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The Privy Council and New Zealand

Abstract

Historically, New Zealand has indicated an ambivalent attitude to the Privy Council. The appeal has existed for New Zealand since the Supreme Court was established in 1841 and the first case on appeal was heard in 1849. But, as early as 1903, the Bench and Bar protested against the judgment of the Privy Council in Wallis v. Solicitor-General as showing ignorance of New Zealand law and social conditions.

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1. R v. Clarke (18491851) N.Z.P.C.C. 516.

2. (1903) N.Z.P.C.C. 23.

3. (1903) N.Z.P.C.C. 730.

4. idem, p.759.

5. Supreme Court Amendment Act 1949 (Can. 2nd sess.) c.37. Criminal appeals had already been abolished in 1933, shortly after the Statute of Westminster: see Criminal Code, s.1024(4).

6. See Privy Council (Limitation of Appeals) Act 1968 (Cth), Privy Council (Appeals from the High Court) Act 1975 (Cth), Australia Act 1986 (Cth).

7. See “The Late Sir Michael Myers: Tributes to His Life and Work” (1950) 26 N.Z.L.J. 118, 119.

8. Cameron , “Appeals to the Privy Council—New Zealand” (1970) 2 Otago L. Rev. 172, 179. Approximately 15 New Zealand judges (one every 2 years) have since sat on the Privy Council.

9. Idem, p.183. The statement was an exaggeration since Malaysia, Singapore and Hong Kong still retained the appeal (Malaysia abolishing the appeal in 1982 and, more recently, Singapore abolished it in 1994). Australian States also retained the appeal until 1986: see supra n.6.

10. See Law Commission, The Structure of the Courts (R 7, Wellington, 1989).

11. Idem, p.2.

12. Judicature Act 1908, s.56B and District Courts Act 1947, s.29.

13. [1989] 1 N.Z.L.R. 422.

14. [1991] 1 N.Z.L.R. 27.

15. Commissioner of Inland Revenue v. Databank Systems Ltd [1990] 3 N.Z.L.R. 385; Minister of Energy v. Petrocorp Exploration Ltd [1991] 1 N.Z.L.R. 641.

16. Cameron, op. cit. supra n.8, at p. 178.

17. Appeals to the Privy Council: Report of the Solicitor-General to the Cabinet Strategy Committee on Issues of Termination and Court Structure (Crown Law Office, Wellington, 1995).

18. Idem, pp.13–18 and, further, pp.27–28.

19. See Courts Structure Bill 1996. The history of the bill is described in a “Post-Election Briefing Paper” (Ministry of Justice, Wellington, 10 1996), p.64.

20. The possibility had already been identified in Oct., before the coalition was formed: idem, p.65.

21. Solicitor-General's Report, supra n.17, at p.9.

22. [1997] 1 N.Z.L.R. 513.

23. Te Runanga o Muriwhenua v. Te Runaganui o Te Upoko o Te Ika [1996] 3 N.Z.L.R. 10.

24. See also with respect to Canada, Greenwood , “Lord Watson, Institutional Self-interest and the Decentralization of Canadian Federalism in the 1890s” (1974) 9 U.B.C.L. Rev. 244, 261et seq. and, further, Clarke , “The Privy Council, Politics and Precedent in the AsiaPacific Region” (1990) 39 I.C.L.Q. 741—although note that those writers both appear to claim that the Privy Council had deliberately (in the sense of this being its purpose) acted in those jurisdictions to preserve its role as a final appellate tribunal.

25. Databank, supra n.13, at p.428 (McMullin, Somers and Casey JJ concurring, Richard son J dissenting); Petrocorp, supra n.14, at pp.3436 (Bisson, Hardie Boys and Heron JJ concurring, Richardson J dissenting).

26. Petrocorp, idem, p.34.

27. Databank, supra n.15, at pp.392393; Petrocorp, supra n.15, at pp.655656.

28. [1986] 1 A.C. 240, 250251.

29. [1985] 1 A.C. 1000.

30. Harris , “The Privy Council and the Common Law” (1990) 106 L.Q.R. 574, 598.

31. Clarke , op. cit supra n.24, at p.746. See also McHugh, “The Appeal of ‘Local Circum stances’ to the Privy Council” [1987] N.Z.L.J. 23, 28.

32. [1987] 2 N.Z.L.R. 700.

33. Also held to be in excess of his powers in judicial review proceedings: [1975] 2 N.Z.L.R. 62.

34. Cato , “Privy Council: The Takaro Properties Case” [1988] N.Z.L.J. 110.

35. [1996] 1 N.Z.L.R. 513.

36. [1994] 3 N.Z.L.R. 513. In the majority were Richardson Cooke P, Casey , and Gault JJ, dissenting McKay J.

37. Supra n.35, at pp.519520 and see, similarly, Australia Consolidated Press Ltd v. Uren [1969] 1 A.C. 590, 641.

38. [1994] 1 A.C. 324.

39. Idem, p.338. For a critical comment on the ambiguous position in which the Privy Council judgment left the New Zealand courts, see Waters, “Proprietary Relief: Two Privy Council Decisions—A Canadian Perspective” (1995) 25 Can.Bus.L.J. 90, 92.

40. Solicitor-General's Report, supra n.17, at App.G.

41. Based on reported and unreported judgments of the Privy Council, only 2 out of 9 appeals succeeded in 1996, and 2 out of 8 in 1995: see Report of the New Zealand Judiciary 1996(Wellington, 1996). The proportion of 1 out of 4 successful appeals brings New Zealand below the average figures for Privy Council appeals allowed from Commonwealth courts (roughly 1 out of 3): see See Clarke op. cit. supra n.24, at p.755.

42. The years 1987–1997 have seen an unprecedented turnaround in the make-up of the Court of Appeal, with the retirement of 5 permanent judges (including Sir Robin Cooke, who is now Lord Cooke of Thorndon) and the appointment of 6 new judges to an expanded court of 7 permanent judges, not including the Chief Justice. Only Sir Ivor Richardson, now the President, remains of the Court of Appeal judges who decided the Databank and Petrocorp cases.

43. E.g. ASB Bank Ltd v. Harlick [1996] 1 N.Z.L.R. 655 (applying Barclays Bank plc v. O'Brien [1994] 1 A.C. 180 to deny relief based on undue influence where the presumption of reliance and trust between parents and child could not be established); Wellington City Council v. Woolwonhs NZ Ltd (No. 2) [1996]2 N.Z.L.R. 537 (applying Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223 to hold that the city council's ratings determination, involving proper consultation, compliance with statutory procedures, and a judgment in good faith as to the interests of the city, had not been “unreasonable”). Cf., however. Peninsula Watchdog Group (Inc) v. Minister for Energy [1996] 2 N.Z.L.R. 529 (holding invalid the minister's exercise of discretion to extend the time for five mining applications in the Peninsula area under s.109 of the Mining Act 1971).

44. Ryder , “The Demise and Rise of the Classical Paradigm” (1991) 36 McGill L.J. 309 and Risk, “The Scholars and the Constitution: POGG and the Privy Council” (1996) 23 Manitoba L.Rev. 496, 522.

45. Sir Michael Hardie Boys sat on Hamlin and the Chief Justice, Sir Thomas Eichelbaum, sat on Reid.

46. See Waters, op. cit. supra n.39 and, further, Beatson, “Proprietary Claims in the Law of Restitution” (1995) 25 Can.Bus.L.J. 66.

47. See especially supra n.36, at pp.523 (per Cooke P—although more prepared than the other judges to argue also that separate development of New Zealand law per se should be sufficient), 525–526 (per Richardson J) and 533–534 (per Gault J).

48. Post-Election Briefing Paper, supra n.19, at p.65.

49. See McHugh, op. cit. supra n.31 with reference to Nireaha Tamaki v. Baker (1902) N.Z.P.C.C. 371 and Wallis v. Solicitor-General, supra n.2.

50. See supra, n.3 and Cameron, op. cit. supra n.8, at p.176.

51. New Zealand Maori Council v. Attorney-General [1987] 1 N.Z.L.R. 641.

52. Te Runanga o Muriwhenua Inc v. Attorney-General [1990] 2 N.Z.L.R. 641 (fisheries); Taunui Maori Trust Board v. Attorney-General, [1989] 2 N.Z.L.R. 513 (coal).

53. Te Runanga o Te Ika Whenua Inc Society v. Attorney-General [1994] 2 N.Z.L.R. 20.

54. New Zealand Maori Council v. Attorney-General [1992] 2 N.Z.L.R. 576.

55. See New Zealand Maori Council v. Attorney-General [1994] 1 N.Z.L.R. 513.

56. In a third case the Privy Council refused leave to appeal from the Full Court of Appeal's judgment in Tairoav. Minister of Justice [1995] 1 N.Z.L.R. 411 that the government had made adequate provision for the promotion of the Maori option (to be registered on the Maori electoral roll) prior to the deadline for exercising the option in the run-up to the 1996 election: see Joseph , “Constitutional Law” [1996] 1 N.Z.L.Rev. 1, 9.

57. Supra n.22.

58. Idem, pp.521–522. The Court of Appeal's view was that the questions were clearly raised in the proceedings before it, brought to challenge an order of Anderson J in the High Court that the following issue should be determined before trial: “Is the Treaty of Waitangi Fisheries Commission, in the exercise of its power to allocate pre-settlement assets as set out in s.9(2) of the Maori Fisheries Act 1989 … required to allocate those pre-settlement assets solely to iwi and/or bodies representing iwi or groups of iwi”: supra n.23, at p.18. The Court of Appeal's conclusion that "Iwi" could be broadly interpreted directly led to their conclusion that no useful purpose would be served by the determination of the preliminary point as ordered by Anderson J: idem, p.20.

59. Supra n.22, at p.522.

60. For a similarly inconclusive judgment (an income tax case) from the Privy Council, see Rangatira Ltd v. Commissioner of Inland Revenue (1996) 17 N.Z.T.C. 12, 727, commenting that, although the High Court could have decided the case differently, its findings could not be overturned by the Court of Appeal.

61. Solicitor-General's Report, supra n.17, at p.13. See also Laskin , “The Supreme Court of Canada: A Final Court of and for Canadians” (1951) Can.Bar.Rev. 1038 and Clarke, op. cit. supra n.24.

62. The comments are reported in [1976] N.Z.L.J. 376, 380.

63. Sir Thomas Eichelbaum, “Brooding Inhibition—Or Guiding Hand? Reflections on the Privy Council Appeal”, in Joseph (Ed.), Essays on the Constitution (1995), p.112.

64. Idem, p.128.

65. Supra n.7.

66. Cameron , op. cit supra n.8, at p. 173.

67. “The New Zealand National Identity” (1987) 3 Cant.L.Rev. 172.

68. Idem, p.183.

69. Solicitor-General's Report, supra n.17, at p.13.

70. Ibid.

71. Hannum, Autonomy, Sovereignty and Self-Determination (1990), p.15.

72. See especially Solicitor-General's Report, supra n.17.

73. Ibid, although recommending the appointment of additional judges to the Court of Appeal. See also Sir Ivor Richardson, Address to New Zealand Bar Association Conference (July 1996) and Report of the New Zealand Judiciary, supra n.40.

74. Law Commission, op. cit. supra n.10, at pp.8485; Solicitor-General's Report, idem, pp.1718.

75. See also Harris, “The Law-Making Power of the Judiciary”, in Joseph, op. cit. supra n.63, p.265 at pp.260270: “Yet it is sometimes difficult [for lawyers and law academics] to feel an unquestioning confidence in the infallibility of Judges” in New Zealand, commenting on the small size and close-knit nature of the New Zealand legal community.

76. The view of at least one member of the Privy Council appears to be that “the Privy Council has saved New Zealand law from going off the rails”: Eichelbaum, op. cit. supra n.63, at p.128.

77. Especially those involving non-New Zealand parties: see e.g. Attorney-General for Hong Kong v. Reid, supra n.38 and more recently Brannigan v. Davison [1996] 3 W.L.R. 859 (holding that a New Zealand Royal Commission had acted properly in its process for deciding how the interests of New Zealand and the Cook Islands should be resolved in a dispute over tax concessions provided by the Cook Islands to New Zealander residents). Cases of this kind are, however, very rare.

78. Law Commission, op. cit. supra n.10, at p.167.

79. Similarly, in the private sphere, the liberal philosopher's rejection of the “freedom” of a person who chooses to be a slave on the basis that “[t]he principle of freedom cannot mean that he should be free not to be free”: Mill, On Liberty (1859; Gray (Ed.) 1991), p.114.

80. Op. cit. supra n.61, at p.1040.

81. See Kelly , “Leaving their Lordships: the Commonwealth Experience” [1994] N.Z.LJ. 101, 109; Waters, op. cit. supra n.39, at pp.9091.

82. E.g. regarding important cases decided under the State Owned Enterprises Act 1986, the Bill of Rights Act 1990 and the Resource Management Act 1991, see Harris, op. cit. supra n.75 and, further, supra nn.51–52.

83. A recent example is Telecom Corporation of New Zealand Ltd v. Clear Corporation Ltd [1995] 1 N.Z.L.R. 385 (regarding the basis for determining interconnection charges under New Zealand's Commerce Act 1986)—see, for a critical comment, Van Roy [1995] N.Z.L J.55.

84. See further McHugh, op. cit. supra n31, at p.25 and Harris, op. cit supra n.30, at pp.598599.

85. Op. cit. supra n.62. See also Eichelbaum, op. cit. supra n.63, at p.112.

86. For instance, even since the Minister of Justice's announcement in January, the Courts Structure Bill 1996 to remove the appeal still remains on the list, and the Prime Minister has expressed a personal preference to abolish the appeal.

87. Lord Chancellor's Department, Judicial Statistics Annual Report 1995 (Cmnd 3290, 1996, HMSO).

88. “The Caribbean: A Relic of the Empire”, The Economist, 02 1997, pp.4750, indicating that the change may occur as early as the end of 1997.

89. See supra n.41.

90. See supra n.73 and accompanying text.

* Senior Lecturer in Law, University of Melbourne; former Senior Legal Research Officer, Law Commission of New Zealand.

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International & Comparative Law Quarterly
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