.

I want to highlight that there was quite a bit of discussion from organisations such as the Abortion Law Reform Association of New Zealand (ALRANZ)—and particularly Terry Bellamak; I want to acknowledge all of her work as the president of ALRANZ—about having a blanket approach to all abortion facilities. She didn’t think we needed to go through a case by case process, but in fact, again, through the deliberations of the select committee, it’s proven that a case by case process is actually going to be the best method to identify which of the abortion facilities require a safe area.

In particular, I want to highlight that one of the issues for the select committee that we had to grapple with was the inclusion of private premises. I know that for many members of the committee, they did not want to encroach on private premises. So if we took a blanket approach, then there wouldn’t be an option or an opportunity through a case by case process for private properties to be excluded following consultation with the property owner.

I’m going to leave other specifics about the bill to the select committee members. I have to say, some of it is incredibly technical. I know the level of advice that the select committee received to come to a determination about the amendments that they unanimously agreed to happened because of, as I said before, the consideration, the ability for them to suspend, in some instances, their personal position about the bill, but actually to reflect the contemplation, as select committees must do, on the merit of particular pieces of legislation, but also a process that makes the legislation better.

So my final comments really are to the select committee to thank them for their diligence and, obviously, to work constructively as we progress this bill through the House. Thank you, Mr Speaker.

I seek leave to table advice from the Attorney-General dated 10 November 2021 about the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill.

Is there any objection to that process being followed? It may be tabled.

Document, by leave, laid on the Table of the House.

Thank you so much, Mr Speaker. I rise this evening, again. Sorry, you must be getting sick to death of me. But this is a really important piece of legislation, the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment, that I rise in support of. Again, I find myself congratulating and acknowledging my colleague Louisa Wall for a really important piece of legislation.

I am a member of the select committee and I do need to acknowledge, again, the incredible hard work of that committee. This was a really difficult piece of work, and it was undertaken with a degree of collegiality and respect even though we were coming from different points of—well, different perspectives. Like, some of us held very different views on this piece of legislation. I’d just like to genuinely acknowledge and thank my colleagues from across the House for the way in which we were able to engage and try to create the best possible piece of legislation. The history behind the need of this legislation, I think, has been well litigated, and we don’t need to repeat it. But, actually, I think what’s happened is we’ve been able to look at it in a great deal of detail, and I think we’ve created something that’s better. So I’m really proud of the work that this committee has done, and I’m really proud of every single member of the committee for the way in which we’ve worked.

I’d also like to thank the 890 submitters we had. We heard oral submissions from 97 of them. So there was a significant body of work in there. I’d just like to reassure people who might be listening that we do read every single submission and we do listen to every single person with respect and honour their perspective, even if we don’t agree. But I just wanted to say here that what this piece of legislation is not is it’s not actually relitigating the right of pregnant people to access abortion care. We’ve actually had that conversation. The House heard from thousands of submitters over many months and agreed in a conscience vote that abortion is a healthcare issue. So although I understand completely that there are some people who feel strongly that this isn’t the case, my point here is merely to say this isn’t the point of the bill. What it’s about is it’s just trying to ensure that safe areas are set up around specific abortion facilities, so that when people are accessing what I would absolutely describe, as a midwife in a previous life before entering the House, as absolutely essential healthcare, they can do so free of harassment, intimidation, or threat. I’d also like to add it’s not just about the people accessing the care; it’s about the providers of that care. It’s really important that they’re able to go about their daily business and go to and from work without having to fear or be subjected to abuse and harassment.

Every organisation, it’s worth knowing, that provides healthcare supported the bill. But some people did say when they were submitting that they didn’t feel that it was necessary because anti-abortion protesters were arguing that they don’t mean any harm, they just want to pray peacefully and quietly and offer sidewalk counselling. But unfortunately, although I completely accept that that’s absolutely the case for a group of people, they are peaceful in intention and they are well meaning, the effects of some of their actions are far from peaceful to the person on the receiving end. I can say that there is a need for this legislation because I’ve seen and experienced it myself. There’s a genuine fear in healthcare providers and among people accessing abortion care that the influence of misinformation and rabble rousing can and eventually will lead to violence.

This is a live issue. If you have the opportunity to watch on Netflix a really good documentary called Reversing Roe, which I do recommend, it explores in detail the threats and violence that abortion providers have experienced in the United States. I would say “Yip, that’s the United States. It’s not here.”, but we’ve seen for ourselves the influence of misinformation and of, I would suggest, an agenda driven from outside New Zealand, and the effects that that can have on what we might hope would be peaceful protesters. But the right to protest is incredibly important, and when we were doing this piece of work, we were trying to make sure that, above all, we had that balance and that we’d weighed up the right to protest freely against the right of every individual to access healthcare in a safe manner.

So, as Louisa Wall has mentioned before, we did a substantial amount of work, and this is the bit where I am going to get a bit technical and I apologise, but I don’t really apologise—I love it. We had to respond in a positive way because the Attorney-General, as you’ve heard, was of the opinion that in the bill as it stood, clause 5 appeared to be inconsistent with the right to freedom of expression. Every single person on that committee takes that opinion extremely seriously, and so we felt the urgent need to make sure that we did adjust the bill to make sure that it was compliant with the New Zealand Bill of Rights Act. We have had the reassurance from the Attorney-General that what we have done has achieved that, so we don’t need to worry about New Zealand Bill of Rights Act compliance, which is incredibly important.

I’m going to have to read out a few bits here, so forgive me. What we’ve done is we’ve prohibited certain behaviours, rather than having protected persons. So, just to describe the sorts of things that are now prohibited in this bill now with the amendments from the committee, a person must not “obstruct a person in a safe area who is approaching, entering, or leaving any building in which abortion services are provided;”, which is pretty simply understood.

Also, they can’t “make a visual recording of another person … in a manner that is likely to cause emotional distress to a person accessing, providing, or assisting with providing, abortion services;”. This is the one area where the complaint by the individual who was recorded would need to be made, because one of the things that we have been trying to do was to remove the necessity of the victim of the harassment and abuse from having to come forward and make the police reports and, potentially, go to court, because whilst there is nothing inherently shameful at all about accessing abortion care, for many people, it’s a process that they would just like to put to bed when it’s over—like any healthcare provision, but especially so here—and actually being made to bring a complaint forward is something that would prohibit people from actually coming forward when they were, in fact, subjected to abuse.

So the things that can’t be done are “advising or persuading the individual A to refrain from accessing or providing abortion services”, because, quite frankly, they have the opportunity to access that advice from multiple different areas before the day when they actually need to go and access abortion care. The people who are excluded from that are people who are either with that individual—so they aren’t prohibited from actually talking to them about the abortion care they’re about to receive—or of their provider themselves.

But the most important thing that I wanted to address, I think, was that we needed to make sure that people’s express need to pray peacefully in what we would describe as the safe area—which I would just like to emphasise is a maximum of 150 metres from the property where abortion care is provided, and that’s a maximum on a case by case basis. So every single facility or unit will have to, if they wish, apply for and go through the process of applying for that safe area to be tailored uniquely to their particular needs. So we needed to make sure that the voices could be heard from people who perhaps wanted to exclude private property but, more importantly, we just made sure that we had the best and safest coverage for everybody.

What is completely not prohibited in any of this piece of legislation—and we felt this was really important—is the private, peaceful prayer that doesn’t in any way reference abortion care. So if you were, for example, standing with a poster that was of what you alleged to be an aborted fetus, that would be prohibited behaviour, regardless of whether you were praying or not. But if not—if you were standing peacefully and no reference was made to abortion care—that would not be prohibited. So I feel that that really achieved a balance of rights there.

Now, it’s clear that I could talk for a while on this piece of legislation—

💬 SPEAKER: Not much more.

—much more; no, I’m going to stop—but I just wanted to thank everybody again for all of the work that went into this legislation and commend it heartily to the House. Thank you.

Thank you very much for providing an opportunity to take a call on the Contraception, Sterilisation, and Abortion (Safe Areas) Amendment Bill, second reading.

I’d firstly, obviously, like to acknowledge Louisa Wall for this member’s bill. As a member of the Health Committee, it was, as has been noted by many speakers in this House, a thorough and comprehensive process that was undertaken by that committee. And at all times, I would commend you in terms of the pragmatism and willingness to listen and work with the committee in order to work through what were a number of significant challenges. I think that, as has been highlighted by other members of the committee, is for us as a group, taking aside our positions and our views and opinions around the bill, to unanimously support this through does send a really quite inspiring message around an element of collegiality, particularly around this bill. So thank you for what you have done.

Obviously this bill, and I think it’s an element that really needs to be reinforced, is really to be putting in place—to protect, primarily, women going through the process of abortion, and the reality of the type of woman is it’s generally young women. The age of 20 to 24 is sort of the highest proportion. Around 51 percent of women that have abortions are in their 20s, and for 65 percent of them, this will be their first child. So I think that was never lost on the committee in terms of, you know, the importance around why we were doing this. And I think the element or the issue around compassion—I think, it’s probably the right word in terms of this bill providing a purpose, which is to protect those individuals.

I think we listened to what were 890 submissions. We, obviously, saw 97 of those come through, but there was a number of submissions that I remember from young women across this country that gave their personal reflections and experiences of going through that process. I cannot imagine what that would be like, but it was definitely something that the committee took on board and I think that carried through with the recommendations that we made.

I was someone who went into this process and while supporting it at first reading I had concerns. I had concerns, particularly around clause 5 of the bill in regards to the conflict it had with the New Zealand Bill of Rights Act, section 14. I am absolutely, very proud actually, in terms of when Louisa read out the statement this evening from the Hon David Parker, the Attorney-General, in terms of what the bill was going into this process, what the select committee as a team contributed and did, and the outcome that we received. I think it cannot be underestimated that the outcome that the committee did in conjunction with all of those advisers, the Ministry of Health, Justice, Police, and all of the submitters is significant. I think, as a result, we’ve been able to bring a bill to this House that was significantly better than what it was before. So I just wanted to acknowledge that element of the process. For me personally, that was definitely a highlight of the process when I look back on it.

I think the other aspects—we’ve obviously made a number of changes in terms of the bill in terms of what are the defined elements, the behaviours that this bill would prohibit. We’ve heard about visual recording, which we’re aware causes emotional distress. We’ve heard about prohibiting certain activities in safe areas, and we’ve heard about only the need to testify in the cases of visual recording. I think that was a thorough process. I think the process also to expedite and get those safe areas put in place was an area that the committee spent a lot of time discussing.

The concept of a blanket application offset with a case by case basis—I think where we landed, as Sarah Pallett outlined before, around case by case, I think is the best approach. It balances really well, I think, the difference between some of the challenges around if a private home sits within 150 metres of the abortion clinic—and these are the practicalities that that we worked through with the committee—and if someone was standing on their fence, yelling across or putting a sign up in their backyard. How do we balance those issues around the importance of private property and the freedoms around that with the young women that we heard coming in that are wanting to be protected and feel safe going through this health procedure? So I think we landed in a good position there.

I think I’ve acknowledged, as I said, why this bill is so important in terms of the women that it protects and keeps safe. I think the element around the committee acting with compassion was very clear. And I think, just finally, I wanted to thank Louisa Wall again for her contribution in terms of bringing this member’s bill to the House. As a member of that committee, alongside all my colleagues in this House from across the political parties, I’m proud in terms of what we’ve brought back here. I commend this bill to the House.

The time has come for me to leave the Chair. This bill is set down for further consideration next sitting day. The House stands adjourned until 2 p.m. tomorrow.

Debate interrupted.

The House adjourned at 10.03 p.m.