NEW ZEALAND HEALTH PROFESSIONALS ALLIANCE INC v ATTORNEY-GENERAL [2021] NZHC 2510

NEW ZEALAND HEALTH PROFESSIONALS ALLIANCE INC v ATTORNEY-GENERAL [2021] NZHC2510 [23 September 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-178[2021] NZHC 2510UNDER the Declaratory Judgments Act 1908 and theNew Zealand Bill of Rights Act 1990IN THE MATTER of Part 1 s 8 (regarding new ss 14(2) and15(2)) and Part 2 s 15 of the AbortionLegislation Act 2020BETWEEN NEW ZEALAND HEALTHPROFESSIONALS ALLIANCEINCORPORATEDPlaintiffAND THE ATTORNEY-GENERAL OF NEWZEALANDDefendantHearing: 8–10 March 2021Counsel: I C Bassett for PlaintiffD J Perkins and G M Taylor for DefendantJudgment: 23 September 2021JUDGMENT OF ELLIS J[1] Over 30 years ago, Madam Justice Bertha Wilson said:1 I believe that the decision whether to terminate a pregnancy is essentiallya moral decision, a matter of conscience. I do not think there is or can be anydispute about that. The question is: whose conscience?1 R v Morgentaler [1988] 1 SCR 30 at 175–176.[2] Wilson J's answer was that abortion engaged the conscience of the womanconcerned, not the conscience of the state. She held that legislation purporting toexercise state control over a woman's choice:2 is not, in my view, just a matter of interfering with her right to liberty inthe sense of her right to personal autonomy in decision-making, it is a directinterference with her physical "person" as well. She is truly being treated asa means to an end which she does not desire but over which she has no control.She is the passive recipient of a decision made by others as to whether herbody is to be used to nurture a new life. Can there be anything that comportsless with dignity and self-respect?[3] As I will later discuss, the nexus between the ability of women to accessabortion services in a timely way and their fundamental rights is now widelyrecognised in a number of international human rights instruments.[4] But there remain those such as the plaintiffs in these proceedings who want nopart in the exercise by women of these rights.3 They are health practitioners who, inthe exercise of their own consciences, take issue with a law that requires them to givea patient who seeks an abortion the minimal information she needs to make contactwith a health provider who can help her. They say to provide this information wouldmake them complicit in the abortion process, which they say involves the taking ofhuman life and is contrary to their most fundamental beliefs.[5] The plaintiffs also take issue with a law that permits employers to prefer anemployee or candidate who is willing to assist in the abortion process over those whoconscientiously object to doing so, in order to meet the employer's legal obligation toprovide abortion services.[6] The statutory provisions challenged by the plaintiffs were inserted into theContraception Sterilisation and Abortion Act 1977 (the CSAA) by the AbortionLegislation Act 2020 (the ALA). The plaintiffs say these new provisions unjustifiablylimit various of their rights confirmed in the New Zealand Bill of Rights Act 1990(NZBORA). They seek declarations of inconsistency.2 At 173.3 The plaintiff in these proceedings is an incorporated body of health professionals whose membersare united in their religious and/or moral opposition to abortion. In this judgment I refer to themembers of the plaintiff collectively as "the plaintiffs".[7] It is necessary to begin with the wider legal context.Domestic context: abortion law in New Zealand between 1977 and 2020[8] Prior to the 2020 amendment, the CSAA controlled women's access to abortionby reference to the criminal law. Abortion (doing acts with intent to procure amiscarriage) was unlawful,4 subject only to the exceptions contained in s 187A of theCrimes Act 1961 (the CA). Section 187A provided that, in the case of a pregnancy ofnot more than 20 weeks' gestation, abortion was not unlawful if the person doing therelevant act believed:(a) that the continuance of the pregnancy would result in serious danger(not being danger normally attendant upon childbirth) to the life, or tothe physical or mental health, of the woman or girl ; or(b) that there is a substantial risk that the child, if born, would be sophysically or mentally abnormal as to be seriously handicapped; or(c) that the pregnancy is the result of incest (as defined); or(d) that the pregnancy is the result of sexual intercourse with a "dependentfamily member" (as defined); or(e) that the woman or girl was "severely subnormal" within the meaningof section 138(2) of this Act.[9] In the case of a pregnancy of more than 20 weeks' gestation, s 187A(3)provided that procuring an abortion was not unlawful only if the person doing therelevant act believed that "the miscarriage is necessary to save the life of the womanor girl or to prevent serious permanent injury to her physical or mental health".4 In particular, s 186 of the Crimes Act 1961 provided:Every one is liable to imprisonment for a term not exceeding 7 years who unlawfully suppliesor procures any poison or any drug or any noxious thing, or any instrument or other thing,whether of a like nature or not, believing that it is intended to be unlawfully used to procuremiscarriage.[10] In terms of the process for obtaining an abortion, s 32 of the CSAA relevantlyprovided:(1) Every medical practitioner (in this section referred to as the woman'sown doctor) who is consulted by or in respect of a female who wishesto have an abortion shall, if requested to do so by or on behalf of thatfemale, arrange for the case to be considered and dealt with inaccordance with the succeeding provisions of this section and ofsection 33 of this Act.(2) If, after considering the case, the woman's own doctor considers thatit may be one to which any of paragraphs (a) to (d) of subsection (1),or (as the case may require) subsection (3), of section 187A of theCrimes Act 1961 applies, he shall comply with whichever of thefollowing provisions is applicable, namely:(a) Where he does not propose to perform the abortion himself,he shall refer the case to another medical practitioner (inthis section referred to as the operating surgeon) who may bewilling to perform an abortion (in the event of it beingauthorised in accordance with this Act); or(b) Where he proposes to perform the abortion himself (in theevent of it being authorised in accordance with this Act), heshall—(i) If he is himself a certifying consultant, refer the caseto one other certifying consultant (who shall be apractising obstetrician or gynaecologist if thewoman's own doctor is not) with a request that he,together with the woman's own doctor, determine, inaccordance with section 33 of this Act, whether or notto authorise the performance of an abortion; or(ii) If he is not himself a certifying consultant, refer thecase to 2 certifying consultants (of whom at least oneshall be a practising obstetrician or gynaecologist)with a request that they determine, in accordance withsection 33 of this Act, whether or not to authorise theperformance of an abortion.[11] The combined effect of s 32 and of s 33 of the CSAA was that an abortioncould be authorised by two "certifying consultants" issuing a certificate in theprescribed form after satisfying themselves that the case fell within one of the s 187Aexceptions.[12] Conscientious objection was permitted by s 46(1) of the CSAA, whichrelevantly provided:(1) Notwithstanding anything in any other enactment, or any rule of law,or the terms of any oath or of any contract (whether of employment orotherwise), no medical practitioner, nurse, or other person shall beunder any obligation—(a) to perform or assist in the performance of an abortion :if he objects to doing so on grounds of conscience.[13] Section 46(2) prohibited any employer from discriminating against aconscientious objector.[14] As well, s 174 of the Health Practitioners Competence Assurance Act 2003 (theHPCAA) provided that in cases engaging a health practitioner's conscientiousobjection: the health practitioner must inform the person who requests the servicethat he or she can obtain the service from another health practitioner or fromfamily planning clinic.Judicial decisions[15] Between 1977 and 2020 aspects of abortion law came before the Courts on anumber of occasions. The leading authority is Wall v Livingston, where the Court ofAppeal relevantly held that the provisions of the CSAA itself do not confer anyenforceable rights on a foetus.5 It said: 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 responsibilityfor protecting those rights in the form, for example, of an independentadvocate (something rejected by the Royal Commission – see p 294 of theReport). The matter is handled indirectly. It is done by surrounding the lawfultermination of a pregnancy with the precautionary process of prior medicalauthorisation by two certifying consultants which must be obtained (except incertain situations of emergency) if an offence is to be avoided.5 Wall v Livingston [1982] 1 NZLR 734 (CA). Dr Wall sought judicial review of two consultants'decision to authorise an abortion for a teenage girl. The girl had been referred to a public hospitalfor investigation of a suspected complication arising from a heart complaint. Dr Wall, apaediatrician, saw the girl as part of the hospital medical team's examination of her. WhenDr Wall subsequently became aware that the two consultants had certified that an abortion wasjustified, he sought judicial review, alleging that there were no grounds under the Act on whichan abortion could properly be undertaken (and that the consultants' certificate was accordinglyinvalid). it is important not to lose sight of what must have been a deliberateParliamentary decision: the avoidance of any attempt to spell out what wereto be regarded as the legal rights in an unborn child; with the consequentialabsence of any statutory means by which rights (whatever their nature) couldbe enforced.[16] Those dicta were confirmed more recently in Abortion Supervisory Committeev Right to Life New Zealand Inc.6 The Court held that "there is no basis either fromthe Long Title to the CSAA or the abortion law to derive generally an express right tolife in the unborn child."7 In the absence of any statutory recognition of such a right,the common law "born alive" rule applies in New Zealand, under which a foetus hasno legal rights prior to birth. The Supreme Court declined to hear an appeal on thisissue, saying "it is plain that the [CSAA] was based on the premise of the "born alive"rule".8[17] More notable for present purposes, however, are the judicial reviewproceedings brought in 2010 by the plaintiff association together with one of itsmembers, Dr Catherine Hallagan.9 Those proceedings challenged the proposedpromulgation of a statement by the Medical Council of New Zealand (the MedicalCouncil) entitled Beliefs and Medical Practice. Dr Hallagan contended that thestatement involved a misinterpretation of the law and would impose obligations onconscientiously objecting medical practitioners to act inconsistently with theirpersonal values and beliefs about abortion.[18] In essence, the Medical Council's position (as reflected in the proposedstatement) was that:(a) when a doctor with a conscientious objection is consulted by a patientseeking an abortion, the doctor was under a statutory obligation, unders 32(1) of the CSAA, to determine whether the case was one to whichone of the s 187A exceptions might apply and, if so, to arrange for thecase to be considered and dealt with by another doctor (by reference to6 The Abortion Supervisory Committee v Right to Life New Zealand Inc [2011] NZCA 246, [2012]1 NZLR 176.7 At [59].8 Right to Life New Zealand Inc v The Abortion Supervisory Committee [2011] NZSC 97 at [1].9 Hallagan v Medical Council of New Zealand [2010] NZHC 2124.the proper professional standards applying to referrals) in accordancewith s 32(2)(a);(b) s 46 of the CSAA did not permit the doctor, on grounds of conscience,to decline to do so, because arranging for the case to be considered byanother doctor did not amount to assisting in the performance of anabortion; and(c) that position was unaffected by s 174 of the HPCAA because:(i) s 174 did not confer a right of conscientious objection thatoverrode the mandatory provisions of s 32; and(ii) s 174 could have no application in a case where s 46 was notengaged.[19] Mackenzie J agreed with the Medical Council that s 46 did not exempt thedoctor from the s 32(1) obligation because arranging for the case to be considered anddealt with in accordance with the succeeding provisions did not constitute assisting inthe performance of an abortion. But he disagreed with the Medical Council that thereach of s 174 was confined by s 46. He said:[17] If Ms Scholtens' submission on this point is correct, then Parliamenthas imposed a mandatory requirement on a woman's own doctor to whom arequest is made to arrange for the case to be considered and dealt with, with aview to an abortion. That obligation is imposed even where the doctor has anobjection, on grounds of conscience, to making that arrangement. I do notattribute to Parliament an intention to impose such a requirement. It might bethat some doctors with a conscientious objection to abortion would notconsider it a violation of their principles to arrange for the case to beconsidered by making a referral, in accordance with proper medical practice,to another doctor. In that case, the doctor could perform the s 32(1) obligation,without offending his or her conscience, by arranging for the case to beconsidered and dealt with by another doctor. However, some doctors mightregard even the step of making a formal referral as violating their conscience.Matters of conscience are intensely personal. The question is: has Parliamentlegislated in s 32(1) to require a doctor to arrange for a case to be consideredby another doctor, even if taking that step offends the conscience of thedoctor? Clear words would be needed to impose such a requirement. Thatwould have been so when the CSA Act was passed. It is more obviously sotoday, in the light of the right to freedom of conscience enshrined in s 13 ofthe New Zealand Bill of Rights Act 1990, and the requirement in s 6 of thatAct to prefer a meaning that is consistent with that right.[19] I consider that the reference in s 174(1)(b) to an objection on groundsof conscience is not confined to a right of conscientious objection conferredby Parliament in s 46, or specifically recognised in some other way. Thereference extends to any conscientious objection held by a doctor to providingsome service relating to abortion, and the section does not limit or confine theextent of such a conscientious objection. For these reasons, I consider that theanswer to the question posed in [17] is no. I consider that Parliament hasprovided, in s 174, that a doctor who has such a conscientious objection may,instead of arranging for the case to be considered, give the informationrequired by s 174(2).[20] And later, the Judge explained the balance he had struck:[23] I consider that the conclusions which I have reached, based essentiallyon ordinary principles of statutory interpretation, are supported by a rights-focused analysis. At the stage of the initial doctor/patient consultationenvisaged by s 32, before there has been an involvement of a medical characterin respect of that consultation, I consider that a focus on the rights of the doctorunder ss 13 and 15 of BORA is appropriate. That focus supports the view thata right of conscientious objection at that stage is recognised and provided forin s 174. At the later stage, if the doctor has undertaken the task of consideringthe case, there is a medical involvement in which the focus is properly on therights of the patient, as protected by the Health and Disability Commissioner(Code of Health and Disability Services Consumers' Rights) Regulations1996. That focus supports the view that, having embarked upon that medicalinvolvement, the doctor may not thereafter subordinate the patient's rights tothe doctor's rights. On that view, the doctor's rights are appropriatelyrecognised and protected, but the patient's rights impose a limitation on themanner and timing of the exercise of the doctor's rights.[21] The upshot was that—notwithstanding the limited scope of objections unders 46—s 174 permitted conscientious objectors who were faced with a woman seekingan abortion to decline to engage in the ss 32 and 33 process at all. All they wererequired to do was inform the woman that she could obtain the "service" from another(unspecified) health practitioner or from a family planning clinic. No referral wasrequired and nor was the conscientious objector required to assist the woman byproviding any other information about how she could access the service she sought.International context: human rights instruments and overseas cases[22] As the passage just quoted from Hallagan makes clear, the Judge in that casewas focused on striking a balance between the potentially conflicting rights of aconscientious objecting health practitioner and those of his or her patient. But it seemsthat the latter rights were considered only through a narrow "patient" lens, not throughthe wider lens of women's rights generally.10 And as noted earlier in this judgment, itis clear that a woman's ability to access abortion services engages a number offundamental rights and freedoms, including her right to health, to liberty and securityof the person and to be free from discrimination.International Covenant on Economic, Social and Cultural Rights[23] First, the obligation to provide for "the enjoyment of the highest attainablestandard of physical and mental health" imposed on states parties by art 12 of theInternational Covenant on Economic, Social and Cultural Rights (ICESC)11 includesan obligation to provide safe abortion and post-abortion services.12 Those servicesmust be accessible, acceptable and of good quality.13 This, in turn, is accepted tooblige states to ensure conscientious objections to abortion do not "inhibit anyone'saccess to sexual and reproductive health care, including by requiring referrals to anaccessible provider capable of and willing to provide the services being sought".14Convention on the Elimination of All Forms of Discrimination against Women[24] Art 1 of the Convention on the Elimination of All Forms of Discriminationagainst Women (CEDAW) defines discrimination against women as including gender-based violence or violence that affects women disproportionately. And in its GeneralRecommendation No 35, the United Nations Committee on the Elimination ofDiscrimination Against Women said:18. Violations of women's sexual and reproductive health and rights, suchas criminalization of abortion, denial or delay of safe abortion and/or post-10 Hallagan appears to have been argued primarily as a case about statutory interpretation, ratherthan as a claim under the NZBORA.11 New Zealand ratified the International Covenant on Economic, Social and Cultural Rights in 1978.12 United Nations Committee on Economic, Social and Cultural Rights General Comment No 22 onthe right to sexual and reproductive health E/C.12/GC/22 (2016) at [43].13 At [62].14 At [43].abortion care, forced continuation of pregnancy, are forms of gender-basedviolence that, depending on the circumstances, may amount to torture or cruel,inhuman or degrading treatment.[25] Article 12 of the CEDAW requires states parties to eliminate discriminationagainst women specifically in the field of health care, including family planning. InGeneral Recommendation No 24 the Committee recommended that States amendlegislation that criminalises abortion and, further, that:1511. It is discriminatory for a State party to refuse to legally provide for theperformance of certain reproductive health services for women. For instance,if health service providers refuse to perform such services based onconscientious objection, measures should be introduced to ensure that womenare referred to alternative health providers.[26] And art 16 of the CEDAW provides that states parties must take appropriatemeasures to ensure that women have equal rights to decide freely and responsibly onthe number and spacing of their children:1621. The responsibilities that women have to bear and raise children affecttheir right of access to education, employment and other activities related totheir personal development. They also impose inequitable burdens of work onwomen. The number and spacing of their children have a similar impact onwomen's lives and also affect their physical and mental health, as well as thatof their children. For these reasons, women are entitled to decide on thenumber and spacing of their children.The Canadian Charter[27] I began this judgment by quoting from Wilson J's judgment in the seminalCanadian decision in this area: R v Morgentaler. There, the Canadian Supreme Court(by a majority that included Wilson J) held that the abortion provision in the CriminalCode was unconstitutional because it violated women's rights in the Canadian Charterof Rights and Freedoms (the Charter).1715 United Nations Committee on Convention on the Elimination of All Forms of Discriminationagainst Women General recommendation No. 24: Article 12 of the Convention (Women andHealth) A/54/38/Rev.1, chap. I (1999).16 United Nations Convention on the Elimination of All Forms of Discrimination against Women(opened for signature 18 December 1979, entered into force 3 September 1981).17 R v Morgentaler, above n 1. At that time, s 251(1) of the Code criminalised the procurement ofabortions, but s 251(4) provided a defence where the abortion was approved by a TherapeuticAbortion Committee.[28] But it was only Wilson J who squarely considered whether, by limiting awoman's access to abortion, s 251 of the Criminal Code violated her right to life,liberty and security of the person contrary to s 7 of the Charter.18 In finding that it did,Wilson J held that:(a) it was enough for s 251 to simply expose a woman to a threat to herphysical and psychological security—freedom from the threat isinherent to that right;19(b) s 7 also encompassed a liberty right that was inextricably tied to theconcept of human dignity: an individual's ability to pursue her ownconception of a full and rewarding life, which, in turn, required thatindividuals be accorded autonomy in making decisions of fundamentalpersonal importance—those decisions that intimately affect theirprivate lives;20 and(c) the liberty and the security rights go to whether a pregnant woman hada protected right to decide for herself whether or not to have anabortion.[29] Wilson J referred to cases from the United States including, in particular, Roev Wade and Doe v Bolton, in which the US Supreme Court first concluded that theright to privacy in the Fourteenth Amendment's guarantee of liberty was broad enoughto include a woman's decision to terminate her pregnancy.21 The Judge noted,however, that the Court had not found the right to be absolute: "At some point thelegitimate state interest in the protection of health, proper medical standards, and pre-natal life would justify qualification".2218 At 162. Section 7 provides: Everyone has the right to life, liberty and security of the person andthe right not to be deprived thereof except in accordance with the principles of fundamental justice.19 At 163.20 At 166 and 171. Her Honour also noted at 167 that: "Liberty in a free and democratic society doesnot require the state to approve the personal decisions made by its citizens; it does, however,require the state to respect them."21 At 169, citing Roe v Wade 410 US 113 (1973); Doe v Bolton 410 US 179 (1973).22 At 169.[30] Wilson J concluded that the respect for individual decision-making in mattersof fundamental importance (reflected in the jurisprudence) also informed the CanadianCharter. And she had no doubt that a woman's decision to terminate her pregnancywas a protected decision of fundamental personal importance:23 This decision is one that will have profound psychological, economic andsocial consequences for the pregnant woman. The circumstances giving riseto it can be complex and varied and there may be, and usually are, powerfulconsiderations militating in opposite directions. It is a decision that deeplyreflects the way the woman thinks about herself and her relationship to othersand to society at large. It is not just a medical decision; it is a profound socialand ethical one as well. Her response to it will be the response of the wholeperson.[31] The Judge found that s 251 breached the liberty right because it took thedecision away from the woman and gave it to a committee—a committee that wouldthen base its decision on criteria entirely unrelated to the woman's own priorities andaspirations.24 She noted that the violation was no different than if a committee was todecide whether a woman should be allowed to continue her pregnancy.[32] Wilson J found that a woman's right to have control over her own bodyengaged not only the liberty right but the security right. She observed that s 251subjected pregnant woman to emotional stress as well as to unnecessary physical risk.Moreover, the provision "assert[ed] that the woman's capacity to reproduce is not tobe subject to her own control", but rather "subject to the control of the state".25 TheJudge said: it is a direct interference with her physical "person" as well. She is trulybeing treated as a means—a means to an end which she does not desire butover which she has no control. She is the passive recipient of a decision madeby others as to whether her body is to be used to nurture a new life. Can therebe anything that comports less with human dignity and self-respect? How cana woman in this position has any sense of security with respect to her person?[33] Wilson J therefore concluded that s 251 deprived the pregnant woman her rightto security of the person as well as her right to liberty.23 At 171.24 At 172.25 At 173.[34] Next, because the decision whether or not to terminate a pregnancy was amatter of conscience (of the individual, not the state), a woman's right to freedom ofconscience and religion (s 2(a) of the Charter) was also engaged.26 After observingthat freedom of conscience and religion included conscientiously held beliefsgrounded in both religious and secular morality, Wilson J concluded that:27Accordingly, for the state to take sides on the issue of abortion, as it does inthe impugned legislation by making it a criminal offence for the pregnantwoman to exercise one of her options, is not only to endorse but also toenforce, on pain of a further loss of liberty through actual imprisonment, oneconscientiously-held view at the expense of another. It is to deny freedom ofconscience to some, to treat them as means to an end, to deprive them oftheir "essential humanity".Legislation which violates freedom of conscience in this manner cannot, inmy view, be in accordance with the principle of fundamental justice within themeaning of s 7.[35] In terms of whether the s 7 deprivation could constitute a reasonable limitunder s 1 of the Charter and be justified in a free and democratic society Wilson Jnoted that the purpose of s 251 must primarily be the protection of the foetus. Whileshe accepted that as a perfectly valid legislative objective, she said:28 The question is: at what point in the pregnancy does the protection of thefoetus become such a pressing and substantial concern as to outweigh thefundamental right of the woman to decide whether or not to carry the foetusto term? At what point does the state's interest in the protection of the foetusbecome "compelling" and justify state intervention in what is otherwise amatter of purely personal and private concern?[36] Wilson J noted that in Roe v Wade, the US Supreme Court had found that thestate's interest became compelling when the foetus became viable—when it couldexist outside the mother's body. She observed that while a foetus is "potential life"from the moment of conception, "greater weight should be given to the state's interestin the later stages of pregnancy than in the earlier".29 So in the early stages ofpregnancy the woman's autonomy would be absolute, but in the later stages herreasons for having an abortion would be the proper subject of inquiry, when the state's26 Section 2(a) simply provides: "Everyone has the following fundamental freedoms: (a) freedom ofconscience and religion"27 At 179–180 (emphases added).28 At 181.29 At 182.compelling interest in protecting the foetus would justify the prescription ofconditions.30[37] The effect of s 251, however, was to take the decision away from the womanat all stages of her pregnancy. Wilson J concluded:31[Section 251] is a complete denial of the woman's constitutionally protectedright under s 7, not merely a limitation on it. It cannot, in my opinion, meetthe proportionality test in Oakes. It is not sufficiently tailored to the legislativeobjective and does not impair the woman's right "as little as possible". Itcannot be saved under s 1. Accordingly, even if the section were to beamended to remedy the purely procedural defects it would, in my opinion,still not be constitutionally valid.The move for reformInternational criticism[38] In 2012, the United Nations Committee published its seventh periodic reviewof New Zealand's compliance with CEDAW. In its conclusions the Committeestated:32The Committee notes with concern, however, the convoluted abortion lawswhich require women to get certificates from two certified consultants beforean abortion can be performed, thus making women dependent on thebenevolent interpretation of a rule which nullifies their autonomy. TheCommittee is also concerned that abortion remains criminalized in[New Zealand], which leads women to seek illegal abortions, which are oftenunsafe.The Committee urges [New Zealand]:(a) To review the abortion law and practice with a view to simplifying itand to ensure women's autonomy to choose;(b) To prevent women from having to resort to unsafe abortions andremove punitive provisions imposed on women who undergo an abortion.30 At 183.31 At 183–184.32 United Nations Committee on the Elimination of Discrimination Against Women ConcludingObservations of the Committee on the Elimination of Discrimination against Women: NewZealand CEDAW/C/NZL/CO/7 (2012) at [33]–[34]. These concerns and recommendations wererepeated by the Committee in 2018, in the context of its eighth review of New Zealand: UnitedNations Committee on the Elimination of Discrimination Against Women ConcludingObservations on the Eighth Periodic Report of New Zealand CEDAW/C/NZL/CO/8 (2018) at[39]–[40].The Law Commission is instructed[39] Following a request in late 2017 from the Prime Minister, the Minister ofHealth referred the question of abortion law reform to the Law Commission. Thatreference culminated in the Law Commission's lengthy (over 200-page) ministerialbriefing paper, presented in October 2018.33 The paper records that the Commissionreceived some 3,419 submissions, with 61 of those coming from organisations such asgovernment bodies, professional organisations, academic groups, religiousorganisations, and interest groups. The Commission's instructions from governmentwere effectively that the legal framework governing abortions should reflect the policythat abortion was "a health issue that is a reproductive choice for women, rather thana criminal issue". This required the Commission not only to review the criminalaspects of abortion law—including the s 187A grounds on which abortions could beperformed and the related CSAA processes—but also to consider any otherimpediments to women accessing abortion services. In turn, this necessitated analysisof both the geographical availability of such services and the issue of delay.[40] To understand what a health approach to abortion might look like, theCommission examined how the law deals with other health services. It noted that thegeneral laws and professional standards relating to such services aim to:(a) prioritise the health and wellbeing of the individual patient and theirautonomy to make an informed decision;(b) ensure effective, timely and equitable access to health services; and(c) enable continuous improvement of the quality of services.[41] In terms of delay, the Commission's starting point was that abortions areconsiderably safer, quicker, cheaper and less distressing (for both the woman andhealth practitioners concerned) when performed at an earlier stage of gestation. In thatregard, the Commission noted:3433 Law Commission Alternative approaches to abortion law (NZLC MB4, 2018).34 Emphases added.2.11 In New Zealand most abortions occur during the first trimester (thefirst 12 weeks) of pregnancy. This accounted for 89.4 per cent ofabortions in 2017. A further 8.3 per cent of abortions occurred inweeks 13–16. Only 1.7 per cent occurred between 17–20 weeks and0.5 per cent after 20 weeks.2.12 However, first trimester abortions are performed significantly laterthan in countries New Zealand often compares itself to. For example,in England and Wales in 2017, 77 per cent of abortions were carriedout before 10 weeks. By contrast, only 59 per cent of abortions in NewZealand were performed before 10 weeks. While the reasons for thisare not conclusively known, many health practitioners theCommission spoke to considered the authorisation process requiredunder the current law prevents abortions from being performed asearly as would otherwise be possible.2.13 Many submitters were concerned about the extent of the delayexperienced by women seeking an abortion. Some women who hadbeen through the process said they had to wait a number of weeks dueto the legal authorisation process and/or a lack of doctors in theirarea who would perform abortions. For some, this delay meant theylost the opportunity to have an early medical abortion (EMA). Othersexperienced significant pregnancy symptoms or found the delaytraumatic. Some submitters also considered that performing abortionsas early as possible is more ethical, as the fetus is less developed.[42] The causes of delay were discussed in the context of a discussion of the processof obtaining an abortion itself:352.26 The process begins with a woman approaching a health practitioner,either after a positive home pregnancy test or when she thinks she maybe pregnant. Usually at the first appointment the pregnancy will beconfirmed. The health practitioner may also discuss the optionsavailable to the woman, such as continuing the pregnancy, adoptionor referral to an abortion service provider.2.27 If the woman expresses a wish to have, or to consider having, anabortion, several things then occur. First, the woman may need tomake another appointment to see a general practitioner (GP) or FamilyPlanning doctor. This may be the case where:• the health practitioner first consulted is not a doctor. A womanmay, for example, see a midwife (particularly if she alreadyhas children and has an existing relationship with a midwife)or a Family Planning nurse. If this happens, the woman willusually need to make another appointment to see a GP orFamily Planning doctor, as only doctors can refer a woman'scase to be considered by certifying consultants;• the doctor whom the woman first consults declines to referher to an abortion service provider because the doctor has a35 Footnotes omitted.conscientious objection.50 Again, this will usually mean thatthe woman needs to see a different GP or Family Planningdoctor to get a referral.2.28 Health practitioners reported that in some areas it can take two to threeweeks for a woman to get an appointment with a doctor who will referher to an abortion service provider, particularly if she is not alreadyenrolled with a GP or her GP has a conscientious objection.2.29 Second, the referring doctor will usually carry out a routine blood test,genital swab (to test for sexually transmitted infections) and smear test(if required), and arrange an ultrasound scan to confirm gestationalage. In some cases, some or all of these tests may be done by adifferent health practitioner (such as a midwife, nurse or ultrasoundtechnician), either through a community health service or at theabortion clinic.2.30 Third, the referring doctor may arrange for the woman to see acounsellor before she is referred to an abortion service provider. Whilecounselling is available through abortion service providers, theCommission understands it is also offered at an earlier stage in somecases.2.31 Fourth, the referring doctor may encourage the woman to take sometime to think about her options and come back for a secondappointment before she is referred to an abortion service provider.This appears to be reasonably common, although it is discouraged bythe ASC Standards of Care.[43] So, in the result:2.32 Depending on the circumstances, a woman may therefore haveanywhere from one to four or more appointments before she isreferred to an abortion service provider. This process can take severalweeks.[44] The Law Commission described the abortion services then available indifferent DHB districts. It noted, for example, that there were no services available inthe West Coast or Whanganui DHB areas, and services were only available in the HuttValley and South Canterbury in cases of foetal abnormality. The whole Aucklandregion, including Counties-Manukau and Waitematā, was served by one publiclyfunded provider of first trimester abortions (in Epsom). Many other DHB areas onlyprovided abortions up to nine weeks (early medical) or 14 weeks (surgical), meaningthat many women seeking an abortion after the first trimester had to travel a significantdistance.[45] The questions of access and delay also informed the Commission's approachto conscientious objection. While the Commission did not suggest that the existingright of health practitioners to refuse to provide abortion services on the grounds ofconscience should be removed, it suggested that: the Government could consider changing the law to ensure thatconscientious objection does not unduly delay women's access to abortionservices. Health practitioners with an objection could be required to refer awoman seeking an abortion to someone who can provide the service as soonas reasonably practicable.[46] The Commission explained that it had come up with three alternative reformmodels and assessed the extent to which each was likely to align with the proposedpolicy of treating abortion as a health issue. No particular model was recommendedbecause it was for the Government—and ultimately Parliament—to decide what, ifany, changes should be made to the law.[47] All three of the models put forward by the Commission were aimed at givinggreater priority to the health and wellbeing of the woman seeking an abortion than didthe existing law. By way of summary, these were:(a) Model A, which contemplated no specific abortion legislation and soinvolved repealing the abortion provisions in the Crimes Act 1961 andthe CSAA.36 There would be no statutory test required to be satisfiedbefore an abortion could be performed and the decision whether to havean abortion would be made by a woman in consultation with her healthpractitioner.(b) Model B, under which the health practitioner who intends to performan abortion would need reasonably to believe the abortion isappropriate in the circumstances, having regard to the woman'sphysical and mental health and wellbeing. This statutory test would becontained in health legislation rather than the Crimes Act.36 As the Commission noted, treating abortion as a health issue calls into question the need for anyspecific abortion legislation, because the existing health regulatory framework already applies toall health services. Most health services are not subject to their own legislative regime and areinstead governed by this general health regulatory framework.(c) Model C, which was a combination of Models A and B. Thus:(i) Model A would apply to pregnancies of not more than 22 weeksgestation (there would be no statutory test that must be satisfiedbefore an abortion could be performed); and(ii) Model B would apply to pregnancies of more than 22 weeksgestation (the health practitioner intending to perform theabortion would need to reasonably believe the abortion isappropriate in the circumstances, having regard to the woman'sphysical and mental health and wellbeing).Evidence for the Attorney-General[48] The Law Commission's assessment of the variable access and timelinessproblems across the country is confirmed by the evidence filed on behalf of theAttorney-General in this case. The evidence records that, before the 2020 reforms,one study concluded there was an average wait of 25 days between a woman's firstappointment and having an abortion. As well, abortions in New Zealand wereperformed significantly later than in comparable jurisdictions.37 And in some areas, itcould take up to two to three weeks for a woman to get an appointment with a doctorwho was able then to refer them to an abortion services provider—particularly if thewoman's GP has a conscientious objection.[49] The evidence also confirms that although DHBs are contractually obliged (andfunded) to provide abortion services, not all such services are available consistentlyacross all DHBs. For example, early abortions are generally more readily available,and can be obtained from a wider range of practitioners in a wider range of centres.37 As mentioned earlier in the Commission's report, only 59 per cent of abortions in New Zealandwere performed before 10 weeks' gestation, compared to 77 per cent in England and Wales.By contrast, second trimester abortions are provided by only a small number ofpractitioners in selected parts of New Zealand.38 Thus:(a) Women from Wairarapa, Mid-Central, Tairāwhiti Gisborne, HawkesBay, Whanganui, and Nelson-Marlborough DHBs who seek abortionsafter 14 weeks' gestation are required to come to the Te Mahoe clinicin Wellington.(b) Whangārei Hospital—which is the only provider of abortion servicesin Northland—provides those services only up to 14 weeks' gestation.The 2020 Amendment[50] The Law Commission's review led to the introduction and passage of theAbortion Legislation Act 2020 (the ALA). Ultimately, a slightly more conservativeform of the Commission's "Model C" was adopted. Under the amended scheme, apregnant woman can seek termination of her pregnancy for up to 20 weeks ofpregnancy without being required to satisfy any statutory test. After 20 weeks,abortion is permitted only if a health practitioner has deemed it "clinically appropriatein the circumstances"39 and has consulted with at least one other health practitioner.[51] It may be noted in passing that this approach is broadly consistent with thattaken by the US Supreme Court in Roe and endorsed by Wilson J in Morgentaler.[52] Sections 182 to 187A of the CA were, variously, amended or repealed, andss 10 to 46 of the CSAA were repealed and replaced. It is the new ss 14 and 15 thatare relevant for present purposes.[53] Section 14 is the new conscientious objection provision. It states:38 The evidence records that the Abortion Supervisory Committee has reported there are only61 health practitioners in New Zealand qualified to provide abortion services, and only eightdoctors able to provide second trimester abortions. This led the Committee to observe that"[d]espite the woman and her health practitioner deciding an abortion is warranted, there may beaccess issues around obtaining the procedure if operators are unwilling to perform an abortion atthat gestation".39 The health practitioner must have regard to all relevant legal, professional and ethical standards,the woman's health and wellbeing, and the gestational age of the foetus. These mandatoryconsiderations and the need to consult another practitioner do not apply in medical emergencies.14 Conscientious objection(1) This section applies to a person (A) who is requested by anotherperson (B) to provide, or assist with providing, any of the followingservices:(c) abortion services:(d) information or advisory services about whether to continue orterminate a pregnancy.(2) If A has a conscientious objection to providing, or to assisting withproviding, to B the service requested, A must tell B at the earliestopportunity—(a) of their conscientious objection; and(b) how to access the contact details of another person who is theclosest provider of the service requested.(3) In subsection (2)(b), the closest provider is to be determined takinginto account—(a) the physical distance between the providers; and(b) the date and time that B makes the request under subsection(1); and(c) the operating hours of the provider of the service requested.(4) This section does not override a health practitioner's professional andlegal duty to provide prompt and appropriate medical assistance toany person in a medical emergency.[54] And the new s 15 requires relevant employers to accommodate conscientiousobjection of employees or applicants for employment unless it would causeunreasonable disruption to do so. More specifically, it provides:15 Employer providing certain services must accommodateconscientious objection of applicant or employee unless it wouldcause unreasonable disruption(1) An employer that provides any of the services specified insection 14(1) may not take any of the following actions on the basisthat an applicant for employment, or an employee, who is qualifiedfor work in connection with the provision of those services, has aconscientious objection:(a) refuse or omit to employ the applicant for work that isavailable; or(b) offer or afford the applicant or the employee less favourableterms of employment, conditions of work, superannuation orother fringe benefits, and opportunities for training,promotion, and transfer than are made available to applicantsor employees of the same or substantially similar capabilitiesemployed in the same or substantially similar work; or(c) terminate the employment of the employee in circumstancesin which the employment of other employees employed in thesame or substantially similar work would not beterminated; or(d) subject the employee to any detriment in circumstances inwhich other employees employed in the same or substantiallysimilar work would not be subjected to such detriment; or(e) retire the employee, or to require or cause the employee toretire or resign.(2) However, if accommodating an applicant's or employee'sconscientious objection would unreasonably disrupt the employer'sprovision of health services, the employer may take any of the actionsdescribed in subsection (1).(3) Accommodating an applicant's or employee's conscientious objectionmay include arranging for the duties in respect of which the applicantor employee has an objection to be carried out by an existingemployee.[55] Also relevant is the new s 18, which provides:18 Duty of Director-General to compile, maintain, and makeavailable list of abortion service providers(1) The Director-General must compile and maintain a list of the namesand contact details of abortion service providers in New Zealand.(2) The Director-General may not include in the list the name and contactdetails of any abortion service provider who advises the Director-General that they do not want their name and contact details includedin the list.(3) The Director-General must ensure that the list, or the information onthe list, is accessible to any person on request.[56] Section 174 of the HPCAA was also amended by the ALA; it now mirrors thenew s 14 of the CSAA and relevantly states:174 Duty of health practitioners in respect of reproductive healthservices(1) This section applies whenever—(a) a person requests a health practitioner to provide a service(including, without limitation, advice) with respect to abortion ; and(b) the health practitioner has an objection on the ground ofconscience to providing the service (a conscientiousobjection).(2) When this section applies, the health practitioner must tell the personrequesting the service at the earliest opportunity—(a) of their conscientious objection; and(b) how to access the contact details of another person who is theclosest provider of the service requested.(3) In subsection (2)(b), the closest provider is to be determined takinginto account—(a) the physical distance between the providers; and(b) the date and time that the person has requested the service;and(c) the operating hours of the provider of the service requested.The plaintiff's claim and my proposed approach to it[57] The plaintiffs say that:(a) The new s 14 of the CSAA requires them, despite their conscientiousobjections, to be complicit in the abortion process. They say that thislimits their rights under the New Zealand Bill of Rights Act 1990(NZBORA) in a way that cannot demonstrably and reasonably bejustified in a free and democratic society. They contend that theamendment infringes:(i) their freedom of thought, conscience and religion (s 13);(ii) their freedom of expression (s 14);(iii) their freedom to manifest their religion and beliefs (s 15); and(iv) their freedom of association (s 17).(b) The new s 15 of the CSAA infringes:(i) their freedom of expression (s 14);(ii) their right to be free from discrimination (s 19); and(iii) the rights of minorities (s 20).[58] The Crown acknowledges that freedom of expression (s 14) and the freedomto manifest religion or belief (s 15) are engaged but says that any inconsistency with,or limit on, those freedoms resulting from the CSAA provisions is demonstrablyjustified in a free and democratic society. The Crown denies that ss 13, 17, 19 or 20are engaged at all.[59] The Court is therefore required to determine:(a) whether each pleaded right or freedom is engaged by either or both ofthe CSAA provisions;(b) if so, whether either the relevant CSAA provision has the effect oflimiting or interfering with the right or freedom so engaged; and(c) if so, whether a limitation on the relevant right or freedom is capable ofjustification, in the sense of ever being permitted;40 and(d) if so, whether the relevant right or freedom is, in fact, demonstrablyjustified in a free and democratic society.40 For reasons that will become evident, this question only arises in relation to the alleged breach ofs 13 (freedom of religion and thought).[60] Other than the last, I propose to address and answer these questions on a rightby right basis. Because the s 5 question (whether any limitation on the pleadedNZBORA rights can be justified in a free and democratic society) potentially arises inrelation to all of the claimed breaches, I leave that issue to be considered globally, atthe end of this judgment.Freedom of thought, conscience and religion: s 13[61] In broad terms, the plaintiffs say that the requirement imposed by s 14 of theCSAA on conscientious objectors to tell patients how to access abortion servicesinterferes with their freedom of conscience, religion and belief, contrary to s 13 of theNZBORA.41The relationship between s 13 and s 15[62] In order to determine whether s 13 is engaged here, there is a prior andimportant question about its relationship with s 15, which protects the manifestationof religion or belief. The two sections respectively state:13. Freedom of thought, conscience, and religionEveryone has the right to freedom of thought, conscience, religion, and belief,including the right to adopt and to hold opinions without interference.15. Manifestation of religion and beliefEvery person has the right to manifest that person's religion or belief inworship, observance, practice, or teaching, either individually or incommunity with others, and either in public or in private.[63] The White Paper that preceded the enactment of the NZBORA observed thatthe s 13 right is "essentially concerned with the internal, subjective element". Bycontrast, the rights confirmed in s 14 (freedom of expression) and s 15 are "concernedwith the external manifestation of the freedoms included in [s 13]".[64] The cognate rights under the International Covenant on Civil and PoliticalRights (ICCPR)—on which the NZBORA is based—and under the EuropeanCovenant on Human Rights (ECHR) are not quite so clearly differentiated. Thus:41 The nature of the required act is discussed in more detail later.(a) Article 18 of the ICCPR states:1. Everyone shall have the right to freedom of thought,conscience and religion. This right shall include freedom tohave or to adopt a religion or belief of his choice, andfreedom, either individually or in community with others andin public or private, to manifest his religion or belief inworship, observance, practice and teaching.2. No one shall be subject to coercion which would impair hisfreedom to have or to adopt a religion or belief of his choice.3. Freedom to manifest one's religion or beliefs may be subjectonly to such limitations as are prescribed by law and arenecessary to protect public safety, order, health, or morals orthe fundamental rights and freedoms of others.(b) Similarly, art 9 of the ECHR provides:1. Everyone has the right to freedom of thought, conscience andreligion; this right includes freedom to change his religion orbelief and freedom, either alone or in community with othersand in public or private, to manifest his religion or belief, inworship, teaching, practice and observance.2. Freedom to manifest one's religion or beliefs shall be subjectonly to such limitations as are prescribed by law and arenecessary in a democratic society in the interests of publicsafety, for the protection of public order, health or morals, orfor the protection of the rights and freedoms of others.[65] It may be observed that, in both these instruments, the right to "manifest"religion or belief is expressed as a subset of the wider freedom of religion andconscience. But the distinction between them is important because, as both art 18(3)and art 9(2) make clear, it is only the external, manifestation, aspect of the right thatcan be subject to "such limitations as are prescribed by law and are necessary in ademocratic society ". A restriction on the internal freedom of thought cannot bejustified; the right is absolute.[66] This point was made clearly by the Human Rights Committee of the UnitedNations in its General Comment No 22 (1993) on art 18 of the ICCPR. The Committeesaid:4242 Emphasis added.3. Article 18 distinguishes the freedom of thought, conscience, religionor belief from the freedom to manifest religion or belief. It does notpermit any limitations whatsoever on the freedom of thought andconscience or on the freedom to have or adopt a religion or belief ofone's choice. These freedoms are protected unconditionally, as is theright of everyone to hold opinions without interference in article 19.1.In accordance with articles 18.2 and 17, no one can be compelled toreveal his thoughts or adherence to a religion or belief.[67] The Committee then went on to elaborate both on the extent of the externalmanifestation right and the extent of the internal thought right:434. The freedom to manifest religion or belief may be exercised "eitherindividually or in community with others and in public or private".The freedom to manifest religion or belief in worship, observance,practice and teaching encompasses a broad range of acts. Theconcept of worship extends to ritual and ceremonial acts giving directexpression to belief, as well as various practices integral to such acts,including the building of places of worship, the use of ritual formulaeand objects, the display of symbols, and the observance of holidaysand days of rest. The observance and practice of religion or belief mayinclude not only ceremonial acts but also such customs as theobservance of dietary regulations, the wearing of distinctive clothingor head coverings, participation in rituals associated with certainstages of life, and the use of a particular language customarily spokenby a group. In addition, the practice and teaching of religion or beliefincludes acts integral to the conduct by religious groups of their basicaffairs, such as the freedom to choose their religious leaders, priestsand teachers, the freedom to establish seminaries or religious schoolsand the freedom to prepare and distribute religious texts orpublications.5. The Committee observes that the freedom to "have or to adopt" areligion or belief necessarily entails the freedom to choose a religionor belief, including the right to replace one's current religion or beliefwith another or to adopt atheistic views, as well as the right to retainone's religion or belief. Article 18.2 bars coercion that would impairthe right to have or adopt a religion or belief, including the use ofthreat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, torecant their religion or belief or to convert. Policies or practices havingthe same intention or effect, such as, for example, those restrictingaccess to education, medical care, employment or the rightsguaranteed by article 25 and other provisions of the Covenant, aresimilarly inconsistent with article 18.2. The same protection isenjoyed by holders of all beliefs of a non-religious nature.43 Emphases added.[68] And so, too, with art 9. For example, in R (Williamson) v Secretary of Statefor Education Lord Nicholls observed:44 under art 9 there is a difference between freedom to hold a belief andfreedom to express or 'manifest' a belief. The former right, freedom of belief,is absolute. The latter right, freedom to manifest belief, is qualified.[69] Importantly, Lord Nicholls went on to explain, in policy terms, the reason forthe distinction:45 This is to be expected, because the way a belief is expressed in practicemay impact on others. So in a pluralist society a balance has to be heldbetween freedom to practise one's own beliefs and the interests of othersaffected by those practices.[70] Consistent with such statements, the Crown in this case agrees that, in terms ofthe NZBORA, the internal s 13 right is also absolute; restrictions on it are not capableof justification under s 5.46 But, it says, s 13 is not engaged at all in this case. Bycontrast, Mr Bassett contends that s 14 of the CSAA limits not just the s 15 freedomto manifest, but also the internal freedom protected by s 13.[71] So whether s 13 is engaged is the next question I must address.Is s 13 engaged here?[72] As just noted, the distinction between the internal and the external rights can,in theory, be found by examining whether the way in which the right or freedom isexercised affects others. In this case, the distinction is important because—as I havealready explained—the Crown accepts that any limitation imposed on the internalright by the amendments to the CSAA would not be capable of justification under s 5.[73] And in practice, the line between "internal" and "external" rights has notalways proved so bright. In particular, because of the composite way in which art 18of the ICCPR and art 9 of the ECHR are expressed, the international authorities are44 R (Williamson) v Secretary of State for Education [2005] UKHL 15, [2005] 2 AC 246 at [16].45 At [17] (emphasis added). See also (by way of further example only) Eweida v United Kingdom[2013] ECHR 37 at [80].46 As Mr Bassett points out, this position is different from the one taken by Crown Law in its adviceto the Attorney-General on the consistency of the ALA with the NZBORA. In that advice, CrownLaw advised that the s 13 freedom was engaged but opined that any limit on it was justified.not always clear about which aspect of the right—the absolute freedom of conscienceor the qualified freedom to manifest—is found to be engaged in any given case.47[74] One example—particularly relied on by Mr Bassett here—is the PrivyCouncil's decision in Commodore of the Royal Bahamas Defence Force v Laramore.48That case involved a challenge to the Defence Force of the Bahamas requiring that aMuslim army officer was to remain present for, and doff his cap during, Christianprayers at a ceremonial army parade. The Privy Council held that this requirementinfringed art 22(1) of the Bahamas Constitution, which (like art 9 and art 18) combinedthe internal and external freedoms, as follows:Except with his consent, no person shall be hindered in the enjoyment of hisfreedom of conscience, and for the purposes of this Article the said freedomincludes freedom of thought and of religion, freedom to change his religion orbelief and freedom, either alone or in community with others, and both inpublic and in private, to manifest and propagate his religion or belief inworship, teaching, practice and observance.[75] I acknowledge that on one reading, the Board's finding of breach seemsfocused on the internal rather than the external component of the right. That is evidentfrom the Board's statements that: in the present case the actual issue is whether Mr Laramore was hinderedin the enjoyment of his freedom of conscience by being required to take partin a prayers ceremony which included a 'caps off' order. It is sufficient for thepurposes of this appeal that the Board considers that this positive requirementconstituted such a hindrance. Being made to stand on parade, even at ease, during the saying of Christianprayers would in these circumstances also appear to the Board as on its face ahindrance to Mr Laramore's freedom of enjoyment of his conscience. Mr Laramore was hindered in the enjoyment of his freedom ofconscience during the regular colours parades during which prayers were said.47 See, for example, Ivanova v Bulgaria [2007] ECHR 270. Other relevant examples (where theECtHR has been split on the issue) will be discussed shortly, below.48 Commodore of the Royal Bahamas Defence Force v Laramore [2017] UKPC 13, [2017] 3 LRC645.[76] Thus, at first glance, these findings seem to blur the distinction betweenthoughts (internal) and acts (external); Mr Laramore was being required to act in acertain way, not to change his religious beliefs. As Mr Bassett would have it, that isbecause being required to act contrary to belief also hinders that belief. He submittedthat the concept of "hindering" in art 22 finds its analogue in the concept of"interfering" in s 13 of the NZBORA.[77] To the extent that submission was advanced as a general proposition—namelythat any requirement to act contrary to belief engages the internal right—I am unableto accept it. The required act in question in Laramore was qualitatively different fromthe act required by s 14 of the CSAA. Mr Laramore was forced to participate in areligion (specifically, to take part in a religious ceremony) that differed from his own.That is much closer to a "brain washing" scenario of the kind that is commonlyaccepted as being prohibited by s 13. It is not too much of a stretch to say thatMr Laramore was being forced to "practise" Christianity in a way that hindered hisfreedom of thought as a Muslim.[78] That analysis is supported by reference to the underlying policy distinctionbetween the internal and external rights, as articulated by Lord Nicholls in Williamson.If the line is to be determined by reference to the potential impact of the exercise byMr Laramore of his right on others, then the right can only be seen as an internal one.No one else would have been affected by Mr Laramore absenting himself from paradesinvolving Christian prayers. Indeed, a Defence Force argument that permitting him todo so might have an adverse impact on discipline was expressly rejected by the PrivyCouncil.[79] Even if I am wrong in that, however, I would be wary about regardingLaramore as a precedent when determining the ambit of s 13. As already noted, art 22of the Bahamas Constitution is similar in its terms to the composite rights in art 18(1)of the ICPPR and art 9(1) of the ECHR. As Lord Mance himself pointed out,manifestation in art 22 is expressed as a subset of the wider freedom:49 The first part of art 22(1) defines the protection afforded. It covers both ofwhat the European Court of Justice recently called 'the forum internum, that49 At [12].is the fact of having a belief, and the forum externum, that is the manifestationof religious faith in public' The second part specifies various aspects of thefreedom (of conscience), the enjoyment of which is by virtue of the first partnot to be 'hindered'. By use of the word 'includes' it specifies them on a non-exclusive, rather than an exclusive, basis.[80] And even more importantly, all of art 22 (that is, both the internal and externalcomponents) was subject to a justification clause. For these reasons, the Privy Councilsimply did not need to distinguish between the internal and external rights in order todecide the case.[81] It follows that I do not think Laramore can be taken as authority for theproposition that in any case where a person is required to act contrary to conscience,there will be hindrance, or interference, with that person's absolute s 13 freedom.[82] In other overseas cases (particularly those involving conscientious objection tomilitary service), the relevant tribunal has been split about which aspect of the widerright is engaged.[83] For example, in Atasoy v Turkey the Human Rights Committee (HRC) wasrequired to consider a complaint by a Jehovah's Witness who conscientiously objectedto military service.50 Mr Atasoy argued that criminally prosecuting him for his refusal(and Turkey's failure to accommodate his conscience by providing some alternativeform of civil service) breached his right under art 18 of the ICCPR. A majority of theHRC held that his prosecution amounted to an infringement of his freedom ofconscience.[84] Importantly, however, although the minority agreed with the finding that art 18had been breached, they disagreed with the route by which that finding was made.Writing for himself and another three judges, Mr Gerald L Neuman51 disagreed withthe majority that conscientious objection engaged the absolutely protected internalright, rather than the qualified external right:5250 Atasoy v Turkey (2012) No 1853/2008 (HRC).51 Mr Neuman is presently the J Sinclair Armstrong Professor of International, Foreign, andComparative Law, and the Director of the Human Rights Program at Harvard Law School.52 Emphases added.In Yoon and Choi v the Republic of Korea, the Committee explained thatpunishing conscientious objectors for their refusal to perform military serviceamounted to a restriction on their ability to manifest their religion or belief,and that the restriction would be compatible with article 18 of the InternationalCovenant on Civil and Political Rights only if it were shown to be necessaryfor a valid purpose within the meaning of article 18, paragraph 3. I wouldapply the same analysis in the present case, bearing in mind the particularfactual circumstances in Turkey – the State party has not identified anyempirical reasons why its refusal to accommodate conscientious objection tomilitary service would be necessary for one of the legitimate purposes listedin the Covenant.The majority applies a different approach, first adopted by the Committee inJeong et al v the Republic of Korea, in March 2011. It attributes the right ofconscientious objectors to decline military service directly to the right tofreedom of conscience, and does not undertake any examination of itsnecessity. Indeed, the Committee's general comment No 22 (1993) on article18 observes that freedom of conscience, in contrast with freedom to manifestreligion or belief, is protected unconditionally by the Covenant and cannot besubjected to any limitations whatsoever. I continue to believe that themajority's new approach to conscientious objection to military service ismistaken.Refusal to perform military service for reasons of conscience is among the"broad range of acts" encompassed by the freedom to manifest religion orbelief in worship, observance, practice and teaching. Such refusal involvesnot merely the right to hold a belief, but the right to manifest the belief byengaging in actions motivated by it. Article 18 of the Covenant does permitlimitations on this freedom if the high standard of justification in paragraph 3can be met. The majority's views in the present case do not provide anyconvincing reason for treating conscientious objection to military service asif it were an instance of the absolutely protected right to hold a belief. Nordoes the majority clarify how conscientious objection to military service canbe distinguished in this respect from other claims to exemption on religiousgrounds from legal obligations.I recognize that the majority writes narrowly, in a manner that does not invitea broad expansion of arguments for absolute protection of religiouslymotivated action and inaction. I also recognize that the majority's approachhas not led it to an inappropriate result in the present case. Nonetheless, I thinkthat the error in the analysis is important, and that the Committee has not yetprovided an adequate justification for its new approach to this issue. I wouldreturn to the Committee's earlier approach, based on the freedom to manifesta religion or belief in practice.[85] Mr Neuman made the same point again in his dissent in another conscientiousobjection case determined later the same year, Jong-nam v Korea:53[The majority's] reasoning is problematic in several regards. The majority'sreference to general comment No. 22 is incomplete as there, the Committeeaccepted that "the obligation to use lethal force may conflict with the freedom53 Jong-nam v Korea CCPR/C/106/D/1786/2008, 25 October 2012 (emphases added).of conscience and the right to manifest one's religion or belief" (emphasisadded). With the latter reference (deleted by the majority) the Committeeindicated that conscientious objection is based on two elements: strongconviction that performing military service is incompatible with the demandsof conscience and the manifestation of this conviction by actually refusing tojoin the armed forces. While it is true that the freedom of thought, conscienceand religion absolutely prohibits forcing anyone to divulge his or her innerconvictions, the right to manifest such conviction in words or deeds may belimited under article 18, paragraph 3, of the Covenant. By disregarding thefundamental distinction made by article 18 between these two rights, themajority seems to assume that certain conscientious decisions, including theone not to perform military service, are privileged insofar as theirmanifestation deserves the absolute protection of the freedom of thought,conscience and religion. This approach implies that other convictions maynot be worthy of such protection. Would the majority provide absoluteprotection to persons conscientiously refusing to pay taxes or to provide theirchildren with any kind of education? If no, what are the criteria to distinguishbetween manifestations of conviction worthy of absolute protection and thoseexpressions of one's beliefs that may be limited?The majority's approach dilutes and, in the long run, risks jeopardizing thevery core meaning of the freedom of conscience, namely that the foruminternum must be protected absolutely, even in the case of thoughts,conscientious convictions and beliefs considered offensive or illegitimate byauthorities or public opinion. Freedom at its most basic level would beundermined if we would allow the State to assess what we think, feel andbelief, even where we do not manifest these inner convictions.[86] In my respectful view, the distinction sought to be maintained by Mr Neumanhere is fundamental. If (in NZBORA terms) the s 13 freedom is absolutely protectedand the s 15 freedom is not, there must be a readily discernible demarcation betweenthem. And in my view the distinction will usually be relatively straightforward: s 13absolutely protects internal thought processes and s 15 protects, in a qualified way,deliberate action or inaction that is actuated by religious belief or by conscience. Asnoted earlier, it is the potential for deliberate action or inaction to affect others thatrenders the possibility of qualification necessary. By contrast, thought alone does nothave that external capacity.[87] I am therefore unable to agree with Mr Bassett that s 13 is engaged in this case.It is clear to me that any conscientious objection to complying with s 14 of the CSAApotentially engages only the manifestation right in s 15. The plaintiffs conscientiouslyobject to acting as s 14 requires. Any refusal to so act not only has the potential to,but does in fact, affect the (fundamental) rights of others. Conversely, it is not thepurpose of s 14 to interfere with (improperly influence, affect or alter) the religiousbeliefs or consciences of such people. Nor does the evidence filed by the plaintiffsgive rise to even a suggestion that s 14 has had that effect. Indeed, the evidence makesit clear that the plaintiffs remain steadfast in their beliefs.[88] Section 13 is therefore not engaged here.Freedom to manifest: s 15[89] My conclusion that s 13 of the NZBORA has no application does not mean itautomatically follows that s 15 must, instead, be engaged by s 14 of the CSAA. Inanalysing whether it is, I propose to address the following questions:(a) What does s 14 of the CSAA require the plaintiffs to do?(b) Are the claimants' beliefs such that their manifestation should beprotected by s 15?(c) If so, does refusing to provide the information required by s 14constitute manifesting the claimants' beliefs in "practice"?;(d) If so, does s 14 interfere with the plaintiffs' freedom to manifest theirbeliefs?What does s 14 of the CSAA require the plaintiffs to do?[90] As Mr Perkins for the Crown said, when s 14 is read in the context of the Actas a whole—and read together with the obligation to maintain a list of abortion serviceproviders under s 18—it requires conscientious objectors (as soon as possible) to:(a) tell the patient of their conscientious objection;(b) using the list maintained under s 18, identify the closest provider ofabortion services to that person's practice; and(c) tell the patient how to access the contact details of that provider by (forexample) advising of the existence of the list and where it can be found.[91] The example given by Mr Perkins was that a health practitioner in Aucklandwith a conscientious objection could discharge the s 14 obligation by saying "theEpsom Day Unit is the closest provider of abortion services for women in their firsttrimester. You can access the Unit's contact details by going to the Ministry of Healthwebsite".[92] By contrast, there is no obligation on conscientious objectors to make a writtenreferral to an abortion service provider, or to contact the provider themselves. Nor isthere an obligation for the health practitioner to give the woman the contact details ofan abortion service provider directly.Are the plaintiff' beliefs such that their manifestation is protected by s 15?[93] In Williamson Lord Nicholls observed: 54 when questions of 'manifestation' arise a belief must satisfy somemodest, objective minimum requirements. These threshold requirements areimplicit in art 9 of the convention and comparable guarantees in other humanrights instruments. The belief must be consistent with basic standards ofhuman dignity or integrity. Manifestation of a religious belief, for instance,which involved subjecting others to torture or inhuman punishment would notqualify for protection. The belief must relate to matters more than merelytrivial. It must possess an adequate degree of seriousness and importance. Ashas been said, it must be a belief on a fundamental problem. [94] The existence and genuineness of the plaintiffs' beliefs is not in issue in theseproceedings. In general terms, the relevant belief here is that abortion is morallywrong, and involves the taking of human life.[95] All of those seven witnesses who filed affidavits on behalf of the plaintiffs inthese proceedings (including their expert witness) deposed that this belief is groundedin their Christian faith, with three of them stating specifically that they are practisingRoman Catholics. The deponents are silent on whether there are any circumstances inwhich they would accept that abortion should be available (such as to save thepregnant woman's life, where there is severe foetal abnormality, or where thepregnancy is the result of incest or rape). Rather, they speak in absolute terms—life54 Williamson, above n 44 (emphasis added).begins at conception, is sacred, and cannot be ended except by God. So I proceed onthe basis that their belief that abortion is wrong is absolute.[96] I accept that the plaintiffs' beliefs meet the subjective factual threshold referredto by Lord Nicholls, namely that the assertion of belief "is made in good faith" andthat it is "neither fictitious, nor capricious, and not an artifice".55 I also accept thattheir beliefs are not trivial and relate to a "fundamental problem". But—at least to theextent that those beliefs admit of no exceptions—there may be an issue about whetherthey are compatible with the "standards of human dignity or integrity" referred to byLord Nicholls.[97] In light of my earlier discussion, it cannot be disputed that the ability of womento access legal and safe abortions is a matter of fundamental rights. And it is notnecessary to look far in the international case law to see examples of where acts (oromissions) of conscientious objection to abortion have been found to have deniedthose rights. By way of example, I need refer only to three Polish cases that havecome before the ECtHR within the last 15 years.[98] First, there was Tysiąc v Poland. Ms Tysiąc had severe myopia. She becamepregnant, a condition that risked worsening her eyesight.56 She was denied acertificate authorising an abortion by conscientious objectors, who told her that sheshould have the baby delivered by Caesarean section. But after giving birth, she wasleft virtually blind. The ECtHR found that there had been a breach of Ms Tysiąc'sart 8 right to respect for her private life.57[99] Secondly, in RR v Poland, RR had learned (following an ultrasound) that thefoetus she was carrying might be suffering from a genetic abnormality.58 Her attemptsto access genetic testing to enable her to make an informed decision about whether toterminate the pregnancy were deliberately thwarted by conscientiously objectingdoctors until the legal time-limit for abortions had passed. RR gave birth to a girl55 I do not mean to suggest that the belief of those plaintiffs who oppose abortion on ethical ratherthan religious grounds are any less genuine (or less worthy of protection); it simply makes the s 15analysis less complicated to adopt this narrower focus.56 Tysiąc v Poland [2007] ECHR 219.57 At [116].58 RR v Poland [2011] ECHR 828.suffering from an incurable congenital disorder. The ECtHR found not only violationsof RR's art 8 right to respect for her private life, but also her art 3 right to be free frominhuman or degrading treatment. In this latter respect, the Court said:59159. The Court notes that the applicant was in a situation of greatvulnerability. Like any other pregnant woman in her situation, she was deeplydistressed by information that the foetus could be affected with somemalformation. It was therefore natural that she wanted to obtain as muchinformation as possible so as to find out whether the initial diagnosis wascorrect, and if so, what was the exact nature of the ailment. She also wantedto find out about the options available to her. As a result of the procrastinationof the health professionals as described above, she had to endure weeks ofpainful uncertainty concerning the health of the foetus, her own and herfamily's future and the prospect of raising a child suffering from an incurableailment. She suffered acute anguish through having to think about how sheand her family would be able to ensure the child's welfare, happiness andappropriate long-term medical care. Her concerns were not properlyacknowledged and addressed by the health professionals dealing with hercase. The Court emphasises that six weeks elapsed between 20 February 2002when the first ultrasound scan gave rise, for the first time, to a suspicionregarding the foetus' condition and 9 April 2002 when the applicant finallyobtained the information she was seeking, confirmed by way of genetictesting. No regard was had to the temporal aspect of the applicant'spredicament. She obtained the results of the tests when it was already too latefor her to make an informed decision on whether to continue the pregnancy orto have recourse to legal abortion as the time limit provided for by section 4(a)paragraph 2 had already expired.[100] And lastly, there is P and S v Poland. P had been 14 years old when she becamepregnant as a result of rape by a classmate.60 Her access to an abortion was obstructedby conscientious objectors. She was given deliberately distorted information aboutthe relevant prerequisites. The hospital disclosed P's personal and medical data to thepress and public. Hospital staff, a priest, and Police asserted that P's mother was tryingto coerce her into having an abortion, resulting in state authorities removing P fromS's custody and detaining her in a juvenile centre. Although P ultimately received alegal abortion (after intervention by the Ministry of Health) it was performed in secretand she was neither registered as a patient nor given post-operative care. The ECtHRfound breaches not only of P's art 8 and art 3 rights, but also her art 5 right to liberty.The Court stated that conscientious objectors in Poland were legally obliged to referpatients seeking abortions to non-objecting providers.59 Emphasis added.60 P and S v Poland ECHR 57375/08, 30 October 2012.[101] These are, of course, individual cases that turn on their own relatively extremefacts. It was not argued by the Crown, and I do not think it can properly be said, thatevery manifestation of a person's conscientious objection to abortion will violate therights of others to such an extent that it should, as a matter of principle, disqualify itfrom s 15 protection. Nonetheless, the cases demonstrate that impeding timely accessto legal abortion services—the very wrong that s 14 of the CSAA is trying to remedy—can, itself, constitute an infringement of the rights of others. If nothing more, thatreinforces my earlier conclusion that this case engages s 15 of the NZBORA, not s 13.Does refusing to provide the information required by s 14 constitute manifesting theclaimants' beliefs in observance or practice?[102] Section 15 of the NZBORA (like both art 9 of the ECHR and art 18 of theICCPR) confirms the right to "manifest" religion or belief in "worship, teaching,practice and observance".61 There can be little doubt that the relevant manifestationhere—declining to advise a woman seeking an abortion how to access the details of anon-objecting health care provider—does not involve worship, or teaching. So thequestion is whether this refusal can be regarded as involving the "observance" or"practice" of religion and belief. Again, the answer is not entirely straightforward.[103] The international authorities suggest that the line between more formallyrecognised matters of religious "practice and observance" (the manifestation of whichis protected) and actions that are merely motivated by the relevant religion or belief(the manifestation of which may not be protected) is not always clear. Thus, in Eweidav United Kingdom the ECtHR said:6282. Even where the belief in question attains the required level of cogencyand importance, it cannot be said that every act which is in some way inspired,motivated or influenced by it constitutes a "manifestation" of the belief. Thus,for example, acts or omissions which do not directly express the beliefconcerned or which are only remotely connected to a precept of faith falloutside the protection of Article 9 § 1 . In order to count as a"manifestation" within the meaning of Article 9, the act in question must beintimately linked to the religion or belief. An example would be an act ofworship or devotion which forms part of the practice of a religion or belief ina generally recognised form. However, the manifestation of religion or beliefis not limited to such acts; the existence of a sufficiently close and direct nexusbetween the act and the underlying belief must be determined on the facts of61 The freedom to manifest thought and conscience is protected by s 14.62 Eweida, above n 45 (emphasis added).each case. In particular, there is no requirement on the applicant to establishthat he or she acted in fulfilment of a duty mandated by the religion in question .[104] So the existence of the relevant nexus (between the manifestation and thereligion or belief) must be established as a matter of fact. And as Mr Perkins pointedout, there was no evidence filed in this case that was directed at that issue.[105] In an attempt to rectify that omission, Mr Bassett handed up a copy of theencyclical letter Humanae Vitae (sub-titled On the Regulation of Birth). Although thedocument provided to me was not dated, I understand that it was signed byPope Paul VI on 25 July 1968 and issued at a Vatican press conference a few dayslater. At paragraph 14, the English translation states:Therefore We base Our words on the first principles of a human and Christiandoctrine of marriage when We are obliged once more to declare that the directinterruption of the generative process already begun and, above all, all directabortion, even for therapeutic reasons, are to be absolutely excluded as lawfulmeans of regulating the number of children.[106] Paragraph 17 is directed specifically to doctors and nurses. It is in generalterms, and relevantly states:Likewise we hold in the highest esteem those doctors and members of thenursing profession who, in the exercise of their calling, endeavour to fulfil thedemands of their Christian vocation before any merely human interest. Letthem therefore continue constant in their resolution always to support thoselines of action which accord with faith and with right reason. And let themstrive to win agreement and support for these policies among theirprofessional colleagues. [107] The premise of the encyclical appears to be (on my uninformed but carefulreading of it) that human life is sacred because (the Roman Catholic) god is theultimate source of its generation. In turn, that requires adherents to accept that it isonly God, not humans, who may determine when conception should occur and whenchildren should be born. Hence, the encyclical says, married couples (for it is onlythey who God says may procreate) are prohibited from any act or omission, includingthe use of artificial contraception, that directly interrupts the generative process.[108] All other things being equal, I would be prepared to admit Humanae Vitae asevidence under s 129 of the Evidence Act 2006 on the basis that it is a reliable sourceof information about traditional Roman Catholic teachings in this area.63 But thedifficulty is that there is no evidence before me as to the status this encyclical now has,some 50 years later. I would imagine, for example, that many adherents of that faithnow honour a good part of it only in the breach. And many more would, I am sure,support a more nuanced and less absolute approach.64 I am unable to acceptDr Hallagan's statement that "I have no doubt that by far and above the majority ofCatholics throughout New Zealand would share my strongly held belief that abortionis wrong" is sufficient.[109] In any event, even were I to regard Humanae Vitae as the necessary evidentialfoundation here, it does not automatically answer the critical question referred to inEweida and the other cases: is the nexus between the relevant beliefs and theirmanifestation (refusing to act in the way summarised at [90] above) sufficiently closeand direct to warrant s 15 protection?[110] In my view, it is not.[111] I do not consider that the provision of information, as required by s 14 of theCSAA engages the notions of practice or observance. It is far from clear to me why—particularly in the case of the minimal and remote act required by s 14—a properinterpretation of s 15 of the NZBORA would permit the conscience of one individualeither to restrict the exercise of conscience by another, or to limit access by women toa process that is not only lawful, but is grounded in their fundamental rights.65 Indeed,many commentators suggest that legal protection for conscientious objection to lawfulmedical procedures can only be justified at all, in human rights terms, when it is63 It does not, of course, speak to or for those plaintiffs who do not adhere to that particular form ofChristianity.64 By way of recent and informal example only, US President Joe Biden (who professes to be adevout Roman Catholic) has also been widely reported as expressing his support for the decisionin Roe v Wade.65 It is this impact on the fundamental rights of others that may differentiate conscientious objectionin the health area with (for example) conscientious objection to military service.accompanied by a duty to refer.66 That is recognised in a raft of national andinternational ethical guidelines.67 And s 14 stops short of requiring even a referral.[112] This point is, I think, further borne out by authorities that state the freedom tomanifest is unlikely to be engaged where:(a) the relevant act or omission involves non-compliance with obligationsimposed by law, and(b) where the actor(s) involved remain free to manifest their beliefs in otherways.[113] By way of one specifically relevant example, in its admissibility decision ofPichon and Sajous v France, the ECtHR declined even to entertain the propositionthat a refusal by conscientiously objecting pharmacists to supply contraceptives was aqualifying "manifestation" of religious belief.68 The Court said:69The word "practice" used in Article 9 § 1 does not denote each and every actor form of behaviour motivated or inspired by a religion or a belief. as long as the sale of contraceptives is legal and occurs on medicalprescription nowhere other than in a pharmacy, the applicants cannot giveprecedence to their religious beliefs and impose them on others as justificationfor their refusal to sell such products, since they can manifest those beliefs inmany ways outside the professional sphere.It follows that the applicants' conviction for refusal to sell did not interferewith the exercise of the rights guaranteed by Article 9 of the Convention andthat the application is manifestly ill-founded 66 See for example In Good Conscience: Conscience-based Exemptions and Proper MedicalTreatment (2015) 23 Med L Rev 221, where Sara Forvargue and Mary Neal argue that the legalprotection of conscientious objection can only be justified in circumstances where threeprerequisites are met: (a) the conscientious belief is genuine, (b) there is a duty to refer, and (c) theobjection pertains to treatment whose status as "proper medical treatment" is contested or liminal.It may be observed that only the first of those would appear to be met in the present case.67 Including the Royal Australian and New Zealand College of Obstetricians and GynaecologistsCode of Ethical Practice (2006), which, while recognising the right to conscientiously object,states that where a practitioner's personal beliefs conflicts with a patient's desired treatment, thepractitioner "must make an appropriate referral and with the patient's consent, communicaterelevant information to a new practitioner".68 Pichon and Sajous v France [2001] ECHR 898.69 Emphasis added.[114] To similar effect is part of the ECtHR's decision in Eweida, dealing with acomplaint by a Ms Ladele. Ms Ladele was a registrar of births, deaths, and marriageswho had been disciplined for breaching her workplace's diversity policy by refusingon religious grounds to register same-sex partnerships. In finding that the disciplinaryaction violated neither her art 9 nor her art 14 right (freedom from discrimination), theCourt said:70106. The Court takes into account that the consequences for the applicantwere serious: given the strength of her religious conviction, she consideredthat she had no choice but to face disciplinary action rather than be designateda civil partnership registrar and, ultimately, she lost her job. Furthermore, itcannot be said that, when she entered into her contract of employment, theapplicant specifically waived her right to manifest her religious belief byobjecting to participating in the creation of civil partnerships, since thisrequirement was introduced by her employer at a later date. On the otherhand, however, the local authority's policy aimed to secure the rights of otherswhich are also protected under the Convention. The Court generally allowsthe national authorities a wide margin of appreciation when it comes tostriking a balance between competing Convention rights. In all thecircumstances, the Court does not consider that the national authorities exceeded the margin of appreciation available to them. [115] For essentially the same reasons, my own view is that refusing to comply withthe obligation to provide information in accordance with s 14 of the CSAA is not amanifestation of religion or belief that engages the s 15 right at all.Does s 14 of the CSAA interfere with the plaintiffs' freedom to manifest their beliefs?[116] If, contrary to the view just expressed, s 15 does protect the plaintiffs' freedomconscientiously to refuse to comply with s 14, the next step is to consider whether s 14interferes with that freedom. As Lord Nicholls said in Williamson:71What constitutes interference depends on all the circumstances of the case,including the extent to which in the circumstances an individual canreasonably expect to be at liberty to manifest his beliefs in practice. The question is, whether the amendment of the law interfered,"materially, that is, to an extent which is significant in practice, with theclaimants' freedom to manifest their belief by way of such refusal".70 Citations omitted; emphasis added.71 Williamson, above n 44 at [38]–[39].[117] And in R (Begum) v Denbigh High School, Lord Bingham noted that:72The Strasbourg institutions have not been at all ready to find an interferencewith the right to manifest religious belief in practice or observance where aperson has voluntarily accepted an employment or role which does notaccommodate that practice or observance and there are other means open tothe person to practise or observe his or her religion without undue hardship orinconvenience.[118] As the Crown acknowledged, however, the decision in Laramore (discussedearlier) seems to signal something of a retreat from this last proposition.73 There thePrivy Council endorsed the ECtHR's more recent statement that, in a case where anindividual complains of a restriction on freedom of religion in the workplace:74 rather than holding that the possibility of changing job would negate anyinterference with the right, the better approach would be to weigh thatpossibility in the overall balance when considering whether or not therestriction was proportionate.[119] Accordingly, I do not propose to deal with the question of interference here onthe basis that the plaintiffs have a choice to practise in some other area of medicine.[120] I accept that from the plaintiffs' subjective perspective, compliance with s 14of the CSAA is seen as a substantial interference with their freedom to manifest theirreligious beliefs. The plaintiffs consider that compliance with s 14 would somehowrender them complicit in a process that has abortion as its end goal, making it similarlywrong and immoral. Or, as Mr Bassett put it, s 14 requires them to "participate in achain of causation" that leads to abortion, thereby significantly interfering with theirreligious beliefs.[121] But as I have noted already, the reality is that the obligations imposed by s 14are minimal and—at best—only remotely connected with any abortion that may or72 R (Begum) v Denbigh High School [2006] UKHL 15, [2006] 2 All ER 387. There are shades hereof Macnaghten J's summing up to the jury in R v Bourne [1938] 3 All ER 615, where the Judgesaid (at 618):On the other hand, no doubt there are people who, from what are said to be religious reasons,object to the operation being performed at all, in any circumstances. a person who holdssuch an opinion ought not to be a doctor practising in that branch of medicine, for, if a casearose where the life of the woman could be saved by performing the operation and the doctorrefused to perform it because of some religious opinion, and the woman died, he would be ingrave peril of being brought before this court on a charge of manslaughter by negligence73 Laramore, above n 48.74 At [21], quoting Eweida, above n 45.may not follow. This was a point made by the ECtHR in Open Door Counselling vIreland: 75 it is to be noted that the corporate applicants were engaged in thecounselling of pregnant women in the course of which counsellors neitheradvocated nor encouraged abortion, but confined themselves to an explanationof the available options The decision as to whether or not to act on theinformation so provided was that of the woman concerned. There can be littledoubt that following such counselling there were women who decided againsta termination of pregnancy. Accordingly, the link between the provision ofinformation and the destruction of unborn life is not as definite as contended.[122] As well, the case law makes it clear that mere administrative acts only remotelyconnected to the abortion process do not constitute "participation" in that process and(so) are not within the ambit of conscientious objection clauses.76 Moreover, asmentioned earlier, the authorities suggest that an obligation to refer (which is one stepfurther than the mere provision of information) is effectively the quid pro quo for theright to conscientiously object at all.[123] And lastly, there is the point made earlier, that complying with s 14 does notprevent the plaintiffs from manifesting the relevant belief in other ways.[124] I am therefore unable to conclude there is the requisite material and significantinterference here.Conclusion[125] Because I have addressed the "manifestation" issue in a number of parts, it isuseful to summarise my findings here. In short:(a) I accept that the plaintiffs' religious belief that abortion is wrong is abelief whose manifestation could be protected by s 15 of theNZBORA; but(b) I do not accept that refusing to provide a woman seeking an abortionwith information on how to contact an abortion services provider75 Open Door Counselling v Ireland [1992] ECHR 68 at [75].76 Janaway v Salford Area Health Authority [1988] UKHL 17, [1989] AC 537; and Doogan v GreaterGlasgow Health Board [2014] UKSC 68, [2015] 2 WLR 126.constitutes a manifestation of those beliefs in observance or practicesuch that s 15 is engaged; and(c) alternatively, I do not consider that being required to comply with s 14interferes materially or significantly with their ability to manifest thatbelief.Freedom of expression: s 14[126] Section 14 of the NZBORA provides:Everyone has the right to freedom of expression, including the freedom toseek, receive, and impart information and opinions of any kind in any form.[127] The importance of the right cannot be doubted.[128] In the present case the Attorney-General accepts that both s 14 and s 15 of theCSAA engage and interfere with health practitioners' freedom of expression. That isbecause both sections compel expression (speech) of a certain kind:(a) s 14 dictates what conscientious objectors must tell a patient who isseeking an abortion; and(b) s 15 may require a conscientious objector to disclose his or herconscientious objection in the course of employment or when applyingfor a job.Section 14 of the CSAA[129] As far as s 14 of the CSAA is concerned, freedom of expression has been foundto include the freedom not to be compelled to say specific things or to provide certaininformation. The leading case on that aspect of the right is RJR-MacDonald Inc vAttorney-General, where a 5:2 majority in the Canadian Supreme Court held that themandatory unattributed health warnings required to be included on tobacco packagingwere a form of forced expression that were unconstitutional and could not bejustified.77[130] But a careful reading of RJR-MacDonald suggests that there is an importantpoint of distinction between that case and the present. The point is best understood bybeginning with La Forest J's dissent, where the Judge drew a distinction betweeneffectively putting words into a person's mouth and requiring a person to convey amessage that is plainly not their own:78113 I now turn to the appellants' final argument, namely, that s 9 of the Actconstitutes an unjustifiable infringement of their freedom of expression bycompelling them to place on tobacco packages an unattributed health message.I agree, to use Wilson J's phrase, that if the effect of this provision is "to put aparticular message into the mouth of the plaintiff, as is metaphorically allegedto be the case here", the section runs afoul of s 2(b) of the Charter; . Thisview had earlier been adopted by the whole Court in Slaight CommunicationsInc. v. Davidson, . There a labour arbitrator had, inter alia, required anemployer, by way of remedy for unjustly dismissing an employee, to providea letter of recommendation consisting only of uncontested facts found by thearbitrator. Speaking for the Court on this point, Lamer J (as he then was)stated, : "freedom of expression necessarily entails the right to say nothingor the right not to say certain things".115 I have, however, more fundamental problems accepting the appellants'contention that their s 2(b) right was infringed by the requirement that aprescribed health warning must be placed on tobacco packages. It must beremembered that this statement is unattributed and I have some difficulty inseeing, in the context in which it was made, that it can in any real sense beconsidered to be attributed to the appellants. Simply because tobaccomanufacturers are required to place unattributed warnings on their productsdoes not mean that they must endorse these messages, or that they areperceived by consumers to endorse them. In a modern state, labelling ofproducts, and especially products for human consumption, are subject to stateregulation as a matter of course. It is common knowledge amongst the publicat large that such statements emanate from the government, not the tobaccomanufacturers. In this respect, there is an important distinction betweenmessages directly attributed to tobacco manufacturers, which would create theimpression that the message emanates from the appellants and would violatetheir right to silence, and the unattributed messages at issue in these cases,which emanate from the government and create no such impression. Seenin this way, the mandatory health warnings under s 9 are no different fromunattributed labelling requirements under the Hazardous Products Act, underwhich manufacturers of hazardous products are required to place unattributedwarnings, such as "DANGER" or "POISON", and hazard symbols, such asskull and crossbones on their products; see Consumer Chemicals and77 RJR-MacDonald Inc v Attorney-General (1995) 127 DLR (4th).78 Emphasis added.Containers Regulations, SOR/88-556. I should add that the issue hasramifications for many other spheres of activity where individuals may incertain prescribed circumstances be required to place danger signs on facilitiesused by the public or on construction sites, and so on. This is not really anexpression of opinion by the person in control of the facility or theconstruction site. It is rather a requirement imposed by the government as acondition of participating in a regulated activity.[131] Writing for the majority, McLachlin J, disagreed with the view expressed byLa Forest J at [113], saying:79The combination of the unattributed health warnings and the prohibitionagainst displaying any other information which would allow tobaccomanufacturers to express their own views, constitutes an infringement of theright to free expression guaranteed by s. 2(b) of the Charter.80[132] And in considering whether the statutory requirement that the warning beunattributed failed to meet the minimum impairment requirement of proportionality,McLachlin J said:81The appellant corporations contend that a warning similar to that used in theUnited States, which identifies the author as the Surgeon General, would beequally effective while avoiding the inference some may draw that it is thecorporations themselves who are warning of the danger. They object not onlyto being forced to say what they do not wish to say, but also to being requiredto do so in a way that associates them with the opinion in question. Thisimpairs their freedom of expression, they contend, more than required toachieve the legislative goal. The government is clearly justified in requiring the appellants to placewarnings on tobacco packaging. The question is whether it was necessary toprohibit the appellants from attributing the message to the government andwhether it was necessary to prevent the appellants from placing on theirpackaging any information other than that allowed by the regulations.[133] Importantly—and by direct contrast with the facts of RJR-MacDonald—s 14of the CSAA does not restrain or prohibit conscientious objectors from:(a) expressing their own opinion about abortion to a patient; or(b) attributing the message they are required to deliver to Parliament, bytelling the patient that they are required by law (and contrary to their79 At [124] (emphasis added).80 The manufacturers were prohibited from displaying any writing other than: the name, brand name,trademark, and information required by the legislation.81 At [172]–[173] (emphasis added).own conscientious objection) to tell them how to access an alternativeprovider.[134] There is, I think, a further point. It seems to me that s 14 of the CSAAengages—and is intended to further—the freedom of a woman who is lawfully seekingan abortion to obtain the information she needs. That freedom is, itself, protected bys 14 of the NZBORA. In Open Door Counselling, the ECtHR found that(notwithstanding that the Irish Constitution recognised "the right to life of theunborn") impeding or restraining the provision of similar information to womenseeking and abortion overseas was an overly broad and disproportionate breach of awoman's right to receive it under art 10 of the European Convention.82[135] For the reasons I have given, I am not persuaded that s 14 of the CSAA imposesa relevant limit on the conscientious objectors' freedom of expression.Section 15 of the CSAA: what does it require?[136] Because this is the first time I have considered s 15 of the CSAA in thisjudgment, it is useful to begin by reiterating, in broad terms, the import of the section.[137] Section 15 provides that it is generally unlawful to take into account anindividual's conscientious objection in employment decisions; it requires an employerto accommodate an applicant or employee's conscientious objection. This includes"arranging for the duties to be carried out by an existing employee". The exceptionis where accommodating a conscientious objection would unreasonably disrupt theemployer's provision of health services. Whether disruption is unreasonable is to bejudged objectively, on a case-by-case basis.[138] Accordingly, an employer would be permitted to recruit specifically for rolesthat require the provision of abortion services as part of the job description. Theconsideration of only candidates willing to provide abortion services would be lawfulunder s 15 where that is necessary for the employer to start or continue to provideabortion services; otherwise those services would be "unreasonably disrupted". For82 Open Door Counselling v Ireland, above n 75.example, where a primary health care clinic requires two general practitioners willingto prescribe for early medical abortions in order to meet demand from its patient base,the practice would be permitted to invoke s 15 when replacing one of those generalpractitioners, as its provision of abortion services might otherwise be unreasonablydisrupted. But if demand could be accommodated by those two practitioners, it wouldnot generally be permitted to discriminate when hiring other practitioners.[139] By way of specific example (given by Dr Page in his evidence for the Attorney-General) four out of seven specialists are required at Whangārei Hospital to providemedical and surgical abortions for the Northland region. While three conscientiousobjectors can be accommodated without disrupting services, the hospital would beentitled to invoke s 15 when replacing one of the current four health practitioners whodo not conscientiously object.Does s 15 of the CSAA limit conscientious objectors' freedom of expression?[140] I am not persuaded that any "obligation" imposed by s 15 on conscientiousobjectors to tell an employer or prospective employer of their objection constitutes alimit on their freedom of expression in terms of s 14 of the NZBORA.[141] As far as compelled disclosure to a prospective employer is concerned, theevidence filed for the Attorney-General makes it plain that any advertised vacancy fora position in which participation in the abortion process would be required will makethat requirement clear. That will be the case as a matter of logic, and I decline toproceed on the basis that a conscientious objector would perversely apply for aposition that was so advertised. No need for disclosure will therefore arise.[142] Nor do I consider there will be any rights-infringing compelled disclosure if ittranspires that an existing employee's conscientious objection unreasonably disruptshis or her employer's provision of health services. By definition, the relevantdisclosure will already have occurred. That is because in most, if not all, conscientiousobjection cases the objection will need to be made known in order for the objector totake advantage of the protection that his or her conscience is afforded. And ifdisclosure is necessary to trigger the protection of the objector's conscience, it isdifficult to see how that disclosure could then be found to be a breach of some otherright.Conclusion[143] In my view neither s 14 nor s 15 of the CSAA infringes a conscientiousobjector's freedom of expression.Freedom of association: s 17[144] Section 17 of the NZBORA simply provides that: "Everyone has the right tofreedom of association".[145] The plaintiffs say that s 15 of the CSAA limits this freedom because theemployment consequences of having a conscientious objection to abortion serviceswill operate to prevent conscientious objectors from obtaining the pre-requisiteexperience to become a member of professional bodies, such as the Royal Australianand New Zealand College of Gynaecologists (RANZCOG).[146] But I agree with Mr Perkins that it is not s 15 that restricts or prohibitconscientious objectors from associating with other colleagues or joining anyprofessional association. The fact that an individual may not qualify for membershipof a professional body is not a freedom of association issue; professional bodies areentitled to define the qualifications and experience that qualify an individual formembership. That an individual may not be able to meet those qualifications becauseof their own beliefs does not equate to the state restricting or making unlawful thatperson's freedom to associate.[147] Nor is a factual foundation for this claim made out.[148] First, there is no evidence before the Court that it is the intention of the law, orthat its practical impact will mean, that a conscientious objector will not be able toobtain whatever employment or experience in New Zealand as might be necessary togain qualifications or fellowship of a Royal College. Dr Tait (the current President ofRANZCOG) deposed that the selection of candidates for training or attainingfellowship of RANZCOG is not contingent on their willingness to train for andprovide abortion services. Rather, they "would always have the right not to beinvolved in abortion services"; it is not anticipated as a pre-requisite to entering thatspecialist pathway or obtaining necessary placements.[149] Secondly, the evidence simply does not establish that conscientious objectorswho wish to practise as health professionals in the area of obstetrics and gynaecology,or reproductive health, will be unable to obtain employment in New Zealand. Rather,the intent of s 15 is that objections will be accommodated where that will notunreasonably disrupt an employer's abortion services.[150] And thirdly, the evidence also suggests that the reality is, and will continue tobe, that in a number of workplaces, such as Whangārei Hospital, the requisite abortionservices can be maintained by a cohort of health practitioners working alongside thosewho have a conscientious objection.[151] I do not consider this aspect of the claim further.Freedom from discrimination: s 19[152] This aspect of the claim focuses solely on s 15 of the CSAA. I have alreadysummarised the ambit and likely operation of s 15 at [136] to [139] above.The scope of the claim[153] It is important to note at the outset that the plaintiffs' case here cannot be aboutindividual instances of unlawful discrimination. There is no evidence of that. Ratherthe plaintiffs allege that in no circumstances could the lawful application of s 15 beconsistent with a conscientious objecting health practitioner's right to be free fromdiscrimination, such that the CSAA itself is inconsistent with s 19.[154] Section 19(1) of the NZBORA provides:Everyone has the right to freedom from discrimination on the grounds ofdiscrimination in the Human Rights Act 1993.[155] Section 21 of the Human Rights Act 1993 (the HRA) sets out an exclusive listof the grounds on which discrimination is prohibited. The specific grounds relied onby the plaintiffs here are religious belief and ethical belief. They say that s 15sanctions discrimination, contrary to s 19, by permitting an employer to differentiatebetween applicants or employees who do and do not have a conscientious objection toabortion, where accommodating that objection would unreasonably disrupt theprovision of health services.[156] I agree with Mr Perkins, however, that the contention that the CSAAdiscriminates against the plaintiffs on the grounds of ethical belief can be put to oneside. That is because "ethical belief" is defined in s 21 as "the lack of a religiousbelief, whether in respect of a particular religion or religions or all religions". None ofthe plaintiffs here claim that they are discriminated against on the because of theirabsence of belief. 83 To the contrary, they all depose that their conscientious objectionis grounded in their faith.[157] So in this part of this judgment I consider only the claim of discrimination onreligious grounds.How is discrimination to be identified?[158] In Ministry of Health v Atkinson the Court of Appeal said that a discriminationclaim poses the following two questions:84(a) Is there differential treatment or effects as between persons or groupsin analogous or comparable situations on the basis of a prohibitedground of discrimination?(b) Does that treatment impose a material disadvantage?[159] In a later case, Ngarona v Attorney-General, the Court of Appeal observed:8583 As noted in Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary(2nd ed, LexisNexis, Wellington, 2015) at [17.8.13], the definition of "ethical belief" is "quiteodd".84 Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [55].85 Ngarona v Attorney-General [2017] NZCA 351, [2017] 3 NZLR 643 (footnotes omitted).[121] There has been judicial debate in the Commonwealth about theusefulness of a comparator exercise. In the United Kingdom the search for acomparator has been described as an "arid" exercise. We accept that acomparator exercise should not be treated as a formula to determine theanswer to an allegation of discrimination. Comparator groups can be overlyrefined by building into the comparators the contested assumptions, therebyneutralising the comparator exercise. However, since discrimination is, inessence, treating persons in comparable situations differently, it is inevitablethat the reasoning involved in such a process will include choosing a personor group for comparison purposes. As we will elaborate, it is not necessary tofix a single conclusive comparator.[160] Discrimination can be direct or indirect. Direct discrimination is where thelaw uses the prohibited ground as a basis for differentiating between two groups.Indirect discrimination is where a facially neutral law has differential effects based ona prohibited ground. As further explained by the Court of Appeal in Ngarona:[119] Indirect discrimination under s 65 of the Human Rights Act can arisewhen a criterion in a law or policy, which is not on its face discriminatory,corresponds to a feature (or lack thereof) of all or part of a group and resultsin that group being treated differently on a prohibited ground. A Canadianexample we will refer to is a policy in a public health system which does notfund the provision of translation services to deaf patients who could otherwiseuse state care. The provision did not mention deafness, and did not explicitlyexclude deaf patients from the benefit of state care, but a failure to providetranslation services to deaf patients effectively denied them equal access toimportant benefits that were available to other persons who were not deaf.Accordingly, the discrimination does not need to be direct.[161] In this case, the Attorney-General accepts that if the plaintiffs establish the firstAtkinson step (either direct or indirect differential treatment on the grounds of religiousbelief) then the second step will be satisfied; taking steps permitted (in certaincircumstances) by s 15(1) of the CSAA could result in material disadvantage to theapplicant or employee.86[162] It is therefore only the first question that I consider below.Direct discrimination on the grounds of religious belief?[163] I agree with the Crown that there is no direct discrimination here. Section 15does not expressly or impliedly contemplate the use of religion as a basis for86 He denies, however, that the disadvantage is of the kind or to the extent claimed by the plaintiffs.distinguishing between two groups. Any differential treatment is not the result of aperson's adherence to a particular religion or religious belief, but of their willingnessto provide abortion services. While, in this case, the plaintiffs' witnesses have eachdeposed that their opposition to abortion is derived from their religious beliefs, not allthose who oppose abortion share the same religious belief. Indeed, as one of theplaintiffs' witnesses acknowledges, a person may have no religious belief but still holda secular moral objection to abortion. Section 15 treats such a person in the same wayas a person who objects to abortion on religious grounds.[164] Accordingly, any claim of direct discrimination must fail, at the first hurdle.Indirect discrimination on the grounds of religious belief?[165] As the dicta from Ngarona quoted above make clear, what must be shown toestablish indirect discrimination is that the operation of s 15 in practice means thatthere is a group of health practitioners who, as a result of their shared religious belief,will be treated differently from (and worse than) a group of health practitioners whodo not share that religious belief. It does not suffice to point to individuals who havebeen or may be negatively affected by a particular law.[166] Again, the evidence for the plaintiffs here is lacking. And the evidence filedby the Attorney-General suggests that it is more likely that roles requiring abortionservices to be provided will specify that requirement in the job description, and theseroles will co-exist alongside roles that may be filled by conscientious objectors withoutunreasonably disrupting that employer's provision of health services. As noted earlier,Dr Page deposed that a number of conscientious objectors can continue to be employedalongside those performing abortion services, without affecting service delivery.[167] Moreover, even if the evidence disclosed that opposition to abortion under anycircumstances is a recognised feature of the Roman Catholic religion (which it doesnot, as discussed earlier), the evidence is also clear that membership of the group nowcomplaining of discrimination is not confined to Roman Catholics. The group isdefined by reference to its members' conscientious objection to abortion, not theirfaith. And as previously discussed, the evidence does not in my view establish that allRoman Catholic health professionals practising in this area would be united in theabsolutist position espoused by the plaintiffs' witnesses. I have no doubt that there aresome Roman Catholic health practitioners who would not conscientiously object to alawful and clinically indicated abortion in the first trimester, let alone in the moreextreme circumstances involving grave risks to the mother's health, or a pregnancythat is the result of rape or incest.Rights of minorities: s 20[168] Section 20 of the NZBORA provides:A person who belongs to an ethnic, religious, or linguistic minority inNew Zealand shall not be denied the right, in community with other membersof that minority, to enjoy the culture, to profess and practise the religion, or touse the language, of that minority.[169] The plaintiffs say that the impugned provisions effectively deny an ethnicminority—Pasifika peoples—from enjoying their culture, professing and practisingtheir religion, or using their language. They say that ss 14 and 15 will prevent themfrom holding beliefs without interference and will adversely affect this community'saccess to culturally sensitive health care.[170] The evidence relied on to support this contention comes from Dr Heather, whodeposed that, in her experience, the "overwhelming majority" of Pasifika people areof a Christian faith, and have conservative Christian values, which include anobjection to abortion.[171] I confess that I find this aspect of the claim difficult to understand. Theunderlying contention must be that ss 14 and 15 of the CSAA will have the effect ofdenying Pasifika health practitioners in the area of obstetrics, gynaecology orreproductive health the right to "profess and practise" their religion. The flow oneffect (the plaintiffs say) would be that Pasifika health practitioners will choose not topractise in those areas at all, to the detriment of Pasifika patients. But as I understandit, it is not—and could not be—claimed that the s 22 rights of Pasifika patientsthemselves are infringed by the operation of ss 14 and 15.[172] Viewed in that way, it is difficult to see what this claim could add either to as 15 (freedom to manifest religion) or a s 19 (discrimination) claim; the reasons whythose claims did not succeed would apply equally here. As with those claims, thenecessary evidence is ultimately lacking. The evidence simply does not establish that:(a) all or most current and prospective Pasifika health practitioners arelikely to conscientiously object to telling a person seeking an abortionhow to access the contact details of the closest available provider; and(b) all or most current and prospective Pasifika health practitioners arelikely to conscientiously object to participating in the provision ofabortion services where abortion is lawful and clinically indicated.(c) the prospect of having to do either of those things would deter all ormost prospective Pasifika health practitioners from entering theprofession, or force them to leave it; and(d) the differential treatment in employment permitted by s 15 of the CSAAwill mean that all or most Pasifika health practitioners will be unable toobtain employment in, and will effectively be excluded from, therelevant practice areas.Justification[173] It will be apparent from my analysis above that I have found none of theplaintiffs' core claims made out. In other words, I consider that none of the pleadedNZBORA rights are limited or infringed by either s 14 or s 15 of the CSAA. Strictlyspeaking, the question of justification does not arise.[174] Nonetheless, for completeness, and out of an abundance of caution, I brieflyaddress that question now. Although I acknowledge that, depending on which right issaid to have been limited, there may be nuanced analytical differences between themfor justification purposes, I intend to take a slightly more broad-brush approach thatdifferentiates only as between s 14 and s 15. I think that a more global approach iswarranted given my principal conclusion that justification is not in play at all.[175] Section 5 of the NZBORA provides:Subject to section 4, the rights and freedoms contained in this Bill of Rightsmay be subject only to such reasonable limits prescribed by law as can bedemonstrably justified in a free and democratic society.[176] There can be no question that any interference with the rights said to beengaged here satisfies the "prescribed by law" requirement. Sections 14 and 15 arecontained in a piece of primary legislation. They are clear in their terms.[177] Limits on rights fall to be considered under s 5 in accordance with the Oakestest.87 In order for such a limit to be justified:(a) the objective of the impugned provision must be of sufficientimportance to warrant overriding a constitutionally protected right orfreedom, meaning it must relate to concerns that are pressing andsubstantial in a free and democratic society; and(b) the means chosen to achieve the objective must pass a proportionalitytest, meaning that they must:(i) be "rationally connected" to the objective and not be arbitrary,unfair or based on irrational considerations;(ii) impair the right or freedom in question as "little as possible";and(iii) be such that their limitation of rights and freedoms areproportional to the objective.[178] A rational and proportionate limitation meeting this test will be "demonstrablyjustified in free and democratic society" under s 5.87 R v Oakes [1986] 1 SCR 103. Adopted by the Supreme Court in R v Hansen [2007] NZSC 7,[2007] 3 NZLR 1 at [104].The s 14 duty to inform[179] Section 14 of the CSAA duty has the legitimate objective of facilitating accessto abortions in a timely way. Delay in finding a provider of abortion services cancreate health risks for the pregnant woman, as well as additional cost and stress. Theobjective is linked to—and supports—a number of fundamental and internationallyrecognised human rights.[180] The s 14 duty to provide information is rationally connected to that objective;it reduces the potential delay that would otherwise be caused by a conscientiouslyobjecting health practitioner. Moreover, an obligation to refer (which is a moresignificant step than the s 14 requirement to provide contact details) is, in any event,rightly regarded as the quid quo of the right to conscientiously object at all.[181] The s 14 duty also minimally impairs the rights of a conscientious objector; tothe extent it requires participation in the provision of abortion services at all, thatparticipation is minimal and remote. And the alternatives suggested by Mr Bassett—self-referral facilitated by the provision of the relevant information by the Ministry ofHealth through an 0800 number or on a website—would not achieve the objective aseffectively.[182] As Mr Perkins said, such suggestions ignore the likely reality that manywomen may not know such information exists and may reasonably seek advice fromtheir general practitioner or practice nurse as a first port of call for all health services(especially if they have an established relationship with that practitioner). The s 14duty serves as a practical response to women who seek assistance from their primaryhealth care provider, who is ordinarily treated as a gateway to other health servicesand resources within the system.[183] And while some women may have the knowledge, skills and resources toaccess a list of service providers on the Ministry of Health website and "self-refer" toan abortion service provider, others may not. Some women do not have ready—orperhaps even safe—access to the internet. Young women and girls who becomepregnant may also choose to turn first to their general practitioner for help, comfortedby the certainty of confidentiality. The s 14 duty is a necessary safeguard for womenand girls who do not have the means to navigate their way through the health systemwithout assistance.[184] And even if there remained room for argument around the margins, I also agreewith Mr Perkins that Parliament was entitled to determine how best to achieve theimportant social policy objective of increasing timely access to abortion services. Thelegislature is rightly accorded considerable latitude in deciding which course shouldbe chosen. More broadly, the amendments followed thorough consideration by theLaw Commission. The issues were fully debated in Parliament.[185] Any limits on NZBORA rights (which, if they exist, are minimal) areproportionate to s 14's objective,88 which is to further and enhance the enjoyment ofindisputable and fundamental rights.[186] I therefore consider that, to the extent that s 14 of the CSAA limits anyNZBORA rights (which I do not think it does), those limits can be demonstrablyjustified in free and democratic society under s 5.The s 15 ability to differentiate[187] Permitting an employer to differentiate, in certain circumstances, betweenhealth practitioners who conscientiously object and those who do not has the samelegitimate objective noted earlier (ensuring women are able to access abortion servicesin a timely way). It achieves that objective by facilitating the employment of sufficienthealth practitioners who can provide abortion services. As well, s 15 has an importantpart to play in "levelling the playing field" by ensuring that women who live in moreremote or less populated areas of New Zealand will not be disadvantaged bygeography and will have equitable access to such services.[188] Any limit on the rights of conscientious objectors permitted by s 15 is expresslydesigned to be minimally impairing, because the limits only arise where the objectioncannot be accommodated without unreasonable disruption to the employer's provisionof health services.88 R v Hansen, above n 87, at [123].[189] The employer's duty to consider whether and how a conscientious objectioncould be accommodated, including by considering whether the duties could be carriedout by an existing employee, ensures that the extent of any differential treatment isminimal and proportionate to the objective.[190] Again, as Mr Perkins submitted, the Court in this proceeding is effectivelybeing asked to balance the plaintiffs' individual beliefs against the need for employersin the public health system to be able to recruit sufficient health practitioners infurtherance of the general public interest in improving access to abortion services.And again, I consider Parliament was entitled to strike the balance it did. To the extentthat—contrary to my primary conclusion—the provision limits any NZBORA rights,those limits can be demonstrably justified in free and democratic society under s 5.Result[191] I have found that neither s 14 nor s 15 of the CSAA limits—or is inconsistentwith—any of the NZBORA rights relied on by the plaintiffs here.[192] To the extent I am wrong in that, I consider that any such limit can bedemonstrably justified in free and democratic society under s 5.[193] The plaintiffs' claim therefore fails. The application for declarations ofinconsistency is declined.Costs[194] I did not hear from the parties on costs. My inclination is that they shouldfollow the event in the ordinary way, calculated on a 2B basis. I would be inclined tocertify for second counsel.[195] But if there is some relevant matter that counsel need to draw to my attention,or if agreement on that front cannot be reached, memoranda of no more than threepages in length are to be filed within 15 working days of the release of this judgment.Suppression/access to the Court file[196] Prior to the hearing of the plaintiffs' claim, applications were made by theAbortion Law Reform Association of New Zealand (ALRANZ) and a journalist,Ms Susan Strongman, for access to the Court file. Ms Strongman also later made anin-court media application in relation to the hearing itself. These applications wereopposed by Mr Bassett.[197] On 3 March 2021, in response to the in-court media application, I issued aminute in the following terms:Notwithstanding Mr Bassett's opposition to the application, I am unable to seewhy Radio New Zealand/Ms Strongman should be prohibited from recordingor taking photographs at the hearing. The media are certainly entitled to reporton the proceedings, in which there is a clear and legitimate public interest.Radio New Zealand/Ms Strongman are, of course, bound by the guidingprinciples contained in the In Court Media Coverage Guidelines, whichinclude that "All film, photographs and recordings of courtroom proceedingsthat are used or published must provide or assist in providing an accurate, fairand balanced report of the hearing, and must not be used or published out ofcontext." I have no reason to suppose that this principle will not be compliedwith.As far as the privacy interests of individual witnesses are concerned, I notecounsel's recent confirmation to the Registry that there will be no oralevidence given at the hearing. There is, accordingly, no prospect of any of theapplicant's witnesses being either recorded or photographed. To the extentthere remains some genuine and identifiable privacy concern relating to aparticular aspect of a witness's evidence, counsel can—in the event it is to bereferred to in Court—ask me to direct that it not be reported. Any such requestwill be dealt with on its merits at the time it is made.[198] At the beginning of the hearing, Mr Bassett reiterated that the plaintiffs'witnesses maintained their wish to protect their privacy and employment interests andwanted only to be identified as "Doctor One", "Nurse Two" and so on. I did not makea final ruling on that issue. Nor, as I understand it, have the access applications beenfinally resolved.89[199] Apart from Dr Hallagan (whose name, and stance on abortion, are already amatter of public record by virtue of Mackenzie J's decision in Hallagan, referred to89 I note, however, that it is generally regarded as inappropriate to grant access to affidavits orevidence contained on a Court file prior to the substantive hearing.earlier), I have not named any of the plaintiffs' witnesses in this judgment, and norhave I referred to their evidence in any detail at all.[200] As things stand, I do not see that there is any strong or legitimate public interestin knowing their identities. I also record (without comment) Mr Bassett's advice thatthe important issues with which these proceedings are concerned have sometimesbecome unnecessarily personalised.[201] The upshot is that:(a) there are no publication restrictions on the contents of this judgment;(b) to the extent that ALRANZ or Ms Strongman wish to pursue theirearlier requests for access to the Court file, they are to advise theRegistry, specifying the material to which access is sought, and why;(c) to the extent that ALRANZ or Ms Strongman wish to publish the namesor identifying details of any of the plaintiffs' witnesses, they are toadvise the Registry, and say why;(d) if any advice pursuant to (b) and (c) is received, Mr Bassett will havethe opportunity to respond; and(e) any further request, together with Mr Bassett's response, may then bereferred to me for determination on the papers.__________________Rebecca Ellis JSolicitors:Brace Legal for PlaintiffCrown Law, Wellington for Defendant