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Appealing to history: the New Zealand Supreme Court debate
Published online by Cambridge University Press: 02 January 2018
Extract
For a New Zealander one of the odder tourist experiences available in London - and soon to disappear - was to go to the top of Downing Street, and after a brief word with the police officer at the gates, to be ushered in to watch a hearing of the highest court of (though not actually in) New Zealand. Beginning with the arrival of British settlers the Judicial Committee of the Privy Council served as New Zealand's court of final appeal. Sitting in the very heart of London it was possible to hear lawyers with New Zealand accents argue about places and concepts quite literally a world away.
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References
1. McGuire v Hastings District Council [2002] 2 NZLR 577, PC; the singing, and Lord Bingham's response on behalf of the Board, is reported at 585–586.
2. The first substantive hearings may begin in July 2004, though the Court may deal with matters preliminary to substantive hearings (for example, leave applications) from I January 2004. See s 55. (All references to sections of an Act are to the Supreme Court Act 2003 (NZ) unless otherwise stated.)
3. For the academic literature see: Bruce Harris ‘The New Supreme Court’ [2003] NZLJ 15; Richard Elkins and John Ip ‘Legislative confirmation and the Supreme Court’ [2003] NZLJ 151; Arahia Burkhadrt Macrae ‘The Declining Relevance of the Privy Council to Maori Claims’ [2002] AULR 950; Noel Cox ‘The abolition or retention of the Privy Council as the final court of appeal for New Zealand: conflict between national identity and legal pragmatism’ [2002] NZLR 220; Megan Richardson ‘The Privy Council and New Zealand’ (1997) 461 CLQ 908; Robyn Martin ‘Diverging common law: Invercargill goes to the Privy Council’ (1997) 60 MLR 94; Ronald Pol ‘Privy Council Appeals - the principle alternatives’ [1996] NZLJ 94; Sir Thomas Eichelbaum ‘Brooding inhibition - or guiding hand? reflections on the Privy Council appeal’ in P Joseph (ed) Essays on the Constitution (Wellington: Brookers, 1995); Sean Baldwin ‘New Zealand's national legal identity’ (1989) 4 Cant LR 173; Paul McHugh ‘The appeal of “local circumstances” to the Privy Council’ [1987] NZLJ 24; Philip Joseph ‘Towards abolition of Privy Council appeals’ (1985)2 Cant LR 273; Peter Bums ‘The Judicial Committee of the Privy Council: constitutional bulwark or colonial remnant?’ (1984) 5 Otago LR 503; Robin Cooke ‘Divergences - England, Australia and New Zealand’ [1983] NZLJ 297; and B Cameron ‘Appeals to the Privy Council - New Zealand’ (1970) 2 Otago LR 172. The key policy documents are: Appeals to the Privy Council - Report by the Solicitor-General to the Cabinet Strategy Committee on Issues of Termination and Court Structure (Wellington: Crown Office, 1993, which lead to the Courts Structure Bill 1996 (which, if it had passed, would have ended Privy Council appeals and left New Zealand with no second level appellate court); the Hon Margaret Wilson, Attorney-General Reshaping New Zealand's Appeal Structure - Discussion Paper (2000), available at http://www.crownlaw.govt.nz; Report of the Advisory Group: Replacing the Privy Council, A New Supreme Court (Wellington: Office of the Attorney-General, 2002), available at http://www.crownlaw.govt.nz; and Report of the Justice and Electoral Committee on the Supreme Court Bill (the JEC Report) (2003). available at http://www.clerk.parliament.govt.nz.
4. In this respect the process of constitutional reform in New Zealand is similar to that in the United Kingdom. Both countries lack any entrenched constitutional document (see also n 63 below), and so, as Foley argues (in The Politics of the British Constitution (Manchester: Manchester University Press, 1999)) in relation to the United Kingdom, constitutional issues easily become just another aspect of the political debate. This dynamic is exacerbated in New Zealand where the proportional electoral system has lead to a Parliament in which seven different parties are represented. The non-government parties (of which there are currently five) not only have to differentiate themselves from the government, but also each other - the Supreme Court, for reasons quite distinct from its own merits, was clearly caught up in the competition between not only the government and the opposition, but also between the opposition (or non-government) parties themselves.
5. For a discussion of the provisions of the Supreme Court Act 2003 (NZ) and chronology of the reform process see Richard Comes ‘How to create a new Supreme Court: learning from New Zealand’ [2004] PL 59.
6. James Belich Paradise Reforged: a History of the New Zealanders from the 1880s to the Year 2000 (Auckland: Penguin, 2001) p 29. See also Michael King The Penguin History of New Zealand (Auckland: Penguin, 2003). esp ch 30.
7. Belich, n 6 above, p 548.
8. Belich, n 6 above, p 30.
9. Belich, n 6 above, p 547.
10. Joseph (1985). n 3 above, at 25.
11. Leaving only the issue of New Zealand's use of the Queen as its Head of State to be addressed.
12. Nandor Tanczos ‘Court bill window of opportunity’New Zealand Herald, 28 April 2003. See also the view of former Prime Minister and constitutional lawyer, Sir Geoffrey Palmer, who described the Privy Council as a ‘colonial relic … ill-equipped to remain as New Zealand's final appellate court’: reported in ‘Palmer sees little use for Privy Council’New Zealand Herald, 19 May 2003.
13. The JEC Report, n 3 above, p 56.
14. Joseph (1985). n 3 above, at 273.
15. I deliberately single out England because the underlying view indicated by this argument is the now outdated one which identifies all the of the United Kingdom as ‘English’; not taking into account the three distinct legal systems, or the possible divergence of the law in Wales. See eg the submission of the New Zealand Bar Association, referred to at n 34 below.
16. See discussion of New Zealand's distinctive legal culture in Baldwin, and Cooke, both n 3 above.
17. See discussion at p 218 below.
18. Joseph (1985), n 3 above, at 296.
19. Brenda Hale ‘Equality and the judiciary - why should we want more women judges’ [2001] PL 489 (emphasis added).
20. See generally, Diana Woodhouse (ed) The Pinochet Case: a Legal and Constitutional Analysis (Oxford: Hart Publishing, 2000).
21. See discussion by Louis Blom-Cooper and Gavin Drewry in Brice Dickson and Paul Carmichael (eds) The House of Lords: Its Parliamentary and Judicial Roles (Oxford: Hart Publishing, 1999).
22. See James Chalmers ‘Scottish appeals and the proposed Supreme Court’ (forthcoming, 2004) ELR.
23. David Robertson Judicial Discretion in the House of Lords (Oxford: Oxford University Press, 1998).
24. [2003] 2 All ER 977.
25. Eric Barendt ‘Free speech and abortion’ [2003] PL 580 at 580–581.
26. Barendt, n 25 above, at 591.
27. The JEC report, n 3 above, p 10.
28. See discussion in Peter Spiller ‘Lord Cooke of Thorndon as Lord of Apeal: The New Zealand Dimension’ (2002) 10 Waikato LR 55–46. Cf the deference the non-Scottish judges show to the Scottish judges in Scottish cases: see Chalmers, n 22 above; and Roderick Munday ‘Judicial Configurations - Permutations of the court and properties of judgment’ [2002] CLJ 612.
29. See discussion at pp 218–219 below.
30. The JEC report, n 3 above, p 13.
31. A further permanent judge may be appointed: s 17(1)(b). The Court's quorum for dealing with substantive matters is five judges: s 27(1).
32. And on 10 November 2003, the most senior four judges from the Court of Appeal were named as Justices of the Supreme Court. They are: Thomas Gault, Sir Kenneth Keith, Peter Blanchard and Andrew Tipping.
33. For example, by resisting attempts to restrict the courts' judicial review role via exclusion clauses.
34. New Zealand Bar Association Submissions in Respect of the Supreme Court Bill (2003) p 3.
35. Invercargill City Council v Hamlin [1996] 1 NZLR 513 at 519–520.
36. Lange v Atkinson [2000] 1 NZLR 257.
37. The United Kingdom case was Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010.
38. Langa v Atkinson [2000] 1 NZLR 257 at 262 (emphasis added).
39. Lunge v Atkinson [2000] 1 NZLR 257 at 263.
40. [2000] 3 NZLR 385, CA.
41. Richardson goes so far as to suggest that the Privy Council's deference to the New Zealand Court of Appeal may have been fuelled by a desire to secure New Zealand's continued use of the Privy Council. See Richardson, n 3 above, at 910.
42. Jack Hodder Submissions on the Supreme Court Bill (2003) pt V.
43. Cox, n 3 above. at 233.
44. See discussion in: Michael Kirby and Philip Joseph ‘Trans-Tasman Relations - Towards 2000 and Beyond’; and John Farrar ‘Closer Economic Relations and Harmonisation of Law Between Australia and New Zealand’, both in Joseph (ed) (1995), n 3 above.
45. John Tamihere ‘Maori verdict should back home-grown court’New Zealand Herald, 28 June 2003. John Tamihere is a leading advocate for urban Maori.
46. [1997] 1 NZLR 513.
47. Macrae, n 3 above, at 970. It should be noted however that while the Privy Council overturned the Court of Appeal, it did so only on the limited procedural ground that the Court of Appeal had failed to give the parties the opportunity to address it on the meaning of the term ‘iwi’. It referred the substantive question concerning definition back to the New Zealand courts - acknowledging its lack of competence in Treaty issues. A New Zealand-based Supreme Court would have been able to deal with both the Court of Appeal's procedural error and address the substantive question.
48. It was the National Party's reliance on the New Zealand First Party (which has always been opposed to ending Privy Council appeals) to form a government after the 1996 election which lead to it abandoning the Courts Structure Bill 1996 (see n 3 above).
49. Outside Parliament see the submission of the National Urban Maori Authority to the JEC.
50. The JEC report, n 3 above; and Macrae, n 3 above, at 969.
51. Macrae, n 3 above, at 971.
52. Macrae, n 3 above, at 970.
53. The JEC report, n 3 above, p 11.
54. Macrae, n 3 above, at 975, comments: ‘The New Zealand Court of Appeal has been more willing in recent times to recognise and enforce Maori claims that the Privy Council.’
55. Treaty Tribes Coalition v Urban Maori Authorities [1997] 1 NZLR 513. See n 47 above.
56. Treaty Tribes Coalition v Urban Maori Authorities [1997] 1 NZLR 513 at 522.
57. The JEC report, n 3 above, p 11.
58. The advice of the Crown Law Office is included in the JEC report, n 3 above, p 71.
59. Macrae, n 3 above, at 973.
60. The JEC report, n 3 above, p 13.
61. National Party minority report, in the JEC report, n 3 above, p 57. See also the submission of the New Zealand Bar Association, n 34 above, para 8.
62. Sir Thomas Legg QC ‘The Supreme Court’, a paper presented at a conference at the Cambridge Centre for Public Law entitled ‘Judicial Reform: Function, Appointment, and Structure’, 4 October 2003.
63. Although s 268 of the Electoral Act 1993 (which reserves other statutory provisions, eg, concerning the holding of regular elections, stipulating that they can only be altered by either a 75% majority in Parliament, or a 50% majority at an ordinary poll of electors) can itself be amended by a 50% majority vote in Parliament.
64. The Law Lords' response to the Government's consultation paper on Constitutional reform: a Supreme Court for the United Kingdom (2003) para 2, p 1. Cf the lengthier arguments in favour of reform made by Lords Bingham and Steyn: Lord Bingham of Comhill ‘A New Supreme Court for the United Kingdom’ 1 May 2001, University College London; and Lord Steyn ‘The case for a Supreme Court’ (2002) 118 LQR 382. And, against reform: Lord Cooke of Thomdon ‘The Law Lords: an endangered heritage’ (2003) 119 LQR 49; and the evidence of a number of former Lords of Appeal in Ordinary to the Royal Commission on Reform of the House of Lords. See generally: Charles Banner and Alexander Deane Off with their wigs! - Judicial revolution in modern Britain (London: Policy Exchange, 2003).
65. The Law Lords' response to the Government's consultation paper on Constitutional reform: a Supreme Court for the United Kingdom (2003) para 2, p 1.
66. See discussion at p 217 above.
67. Department for Constitutional Affairs Constitutional Reform: a Supreme Court for the United Kingdom CP 11/03 (July 2003) para 39, p 29, available at http://www.dca.gov.uk.
68. See discussion at p 217 above.
69. Of note here is the fact that the speed with which reform is taking place in the United Kingdom will most likely make it necessary to use a Sewel motion to deal with those aspects of Supreme Court reform which touch on the Scottish legal system (justice being a devolved matter); the lack of foresight to allow for a proper debate of the issue in the Scottish Parliament is lamentable. See the evidence of Lord Hope on 2 December 2003 to the Constitutional Affairs Committee, in particular His Lordship's response to Q289 and Q300, available at http://www.parliament.the-stationary-office.co.uk.
70. Cf discussion in the Judges' Council Response to the Consultation Papers on Constitutional Reform of the need to identify in legislation the respective roles of the judiciary and the government, paras 40–43, pp 14–15. The document is available at http://www.dca.gov.uk/judicial/pdfs/jcresp.pdf.