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Supreme Court Bill Passes Select Committee

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Supreme Court Bill Passes Select Committee

The Justice and Electoral Select Committee has recommended that the Supreme Court Bill proceed with minor amendments. Committee chairman Tim Barnett has said that he believes that the evidence in favour of change is overwhelming. The United Future member joined Labour and Green MP's in supporting the legislation.

The committee received 316 submissions in all, the majority opposing the abolition of appeals to the Privy Council. As submissions were overwhelming against the proposed Bill, it can only be concluded that the committee has given significantly less weight to the evidence from opponents of the Bill than it has given that from supporters. Most submissions by Maori, the business community, legal fraternity, and concerned citizens have effectively been disregarded.

Nevertheless it is apparent that the Committee accepted that two of the government's major arguments for change- the costs of appeals to London, and better access to justice, were largely without foundation. It accepted that the cost of an appeal to the Supreme Court would be no less than the cost of a Privy Council appeal. The final cost of establishing the Supreme Court has not been calculated, possibly deliberately so since it is likely to be considerable, and a major argument against the new court.

Having abandoned the major arguments for change, the Government majority on the Committee ended up considering technical issues surrounding abolition, without seriously debating the merits of the abolition case. Possibly it recognized that there were no good arguments left, but felt obliged to endorse the Government's Bill.

Ultimately the Government seems to be relying on the narrow argument that appeals to the Privy Council are contrary to New Zealand's sovereignty. This argument is of course bizarre, although implicitly stated in section 3 of the Bill, which says that the purpose of the Bill is to "recognise that New Zealand is an independent nation with its own history and traditions". Is the Government not concerned that most New Zealanders, including Maori, regard appeals to the Privy Council as part of our shared heritage? Should we not retain appeals to the best court in the world, even if it is British? Does the Government believe that traditions of British origin are not worth preserving? Is not New Zealand, in common with every other country in the world, increasingly relying on international courts and tribunals? Or is New Zealand now to embark on a path to isolationism, and cultural and economic pariah status?

Government Abandons Arguments for Abolition

The Attorney-General was reported last month as saying that cost was not the driving force behind her decision to establish a Supreme Court. That is just as well, since the cost is a major argument against her new court.

As early as 2001 the Treasury warned that a proper cost-benefit analysis of scrapping the Privy Council, compared with setting up a domestic court, had not been done. It has still not been done. The Treasury also sensible asked where the idea of a Supreme Court had come from, since it had not been an option considered by the only formal consultation undertaken at that stage. It remains unclear why the Attorney-General was determined to proceed with creating a new court.

Ms Wilson said that it was necessary to cut appeals to the Privy Council to "increase access to justice, and develop law in New Zealand". The Attorney-General's plan must be the only instance where it has been argued that a court should be abolished in order to improve access to courts. The select committee has apparently not found these arguments convincing, yet has been unwilling to take the logical step of rejecting the proposal outright. The Bill has taken on a momentum of its own, despite significant opposition and the compelling arguments against the Supreme Court.


It has been repeatedly stated by Margaret Wilson that she would not accept overseas judges on the Supreme Court. Apparently she has now accepted that overseas judges would be necessary if the Supreme Court is to operate effectively. This concession is however totally inconsistent with the narrow nationalist agenda that is apparently behind the proposed court. If a mini international court has to be created in New Zealand, why not simply keep the Privy Council? It would be a lot cheaper, and would avoid the present controversy.

This week two Australian economists have been appointed lay members of the High Court. They have expertise that is unavailable in New Zealand. It is apparently acceptable to have experienced Australians sitting on the High Court, but not acceptable to have British judges in our top appellate court. Margaret Wilson was quoted as saying that "There needs to be a reasonable pool of experts available because there are relatively few economists with the requisite qualifications and experience in New Zealand. For this reason they tend to be vulnerable to a conflict of interest if called upon to sit as a lay member". It is refreshing to hear the Attorney-General acknowledge that the pool of talent is limited in New Zealand. It is a pity that she does not also recognize that the proposed Supreme Court is flawed for that very reason. It is even more important that our top appeal court has jurists of international standing, than it is to have experienced lay members on the High Court. The irony has apparently escaped the supporters of the Bill.


The Government remains determined to pass the Supreme Court Bill before the public gets the chance to vote on this matter. A major constitutional change, and this Bill is nothing less than that, must be achieved by consensus. It requires an absolute majority in Parliament, or public endorsement by way of referendum. The present Bill does not have the support of an absolute majority in Parliament. The opposition parties have reached rare unanimity in opposing the Bill.

A Bill of this importance should not be passed by the Government coalition alone, with or without United Future. Not only is the Supreme Court Bill opposed by all of the Opposition parties, but also by the majority of Maori, the business community, lawyers, and the general public. The Government has failed to generate consensus or widespread support for the Bill.

There are only two alternatives that the Government can now take. Either put the matter to the public in a referendum, or abandon the Bill. The Government may have tried to limit consultation, but the select committee has heard enough submissions from concerned members of the public to know that further consultation will only confirm that the community does not want the Bill to proceed. The Government does not want a referendum. The Bill must therefore be withdrawn.

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