Ruling on the side of caution

Dame Sian Elias listens to submissions with Thomas Gault (left) and Sir Kenneth Keith. Picture / Mark Mitchell

Lawyers often give the "Chou En Lai" response when asked about the emerging character of the Supreme Court.

Chou En Lai, China's Foreign Minister under Mao Tse Tung, is famously said to have responded to a question about the impact of the French Revolution with "it's too soon to tell".

Caution is forgivable in judging the Supreme Court which, after all, has been open for hearings for just short of a year. But some conclusions can be drawn from its small body of work.

Its decisions have been mainly unanimous and mainly conservative. It has done nothing overt to rock the boat, nor has it shown any timidity.

Its boldest decisions have related to the case of Ahmed Zaoui, the Algerian refugee who was held for suspected links to terrorist groups.

Of the court's 12 hearings, two of them have been about Zaoui - the most recent of which was released this week.

There were raised eyebrows when the Supreme Court in December last year claimed its "inherent jurisdiction" and itself granted Zaoui bail instead of handing it back to the High Court to do so.

While the judgment was viewed in the Government as a decision in search of a rationale, it was also quietly welcomed as an action that took the heat out of an unacceptably long detention. The court was able to do what the Government believed it could not lawfully do. The court was willing to assert its authority but because it got the Government out of a tight spot it is too soon to tell how assertive it might be in more contentious circumstances.

The potentially more contentious decision was the Zaoui judgment released this week.

The impact of that decision may lie further down the track, if the Inspector General of Intelligence and Security upholds the certificate and the Minister of Immigration has to contemplate deportation.

The decision gives the Crown the initial victory in agreeing that it is the Minister of Immigration, and not the Inspector General, who has to take into account Zaoui's human rights, for example, the right not to be deprived of life, and the right not be tortured.

But the court may have delivered a delayed victory to Zaoui.

It gives him possible grounds to appeal should the Government hold to the view that it has only three days to rely on an upheld certificate and deport him - which is the commonly held interpretation of what the law says.

The judgment separates out those steps and says though the minister has three days to decide whether to rely on a confirmed certificate by the Inspector General, "there is no pressing prescriptive time requirement" on the question of deportation. It says that there should be time to address issues of fact and judgment.

It also asserts Zaoui's rights to natural justice under provisions of the New Zealand Bill of rights and the International Covenant on Civil and Political rights.

Those statements will boost any claim Zaoui might make that the deportation process should be delayed so that he can be heard.

The court also took it upon itself to set down the circumstances in which the minister "as a matter of law" is prevented from deporting Zaoui or anyone else in similar circumstances.

It essentially said that even if the threat to national security was made out, the law prevented the minister from removing a person if protections under the Bill of Rights, the Convention Against Torture, and the International Covenant on Civil and Political rights were not satisfied.

The Zaoui cases appear to show that the court is happy to assert its authority and be strongly aligned with human rights law.

That position has been maintained by Chief Justice Sian Elias, but not all the others.

The court had the opportunity in a case involving a prisoner's challenge to his sentence to show how liberal it was. But Dame Sian was the only one to go down the road of human rights and international law, in what has been the court's only dissenting judgement so far.

Wellington lawyer Jack Hodder said there were good and bad aspects to the pattern of unanimous decisions.

"The good aspect is that you don't need to have read 10 decisions or hundreds of pages to work out what they're trying to say."

The bad news was that single judgments were treated like a statute. People pored over every meaning of every word believing that that must be the law "when in fact you can't do that in judgments".

Hodder, who also took the first successful appeal to the Supreme Court on behalf of the Act Party ejecting ex-MP Donna Awatere Huata from Parliament, said it was safe to conclude three things from the early life of the court.

"They are certainly not frightened to reverse the Court of Appeal and they have have done it several times.

"The second you can say is they have been very careful.

"The third thing you would say is that, on the whole, there have been no real surprises in their decisions, that is it looks like it is operating on a fairly conventional appellate basis."

There has certainly been nothing to match the scenarios painted by Opposition parties of a politically engineered bench hand-picked by the ideologically driven former Attorney-General Margaret Wilson, hell-bent on cutting New Zealand adrift from the Privy Council.

But the fear tactics were not without consequence: they forced the Government to appoint the entire Supreme Court on a strictly ranked basis, the most senior members of the Court of Appeal transferred up.

The Opposition also claimed that there would never be enough work for the country's best legal brains - unavoidably true in its early days.

The court has resisted the temptation to accept cases simply to justify its existence.

It has been weeding out the ordinary and the try-ons: it has refused leave to about 50 applicants to even bring their cases before it, including last week that of Lesley Jane Martin wanting to appeal her conviction for the attempted murder of her terminally ill mother, claiming the judge misdirected the jury and breached her right to a fair trial.

The criteria for appeals is that it involves a matter of general or public importance; that a substantial miscarriage of justice may have occurred or may occur unless the appeal is heard; or that it involves a matter of commercial significance.

About 20 cases previously adjudged by the Court of Appeal have been accepted by the Supreme Court for a hearing and of the 12 hearings held so far, 10 have been decided. Of those 10 cases, six have been allowed, and four dismissed.

It is generally accepted in the legal profession that the going rate of successful appeals is about 30 per cent.

And while it is too soon to tell if the Supreme Court's 60 per cent rate will be maintained, it will raise questions about the overworked Court of Appeal, which handles about 600 cases a year.

Labour MP Russell Fairbrother, adviser to Attorney-General Michael Cullen, and a barrister for 30 years, said the Supreme Court caseload was about what was expected.

"It validates having the Supreme Court because many of those, including some granted, would never have got to the Privy Council."

He also praised the judgments for their thoroughness and said they read like a "textbook - and I think that's what it should be.

"They are identifying the right cases to hear and they are clarifying areas such as the difference between fact and law on appeal and clarifying law of provocation in murder. They have the time to do the job properly.

"If they are only putting out 15 or 20 judgments a year, and five judges working on it you would expect good, coherent and well-researched decisions and that is certainly what you get here."

Of the 12 substantive cases heard, three have been criminal cases: one was reserved, one was dismissed and one resulted in a murder conviction being set aside and a new trial ordered.

Released this week on the same day as the Zaoui one, the court quashed the conviction of Aerengaroa Timoti who, in the High Court at Auckland, had been convicted of murder after setting fire to an occupied house in 1999. He had been acquitted on two attempted murder charges.

The case hinges around the defence of provocation and the Supreme Court ruled that there were several errors in the judge's summary to the jury, which may have deprived Timoti of a manslaughter verdict.

Some observers note that the court's decisions are turning on small points of law.

The most publicised case in that regard was the first, which ended Awatere Huata's tenure as an MP.

Relying less on complex arguments argued before it about why the MP no longer qualified to be an MP, it relied on the simplest of arguments, that she was an independent MP as a consequence of no longer being a member of Act, and therefore distorted the proportionality of Parliament. Outski, she went.

In the soon-to-expire party-hopping law, Parliament had given parties draconian powers to dismiss its MPs and the Supreme Court applied that draconian power. It resisted the temptation to ameliorate a bad law with a favourable decision for the "victim".

As it stands, it might be said that its debut year could be described as "so far, so good".