Right to Life New Zealand Inc v Rothwell HC Wellington CIV 2005-485-999

[2005] NZHC 487

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2005 485 999

IN THE MATTER OF     Part I of the Judicature Act 1972 and Rule

623 of the High Court Rules

AND IN THE MATTER OF  The Contraception, Sterilisation and

Abortion Act 1977

BETWEEN  RIGHT TO LIFE NEW ZEALAND INCORPORATED

Plaintiff

ANDLESLEY ROTHWELL, PAPAARANGI REID AND MARLENE LAMB

First Defendants

ANDTHE ATTORNEY-GENERAL Second Defendant

Hearing:         8 September 2005

Counsel:C R Gwyn and W L Aldred for the First and Second Defendants, in support

P D McKenzie QC for the Plaintiff, to oppose

Judgment:      11 October 2005

JUDGMENT OF WILD J:  STRIKE OUT APPLICATION

Introduction

[1]      What rights does an unborn child have under New Zealand law, and to what extent are those rights enforceable through the Courts by concerned persons?

[2]      Those are the issues underlying this proceeding, which was commenced on

13 May 2005.  The plaintiff is a Christchurch based charitable society dedicated to:

RIGHT TO LIFE NEW ZEALAND INCORPORATED V ROTHWELL, REID AND LAMB And Anor HC WN CIV 2005 485 999 [11 October 2005]

…  Maintaining and improving the legal, social and medical safeguards of protecting and preserving the rights of unborn children and informing and educating the public on the need for legal and other safeguards for protecting and preserving the rights of unborn children.

[3]      No issue arises as to the genuineness of the plaintiff’s members in pursuing those purposes.  But the defendants allege both that the proceeding does not plead any tenable cause of action, and that it is vexatious or otherwise an abuse of this Court’s process.  On those two grounds, the defendants, by application filed on 20

June, applied for orders striking out or dismissing the proceeding.  That application is now directed to the amended statement of claim filed on 29 July.

[4]      The proceeding seeks judicial review of the performance by the Abortion Supervisory  Committee   (“the   Committee”)   of   its   statutory   functions.      The Committee is constituted by s10 of the Contraception, Sterilisation, and Abortion Act 1977 (“the CSA Act”).   The relief sought is a declaration and orders in the nature of mandamus.  Broadly, the defendants submit:

a)       The  declaratory  and  mandamus-type  relief  sought  by  the  plaintiff would be inconsistent with the provisions of the Contraception, Sterilisation and Abortion Act 1977 (“the Act”), as interpreted by the Court of Appeal in Wall v Livingston [1982] 1 NZLR 734.

b)The  order  of  mandamus  would,  if  granted,  have  the  effect  of compelling,  on  an  on-going  basis,  both  the  exercise  of  statutory powers as opposed to duties, and the exercise of statutory discretions in a particular way.

[5]      There is no dispute that the strike out principles summarised by the Court of Appeal in Attorney-General v Prince and Gardner [1998] 1 NZLR 262 at 267 apply to an application to strike out a judicial review proceeding such as this: Southern Ocean  Trawlers  Ltd  v  Director-General  of  Agriculture  and  Fisheries  [1993]  2

NZLR 53 (CA).

[6]      There is also substantial agreement as to the principles applicable to the grant of mandamus.  In particular, it is common ground that:

a)       Mandamus is available to enforce the performance of a statutory duty resting   on   the   body   being   reviewed,   which   duty   is   clearly ascertainable from the relevant statute.

b)       Generally, the Court is only able to order that the duty be carried out

“according to law”, not that it be performed in a particular way.

c)       Although mandamus will not lie to compel the exercise of a discretion in a particular way, it is available to compel or direct the body under review to exercise a statutory discretion which it has refused or failed to exercise, or is exercising in a manner that frustrates the objects of the statute conferring the discretion:   Padfield & Ors v Minister of Agriculture,  Fisheries  and  Food  & Ors  [1968] AC 997 (HL), in particular Lord Reid at 1030.

Background

[7]      The CSA Act substantially enacted the recommendations in the March 1977 report of the Royal Commission of Inquiry into Contraception, Sterilisation and Abortion in New Zealand.   The CSA Act does not stipulate the circumstances in which it is lawful to perform an abortion, but refers to s187A of the Crimes Act 1961 which provides exceptions to the crimes (contained in ss 182-183 and 186) of procuring  an  abortion  or  supplying  the  means  of  procuring  an  abortion.    The reference to s187A is in ss 32 and 33 of the CSA Act, which outline the procedure to be followed where a woman seeks an abortion, and the way in which that woman’s case is to be determined.

[8]      In Wall v Livingston the Court of Appeal at 737 stated that the Act:

… reflects the very careful attempt made by Parliament to balance the deep philosophical and moral and social attitudes which surround this whole subject-matter.  They are discussed in the report of the Royal Commission

…

[9]      Mr McKenzie submitted that the “balance” which the Court was referring to is particularly evident in s30(5) which refers to views about abortion incompatible

with “the tenor of this Act”.   The sub-section then sets out two views considered incompatible in that sense:

(a)  That abortion should not be performed in any circumstances:

(b) That the question of whether an abortion should or should not be performed in any case is entirely a matter for the woman and a doctor to decide.

[10]     Mr McKenzie accepted that the first of those views lies at one end of the spectrum, the second toward, but not at, the other end of the spectrum.  That opposite end would be represented by a belief that abortion should be available “on demand”.

[11]   Importantly for the present application, the CSA Act conferred on the Committee the functions and powers set out in s14 of the Act.   Four  of these functions are particularly relevant:

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

…

(e)   To  take  all  reasonable  and  practical  steps  to  ensure  that sufficient and adequate facilities are available throughout New Zealand  for  counselling  women  who  may  seek  advice  in relation to 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 of this Act, 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:

[12]     Again, the establishment of the Committee and the conferring on it of those functions   and   powers   closely   follows   the   recommendations   of   the   Royal Commission, at 285-287 of its Report.

[13]     Mr McKenzie submitted that the Committee’s role is critical in ensuring that the CSA Act is administered, according to its “tenor”, in an effective and even- handed way.  He reinforced that submission by pointing out that there is nobody else to protect the rights of unborn children.   It is the plaintiff’s concern that the Committee has failed and continues to fail in that role which is the genesis of this proceeding and explains the relief sought in it.

What are the rights of the unborn child, and is judicial review at the instance of the plaintiff available to enforce those rights?

[14]     At the outset of this judgment, I identified that these interrelated questions underlie this proceeding.   Although asserting different answers to the questions, especially the latter, the opposing parties’ submissions addressed both questions in detail.   I will consider each in turn, before dealing with the two grounds of the defendants’ strike out application.

Rights of the unborn child

[15]     The obvious starting point on both the issues of rights and their enforceability is the Court of Appeal’s decision in Wall v Livingston, which featured prominently in both the opposing arguments, particularly those of the defendants.  Dr Wall sought judicial review of the decision of two consultants who had authorised an abortion for a teenage girl.  The girl had been referred by her own doctor to a public hospital for investigation of a suspected complication arising from a heart complaint.  Dr Wall, a paediatrician, saw the girl as part of the hospital medical team’s examination of her. When, subsequently, Dr Wall became aware that the two consultants had certified that an abortion was justified, he sought judicial review, alleging that there were no grounds under the Act upon which an abortion could properly be undertaken, and that the consultants’ certificate was accordingly invalid.

[16]     In the High Court, Speight J held that, even if the Court had jurisdiction to entertain an application of that kind, Dr Wall had no standing to bring it.  Dr Wall appealed that ruling.   By the time the case was heard by the Court of Appeal, the

issues   had   become   theoretical   (presumably   because   the   abortion   had   been performed).  The Court nevertheless expressed some general views both about this Court’s jurisdiction to entertain the type of application Dr Wall had made, and about the standing required to make such an application.  The fact that the Court’s views were  strictly  obiter,  does  not  much  detract  from  their  authority.    A  point  of distinction between that case and the present is that Dr Wall’s application challenged the certificate given by the two respondent consultants, whereas the present application challenges the Committee’s exercise of its functions generally.

[17]     These are the key points emerging from the Court of Appeal’s decision in

Wall v Livingston:

a)       The only reference to the unborn child or that child’s rights is in the long title to the CSA Act which, relevantly, provides that it is:

An Act … to provide for the circumstances and procedures under which abortions may be authorised after having full regard to the rights of the unborn child.

(my emphasis)

Those rights are handled “indirectly” by enacting a comprehensive code  setting  out  the  circumstances  in  which  termination  of  a pregnancy may be allowed.  (737/16-52)

b)While the Committee has general oversight of the work of certifying consultants throughout New Zealand and the way in which the purposes of the CSA Act are working out in practice, it is given no control, authority or oversight of the individual decisions of consultants.  The Court identifies the three considerations upon which “that deliberate absence of any review process inside the CSA Act itself is probably founded”.  They are preservation of the anonymity of the female patient; the placing of the decision-making involved “fairly and squarely upon the medical profession”; the adverse consequences of the delay that may result if a determination were “easily open to review”.  (738/52-739/25)

c)       The  absence  from  the  CSA  Act  of  any  provision  for  review  is reinforced by the similar absence of any requirement for the certifying consultants to give reasons for their authorisation, other than reference to the statutory exception within s187A of the Crimes Act.  (738/26-

44)

d)No legal statutory right in the unborn child can be spelled out of the CSA Act which in itself would enable a direct claim of standing. Nobody could possibly claim to represent the interests of the unborn child.  Even the Committee is kept quite isolated from any individual case that might be dealt with by certifying consultants.   It would be inconsistent with the whole scheme and purpose of the CSA Act if it were possible to introduce into such a matter anybody other than the woman herself and those very few persons who have been given the statutory responsibilities for screening her request for an abortion. That construction of the CSA Act is supported by the decisions of the English High Court in Paton v Trustees of British Pregnancy Advisory Service  Trustees  [1978]  2  All  ER  987  and  the  Ontario  Court  of Appeal in Dehler v Ottawa Civic Hospital (1980) 117 DLR (3d) 512. (740/1-21)

e)       “We do not express a final view as to the availability of judicial review of the exercise of responsibilities under the Act.”   If there is scope   for   such   judicial   review   two   constraining   factors   must inevitably, and very severely, limit its operation:

i)Standing.   One of the defined participants in the prescribed process might arguably have a legitimate interest in the review by the Court of another of the defined participant’s exercise of the responsibility conferred under the Act, but to that extent and no more:

Whatever their concerns may be individuals outside the direct ambit of the Act could not possibly show that the exercise of statutory powers under these provisions would operate to their personal advantage

or disadvantage.   It follows therefore that no individual   who   is   not   one   of   the   statutory participants could ever be regarded as having a sufficient interest to institute proceedings for judicial review.

ii)Scope:  The limited scope of any judicial review that may be available, given that the subject of the review would be the exercise  of  medical  judgment  by  professionals  discharging their  professional  responsibility under  a  statutory authority. The exercise of that medical judgment in individual cases is not subject to review by the Committee, the specialist body established under the Act to exercise oversight of the legislation.  (740/36-741/21)

[18]     The defendants submitted that this proceeding is inconsistent with the terms of the CSA Act and with those key points emerging from Wall v Livingston.

[19]     Ms Aldred then responded to the plaintiff’s argument that the New Zealand Bill  of  Rights  Act  1990  (“NZBORA”)  extends  to  the  unborn  child,  or  at  least arguably does, so as to defeat the defendants’ strike out application.  Unsurprisingly, the plaintiff’s argument began with s8 of the NZBORA:

No one shall be deprived of life except on such grounds as are established by law and are consistent with principles of fundamental justice.

[20]     Mr McKenzie made five points about this right to life:

a)       It is not absolute and unqualified, but is subject to the exception of “such grounds as are established by law” (e.g. in this case, by the CSA Act), and as “are consistent with the principles of fundamental justice” (e.g. as identified by Speight J at first instance in Wall v Livingston, “the right to be born”).

b)The  guarantees  provided  by  the  NZBORA  would  be  seriously deficient if they did not extend to the unborn child e.g. ss 9 (the right

not to be subjected to cruel treatment) and 10 (the right not to be subjected to medical or scientific experimentation).

c)       Much water has flowed under the bridge since the 1975 Government White Paper “A Bill of Rights for New Zealand”, referred to by the defendants, as explaining the genesis of the NZBORA.   First, there was  the  Royal  Commission’s  Report  in  March  1977  and  the consequent enactment of the CSA Act in December 1977.  Secondly, New Zealand became a party to the United Nations Convention on the Rights  of  the  Child  (New  Zealand  signed  the  Convention  on  1

October 1990 and ratified it in 1993).  The NZBORA should be read in a way which is consistent with New Zealand’s international obligations:  New Zealand Airline Pilots Association Inc. v Attorney- General [1997] 3 NZLR 269 at 289 Keith J; Burrows, Statute Law in New Zealand, 3ed 2003) at 341-343.

d)       The successive judgments of Heath J in Re an Unborn Child [2003] 1

NZLR  115  and  McGrath  J  in  the  Court  of  Appeal  in  Harrild  v Director of Proceedings   [2003] 3 NZLR 289 at 314 support interpreting s8 NZBORA as extending to the unborn child.

[21]     Ms  Aldred  accepted  that  the  issue  whether  s8  NZBORA  extends  to  the unborn child has not directly been decided in New Zealand.  But she submitted that the weight of related case law in New Zealand and overseas weighs against such an extension.  In terms of New Zealand case law, Ms Aldred referred first to the Court of Appeal’s decision in Harrild v Director of Proceedings, which she submitted supported the defendants’ position rather than the plaintiff’s.

[22]     By a 3:2 majority, overruling a full High Court, the Court of Appeal in Harrild decided that Dr Harrild’s allegedly inadequate medical care of a pregnant mother resulting in the death of her unborn child constituted personal injury to the mother giving her cover under the accident compensation legislation.  Consequently, recovery of damages under the Health and Disability Commissioner Act 1994 was

excluded.  The Director of Proceedings had sued Dr Harrild under that Act on behalf of the parents of the stillborn child.

[23]     Both Mr McKenzie and Ms Aldred fastened on the judgment of McGrath J, one of the majority.   McGrath J addressed the questions “Is a foetus a person?” (answering it:   No, at least not “a legal person” and not a person with rights to compensation under New Zealand’s accident compensation legislation) and “Is a foetus part of the mother?” (answering:  A foetus is capable of being regarded as part of the mother, but “whether that is so in the interpretation of a particular statute will turn on the context”.

[24]     Ms Aldred noted that McGrath J (at [117]) pointed out that the common law position “that a foetus has no legal rights prior to birth and accordingly unless born”, may give way to rights conferred under a particular statute.   McGrath J stated at [118]:

The  position  at  common  law,  however,  is  not  of  course  decisive  or necessarily even indicative of whether the Courts have power to protect a fetus under particular legislation.   While the lack of legal personality of a fetus in a statutory context at times may be a significant factor, in the end it is the nature of the rights under the relevant statute that must be ascertained. Thus the differing statutory provisions in  different  countries  at  different times have enabled Courts to interpret child protection legislation so that it applies to unborn children.  A recent example is Re an Unborn Child [2003]

1 NZLR 115. Heath J, deriving considerable interpretative assistance from the United Nations Convention on the Rights of the Child, found he had

jurisdiction under the Guardianship Act 1968 to appoint a guardian to an unborn child who was at risk of being featured in a pornographic film during

the birth process.  Compare the judgment of Tipping J in Re Ulutau (1988) 4

FRNZ 512 where a wardship order was made by the High Court to take effect from the moment of birth.

[25]     I accept Ms Aldred’s submission that Harrild affirms the general proposition that a foetus has no enforceable rights prior to birth unless particular legislation indicates a departure from this principle.

[26]     In Re an Unborn Child Heath J stated:

[17]      Both Arts 16 and 34 (of  the  United  Nations  Convention on  the Rights of the Child) are to be read in the context of the Declaration of the Rights of the Child which states, in its preamble, that:

… the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth. (Emphasis added.)

Ms Aldred pointed out that the restriction to the preamble of the Declaration was deliberate, to enable signatory states to deal with the rights of the unborn child in their domestic legislation if, and to the extent, they choose.   She backed this submission by referring to two commentaries on the Convention.   The first, by Sharon Detrick, published in 1999, states at 53-57:

Article 6 of the CRC enshrines the right to life.  This provision also makes no explicit reference to pre-natal human life.  Moreover, during the course of the drafting of Article 6, it was agreed not to reopen the discussion that had taken place when drafting Article 1 on the moment at which life begins. Alston (P. Alston, “The Unborn Child and Abortion Under the Draft Convention on the Rights of the Child”, 12 Human Rights Quarterly (1990), pp. 156-178) comments that controversy on whether the beginning of childhood is to be defined as the moment of conception under Article 1 has arisen, particularly due to the question whether paragraph 9 of the CRC’s Preamble in any way influences the interpretation to be given to the term “human being” in Article 1.  He also explains that the compromise reached during the course of the drafting of the CRC, namely to include paragraph 9 in the Preamble and not to address a specific lower age limit in Article 1, was due to the diversity of opinion surrounding the issue of abortion. Paragraph 9 of the Preamble to the CRC reads as follows:

Bearing in mind that, as indicated in the Declaration of the Rights of the  Child,  “the  child,  by  reason  of  his  physical  and  mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth.”

The CRC’s travaux préparatoires reveal that it was originally proposed to refer in Article 1 to “every human being from the moment of his birth”  This original proposal led to considerable debate.  …

Paragraph 9 of the CRC’s Preamble refers in fact to paragraph 3 of the Preamble to the 1959 UN Declaration of the Rights of the Child, which states that:   “Whereas the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth”.  The CRC’s travaux préparatoires reveal that a prolonged discussion took place on paragraph 9, in particular regarding the words “before as well as after birth”.  …Paragraph 9 obliges States  parties  to  provide  the  child  with  “special  safeguards  and  care, including appropriate legal protection, before … birth”.   …   What is “appropriate”  as  regards  abortion  is  therefore  for  each  State  party  to determine for itself and is not a matter to which the CRC addresses itself. According to Alston, the use of the terms “child” and “human being” in Article 1 without explicitly addressing the question of a lower age limit

was clearly intended to maintain maximum flexibility so as to enable potential signatories to the [CRC] to adopt whatever position they

wished, for the purposes of their own domestic law, on the issue of the right to life of the foetus or unborn child.

Along similar lines, Lopatka (A. Lopatka, “Importance of the Convention on the Rights of the Child”, 91/2 United Nations Bulletin of Human Rights: The Rights of the Child (1992), pp. 56-65, at p.64) points out that an analysis of the text of the CRC as a whole indicates that it deals only with the rights of a born child.  He states that:

The Convention does not give an exhaustive answer to the question: When does the life of a human being begin?”  Is it at the moment of conception?   Or when the embryo becomes a foetus?   Or perhaps even as late as the moment of birth?  Owing to the lack of answer in article  1  of  the  Convention  a  rather  evasive  formula  has  been adopted: “For the purposes of the present Convention, a child means every  human  being  below  the  age  of  eighteen  years  …”    Even though the Preamble does mention the “child … before as well as after birth”, an analysis of the text of the Convention as a whole indicates that it deals only with the rights of a born child.   Legal protection of the rights of a child conceived but not yet born does not fall under the Convention.

[27]     A second commentary by Professor Manfred Nowak, published in 1993, is to similar effect, also referring to the travaux préparatoires.

[28]     Ms Aldred then referred to overseas case law. Starting in the United States of America, she cited Roe v Wade 410 US 113 (1973), in which the United States Supreme Court held that the 14th Amendment to the American Constitution did not extend to the unborn. That Amendment provides, relevantly:

… nor shall any state deprive any person of life, liberty, or property, without due process of law …

[29]     Travelling  north  to  Canada,  Ms  Aldred  referred  to  the  decision  of  the Supreme Court of Canada in Tremblay v Daigle [1989] 2 SCR 530 in which the Supreme Court of Canada concluded that the Quebec Charter of Human Rights and Freedoms did not confer a right to life on a foetus. Article 1 of the Quebec Charter provides:

Every human being has a right to life, and to personal security, inviolability and freedom.

The Supreme Court (at 555) said:

In our view the Quebec Charter, considered as a whole, does not display any clear intention on the part of its framers to consider the status of a foetus.

This is most evident in the fact that the Charter lacks any definition of

‘human being’ or ‘person’ … one can ask why the Quebec legislature, if it had  intended  to  accord  a  foetus  the  right  to  life,  would  have  left  the protection of this right in such an uncertain state.

[30]     Ms Aldred emphasised this reasoning, pointing out that it can be applied to the NZBORA, which also does not include any specific reference to foetal rights. Although she accepted that the Supreme Court of Canada has not specifically considered  whether  the  right  to  life  protection  afforded  by  s7  of  the  Canadian Charter of Rights and Freedoms would extend to a foetus, Ms Aldred argued that the decision in Tremblay along with other significant Canadian jurisprudence indicates that the Canadian Supreme Court is unlikely to favour such an extension.   She referred particularly to Borowski v Attorney-General for Canada (1989) 57 DLR

(4th) 231 in which the Supreme Court of Canada held that s7 of the Canadian Charter

in fact protects a woman’s right to an abortion:

…   The appellant is asking for an interpretation of ss 7 and 15 of the Canadian Charter of Rights and Freedoms at large.  In a legislative context any rights of the foetus could be considered or at least balanced against the rights of women guaranteed by s 7 …  A pronouncement in favour of the appellant’s position that a foetus is protected by s 7 from the date of conception would decide the issue out of its proper context.   Doctors and hospitals would be left to speculate as to how to apply such a ruling consistently with a woman’s rights under s 7.  …

(Sopinka J, delivering the Court’s judgment, at 248)

[31]     In terms of English law, Ms Aldred referred to the case law cited in the judgments of the Court of Appeal in Harrild v Director of Proceedings.   She mentioned  also  the  decision  of  the  European  Commission  of  Human  Rights  in Payton v United Kingdom (1981) 3 EHRR 408, a decision tending to indicate that Article 2 of the European Convention on Human Rights (“everyone’s right to life shall be protected by law”) does not include the unborn.

[32]     Ms Aldred’s final reference was to the decision of the South African High

Court in Christian Lawyers Association of South Africa v Minister of Health [1998]

1 CHRL 109 (HC, Transvaal Provincial Division) which held that foetuses do not fall within the term “everyone” in the right to life protection provision in the South African Constitution.

[33]     Ms Aldred next submitted that nothing in the Parliamentary material relating to the NZBORA suggests Parliament intended s8 to provide an unborn child with an independent, and enforceable right against its mother or others, prior to birth.  She founded this submission on the White Paper to which I referred in [20]c), making the point  that  it  was  presented  to  Parliament  (by  The  Hon.  Geoffrey  Palmer,  then Minister of Justice) in 1985, not in 1975 as the plaintiff has contended.  Commenting on what, in slightly amended form, is now s8 of the NZBORA, the White Paper stated that the possible application of the right to life provision to abortion will depend on whether the Courts consider it as giving rights to a foetus.   The commentary pointed out that the Saskatchewan Court of Queen’s Bench had held that the corresponding provision in the Canadian Charter did not give such rights:

Borowski v Attorney-General of Canada (1983) 4 DLR (4th) 112.

[34]     Ms Aldred then referred to the interim report of the Justice and Law Reform Select  Committee  Inquiry  into  the  White  Paper.    Noting  that  it  had  received numerous submissions seeking the extension of (what became) s8 of the NZBORA to the foetus, and after referring to Canadian jurisprudence as establishing that the right to life would not be interpreted  as applying to  the foetus,  the Committee commented:

The result in New Zealand if our courts adopted the same view in relation to Article 14 is that the present abortion laws would not be affected by the bill of rights.   In our view, that is the correct approach.   Given the need for consensus on the bill of rights we consider that the bill must remain neutral on contentious issues such  as  abortion and  the retention  or  abolition  of capital punishment. (at 53)

[35]     On the basis of all that material, the defendants submitted that s8 of the NZBORA cannot be held to confer rights on the unborn child.  Nor can the specific statutory context of the CSA Act be held to confer such rights, except insofar as they are indirectly protected by the procedures provided for in that Act.

[36]     I am not prepared to hold that it is untenable for the plaintiff to argue that the unborn child has some rights enforceable at law, such that this proceeding must be struck out on that basis.

[37]     In its long title  to  the  CSA  Act,  Parliament  expressly acknowledges  the existence of “the rights of the unborn child”.   Indeed, it prefaces the CSA Act by recording that Parliament has enacted it, with its procedure under which abortions may be authorised, “after having full regard to the rights of the unborn child”.

[38]     As the Court of Appeal pointed out in Wall v Livingston, those rights are protected by the Act indirectly by stipulating that the unborn child’s “right to be born”, can be extinguished only by an abortion carried out in accordance with the comprehensive procedure laid down in the CSA Act.   That “right to be born”, recognised by Speight J at first instance, was referred to in the following way by the Court of Appeal:

Speight J described the general effect of the legislation by remarking:  “That Act and the Crimes Act consider not only the rights of the mother and the need to protect her, even against herself, but also balance them against the

‘rights’ of the unborn child which in the course of nature must mean the right to be born”.  And by mentioning “the ‘rights’ of the unborn child” in

that way he was drawing attention to the important fact that nowhere in the

Act but in the long title is there any mention of the phrase “the unborn child” or of its rights.  Nor is anybody assigned a responsibility for protecting those rights in the form, for example, of an independent advocate  (something rejected by the Royal Commission – see p 294 of the Report).  The matter is handled indirectly.   It is done by surrounding the lawful termination of a pregnancy with the precautionary process of prior medical authorisation by two  certifying  consultants  which  must  be  obtained  (except  in  certain situations of emergency) if an offence is to be avoided.  And it is right to emphasise in terms of these precautions the fact that Parliament has been careful to require by s 30(2) of the Act that there shall be the “minimum number of certifying consultants required to ensure, so far as possible, that every woman seeking an abortion has her case considered expeditiously” (emphasis added).

[39]     Any challenge akin to that mounted by Dr Wall is, on the authority of Wall v Livingston, doomed to fail, and I am not aware that any such challenge has been attempted since.   But this is not such a challenge.  In this proceeding the plaintiff seeks review of the discharge by the Committee of various of the functions conferred on it by s14 of the CSA Act.   I see force in the plaintiff’s submission that, by properly discharging those functions, the Committee is effectively but, as the Court of Appeal pointed out, indirectly, protecting the rights of the unborn child.  At the same time it is protecting the rights of women to have an abortion performed in accordance with the CSA Act.  That is the “very careful … balance …” the Court of Appeal referred to in Wall v Livingston.

[40]     The defendants accept that it remains undecided whether s8 of the NZBORA extends to the unborn child.  In the light of the overseas case law, the White Paper and the Select Committee’s report on that paper, all relied upon by the defendants, the plaintiff’s argument that s8 covers the unborn child may be difficult.  But it is not hopeless, with the consequence that this Court should be spared the inevitability of ruling against it.

[41]     In  any  event,  s8  of  the  NZBORA  is  essentially  a  make-weight  to  the plaintiff’s case.  It is invoked as supporting an interpretation of the CSA Act which protects, or at least acknowledges, rights in the unborn child.   And, in turn, the plaintiff’s reliance (in itself problematic for the reasons  I have outlined) on the United Nations Convention on the Rights of the Child, is to support its submission that the NZBORA can and should be read as according legal protections to the unborn child.

[42]     At [37] I referred to Parliament’s acknowledgment in the long title to the CSA Act of “the rights of the unborn child”.  Mr McKenzie submitted that the Court is not only entitled, but is required, to have regard to the preamble when interpreting an Act.  Two points about this.  First, and with respect, Mr McKenzie confuses the long title and the preamble of an Act.   It appears that Mr McKenzie is in good, judicial, company in doing that.  See Bennion, Statutory Interpretation (4ed 2002) at

621:  “Some Judges have confused the long title with a preamble” (citing, in footnote

2, numerous examples).

[43]     The distinction is admirably explained in Bennion at 620-625, so I need not be diverted into drawing it here.   Suffice it to say that the long title to an Act, although undoubtedly part of the Act, is a Parliamentary device related to Parliament’s procedure, and becomes technically vestigial once the Act receives royal assent. As Bennion concludes at 623:

…  The long title is an unreliable guide in interpretation, but should not be ignored …

I note that, since the year 2000, New Zealand Acts no longer have long titles, a purpose or  object  section  being substituted  where  appropriate.    This,  somewhat

controversially, gives effect to a recommendation of the Law Commission (footnote

49 NZLC r17).  See Burrows Statute Law in New Zealand, (3ed 2003).

[44]     None of this detracts from the plaintiff’s point that, in the long title to the CSA Act, Parliament announces its objective of making provision for abortions “after having full regard to the rights of the unborn child”.

[45]     The second, and perhaps obvious, point is this.   Insofar as the long title constitutes an interpretative aid to the CSA Act, it is of limited use because the sections of the Act make no mention of the unborn child, and certainly attempt no definition of the rights of the unborn child.  There is, then, nothing to interpret.  The unborn child’s rights are handled in the indirect manner described by the Court of Appeal in Wall v Livingston, in the passage I have cited at [38].  The reasons for that are doubtless the same reasons that confined any reference to the unborn child to the preamble of the United Nations Declaration of the Rights of the Child:   the impossibility of obtaining consensus in such a fraught and difficult area.   In the course of argument I suggested to counsel an analogy with Parliament’s reference, in various Acts, to “the principles of the Treaty of Waitangi”, without anywhere attempting a definition of what those principles are.

[46]     To summarise, I hold that the unborn child arguably has rights enforceable at law, including, perhaps primarily, the right to be born unless the mother’s pregnancy is terminated in accordance with the provisions of the CSA Act.

Enforceability of rights

[47]     The defendants’ submissions built on the Court of Appeal’s remarks in Wall v Livingston about the difficulties of enforcing the rights of the unborn child.  The gist of those remarks is captured in my summary of Wall v Livingston at [17], in particular (b), (c), (d) and (e).

[48]     The defendants then stressed the limits on the grant of mandamus.   As I pointed out at [6], most of the limits the defendants contended for were accepted by Mr McKenzie.  But the defendants also submitted that mandamus has typically been

restricted to enforcement of a particular instance of the performance of a statutory duty.  Ms Gwyn submitted that the plaintiff was in this proceeding seeking to compel the Committee to exercise its powers (some of them discretionary), not only in a particular way, but on a continuing basis.  She said that the Attorney was not aware of any authority that would support the making of orders in the nature of mandamus in terms as broad as those sought by the plaintiff in its prayer for relief.  Ms Gwyn also emphasised that mandamus is a discretionary remedy, and argued that it should not be ordered if it appeared that it would not be effective in a practical way to secure its object.

[49]     The plaintiff did not accept that the orders it was seeking were untenably wide, nor did it accept that they would be practically ineffective.

[50]     Before  addressing  the  detailed  allegations  in   the   plaintiff’s   amended statement of claim, the defendants made five general points about that claim, all in support of a submission that this proceeding as a whole is misconceived.  The five points were that the amended pleading:

a)       Throughout relies on the plaintiff’s contention that those carrying out their functions under the Act, including the Committee and certifying consultants,  are  required  to  have  “full  regard  to  the  rights  of  the unborn child”.  The defendants gave examples from paragraphs 18(c) and 31(a) of the amended claim.  This contention is not supported by the provisions of the CSA Act and is inconsistent with the clear statements of the Court of Appeal in Wall v Livingston.

b)Effectively  seeks  to  require  the  Committee  to  second-guess  the clinical judgment of certifying consultants in individual cases, inconsistently with the Act and the Court of Appeal’s decision in Wall v Livingston.  For example, in paragraph 27 of its amended claim, the plaintiff challenges the Committee’s view that it has no control or oversight of individual decisions of consultants.

c)       Fails  to  appreciate  the  discretionary  nature  of  the  Committee’s functions and powers, effectively seeking to have the Court write in more detailed statutory provisions prescribing the way in which the Committee must perform its functions.

d)Is  misleading  in  its  references  both  to  the  Act  and  to  extrinsic materials.   In particular, it quotes the Committee out of context and selectively.

e)       Fails to acknowledge the law reform, review and reporting functions of the Committee under s14(1)(a) and (k) respectively of the CSA Act.  Many of the Committee’s statements, challenged by the plaintiff as demonstrating its failure to perform its s14 functions, were demonstrably made in discharge of its s14(1)(a) and (k) functions.

[51]     I turn now to consider the defendants’ submissions that none of the plaintiff’s seven grounds for relief has any prospect of success.

(1)  Failure properly to interpret the Act and accordingly to have proper regard to the rights of the unborn child

[52]     This ground is pleaded in paragraphs 17-21 of the amended claim.  It alleges the Committee is required to apply the CSA Act according to its proper meaning and tenor “in a manner which gives substance to the preamble of the CSA Act and gives effect to its tenor as an Act to protect the rights of the unborn child”.  It refers to the long title, to ss 14, 30 and 36 of the CSA Act, and to ss 6 and 8 of the NZBORA.  It then alleges that the Committee has wrongly interpreted the CSA Act as providing no mechanism for the protection of the unborn child and as giving the Committee “no control or authority or oversight in respect of the individual decisions of certifying consultants” (a quote from the Committee’s 1996 report to Parliament).  In support of these allegations of erroneous interpretation and application of the CSA Act by the Committee, it pleads various other of the Committee’s statements over recent years.

[53]     For the defendants, Ms Gwyn submitted that Wall v Livingston deals directly with this ground, and is fatal to it.   Nowhere does the Act provide that certifying consultants are to have “full regard to the rights of the unborn child”, as the plaintiff alleges.

[54]     As to the allegations directed against the Committee, Ms Gwyn submitted that the Committee’s various statements, when looked at in their entirety and in their context, demonstrate that the Committee understands its functions correctly.    In particular, many of the pleaded statements by the Committee are in discharge of its s14(1)(a) and (k) review and reporting functions.  Ms Gwyn took, as one example of these points, the passage pleaded in paragraph 24 of the amended claim.  Put in its context and quoted in full (with the extract pleaded by the plaintiff in bold) it is:

REVIEW OF THE CONTRACEPTION, STERILISATION, AND ABORTION ACT 1977

The case for change

The Committee recommends that the Government carry out a comprehensive review of the Contraception, Sterilisation, and Abortion Act 1977.  The Act is outdated in its language and contents.  Its procedures are too complex and are not being followed as the law intended.  Its provisions for providing legal, safe abortions are not being consistently applied throughout the country.   The Act is demeaning to women in requiring a medical procedure to be considered under the Crimes Act.  It is also misleading that 98.2% of abortions have to be granted under mental health provisions”.

[55]     Mr McKenzie responded by pointing out that what the Court of Appeal had said in Wall v Livingston was:

The Supervisory Committee has a responsibility for the general oversight of the work of certifying consultants throughout New Zealand and the way in which  the  purposes  of  the  Act  are  working  out  in  practice.    What  is important and of significance in this case is that the Supervisory Committee is given no control or authority or oversight in respect of the individual decisions of consultants.

(at 738-739, Mr McKenzie’s emphasis)

[56]     Mr McKenzie then contrasted the type of direct challenge, to the decision of the certifying consultants in the particular case, which was ruled out in Wall v Livingston, with the plaintiffs’ general challenge here, to the Committee’s discharge

of various of its s14(1) functions, in particular those in s14(1)(g), (h) and (i).   He submitted that, by consistently taking the approach that the Act gave it “no control or authority or oversight in respect of individual decisions of consultants”, the Committee seriously misconstrued its statutory powers and discretions, and misunderstood the Court of Appeal’s decision in Wall v Livingston.

[57]     The nub of this ground is that the Committee is wrong in law in repeatedly expressing the view that it is effectively powerless to do anything about the way the CSA Act is currently operating.   Although the amended claim attributes many statements to the Committee, two capture the essence of the views with which the plaintiff takes issue:

a)        The Committee has “no control or authority or oversight in respect of the individual decisions of certifying consultants”.

b)“The  Committee  does  not  have  power  or  responsibility under  the abortion laws to have any regard to the status of the unborn child …”

[58]     I accept Ms Gwyn’s submission that both these statements are correct in law. Indeed, Wall v Livingston expressly confirms the correctness of the first statement:

But what is important and of significance in this case is that the Supervisory Committee is given no control or authority or oversight in respect of the individual decisions of consultants …

(738-739)

[59]     I consider also that the plaintiff errs in fixing the Committee and certifying consultants (for example in paragraph 18(c) of its amended claim) with an obligation to have “full regard to the rights of the unborn child”.   The CSA Act imposes no such duty.  Rather, it was Parliament in its long title to the CSA Act which recorded that Parliament had enacted the Act after having full regard to the rights of the unborn child.  It is indirectly, through the provisions of the Act, that the rights of the unborn child are protected.  It was that indirect method of protection that the Court of Appeal was referring to in Wall v Livingston.  Thus, for example, the sole concern of a certifying consultant is whether the mother qualifies in terms of the Act for an abortion.   Only in that indirect way does the consultant have any concern for the

unborn child.   Similarly, the Committee’s concern is to ensure the consistent and effective operation of the CSA Act, perhaps in particular the procedure outlined in ss

32 and 33, by discharging its s14 functions.

[60]     But it was clear from Mr McKenzie’s submissions that it is the Committee’s interpretation of the CSA Act as not giving it “the power to alter the situation” (a quote from the Committee’s 2001 report) which is challenged.

[61]     I cannot regard as untenable the plaintiff’s argument that this interpretation of the  Act  is  wrong.    The  plaintiff’s  amended  claim  fastens  on  the  Committee’s functions under s14(1)(g) (information), (h) (review of the ss 32-33 procedure) and (i) of the Act.  The last of those gives the Committee the function:

(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.

[62]     Given the situation the Committee has reported over the last few years, it is at least arguable that the Committee is not discharging those s14 functions.

[63]     I see no force in the defendants’ point that the proceeding seeks review of the exercise of statutory powers rather than duties.  Section 14(1) in fact lists a series of what are described in the subsection as “functions”.  Functions are essentially tasks or activities and they can include duties, but the two are not necessarily synonymous. That was made clear by the House of Lords in Equal Opportunities Commission v Birmingham City Council [1989] 1 All ER 769 at 775-776. I accept Ms Gwyn’s submission that in places the plaintiff’s amended claim attributes to the Committee duties when in fact the Committee has discretionary powers. Paragraph 12 of the amended claim referring to s36 of the CSA Act, and paragraph 14 referring to s25, are examples. Both sections of the CSA Act are permissive: “may from time to time require”; “may cancel”. However, I consider the plaintiff has a tenable argument that s14(1)(g), (h) and (i) fix the Committee with functions in the nature of duties, and s14(2) gives the Committee the powers necessary to enable it to perform those functions/duties.

[64]     Although the Court of Appeal in Wall v Livingston rejected any attempt to review the decisions of certifying consultants in a particular case, it left open the possibility of judicial review of the exercise of responsibilities under the CSA Act generally:

For reasons already indicated we do not express a final  view as to  the availability of judicial review under the Judicature Amendment Act 1972 of the exercise of responsibilities under the Contraception, Sterilisation, and Abortion Act.   The questions that arise and the implications that surround them are not only important but peculiarly difficult.   And they are best assessed and decided in a factual setting where any relevant and conflicting considerations actually apply rather than on the basis of hypothetical and even remote situations which seem unlikely to arise.

(at 740)

[65]     Accordingly, I hold that the plaintiff’s first ground for review is arguable, and that judicial review is arguably available to the plaintiff.  Whether the plaintiff has any  realistic  prospect  of  obtaining  the  relief  it  seeks  is  another  issue,  and  one strongly contested by the defendants.   As the relief claimed is common to all the grounds of review, I will deal with that issue separately, after considering the seven grounds for review.

(2)  Failure to perform the Committee’s statutory duty to review the procedure for the conduct of abortions and determine in any case whether the performance of an abortion would be justified

[66]     This ground is pleaded in paragraphs 28-36 of the amended statement of claim.   It alleges that the Committee has failed to carry out its statutory duties in s14(1)(h) and (i) of the CSA Act, in particular alleging that it has not used its s36 power to require certifying consultants to submit reports to the Committee.  Again, statements by the Committee to the effect that the abortion law is not being administered as intended by Parliament are pleaded, as are recommendations by the Justice and Law Reform Committee (the Select Committee) about steps the Committee could take to deal with that situation.  There is a detailed pleading of the numbers of abortions performed, and the approval rate, over recent years, all in support of the allegation that the Committee has failed to perform its ss 14(1)(h) and (i) and 36 duties.

[67]     The defendants argued that the facts alleged by the plaintiff do not disclose the alleged failures.   They pointed out that the CSA Act offers the Committee no guidance as to the discharge of its s14(1)(h) and (i) functions, and argued that much of what is alleged by the plaintiff is a proper discharge by the Committee of its s1491)(a) and (k) functions.

[68]     The nub of the defendants’ argument was that the plaintiff appears to be alleging that the Committee should be scrutinising the individual decisions of certifying consultants and revoking the appointment of any who the Committee adjudges have failed to apply the statutory criteria.  The defendants argued that this is precisely the approach proscribed by the Court of Appeal in Wall v Livingston. The defendants argued that, in any event, the plaintiff seriously misconstrues the Committee’s functions under s14(1)(g), (h) and (i).  The latter two it submitted were essentially review  and oversight functions.   The defendants pointed out that, in discharge of its s14(1)(i) function, the Committee has, for example, reported about the uneven access to abortions across New Zealand.   The defendants rejected any suggestion that the fact that the Select Committee had made recommendations indicated that the Committee had failed to discharge its functions.  The defendants gave an example of the Committee’s 1995 report to Parliament, in which the Committee had recommended changes to the ss 32-33 procedure, pointing out that it is quite difficult to follow.  The Select Committee had also recommended a review of the CSA Act.  The defendants pointed out that the Government, in its response, had stated:

The Government does not consider that there is an urgent need to make technical amendments to the Act.   However, improvements of this kind could also be considered at a time when more substantive proposals are being advanced.   The Government notes the recommendation in the meantime.

[69]     Mr  McKenzie  responded  that  the  defendants’  submissions  “represent  a complete misunderstanding of the plaintiff’s claim”.   He submitted that the Committee’s reports make it clear that it is well aware that the CSA Act is not being followed in the manner intended.  It is because the Committee has that knowledge that it is required to use the powers and discretions available to it to address that situation.   Mr McKenzie again referred to the Committee’s s14(1)(g), (h) and (i)

powers and submitted that the Committee “has manifestly failed to exercise the powers and discretions available to it which would enable it to take steps to remedy the situation”.

[70]     The   plaintiff’s   first   ground   put   the   emphasis   on   the   Committee’s interpretation of the Act.  This ground focuses on the Committee’s exercise, or more strictly its alleged failure to exercise, its s14  functions,  discretions  and  powers. Nevertheless, there is a sameness about the two grounds.  The nub of both is that the Committee misunderstands its task under the CSA Act and (perhaps as a consequence) has failed and is failing, to do it properly.

[71]     For all the reasons advanced by the defendants, this ground is difficult.  But I cannot  regard  it  as  hopeless.     Given  the  Committee’s  knowledge,  given  its acceptance that the CSA Act is not operating properly, and given the Committee’s s14 functions and powers, I regard it as reasonably arguable that the Committee is not discharging those functions properly.   Taking, for example, the Committee’s s14(1)(i) function, I consider the plaintiff can reasonably argue that the Committee ought to  be  requiring from  certifying  consultants  reports  aimed  at  enabling  the Committee to assess whether the certifying consultant is properly following the ss

32-33 procedure.   Whilst such reports may not give the name or address of any patient, they could be required to provide a range of other information aimed at ensuring the effective operation of the ss 32-33 procedure.  Accordingly, I hold that the plaintiff’s second ground for review is also arguable.

(3)  Failure, where Committee is in doubt as to correct meaning of the Act, to state a case for the opinion of the High Court

[72]     This ground is contained in paragraphs 37-41 of the amended statement of claim.  It first makes these factual allegations:

a)      In its 1996 report the Committee stated that it accepted reactive depression as a valid diagnosis of serious danger to mental health and considered it had no power to question the medical judgment of a consultant certifying on the basis of that diagnosis.  The Committee

noted  that  the  diagnosis  was  sanctioned  under  the  International

Classification of Diseases used by the Ministry of Health.

b)The Committee has acknowledged that it has serious doubts as to the validity  of  98.2%  of  abortions  being  certified  on  the  ground  of reactive depression.

c)       The Committee has declined to consider evidence provided by the plaintiff questioning whether reactive depression was a valid and proper diagnosis for the purpose of certifying the performance of an abortion.

[73]     The plaintiff then alleged that the Committee was wrong in its view that it had to accept the medical judgment of consultants certifying abortions on the ground of reactive depression.  It alleged that the Committee had a duty properly to interpret and apply the CSA Act and, where it was “in doubt as to the law”, to state a case for the High Court under s28 of the CSA Act.

[74]     Section 28 provides:

Supervisory Committee may state case for High Court

(1)The  Supervisory  Committee  may,  of  its  own  motion  or  on  the application of any interested party, state a case for the opinion of the High Court on any question of law arising in any matter before the Supervisory Committee.

[75]     Mr McKenzie pointed out that the words “serious danger to the mental health of the woman or girl” come from s187A of the Crimes Act.   He submitted that medical clinical decisions “are not sacrosanct so as to inhabit some legal alsatia outside the jurisdiction of the Court.  He argued that where the Committee, as here, has serious doubts about the way in which the mental health ground is being applied, then it should properly state a case to this Court.  He added that the only reason why the Committee recognises the diagnosis as valid is because the Committee considers that it must accept the medical judgment of certifying consultants.

[76]     Section 28 confers a power.   It does not impose a duty.   Exercise of the power may be appropriate if the Committee is in doubt about a question of law, or feels a need for guidance on a question of law.  The Committee, however, is not in doubt  about  the  validity  of  a  diagnosis  of  reactive  depression  as  a  ground  for abortion.   It has stated the reasons why it accepts reactive depression as a valid diagnosis.  The Committee has certainly expressed doubts as to the extent to which consultants are certifying abortions on a diagnosis of reactive depression.  But that is a distinctly different issue than the validity of the diagnosis itself.

[77]     As the Justice and Law Reform Committee noted in its 1996 report following its inquiry into the Abortion Supervisory Committee, the Committee had:

… noted that if Parliament did not think the diagnosis was valid, then it could take action on the issue.

[78]     I accept Ms Gwyn’s submission that this third ground is not a tenable ground for seeking review, and I strike it out.

(4)  Failure to seek proper information on mental health ground from certifying consultants

[79]     This fourth ground is pleaded in paragraphs 42-44 of the amended statement of claim.  It alleges that a medical opinion obtained by the Committee from Dr A I F Simpson dated 26 February 1996 as to reactive depression (which Dr Simpson also called “adjustment disorder with depressed mood”) suggested that the Committee:

…  ask  certifying  consultants  to  state  what  (is)  the  serious  danger  they believe the woman faces.

And that:

…  It may be useful for the certifying consultant to define the diagnosis and state the serious danger the woman faces.

[80]   The  plaintiff  pleads  that,  notwithstanding  those  suggestions,  and notwithstanding also that the forms provided by the Committee for use by certifying consultants make provision for particulars of the mental ground, the Committee does not exercise its powers to require certifying consultants to give those particulars.

[81]    Ms Gwyn pointed out that the form is that prescribed by the Abortion Regulations 1978.   That form does not require a certifying consultant to give a medical diagnosis, only to certify the consultant’s belief that the abortion is justified on at least one of the grounds specified in s187A of the Crimes Act.  As the Court of Appeal observed in Wall v Livingston at 739:

To put the matter in administrative law terms the relevant legislation does not contemplate that the face of the record will include reasons.  Indeed that kind of decision and the process leading up to it is probably unique.   It certainly is remote from the normal work of any administrative tribunal …

[82]     Ms Gwyn then drew attention more fully to Dr Simpson’s advice to the

Committee.  It concluded:

…    In  the  terms  of  Section  187A  of  the  Crimes  Amendment  Act,  the certifying consultant must decide if there is “serious danger to the life … or mental health” of the woman or girl.   Such danger necessarily demands a clinically significant syndrome.  A diagnosis of any of the depression set out in the above diagram would meet this requirement.  All may cause serious harm through self neglect, weight loss or suicide risk.  The sufferer’s mental health is necessarily significantly impaired.   The value of using the term reactive depression is that the certifying consultant is clearly indicating that the circumstances of the pregnancy are contributing to the depression.  This is, indeed, the intent of Section 187A.  However diagnosis of itself may not define risk, although it is strongly associated with it.  The Committee may however, wish to ask the certifying consultants to state what the serious danger they believe the woman faces.

[83]     Ms Gwyn submitted that Dr Simpson’s suggestions do not provide any basis upon  which  the  Court  could  properly  direct  the  Committee  to  require  this information.  She submitted that there is nothing in the Act to support this ground of review.  Further, Ms Gwyn pointed out that the forms provided by the Committee for use by certifying consultants make provision for particulars in relation to the mental health ground.   That provision is not required by the prescribed forms.   Thus, the Committee has for some years sought, but not required a greater level of detail from certifying consultants than the law requires.

[84]     Mr McKenzie very properly accepted these points.  He accepted also that s36 gives  the  Committee  a  discretionary  power  to  require  the  provision  of  the information in issue.  He referred again to the doubts the Committee had expressed about the number of abortions being performed on the mental health ground.  Given

those doubts, he submitted that a proper exercise of the Committee’s discretion demanded that it require certifying consultants to provide the information in issue. By not requiring that information, the Committee was frustrating the effective performance of the CSA Act.

[85]     Mr McKenzie submitted that it was no answer for the defendants to claim that the Committee had sufficiently exercised its s36 power by seeking a greater level of detail in the forms than the Regulations required.  The Committee needed to require certifying consultants to provide that information.

[86]     This ground is a variation on ground (2) which survives and (3) (which I have struck out).  Mr McKenzie accepts that it is an attempt by the plaintiff to have the Court direct the Committee as to the way in which it is to exercise its s36 discretionary power – “may … require (such reports) …”.

[87]     It is well established that the Court will only interfere if the exercise of a discretionary power has overlooked a relevant consideration, factored in some irrelevant consideration, or is plainly wrong:   May v May (1982) 1 NZFLR 165 (CA).

[88]     The  plaintiff’s  case  is  that,  assessed  against  the  Committee’s  expressed concerns about the widespread misuse by certifying consultants of the mental health ground, the Committee’s non exercise of its s36 power is plainly wrong.  It does not adequately reflect the Committee’s concerns, and it is not a proper discharge of the Committee’s s14(1)(i) function.

[89]     My view on this ground is the same as for ground (2).  The ground is difficult but it is not hopeless.   This ground, because it is directed specifically at the basis upon which certifying consultants are performing abortions, will more closely test the review constraints and more closely encounter the difficulties outlined by the Court  of  Appeal  in  Wall  v  Livingston.    But  I  do  not  accept  the  defendants’ submission that this ground has no prospect of success.

(5)  Failure  to  perform  statutory  duty  or  exercise  statutory  duty  to  take  all reasonable and practicable steps to ensure that sufficient and adequate counselling facilities are available

[90]     This ground is pleaded in paragraphs 45-49 of the amended statement of claim.  It invokes ss 14(1)(e) and 31 of the CSA Act.  The first of these provisions is set out in [11] above.  The second provides:

31.Supervisory  Committee  to  appoint  or  approve  counselling services –

(1)For the purposes of this Act, the Supervisory Committee shall from time to time –

(a)  Appoint  suitably  qualified  persons  to  provide  counselling services for persons considering having an abortion; or

(b) Approve  any  agency  for  the  provision  of  such  counselling services.

(2)In appointing or approving persons or agencies for the provision of counselling services under this section, the Supervisory Committee shall have regard to the following matters:

(a)  Every counselling service should be directed by an experienced and professionally trained social worker:

(b) That suitably trained lay counsellors may also be used where there are insufficient professional social workers:

(c)  Every counsellor should be thoroughly familiar with all relevant social services and agencies, and able to advise patients, or refer them to appropriate agencies for advice, on alternatives to abortion, such as adoption and solo parenthood.

[91]     The  plaintiff  alleges  that  s31  sets  out  a  mandatory duty required  of  the Committee.  It then alleges that discharge by the Committee of its s14(1)(e) function requires  the  provision  of  counselling  services  which  are  independent  of  the institution licensed for the performance of abortions and of the medical practitioners who perform abortions.  The plaintiff alleges that the Committee has failed to carry out its s31 duty in that it has never appointed suitably qualified persons or approved any  agency  to  provide  counselling  services.     The  plaintiff  refers  to  various documents establishing that, in particular a letter dated 12 March 2004 from the Committee to the plaintiff, which states:

The Supervisory Committee has never used the powers conferred upon it by s31(1)  to  directly  appoint  counsellors  or  approve  any  agency  for  the provision of counselling services.

The Supervisory Committee has neither knowledge of nor input into the terms  of  the  employment  contracts  that  exist  between  counsellors  and District Health Boards.  It follows that the Supervisory Committee can have no responsibility for the performance of individual counsellors.

The practical input that the Committee has into counselling extends into setting standards of practice for counsellors (enclosed booklet refers) and providing ongoing voluntary training for counsellors via the Counselling Advisory Committee …

[92]     Ms Gwyn argued that the plaintiff’s assertion that the CSA Act requires counselling independent of the licensed institution has no basis in the Act or Regulations.  Her points were:

a)       The provision of counselling services within licensed institutions is expressly provided for in s21.

b)The  form  prescribed  by  the  Abortion  Regulations  requires  the applicant to state “whether the counsellors are to be employed by the person or persons conducting the institution, and, if not, by whom they are to be employed”.

c)       Independence from the licensed institution is not one of the matters that the Committee is to have regard to under s31(2).

d)       Section 45(3) of the CSA Act repealed s140A of the Hospitals Act

1957  which  had  required  the  Director-General  of  Health  to  be satisfied that the institution in which the abortion was to be performed maintained “adequate and independent counselling services”.

[93]     At first blush these are compelling points.  Mr McKenzie countered them by referring to the Royal Commission’s report which at 288 stated:

The Independence of Counselling

Counselling should be independent in a twofold sense.   It should be:   (1) independent of the hospital, institution or clinic in which the abortion is to be carried out, and (2) independent in the sense of being objective and removed

from any particular philosophy.  Independence itself and the appearance of independence are both important.   Where a monetary payment is received for the carrying out of an abortion, or where facilities are provided in furtherance of some philosophy on abortion, the need to ensure that the counselling is independent is even more important.  In public hospitals, as distinct from private, the criticism can scarcely be made that the successful running of the institution is dependent upon or related to the numbers of abortions performed.  On the other hand, this criticism may be valid in the case of private hospitals or clinics where patients make payments to those conducting the institution or carrying out the abortions.   In such case the independence of counselling may be open to question.  The independence of counselling is best ensured when it is carried out by a person or persons who are  separate  from any institution,  be it  private  hospital  or  clinic,  where abortions are performed.

[94]     Mr   McKenzie   also   referred   to   paragraphs   5   and   13   of   the   Royal

Commission’s recommendations, the first of which was:

5.That before any decision is made on abortion, the patient be given independent and objective counselling separate from the institution in  which  abortions  are  performed  and  that  such  counselling  be carried out at a counselling service established by the statutory committee or by some counselling agency approved by the statutory committee.

[95]     Paragraph 13 sets out a number of recommendations as to the establishment and operation of a counselling service.  Independence is not again mentioned.

[96]     Mr McKenzie urged resort to the Royal Commission’s report in interpreting the requirements of s31.   He supported the legitimacy of that by referring to the discussion in Burrows Statute Law in New Zealand (3ed 2003) at 177 and following, particularly 181.

[97]     As to Ms Gwyn’s point about the repeal of s140A of the Hospitals Act, Mr McKenzie responded that s45(3) effected a bare repeal of the Hospitals Amendment Act 1975.  It made no direct reference to s140A, and Ms Gwyn’s submission that this “marked a deliberate departure” by Parliament from the “independence” requirement, considerably overstated the position.

[98]     These opposing arguments both have force, with the consequence that this fifth ground cannot be ruled out as untenable.  My only comment on the force of the arguments is that I view Ms Gwyn’s point (b) as unsound.   The words “in the

institution” in s21(1)(e) of the CSA Act surely refer to the place where the women are considering having an abortion, not to the location of the counselling services. The import is to require the availability of adequate counselling services to women considering having an abortion in any given institution.

[99]     Strictly, it is unnecessary to consider the second aspect of this ground, that is the plaintiff’s allegation that the Committee is altogether failing to discharge its mandatory s31(1) duty.  Suffice it to say that I have very considerable doubts as to whether the Committee discharges its s31 duty simply by being satisfied as to the s21(1)(e) requirement when granting a licence to any institution.  This second aspect of ground (5) is certainly arguable.

(6)  Declining to exercise statutory powers and discretions so as to prevent the practice  of  institutions  making  appointments  for  performance  of  abortions before completion of authorising certificates

[100]   This ground is pleaded in paragraphs 50-52 of the amended statement of claim.   It refers to a letter the plaintiff sent the Committee on 22 November 2002 drawing the Committee’s attention to the fact that five District Health Boards were making appointments for women to have an abortion performed before the certificate required by ss 32 and 33 of the CSA Act had been completed.   The Committee declined to take any action in response.

[101]   The plaintiff alleges that this is both inconsistent with the tenor of the Act and in breach of it.

[102]   Ms Gwyn submitted that this is a further ground asserting the existence of a statutory duty of the Committee that lacks any basis in the CSA Act.   Ms Gwyn argued that what was happening was nothing more than a matter of administrative convenience and common sense.  The appointments would obviously be cancelled if the abortion was not authorised by the certifying consultants.

[103]   Mr McKenzie confirmed that the gist of the plaintiff’s complaint under this ground was that these “forward” appointments were inconsistent with the tenor of

the CSA Act, because the practice placed unfair pressure on the women involved to proceed with an abortion before the statutory procedures had been completed, in particular counselling.   Mr McKenzie observed that this ground was “not a major plank of the plaintiff’s case”.

[104]   This ground cannot survive as a discrete ground of review.  Ms Gwyn’s point that the ground has no basis in the CSA Act is unanswerable, and is effectively accepted by Mr McKenzie.  It is simply an example of the more general complaint made by the plaintiff in ground (2), and is appropriately advanced as part of that ground.

[105]   I strike out this sixth ground for review.

(7)  Failure to comply with requests that the Committee carry out its statutory duties or exercise statutory powers

[106]   Although pleaded in paragraph 53 of the amended statement of claim as a separate  ground  for  review,  this  ground  does  no  more  than  list  letters  written between September 1992 and November 2004 in which the New Zealand Society for the Protection of the Unborn Child Inc., and more latterly the plaintiff, has requested the Committee to exercise its statutory functions, duties and powers in ss 14, 25, 30 and 36 of the CSA Act.   It is not really a stand alone ground for review, but is a legitimate pleading and it can remain.  In the further amended statement of claim that I will direct must be filed, these paragraphs could be re-located in a more logical place.

Proper defendants to the proceeding

[107]  This proceeding seeks review of the Committee’s exercise, or failure to exercise, its functions, powers and duties under the CSA Act.

[108]   The proper respondents (and that is their correct description) are the members of the Committee at the material time(s).  The relief claimed, both declaratory and mandatory, is ‘forward looking’, so the current members of the Committee are the

proper defendants (they should properly be described as respondents).   Ms Gwyn mentioned that the first defendant, Ms Marlene Lamb, had ceased to be a member of the Committee in March 2005.  Accordingly, she should no longer be named as a first respondent.  I reiterate, the current members of the Committee are the proper respondents to the proceeding.

[109]   Ms Gwyn seeks an order that the Attorney be struck out as second defendant to the proceeding, on the basis that no cause of action is pleaded, and no relief sought, against him.   Mr McKenzie accepts that but points to paragraph 4 of the amended statement of claim which states:

4.The Attorney-General is sued on behalf of the Ministry of Justice which is the Ministry responsible for the administration of the Act.

[110]   I agree with Ms Gwyn that that is not a proper basis on which to sue the Attorney.  The Ministry of Justice provides administrative support to the Committee in the discharge of its functions under the CSA Act.   That does not  make the Ministry, and therefore does not make the Attorney on its behalf, responsible at law for the discharge by the Committee of its functions.   Accordingly, I strike out the Attorney as second defendant to the proceeding.

Proceeding an abuse of the Court’s process

[111]   Several of the plaintiff’s grounds for review have survived the defendant’s strike out application.   Consequently, I have difficulty in accepting that the proceeding is an abuse of the Court’s process, unless the defendants can establish that it is brought for some ulterior purpose.   The nearest the defendants came to establishing that is Ms Gwyn’s submission that it appears that the plaintiff will present its case in a way which reflects the law as it might like it to be, rather than the law as it is.  Ms Gwyn submits that, if the plaintiff wants the law changed, then it should be directing its application to Parliament rather than to the Court.

[112]   The plaintiff and the Committee clearly have different views as to what represents a proper discharge of the Committee’s functions under the CSA Act, but that difference is a proper matter for the Court to resolve.

[113]   Ms Gwyn also submits that the plaintiff’s pleading of abortion statistics is irrelevant to its claim, and its selective and misleading references to extrinsic materials, and inaccurate paraphrasing of the CSA Act, are abusive.  I do not accept that.   There is not a bright line between the provision of adequate particulars supporting  allegations  on  the  one  hand,  and  the  illegitimate  and  unnecessary pleading of evidence on the other.  I do not regard the amended statement of claim, when viewed overall, as an improper pleading.

[114]   I rule against the defendants’ submission that the proceeding is an abuse of the Court’s process.

The relief claimed – is it available?

[115]   It is this aspect of the proceeding which causes me most concern.  I will deal first with the declaration sought, and then with the mandatory orders.

Declaratory relief

[116]   The plaintiff seeks a declaration in these terms:

A declaration that the Committee in carrying out its statutory functions and powers in s14(1)(g)(h) and (i) is empowered to inquire into, monitor, review and have oversight of the decisions of certifying consultants in relation to the performance of abortions including the inquiry into monitoring reviewing and exercising oversight over whether such decisions are being made in accordance with the provisions of the Act and are being conducted in a manner which has full regard to the rights of the unborn child.

(my emphasis)

[117]   In [59] I held that the plaintiff errs in fixing the Committee and certifying consultants with an obligation to have “full regard to the rights of the unborn child”. The Court will not make a declaration in the terms sought by the plaintiff.

[118]   The plaintiff should be permitted to reframe the declaration it seeks in the further amended statement of claim it will need to file, to reflect the terms of this

judgment.  I find it difficult to see how the plaintiff can do that in a way which will have any practical utility.

[119]   I am alive to the frustrations on the part of the plaintiff’s members which have led to the plaintiff bringing this proceeding.  The plaintiff’s attempts to have the Committee, and I assume also Parliament and the Select Committee, act upon its concerns have been to no avail.   The material before the Court demonstrates the Committee referring its concerns to Parliament, Parliament referring those concerns to its Select Committee, and the Select Committee effectively referring them back to the Committee in the form of recommendations.   The material also demonstrates Parliament’s unwillingness to change the law.   In short, the plaintiff has had both “the run around” and has hit a brick wall.

[120]   All this serves to demonstrate that most of New Zealand seems content with the current operation of abortion law in New Zealand, and that the plaintiff’s views at one end of the spectrum (see [9]-[10] above) do not hold popular sway.

[121] The Court of Appeal’s judgment in Wall v Livingston, in particular its cautionary observations about the scope for judicial review of the type sought in this proceeding (I am not referring to the type of application Dr Wall brought), do not bode well for the plaintiff.

[122]   The immediate challenge the plaintiff faces in terms of declaratory relief is to frame a declaration that, if granted, will in any practical way alter the current operation of the CSA Act, given the political reality and the Court of Appeal’s comments in Wall v Livingston.

[123]   If it has not already done so, I invite the plaintiff to stand back and ask itself: Realistically, just what can we achieve with this proceeding?

Mandatory relief

[124]   In accordance with my rulings in [78] and [105] above,  I strike out the mandatory orders sought in prayer for relief B(iii) and (iv) in the amended statement

of claim. My concerns about the remaining mandatory orders sought are the same as those expressed by Ms Gwyn for the defendants, which I set out in [48]. The mandatory order sought in B(ii) has the difficulty I also referred to in paragraph [48] that it asks the Court to direct the Committee to exercise an admittedly discretionary power in a certain way. As I have indicated, the Court will not do that unless the plaintiff can establish that the way in which the Committee is presently exercising that power is wrong, in terms of the May v May test (see [87] above).

[125]   To varying extents the three remaining mandatory orders sought all seek to have the Court compel the Committee to exercise its powers in the way directed by the Court on a continuing basis into the future.   The Court is not going to make mandatory orders which require it to have ongoing supervision of the Committee’s discharge of its statutory functions.  Mr McKenzie will readily be able to explain to the plaintiff why that is so.  It applies equally to decrees made by the Court ordering specific performance.

[126]   So, in respect of the mandatory relief it seeks, I suggest that the plaintiff would be well advised again to ask itself the question I posed in [123] above.

Result

[127]   The plaintiff’s third and sixth grounds for review are struck out.

[128]   The declaration sought in prayer for relief A will need reframing as directed in [118] of my judgment.

[129]   The mandatory orders sought in prayer for relief B(iii) and (iv) are struck out.

[130]   If the plaintiff chooses to pursue this proceeding, it will need to file and serve a further amended statement of claim reflecting these orders, and it is to do so by 28

October 2005.

[131]   Costs  are  reserved.    Given  that  the  plaintiff  and  defendants  have  each succeeded to an extent, my tentative view is that there should be no order.  Any party

not accepting that tentative view may apply for costs, any such application to be filed and served, also by 28 October.

Solicitors:

P J Doody, Christchurch for the Plaintiffs

Crown Law Office, Wellington for the First and Second Defendants