Helen Clark: Nation ready for its own highest court

COMMENT

There has been nothing rushed about moves to provide for New Zealand's final court of appeal to be located in this country. On the contrary, it has been a long and considered process, with ample opportunity for all interested parties to have their say.

The Government has listened to the arguments, and believes it is time for New Zealand's judicial system to come of age and take responsibility for its own courts.

To characterise this change as a "legal steamroller", as the Herald did, is well wide of the mark. It has been a democratic decision-making process pursued openly and in good faith with the electorate.

The idea of severing ties with the Privy Council in London and setting up a New Zealand Supreme Court, sitting above the Court of Appeal, was raised about 20 years ago by Jim McLay and Sir Geoffrey Palmer. Successive Labour and National-led governments have addressed the issue during that time.

In June 1996, the then National Party Justice Minister, Douglas Graham, introduced a bill that would have abolished Privy Council appeals and created two levels of appeal within the Court of Appeal. The bill lapsed after that year's election because National's coalition partner in the first MMP Parliament, New Zealand First, did not support it.

When the Labour-led Government took office in 1999 it revived public debate about the structure of the country's court system. In December 2000 a discussion document was issued on the subject.

Douglas Graham's idea of two levels of appeal within the Court of Appeal was canvassed in that discussion document, but did not find favour. A majority of submissions emphasised the need for an independent two-tier appellate structure above the High Court if New Zealand ties with the Privy Council were severed.

The Government underwent a major consultative exercise in 2001 and last year to canvass opinion on changes to the courts' structure. We met extensively with Maori in 2001 to discuss proposals, and a ministerial advisory group was set up to examine the issues.

Labour's policy to bring the top level of appeal in the court system back to New Zealand was in our election manifesto last year, so that voters could take it into account.

When the Supreme Court Bill was introduced to Parliament last December, it was the culmination of two years of formal consultation and development, which included receiving 70 submissions from the public.

In June this year, the Government again consulted Maori about the courts' structure at a national hui at Taupo. Once the Supreme Court Bill came before the House, nearly 300 individuals and organisations made submissions to the parliamentary select committee considering it. Nine months after its introduction, the bill was reported back to Parliament, where it has clear majority support.

The National Party has flip-flopped on this issue. A number of National MPs who voted for the 1996 bill now profess to be opposed to the Supreme Court Bill. They include Bill English, Lockwood Smith, Maurice Williamson and Murray McCully - all members of the Cabinet that decided to proceed. Peter Dunne was also in the Cabinet at that time.

Other MPs who voted in favour then and now profess opposition include Roger Sowry, Tony Ryall, Nick Smith, Clem Simich, John Carter and David Carter. National's courts spokesman, Tony Ryall, was clearly still supportive in December 2000 when he welcomed the Government's discussion document, saying: "New Zealanders should feel confident in our own abilities to administer justice fairly for all New Zealanders."

Those National MPs need to explain to New Zealanders why this year they oppose the Supreme Court Bill when they were previously supportive of ending appeals to the Privy Council. I have to conclude that petty politics are involved.

Establishing the Supreme Court is an important change, but not major constitutional change as Opposition MPs and some media assert. It is a shifting of the top level of the court system to New Zealand, not an abolition of a right of appeal. It is an expression of confidence in our judiciary's ability to do the job for our independent and sovereign country in the 21st century.

A change of this kind does not call for taxpayers to spend $10 million on a referendum. Parliament is perfectly capable of making decisions on this matter.

Lord Cooke of Thorndon, who served with distinction on the Privy Council, has said Parliament has to take responsibility for the change, as it always has with matters of court structure.

The new supreme court will improve access to justice for all New Zealanders. It will be easier for ordinary people to pursue their legal rights at the highest level. Nobody will have to pay the steep cost of a lawyer travelling to the other side of the world to represent them at our highest appellate court.

Canada abolished all appeals to the Privy Council in 1949, South Africa in 1950 and Australia in 1986. Caribbean countries plan to withdraw by the end of this year, leaving only New Zealand - until the passage of the Supreme Court Bill - the Bahamas, Brunei, Mauritius and Tuvalu.

Few proposals that come before Parliament have been consulted on more thoroughly than this one. There is no question that Labour sought a mandate for the change when it campaigned last year for re-election.

If our country is not ready to take responsibility for its own judicial system in the 21st century and 163 years after colonisation, when would it ever be ready? I rest my case.

* The Herald continues to hold the view that the Supreme Court Bill represents a fundamental change to the legal and constitutional systems of New Zealand. The Government lacks a credible mandate to pass the legislation and the proposal for selection of judges is too narrowly based. - Editor-in-chief.