Editorial: Vote essential on replacing Privy Council

It is curious that Justice Minister Phil Goff should go to the trouble of rounding up support from all parties in Parliament for a bill to clarify procedures for home detention. This is a minister whose associate, Margaret Wilson, is prepared to abolish appeals to the Privy Council on the Government's simple majority.

Judges clearly need a corrective when convicts sentenced to home detention are being released without supervision - and absconding in at least one case - while their detention is arranged. It is good, too, that when the legislature steps into judicial affairs it does so in a non-partisan manner. But important as the home detention procedures may be, they are minor in comparison to the repatriation of ultimate judicial authority for this country.

The creation of an indigenous Supreme Court would be the country's most significant constitutional change since the adoption of proportional representation - by referendum. The idea of doing away with appeals to the Privy Council has been around for so long that possibly the Government imagines the subject has had ample public airing. But the issue has never produced a satisfactory consensus and the misgivings of many seem to be growing now that the Government has decided to proceed.

It is particularly disturbing that so many lawyers remain unconvinced that we have sufficient judicial calibre in this country to replace the quality of minds available to us in London. The Auckland District Law Society, in a submission to the parliamentary select committee this week, said New Zealand's small population made it impossible to produce enough judges of sufficient stature and ability to provide a second court of appeal.

The district law society said an indigenous Supreme Court would draw the best judges from the present Court of Appeal, reducing the quality of that court and the High Court, which would continue to hear the bulk of appeals from courts below. Even worse, the proposed Supreme Court would be stacked with judges who were not necessarily the cream of the present crop but owed their appointment instead to the political colour of the Government.

It has deeply disturbed the district law society, and many non-lawyers, that the party in power will be able to appoint all five members of the highest court. Margaret Wilson's proposed bench would include the Chief Justice and at least one expert in tikanga Maori. The suspicion arises that this Government believes ethnic and gender representation (as distinct from sensitivity) to be a prime consideration in judicial appointments.

The Auckland law society sees a risk of "unchecked judicial activism" in the court that would exercise the considerable legislative power available to judges who finally determine precedents, statutory interpretation and constitutional constructs such as the application of the Treaty of Waitangi. These are far-reaching powers to entrust to appointees who would hold their positions well beyond the life of the government that installed them.

If the Supreme Court proposal was to have much hope of passing a referendum, Margaret Wilson would need to devise a more reassuring method of appointing the judges. And the advocates of change would need to make a case more convincing than their usual emotive appeals to national pride. It is a foolish and immature nation that sacrifices a superior source of wisdom simply for the sake of self-esteem.

We need to be convinced that the fears of many in the legal profession can be allayed. And we must be entrusted with the decision. A referendum has become vital.