In Right to Life New Zealand Inc v The Abortion Supervisory Committee (No 2)(1) the High Court refused to grant declaratory relief to a judicial review claimant despite having held that the claimant had successfully established grounds for review, had demonstrated prejudice and therefore would normally have been entitled to a remedy.

Background

The Abortion Supervisory Committee was established by the Contraception, Sterilization and Abortion Act 1977 and consists of three members appointed by the governor general. The committee's functions are set out in Section 14 of the act and include:

• reviewing the provisions of abortion law and their operation in practice;
• considering and either granting or refusing applications for licences;
• prescribing standards for facilities for abortions;
• obtaining and disseminating information regarding abortions in New Zealand;
• ensuring that the administration of abortion law is consistent throughout New Zealand; and
• reporting 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 is comparable to countries where this right exists. Right to Life Inc brought an application for a judicial review of the committee, which it claimed was failing to perform its functions under its empowering statute.

Substantive decision

In June 2008 the High Court held that the committee was failing to fulfil its statutory duties, as it had misinterpreted its powers and functions under the relevant abortion statutes (for further details please see "Judicial review of abortion law examines gap between legislation and practice"). It held that there was reason to believe that abortions were available in New Zealand on a more liberal basis than Parliament had intended under the legislation. Moreover, the court held that the committee should use its powers to require consultants to keep proper records and to report on cases that they have certified. This would allow the court to form a retrospective general opinion on the lawfulness of consultants' decisions for the purposes of performing its statutory functions of reviewing 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 Parliament's oversight of the committee by clarifying the committee's functions under the abortion statutes. However, it warned that the court should not assume a policy role in this socially divisive area.

Relief decision

On August 3 2009, after hearing further argument on the form and utility of declaratory relief, the High Court released its decision. The declarations sought were directed at the proper interpretation of the legislation.

The court began by confirming that although declaratory relief is discretionary, the presumption is that an applicant is entitled to a remedy unless there are compelling reasons for refusing it. The court noted that the applicant had made out grounds for review and could point to prejudice to unborn children if the committee's misunderstanding of its functions were to contribute to abortions being authorized 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.

However, the court held that the following factors militated strongly against relief:

• The committee's past failure to appreciate its functions stemmed from its flawed interpretation of the legislation in light of an earlier judicial decision, in which it was found that the committee could not review the legality of an individual abortion approval. Therefore, the June 2008 judgment would speak for itself.
• The committee is a public body and had accepted that it must give effect to the June 2008 judgment. The court noted that the committee had already begun to inform itself more effectively and found 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. The construction of legislation is the province of the court and its analysis of legislation may complement parliamentary oversight. However, making declarations would risk assuming a function that Parliament had reserved for itself. The question of whether consultants are complying with the law on abortion falls to be answered by the committee in the first instance and by Parliament in its capacity as the body to which the committee reports.
• Declarations risk reshaping the committee's administrative priorities, in respect of which it has discretion under the relevant legislation.
• Declarations risk becoming a substitute for legislation and may lead to confusion and requests for further clarification.

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

Appeal

The judgment records that the original substantive decision was appealed and cross-appealed to the Court of Appeal immediately after its release. However, the court held that it had no jurisdiction to consider the appeals until relief had been determined. The release of the decision on relief will found jurisdiction for appeals to be pursued.

Comment

This case is a reminder that the remedies available for claims of judicial review are discretionary and 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 surprising if applied in cases outside the controversial and socially divisive area of abortion. If the first two reasons for declining relief were applied in all applications for a declaration, they 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 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 High Court observed, it is the province of the courts to interpret legislation, whereas Parliament's role is to make and, if necessary, amend or repeal legislation.

Endnotes

(1) High Court, Wellington, CIV-2005-485-999, August 3 2009, Miller J.