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Time Line Court Case RTLNZ v. ASC

By ALRANZ

The 7-year Right to Life v Abortion Supervisory Committee case finally ended on 9 August 2012 when a 3-2 majority of the Supreme Court dismissed Right to Life's final appeal. See the 9 August 2012 entry in the timeline below for more detail.

Information obtained under the Official Information Act from the Abortion Suupervisory Committee revealed that as of 27 August 2012, “the total cost for legal representation and court filing fees on behalf of the ASC is $432,859.54.” It went on to say that this was “unlikely to represent the total figure as we anticipate that some work has yet to be invoiced”. Clearly, the drain on the public purse was much higher than that, since the figure doesn't include pay for all those judges and court staff, the court time and so on. So where has all this money been spent?

The case began in 2005. To summarise, the case was considered by 16 judges (Wild, Gendall, Ronald Young, France, Miller, Baragwanath, Hammond, Robertson, Chambers, Arnold, Stevens, Blanchard, Tipping, McGrath, William Young and Elias), an expensive and ponderously legalistic form of harassment by RTL that so far has changed nothing. As a reminder here is a time line of the caser.


 Background
Catholic Ken Orr founded RTL in 2000 after the Christchurch Branch of SPUC (as it was then known) was expelled from the national organisation for Ken’s uncompromising attitude in campaigning to reintroduce the Status of the Unborn Child Bill. Since then SPUC has changed its name to Voice for Life and it is noteworthy that it has not publicly supported the RTL v ASC legal proceedings. RTL initially complained to the ASC about its concerns on how the Contraception Sterilisation and Abortion Act (CS&A Act) was being interpreted. The complaints were referred to Parliament which referred the matters to a select committee. It in turn referred the matters back to the ASC. That was when RTL turned to the courts and filed proceedings against the ASC.


May 2005
RTL filed a mandamus in the High Court in Wellington against the ASC for its alleged failure to fulfil its statutory duties. These claims included the failure of the ASC to ensure that the human rights of unborn children received the full protection of the law, the failure to hold certifying consultants accountable for the lawfulness of the abortions they authorised and the failure to stop abortion on demand.


20 June 2005
 The ASC applied for orders striking out the proceedings against the ASC. The ASC described the action as vexatious and an abuse of the Court's process. 8 September 2005 In the High Court in Wellington Mr Justice Wild heard the case between RTL and the three members of the ASC, Dr Lesley Rothwell, Dr Papaarangi Reid and Mrs Marlene Lamb (although the latter had resigned from the committee in March 2005, leaving a vacancy.) The ASC never actually appeared in the courtroom and its case is represented by Crown Law. RTL named the Attorney-General as second defendant. The judge decided that some of RTL's claims should be struck out but that others, if rewritten, could proceed. The claim against the Attorney-General was one of those struck out.


28 October 2005
  RTL filed an amended claim in accordance with Judge Wild’s decision .  


29 November 2006
Associate Judge Gendall heard an appeal by the ASC to disallow seven affidavits, six of them from aggrieved women and one from a woman psychiatrist Dr Julia Aranui-Faed. One of the women had already gone public about her hopes to tell her sob story to the High Court in an interview for the New Zealand Herald (7 January 2006). Later (29,30 June 2008) Ann Marie May for Radio New Zealand’s ‘Insight’ programme  interviewed another of the women called Sharon (as an example of someone who regretted her abortion) without making clear her involvement in the case.


21 December 2006
The judge ruled the affidavits admissible. Even though one of the women had already gone public the judge gave the women name suppression then even more bizarrely published their names in his legal opinion! So much for name suppression. RTL shouted victory but the ASC requested that the case be heard again by a full judge (not an associate judge).


28 May 2007
Mr Justice Young heard the case in closed chambers and ruled in favour of the ASC by having the affidavits of the six aggrieved women struck out as irrelevant to the case but the affidavit of Dr Aranui-Faed was allowed. Dr Faed considers that women with existing mental health problems will only suffer more problems if they have an abortion.


June 2007
The newly appointed members of the ASC are Professor Linda Holloway as chairperson, Dr Rosy Fenwicke (who is also a certifying consultant) and  Rev Patricia Allan.


24 September 2007
Mr Justice Simon France heard arguments on whether affidavits from two paediatricians relating to fetal surgery and fetal diagnosis should be allowed.


3 October 2007
The judge ruled in favour of RTL.


7-9 April 2008
After all these skirmishes the case proper was eventually heard by Mr Justice Forrest Miller in the High Court Wellington. He rejected RTL's claim seeking legal status for the unborn child. He also rejected criticism of the counselling services and the method of making appointments at the clinics. He did however question the legality of over 98% of abortions being done on the grounds of mental health, but reached no conclusion on the question of whether certifying consultants were complying with the abortion law. No declarations were made. No clear advantage for either side, let alone the women of New Zealand. That said, RTL has subsequently used the ruling to suggest abortions in New Zealand are being carried out illegally. 


9 June 2008
The judgment of Mr Justice Miller was released. He agreed to meet with the parties to discuss the form and utility of any declarations. None were made.


17 July 2008
Crown law representing the ASC applied for direction from an Appeal Court judge and Judge Baragwanath in a Minute advised that the correct procedure was to apply to the Appeal Court. This they did and RTL cross- appealed.


12-13 May 2009
  The case was heard in the Appeal Court, Wellington  by Justices Hammond, Chambers and Robertson. The Appeal Court dismissed the case as no declaratory order had been made in the High Court and therefore there was no case within the Appeal Court’s jurisdiction. This was contrary to the opinion previously given by Baragwanath. The Appeal Court also expressed the opinion that the issues raised were constitutional and therefore the responsibility of parliament and not the courts. The recommendation was that the case be referred back to the High Court so that a declaratory order could be made. Depending on this it would still be possible to return to the Appeal Court.


20 July 2009
The case was heard again by Mr Justice Miller in the High Court Wellington.


3 August 2009
Miller's judgment released. No declaratory orders were made as requested by RTL. The lawfulness of abortions and the actions of the ASC are under the supervision of a parliamentary select committee and it is not the role of the Courts to interfere with this process.


20 August 2009
An appeal was lodged by ASC with the Appeal Court and RTL will counter appeal. The grounds of the ASC's appeal are that the Court erred in law in assuming it had jurisdiction to consider whether certifying consultants were obeying the law and, even if it did have jurisdiction, there was no evidential foundation for the judge's findings.The ASC's powers to review and scrutinise the decisions of individual certifying consultatns are also disputed. Right to Life's cross-appeal is against the judgment refusing to grant relief and also the Court's findings relating to the rights of the unborn child and counselling to be independent of abortion providers.


4-5 May 2010
Date set down for Court of Appeal hearing but this has now been changed to 5-6 October 2010.


July 2010
Rosemary Fenwicke does not seek re-election to hte ASC after completing her three-year term.


5-6 October 2010
Appeal Court hearing Wellington before Justices Chambers, Arnold and Stevens. This now brings the total of judges deliberating on the case to eleven. ASC and RTL both presented oral submissions to support their written submissions. Pro-choice students (Action for Abortion Rights), supported by ALRANZ and WONAAC, organised  a protest outside the Court of Appeal and Parliament.


7 April 2011
Parliament appointed Dr. Tangimoana Frances Habib as the third member of the Abortion Supervisory Committee. An amendment by Maori Party MP Tariana Turia that sought to have anti-abortion physician Dr. Ate Moala appointed was lost.


1 June 2011
The Appeal Court (Chambers, Arnold and Stevens JJ) dismissed RTL's cross-appeal on the right to life of the fetus under New Zealand law. A majority (Chambers and Stevens) backed the ASC in its appeal, holding that Miller (2008) erred in his findings as to the scope of the Committee's power to review certifying consultant's decisions.The majority also quashed Miller's findings about the lawfulness of abortions. Justice Stevens said: "we are satisfied that the findings as to lawfulness of the decision making of the certifying consultants or judicial comment about New Zealand having abortion 'on request' ought not to have been made in the circumstances of this case. We conclude that they are of no lawful effect." However, Justice Arnold was a dissenter in the judgment. (The ruling itself is an 83-page document that can be downloaded at the Justice site. Just visit Judicial Decisions Online, click on "search" and under "File Number" type in CA522/2009)According to a (pdf)summary of the judgment, Justice Arnold stated in his dissent that he "agreed that the Committee could not interfere with the decisions of certifying consultants in individual cases but considered that it could review such decisions after the fact as part of its general role of reporting to Parliament on the operation of the abortion law."


24 June 2011
RTL announces it plans to seek leave to appeal to the Supreme Court. In a media release, it says it hopes to appeal on the following matters, all of which it has previously litigated in this case (quoting RTL): "-- The legal recognition of children before birth as human beings endowed at conception by the Creator with human rights, the foundation right being a right to life. -- Recognition that the Abortion Supervisory Committee has the statutory power and duty to review the performance of certifying consultants so that they may be accountable for the lawfulness of the abortions they authorise. -- Recognition that abortion counsellors should be independent of abortion providers. -- The overturning of the costs awarded by the Court of Appeal to the Abortion Supervisory Committee."


26 August 2011
In a judgment from Justices Peter Blanchard, John McGrath and Andrew Tipping, the Supreme Court allows RTL leave to appeal on three matters related to High Court Judge Forrest Miller's 2008 ruling, but not on RTL's claim that the fetus has a right to life from the moment of conception or its effort to change the current abortion counseling regime. The three matters on which it granted leave are, briefly: whether the ASC has the power to review certifying consultants' decisions and form its "own view about the lawfulness of their decisions"; whether there is any evidential basis for the High Court's assertion that the approval rates for abortions seem "remarkably high"; and, finally, whether the High Court has the jurisdiction to consider whether certifying consultants are obeying the abortion law and whether there is any evidential basis for Miller's finding that "there is reason to doubt the lawfulness of many abortions authorised by certifying consultants".



13 March 2012
The case is heard in the Supreme Court in Wellington. On the bench were Chief Justice Sian Elias and Justices McGrath, Blanchard, Tipping and Young. Lead counsel for Right to Life was Peter McKenzie, QC, and for the ASC was Cheryl Gwyn from Crown Law. The bench reserved its decision. For a first-hand account of the hearing, visit our blog: "Abortion Access Back in the Dock (Part 2)"


9 August 2012
The case is finally over! The Supreme Court in a 3-2 majority ruling dated 9 August, dismissed Right to Life's appeal. In its decision, the Court ruled that the Abortion Supervisory Committee does not have the power to scrutinize individual doctors' decisions regarding approval of abortion (that is, whether or not the abortion meets the legal requirements set out in the Crimes Act 1961). In its media release, the court explained that the majority did hold that the ASC "could ask consultants how they were approaching their decision-making in general, that is, over the whole of their caseloads, but the Committee could not question them about how they came to a diagnosis or conclusion in a particular case, even a case selected at random and anonymised in the consultant's report." Essentially, this upholds the important Wall v. Livingston precedent set in 1982.

The fact that this was a 3-2 decision shows how fragile current abortion access is to legal and other challenges, and – yet again – why abortion needs to be decriminalised in New Zealand, and set on a secure footing for women. The three justices in the majority were the chief justice, Dame Sian Elias, Andrew Tipping, and Peter Blanchard (Blanchard retired from the bench in June); those in the minority were William Young and John McGrath. We are sure that Right to Life will relentlessly pursue the ASC to question certifying consultants about their decision-making. The Court said that costs "should lie where they fall".


25 October 2012
RTL appealed against the court's ruling that the costs "should lie where they fall", but on 25 October 2012, the Supreme Court rejected that appeal. As of early 2014, according to the ASC, Right to Life still owed it more than $67,000.


Updated 19 February 2014