Abortion Legislation Bill
The departmental disclosure statement for a government Bill seeks to bring together in one place a range of information to support and enhance the Parliamentary and public scrutiny of that Bill.
It identifies:
- the general policy intent of the Bill and other background policy material;
- some of the key quality assurance products and processes used to develop and test the content of the Bill;
- the presence of certain significant powers or features in the Bill that might be of particular Parliamentary or public interest and warrant an explanation.
This disclosure statement was prepared by the Ministry of Justice.
The Ministry of Justice certifies that, to the best of its knowledge and understanding, the information provided is complete and accurate at the date of finalisation below.
19 July 2019.
Part One: General Policy Statement
General policy statement
This is an omnibus Bill introduced under Standing Order 263(a). The amendments in the Bill all relate to abortion and implement a single broad policy.
Performing an unlawful abortion is a criminal offence in New Zealand. An abortion is unlawful unless certain legal grounds are met. Two specially appointed doctors, called certifying consultants, must be satisfied that one of the grounds applies before an abortion can occur. It is also an offence, punishable by a fine, for a woman to unlawfully procure her own miscarriage or obtain an unlawful abortion.
The Bill amends the law to—
- decriminalise abortion:
- better align the regulation of abortion services with other health services:
- modernise the legal framework for abortion currently set out in the Crimes Act 1961 (the Crimes Act) and the Contraception, Sterilisation, and Abortion Act 1977 (the CSA Act).
The changes will mean that abortion is, in general, provided like other health services. The safety of health services in New Zealand is regulated by a range of legislation that provides for—
- the right of health consumers to receive an appropriate standard of care, the right to have access to information and be fully informed, and the right to give informed consent, under the Health and Disability Commissioner Act 1994 and Code of Health and Disability Services Consumers’ Rights:
- mechanisms to ensure that health practitioners are suitably qualified, competent, and fit to practise their professions, under the Health Practitioners Competence Assurance Act 2003:
- limitations on who can supply or administer prescription medicine, in accordance with a prescription given by an authorised health practitioner, under the Medicines Act 1981:
- avenues for health consumers to make complaints about their care and for complaints to be independently assessed by the Health and Disability Commissioner.
This framework already applies to the provision of abortion services, alongside the specific abortion regime in the Crimes Act and CSA Act. Since the enactment of the CSA Act in 1977, there has been considerable change to legal frameworks and policy relating to the rights of health consumers, the regulation of health practitioners and medicines, and the provision of primary health care, including sexual and reproductive health services. The existing law relating to abortion has not kept up with these developments, resulting in additional layers of legislative requirements that are out of step with modern health law.
Summary of key changes in Bill
Changes to Contraception, Sterilisation, and Abortion Act 1977
Authorisation for abortion
This Bill repeals the current legal grounds for authorising an abortion. It also repeals the role of, and requirement for, certifying consultants. The effect of the changes is that, —
- for a woman who is not more than 20 weeks pregnant, there would be no statutory test that the health practitioner needs to apply. The practitioner would continue to be required to ensure that the woman makes an informed choice and gives informed consent:
- for a woman who is more than 20 weeks pregnant, the statutory test would require the health practitioner to reasonably believe that abortion is appropriate with regard to the pregnant woman’s physical and mental health, and wellbeing. In addition, the practitioner would continue to be required to ensure that the woman makes an informed choice and gives informed consent. In all cases, existing health law continues to recognise the right of health care consumers to receive an appropriate standard of care by a suitably qualified and competent health practitioner.
Self-referral
The Bill inserts a provision to ensure that a woman can self-refer to an abortion service provider. This removes the need for a woman to wait and first see a health practitioner (such as a general practitioner) so she can be referred to an appropriate service. This will remove some delay and cost barriers to women accessing abortion services.
Counselling
The Bill makes it clear that health practitioners must advise women of the availability of counselling services if they are considering an abortion or have had an abortion, but that counselling is not mandatory. The Minister of Health must take reasonable and practicable steps to ensure that counselling services are available throughout New Zealand when entering into Crown funding agreements under the New Zealand Public Health and Disability Act 2000. That Act provides for the public funding and provision of personal health services, public health services, and disability support services.
Conscientious objection
Current law imposes a duty on practitioners who object to providing services on the grounds of conscience to inform the pregnant woman about their objection, and that the woman can obtain the services elsewhere. Practitioners are not currently required to refer the pregnant woman to another practitioner.
The Bill amends the process for practitioners who object on grounds of conscience. It clarifies that practitioners who object on grounds of conscience must disclose their objection to the pregnant woman at the earliest opportunity. The Bill requires the Director-General of Health to maintain a list of abortion service providers and the practitioner must tell the woman how they may access the list.
The Bill balances the right to conscientious objection with the role of employers in providing health services. Based on the principles of the Human Rights Act 1993, it allows employers to consider how the conscientious objection would impact on their provision of abortion services when making employment decisions. Those who have a conscientious objection must be accommodated by an employer as long as it would not unreasonably disrupt the employer’s ability to provide abortion services.
The Bill also provides for applicants or employees to have the option of using existing processes under the Human Rights Act or the Employment Relations Act 2000 for dealing with employment disputes that allege discrimination on the basis of conscientious objection.
Abortion Supervisory Committee disestablished
The Bill disestablishes the Abortion Supervisory Committee and repeals provisions of the CSA Act relating to the duties, powers, and functions of the Abortion Supervisory Committee.
The Ministry of Health will administer the CSA Act as part of its existing role within the health sector. The Bill requires the Director-General of Health to develop standards of care for abortion services and to undertake data collection. The Bill provides a regulation-making power to support these data collection and monitoring functions if needed, to ensure that abortion data continues to be collected nationally in New Zealand.
Safe areas
The Bill provides a regulation-making power to set up safe areas around specific abortion facilities, on a case-by-case basis. The purpose of this regulation-making power is to protect the safety and well-being, and respect the privacy and dignity, of women accessing abortion facilities or practitioners providing or assisting with abortion services.
The Bill defines the type of behaviour that is prohibited to mean:
- intimidating, interfering with, or obstructing a person with the intention of preventing them from accessing abortion facilities, or providing abortion services, or
- communicating with, or visually recording, a person in a manner that is intended to cause the person emotional distress and would cause emotional distress to an ordinary reasonable in the position of the person.
It also provides that the safe area can be no more than 150 metres from any part of the protected facility.
The decision to make regulations creating a safe area would be made on the recommendation of the Minister of Health, in consultation with the Minister of Justice.
The specific size and exact location of the safe area would be determined on a case-by-case basis, as appropriate for the individual facility’s circumstances. The details would be set out in the regulations made for specific premises.
Other changes to align regulation of abortion services with other health services
This Bill repeals sections of the CSA Act to align the legal framework with the regulation of other health services. This removes prescriptive rules relating to: referral by medical practitioners, restrictions on where abortions may be performed, the procedure where there is a lack of capacity to consent, and the approval of counselling services. Repealing those prescriptive rules in the CSA Act has the effect of more closely aligning regulation of abortion with the general law and policy for the health system.
Changes to criminal offences
Bill decriminalises abortion
The policy intent is to decriminalise abortion for the pregnant woman, and for health practitioners who perform an abortion or who supply products to induce an abortion. This Bill repeals offences under the CSA Act and the Crimes Act. It also repeals the grounds for lawfully aborting a pregnancy that are prescribed in the Crimes Act.
The Bill—
- repeals the offence relating to a woman who attempts to procure her own abortion:
- repeals the offences relating to abortions performed by health practitioners. Health practitioners who do not comply with relevant standards or processes for performing an abortion may be sanctioned under the complaints and discipline regime for health practitioners, under the Health Practitioners Competence Assurance Act 2003:
- repeals the offences relating to persons who perform an abortion elsewhere than in an institution licensed by the Abortion Supervisory Committee, or without authorisation from 2 certifying consultants. Those requirements are not consistent with a health approach and are being removed from the regulatory framework, so offence provisions are no longer needed.
The Bill retains important criminal offences, with necessary language changes to update and align the terminology with modern drafting. It retains the offences—
- for unqualified people (i.e., not health practitioners) who attempt to procure an abortion on a pregnant woman:
- for unqualified people (i.e., not health practitioners) supplying the means for procuring an abortion.
There is an offence of killing an unborn child under section 182 of the Crimes Act. It makes a person liable to a maximum of 14 years’ imprisonment if the person causes the death of any fetus in such a manner that they would be guilty of murder if it had become a human. Section 182 also provides that a person will not be guilty of this offence if they were acting in good faith to preserve the mother’s life.
The protections for women under this offence are unchanged and sanctions remain against any person who commits an unlawful act causing the death of a fetus in such a manner that they would be guilty of murder if that fetus had become a human. The Bill makes necessary modifications to ensure that this section does not apply to abortion under the CSA Act.
Changes to Health Practitioners Competence Assurance Act 2003
Conscientious objection
The Bill amends the Health Practitioners Competence Assurance Act 2003 to align with the changes made to conscientious objection in the CSA Act.
Part Two: Background Material and Policy Information
Published reviews or evaluations
| 2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill? | YES |
| The policy reflected in the Bill was informed by advice by the Law Commission in its Ministerial Briefing paper Alternative Approaches to Abortion Law. The Briefing papercan be found at https://www.lawcom.govt.nz/news/law-commission-briefing-paper-examines-alternative-approaches-abortion-law. The Abortion Supervisory Committee must keep under review the operation of abortion law under the Contraception, Sterilisation, and Abortion Act 1977, and report to Parliament each year on the operation of the law. The Committee’s most recent reports can be found at:
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Relevant international treaties
| 2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty? | NO |
Regulatory impact analysis
| 2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill? | YES |
| Abortion Law Reform: Regulatory impact statement, prepared by the Ministry of Justice. To be published once the Bill is introduced at: http://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human-rights/regulatory-impact-statements/ and http://www.treasury.govt.nz/publications/informationreleases/ris. | |
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| 2.3.1. If so, did the RIA Team in the Treasury provide an independent opinion on the quality of any of these regulatory impact statements? | YES |
| A Quality Assurance Panel with representatives from the Ministry of Justice and the Treasury Regulatory Quality Team has reviewed the ‘Abortion law reform’ Regulatory Impact Assessment (RIA) produced by the Ministry of Justice and dated May 2019. Overall, the Panel considers that the RIA meets the Quality Assurance criteria, with one note: “The RIA has two options under Model C for ‘gestational limits’: no statutory test up to 20 weeks, and no statutory test up to 22 weeks. The RIA contains information about some of the types of impacts of having a gestational limit versus no limit, but would be improved with information about the relative impacts of different gestational limits, for instance additional constraints or costs (e.g. stress; having to seek an abortion from a health professional that is not the person’s preferred choice) because of an approaching limit.” | |
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| 2.3.2. Are there aspects of the policy to be given effect by this Bill that were not addressed by, or that now vary materially from, the policy options analysed in these regulatory impact statements? | YES |
| Cabinet invited the Minister of Justice to issue drafting instructions on the issue of employment protections for those who have a conscientious objection, after consultation with coalition and confidence and supply parties, and with other Ministers as appropriate [CAB SWC-19-MIN-0055]. The current provision means that District Health Boards and service providers wanting to recruit individuals to provide care who may include abortion services cannot ask candidates about whether they will object. Employers cannot balance the right for individuals to conscientiously object to abortion with the employer’s need to provide health services. The Bill includes provisions to make it unlawful to discriminate based on conscientious objection and to require an employer to accommodate a qualified person who had a conscientious objection. However, the accommodation of the objection must only be to the extent that the objection would not unreasonably disrupt or impact on the employer’s ability to provide the abortion service. This change is intended to balance the right to conscientious objection with the role of employers in providing health services. The Bill also provides for applicants or employees to use the existing process under the Human Rights Act, for dealing with employment disputes that allege discrimination. | |
Extent of impact analysis available
| 2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill? | NO |
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| 2.5. For the policy to be given effect by this Bill, is there analysis available on: |
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| (a) the size of the potential costs and benefits? | YES |
| (b) the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth? | NO |
| The Regulatory Impact Analysis (RIA) contains discussion of the costs and benefits of the proposed regulatory framework for access and oversight of abortion services. There is no analysis of the options for the likely conscience matters, and these will be raised and tested as a part of any Parliamentary select committee process. Under the proposed regulatory framework, the Ministry of Health would assume full responsibility for general oversight of abortion services as a part of New Zealand’s public health system. The Ministry of Health expects that overall the monetised costs and benefits of the proposed regulatory approach would be fiscally neutral for the government. The policy proposals do not involve the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth, so this is not discussed in the RIA. | |
| 2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be impacted by: |
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| (a) the level of effective compliance or non-compliance with applicable obligations or standards? | YES |
| (b) the nature and level of regulator effort put into encouraging or securing compliance? | YES |
| The RIA referred to at 2.5 note the benefits likely to eventuate through the reforms, such as:
These will be supported by the Ministry of Health carrying out activities such as:
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Part Three: Testing of Legislative Content
Consistency with New Zealand’s international obligations
| 3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations? |
| The Ministry has considered New Zealand’s commitments under a variety of international instruments to which New Zealand is a signatory during the development of the Bill. While no international convention or treaty explicitly refers to abortion, some United Nation conventions and treaties that New Zealand has ratified contain related provisions. The provisions and treaty body recommendations relating to abortion and reproductive rights for these conventions (either in general or directed at New Zealand) are noted in the RIA. Broadly speaking, the recommendations are for New Zealand to reform its abortion law to better comply with international human rights obligations. |
Consistency with the government’s Treaty of Waitangi obligations
| 3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi? |
| The Ministry has considered the potential impacts of the Bill for Māori, referring to the Law Commission’s briefing paper. The Commission said that there were a range of views expressed about abortion within te ao Māori and that little research has been done on Māori attitudes towards abortion or relevant tikanga and mātauranga Māori. Some submitters said that abortion is not a Māori practice and goes against Māori values. Others acknowledge that view but point to evidence of induced abortion being practised prior to the arrival of Pākehā, and refer to traditional mātauranga and tikanga Māori around these practices.[1] The Law Commission also emphasised the constitutional importance of the Te Tiriti o Waitangi, and that any legislative proposals must be considered for consistency with te Tiriti. Te Tiriti and tikanga Māori are discussed on pages 60 to 64 of the Commission’s briefing paper. The Law Commission also noted the concerns about the disproportionate impact that barriers to access have on Māori. Research referred to by the Law Commission indicates that Māori adults are more likely to have an unmet need for a General Practitioner or after-hours health service due to barriers to access such as cost, lack of transport, lack of childcare and being unable to get to a medical centre. Submitters to the Law Commission stated that in areas with high Māori populations there is limited access to reproductive and contraceptive health services and information generally. The Ministry considers the proposed reforms to be consistent with Te Tiriti o Waitangi. The Ministry has identified that the principles of active protection, and equity are particularly relevant to the potential impacts of the Bill. The Waitangi Tribunal, in its recent report on Stage One of the Health Services and Outcomes Kaupapa Inquiry, states that “the Crown is obliged by the principle of active protection to provide health services that Māori need, in order to pursue actively the achievement of equitable outcomes for Māori. In turn, the principles of active protection and equity also mean these services must not only treat its patients equitably, but be equitably accessible and equitably funded.”[2] In addition, the Tribunal identified that the principle of options requires that the Crown must adequately protect the availability and viability of kaupapa Māori solutions in such a way that Māori are not disadvantaged by their choice. This is supported by the principle of equity so that options of both culturally and medically-responsive mainstream health services, and properly-resourced and supported kaupapa Māori health services – are equitably maintained and made available to Māori. Wāhine Māori are more likely to have later term abortions.[3] The disproportionate impact that barriers to health care have on Māori will be a contributing factor to this. Moving the regulation of abortion from a criminal framework to a health framework is expected to improve early access to abortion services. However, reform of the law is not able to achieve equity for wāhine Māori by itself, due to the well-documented inequality of health outcomes for Māori – and wider changes to the health system are outside the scope of the reform. It will be essential that the legislative changes are implemented so that abortion services are equitably accessible and equitably funded for wāhine Māori. This could be support through implementation of He Korowai Oranga, the Māori Health Strategy, and in particular the Effective Health and Disability Services pathway, which aims to ensure that whānau receive timely, high-quality, effective and culturally appropriate health services to improve whānau ora and reduce inequalities. Specific changes included in the Bill to improve access to abortion services include:
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Consistency with the New Zealand Bill of Rights Act 1990
| 3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990? | YES |
| Advice provided to the Attorney-General by Crown Law, or a Bill of Rights Act 1990 section 7 report of the Attorney-General, is generally expected to be available on the Ministry of Justice’s website upon a Bill’s introduction at: http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/bill-of-rights/ | |
Offences, penalties and court jurisdictions
| 3.4. Does this Bill create, amend, or remove: |
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| (a) offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)? | YES |
| (b) the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)? | NO |
| The Bill creates the following offence provisions:
The Bill consequentially amends the following offence provisions:
An objective of the Bill is to decriminalise abortion for women and health practitioners. The Bill repeals sections 182A to 187A of the Crimes Act relating to abortion, including:
The Bill also repeals offences under the CSA Act relating to:
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| 3.4.1. Was the Ministry of Justice consulted about these provisions? | YES |
| The Ministry of Justice has led the policy development of the Bill. Offence provisions were checked and approved internally through the standard process by which all offences and penalties are vetted. This process includes consideration of consistency with existing criminal offences. | |
Privacy issues
| 3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information? | YES |
| The Bill repeals a requirement in section 45 of CSA that medical practitioner provide information about performing an abortion. Section 45 notes that no records are to give the name or address of the patient. The Bill includes a regulation-making power to support the exercise of the data collection and monitoring functions, if needed to ensure data continues to be collected nationally on abortion in New Zealand. Further work will be carried out in the future to determine the nature and form of the information that needs to be collected. | |
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| 3.5.1. Was the Privacy Commissioner consulted about these provisions? | NO |
| The Office of the Privacy Commissioner would be consulted at the time any proposal to make regulations was being developed. | |
External consultation
| 3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill? | YES |
| The Law Commission’s process for developing its Ministerial Briefing paper Alternative Approaches to Abortion Law included meeting with representatives from a range of health professional bodies, health regulatory bodies and abortion service providers during the early stages of its review to gain an understanding of the issues. Many subsequently made formal submissions. In addition, with the assistance of the Ministry of Health, the Commission held a meeting with representatives of health professional bodies and abortion service providers (including district health boards) while developing its advice. This allowed the Commission to test the likely workability of the options for reform it had identified The Commission also provided an opportunity for members of the public to give their views. The Commission published a website setting out the existing law and invited the public to make submissions. In addition to views shared through the website, the Commission received submissions by email and post. The period for public submissions ran from 4 April to 18 May 2018. In total, the Commission received 3,419 submissions. The consultation and public submission process the Commission undertook is described in greater detail in its briefing paper at Appendix 4. A summary of submitters’ views is set out in Appendix 5. The Ministry of Justice has worked closely with the Ministry of Health in the development of the Bill. Te Puni Kōkiri, the Ministry for Pacific People, Ministry for Women, New Zealand Police, Office of Disability Issues and Treasury were consulted on the Cabinet paper and draft Bill. | |
Other testing of proposals
| 3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete? | YES |
| The Bill reflects advice and options developed by the Law Commission, informed by its consultation with health practitioners and organisations. The Ministry of Justice has worked closely with the Ministry of Health, which will be responsible for implementing the Bill. | |
Part Four: Significant Legislative Features
Compulsory acquisition of private property
| 4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property? | NO |
Charges in the nature of a tax
| 4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax? | NO |
Retrospective effect
| 4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively? | NO |
Strict liability or reversal of the usual burden of proof for offences
| 4.4. Does this Bill: |
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| (a) create or amend a strict or absolute liability offence? | NO |
| (b) reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding? | NO |
Civil or criminal immunity
| 4.5. Does this Bill create or amend a civil or criminal immunity for any person? | NO |
Significant decision-making powers
| 4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests? | NO |
Powers to make delegated legislation
| 4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation? | NO |
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| 4.8. Does this Bill create or amend any other powers to make delegated legislation? | YES |
| Yes, the Bill contains regulation-making powers to:
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Any other unusual provisions or features
| 4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment? | NO |
[1] Law Commission Briefing Paper, p. 63.
[2] WAI 2575: Waitangi Tribunal 2019. p.34. https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_150429818/Hauora%20Pre-PubW.pdf
[3] Abortion Supervisory Committee Annual Report 2018 https://www.justice.govt.nz/assets/Documents/Publications/ASC-Annual-Report-2018.pdf