Editorial: Let us have a national poll on new court

For a subject that supposedly is too hard for the public to decide by referendum, the abolition of appeals to the Privy Council continues to generate a great deal of public debate. In the past few weeks, as usual, views have been heard from assorted notable individuals, among them a former Prime Minister, Sir Geoffrey Palmer, a former Chief Justice, Sir Thomas Eichelbaum, and Arthur Allan Thomas, whose credentials on this subject need no introduction.

He is not the only contributor whose opinion is swayed by his fortunes before indigenous judges. A spokesman for Air New Zealand considered the company's success in overturning a decision against a claim on the Ministry of Agriculture demonstrated the need to retain the Privy Council. The woman who exposed the cervical screening errors of Gisborne pathologist Michael Bottrill would never have won a rehearing had she not been able to go to the London court.

A great number of New Zealanders would probably want to retain the Privy Council, at least for a little while, if they thought there was a chance that the Marlborough District Council might succeed with an appeal against the Maori customary rights to foreshore and seabed upheld last month by the Court of Appeal. Obviously this is not a question anyone should decide on the strength of one case but the number of cases that call the question to public mind suggests that this is not a subject that ought to be left to a Government decision. The constitution of the country's highest judicial authority is one of those fundamental decisions that can and should be made directly by voters.

Fortunately, they may get the chance. A citizens' initiative launched by MPs from three Opposition parties last week should not struggle for support. They have a year to collect the required 310,000 signatures - 10 per cent of eligible voters - and by then the Government might have pushed through its bill setting up an indigenous Supreme Court as our final forum of appeal.

But as one of the petitioning MPs, Act's Stephen Franks, has observed, it will take well over a year before the new court could be functioning and probably many years before the judges appointed from the Court of Appeal would not be at risk of hearing appeals from themselves. So the Privy Council will be needed for a few years yet. In any case, as Mr Franks says, what Parliament does can be undone by the next Parliament. That is one of the risks of making constitutional change simply by legislation.

The decision of a referendum would be much more likely to survive changes of government. But that is not the primary reason to make the decision by popular vote. The judiciary is one of the institutions we invest with power over us. It is as important to our rights and freedoms as the legislature and should be independently constituted as far as possible. We changed the system of election to the legislature by referendum; we should be similarly empowered to decide the character of our highest court.

It is strange that advocates of abolishing appeals to the Privy Council oppose a referendum on the specious grounds that the subject is too difficult for us. Their case for abolition is a simple one, easy to sell. They argue that abolition means "growing up as a nation", "standing on our feet", "cutting one of the last colonial ties". That argument has immediate appeal, particularly when we are reminded that we are in the company of a few Commonwealth microstates in retaining the services of the law lords.

The largest number of people in a Herald-DigiPoll sample (45 per cent) would vote to replace the council with our own court. But two out of three of those indicated they would like the chance to make the decision. Give it to us.