Under New Zealand’s legal system both the legislature and the courts have law-making capacity.  Statutes (Acts of Parliament) are trumps, but the courts have a role in interpreting them, updating them, applying them to particular fact situations, and developing the law when statutes are silent or incomplete.  This is the ‘common law’.

In the Seales case we see a clash between two statutes.

Under section 179 of the Crimes Act 1961 it is an offence for anyone (such as a doctor) to assist a person to commit suicide.  Counsel for Ms Seales argue that what she is seeking is not ‘suicide’.  The Court will have to interpret this section.  It is the role of the Courts to do so, if the statute is unclear or its meaning is in dispute.  In interpreting a statute, the Court looks not just at the words, but also the purpose or intention that lies behind them.

The other relevant statute is the New Zealand Bill of Rights Act 1990 (BoRA).  Here the sections relied on by Ms Seales are sections 8 (right not to be deprived of life) and 9 (right not to be subjected to torture or cruel treatment).  In respect of section 9, the Court may have to consider the meaning of ‘treatment’.

In respect of section 8, Ms Seales argues that, if she is not able to receive medical assistance to die at the time of her choosing, she will be forced to kill herself prematurely (while she is still competent to do so) and thus be deprived of some weeks or months of her life.  This is an argument that succeeded in a recent Canadian case (Carter v Canada) where the nine judges of the Supreme Court of Canada (SCC) ruled unanimously that the equivalent of section 179 of our Crimes Act was invalid because it was incompatible with the Canadian Charter of Rights and Freedoms.

The significance of the Canadian case is that it is a decision of the highest court in another common law jurisdiction.  New Zealand looks to other common law countries (especially Canada, the UK, Australia and the United States) for guidance.  A decision of the SCC is ‘highly persuasive’  for our courts  –  especially in human rights matters, as our BoRA is modelled on the Canadian Charter.  There is, however, the important difference that, unlike the Canadian Charter, the BoRA is just an ‘ordinary’ statute and does not prevail over other laws.

Ms Seales’ case is therefore largely an exercise in interpreting two New Zealand statutes, and the Court should not give undue weighting to the Canadian decision (because of the different constitutional arrangements).

It has been said by some of Ms Seales’ supporters that the outcome of the case will be confined to her alone.  That cannot be.  Whatever the outcome, Seales v Attorney-General will undoubtedly set a precedent, as that is how the common law works.  Suggestions to the contrary are, at best, disingenuous.

 

Stephen Penk
Associate Professor of Law
University of Auckland

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