New broom of sweeping implications

By ROBERT DOBSON*

The Government's proposal to abolish the right of appeal to the Privy Council and replace it with a local final court of appeal represents a significant constitutional event, and would be irreversible.

Given its importance and the absence of any urgent need for change, it is hoped there will be wide-ranging and well-informed debate on the ramifications of change, and that this will not be left to politicians and lawyers.

The Supreme Court Bill draws extensively on the recommendations of a ministerial advisory group on the appropriate model for a new final appeal court.

The group was not asked, and did not venture a view, on whether appeals to the Privy Council should be abolished. It focused its recommendations on the preferable structure for a replacement should the Government decide to abolish present appeal rights.

Given that the ostensible reason for obtaining the report was to enable a better-informed debate about the respective merits of a new final court, as against retaining the Privy Council, it would be ironic if its recommendations were now treated as presenting the case for change.

Under the bill, final appeals would be decided by a Supreme Court of five New Zealand judges to be appointed by the Attorney-General. They would include the Chief Justice (at present Dame Sian Elias).

One concern raised already is the potential for the Government to appoint judges with philosophies sympathetic to its political agenda. The prospect is most tantalising on the creation of a new court: at one extreme, if the Government chose to appoint four members who have not previously been judges, it could indeed influence the policy approach and tone of the court for its first decade.

A parallel could be drawn with the importance attributed to an American President having the opportunity to appoint a single member of the United States Supreme Court.

Attorney-General Margaret Wilson has already announced that Sir Paul Reeves will participate in the appointment process. But without knowing more about criteria, especially for appointing those who have not been judges, his involvement may not be sufficient to allay concerns.

One certain way of avoiding this criticism would be to indicate that the other four positions would go to existing senior Court of Appeal judges. They have, after all (with one exception), risen through the ranks and can be presumed to be the best-qualified, on existing criteria, to be appellate judges.

Somehow that seems tame, unexciting and not in accord with the Government's new-broom approach. But the risk of the perception of political preference dictating appointments would seriously threaten confidence in the court.

The advisory group emphasised the concept of a court that reflected the diversity of society. It did not recommend any specific change to the appointment of judges but identified the need for a "robust, inclusive and transparent" process to ensure that confidence in the court was maintained.

The public are denied an opportunity to assess this issue unless a clearly defined policy is articulated.

Another important facet of the appointment process not reflected in the bill, but very likely to be reflected in the policy of its administration, arises out of the advisory group's proposal that at least one member of the court be well-versed in tikanga Maori. It observed that "the likelihood is that this will be a person of Maori ancestry".

This raises questions about the role of that person, particularly where the court is considering issues involving tikanga Maori, or the Treaty of Waitangi.

Are they an expert adviser to the court? Are their views on the matter to be deferred to? Will their advice be given in open court or behind closed doors? What if there is no one authoritative "Maori" view on the particular matter?

If that member of the court is appointed mainly because of their expertise in tikanga Maori, and might not otherwise have been appointed on merit, is it appropriate that he or she decide on matters not calling for that expertise?

On this issue, too, the Government should put its cards on the table.

A further issue is whether the court should involve senior or retired overseas judges sitting with New Zealand judges. This is seen as providing detachment, objectivity and the benefits of expertise of such judges in other jurisdictions.

Some opponents of change claim that overseas businesses are reassured about the quality and objectivity of commercial law decisions by the Privy Council.

But the advisory group recommended against overseas judges, citing a harmful influence on the collegiality of a New Zealand court and the difficult logistics in arranging their participation. No provision for them is made in the bill.

The bill contemplates that, with the leave of the Supreme Court, there will, for the first time, be an opportunity for appeals from specialist courts such as the Family, Environment and Employment Courts to be heard at the highest level.

The advisory group estimated the Supreme Court would hear between 40 and 50 appeals a year, excluding applications for leave. At present the Privy Council hears about 10 to 15 appeals a year from New Zealand.

Those in favour of retaining the Privy Council argue that there will not be 40 to 50 appeals a year which genuinely warrant a second appeal, and cynics add that a broader range of appeals has been proposed in order to justify the creation of a separate court.

Others are concerned that the breadth of possible appeals might denigrate the status of the court, and bog it down in issues that are inappropriate for a court of final appeal.

Potentially, a significant impact of the bill is that the Chief Justice would sit only as a member of the Supreme Court and would cease to have sitting rights in the Court of Appeal and High Court.

Although Chief Justices or heads of the Judiciary in other jurisdictions, such as Australia, Canada and the US, sit only as the presiding judges over those nations' highest courts, there are advantages for a country the size of New Zealand in having the Chief Justice presiding over important cases at first instance, as well as exercising a first - and second - tier appellate function.

There is considerable value in providing the head of the New Zealand Judiciary with regular opportunities to work at the High Court level and, perhaps more importantly, be involved in the judicial process at the point at which members of the public have a direct contact.

Arguably, this suits the needs of New Zealand society. As against that, if the new court were to comprise only five judges, all of whom sat on all appeals, it is unrealistic to expect the head of that court to also assume other responsibilities.

To many, severing links with the Privy Council may appear a relatively superficial, symbolic act signalling the final move to independence in sovereignty terms. To numerous interest groups likely to have a professional interest in the final determination of our most significant legal cases, it is seen as premature, for a range of reasons.

Ultimately, any reform should reflect the needs and aspirations of all New Zealanders, and the structure of our courts should deliver what is in the public's best interests.

It is hoped that informed and wide-ranging debate will occur and that the Government responds to the outcome.

A more detailed discussion paper is on the Bar Association website.

* Robert Dobson, QC, is president of the Bar Association.