Nandor Tanczos: Court bill window of opportunity

The move to a New Zealand Supreme Court, ending the right of appeal to the Privy Council, is part of a process of decolonisation.

It signifies a desire to chart our own course as a Pacific nation taking account of international, as opposed to imperial, law.

Whether we view it with excitement or with fear depends to some degree on where we stand on this wider issue.

The Green Party has been supportive of this process, voting with the Government to send the bill to a select committee. Following the consultation rounds, a full and unhurried select committee process is crucial to allow the people of New Zealand to have a say.

Some have suggested we need a referendum. While this is superficially attractive, it is no answer.

The last NBR poll, for example, indicated that 51 per cent of people support ending appeals to the Privy Council, 28 per cent oppose and 21 per cent are unsure or say it depends. Depends on what? Referendums are unable to tell us.

More useful is to allow considered submissions to be made by anyone who wants to. That is what the select committee is doing.

The Green Party has made it clear that a condition of our support is that select committee hearings allow time for proper consultation.

We have also suggested that hearings be held outside Wellington, on marae and in places accessible to the Pakeha community.

While the date for submissions has closed, the committee is likely to be open to receiving late submissions. A simple letter to the justice and electoral select committee outlining your view is enough to have a say.

Some Maori are sceptical of receiving justice from a settler court. Yet Arahia Burkhardt Macrae states in the Auckland University Law Review that the Court of Appeal has been more pro-active than the Privy Council in recognising the Treaty of Waitangi and Maori claims in general.

In any case, the bill would not take away a right to appeal directly to the Sovereign.

Some people feel that we have too small a pool from which to draw the judges, and that we lack the necessary depth of expertise.

There is also a fear that social and political loyalties will influence judicial decisions.

Coupled to this is concern over the proposed appointments process, with its perceived potential to stack the bench.

These are real questions that the select committee must deal with. But of the 16 independent states that allow appeal to the Privy Council, 10 are planning to establish a Caribbean Court of Justice this year. The other five nations are the Bahamas, Brunei, Kiribati, Mauritius and Tuvalu. Even the English do not, in general, have a right of appeal to the Privy Council. The status quo cannot last.

In any case, a look at the small pool from which the Privy Council judges are drawn is instructive.

Only three people of colour have sat on the Privy Council, all from the Caribbean. And our own Chief Justice, Sian Elias, has been the only woman.

Ultimately, all judicial appointments are political, including those to the Privy Council.

In New Zealand, we have kept partisan politics to a minimum in these matters. This is not, as some argue, simply because of the disciplinary role of the Privy Council. Some advantage could still be gained from stacking the New Zealand courts but, as with other kinds of appointments, it is rare in practice.

Why not a Pacific Supreme Court? The idea has merit and some support here, but may not have much support among other Pacific nations at this stage.

Of more immediate interest is the example of the Hong Kong Final Court of Appeal. It has an overseas panel of judges, one of whom sits on every case. Lord Cooke of Thorndon has explained their role: " ... in appropriate cases, a function of a judge from other common law (that is, British derived) jurisdictions is to give particular consideration to whether a proposed decision of this Court is in accord with generally accepted principles of the common law."

By incorporating an overseas panel into our Supreme Court, we could make use of wider legal expertise in particular areas, while guarding against excessive insularity. Potential difficulties in finding suitable judges should not make us bar the possibility.

Lord Steyn, who sits on the Privy Council, referred to the potential of an overseas panel and to the opportunity this bill provides to clarify the constitutional status of the Treaty of Waitangi.

It is these kinds of possibilities that make the Supreme Court Bill a chance to be seized rather than a danger to be feared.

* Nandor Tanczos is a Green MP.