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

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeStevens JJ,Stevens J,Arnold J
Judgment Date01 Jun 2011
Neutral Citation[2011] NZCA 246
Docket NumberCA522/2009

[2011] NZCA 246

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Chambers, Arnold and Stevens JJ

CA522/2009

Between
The Abortion Supervisory Committee
Appellant and Cross-respondent
and
Right to Life New Zealand Inc
Respondent and Cross-appellant
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

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).

Held: (Arnold J dissenting) There was no basis from either the long title of the CSA (… to provide for the circumstances and procedures under which abortions may be authorised after having full regard to the rights of the unborn child) or the abortion law to derive an express right to life for an unborn child. There was no basis in the CSA for an express right to life, nor did that concept give rise to a procedural obligation of inquiry/investigation on the part of the Committee to inquire into whether certifying consultants were complying with the law. The CSA could not be interpreted to provide a state interest/right to life. Section 8 NZBORA did not extend to unborn children. It followed then that s6 NZBORA (interpretation consistent with Bill of Rights to be preferred) did not apply to the interpretation of abortion law. The United Nations Convention on the Rights of the Child defined a child as under the age of 18 years, but did not set a lower limit and did not apply to unborn children.

None of the functions or powers of the Committee as set out in s14(1)(a)(i) CSA (to take all reasonable and practicable steps to ensure that the administration of the abortion law is consistent and to ensure the effective operation of the CSA) or s36 CSA (certifying consultants to keep records and submit reports) empowered the Committee to review or scrutinise decisions of certifying consultants in relation to either the authorisation or refusal of an abortion. Therefore, it was not open to the Committee to form its own opinion about the lawfulness of the consultant's decisions. This conclusion was consistent with the tenor of the Act as a whole and with the decision in Wall v Livingston. The CSA characterised decisions of certifying consultants as medical assessments and the CSA had been careful to immunise the Committee from involvement in decisions made by health professionals on medical and clinical grounds. The power of an after the fact review would create practical difficulties. The power of review under s14 CSA operated at a general level (as envisaged by the Royal Commission of Inquiry that preceded the CSA) and the Committee could not intervene in the absence of bad faith.

With regard to the findings as to lawfulness of decision making of the certifying consultants, the HC finding that there was reason to doubt the lawfulness of many abortions authorised by certifying consultants should not have been made. The appropriate channels for investigation would involve either a complaint by patient or potentially by the Committee itself, in which case the Health and Disability Commissioner would investigate. Alternatively a complaint might be made to the police leading to them investigating the matter. The comments were of no lawful effect.

Appeal by the Committee allowed. Cross-appeal by Right to Life dismissed.

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...

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