Lawyers warn against race-based appointment to proposed Supreme Court

By FRANCESCA MOLD political reporter

It would be "dangerous" to appoint judges to the proposed new Supreme Court just because they were Maori, a prominent group of lawyers has warned.

The Bar Association yesterday criticised an advisory group report that said someone of Maori ancestry was likely to be appointed to the new court because at least one member needed to be expert in Tikanga Maori (Maori custom).

A Parliamentary select committee is examining new legislation to cut New Zealand's link with the London-based Privy Council and establish a home-grown Supreme Court.

At a hearing yesterday, the Bar Association's president, Robert Dobson, QC, said there should be no need for "positive discrimination" because the court should have an overall expertise in Maori issues.

"If somebody has to be there because of that attribute, our concern is that perhaps the rest of the standards for appointment have to be compromised."

Bar Association council member Mary Scholtens, QC, said it was up to counsel to fully brief the court on Maori issues if they were pivotal to a case. The court also had the power to appoint an expert if it needed extra advice.

Association surveys showed most members wanted to keep the link with the Privy Council. But about 90 per cent of the 193 members who returned questionnaires said if it was abolished, it should be replaced with a Supreme Court.

The survey also found that 82 per cent were against appointing judges for expertise in Tikanga Maori rather than qualities such as legal and analytical skills, personal integrity and experience.

Opposition MPs yesterday questioned submitters about how to ensure appointments were not politically motivated, given that they were made by the Attorney-General.

The Law Society, which is neutral on the general issue of the abolition of the Privy Council link, said it was confident there was no major problem with political appointments in New Zealand.

But society president Christine Grice said there should be a statutory requirement for the Attorney-General to consult the Chief Justice, President of the Court of Appeal, senior High Court judge, solicitor-general, Law Society and Bar Association on the first appointments to the new court.

"It's important these first judges are without any perception of taint," she said.

Opposition MPs suggested all political parties should be consulted on the appointments or they should require a 75 per cent majority vote in Parliament. But Ms Grice said this would turn the process into a "political hot potato".

The Law Society said any replacement body for the Privy Council must be of high quality. There should be seven judges rather than five and the transition period should be extended so that any cases before the courts now would have the right of appeal to the Privy Council.

The Federation of Maori Authorities, which represents up to 150 land-owning trusts, Maori incorporations, runanga and trust boards, yesterday spoke out against the move to a Supreme Court.

It said that abolishing the Privy Council link was a fundamental constitutional change that required full public consultation and a referendum.

The Privy Council was important in terms of deciding Maori cases, which were often against the Crown and involved constitutional rights.

The federation said there should be constitutional safeguards for dealing with the Treaty of Waitangi before any changes.

The Council of Trade Unions told the select committee that ending appeals to the Privy Council would affirm New Zealand's identity as a developed, democratic and independent nation.

But the Business Roundtable said the Government should not rush a decision, and Business New Zealand, which represents employers and manufacturers, said the bill should not proceed.