Right to Life New Zealand Inc. v The Abortion Supervisory Committee

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,Blanchard,Tipping JJ,Blanchard J,McGrath,William Young JJ,McGrath J
Judgment Date09 Aug 2012
Neutral Citation[2012] NZSC 68
Docket NumberSC 73/2011

[2012] NZSC 68

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, Blanchard, Tipping, McGrath and William Young JJ

SC 73/2011

Between
Right to Life New Zealand Inc
Appellant
and
The Abortion Supervisory Committee
Respondent
Counsel:

P D McKenzie QC, I C Bassett and R Wong for Appellant

C R Gwyn and W L Aldred for Respondent

Appeal from a Court of Appeal decision which held the respondent did not have a statutory power to examine the merits of decisions of certifying consultants permitting abortions in individual cases — whether s14 Contraception, Sterilisation, and Abortion Act 1977 (“CSAA”) (functions and powers) and s36 CSAA (certifying consultants to keep records and submit reports) gave the respondent the power to make findings about the lawfulness of decisions of certifying consultants — whether the High Court should have expressed the view there was reason to doubt the lawfulness of many abortions authorised by certifying consultants.

Held (per majority): Section 14(1) CSAA was cast in very general terms, which was consistent with the view expressed in Wall v Livingston (where an application for judicial review intended to stop a particular abortion from being carried out was unsuccessful) that the Committee's responsibility was for general oversight only. Under s14 CSAA. the Committee was required to keep under review the provisions of the abortion law under the CSAA and the Crimes Act 1961 provisions on abortion. But it also had to keep under review the operation and effect of those provisions in practice. So it had to inform itself about how the Act was operating in practice in the general run of cases. It had to do what was reasonable and practical to ensure the consistent administration of the abortion law throughout New Zealand.

The Committee could not make any inquiry or investigation into the decision-making in an individual case where that would question a decision actually made in a particular case ( Wall v Livingstone). The Committee could ask a consultant how he was approaching decision-making in general over the whole of his workload under the CSAA, but it could not question him about how he came to a diagnosis or conclusion in a particular case, even one selected at random and anonymised in the consultant's response. Doing so would engage the Committee in a process of attempting to review the clinical judgment of the consultant in an individual case something which was not contemplated by the CSAA. Section 36 CSAA distinguished between the keeping of records by a consultant and submitting reports relating to cases considered by him and the performance of his functions in relation to such cases. If the Committee did have such a power, it would be expressed in the CSAA.

The Committee's function was one of general oversight only. It was not empowered to act as a quasi-inquisitorial or disciplinary body called upon to make the detailed investigations required of such a body. That task was properly left to the Health and Disability Commissioner and the procedures under the Health Practitioners Competence Assurance Act 2003, where there were the necessary powers and safeguards.

The Committee not only had the power to make generalised enquiries in fulfilment of its functions of keeping under review the operation of the provisions of the abortion law under s14(1)(a) CSAA, but it should make such inquiries from time to time — but not on the basis of individual cases. It did seem the Committee had not been making inquiries of that nature because it had believed it lacked the power to do so. If that was the position, then the Committee had not fully appreciated the breadth of its functions and powers.

The High Court judge's comments had not amounted to conclusions on the issues before him but were rather in the nature of comments on what he saw in the materials which he had to consider. Such comments are not uncommon. Judges should take care over what they said in their reasons for judgment but on occasion it would be appropriate for them to be forthright. If the matter went to appeal against an order made by the Judge it was equally be open to the appellate court to express its own views if they differed.

Unless, however, what was said is an integral part of a decision which the Judge had made, it would generally not be something to which a right of appeal applied. An appeal must be against the result to which a decision maker had come, namely the order or declaration made or other relief given, not simply against the conclusions reached by the decision maker which led to that result. The Court of Appeal majority was correct that these observations were of no lawful effect. They were commentary and not part of the decision.

The Judge did go too far when he appeared to question the lawfulness of abortions authorised by certifying consultants. Once the necessary certificate has been given by two consultants the ensuing abortion was not unlawful under s187A unless the operating surgeon did not at the time believe it to be lawful in terms of that section. It was open to the Judge and to the CA to express opinions about the conduct of the Committee or the operation of the Act. However in this highly sensitive field it would serve no good purpose for the Supreme Court to weigh in with its own opinion. Its job on this appeal was to determine whether the Committee had misinterpreted its functions and powers, which it had done and further consideration of this matter should be left to the Committee and possibly to Parliament.

Appeal dismissed.

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

Para No

Elias CJ, Blanchard and Tipping JJ

[1]

McGrath and William Young JJ

[55]

Elias CJ, BlanchardANDTipping JJ

(Given by Blanchard J)

Introduction
1

The appellant, Right to Life New Zealand Inc, takes the position that the Abortion Supervisory Committee, established under the Contraception, Sterilisation, and Abortion Act 1977, is not fulfilling its statutory functions and that, in consequence, abortions are being approved in circumstances in which they should not be permitted. It has made an application for judicial review, naming the Committee as respondent, in which it asserts that the Committee has misinterpreted its statutory powers, in particular in the Committee's expressed belief in its annual reports to Parliament that the Act gives it “no control or authority or oversight in respect of the individual decisions of [certifying] consultants”. 1

2

In the High Court Miller J held that the Committee was misinterpreting its functions and powers by reasoning that it was precluded from reviewing or scrutinising such decisions of certifying consultants. 2 He found that it was able to do so using its powers in s 36 of the Act to require consultants “to keep records and report on cases they have considered, for the purpose of performing its statutory functions”: 3

Those functions include keeping under review all the provisions of the abortion law, as defined, and their operation and effect in practice, reporting to Parliament on the operation of the abortion law, keeping the procedure for authorising abortions under review, ensuring the administration of the abortion law is consistent throughout New Zealand, and appointing and removing consultants. The Committee may form its own opinion about the lawfulness of consultants' decisions to the extent necessary to perform these functions.

The Judge expressed the opinion that there was “reason to doubt the lawfulness of many abortions authorised by certifying consultants”, noting that the Committee itself had stated (in a report to Parliament) that the law was being used more liberally than Parliament intended. 4 He also commented: 5

The approval rate seems remarkably high, bearing in mind that under s 187A [of the Crimes Act 1961] the consultants must form the good faith opinion that continuance of the pregnancy would result in serious danger to the mother's health.

But later in his reasons he made it clear that he had reached no final conclusion on whether certifying consultants were complying with the abortion law: 6

It is for the Committee to assess these matters. I accept that the Committee is on notice that certifying consultants collectively are apparently employing the mental health ground in much more liberal fashion than the legislature intended, and it also seems that there may be inconsistencies in their application of the law.

3

The Judge refused, however, to grant mandatory relief and in a later decision declined to grant any declaration. 7

4

The Court of Appeal, by majority, allowed the Committee's appeal. 8 It held that the Committee did not have the power found by the High Court in individual cases and that it was not open to the Committee to form its own opinion about the lawfulness, including the clinical correctness, of particular decisions of certifying consultants. 9 The majority said that, given its conclusions on the nature and scope of the Committee's functions and powers, the factual findings or observations of the type made by the Judge were inappropriate and that no such findings should have been made. 10 It concluded that the findings as to lawfulness of the decision-making of the certifying consultants or judicial comment about New Zealand having abortion “on request” ought not to have been made in the circumstances of the case, and were of no lawful effect. 11 From that decision Right to Life appeals to this Court.

The Royal Commission and the legislation
5

The 1977 Act largely implemented recommendations of a Royal Commission 12 which had reported in March of that year. The Commission had discussed the considerations to which it thought any legal policy on abortion law should have regard and had set out the basis of a suggested legal code “which aims

to remove the doubts and uncertainties which at present exist in the...

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