Supreme Court Bill

I raise a point of order, Mr Chairperson. I have to ask how we get into a situation whereby the largest Opposition party has two members seeking the call who have been on the select committee, but we end up with a member of a junior Opposition party getting the call.

I know what the member is going to say. Can I just say to him that I looked, I could not see anyone out of the side of my eye, and Mr Smith was—

💬 Dail Jones: Come on!

The CHAIRPERSON (H V Ross Robertson): I am giving a ruling. The second part is that under Speaker’s ruling 23/3, once the call is given I cannot take it away. I have noted now that you have raised a point of order. I am sure that the call will go to that side next time, but I have called the honourable member Murray Smith.

I want to make reference to clause 48, relating to the transition period. This matter caused the select committee some concern. The bill initially provided that it would come into effect 28 days after receiving the royal assent. That time limit for bringing in the situation was very, very narrow. The difficulty that was clearly going to arise was that there would be conflicts of interest. Court of Appeal judges, who are the ones most likely to be promoted to the Supreme Court, could well face the situation where, as the sole members on the Supreme Court bench, they were looking at decisions on appeal that they themselves had given judgments on in the lower court.

The initial proposal appeared to be that temporary judges would be used in that instance. That was clearly undesirable because, given that most of the Court of Appeal judges may well end up on the Supreme Court, it would mean that, in the early stages, almost every decision being appealed would be a decision in which former Court of Appeal judges who were on the Supreme Court had participated, and therefore temporary judges would have to be used. The difficulty that that would create is that the court would get off to a false start. It would look like a Mickey Mouse court because the full-time judges are not sitting on almost anything at all.

A number of dates were proposed in order to try to get round that problem: the date that the appeal in the Court of Appeal was lodged, the commencement of the hearing in the Court of Appeal, the completion of the hearing in the Court of Appeal, the date of issue of the judgment, and the date of lodgment of the Supreme Court appeal. United Future took the view that there was really only one date that was relevant, and that was the date upon which judges could be changed; a Court of Appeal hearing would not have commenced, and judges who were not going to be on the Supreme Court could be appointed to hear that case in the Court of Appeal.

In the end, the select committee accommodated that to a large extent, but decided that the date would be the date of completion of the hearing. That may give rise to a situation where judges who have completed their hearings then find that they are on the Supreme Court, and therefore are facing their own judgments. However, we were assured by the select committee officials that the vast bulk of Court of Appeal cases were dealt with within a 2-day period. It also appeared that the Supreme Court judges would be appointed prior to the commencement date of the bill. That certainly seems to be the case now, given that the bill will commence on 1 January 2004, but the hearings will not commence until 1 July 2004, and given that the Court of Appeal judges who will replace those Supreme Court judges will also be known. It also appeared that, given the limited number of cases that were likely to be appealed to the Supreme Court, and given the workload of the Court of Appeal, it would be possible to ensure that any prospective Supreme Court judge did not hear a case in the Court of Appeal, and, in fact, that no cases would be heard in the Court of Appeal during the critical period.

It was for that reason, and particularly because we are really talking about only 2 days, that United Future went along with the proposal. We did subsequently, as will be known, suggest to the Government that the date be extended—that instead of it being 28 days after the date of assent, the date be put out. We are now faced with a situation where it is likely to be some 2 months after the royal assent before the bill comes into effect, and a further 6 months after that before the first substantive cases are considered. Therefore, it seems that that problem has really been abated.

The second clause that United Future had real concerns about was clause 51, which provided that the rules of the Court of Appeal would apply until new rules had been developed.

I thank the Chair for the opportunity to contribute to the debate on Part 2 on behalf of the National Party. I start by observing with a degree of sadness that the contribution Labour members have made to the debate, at the very highest, would have to be described as minimal and ungenerous. Indeed, it is my recollection that only one Labour member of Parliament has spoken, apart from those members who moved closure motions, and that was the Attorney-General, who has nominal charge of the bill. That is a pity, in the context of Part 2.

💬 Lindsay Tisch: I raise a point of order, Mr Chairperson. I bring your attention to Speaker’s ruling 51/5, which relates to continuous interjections by members. Two members—the senior and junior Government whips—have in the last minute made a constant barrage of interjections against my colleague Richard Worth, and I ask that you rule on this matter.

The CHAIRPERSON (Hon Clem Simich): There is no need for me to rule. Interjections are usually always going on in the Chamber.

💬 Lindsay Tisch: I referred to 51/5.

The CHAIRPERSON (Hon Clem Simich): Yes, interjections need to be rare and reasonable. The interjections were perhaps a little unreasonable and too constant.

I am not concerned by a barrage of interjections from people like the senior Government whip. That is to be expected from a person who does not have the wit or the intellect to make a substantive contribution to a debate.

I want to talk about Part 2, and not be further distracted. I want to talk about the lack of contribution that Government members have made to Part 2. The last significant piece of constitutional law passed was the Constitution Act, which was passed in 1986. On that occasion every member of the House voted in favour of it. The voting on Part 2 of this bill, which is a significant constitutional part, will have a margin of, maybe, three votes. It will be the slenderest of margins.

In the calls that I hope to be given on Part 2 I want to focus primarily on clause 43, which amends section 57 of the Judicature Act and, in particular, provisions relating to the composition of the Court of Appeal. Clause 43 proposes a new subsection for section 57, and deals with the constitution of that court. I would like to deal with the topic in the context of the announcement by the Attorney-General and, to some extent, pre-empted by the Prime Minister, as to what the grand plan is for the composition of the new Supreme Court. The proposal that the Prime Minister first advanced and that her faithful follower the Attorney-General seems determined to implement, despite the involvement of a Clayton’s advisory panel, is that the judges of the Court of Appeal will simply be transmogrified into Supreme Court judges.

The Court of Appeal is probably the court of record in our hierarchy that has the greatest pressure in the context of doing intellectually challenging work. If it is the plan to move those judges from the Court of Appeal to the new Supreme Court, and leave one remaining, the Court of Appeal will be gutted, yet it will be the Court of Appeal that remains as the body that is destined to resolve the most significant pieces in terms of the hurly-burly of court cases that require appellate review.

💬 Steve Chadwick: Absolute doom merchant.

The member opposite talks about doom merchants. I think, in response to her interjection, that it is a huge sadness that the new Supreme Court takes life under a significant cloud. It is a cloud because there is no real support from so many members of the Committee for these changes. It will be—or should be—one of our great constitutional structures; our final appellate court.

💬 Steve Chadwick: Why didn’t you support it?

The member asks why National did not support it. If she had been present, as she most likely was, and, more important, if she had listened, she would have heard a series of what I suggest are compelling arguments in favour of the retention of the current structure.

I want to acknowledge the contribution by the last speaker, the member for Epsom. He is an acknowledged experienced lawyer, and I have certainly taken on board his contribution, but I believe that New Zealand has come to a stage where we need to look at the competency of our own people and the legal minds that New Zealand has to offer. I was very interested to see the committee report, not only in relation to the Australian and New Zealand judges’ contribution to New Zealand and Australia but also in relation to the contribution those judges make to the Pacific region.

I want to go through some of the lists that have been compiled. Eleven countries, which is a significant number, rely, in terms of the highest court decisions that they make—although they still have the option of the Privy Council—on New Zealand and Australian judges. That is an indication of the maturity and the competency of those who are trained in the law in New Zealand. I have every confidence that the Attorney-General, as the former head of that distinguished faculty of law at Waikato University, has assessed that we in New Zealand do have the competency for the training of our lawyers—and, ultimately, judges—and the quality, judgment, and integrity of our judges to form a competent Supreme Court for this nation.

Canada and Australia were British colonies and dominions for as long as New Zealand has been. If it is good enough for those countries, in terms of their histories, to now come to the conclusion that it is time to cut the umbilical cord from the mother country in relying on the Privy Council for their final legal judicial decisions, then the time has come for us to do the same.

We should have our own people who are competent not only in relation to law but also in relation to knowledge of our own local environment, and I take on board the fact that there is a Treaty of Waitangi. Tangata whenua are concerned in terms of the relationship with the Treaty of Waitangi and with the Crown. But I would like to say that this bill does not mean that that ends the relationship and the obligations that the Crown has with tangata whenua and in the Treaty of Waitangi. There are provisions, and this Government is navigating cautiously and helpfully in relation to those issues. I believe that the Government is taking the right course in terms of consultation, both with Māori and the wider New Zealand community, to look at setting up our own Supreme Court and using our own people, who have the competency and integrity to carry the job out adequately in terms of our needs.

I raise a point of order, Mr Chairperson. Under the Standing Orders, we ascribe a degree of status to the member in charge of the bill. The member in charge of the bill is given a favoured seat in the Chamber. The member in charge of the bill is supposed to listen alertly to the debate—

The CHAIRPERSON (Hon Clem Simich): That is not a point of order.

May I complete the point of order so that you can form a judgment about the merit of the argument that I am making on the point of order?

The CHAIRPERSON (Hon Clem Simich): Please be seated. That is not a point of order.

Could I just explain what the point of order is—

The CHAIRPERSON (Hon Clem Simich): You have not come to a point of order yet.

It is this: the member in charge of the bill, in procedural terms, has a duty, I suggest—first, to listen to the argument; second, and more significant, to evaluate the argument on the amendments put by members. We have been treated to the sight of the Attorney-General, the member in charge of the bill, reading magazines. She should be listening—

💬 Hon Margaret Wilson: I have this bill!

Oh, the Committee, I suggest, is—

The CHAIRPERSON (Hon Clem Simich): The Minister makes no comment on members in the Committee, and nor should members make comment on the Minister. You do not know what the Minister is doing. She may be thinking very deeply about this bill. What you say is fine, but it is not a point of order.

Part 2 deals with amendments, repeals, transitional provisions, and savings. I wonder whether the Minister, who lodged a Supplementary Order Paper today—and quite an extensive one; one that has some impact on Part 2—might take a call to explain the impact of those new provisions she has tabled, because of course those did not come before the select committee. One has not necessarily had the chance to read them carefully, and, at the same time, the opportunity to question officials about their impact.

I have had a call today from people involved in what will possibly become the subject of an appeal to the Privy Council, regarding the foreshore and seabed case. They wonder whether the provisions in the Supplementary Order Paper lodged today will have any impact on their desire, should they see fit to carry their appeal through to the Privy Council. Maybe the Minister might take a call, and we might not get there tonight, but I am sure she will oblige in the next session of the Committee.

I want to acknowledge Minister Taito Phillip Field. I am very pleased that he took a proper call and made the comments that he did. I have great respect for him and for the things he said. I have to say, though, that I found it difficult to reconcile his comments about New Zealand having the competence to form our own highest court of appeal. He said that we have our own people who are competent to form a strong bench—those are not exactly the words, but that is essentially what he said—and it is time we broke the ties with the Privy Council because we can do what Canada and Australia have done: that is, show our capability and our own competence here.

I do have difficulty with those statements, on two counts. The first is—and my colleague Pansy Wong referred to this earlier—to do with the honourable member’s pleadings or petitions in respect of the case that was so important to his own Western Samoan people, and how the Samoan community recently sought to have the impacts of what was done to that Privy Council decision reversed. I point out to him that, in effect, that was not so long ago. That sort of thing could happen again in New Zealand. It happened in New Zealand in our highest court, and justice was seen by the Western Samoan people to be delivered in the form of the Privy Council decision. I had a bit of difficulty with his comments, but I recognise that he is entitled to make them.

I also had difficulty on another count. I think it is so ironic that members of the Government stand up and talk about our own competence in New Zealand to establish the highest court in our court structure. They say we have the people in our own judiciary who have the competence to form the Supreme Court, yet it is that very Government that has shown its disdain for those judges who are likely to sit on the new court. It has shown it has no respect at all for the competence of those judges, by saying it is going to step in and legislate because it does not like the Court of Appeal’s decision on the foreshore and seabed case. It is so ironic. This irony has been pointed out to me a number of times by Māori during the Government’s consultation hui on the foreshore and seabed.

This is a Government that on the one hand says we have the competence in New Zealand, that we are grown up and have the judges to form our highest court of appeal, yet on the other hand, in one fell swoop, on the day after the Court of Appeal delivers a pretty substantial and significant decision in relation to rights that Māori assert in the common law, indicates by the action it is going to take on the foreshore issue that it has no regard whatsoever for the competence of those judges it is now going to appoint to the new court.

Part 2 deals with very important provisions, although it is only a short part of nine provisions dealing with repeals, amendments, and transitional arrangements. I just want to draw the Committee’s attention to that fact, and to congratulate the select committee again on its consideration of the bill and also on ensuring that there would be preservation of the ability to appeal to the Privy Council, in the case of decisions that are delivered by the Court of Appeal after the commencement of the legislation. I think that is an admirable addition to the bill because it puts beyond doubt that all matters that are currently there will, in fact, be attended to in a timely fashion.

The second matter has been referred to by Mr Smith, and that was the concerns that were expressed in terms of giving sufficient time for the introduction of the running of the new Supreme Court. That is why the provisions are there in the Supplementary Order Paper, to make it clear that while the Act comes into force on 1 January 2004, which puts beyond doubt that that is the date it comes into force, it also provides—sensibly I think—that the first cases will not be heard before 1 July, although matters relating to applications, etc., may well be.

So those amendments and some other small technical amendments, particularly to the schedules, to ensure that we have covered all the consequentials, are contained within the legislation. As I said, of course I am interested in those who talk to the matters in the bill or to the amendments.

Progress reported.