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John Tamihere: The cost of British justice


John Tamihere: The cost of British justice

If you happen to be thinking of taking a case to the Privy Council, you'll no doubt want to pay attention to the following Tamihere Tight-arse Tips, because you'll definitely be needing them.

To take a case to the Privy Council, you need to take a lead solicitor, a lead barrister, and a support team - in our case it was myself, Uncle Jack Wihonga, and a trustee to support Uncle Jack, because he was elderly and a bit crook.

It costs a lot to get all these people to a court 12,000 miles away. To get the cheapest deal, we got flights that went Auckland to LA, LA to Chicago, Chicago to Toronto; and Toronto to London. Which was damn near the end of Uncle Jack, but he got there.

It would usually cost 450 pounds a night for us to stay in the Privy Council's neighbourhood in London, but I was lucky enough to bump into a pack of Yarpies, and of course I was obliged to give them a bit of flak about their rugby team. In the course of these discussions, they put me on to a 140 pounds-a-night hotel deal through a mate. This meant Uncle Jack and the trustee got twin beds; I got the couch. Of course our less financially embarrassed opponents were staying in a flash hotel.

Food is also outrageously expensive in London. However we mitigated dining expenses by having breakfast included as part of the deal. As we all know, breakfast is the most important meal of the day, and a good breakfast can eliminate the need to eat anything else till dinner time. Watching the trustee make a hole in the hotel breakfast buffet was like watching a mobile sawmill go to work, only with crumbs instead of sawdust coming out the back.

Any dietary shortfall was countered with the excellent fish and chips on sale at Victoria Station for a mere two pounds forty. That's all we ate the whole time (an added benefit of the 100 per cent haddock and chips diet is that no one will go within three rows of the plane toilet on the way back, ensuring you get a whole row to stretch out on yourself.)

But even allowing for such entrepreneurial cost-savings, the two trips we made to the Privy Council still cost us the thick end of $1.2 million. The system requires you to brief British solicitors - and those guys don't come cheap, in our case tens of thousands of pounds.

I estimate that only a lucky 3-5 per cent of Kiwis would be able to muster the backbone and resources to take a Privy Council case. For me the main argument against retaining the Privy Council is one of access - and an unaffordable court is an inaccessible court.

And the difficulties don't end with cost. Though our fisheries allocation case had been rolling on for about 10 years by the time it got to the Privy Council, they were starting off from a zero knowledge base on what an iwi was, or what tikanga was, or anything of the legal and historic background which led to our case. It's no insult to the British law lords; it's a simple fact of geography and upbringing that makes it extremely unlikely that a judge on the other side of the world will have a thorough knowledge these matters.

And our experience disproved the myth that the Privy Council is great for Maori. In 1996 we had won our case in the Appeal Court, and iwi appealed against us to the Privy Council, which ruled that the case should go back to the High Court. We lost in the High Court in 1998, went to the Appeal Court and lost, and in 2000 appealed to the Privy Council, which upheld the Appeal Court decision. So not only did we have a bill of $1.2 million, we didn't get anything for it. . The Privy Council does not serve Maori well. It has heard only 16 cases of significance to Maori, dismissing 10, allowing four, and allowing two in part. Not a fantastic scorecard for Maori. But all New Zealanders, not just Maori, will gain if the Privy Council is replaced by a New Zealand-based Supreme Court.

We no longer suffer the sort of cringing inferiority complex that convinced us that New Zealand couldn't produce legal minds that are the equal of those anywhere else. We are a proud nation perfectly capable of determining our own affairs.

The list of 16 countries which still have appeals heard by the Privy Council comprises 10 Caribbean nations, Bahamas, Kiribati, Mauritius, Tuvalu and Brunei (for civil cases only). Without wishing to offend any Tuvaluans or anyone else, I suggest New Zealand sits a little oddly in this company. Even the Caribbeans are planning to dump the Privy Council.

It's time to shrug off the last of the cultural cringe and accept our country's final court of appeal belongs here in New Zealand, made up of New Zealanders.


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