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

• Jurisdiction: New Zealand
• Judge: Stevens JJ,Stevens J,Arnold J
• Judgment Date: 01 June 2011
• Neutral Citation: [2011] NZCA 246
• Docket Number: CA522/2009
• Court: Court of Appeal
• Date: 01 June 2011

Between

The Abortion Supervisory Committee

Appellant and Cross-respondent

and

Right to Life New Zealand Inc

Respondent and Cross-appellant

[2011] NZCA 246

Court:

Chambers, Arnold and Stevens JJ

CA522/2009

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against High Court decision that respondent had the power to review decisions of certifying consultants under Contraception, Sterilisation, and Abortion Act 1977 — cross-appeal against finding that unborn children do not have an express right to life — whether s14 (functions and powers of Supervisory Committee) and s36 (certifying consultants to keep records and submit reports) empowered the respondent to scrutinise decisions of consultants — whether an unborn child had express right to life at common law or under s8 New Zealand Bill of Rights Act 1990 (right not to be deprived of life).

Counsel:

C R Gwyn and W L Aldred for the Abortion Supervisory Committee

P D McKenzie QC and I C Bassett for Right to Life New Zealand Inc

JUDGMENT OF THE COURT

A The appeal is allowed.

B The costs order against the Abortion Supervisory Committee in the High Court is set aside. The Committee is entitled to costs in the High Court. In the absence of agreement, such costs are to be fixed by the High Court.

C The cross-appeal is dismissed.

D Right to Life New Zealand Inc must pay the Abortion Supervisory Committee costs for a complex appeal on a band B basis and usual disbursements. No separate costs award for the cross-appeal. We certify for second counsel.

REASONS

Chambers and Stevens JJ	[1]
Arnold J (dissenting in part)	[154]

CHAMBERS AND Stevens JJ

(Given by Stevens J)

Table of Contents

Para No	What must the Committee do?	[1]
The Royal Commission report	[7]
The abortion law	[9]
The Committee	[15]
Functions and powers of the Committee	[17]
The licensing of institutions	[20]
Appointment or approval of counselling services	[25]
Committee to set up and maintain list of certifying consultants	[27]
The determination of an abortion case	[30]
Conscientious objection	[34]
Keeping of records and submitting reports	[36]
Reporting to Parliament	[38]
The pleadings	[39]
The issues for determination	[43]
The cross-appeal	[45]
An express right to life for the unborn children?	[48]
Submissions of the parties on express right to life	[51]
Discussion	[53]
Has the “born alive” rule been modified?	[56]
High Court decision	[56]
Discussion	[58]
Does s 8 of the NZBOR Act apply to the unborn child?	[60]
High Court decision	[61]
Discussion	[64]
United Nations Convention on the Rights of the Child	[65]
Provision of counselling services by licensed institutions	[68]
Is independence necessary?	[70]
Failure of the Committee to appoint counsellors or counselling agencies	[73]
Are certifying consultants obeying the abortion law?	[76]
High Court decision	[77]
The nature of the Committee's functions	[82]
Appellant's submissions	[83]
Submissions of RTL	[89]
The scope of Wall v Livingston	[95]
Our evaluation	[100]
How has the Committee discharged its functions	[110]
What information does the Committee receive and does it conduct audits of such information?	[121]
The evidential findings	[130]
The approval rate for abortions	[131]
Reason to doubt the lawfulness of many abortions	[135]
Observations on judgment of Arnold J	[138]
Result	[150]

What must the Committee do?

1 This case concerns the functions and powers of the Abortion Supervisory Committee (the Committee). Right to Life New Zealand Inc (RTL) has brought judicial review proceedings seeking declarations as to how and when the Committee must exercise its functions and powers. RTL alleges various breaches, principally concerning claimed omissions by the Committee to act on failures by medical professionals involved in the abortion process to comply with the law. At the heart of these complaints is the Committee's alleged failure adequately to perform its statutory function of keeping under review all the provisions of the abortion law, and, in particular, its unsatisfactory auditing of the activities of certifying consultants who authorise abortions. That includes not requiring certifying consultants to provide reports of cases considered to the Committee. RTL is concerned that abortions are available “on request” in New Zealand.

2 These issues came before Miller J in the High Court. In summary, the Judge concluded that there was reason to doubt the lawfulness of many abortions authorised by certifying consultants and that it was likely that the law was being applied more liberally than Parliament intended. The Judge held that the Committee's belief that it was unable to review or scrutinise the decisions of certifying consultants was a misinterpretation of its statutory functions and powers. Rather, the Committee did have authority to review the operation and effect of the Contraception, Sterilisation and Abortion Act 1977 (the CSA Act) including the lawfulness of certifying consultants' decisions. 1 In a second judgment the High Court declined to make declarations against the Committee. 2 A third judgment awarded costs to RTL. 3

3 The Committee appeals against the judgments, including the costs decision, and raised three key grounds:

• (a) the Court lacked jurisdiction to consider the question whether certifying consultants were obeying abortion law; and

• (b) if there was jurisdiction, there was no evidential foundation to support the Judge's findings regarding the approval rate or lawfulness of abortions; and

• (c) the Court erred in concluding that review by the Committee of certifying consultants' decisions to authorise or refuse abortions in individual cases was consistent with Wall v Livingston. 4

4 RTL has filed a cross-appeal against the findings of Miller J as to the requirements regarding counsellors and the notion of the right to life of unborn children. RTL also challenges the decision of Miller J in the second judgment not to make declarations against the Committee, submitting that there are strong reasons to support the making of declarations in this case.

5 We consider that the outcome of the appeal turns on the proper interpretation of the CSA Act. To that task we will apply the normal principles of interpretation requiring the meaning of the statute to be ascertained from its text and in the light of its purpose. 5 The CSA Act was preceded by a Royal Commission of Inquiry 6 that reported its findings in March 1977. 7 Most of the recommendations were enacted by Parliament and counsel for both parties accepted that the report could be used as an aid to interpretation where the statutory language is ambiguous. 8

6 Before discussing the questions for interpretation, we propose to refer briefly to what the Royal Commission envisaged when recommending the establishment of a committee to oversee the implementation and operation of the abortion law. After considering briefly the content of the abortion law, we will examine the nature of the statutory body Parliament established and what functions and powers it gave the

Committee. We then discuss how generally the Committee has gone about discharging such functions and powers. Reference will be made to the allegations pleaded against the Committee, before examining whether, in the light of our interpretation of key provisions of the CSA Act, RTL has established that the Committee has in fact breached the statutory obligations placed on it by Parliament

The Royal Commission report

7 The Royal Commission reported on the considerations of legal policy to which it recommended Parliament have regard when it implemented the legislation establishing the law in the area of abortion and the right of Parliament to intervene in what some say is a matter of a woman's choice. The Royal Commission therefore set out in some detail the basis of a legal code in Chapter 25 which, it was hoped, would “remove the doubts and uncertainties which at present exist in the law …”. 9 The report dealt with the recommendation to establish a committee, modelled on the one that reported annually to the Parliament of South Australia. 10 In the Summary, the Royal Commission said that Chapter 25 was “of considerable importance because it deals with the means by which the legal code should be implemented and the abortion decision made”. 11 Thus, the recommendation involved:

… 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.

8 We will return later to the observations as to the role of the proposed committee and the general supervisory jurisdiction that was recommended. Significantly, the recommendation was later repeated in the body of Chapter 25 in the following terms:

We recommend the establishment of such a committee [as in South Australia] in New Zealand and consider that it would be better suited to the general oversight of the administration of the abortion law than the Department of Health which is already heavily charged with health care in

so many other areas. We envisage a committee of three members, two of whom should be experienced medical practitioners. In order to preserve some consistency of approach and outlook, the chairman of such a committee should hold office for a term of years, particularly at the outset.

The abortion law

9 When the CSA Act was enacted in 1977, the...