Constitutional revolution or fixing the courts?

Is it the first step to a republic or an overdue overhaul of the courts? Where is Attorney-General Margaret Wilson taking us with yesterday’s announcement that legal appeals to the Privy Council are to end?

She will bring a bill to Parliament this year to set up a new Supreme Court as a final court of appeal with five permanent judges headed by Chief Justice Dame Sian Elias. The bill will likely pass next year if Labour continues to lead the government.

Ms Wilson says she is restructuring the court system, not paving the way for a republic. Prime Minister Helen Clark, who said yesterday abolition was “an idea whose time has come”, has repeatedly said that, while abolition of the monarchy is “inevitable”, it is a good way off. Ms Clark has privately ruled the republic off a second-term agenda.

But abolishing Privy Council appeals is a major change to the court system because it ends the recourse we now have to a second opinion — and a deciding one — from dispassionate British judges.

Many in business, politics and the law think it is misguided or plain wrong to abandon access to some of the Commonwealth’s best legal brains, especially in commercial law in which Britain excels. Yet Attorneys-General for two decades have nursed ambitions to do just what Ms Wilson is doing.

Appeals to the Privy Council — technically, to the council’s judicial committee — came with the British Empire in the nineteenth century. It was a valuable resource for thinly populated new colonies and provided a check on colonial waywardness.

But now few countries — and those small — retain the Privy Council. Canada and Australia (still both monarchies) and even Fiji have abolished appeals.

Twenty years ago Jim McLay, then Attorney-General and later Deputy Prime Minister then Leader of the Opposition, said he would abolish appeals “as soon as we (the government) win some” (it suffered a string of defeats around that time).

But in the late 1980s the Treaty of Waitangi gained renewed force. A bill introduced by National in 1996 stalled in the face of perceived Maori opposition.

Ms Wilson believes she now has majority, even “strong”, support of Maori after two rounds of personal consultation, an assertion which will now be tested.

Ms Wilson points out:

* Maori have won few Privy Council cases recently (four out of 16).

* The Privy Council these days seldom hears such cases without a New Zealand judge sitting on it, so it is not as unaffected by local influences as if it consisted only of British judges.

* In any case the Privy Council is appointed not by the Queen but by the British Prime Minister. So it is not part of the link with the monarchy which older Maori hold to have a spiritual dimension.

* The Privy Council now frequently sends back Treaty of Waitangi and indigenous rights cases for final decision in the Court of Appeal here, though sometimes with some guidance.

Her solution to Maori concerns is in the report of her 14-member advisory group, which included four prominent Maori: Waitangi Fisheries Commission chair Shane Jones; Law Commission member Dr Ngatata Love (who was formerly chief executive of Te Puni Kokiri, the Ministry of Maori Development); Maori Congress convener Archie Taiaroa; and Moriori spokesman, lawyer Maui Solomon.

The advisory group urges a “convention” that at least one judge is “well versed in Maori tikanga, making it likely that at least one member of the court will be of Maori ancestry”. (A convention is an unwritten rule which has strong moral force but not legal force. The Governor-General’s powers are conventional powers.)

ACT MP Stephen Franks plausibly interprets that as a pointer that the only Maori High Court judge, Justice Eddie Durie, will be appointed. Mr Franks says Justice Durie would be appointed ahead of more experienced and more able judges of the Appeal Court, now our highest domestic court.

“That’s tokenism,” Mr Franks said. “Judging is a craft, a skill. Saying you need a Maori judge is like saying you need a Maori brain surgeon.”

Appointments are now made by the Attorney-General, after broad consultation. The advisory group wants a more transparent consultative process and Ms Wilson is proposing a judicial commission for that and to discipline judges.

Mr Franks and ACT heatedly oppose abolition. Their opposition is partly on the grounds cited by the Business Roundtable and Business New Zealand: that local judges lack the experience needed for complex commercial cases that courts in a larger country, with many more cases, get.

London is one of the world’s top commercial centres, with deep judicial expertise in commerce, he says, and many Privy Council appeals are commercial cases. (But, added Ms Wilson yesterday, some of those were tax cases, which have a public interest dimension.)

Business opponents of abolition were also concerned by the Appeal Court’s “judicial activism” in the 1980s and 1990s when Lord (then Sir Robin) Cooke was President. Judicial activism is the polite term for judges making law instead of simply applying it or interpreting it strictly.

This caused uncertainty and business leaders deplore legal uncertainty as another risk to investment.

But some people who took that view then have been mollified by the stricter and more business-sensitive approach under the presidency of Sir Ivor Richardson, who followed Lord Cooke.

One leading lawyer who has switched from opposition to support is Jack Hodder, editor of the influential legal weekly, Capital Letter. He sees Britain as influenced by European law.

Lord Cooke himself changed his mind in 1987 and remains an abolitionist despite stints on the House of Lords (Britain’s final court of appeal) and the Privy Council in recent years. He told a constitutional conference in Wellington in April 2000: “No amount of juristic eminence, acumen and expertise can compensate for lack of local background and remoteness from local responsibility.”

Nevertheless, there will be widespread noisy opposition to abolition. National’s justice spokesman, Wayne Mapp, has lashed the move as lacking the widespread support he considered necessary for a major change that has constitutional overtones. Abolition “has little support in Maori, business and legal circles,” he said.

But Dr Mapp also concedes that National will not reinstate the Privy Council if it is abolished.

And is it the sort of change likely to reverberate in radio talkbacks? Probably not.

There is already no appeal to the Privy Council on cases heard initially in district courts or in the Environment, Employment and Youth Courts or tribunals such as the Commerce Commission and the Human Rights Complaints Review Tribunal, nor from the Courts Martial Appeal Court, nor from the Family Court except in certain family protection, testamentary promises and matrimonial cases.

To qualify for appeal to the Privy Council a civil case must originate in the High Court and be in respect of a dispute involving $5000 or more or, at the Appeal Court’s discretion, a matter of great general or public importance. In criminal cases originating in the High Court, appeals to the Privy Council must obtain special leave from the Privy Council.

There appears also to be a right of appeal to the Privy Council from the Maori Appellate Court, bypassing the Appeal Court.

The advisory group estimates the new court will hear between 40 and 50 cases a year, which it says should all be by leave of the new court itself. In 2000 the Privy Council, which is an expensive exercise for litigants, heard six cases, of which it dismissed three, and in 2001 it heard 17 cases, of which 13 were dismissed and two withdrawn.

The advisory group recommends the criteria for leave to have cases heard by the Supreme Court should be: * significant Treaty of Waitangi issues; * a matter of general or public importance; * a matter of commercial significance; * resolution of differences between courts; * a miscarriage of justice; * the interests of justice justify a hearing.