Right to Life New Zealand Inc v The Abortion Supervisory Committee (Relief Decision)

The High Court of New Zealand has refused to grant declaratory relief to a judicial review claimant despite having held that the claimant had successfully established a ground for review and demonstrated prejudice and therefore would usually be entitled to a remedy.

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Background

The Abortion Supervisory Committee was established by the Contraception, Sterilisation and Abortion Act 1977 and consists of three members appointed by the Governor-General.  The functions of the Committee are set out in s14 of the Act and include:

• to review the provisions of abortion law, and its operation in practice;
• to consider and grant or refuse applications for licences;
• to prescribe standards for facilities for abortions;
• to obtain and disseminate information regarding abortions in New Zealand;
• to ensure the administration of abortion law is consistent throughout New Zealand; and
• to report annually to Parliament on the operation of abortion law.

New Zealand's abortion law does not allow for abortion on request but New Zealand's abortion rate in practice is comparable to countries which do have abortion on request.  Right to Life Inc brought an application for judicial review of the Committee as it claimed that the Committee was failing to perform its functions under its empowering statute.

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Substantive Decision

In a decision of June 2008 (the subject of an earlier article), the High Court held that the Committee was failing to fulfill its statutory duties as it had misinterpreted its powers and functions under abortion statutes.  It held that there was reason to believe that abortions were available in New Zealand more liberally than Parliament had intended under the legislation.  The Supervisory Committee, the Court held, should use its powers to require consultants to keep proper records and to report on cases that they have certified so that it could form its own hindsight general opinion on the lawfulness of consultants' decisions for the purposes of performing its statutory functions of reviewing the abortion legislation, reporting to Parliament on the operation of the law and ensuring its consistent administration.

The Court refused to grant orders in the nature of mandamus and reserved its decision on declaratory relief for further argument, noting that declaratory relief might complement Parliamentary oversight of the Committee by clarifying the Committee's functions under the abortion statutes.  It warned, however, that, in this socially divisive area, the Court should not assume a policy role.

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Relief Decision

On 3 August 2009, the High Court, after hearing further argument on the form and utility of declaratory relief, released its decision on declaratory relief.  The declarations sought were directed at the proper interpretation of the legislation.  The Court began by confirming that, although declaratory relief is discretionary, the starting point is that an applicant is entitled to a remedy unless there are very good reasons for refusing it.  The Court noted that the applicant had made out a ground for review and could point to prejudice to unborn children if the Committee's misunderstanding of its functions contributed to abortions being authorised unlawfully.  It also stated that the Committee's non-compliance was material as it had failed to exercise its powers and duties for many years.

The Court held, however, that there were factors which militated strongly against relief:

• The Committee's past failure to appreciate its functions stemmed from its flawed interpretation of the legislation in the light of an earlier judicial decision which ruled that the Committee could not review the legality of an individual abortion approval. The June 2008 judgment, the Court held, would speak for itself.
• The Committee is a public body and accepted that it must give effect to the June 2008 judgment. The Court noted that the Committee had already begun to better inform itself and that there was no reason to believe that it would not now administer the law as construed by the Court.
• The Committee is supervised by Parliament which is the proper body to hold the Committee to account and to assess where the public interest lies in this field. Although the construction of legislation was the province of the Court, and the Court's analysis of the legislation may complement Parliamentary oversight, making declarations would risk assuming a function that Parliament had reserved for itself. The question whether consultants are in fact complying with the abortion law falls to be answered by the Committee in the first instance, and by Parliament as the body to which the Committee reports.
• Declarations risk reshaping the Committee's administrative priorities, in respect of which it has a discretion under the relevant legislation.
• Declarations risk becoming a substitute for the legislation and may lead to confusion and requests for further clarification.

The Court accordingly denied relief in the form of a declaration.

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Comment

This case is an interesting reminder that the remedies available for claims of judicial review are discretionary and so may be refused even if the grounds for review are successfully made out.

Some of the reasoning for refusing declaratory relief in this case is disturbing and would be curious if applied in cases outside the controversial and socially divisive area of abortion.  The first two reasons for declining relief would apply in all applications for a declaration and if applied, would see no declarations made on the basis that the declaratory order would lack essential utility.  The remaining reasons sit uneasily with the conventional view of the division of powers and of the constitutional role of the courts to construe and interpret legislation.  It is surprising that the Court would refuse to grant a declaration of the meaning of statutory provisions on the basis that to do so would usurp the powers of Parliament.  As the Court itself observes it is the province of the courts to interpret legislation; Parliament's role is to make and, if necessary, amend or repeal legislation.

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Appeal

It is recorded in the Judgment that the original substantive decision was appealed and cross-appealed to the Court of Appeal immediately after its release, but the Court of Appeal held that it had no jurisdiction to consider the appeals until relief had been determined.  The release of this recent decision on relief will found jurisdiction for appeals to be pursued. 

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