Editorial: Let public discuss new court

The replacement of the Privy Council with an indigenous court of final appeal could turn out to be the most memorable decision of this Government. If so, nobody will be able to accuse it of taking the step at breakneck speed. The proposal, much discussed and all but adopted by the previous Government, was endorsed by Helen Clark and her Attorney-General, Margaret Wilson, as soon as they came to office three years ago. Since then it has been the subject of further discussion papers and refined by a ministerial advisory group that reported in April. Now, at long last, legislation has been introduced, although Labour does not yet have the numbers to pass it. Government allies the Green Party and United Future have reserved their positions.

It is as well they have, for despite the long public gestation of this proposal, the form in which it now appears contains the seeds of something much bigger than most New Zealanders realised and needs much more discussion. The Government proposes to replace the Privy Council with a Supreme Court of five judges, one of whom would be the Chief Justice, another a jurist well-versed in tikanga Maori, and three others appointed by the Attorney-General on the advice of a panel consisting of the Chief Justice, the Solicitor-General and a retired cleric, Sir Paul Reeves. Sir Paul is the only new element in that procedure. He has been added to the advisers, Ms Wilson explains, for his knowledge of Maori issues.

Maori leaders have long expressed misgivings about abandoning the right of appeal to the Privy Council. The Law Lords have personified a historic link with the originators of the Treaty of Waitangi, even if they have taken their cue from the New Zealand Court of Appeal on modern interpretation of that document.

Maori were not alone, of course, in their reluctance to lose the right to refer disputes to London. Business groups have doubted the wisdom of removing an international benchmark from our courts and questioned whether this country has the judicial quality to provide a supreme court of comparable calibre to the Privy Council. But Ms Wilson appears to have listened more closely to the concerns of Maori.

Of the five judges on her proposed court, two might not necessarily be the best jurists available. The office of Chief Justice has never claimed to be awarded to the best on the bench. It has been an administrative position primarily. Another of the Supreme Court panel will be a specialist in Maori knowledge. And the proposal to add a specialist in that field to the advisers on all the court's appointments suggests Maori considerations are to play a larger part in general lawmaking than they have hitherto.

This is the element that needs much more public discussion. Ms Wilson's Supreme Court proposal looks now like much more than a repatriation of our highest court of appeal; it could be the vehicle for significant constitutional change. If so, it should be an honest vehicle, not a Trojan horse.

Judges, appointed for life, are largely immune to public opinion, yet their role - interpreting and clarifying legislation as well as setting common law precedents - gives them considerable legislative power. Parliament can overrule them but, on sensitive issues, most MPs can be content to let the courts take the lead. The result is legislation by stealth.

The treaty "partnership" principle has arrived in law by that route. But more general constitutional applications of the principle should be clearly explained and subject to closer political examination. If the decision to replace the Privy Council now serves a larger agenda, the Government should have the courage to say so and seek a proper mandate.