Margaret Wilson: Supreme Court Bill - First Reading Speech

Full text of a speech in Parliament today by the Hon Margaret Wilson, Attorney-General of New Zealand:

Mr Speaker, I move that the Supreme Court Bill be now read a first time.

I propose this Bill be referred to the Justice and Electoral Committee.

This is a significant Bill for everyone in New Zealand.

It establishes our final appellate court here, in New Zealand, for the first time. This means that after 162 years we will take responsibility for the determination of our own laws, both through Parliament and now through the Courts.

The Law Commission in its 1989 Report The Structure of the Courts, in which it recommended the establishment of a final Court of Appeal in New Zealand, stated:

"The underlying motive for ending Judicial Committee appeals is that the final New Zealand court responsible for clarifying and developing the law of New Zealand should be composed of senior New Zealand judges who are part of our community and closely familiar with our historical, social and legal history. Moreover they should be part of a permanent court, made up of judges regularly working together as a collegiate group. To repeat the point, it is now 30 years since we accepted in a broad way the proposition that we should have the final court actually sitting in New Zealand with permanent New Zealand members. A court with occasional members and drawn from outside New Zealand would contradict both those purposes."

The same Report reminded us of the origins of the Judicial Committee of the Privy Council. It was originally technically not a court at all but an adviser to the Queen in her Privy Council. It evolved out of the old Committee of Trade and Plantations, which originally heard petitions to the Crown from British overseas colonies. It was in essence a Committee for protecting commercial interests. So it is not surprising we have continuing support for the Privy Council from some sectors of the today's commercial community. The status of the original committee changed to that of a court, which it remains today.

It was never a Court however for the common people seeking redress and justice for wrongs done.

While most Commonwealth countries and territories once appealed to the Privy Council, most have now established their own final Court of Appeal. Of the commonwealth countries, only New Zealand remains along with the Carribean countries, the Bahamas, Brunei (for civil proceedings only), Kiribati, Mauritius and Tuvalu (for constitutional cases.) The Carribean countries are in the process of leaving. New Zealand is in an increasingly anomalous situation and it is time we took responsibility for our own Courts.

It is of relevance to note that the work and role of the Privy Council is also changing with much of its workload coming from appeals from British Professional Organisations, and devolution matters from Scotland, Northern Island and Wales. Just as the Privy Council is evolving, so must we. Just as the privy Council is more influenced by the European Court of Justice and European Directives, so are we more influenced by the precedents of the Australian, Canadian, and on occasions the United States Courts.

While it is important to respect the views of those who wish to retain the limited right of appeal to the Privy Council, it is also important to place its role in perspective. Since 1841 there have been approximately 277 appeals to the Privy Council, less than two appeals a year on average, of which 67 per cent were unsuccessful and 33 per cent successful. This percentage remains the same for appeals that involve cases broadly defined as commercial cases.

In cases involving Maori related issues there have been only 16 appeals since 1841. While in the early 20th century, Maori experienced some success at the Privy Council, in recent times, the appeals have not been so successful. There have been 5 appeals in the period 1993 - 2002, of which four were unsuccessful, and one was partially successful but the substantive matter was referred back to the High Court for decision. There is a reluctance on the part of the Privy Council to deal with matters that are seen as being uniquely New Zealand-related.

The development of jurisprudence on the Treaty and Maori related matters has been most influenced by our Court of Appeal with its knowledge of the community it serves.

This Bill represents a significant step in our development as a community. That is why the process cannot be rushed. Although the issue has been raised many times since the 1930s, this current process began with the Discussion Paper in 2000 and has progressed slowly through a process of consultation and discussion.

There are some who call for a referendum. The most democratic form of referendum is a general election. This matter was deliberately kept off the legislative agenda to ensure it could be discussed during the recent election, and it was discussed by those interested in the issue. It will continue to be discussed during the Select Committee process, which under our MMP form of Government now has a genuine influence on legislation.

Indeed I would argue that as a country we will get a more informed and genuine discussion of this issue through the Select Committee than any emotionally charged political campaign accompaning a referendum, which at the end of the day would not be able to consider the detailed composition, role and jurisdiction of the Court.

This Bill follows closely the recommendations of the Advisory Group that the Supreme Court comprise of five judges including the Chief Justice, who must have excellent legal skills, legal acumen and personal integrity, and an understanding of the diversity of the society on whom they sit in judgment. That Group and this Government have no doubt we have men and women more than qualified to sit on our Supreme Court, if for no other reason than our judges already sit in the Privy Council with distinction.

Cases will be referred to the Supreme Court by way of leave on the grounds that the appeal involves:
a. a significant issue relating to the Treaty of Waitangi or tikanga Maori; or

b. a matter of general or public importance; or

c. a substantial miscarriage of justice; or

d. a matter of general commercial significance; or

e. such a matter that is necessary in the interests of justice for the Court to hear and determine the appeal.

This Bill means that for the first time, ordinary New Zealanders will have access to justice in the highest Court of our land on any matter that falls within those grounds.

In conclusion, I want to thank all the many people who have contributed to the development of this Bill. Their input is reflected in the Bill as I am sure the contribution of submitters will also be when it returns to this House.

I commend the Bill to the House and reference to the Justice and Electoral Select Committee.