On Newshub Nation: Simon Shepherd interviews Minister of Justice Andrew Little

• On abortion law reform: Minister of Justice Andrew Little says women have the right to have an abortion without feeling they are committing a crime. “The whole legal framework around abortion is that it is a crime in the first instance.” He said it “attaches a pretty heavy stigma to a woman who is considering an abortion and taking advice about it, for her to think that she’s actually committing a crime".

• Of the three options presented by the Law Commission in its review of the 40-year-old abortion laws, Little says he would personally like the third option enacted, which makes abortion a woman’s choice until a fetus is 22 weeks old and after that, a doctor would need to sign it off.

• He says option three covers the right of women to get advice and make a decision in consultation with her GP but bears in mind “that when a fetus enters a period of viability, that there are other public policy considerations that come into play”. He says when a fetus is 22 weeks old or more, he believes “having a threshold as laid out by the Law Commission is appropriate.”

• Little said he did not buy into the argument that having no statutory test for an abortion could lead to gender selection. “Look, I think that when we start to get into arguments like that, what we’re effectively saying is that we don’t trust women in consultation with their doctor to make a decision. Actually, women are quite capable of weighing up the variety of issues.”

• On electoral law reform: Little said he has instructed justice officials to look at laws around the transparency of election donations to make sure we have “an election donations regime that avoids at least the inference being drawn that there is unhealthy influence being wielded".

• Asked whether the taxpayer should have to foot the bill for campaigns he said “it’s not our culture. I think it’s a healthy thing for parties to have to go out and do their fundraising and, kind of, earn their keep” but “this is all ground for fertile debate, and maybe it is timely for us to have that debate.”

Simon Shepherd: Earlier this year, the Law Commission was tasked with reviewing the 40-year-old abortion laws to see whether abortion should be treated as a health issue, not as a crime as it currently is. The commissioner has now come back with three options: first, the decision to abort would be made by the woman after consulting her doctor; second, the doctor would sign it off if they agreed it was appropriate due to the woman’s physical or mental health and well-being; or third, it’s a woman’s choice until a fetus is 22 weeks old – after that, a doctor would need to sign it off. Justice Minister Andrew Little ordered the review and joins us now. Good morning, Minister.

Andrew Little: Good morning, Simon.

So, there are about 13,000 abortions performed in New Zealand each year, and over the past few years, fewer than 2 per cent of requests have been declined by a consultant. So why do we need the reform?

Well, because, at the moment, the whole legal framework around abortion is that it is a crime in the first instance. And then providing an abortion is carried out in accordance with the Contraception, Sterilisation and Abortion Act, that is effectively a defence to the crime. It attaches a pretty heavy stigma to a woman who is considering an abortion and taking advice about it, for her to think that she’s actually committing a crime but she just has to go through these hoops, and she’s okay. That’s not a good starting point.

It’s about removing the stigma, but abortion rates have actually been falling. They’re the lowest in 26 years. So is it a pressing need to reform?

Look, I think it’s an issue that has been put off and put off. The law is 40 years old. We do review all our laws eventually. This is one that should come up for review – has been reviewed now by the Law Commission. You’re right that the number of abortions is falling; the abortion rate is falling. And actually, most abortions happen well before the 22-week threshold that appears in the report. But the reality is that we know that the stories of women who are seeking abortions is because of the various hoops they have to go through. It is pushing out the time at which they get their abortion, sometimes pushing them into that second trimester. And that’s not good for women who are seeking that support and advice.

Okay. You say there’s no other health issue where a woman would be subject to these kinds of restrictions. But should abortion really be treated like another medical procedure? It’s not quite the same.

Well, it is... A woman who is seeking advice about an abortion, considering an abortion after she’s become pregnant – like any other question about her health that she seeks advice on, this is the one where two certified consultants get involved. There are statutory thresholds. There’s the risk of falling into criminal territory if it’s not done right. I mean, a woman should not have to be put in that position when seeking advice and help for this sort of situation.

But is there enough in these proposals? Abortion carries with it so much more than a routine medical procedure, like getting your tonsils out. You need counselling, maybe, and those kinds of things. It’s a much bigger decision.

Yeah, but look, everybody has the potential to have quite significant medical procedures done on them, and sometimes they need counselling. They always need good advice. You need a registered health practitioner to do the work, if you like. You want expertise, medical expertise to do that. All of that can be provided for, for a woman who is considering an abortion or wants to get an abortion when she goes to her GP. It should not require going to two certified consultants, going through a range of other things before she gets that procedure.

So, you asked the Law Commission to look at whether it should be a health issue rather than a criminal issue. 3400 public submissions – only 18 per cent expressed support for decriminalising abortion. So do you think voters actually support this?

Yes, I do. I mean...

Not on those numbers, though.

Well, a poll carried out by Family First, of all organisations, showed that actually the majority of New Zealanders support the idea of access to abortion. So people do want it. The submission process for an exercise like the one that the Law Commission carried out – it’s going to attract those with a particular interest in it. And yes, there were some very vocal and vociferous submissions made to it. Equally, there were organisations representing hundreds or, you know, dozens of people who made submissions for their particular part of the community too. So I don’t think those numbers help. In the end...

What do you mean, ‘they don’t help’?

Well, just looking at raw numbers of submissions doesn’t help. Some submissions were by organisations representing hundreds of people.

So you’re saying that those submissions aren’t representative of opinions?

If you look at a scientific opinion poll of the general public, conducted by Family First, actually it showed there’s a majority of support for the idea that woman should be entitled to get an abortion.

So the submissions don’t reflect the polling?

I think when The Law Commission does an exercise where they’re examining a particular part of the law with a particular perspective – in this case, shifting from criminal to a health perspective, naturally, you’re going to attract people who have an interest in it – perfectly legitimate, valid. interest – whether as health professionals or as interested members of the community. That is not the same as a general representation of the public. So I don’t agree with the conclusion that if you just analyse the submissions made to the Law Commission for the purposes of this exercise, that reflects the general public opinion of New Zealand.

Okay. So, the Commission has put forward three proposals, as we outlined. Which one do you favour?

Look, bearing in mind that abortion is an issue when lawmakers get to deal with it in Parliament. It is a conscience vote, so it’s a personal issue for MPs. So whatever my view is isn’t necessarily the view that might win the favour of Parliament. My personal view is option C, which I think covers the right of women to get advice from their GP and to make a decision in consultation with her GP. But bearing in mind that when a foetus enters a period of viability, that there are other public policy considerations that come into play, and I think having a threshold as laid out by the Law Commission is appropriate.

Okay. Under the second and third option, where a statutory test is needed, the Commission says that a new offence could be introduced for people who perform abortions without meeting that legal requirement. What sort of offence could that be?

Well, that’s the case now. Certainly if the statutory tests aren’t met, then arguably, an abortion carried out is being carried out in contravention of the law. So that is there at the moment. I think the point is that if the test, or the threshold test, is to have any meaning, there’s got to be consequence if an abortion is carried out without that test.

So, what would that consequence be? I mean, they’re talking about injuring by unlawful act or manslaughter. I mean, do you have any sort of preference if there was going to be an offence created for this?

Well, if there is an offence. I mean, the other way we uphold medical professional standard is of course through medical professional bodies, through the Health and Disability Commission and the work that they do. So there’s approaches through there. But if it’s deliberately flouting the law, where there is a threshold test required and it hasn’t been applied, then there is resort to the criminal law. It could be assault. It could be, you know, those standard, existing criminal offences that exist.

Right, okay. And is there a risk of unlicensed people performing abortions if you don’t have a criminal charge, if you don’t go through with that?

Well, I think at the moment, any medical procedure has to be carried out in accordance with a set of standards. The Ministry of Health sets those standards; DHBs set those standards; professional health bodies set those standards. There is a lot of standard-setting and guidance already for any medical procedure to be carried out. There’s no reason why that shouldn’t apply and those standards can apply to carrying out an abortion.

So, enough safeguards already – is that what you’re saying?

Yeah.

All right. Under the first option, where there is no legal standard, no statutory test to have an abortion, could we end up with abortions being performed for reasons like gender selection?

Look, I think that when we start to get into arguments like that, what we’re effectively saying is that we don’t trust women in consultation with their doctor to make a decision. Actually, women are quite capable of weighing up the variety of issues. Some will, you know... What will be weighing on their minds will be moral issues as well as their mental and physical health. For other women, it will be a set of other issues. I mean, women are quite capable of making these judgements themselves. I don’t quite buy into this argument that we should start working through a checklist of potential things, reasons why a woman might seek an abortion. Everybody knows that this is a sensitive issue. It’s a difficult issue for women. But, you know, we just have to have a law that reflects the fact that women can and should be trusted to make that decision in consultation with their GP.

But the Law Commission says that maybe the government should do some more work on this area, because it cites some evidence from Canada and Victoria where immigrant women seem to be having more male babies than female babies. And it says that it could be a possibility of sex selection through abortion.

Yeah, and they raised the issue too about consent and genuine consent and informed consent and the idea that, you know, the decision is the woman’s decision, and she’s not being coerced or overborne by her partner or somebody else who’s wanting a particular sort of outcome. But that is the role of the medical professional who the woman consults is to make sure that she’s making that decision for herself.

Okay. This is going to be a conscience vote, so how confident are you that you actually get this over the line?

Well, we made a commitment that we would look at what it would take to shift abortion from a criminal framework to a health framework. We now have some suggestions by the Law Commission. I’ll work up a cabinet paper. Cabinet’s role will be to decide on a process. And we’ll get a draft law in front of Parliament at some point. In the end, it will be up to enough MPs in Parliament deciding we want to make this change. I couldn’t predict where that’s going to go at the moment.

Because we’ve heard some Labour MPs are planning to vote against it, some National MPs.

Sure. And that will happen. Equally, I’ve spoken to National MPs who say they are keen to support a move; they want to see what the detail looks like. So, look, there’s a lot of work to do before that happens. In the end, it’ll be the collective will of Parliament or enough MPs in Parliament to make a decision to make a change.

All right. I want to move on to electoral reform. Now, you’ve instructed justice officials to look at laws around the transparency of election donations. What exactly concerns you, to make that request?

Look, this is the perennial issue that comes up periodically. We’ve had it before. But the idea— And we saw it recently with the stories about the possibility that a large donation might have been broken up in order to come under the disclosure rule or avoid the disclosure rules.

That’s Jami-Lee Ross’ allegation you’re talking about?

Yeah. So, I think we need to make sure that the laws we’ve got are effectively preventing that kind of device, that kind of trickery. And I’m not suggesting that it is happening, but if our laws aren’t robust enough to avoid that happening, then we need to make sure that the law is fit for purpose.

Okay. Well, in the electoral returns from the last elections, National had $3.5 million in undeclared donations. Your coalition partner New Zealand First had almost half a million in total donations and not one donor declared. So there is no transparency there, is there?

Well, because the law says if it’s a donation to the party under $15,000, then you don’t have to disclose who the donor is.

So, should you, in your view? I mean, should you have to declare? I mean, the Greens want any donation over $1000, you have to declare the donation.

Yeah. So the debate is often where that threshold should sit. And in the end, this all comes down to, people want to know – is there anybody in the political system or sitting outside the place of politicians trying to seek influence and conceal that influence in an unhealthy way? We need to make sure we have an election donations regime that avoids at least the inference being drawn that there is unhealthy influence being wielded.

Sure. So to get away from that, the prime minister says that it would be easier if parties didn’t have to fundraise. So should the taxpayer have to foot the bill for campaigns?

Look, from time to time, the issue of state funding of political parties comes up. It’s not our tradition; it’s not our culture. I think it’s a healthy thing for parties to have to go out and do their fundraising and, kind of, earn their keep. There is some state funding of political parties. We see that with the broadcasting allocation each election. But this is all ground for fertile debate, and maybe it is timely for us to have that debate.

And changes by the next election or before the next election?

Look, I’ve asked justice officials to have a look at that. There are some changes I am keen to see in the Electoral Act, more technical ones, before the 2020 election. Whether we get on to changing the laws around electoral donations, I mean, there’s a lot of discussion to have with all political parties before we get down that path.

All right. Pike River decision is coming up. So, the Pike River Recovery Agency has done the risk assessments. Three options for re-entering the mine, and they’ve told you their preferred option. Can you tell us what that is?

No, I can’t. I formally get their report next week. We know almost certainly it is going to entail more funding required. I’ve got to go to Cabinet to get that funding. That’ll take a couple of weeks before I get any decision on that. Once I have the agency’s report, Rob Pfeifer, my independent ministerial advisor’s report and the decision on Cabinet on the funding, then I’ll make a decision. That’ll be mid-November.

Justice Minister, thank you very much for your time this morning.

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