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Leader's LetterSeptember 2003
Retention of Appeal Rights to the Judicial Commission of the Privy CouncilThe Privy Council appeal system has worked effectively in New Zealand for well over 100 years at a minimal cost taxpayers. Reasons for fixing something that is not broken must be very compelling. Lord Cooke of Thorndon has described the retention of the right of appeal to the Privy Council as ‘eccentric’ and ‘an anachronism’ but wants overseas judges on the Supreme Court! What is eccentric about providing an important constitutional safeguard in a country, which has neither a written constitution nor an Upper House? What is anachronistic about the provision of a twotier system of appeal which is fundamental to the interests of justice and which allows the full development of legal argument? Lord Cooke’s suggestion that the proposed Supreme Court’s panel of judges should include overseas judges is contradictory and another reason for retention of the Privy Council which already provides that! What are the real advantages of this nation of four million people going judicially alone? Lord Cooke claims that including overseas judges ensures diversity and resists the tendency to be isolationist or inward looking. Precisely Lord Cooke. Precisely! It is the independence and geographical remoteness of the Privy Council that provides a detachment that ensures its decisions are free from local concerns and agendas. Anyone who suggests that those sorts of agendas do not get a run in New Zealand has not looked into the Winebox and the results of that infamous case. The talent pool available via the London body comes without the expense of running down the talents of the bench of our Court of Appeal. The opportunity for New Zealand’s best judicial talent to rub shoulders with some of the world’s best should not be overlooked. A decision to abolish the right of appeal to the Judicial Committee of the Privy Council is an important concern to all New Zealanders. It is one which cannot be discussed in isolation from the constitutional issues it generates. It is a change which may be part of a wider agenda that includes republicanism. All New Zealanders need to know that, and need to have the chance to express an informed opinion, and that is our major concern. The discussion paper: “Reshaping New Zealand’s Appeal Structure” was released around Christmas just over three years ago and was promoted as a review of New Zealand’s court structure. It is now being touted as a consultation document on the abolition of the Privy Council. Public consultation has been a sham. Select Committee meetings to receive submissions from the Maori community, for example, have been held not on marae, but in hotels. The whole exercise is being treated as an esoteric academic process. For many Maori the appeal right to the Privy Council is seen as a symbolic link to the British Monarch and as a protecting factor in relation to issues of concern, particularly those relating to the Treaty of Waitangi. The lack of real consultation is deplorable. A small group of academics in the current administration is hijacking New Zealand’s constitutional processes. They ignore public opinion at their peril. It is relatively easy to persuade a proportion of the population that an ‘old London institution’ should be done away with, especially as our population rapidly loses its British and Western connections. It is not so easy to come up with a soundly based replacement body that will continue to have the confidence of the public. Thus the case for a referendum on the subject; a referendum that follows an education campaign and opportunity for informed debate. The alternative is that the decision is taken by a small group with executive powers within a minority government and without mandate. Arguments that the issues are too complicated for a referendum to be held are arguments against democracy and are symptomatic of the ‘we know better than you’ regime that is creating a new New Zealand without so much as a ‘by your leave’. This is not the way to achieve the highest quality legal system and there is widespread concern that justice will not be done. The last word should surely belong to Lord Denning, one of history’s greatest and most colourful judges: “ justice is not only to be done, it must also appear to have been done.” New Zealand First, in conjunction with National and Act, has launched a petition to ensure the people of New Zealand have the right to decide, by referendum, whether the current Labour led Government should have the right to abolish our longstanding legal right of final appeal to the Privy Council in London. If you would like to sign the petition please:
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