Margaret Wilson: Confident of our ability to be responsible for courts

COMMENT

Mr Gavin Ellis,

Editor-in-chief,

The New Zealand Herald,

AUCKLAND

Dear Mr Ellis:

Stop for a moment and imagine that the Government proposed a court reform by which the highest court would be moved to a different country and most New Zealanders would be barred from taking a case.

It would be perfectly understandable if editorials of outrage graced every front page, talkback switchboards overloaded and petitions of protest sprang up on street corners.

A remote and inaccessible final court of appeal is not a hallmark of a modern democratic society in which justice must be done and be seen to be done.

The Supreme Court will give all New Zealanders, for the first time, the chance to have their case heard at the highest level.

This has been denied to many up to this point - a fact often forgotten in debate lately. How many litigants have missed out - in the areas of family, criminal, employment and environmental law - because our justice system made it difficult or impossible to take a case to that level?

How many others might have benefited from the legal precedents flowing from those judgments?

It is not right that a final court of appeal be available only to a privileged few. New Zealanders recognised that 100 years ago. The then Chief Justice and former Prime Minister, Sir Robert Stout, called for our infant nation to rethink sending its appeals to the Law Lords.

Soon after, East Coast Maori petitioned Parliament to direct Maori land appeals to New Zealand courts with New Zealand judges who understood local conditions.

In 1978, the Royal Commission on the Courts examined the question of a New Zealand final court of appeal.

In 1983, the Prime Minister of the day, Sir Robert Muldoon, acknowledged the time was coming when our use of the Privy Council would cease.

In 1989, the Law Commission report on the structure of the courts supported the end of appeals to the Privy Council.

Over the past 20 years, successive attorneys-general have highlighted the need for change. For seven of the past 10 years, governments have developed proposals to replace Privy Council appeals.

In 1996, the National Government introduced legislation to that effect.

In 2000, I published a discussion document canvassing options. Public submissions gave a clear message - if the Privy Council was to be replaced, there needed to be a clear, distinct and independent two-tier court structure above the High Court.

A ministerial advisory group then identified the key features such a court should have, and that advice formed the basis of the Supreme Court Bill. A parliamentary select committee then held extensive hearings on the bill, completing a four-year process of consultation on the role and structure of New Zealand's supreme court.

Throughout the debate on the bill, little has been said about the real reasons the time has not only come but is overdue to establish our own final appeal court.

When the Court of Appeal was established in 1957, it was intended to be the final court of appeal in most cases. Limited appeals to the Privy Council were retained for rare cases. The Court of Appeal was intended to correct errors of the lower courts, but it was also to clarify and develop the law.

As the Court of Appeal's workload increased, the latter functions have been increasingly difficult for the court to perform. As a result, not only have an increasing number of litigants been denied the opportunity to have their case heard at the highest level, but the development of our law has been stifled.

The Privy Council cannot fulfil this function for us because of the narrow range and limited number of cases it hears and, most importantly, because of its lack of understanding of the context within which cases arise.

The Opposition has suggested this problem can be overcome by all cases going to the Privy Council. They argue it would be cheaper because it is subsidised by the British taxpayer. This argument is a fallacy because it assumes this could happen.

The past 50 years have seen significant changes in Britain, the Commonwealth and New Zealand to the extent that the Privy Council faces an uncertain future.

Commonwealth countries have withdrawn from its jurisdiction, or are withdrawing. Only Mauritius, Brunei and the Bahamas continue to appeal to the Privy Council. Tuvalu and Kiribati have not taken a case there in 30 years.

There is now urgency for New Zealand to take responsibility for its final appeals. Britain has been shrinking the Privy Council's jurisdiction and moving domestic cases into its mainstream courts system.

The House of Lords is to be abolished and replaced by a new Supreme Court, and the court will take on even more of the Privy Council's caseload.

Already lobbyists are calling for the end of colonial-era appeals to the Privy Council and a stop to Britain's top judges taking on the extra workload of Privy Council cases.

These changes make nonsense of the Opposition's promise to reinstate appeals to the Privy Council. I doubt that Britain would resurrect the remaining trappings of colonialism, especially at a time when it is turning firmly towards Europe.

The rest of the world believes New Zealand is more than ready for its own Supreme Court, and I believe most New Zealanders agree.

The impartiality and quality of our judges are recognised throughout the world. We should be proud of our tradition of respect for judicial independence and our culture of non-partisan appointments.

The Commonwealth Secretariat has commended New Zealand for the clarity of the Supreme Court legislation and for the public consultation that has taken place.

New Zealand competes on a global footing in so many respects, and we should have confidence in our ability to take full responsibility for our courts.

Sincerely,

Margaret Wilson,

Attorney-General