Safe Areas Bill a brazen attack on freedom of speech and right to protest

The so-called Safe Areas Bill will have its second reading in Parliament tomorrow. It’s a brazen attack on freedom of speech and the right to protest, made more offensive by the fact that some of the MPs who support it cut their political teeth exercising that same right.

The Bill, sponsored by Labour MP Louisa Wall and subject to a conscience vote, would allow the Minister of Health to designate 150-metre “safe areas” around abortion clinics from which protesters would be barred. It appears to be a unique protection accorded no other public buildings.

Officially named the Contraception, Sterilisation and Abortion (Safe Areas) Amendment Bill, the legislation threatens to curtail the right of anti-abortion activists to maintain even silent, passive vigils outside abortion clinics.

It has been promoted on the pretext that vulnerable patients attending abortion clinics risk being intimidated, obstructed and harassed. Yet the Christchurch-based anti-abortion group Right to Life submitted Official Information Requests to 20 district health boards inquiring whether patients or staff had suffered any such harassment or intimidation during the two years from 2019 to 2021, and none reported any.

So the need for “safe areas” has not been demonstrated and the Bill should be seen for what it is: an attempt to shut down legitimate protest against a practice that conservative Christians regard as profoundly wrong, but which is celebrated by the political Left as a defining triumph of feminism.

The Bill passed its first reading last March by a margin of 100 to 15 with two abstentions, but that’s not necessarily an indication of how MPs will vote the second time around. ACT’s 10 MPs all voted in favour of the Bill then, but party leader David Seymour said he had concerns about freedom of expression and wanted the Bill properly examined by a select committee. 

Only three Labour MPs – Anahila Kanongata’a Suisuiki, Jamie Strange and Rino Tirikatene – voted against it. All Green MPs supported it and National was split: 19 in favour and 12 against. Christopher Luxon, who has since become the party leader, was one of those opposed.

Trevor Mallard and Chris Hipkins supported the Bill. Both were arrested for protest activity before they launched their political careers but later had their convictions overturned. They apparently see no inconsistency in denying others a right they once vigorously asserted for themselves. 

The Bill will become law because of its overwhelming support from Labour and the Greens, but interest will centre on whether any MPs change their position now that the Bill has been through the select committee process. The vote will be a test of their commitment to the principles not just of free speech but of freedom of assembly and religion.

Seymour wasn’t the only person concerned about the threat to free speech. Even David Parker, who as Attorney-General was statutorily obliged to report to the House on whether the Bill complied with the Bill of Rights Act (BORA), conceded that a clause which would have criminalised the act of “communicating” with abortion patients in a manner likely to cause distress was “overly broad” and appeared inconsistent with BORA.

In its submission opposing the Bill the Free Speech Union agreed with that conclusion, but pointed out to the select committee that the legislation wasn’t necessary in the first place because protection against intimidation or threats is provided under existing law. The Summary Offences Act, for example, makes it an offence to direct insulting or threatening words at another person. There is also a legal prohibition against harassment – a word whose definition, the union said, would be expanded under Wall’s Bill.

The union went on to say: “It is not the speech of the majority that requires vigilant protection. It is the speech of the few that must be jealously guarded.” The union cautioned that the traditional legal test of what is “reasonable” was in danger of becoming one of what was “comfortable”. 

In a spirited defence of the right to dissent, it said: “We are flummoxed by the suggestion that in a democracy, where government is created by people of different interests and beliefs, some ideas are deemed too different or disagreeable to be allowed. This suggestion is antithetical to democracy.”

The Bill that’s returning to the House tomorrow gives the impression of having been toned down, but it’s illusory. While the clause that failed the BORA test has gone, that doesn’t make the Bill any more palatable. Under the amended version, any person who “engages in protest about matters relating to the provision of abortion services” within a “safe areas” zone would be committing a criminal act. 

It’s hard to imagine a more sweeping provision. The new section would give activist judges – who have proliferated in the 32 years since the passage of BORA, as the union noted in its submission – licence to convict people for doing nothing more menacing than silently praying on a public street anywhere within 150 metres of an abortion facility.  This can only have a chilling effect on the right to protest. 

Regardless of their views on abortion, those who believe in free speech and the associated right to protest should take careful note of how MPs vote. National and ACT MPs, in particular, will be watched to see whether their votes align with their parties’ supposed commitment to freedom.

Written by Karl du Fresne, reprinted by request from his personal blog.  

Disclosure: The writer is opposed, in general terms, to abortion on demand but views that as irrelevant to the issue of free speech and freedom of assembly.