Editorial: Stop this stunning abuse of power

The passage through Parliament of the Supreme Court Bill must be stopped in its tracks. To pass it into law would be an act of breathtaking arrogance. To assume that a wafer-thin majority is sufficient to enact fundamental changes to the legal and constitutional fabric of New Zealand is nothing short of an abuse of power.

No minority Government can assume, without broad mandate, the right to create a new court with standing second only to Parliament itself and responsibility to act as a check on Executive power.

That is what this legislation is really about. Abolition of the right of appeal to the Privy Council is only one of the issues. Equally important is the intention to create a new "supreme" court, one conceived by this Government and peopled in its entirety by judges that this Administration finds acceptable. And those judges will be there long after this Parliament has run its course.

The Government has tried to characterise the court as merely an administrative extension of the appeal process. It will be much more than that. It will be an institution with the ability effectively to mould law by interpretation and, if it has the complexion of Supreme Courts in other jurisdictions, those sitting on it will collectively colour the direction in which the law is interpreted.

It is for these reasons that the creation of a Supreme Court is too important to be left in the hands of a minority Government and a minor support party. A 63 to 57-vote majority simply does not give anything remotely approaching an acceptable mandate.

Has the Government given any thought to what this lack of authority will do to the standing of the court in the eyes of the public? It will not take long for people to do the numbers: six votes and six judges. It does not represent an overwhelming parliamentary endorsement of their office. Almost half the House does not think they should be there. Add to that the experience of the select committee that considered the bill. It reported back that 54 per cent of public submissions opposed the law change while 39 per cent backed the new Supreme Court. Three out of every four Maori submitters were against the change and only one out of 86 local bodies wanted Privy Council appeals abolished.

Again, where is the mandate?

When Canada and Australia decided to abolish appeals to the Privy Council, the path to constitutional change was vastly different. In both cases the federal nature of their government acted as checks and balances. In the case of Australia in 1986, the enactment of the Australia Act was the final one of seven acts of the seven Australian Parliaments needed for a constitutional change to the whole federation.

New Zealanders will be denied any of those constitutional restraints if the Government persists in its determination to push the Supreme Court Bill through.

An erstwhile ally sent the clearest of signals that it should rethink its strategy. United Future leader Peter Dunne summed it up: "Our concern all along has been that a major constitutional change of this type should occur only with significant public support."

There may well be sufficient public support for waving goodbye to the Privy Council, which is changing in ways that make it less and less relevant. But, as Mr Dunne belatedly suggests, this is not the way to do it.

What should happen is this: the bill should be dropped down the order paper and should stay there until an all-party constitutional conference (with Opposition parties doing more than playing politics) can consider ways in which it can be modified to gain the support of 75 per cent of the House.

That might be achieved if the method of selecting judges was more broadly based and transparent and those appointments also required endorsement by three-quarters of our members of Parliament. The price of support may also be a referendum.

This is a crucial test of the Labour Government. A test of its ability to use its power wisely.