Set out safeguards before changing the constitution

By SIMON CARLAW*

Our constitution is being changed by virtual stealth. The hurriedly passed Local Government Act, the biggest constitutional change since MMP, is about to deliver major new powers to local bodies. STV voting is set to deliver significant change to local body representation. The lack of public information on these changes means few people are aware of them.

And another fundamental change is looming - appeals to the Privy Council are to be replaced by a Supreme Court in New Zealand. Few Kiwis seem to appreciate the consequences.

New Zealand's right of appeal to the Privy Council, a benefit of Commonwealth membership, gives access to world-class judges operating within our common legal system free of charge. Most New Zealand cases referred to the Privy Council are commercial ones; our business community can access judicial expertise of a quality beyond that which could otherwise be provided from a population base of around 4 million.

What we stand to lose is important. Also important is what we're likely to get: constitutional change, a step towards becoming a republic, passed through Parliament as if it were an ordinary piece of legislation.

The current make-up of Parliament means the Supreme Court Bill is likely to be passed as easily as the Local Government Act, despite the fact that it too does not reflect the views of significant groups in the community.

This is unwelcome. Legislation that brings about constitutional change should have to pass a higher threshold than 50 per cent: it should have widespread community support and bipartisan support in the House.

Other countries require this, for example constitutional change in the United States requires, among other things, the agreement of three-quarters of all states.

A New Zealand convention says key electoral arrangements should be changed only if passed by referendum or if three-quarters of Members of Parliament agree. The 1986 Constitution Act, for example, was enacted with general bipartisan support in the House. Similarly Parliament's new Standing Orders in 1995 were adopted by consensus rather than by simple majority.

But legislation setting up a Supreme Court would not have to meet this threshold - it could be passed by a simple majority in the House.

Another issue is the calibre of appointments - there has not been any real discussion of the legal talent pool for quality appointments, a real concern in a small country.

It appears that new Supreme Court judges will be appointed by a panel set up by the Attorney General. This is concerning. Supreme Court appointments in other countries inevitably attract criticism of political bias but, this gets balanced by successive appointments made by different Governments over time.

Having an entire court appointed under one Government, as envisaged here by the Attorney General, would confer rather a lot of "first mover advantage" and if youngish judges were appointed, that advantage could last for decades.

A safeguard could be to make appointments subject to confirmation by a majority in the House - as in the US, where Supreme Court nominations are required to have bipartisan Senate confirmation.

But in the scanty details so far out regarding a New Zealand Supreme Court, there has been no mention of such a safeguard here.

If new Supreme Court judges happened to reflect the present Government's views on critical issues it could mean those views holding sway in the nation's highest court, affecting commercial, employment, social, environmental and other law for years to come.

Business is already worried by the direction of employment-related law, which is acting as a disincentive to job creation and economic growth. The Supreme Court deal as proposed could mean this direction becoming entrenched for decades.

These concerns may prove baseless once more is known about the Supreme Court proposal. Safeguards against politicisation may indeed be planned. What is required is much more information about the proposal.

Also required is a great deal more public debate about our legal and constitutional system, including comparative information on other countries' systems. New Zealanders should know more about its potential impact before the Supreme Court Bill progresses any further.

* Simon Carlaw is chief executive, Business NZ