Ted Thomas: Referendum would be an embarrassment

COMMENT

Opposition to abolishing the right of appeal to the Privy Council and establishing a new Supreme Court continues in the form of a call for a referendum. It is time to put the matter to rest and seek to restore public confidence in an all-New Zealand judiciary.

There has been an element of near-hysteria in certain quarters relating to the Supreme Court Bill. The incidental damage to the judiciary has been severe.

The claim that the measure has not been adequately debated is startling. Abolishing appeals to the Privy Council was being discussed when I was a student half a century ago. Since then, the subject has been discussed many times over.

Jim McLay raised the issue 20 years ago. It was debated when Sir Douglas Graham introduced a bill in 1996 to abolish appeals to the Privy Council and provide for a final appeal within the structure of the Court of Appeal. That measure did not proceed, not because of public opposition but because New Zealand First vetoed it when becoming National's coalition partner following the election later that year.

The Law Commission in its published report on the structure of the courts in 1989 favoured a final court composed of New Zealand judges. This report followed extensive consultation.

Since 1999 the issue has been intensively canvassed. The Government issued a discussion paper on the topic in 2000 and consultations followed in 2001. This year the bill was open to public submissions before the justice and electoral select committee, and numerous submissions were made and reported in the media. To claim that the legislation was "steamrollered" through is farcical. The issue has been thoroughly thrashed.

I must allow, however, that this time round opposition to the abolition of appeals to the Privy Council has been marked by a fervour which was previously lacking. Extreme arguments have been marshalled by those to the far right and given a semblance of undeserved respectability.

One informed legal journalist has expressed puzzlement that an issue which lends itself to serious debate had been beset by so many far-fetched arguments.

An example is the assertion that the new Supreme Court will be stacked by the Attorney-General's "cronies" or, to use that weasel word, "judicial activists". Outside a small group of legal fundamentalists, few lawyers believe there is any possibility of this happening. It is scaremongering.

The call for a referendum is equally misguided. Certainly, the stridency with which it is being pursued is out of place.

Numerous changes to our constitutional arrangements and to the structure of the courts have been enacted without a referendum. Electoral reforms include the establishment of the Maori seats in 1867, the introduction of the secret ballot in 1870, universal male suffrage in 1879, a single election day throughout the country in 1881, an independent Representation Commission to redraw electoral boundaries after each census in 1887, and the abolition of plural voting in 1889. Most notably, in 1893 New Zealand became the first country in the world to grant the vote to women.

In 1947 Parliament shed its final legislative dependence on Westminster. No referendum was held. It is odd that our Parliament's ability to make laws free from the British Parliament is accepted but our judiciary's ability to interpret those same laws is not.

In 1950 a National Government abolished the Upper House - the Legislative Council - an institution which, unlike the right of appeal to the Privy Council, was established by the New Zealand's Constitution Act of 1852. There was no referendum. The same Government established the permanent Court of Appeal in 1953, again without a referendum.

Nor was a referendum contemplated when Sir Douglas Graham introduced the National Government's measure to abolish appeals to the Privy Council in 1996.

Some 39 Commonwealth countries have abandoned appeals to the Privy Council. As far as research can ascertain, none held a referendum. Ten Caribbean countries are also about to leave the fold, also without a referendum. What makes New Zealand so different?

Section 128 of the Constitution Act in Australia requires a referendum for any change to its constitution. No referendum was required when Australia abandoned appeals to the Privy Council in 1986.

Far-reaching reforms to the long-standing structure of the judiciary in Britain, including withdrawing a number of existing internal appeals from the Privy Council, are proceeding in that country without a referendum.

A sense of proportion is surely required before this country is plunged into the cost of a referendum. The diversion from hospital beds and school rooms of amounts much less than the estimated $10 million a referendum would cost is often laboured.

And it would be a costly referendum for what? To determine whether a right of appeal established in colonial times and exercised only 10 or so times a year (out of the 550-plus appeals decided by the Court of Appeal each year) should be preserved. And preserved in lieu of a structure which would give far more New Zealanders an effective and affordable right of appeal to a final court.

The suggestion that the abolition of the Privy Council and creation of a new Supreme Court is of such major constitutional significance that a referendum is required is overstated. Of course, the courts are part of the constitution of this country. But, as all the historic court-related instances show, that does not mean that a change to the structure of the courts necessarily has such constitutional significance that it must be subject to a referendum.

If the Privy Council was manned by New Zealand judges and the Government was proposing a restructuring setting up a new Supreme Court (as is happening in Britain) no one could sensibly suggest that the change was of great constitutional significance.

Nor is it sound to focus on the fact that the bill was passed by a slender majority. The issue was signalled in Labour's manifesto before the last election, and the importance of the manifesto in a system of representative government has survived the introduction of MMP.

Small majorities have, of course, beset governments in the first-past-the-post system as well as MMP. Under MMP, however, there is the added possibility that minor parties will adopt a position for what might be called "political" reasons. Political opportunism is not unknown.

But, in short, if the issue does not have the constitutional significance to justify a referendum, the size of the majority under MMP cannot vest it with that significance.

The focus of the Herald's backing for a referendum is the need to obtain broad public support for the establishment of the new Supreme Court. The paper's emphasis therefore differs from those who wish to maintain links with the Privy Council.

The Herald's fear is that, without the Privy Council, appointments to the Supreme Court will become politicised, and it suggests various options to meet this concern, such as the appointment of a judicial commission.

Of course it would be better if the new Supreme Court had broader public support. But for the purposes of a referendum, it is practically impossible to separate the question of what will replace the Privy Council from the question of whether appeals to the Privy Council should be abolished.

Rather than a referendum, the preferable course would be to accept that the abolition of appeals to the Privy Council is an idea whose time has come and urge the Government to establish a judicial commission to assist in the process of making appointments to that Court.

This is not to say that I support the detailed options suggested by the Herald. Both run the risk of in fact politicising appointments further rather than reducing that possibility.

Finally, I must clarify that I do not for one moment suggest that the issue is too complicated to submit to the people. Indeed, I believe the people would see through the clutter of suspect arguments that have been bandied about in this debate and assert their independence as a sovereign nation. My concern is to try to avoid further erosion of public confidence in the judiciary.

The demise of the right of appeal to the Privy Council is long overdue, and the call for a referendum simply perpetuates this country's embarrassment. What is good for the rest of the Commonwealth (except for the likes of Mauritius, Tuvalu, the Bahamas and Brunei) has surely long since been good enough for us. As with the other 39 countries that have dispensed with the Privy Council without a referendum, we should move on.

There can be no doubt that the new Supreme Court will be made up of judges of the highest judicial calibre, intelligence and integrity. They deserve the confidence of the public. That confidence can only be put at risk by the further desperate bid for an unprecedented, costly and unwarranted referendum.

* Ted Thomas, QC, is a retired judge of the Court of Appeal and a Privy Councillor. Before his appointment to the bench in 1990 he had practised commercial litigation for more than 30 years.