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

• Jurisdiction: New Zealand
• Judge: Elias CJ,Blanchard,Tipping JJ,Blanchard J,McGrath,William Young JJ,McGrath J
• Judgment Date: 09 August 2012
• Neutral Citation: [2012] NZSC 68
• Docket Number: SC 73/2011
• Court: Supreme Court
• Date: 09 August 2012

Between

Right to Life New Zealand Inc

Appellant

and

The Abortion Supervisory Committee

Respondent

[2012] NZSC 68

Court:

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

SC 73/2011

IN THE SUPREME COURT OF NEW ZEALAND

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.

Counsel:

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

C R Gwyn and W L Aldred for Respondent

The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS

	Para No
Elias CJ, Blanchard and Tipping JJ	[1]
McGrath and William Young JJ	[55]

Elias CJ, Blanchard AND Tipping 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 law”: 13

We recommend the setting up of a committee which is to have general oversight of the administration of the abortion law in this country. It has been our aim to ensure some uniformity of approach which has hitherto been lacking. The committee would help to attain this object. It would prescribe standards and give general supervision to the working of the abortion law. There is a need for adequate counselling services to be provided before any decision on abortion is made. The setting up of such services would also be the responsibility of the committee. Our recommendation is that the decision should be made by panels established by the statutory committee but, as an alternative, we recommend that the decision should be made by two doctors.

It expanded upon the “two doctors” suggestion: 14

That, as an alternative to the system of decision-making by panels, the decision be made by two doctors under the general framework and supervision of the statutory committee, and that such decision then be made only after the pregnant woman has been counselled at the counselling service established by the statutory committee or at one approved by it.

6 Parliament chose to implement this alternative recommendation. The Commission recognised that there were criticisms which could be made of it. There was the risk that the two doctors would give effect to their own personal views in deciding whether the criteria for approving an abortion had been met, and that a decision in one locality might differ from that made in similar circumstances in another. But it considered that the risk was reduced by requiring a decision of two doctors and was “further reduced by the supervision and oversight which the

statutory committee would give to the working of the abortion laws in New Zealand”. 15

7 The long title of the 1977 Act is:

An Act to specify the circumstances in which contraceptives and information relating to contraception may be supplied and given to young persons, to define the circumstances under which sterilisations may be undertaken, and to provide for the circumstances and procedures under which abortions may be authorised after having full regard to the rights of the unborn child

The Act defines in section 2 the “[a]bortion law” as every provision of ss 10–46 of

the Act and of ss 182–187A of the Crimes Act 1961

8 Section 10 of the Act constituted the Abortion Supervisory Committee, consisting of three members, of whom two must be medical practitioners. The powers and functions of the Committee are as follows:

14 Functions and powers of Supervisory Committee

• (1) The Supervisory Committee shall have the following functions:

  • (a) To keep under review all the provisions of the abortion law, and the operation and effect of those provisions in practice:

  • (b) To receive, consider, grant, and refuse applications for licences or for the renewal of licences under this Act, and to revoke any such licence:

  • (c) To prescribe standards in respect of facilities to be provided in licensed institutions for the performance of abortions:

  • (d) To take all reasonable and practicable steps to ensure—

    • (i) That licensed institutions maintain adequate facilities for the performance of abortions; and

    • (ii) That all staff employed in licensed institutions in connection with the performance of abortions are competent:

  • (e) To take all reasonable and practicable steps to ensure that sufficient and adequate facilities are available throughout New Zealand for counselling women who may seek advice in relation to abortion:

  • (f) To recommend maximum fees that may be charged by any person in respect of the performance of an abortion in any licensed institution or class of licensed institutions, and maximum fees that may be charged by any licensed institution or class of licensed institutions for the performance of any services or the provision of any facilities in relation to any abortion:

  • (g) To obtain, monitor, analyse, collate, and disseminate information relating to the performance of abortions in New Zealand:

  • (h) To keep under review the procedure, prescribed by sections 32 and 33, whereby it is to be determined in any case whether the performance of an abortion would be justified:

  • (i) To take all reasonable and practicable steps to ensure that the administration of the abortion law is consistent throughout New Zealand, and to ensure the effective operation of this Act and the procedures thereunder:

  • (j) From time to time to report to and advise the Minister of Health and any district health board established by or...