Editorial: Not too late for poll on new court

Sadly, the die seems now to be cast on the constitution of the court that will replace the Privy Council in New Zealand law. When a select committee of Parliament brought the Supreme Court Bill back to the House largely unaltered yesterday, the prospects of a referendum receded. Welcoming back her bill, Attorney-General Margaret Wilson happily noted that the select committee rejected calls for a referendum, along with a suggestion that overseas judges be added to the court or that a proposed alternative method be employed for appointing its members. So it seems the country will get a new court of final appeal devised by a bare majority of Parliament.

This is an unfortunate way to establish an institution that will be one of the pillars of our civil order. A country's highest court inevitably makes law in the course of deciding cases, interpreting legislation and reviewing the legality of actions of the executive branch of government. The power of the highest court is, of course, the very argument for ending appeals to the Privy Council. Such power, it is argued, should be repatriated if this is truly a sovereign state.

That simple argument, with its unabashed appeal to national sentiment and pride, would probably prevail in a referendum, as it seems to do in opinion polls. Yet it is the proponents of change who are averse to the public having a say. Plainly, their concern is not that voters would opt to keep the Privy Council but rather that a majority might have severe misgivings about the court that is proposed to replace it.

The Supreme Court will consist of the Chief Justice and other judges, at least one of whom must be well versed in tikanga Maori. The bench will be selected by the Chief Justice, the Solicitor-General and a layman, Sir Paul Reeves. Apart from the overt Maori dimension, the composition of the court and the method of making appointments do not look too different to present arrangements. Ms Wilson says she expects Supreme Court judges to be appointed from the Court of Appeal. "If the [selection] panel recommends differently," she said, "I will want to know why."

Many others will want to critically examine the selections regardless. Once the best (we hope) of our judges are given the standing of the Privy Council in our system, they will attract a degree of critical attention far beyond that given the present Court of Appeal, or indeed the law lords from this distance. One of the benefits of repatriating the court could be that its personnel become better known and their views and sympathies are publicly monitored.

The concern of many lawyers that this country might not possess a sufficient pool of high judicial talent has not swayed the select committee or the Government. But they, of course, are not the most frequent litigants. Commercial disputes give rise to most of the Privy Council's work from this country and business organisations sound not at all confident about the quality of decisions they will receive from an indigenous substitute.

The Government and the select committee have ignored those concerns too. Ms Wilson simply proclaims "the nation's ability to produce legal talent on a par with any in the world". That is not the quality of argument that should precede a decision of this kind.

The Government hopes to have the bill passed by Christmas and the court sitting within a year. It is a move that has been long enough in gestation; the previous two governments were also committed in principle to the abolition of appeals to the Privy Council, although they had not gone as far as to devise a replacement. A referendum at this stage could be an inconvenience but it is the least the subject deserves. Opposition parties intend to continue promoting a petition for a public vote, although it could not be binding. Even at this late stage, the public voice needs to be heard.