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Law which lacks support must be repealed

This is the second of two articles by

SIR ALEXANDER TURNER,

K.8.E.,

a former President of the Court of Appeal of New Zealand.

In my first article I attempted to show that it has become obvious now, if it was not obvious before, that the abortion legislation of 1977 is impossible to enforce, and that it should be repealed on that account alone. In what now follows I will deal with some different considerations leading independently to the same conclusion; and the first of these is the way in which this legislation was passed into law.

Statutes intended to “stiffen up” the criminal law should always be very deliberately considered in the legislative process. But it cannot be argued, say the supporters of the 1977 acts, that this was not done in the present instance — look, they say, at the proceedings of the McMullin Commission, and at the time it took to canvass the whole question, and look at the comprehensive report which it presented. True; and if the acts as passed had followed in faithful detail the recommendations of the commission, they would not have been subjected to all the indignant criticisms which have been heaped upon them.

But the legislation did not faithfully follow the commission’s recommendations. The “Arthur amendment,” which rejected the clause

recommended by the commission, enabling legal abortion in cases where there was substantial risk of the child being born deformed or handicapped, is an example of the process by which Parliament allowed itself to be carried away in the cause of conscience.

So too with the amendment by which Parliament added the clause making an abortion “unlawful” even if a continuance of pregnancy is likely to result in serious danger to the life of the mother, unless the person undertaking it believes that “the danger cannot be averted by any other means.” These words were not a part of the McMullin recommendations at all, but an afterthought. In the result, the act as passed was stiffer, more drastic than the commission’s recommendations. Who, then, was responsible for the “stiffening” amendments? Not the Government. The Government party, like the Opposition, was split in halves by the bill. It was only too glad to try to escape responsibility by leaving matters to a “free vote.”

But it has already been pointed out, in the earlier article, that even though the Government did not originally sponsor the legislation, it still now cannot escape responsibility for enforcing it.

It is because governments can never escape this responsibility that the making of new criminal laws is always properly regarded as a matter of State policy. And it may, in fact, be convincingly argued that a bill creating a new criminal offence, or substantial!}' stiffening the law as to an existing one, should never be allowed to proceed in Parliament unless introduced by the Government of the day.

It is the Government which has to administer whatever provisions are enacted, and it must in the end take the responsibility of ensuring that they are workable. The Government in 1977 ran away from this responsibility. The subject of abortion was one which should never have been entrusted to a “free vote” at all.

What were the principles on which the legislators exercised their votes in Parliament? Clearly they followed the dictates of their own consciences, with the guidance of which they thought they could decide whether the procuring of an abortion was “right” or "wrong.” The question that the legislators should have asked themselves was, is there in the citizenry a predominant majority of persons who sufficiently desire a stiffening of the criminal law? If

they were unable to perceive such a majority, they should have rejected the legislation; and the Government must accept the responsibility for failing to put this matter of principle clearly before the House.

I say nothing here about the futility of allowing an issue of this importance to be decided by weary legislators in midnight sittings on the last days of a long and exhausting session. with Christmas looming upon them. I pass over the lastminute ■ amendments, some drafted without the necessary assistance of competent official Parliamentary draftsmen.

The whole process by which this legislation was passed into law seems, when examined, to be open to the strongest criticism. And perhans it will be agreed that this criticism strengthens the arguments for repeal already advanced. Finally there is a 'third group of reasons to support the same conclusion. Bv its support of the legislation, since it was passed by Parliament, the Government has not only associated itself with the acts, but has seemed to attempt to “sweep under the carpet” the difficulty of administering them.

Already the electorate has begun to tell itself that the Government is now actively supporting the new laws. The Solicitor-General has been officially asked for an opinion on the question, how

far the new acts have altered the previous law . . .

and this opinion has been published. How far it is desirable for a Solicitor-General to publish his views as to the interpretation which the Judges may (later) put upon the statutes passed in 1977. I do not say here: buf the Government has plainly attempted to use his opinion to allay public alarm on questions which must ultimatelv go to the courts for decision. This may be regarded by its opponents (and something will certainly be made of it at the next election) as another instance of executive interference in questions which the courts should be left to decide.

It will take more than the opinion Of the Solicitor-Gen-eral, issued by way of rescue to an embarrassed Administration, to convince the people that these measures were not intended by their sponsors to stiffen up, and so to change, the law, and that a reading of their words in their ordinary sense does not have exactly that effect. Where else, it may be asked, can be found the cause for the closing of the Auckland clinic, and the reasons for the doctors’ reluctance to co-operate in administering the act? But some members of Parliament may ask themselves how, . having voted in the House as a matter of conscience, for the legislation, they can now logically turn round and vote for its re-

peal. Such a turn-around would, in fact, not only be logical, but would be proper in every way.

Political decisions, acts <>f State, are not matters merely for the conscience of the individual. Members of Parliament were and are bound to decide such matters as these in accordance with principles related to State policy, not by their individual conscientious beliefs as to the moral quality of the acts as to which they ate legislating.

Left by the Government in the 1977 debate without guidance to a "free vote.” members quite wrongly allowed their individual consciences to guide them in What was not a matter for the individual conscience If they are allowed to examine the’ matter again, some at least will perceive that their votes were cast under an error of principle, as to which they had been inadequately instructed.

It has become the Government’s duty to give the House an opportunity for such a re-examination, and the duty of members, when that opportunity is given, to recast their votes in the light of the principle to which 1 have referred in these articles — viz, is there in the community the preponderance of opinion necessary to support the new legislation? If members are nor satisfied that this is — and how can they be satisfied? — they should vote for repeal.

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Permanent link to this item

https://paperspast.natlib.govt.nz/newspapers/CHP19780415.2.108

Bibliographic details

Press, 15 April 1978, Page 14

Word Count
1,266

Law which lacks support must be repealed Press, 15 April 1978, Page 14

Law which lacks support must be repealed Press, 15 April 1978, Page 14