Supreme Court Bill

I move, That the Supreme Court Bill be now read a second time. The bill before us has been closely examined over the past 9 months by the Justice and Electoral Committee, and I congratulate that committee on its thorough and careful consideration of the bill. The committee received 315 submissions and held hearings with 106 of those parties. I understand that the committee vigorously debated many of the features of the bill. In addition, members of the committee attended a national hui on the New Zealand courts system in Taupo to listen to the views of Māori represented there. I commend the committee for the way in which it has engaged with New Zealanders to consider the bill.

The committee’s work was preceded by 3 years of consultation and policy development by the Government. It began with the release of a Government discussion paper, Reshaping New Zealand’s Appeal Structure, in December 2000. Public submissions on that paper emphasised the need for an independent, two-tier appellate structure above the High Court, if New Zealand appeals to the Privy Council were to be ended. In 2002 a ministerial advisory group reported on the key features of the Supreme Court Bill, and that report provided the basic features of the bill.

This is a significant bill for all New Zealanders. It will give all New Zealanders, for the first time, the opportunity to have their cases heard at the highest level. That has been denied to many New Zealanders up to this point. The bill will also enable the legislation passed in this House to be interpreted at the highest judicial level by a New Zealand court. No longer will the final Court of Appeal be available to a privileged few. At long last New Zealand will be in control of its own legal destiny.

The bill has provoked vigorous debate. That is healthy and appropriate in a democracy such as ours that values freedom of expression. What has not been appropriate, however, is the personal denigration of members of the judiciary. Such comments have cast unjustified doubt on the independence, integrity, and capability of our senior judiciary. Therefore, it is important to place on the record that New Zealand is well served by a fine and capable judiciary, ably led by the Chief Justice, Dame Sian Elias. That fact is attested to and acknowledged both within New Zealand and also internationally.

What, then, is the effect of this bill? It ends the jurisdiction of the Judicial Committee of the Privy Council to hear New Zealand appeals, and it removes the statutory limits that restrict the final opportunity for appeals to courts other than the Judicial Committee. In essence, the bill establishes the Supreme Court of New Zealand as the final Court of Appeal for New Zealand. Before I consider the committee’s report I wish to give notice that I will move a Supplementary Order Paper during the Committee stage that will address minor and technical amendments, establish a new position of Chief High Court Judge, and clarify the commencement date for the Supreme Court Bill.

I now turn to the principal amendments recommended by the majority of the committee. The committee recommended the purpose clause explain more fully the reasons for the establishment of the Supreme Court—namely, that New Zealand is an independent nation with its own history and traditions; that important legal matters, including legal matters relating to the Treaty of Waitangi, should be resolved with an understanding of New Zealand’s conditions, history, and traditions; and also that there be improved access to justice for all. The purpose clause also affirms our commitment to the rule of law and the sovereignty of Parliament.

The committee further recommends changes to the provisions governing leave to appeal. Clause 13, containing the leave criteria, has been restructured to read that the Supreme Court must not give leave to appeal unless it is satisfied that it is necessary in the interests of justice for the court to hear and determine the proposed appeal, and that the interests of justice require the hearing of appeals involving a matter of general or public importance, including a significant issue relating to the Treaty of Waitangi; or a substantial miscarriage that may have occurred, or may occur unless the appeal is heard; or a matter of general commercial significance. The Supreme Court is not limited to these grounds if the interests of justice require an appeal to be heard. The Supreme Court will be required to give reasons for the refusal of a leave application, but these reasons may be stated briefly and in general terms.

The committee also recommends that the Supreme Court should comprise the Chief Justice and four or five other judges. The majority of submissions on this clause thought a court of five was insufficient to cover situations where a member of the court was unavailable. I welcome this amendment to clause 17. This will provide greater flexibility in matching the judicial resources of the court to the workload as it develops. The workload is likely to take some time to build up. For that reason, I intend to nominate four judges for appointment to join the Chief Justice in the initial Supreme Court.

Changes have also been made to enable the appointment of technical advisers in any case before the Supreme Court. Members of the committee believe that it is important the Supreme Court should have the ability to appoint a technical adviser when the need arises. However, it is expected that this provision will be rarely used.

The committee further recommends the transitional provisions be extended so that the Privy Council may determine an appeal arising out of a successful application for leave, or special leave to appeal to it, against the decision of a New Zealand court made before the commencement of the Act, or a decision of the Court of Appeal made after the commencement of the Act in a proceeding whose hearing was completed before that commencement.

The committee also recommends a number of minor and technical changes for the purpose of clarifying the bill, as well as a number of consequential amendments. These amendments are set out in detail in the commentary on the bill.

The committee considered whether overseas judges should be available to sit as acting judges on the Supreme Court from time to time, and decided against so recommending. The ministerial advisory group had also recommended against the use of overseas judges, after consideration.

The committee received submissions on a number of other matters that could not be considered within the scope of the legislation. There were two significant issues that did not directly affect the provisions of the bill, but merit further consideration. The first relates to the judicial appointments process. Since I announced the Government’s decision to end appeals to the Privy Council and establish a Supreme Court, I have consistently acknowledged the importance of appointments to this court. For that reason, a panel comprising the Chief Justice, the Solicitor-General, and a lay representative, Sir Paul Reeves, will advise me in making recommendations to the Governor-General for the appointment of judges of the Supreme Court. I note some members of the committee are interested in establishing an independent body to appoint judges. I have recently announced my intention to prepare and release a public consultation document next year, with the possibility of establishing a judicial appointments commission. The United Kingdom is undertaking a similar process. It is important that such a proposal is considered carefully.

The second issue outside the bill’s scope relates to New Zealand’s constitutional arrangements. A number of submissions raised concerns about those arrangements. The committee is considering conducting an inquiry into New Zealand’s constitutional matters.

The proposed amendments to the bill are important improvements, and I would like to thank all the members of the Justice and Electoral Committee for their valuable contribution to the development of this bill, and all those submitters who gave of their time to contribute to this important development. It is important to note that since I introduced the bill in December last year the United Kingdom has announced its own plans to establish a Supreme Court. It is proposed that the domestic jurisdiction of the Privy Council to hear appeals on devolution matters from Scotland, Northern Ireland, and Wales be transferred to that Supreme Court. On 1 April 2003 the Privy Council’s appellate jurisdiction in UK medical disciplinary matters was also removed. The Caribbean community is establishing its own regional final appellate court, and 10 countries will soon withdraw from that jurisdiction. This leaves New Zealand, the Bahamas, Brunei, and Mauritius as the only independent Commonwealth countries using the Privy Council.

In conclusion, the Privy Council has provided a valuable service to New Zealand on a limited range of legal matters. The need for a more accessible system for New Zealand’s final appeals on a full range of our law has haunted successive Governments. It is time we entered the 21st century and time for New Zealanders to take responsibility for their own legal system. This bill enables us to do so, and therefore I commend it to the House.

I raise a point of order, Mr Speaker. During the course of her speech the Attorney-General mentioned she would lodge a Supplementary Order Paper. It is very important for the House to know just when we can see that. It is unfortunate that, so soon after hearing submissions and reporting back to the House, we are faced with a Supplementary Order Paper. I ask the Attorney-General, while she is still in the House, to give us some indication whether we will see the Supplementary Order Paper today, or perhaps later this week. I know that this may technically not be a point of order, but it is raised to help progress the debate in a proper manner.

I thank the honourable member for that. It is not really a point of order, and I will leave that to the discretion of the Minister.

This is not a good day for the Government, and it is certainly not a good day for this Parliament, as we come to the second reading of the Supreme Court Bill. I say from the outset that National is strongly opposed to this bill and will take whatever steps are necessary to see, in due time, the repeal of this legislation and the restoration of a court structure that has served this country particularly well.

In commenting on what the Government proposes is the objective of the bill, a good starting point is the introductory material set out in the commentary. One of the defined objectives is improving access to justice. This is a claim that the Government has made on a number of occasions. We in this Parliament have had an opportunity to judge the sincerity of that objective. We have seen, on a number of occasions, that the claim of improving access to justice is a hollow one. Here we have another illustration of that.

This morning an interesting thing happened. United Future had supported this bill out of the select committee. In other words, United Future wanted to see the Privy Council scrapped and this new court put in place. But this morning it changed its mind—for good reason, I think. Anyone who carefully reflects on the merit of this legislation will see that it is hugely flawed. National’s position can be quickly and shortly stated. We see no reason for this legislation, apart from a desire on the part of the Government to implement Labour Party policy.

Much could be said against this bill in the short time that is available. I will confine myself to making some points by way of summary. The reasons for retention of the Privy Council include these: first, it is a court of acknowledged excellence. In the course of the submissions we heard, a former New Zealand Chief Justice said: “The Privy Council certainly is an extremely high-class, polished, Rolls Royce service. There’s no gainsaying that.” I ask, rhetorically, if this is a great service—which it is, and many of the submitters acknowledged that—why we are doing away with it.

The second proposition I would like to advance is that the major users of the Privy Council—which include business interests and Māori—are opposed to the abolition of rights of appeal to the court. I think it is instructive to refer to comments the Attorney-General made in the Independent on 10 October 2001. In that article she was reported as saying that it was of substantial importance that the business community agreed with any legislation to do away with the Privy Council. What is the reality? The reality is that the business community is strongly opposed to this legislation.

The third point I would like to make is that some people—not strongly, and not well—advanced the argument that as a matter of national identity New Zealand should no longer defer to an overseas jurisdiction. There is apparently an aspect of colonial cringe in retaining appeals to the Privy Council. What nonsense that is! The reality of the modern world is that many countries have ceded sovereignty in a number of ways. New Zealand has entered into a number of international conventions, which is just one example of where sovereignty has been ceded. More significantly, many countries have chosen to look to outside adjudicative bodies for the resolution of disputes. Even countries that are not members of the European Community seek to use the adjudicative mechanisms set up by the community for the resolution of disputes. New Zealand will follow a contrary course and move against the stream if this legislation is passed. National’s simple position is that justice transcends nationalism.

My next point is that the committee heard from a number of people with active involvement in business and investment, who said it was of critical importance that investment interests had confidence in the domestic legal system. The evidence we heard persuaded us that the Privy Council, as the final appellate court for investment and business interests, provided substantial confidence in the New Zealand legal system.

My final point in this short summary of why we should keep the Privy Council is that issues of substantial constitutional substance should be subject to referenda. So it is that the parties of the centre-right, which might well include United Future—if United Future is a centre-right party, and sometimes we wonder about that—are actively promoting a referendum. We have set in motion a train of events under the Citizens Initiated Referenda Act, and we believe that debate on the bill should not proceed further until the outcome of that course of action is clear.

It has been more than 30 years since we have faced a measure of this constitutional significance. If the bill passes on the numbers, then as the numbers look tonight—as we stand on this second reading—it will pass with a margin of three. That has to be the most slender of margins for what is hugely significant legislation, so on regaining office in 2005, National plans to seek to re-establish rights of appeal to the Privy Council—if that course is possible. The Privy Council will still be around in 2005, and we plan to negotiate with the British Government to restore the right of appeal. Other changes we would seek to negotiate with the British Government include making the Privy Council a court accessible by leave, and for a greater range of interests.

We have sought in a constructive way to suggest changes to the bill to make it more workable. We have major reservations about the appointment process for the proposed Supreme Court. For a number of reasons, we do not have confidence that the Attorney-General will make appropriate recommendations. These include her track record, particularly in respect of quasi-judicial appointments. I can name a number of cases where her judgment in making those appointments seems to have gone sadly astray and been wholly flawed.

I am bound to say that some of her recent appointments to the District Court have also attracted a degree of scrutiny, both from District Court judges and others outside the profession. She has set in place an advisory panel, which she obviously thinks represents some answer, but I simply note that she has chosen who will be on that panel. She is not obliged to accept the panel’s recommendations, and, in any event, she has said publicly—and it has been reported in the media—what her plan is and who will be appointed. That is why it was said in question time today that the advisory panel is simply a Clayton’s device. National would like to see greater transparency in the appointment of judges. One of the suggestions made, which I personally support, is that judges should be appointed by the Governor-General on the recommendation of the House of Representatives. The method of appointment would be the same as that for the Ombudsman and other senior statutory appointees.

My final point is that judges of the new court have the potential to shape the legal and social landscape of New Zealand in a significant way. We have seen this in its most dramatic form with the recent decision of the Court of Appeal in respect of the foreshore and seabed. It is wrong that judges should be appointed through a limited political process.

As chair of the Justice and Electoral Committee, which spent 9 months dealing with the Supreme Court Bill, I rise, a proud person, to speak to the process that the select committee went through, and to comment on some of the particular changes that we pushed for. I will talk about the challenge we faced, the work we did, the report we produced, the changes we made, and the issues we raised.

I think Mr Worth is quite right to say that this is a historic debate. The legislation is obviously of historic importance. In the absence of a written constitution, we can reasonably say that this legislation is not only about access to justice, but also has a constitutional edge to it. The challenge faced by the select committee was to make sure that the various groups in our society who were particular consumers of the Privy Council were properly engaged with the select committee process, and also that the wider community, reflecting the increased number of New Zealanders who will have access to the new Supreme Court, could have their voices heard. If members look at our report they will see that Māori, legal interests, commercial interests, and community interests all had a say in the process the committee went through.

The committee inherited the ministerial advisory group report, and we inherited a history—not only of the Labour-Alliance Government and the Labour-Progressive Government, but also going back to the National Government in the 1990s—of attempts to deal with the issue of the Supreme Court. It is a matter that is certainly being dealt with now in the party political environment, but that has also exercised many minds in this Chamber over the last 15 or 20 years.

In addressing the legislation, the select committee first of all gave 4 months for consultation, so that we generated, in total, 315 submissions. The committee heard the submissions around the country at great length—they averaged over 30 minutes per hearing. We also identified a number of prominent individuals to whom we gave extra time, to make sure that we were making decisions and producing recommendations on an informed basis. After hearing the submissions we then spent another 2 months deciding how to take matters further.

The report produced by the committee essentially tells the story through a combination of chronology, followed by a clause-by-clause analysis. Thanks to Murray Smith, the committee started off by inviting submitters not only to look at the details of the bill, but also to go back to the policy questions behind the legislation. I thank Mr Smith for that proposal, and I think it enriched the work of the select committee. The commentary identifies the questions that we put, including the fundamental one of whether the right of appeal to the Privy Council should be abolished, maintained, or extended.

The report to the committee then looks at the environment, which both the previous speakers have mentioned, of the Privy Council looking at reforming itself, and the British Government addressing those issues, but also the prior consultation and prior debates within the New Zealand Parliament on these issues. The report then goes through the submitters, grouped into legal, Māori, business, and other submitters, and identifies the main arguments on either side, and the report goes into that in much more detail than any other select committee report I have seen. Again, I think it is proper for any reader to be able to identify the range of arguments, and I was not in the least worried that the length of arguments against the bill, in the report, was very slightly greater than for those in favour of the bill. We are not trying to produce a propaganda document here; what we are trying to do is to explain to readers now and in the future exactly why the select committee came up with the decisions that it did.

We then went on to look at some of the particular arguments around the legislation. The budget is obviously an important argument. It was itemised and it appeared in the process of the committee considering the bill. The cost to litigants is a matter of great debate. I think most people would imagine that a court sitting in Wellington would be a bit cheaper for New Zealanders using it than would a court overseas. There were one or two particular factors about the Privy Council—existing mainly thanks to the British taxpayer—that might mean we do get some things somewhat cheaper than we might do from the Supreme Court. But the reality is that the system being established here will be both more accessible and more cost-effective to New Zealanders choosing to access it, and the report of the select committee details why we believe that to be the case.

We then moved on to look at the issue of referenda, already mentioned by Mr Worth. We noted that no other country that has made the same decision that we are looking at making in the next few days has held a referendum in the process of making that decision, and I did not hear any arguments to counter that. Clearly there is a constitutional aspect to this legislation, but we have to draw a line between when referenda are appropriate and when they are not. It was pretty clear from the majority of the select committee that the debate had been a lengthy one, going on for a number of years, but that the issues were clear, and that New Zealanders were not faced with such a loss of rights to counterbalance the increase in rights they would get through access to a new Supreme Court that a referendum would be an appropriate way to go. The report details both the history of referenda in New Zealand and also the arguments of submitters on both sides.

We did hear at length from Māori submitters, and some very clear points were made by them about the relevance of the proposal to the relationship between tangata whenua and the Crown. We thought it was useful to add into the legislation a purpose clause that reiterated that Parliament is the supreme decision-making body in this land, but, at the same time, also recognised that the court existed in an environment where the Treaty of Waitangi was of importance. I thank Jack Hodder, the Wellington lawyer, for his very powerful submission, which I think made all the committee think again about those issues to very useful effect.

We considered the issue of consultation with Māori, which my colleague Mita Ririnui will be speaking more on later, but our committee did engage at a very high level with Māori, recognising the particular relevance of this proposal to them. We looked at the issue of the first appointments to the Supreme Court, and we noted the comments made by the Attorney-General leading up to the introduction of the legislation. We supported the concept that the appointments should essentially be drawn from the current membership of the Court of Appeal, so far as that is possible.

I note what Mr Worth said in terms of judicial appointments. I think the concern of all the people on our select committee about aspects of the way judicial appointments have been made in New Zealand was something that was reflected in our report. I am very pleased that the Attorney-General has responded by announcing that the Government will be consulting on those issues in time to come.

We then went on to look at the qualities of judges. We went on to look at a particular phrase in the legislation that we unanimously decided was inappropriate, which was the phrase “tikanga Māori”. The legislation as it came to the select committee said that matters to do with the treaty or tikanga Māori would automatically get leave to the Supreme Court. We felt that to leave what is such an ill-defined phrase for the court to work out was not necessarily a good way to go.

I want to just touch on one or two other issues. The issue of overseas judges exercised the committee. I think a number of us went into that debate with very open minds and were persuaded by the power of argument over those issues. Retirement age of judges was touched on, and that is a debate that may well come up again. Just to back up something the Minister said in terms of our recommendations at the end, I point out that the committee unanimously supported the need to continue the debate about New Zealand’s constitutional arrangements, and in principle we supported the concept of an inquiry into those issues. All of us were conscious of a number of matters that were raised by submitters that were not appropriate to be dealt with in this legislation, but indicated that a debate has begun in this nation, and that the Supreme Court legislation formed part of that debate. It is appropriate that it be captured not by a Government, but more appropriately by a Parliament. Our select committee felt that we were maybe a body that could take that debate a bit further.

That really goes through the broad approach that we took to the legislation. I want to thank the committee for their good humour. Obviously we were sharply divided politically on these issues. I thank particularly the Green and the United Future members for coming into the committee with an open mind. They gave support for the legislation coming in, but did not necessarily support it going out from the committee. Both were persuaded by the arguments and were open to discussion in that process. I really very much regret that United Future has subsequently changed its mind, but I do thank Murray Smith in particular for his support for the legislation going out of the select committee and for the constructive role he played.

I want to respond lastly to one point mentioned by Mr Worth, which was the issue of “Why do it?”. We deal with the abolition of the link with the Privy Council because we, as a nation, want to move forward. We have to mature, and part of that maturing process is to establish our own Supreme Court.

On behalf of New Zealand First, I would like to thank all the staff who helped us in the select committee. I would like to thank the chairman as well, even though he expressed no thanks to New Zealand First. I thank the chairman for making sure that any request we had with regard to material and suchlike was followed up; I cannot think of anything I asked for that was not made available. I would like to thank the staff for taking the trouble to find all that information and from time to time offering things that I had not thought of myself.

This was a very interesting piece of legislation. New Zealand First’s view on the matter is set out in its manifesto, and we adhere to our manifesto. We believe that there should be no repeal of the right of appeal to the Privy Council until a referendum has been conducted amongst the society of New Zealand, and that prior to that referendum there should be a 2-year discussion and education on just what is involved in abolishing the right of appeal to the Privy Council.

Instead of having a wide, open, public debate on this issue, with people being well informed and a Parliament with a broad support for any decision that is made in this respect, we have a very, very sad situation at the moment. We have a situation where, by a majority of about four, this minority Labour Government, the Progressives, and the Greens will force a very substantial constitutional change on New Zealand. This is a substantial constitutional change. Such a change should be passed by this House only by a 75 percent majority. Instead, it will be barely 50 percent. That is an utter disgrace if we believe we are a Western-style democracy, if we believe in consensus, and if we believe we are mature enough to move forward together. This is not moving forward together; this is the Labour Party, the Progressives, and the Greens, with a majority of about four, forcing their views on the Parliament of New Zealand and the public of New Zealand.

They are forcing their views on the Māori people of New Zealand. Every submission from a Māori group was opposed to this legislation, and we had any number of submissions from Māori groups. The Treaty of Waitangi means more to Māori than it means to anybody else, because some of us, who went to university in the 1960s and studied history and constitutional law, barely touched on the Treaty of Waitangi when we studied, but it is part of tikanga Māori for the Māori people of New Zealand. It is part of their way of life and is ingrained in them. Again and again and again, they said that they do not want appeals to the Privy Council being abolished until some clear constitutional arrangements are set in place. That was the crux of the Māori submissions to the select committee.

Those Māori submitters who were present at the venue in Rotorua will recall the leader of New Zealand First, the Rt Hon Winston Peters, making it clear that submissions from Māori groups should be heard on marae, not in hotel rooms here, there, and everywhere. I put the suggestion to the select committee that we should go to various marae around the country, and a list was made available to the select committee. We have seen how this Government will go around the country to various marae in order to hear views. But did it take up the point about hearing the Māori people’s views on the abolition of the right of appeal to the Privy Council? The answer is “No”. The Government had made up its mind. It was not interested in the views of the Māori people, despite the fact that the Māori people of New Zealand were totally opposed to this legislation.

I turn to one of the points made by Nandor Tanczos when the bill was introduced. Nandor Tanczos, the spokesperson for the Greens, said on 17 December 2002: “The select committee should look at the possibility of holding hearings on marae, for example. I understand that has happened with other bills before the Māori Affairs Committee. It would be useful to do the same here, because this is an issue of constitutional importance.” What was Nandor Tanczos’ view when that came up before the select committee?

Hon Georgina te Heuheu: Lie down.

DAIL JONES: There was no interest. He was not interested in going to marae. He was given the chance. That is the Greens. I cannot recall any support from the Greens, and I leave it to Georgina te Heuheu to comment on that later on, if required. Where was Nandor Tanczos in the select committee, banging away for hearings of submissions on various marae around the country? He was nowhere. The Greens have done a deal with the Labour Party on other legislation, and they could not give two hoots about constitutional matters as far as New Zealand is concerned. They could not give two hoots about the views of the Māori people of New Zealand. On 17 December 2002, Nandor Tanczos said: “We are guided by our policy, which states that removing the Privy Council appeal rights, or any move to a republic, would need to be preceded by full dialogue between the tiriti partners to agree on how the tiriti relationship would be given effect to in any new arrangement.”

Nandor Tanczos: Who said that?

DAIL JONES: Nandor Tanczos said that on 17 December 2002 in this House. That is in Hansard, Volume 605, at page 2795. Did he do that when the bill came before the select committee? No way! The Greens have sold out any support that they were looking for from the Māori people, and what do they get in its place? I think he is glad that the Clean Slate Bill might become a Government bill.

Hon Richard Prebble: That’s the deal, is it?

DAIL JONES: That is the deal. That is one of the little deals on the side.

Hon Richard Prebble: And have marijuana convictions quashed.

DAIL JONES: All those people with little marijuana convictions will have them squashed, as will people who might have been protesting at one stage or another in the early 1980s. That is the sort of deal we will be getting with the Greens. The Greens will protect all those marijuana-smoking types who have minor convictions; that is what they will get as a quid pro quo for supporting the abolition of the right of appeal to the Privy Council, whereas the Māori people of New Zealand have asked the select committee time and time again to support the retention of the appeal to the Privy Council.

Of those who made oral submissions to the select committee, 74.5 percent favoured the retention of appeals to the Privy Council. That is just one of the many statistics in the select committee report. Most submissions from Māori oppose the abolition of appeals to the Privy Council. An early submitter who supported the abolition of appeals to the Privy Council and who spoke in his own right was Shane Jones. I give him credit. He came along and said that he had some experience of appearing before the Privy Council. I should draw to the attention of the House Sir Tipene O’Regan’s experience of appearing before the Privy Council, as well. I had never met the gentleman and I was extremely impressed by his submission. I can now understand why Ngāi Tahu have done so well. He gave us an example of his experience with the Privy Council. The case was being put by a QC, who was perhaps from Wellington or Auckland, and Sir Tipene O’Regan made the point that he was staggered by the poor pronunciation of Māori by the New Zealand QC, and he was amazed and delighted by the wonderful pronunciation of Māori by the judicial officers of the Privy Council.

The absolute claptrap and nonsense that we get in the House from some members—that the Judicial Committee of the Privy Council does not care at all about Māori—should be tossed out of the window. That was a clear example. As a user of the Privy Council, Sir Tipene O’Regan, who supports the continuation of appeals to it, really opened my eyes to the way in which the Privy Council was far and away ahead of some of the lawyers from New Zealand who appeared before it, insofar as things Māori are concerned. He made the very good point that he is a user of the Privy Council. He has been there, used it, and seen how it works, as opposed to some of the judges who gave submissions to the select committee and said that they wanted appeals to be abolished. They were the judges, the people who make the decisions, and they are in a different category altogether. But the users of the Privy Council—the Māori groups and the business groups, in the main—want it to continue.

As far as access to justice is concerned, we will be spending another $21 million in capital costs to set up a new Supreme Court—if the Greens continue with their folly and it goes ahead—and $4.5 million per year on running the court. There is no support in this country for this bill. There was no consultation by the Labour Party before the bill was introduced. It should not proceed. This is a very sad day for all of us in New Zealand.

I rise on behalf of the ACT party to totally oppose the Supreme Court Bill. It will abolish the right that New Zealanders have had throughout our history to be able to appeal to the Privy Council. There is no doubt, at all, that the courts are part of our constitution. It is an abuse of power for a minority Government to change, by a simple parliamentary majority of three, an important part of our constitution. I am pleased to see that the United Future party has come out against the bill, but every member knows that, if there were to be a conscience vote, this bill would fail. The Labour Party has had to whip its members. There are members of the Māori caucus in the Labour Party who are opposed to this bill. If there were to be a free vote in the House, this bill would not pass. This is part of our constitution, and a true majority for it does not exist. One can tell that I am right, by Government members’ reactions. I challenge them. If that is not so, we should have a conscience vote.

We do not have a written constitution. Our Westminster constitutional conventions are guarded only by the willingness of the Government of the day not to change the constitution unless there is an overwhelming parliamentary majority—members suggest that that should be at least 75 percent of all MPs—or by the New Zealand tradition of having a referendum. This Government is not following either. Our Attorney-General, Margaret Wilson, is the most dangerous politician, not just today, but in this country’s history, and I include among those Sir Robert Muldoon.

Margaret Wilson has her own agenda, which the public of New Zealand does not support. She is seeking to create the socialist republic of Aotearoa, and honourable members should make no mistake about it that abolishing the Privy Council is an important step on her agenda. That is what we are facing. Labour is now going to put through this bill—and it is a minority Government—with the help of the extreme left Green Party. They have no moral majority to make this stance, and I say that it is an affront to our Westminster democratic system.

Let me turn to the merits of the Privy Council, and I can speak with some authority because I am the only member of Parliament who has taken a case to the Privy Council. I have actually been there. Members might say that I am biased, because when I went to the Privy Council, I won. But I want members to consider this matter, including the members interjecting—

Hon David Cunliffe: Prove it!

Jill Pettis: You can’t win elections, though.

Hon RICHARD PREBBLE: I say to those two members who are interjecting that I did so as a member of Parliament. I had a situation where Television New Zealand, a State institution, published a lie on television. The lie was that it was claimed that I, as Minister for State-owned Enterprises, had gone to the State-owned enterprise unit and deleted a whole lot of information from that unit’s computer that would have shown I had been up to naughtiness. In fact, that was a fabrication. I had never logged on to that computer, and I went to the Government computer service, which said that no files had ever been deleted. The service actually kept a record. So it was a lie from day one, but State television repeated it. I then went to the Court of Appeal, which said that as I was a member of Parliament I could not have my day in court because of parliamentary privilege.

I appealed that to the Privy Council, which overturned the decision of the Court of Appeal, unanimously. Since then, there have been dozens of academic articles written, and every one has said that the Privy Council was right and the Court of Appeal was wrong. I say that there will be a future member of Parliament who will have his or her career destroyed by a local New Zealand court, just as I had—or would have had. Why did I win at the Privy Council? In this country—[Interruption] The member may not know this, but in this country I am a controversial figure. The Court of Appeal is a local court, but the Privy Council had never heard of Richard Prebble, so its members just looked at the case’s merits. What do we want from our final court? We want an unbiased, professional court that will look at merits, not personalities. That is what the Privy Council does.

But let us take a more recent case. What members are asking is whether what the Court of Appeal has said in the Marlborough case is what we want from our judges in future. Here is a New Zealand court deciding to overturn a decision that is not just 40 years old. It does not go back to 1963; it actually goes back to 1877. I tell members that if that case were appealed to the Privy Council we know that the Marlborough court case verdict would be overturned. It is wrong. We have a Court of Appeal with unelected judges engaged in activism.

I say that to members opposite, who have had to have 10 or 11 huis, and who have had to have their whole programme disrupted by a court suddenly deciding something that no Government would have done—that the Crown no longer owns the foreshore and the seabed. Would a Labour Government have introduced a bill like that? No, it would not have. No party in this House would have introduced it, but we now have unelected judges prepared not to interpret the law but to make it. I say to members of Parliament that this is a crucial point they have to consider. Do we want to live in a parliamentary democracy where members of Parliament pass laws and have to face the people every 3 years on their stewardship, or do we want a system where unelected judges—appointed by Margaret Wilson, the most dangerous politician in New Zealand—believe that they have a mandate to pass laws that Parliament would never pass?

I have no doubt in my mind where I stand on that. I am in favour of democracy; I am in favour of Parliament; I am in favour of the people of New Zealand being able to pass their laws. I say that Margaret Wilson and Helen Clark, when putting forward this Supreme Court Bill, know that they are establishing a court that will pass laws that even they cannot get through the Labour Party caucus. That is the reality, and this legislation is a challenge to our constitution. It is a challenge to our Westminster parliamentary system.

Margaret Wilson’s agenda is to create a socialist republic of Aotearoa—something that she could not get the public of New Zealand to agree to. How do we know that? Because if this Government thought there was support for this bill, who would doubt that the Government would call a referendum? Of course, it would. It would love to have a referendum, but it knows what the result would be. The Government knows that a majority of New Zealanders do not support Margaret Wilson’s socialist agenda. It knows that a majority of Labour voters do not support Margaret Wilson’s agenda. I say to this House that the Marlborough court case will turn out to be just the start of a series of cases by unelected judges, not interpreting the law but creating it.

We have in the Privy Council a safeguard—a constitutional bulwark against judges deciding that they do not want to interpret the law any more but to make it. The Privy Council has had a proud record of providing sound, impartial lawmaking, and it is reckless for the Government to do away with that. But it is worse than that. It is a constitutional outrage to do away with it by a slender parliamentary majority of three, and to do that only by applying the Labour Party whip to those members of the Labour Government also opposed to it. There is no parliamentary real majority, and the Greens should vote against this bill.

I would like to begin my speech by echoing some of the words of Dail Jones, in terms of his thanks to Pat McCabe and the team who advised us during the Justice and Electoral Committee proceedings. The quality of the advice was extremely good and impartial. I think all committee members owe the advisers a vote of thanks for that. I would also like to thank Tim Barnett for his chairing, which was both fair and open-handed in its approach. Again, I think all committee members would probably agree with me on that, so I would like to begin on that note.

As Tim Barnett said, in the first reading Green Party members took the position that we would support this bill going to the select committee, although we were uncommitted about whether we would support it further than that. We were looking forward to taking part in the select committee process and working through a number of questions in some detail. The select committee process was very good in terms of doing that, and in clarifying some of the concerns we had.

The question has been put whether the Greens will continue to support the bill now that United Future has decided to oppose it. The Greens will be supporting the bill, on the basis that it is good legislation. Our position on the bill will not be determined by United Future’s position, as that would be quite improper. So the Greens will be supporting this bill through the remaining stages.

For me, one of the crucial factors was that the select committee process brought me to the opinion that this bill will finally give this country a fully functioning final court of appeal. That point was made quite strongly by Sir Geoffrey Palmer and Francis Cooke. Sir Geoffrey said the Privy Council simply did not have enough New Zealand cases to fulfil the function of a final appellate court, which is to clarify and develop the law of New Zealand so far as that is appropriate for the courts. The ministerial advisory group also made the point that the role of a Supreme Court is traditionally to correct errors, and clarify and develop the law in the context of the individual cases before it, consistent with the limits of judicial decision-making. The Privy Council is not fulfilling that function, nor is the Court of Appeal able to fulfil it, because it is too overworked. Again and again, the select committee heard submitters say that the Court of Appeal is a very effective workhorse court, but is too overworked to survey points of law exhaustively and clarify their application in a manner that one expects of a final appellate court.

Francis Cooke made the point that final courts of appeal do not determine technical legal issues where it is a simple question of right or wrong, but they do decide the appropriate rule to apply within the community. That was the subject of quite a wide-ranging debate in the select committee. Is it the role of the courts simply to apply the law in a black-letter fashion, or do they have an interpretative function? It is interesting that the opposition to the bill fell on both sides of that argument. Some submitters said they opposed this bill because it would lead to judicial activism, in the way that Mr Prebble referred to earlier. Other submitters—like the Auckland Council for Civil Liberties—said they opposed the bill because the Privy Council was becoming increasingly activist, and they wanted an activist court, so we needed to retain the Privy Council because a Supreme Court would be too technical and black letter. So one of the difficulties is that the arguments are going both ways.

I believe it is appropriate for the court to interpret the law and apply it within the particular community, and the Privy Council is increasingly recognising its own incapacity to fulfil that function. Submitters pointed out that the Privy Council now declines to overturn New Zealand Court of Appeal decisions, or to determine matters in cases where there is a policy component. That is exactly what various people are talking about when they say it is important that we have an appellate court that has some appreciation of local conditions.

Some people made the point that we get superior judgments from the Privy Council; that we get much better justice; that they are wonderful judges and we cannot hope to come anywhere near their quality. That is premised on a number of different assumptions. One is that New Zealand has less able raw material, and I simply do not accept that. Again, after hearing the submissions, I do not accept that we are not capable of filling the bench of a final court of appeal. If we look at how highly regarded the New Zealand law profession is internationally, I think that bears that out.

The other thing is whether we get superior judgments, anyway. Jack Hodder makes it his business to compare the decisions of final courts of appeal, and he is regarded highly by many members of the select committee, including some opposing the bill, such as Stephen Franks. He said that the Privy Council judgments were amongst the least satisfactory in the world of those final courts of appeal he has looked at, because they were non-detailed and single. If I remember the quote correctly, he said the judgments of the Privy Council were singular and cryptic. That is what people are holding up as the superior law we are getting from the Privy Council.

The problem is not that the Privy Counsellors are not able—that is not the case, and I would not want anyone to think that was my point. What we did hear in the select committee was that there is a lack of interest among the law lords for sitting on the Privy Council, because as far as they are concerned it is small fry. They are dealing with minor matters, and they have much more interesting things to do sitting on the appellate committee of the House of Lords. So the Privy Council depends—at least to some degree—on ring-ins. In light of the changes that are going on in Britain, that is extremely important, because in June this year the British Government announced plans for a United Kingdom Supreme Court to replace the House of Lords appellate committee. We know that medical disciplinary issues have already been removed from the Privy Council, and that the proposal for a United Kingdom Supreme Court intends that devolution appeals—from Scotland, Northern Ireland, and Wales—will transfer to the Supreme Court. They are probably the most interesting thing that the Privy Council has to deal with at this stage.

OK, at this stage it is true that no proposal has been made to end the Privy Council, but it is difficult to imagine how it will survive the changes going on in Britain. Once it loses those devolution cases, once the Caribbean nations—the CARICOM 10—move to their Caribbean Court of Justice, which is what they are talking about, what will the Privy Council be left with? It is predicted that the appeals that the Privy Council has to deal with will go down to 24, and 12 of those will come from New Zealand. Getting senior judges to sit on the Privy Council will become an increasingly difficult problem. If the Privy Council survives at all, it will be a sad shadow of its former self, and the question is whether that is what we in New Zealand want for our final court of appeal.

I would like to quickly address some of the points raised by Dail Jones. He made up a number of things in his speech, including the Green position on hearings at hui. In the same way, he released a press release during the select committee’s consideration of the bill, and when the committee bailed him up, saying it was a breach of privilege, he said it was not a breach of privilege, because he made it up. Because the decision he said the select committee had made had not been made, it was not a breach of privilege. That is his position. Dail Jones says he wrote a letter to the committee about having hearings on marae. He did write a letter to the committee, but he did not bring it to a vote at the committee. I was waiting for him to bring it up for discussion, because I was very interested in that discussion. Unless he brought it up when I was visiting the toilet—to make sure he could score a cheap political point—as far as I am aware he never brought it up at all, so the contention he made in his speech is quite false.

In terms of Māori issues, there were a lot of submissions from Māori, and various points were made. There was a very real fear that this bill is an attempt to belittle the treaty, and that was one of the reasons that the select committee moved to amend the purpose clause and make clear reference to the Treaty of Waitangi. The Greens would have liked a much stronger reference in that clause, but we were convinced that that was properly the subject of its own debate, and that is why we are very keen to support the idea of an inquiry into the New Zealand constitution by the Justice and Electoral Committee. I think that will go some way to address some of the concerns, because a number of submitters said they did not oppose a New Zealand Supreme Court, but they wanted it to be in the context of a constitutional debate.

The demise of the Privy Council is, in my view, inevitable. United Future saw the writing on the wall at the beginning of this year. It was reinforced by my visit to the Commonwealth Law Conference in April, and in the papers that were presented there. That demise is coming about for four reasons. The first is the withdrawal from the Privy Council of most of the Commonwealth countries. The Caribbean is the latest one we have heard of, and that represents 40 percent of the Privy Council’s current caseload.

Secondly, there is the pressure on Britain to abolish the House of Lord’s judicial division, in order to comply with European requirements for separation of powers. That will take away the UK disciplinary cases—a further 20 percent of the council’s current workload. That will leave New Zealand cases at 20 percent, with 20 percent coming from five other small Commonwealth nations.

Thirdly, there is pressure on the UK, through Europe, and the slow “Europeanisation” of UK law, such that it is moving away from a strict adherence to Commonwealth loyalties to a position more loyal to European directions.

Fourthly, there is the issue of the resources within the Privy Council chambers in Downing Street. The facilities and the research material have not been improved, and seem to be becoming more and more inadequate.

This year, things moved apace. By the middle of the year Britain announced moves to set up a Supreme Court, and it is clear that that will happen sooner rather than later. Just recently, senior civil servants have advocated that Commonwealth countries should be told to find other forums. Senior British judges will be sitting on the Supreme Court bench, and there is strong commentary within Britain that they will be too busy for Privy Council duties. In a forum in England in just the last few days, Sir Thomas Legge QC said that non-UK users of the Privy Council should be politely invited to consider alternative arrangements, and that the UK should not be burdening its Supreme Court judges with Privy Council work. People such as him carry a lot of influence, and although his position is not the position of the British Government, it is an indicator of the way the thinking is going there. We will shortly be left with the second and third XI sitting on the Privy Council.

A lot of the objectors to the bill said: “If it ain’t broke, don’t fix it.” That call is wrong. If it is not broken now, it shortly will be. I give it 5 to 10 years maximum, but given the pace in England currently, it could be less than 5 years, and we will need to decide as a nation what is to replace the Privy Council. In general, United Future believes that this bill does that adequately.

However, it is one thing for the Government to be doing the right thing. There is always a second issue, and that is whether the people want it. This is a significant constitutional change, and the Attorney-General admits that. It is imperative therefore that there is strong public support for it. It is also important that there is strong political support for it, which there is not, although I think it is rather hypocritical of National to oppose the bill when it has proposed this very thing in the past. There is more than a hint that National has done so solely because it is a Labour proposition. First-past-the-post politics is alive and well in the National Party.

Fifty-four percent of the submissions opposed the bill and 40 percent were in favour. Of the oral submissions, 76 percent were opposed and 23 percent were in favour. Key sector groups opposed to it were business, the legal fraternity, and Māori. So although the bill might be the right idea—perhaps premature, but only slightly—the Government has failed to sell it, and that comes down to marketing. The Government’s and the Attorney-General’s approach has killed it in the public’s eye. Simply put, they have not taken the public with them. That has come about through a lack of trust in the Government, and if there was one message that came out of the Taupo hui, it was that Māori do not trust the Government. The fact that I keep getting emails saying there is no reason to abolish the right of appeal to the Privy Council shows that events in Britain have clearly not been adequately conveyed to the public.

United Future members opposed the first reading of the bill. We did so because we considered that there had been a lack of public consultation. The public discussion documents put out by the Minister focused on what should replace the Privy Council, not on whether it should be replaced. In fact, until United Future successfully extended the select committee consideration of the bill to include the question of whether the right of appeal should be abolished, that question had not been directly put to the general public. The Attorney-General’s blinkered approach meant that she did not even consult United Future before the bill was tabled. It was just expected that the numbers would be there.

So what were the key objections that came through from the submitters? The first was the immediate appointment of the bench, and there was a real suspicion that it would be politically biased. We tried to curb that by suggesting that following whatever consultation she wanted, the Attorney-General would need to announce who would be on the first Supreme Court bench, and that the announcement should happen before the bill went through. Alternatively, as is explained in the commentary on the bill, we suggested that the bill itself should effectively make that provision if the Attorney-General would not.

The second objection was to the long-term relationship in terms of the appointment of the judiciary, and United Future has been the party that has been pushing for a judicial appointments commission. We will be retabling the proposal I tabled at the select committee, which is that the Judicial Matters Bill be widened to include consideration of a judicial appointments commission.

There is a lack of confidence amongst the business community in our Court of Appeal bench, as a result of some of the decisions it feels have been wrong. Whether or not that is correct, it is nevertheless the perception within the business community, and it is a strong reason for its wanting to continue with the Privy Council. To try to meet that objection, we proposed that there should be overseas judges. Some of the business community indicated that they would support the proposal if, whenever a case of commercial significance was to be heard, two out of five of the judges were overseas judges who had specialised in commercial law. However, there were still many who had gone past the point of agreeing, even on that basis, that the bill was the right way to go.

In terms of overseas judges, I was also personally concerned that there was no point making it mandatory to use overseas judges until we could get them, and I can do no better than quote from the commentary on the bill: “The United Future member notes that the Attorney-General’s advice that no one could confirm the possibility that serving British Judges could be available infers that no one discounted the possibility either. Nor, it seems, was the possibility of recently retired Judges being available adequately explored by the Attorney-General. The member is disappointed that his request for direct consultation with the relevant overseas legal officers has not been met. The member feels this issue has not been properly explored and that the question of the availability of sitting Judges from comparable jurisdictions has not been adequately investigated.”

The third area was the constitution. Māori, in particular, were concerned about the constitutional status of the treaty and felt that needed to be dealt with before other issues surrounding the constitution, such as the court structure, and the Supreme Court in particular, were dealt with.

If the select committee inquiry had been conducted first, raising the question of whether we should abolish the right of appeal to the Privy Council in favour of a Supreme Court, and that model had been outlined, maybe we could have taken the public with us. Foisting a Supreme Court Bill on the public without adequate consultation, and on the basis that the thing would be simply put through, put the backs of the public and the business community up right from the start. The result has been a distinct lack of public confidence. A vote of 63 to 57 is inadequate for a proposal like this, and it is wrong for the Government to go ahead on the basis of those numbers. In fact, I would say that it is foolish for the Government to go ahead with it. There is no political endorsement; there is no public endorsement, and United Future therefore believes that this is a reprehensible step on the Government’s part.

United Future has been slow to get to that position. The Opposition opposes; that is its job. It has no real effect; it simply opposes. The Greens eventually managed to do a trade-off, and I suspect that the Land Transport Management Bill was the price that was paid. United Future members listened. We listened first. We knew we were in a position of influence, and in the end we consulted, we listened, we heeded, and, at the end of the day—given the public’s views about the matter—we had no alternative but to oppose. Because of the moves in Britain, I suspect that within 5 years we will be back to address the issue again, and I hope the Government of the day manages the process somewhat better than it has this time.

In the view of the Progressives, this is a day to celebrate in the New Zealand Parliament. It is an important step forward towards the independence of this country, and it is a very proud day for me that there are three parties of the left—Labour, the Progressives, and the Greens—supporting this position.

I count today as being as important as New Zealand taking its steps away from dependence on British colonialism by giving itself a Citizenship Act. I count it as being as important as ending the cringing that occurred during the First World War, when we allowed British courts to execute our soldiers. I count it as a step away from the cringing of the Second World War, when we kept our soldiers in the Middle East, at the behest of Winston Churchill, to protect British oil interests, when the Australians brought their soldiers home to protect Australian soil. It has taken a long time for us to take the steps to be a sovereign nation.

Our laws are not passed by British Parliaments; our courts should not enforce laws through a British court system. It has taken a long time to reach this position. The New Zealand public have actually moved to be New Zealanders a long time before many of the conservative parties in this Parliament. I am not sure what underlies their appeal to the populace, because the populace is actually asking for a New Zealand that holds its head up high. That is very clear.

I find it strange, too, that those conservative parties in this Parliament who say this bill is a constitutional outrage have not assembled their forces here to fight it. How many times in this Parliament have I, and others, heard that the sky will fall in if a certain measure occurs? Are those members who are frightened that the sky will fall in busy digging shelters somewhere? I do not think so. I do not think there is sincerity behind their position.

If patriotism is the last refuge of a scoundrel, then I think the constitutional argument often is as well, because terrible things have been done in this Parliament in terms of New Zealand’s independence. One of them, which the ACT leader took part in, was to sell the public assets that are our birthright. In opinion polls, 97 percent of the population were against the sale of our assets, yet that member pushed ahead with the sale of New Zealand’s vital assets in that period, and set National up for the sale of many more. To me, that is an outrage—constitutional or otherwise—and it was done in the face of what the New Zealand population wanted. If there were any doubt about that, members should look at the election results of 1990, and through the 1990s. That will show them what an outrage the public considered the sale of assets to be.

This step does not abolish an appeal right; it replaces an appeal right. We join so many other countries inside the British Commonwealth that have taken this step long before us. There is an argument running that this legislation is a step towards republicanism. I wish it were so, for I am a republican, but I do not pin my hopes on it. The historical evidence simply does not point that way. I believe that Australia abolished the appeal right in 1986, and Canada did it many years before, but both are still a part of a system that has a monarch as Head of State. Is it a step towards those changes? It might be part of the debate on how we should become an independent country, but it does not follow that republicanism follows from it. As I have said, we just have to look at those other countries.

What does it do in terms of giving the people of New Zealand access to justice? For a start, it broadens the number of courts that can take an issue to a level of appeal that is now reserved for a very small number of people in New Zealand. I note that the National Party has said through its spokesperson, Mr Worth, that the Privy Council delivers a Rolls Royce service. Not many of us aspire, or have the means, to have a Rolls Royce service. As ordinary citizens, we are happy to have just a good service, but I think the term points to what the National Party, ACT, and United Future are talking about. The Privy Council is mainly at the disposal of large business interests. Of course, others get there from time to time, but in the main it seems to me that big business likes to use it as a weapon to bludgeon others: “We’ll take you to the Privy Council. You can’t afford to go there.” That is what “Rolls Royce service” actually means. That is why United Future has changed its opinion. United Future members have seen that the Business Roundtable wants to keep the Privy Council. They look to organisations like that to give them support politically, financially, or whatever—I am not sure. That is why they have changed their position, because it is easier to appease and please that group than to advocate for the interest of ordinary New Zealanders.

This new appeal level will reflect New Zealand’s talent. There has been an argument—apparently only in the British courts—that the best brains and legal talent are on the Privy Council. It must only be male talent, because there is not one woman on the Privy Council. Presumably, the conservative parties in this Parliament are saying that even in Britain, with its large population, women are not good enough to get on to the Privy Council. I do not think so. If they take the trouble to go through the list of the schools those judges are drawn from, they will see that they are drawn from the elite public schools of Great Britain. Surely, in a country that is founded on getting away from a class-ridden society, and that has tried to develop a democracy where the poorest child can go through to hold the highest position in the land, we are not going to bow our knee to that.

I look forward to many changes in this country, but those of us who harbour the wish that we become as much of a socialist country as possible—in the sense that we have a country that is equal, that is as democratic as possible—are not using this bill to smuggle those things through. If that were so, I doubt whether John Howard would be a supporter of the Privy Council being abolished in Australia, which I believe he was. I do not believe that those in Canada who voted for the abolition of the link to the Privy Council were secret socialists. If they were, then their plan was not a very good one, for history does not bear them out. We have here a day of celebration for anybody who wants to make sure that the institutions we set up reflect New Zealand’s traditions, values, and the needs of the New Zealand people.

National opposes this bill, and when we get back into Government in 2005, along with our supporters on this side of the House, we will bring back appeals to the Privy Council. The loss of the Privy Council to New Zealand’s court structure will be a sad day for this country. It will go down as a day when Margaret Wilson, the Attorney-General, had her way with her socialist, republican agenda. Māori members on the other side of the House ought to be worried about that. The problem is that this is a change that is being made against the will and the wishes of the New Zealand public. It is a change that will be made by a minority Government with only three votes to spare. That is why it is an outrage, and, as I said, it is being done by stealth and to Margaret Wilson’s agenda, and we, the public of New Zealand, are the recipients of that. However, mark my words, the public of New Zealand have woken up to her. They consider her to be one of the most dangerous women in this country, because they can see that, by hook or by crook, she is setting out on a path to change the face of our constitution without their consent. That is where the outrage comes in.

In case I forget, I want to say that I am very pleased that United Future—now that we are back in the House, having completed the select committee process—has indicated clearly that it will oppose this legislation. Members of the Greens, however, in their sort of dithery way, right through the select committee process, pretended, in my view, that they would take notice of the submissions, particularly Māori submissions. Nandor Tanczos was quite vocal on the fact that he wanted to see where the weight of Māori opinion was, and he said he had an open mind. Well, I do not know what happened to his mind in the end. It closed—because he heard the majority of Māori submissions, just as I did, yet, regardless of the fact that the majority were against the abolition of the Privy Council, in the end Nandor Tanczos clearly went back to his caucus and said: “I’m happy with the bill.” It is to his and his party’s great shame that they happily stand up in this Chamber and babble on about Māori tino rangatiratanga. I have heard things from them about what that stands for that I have never heard from Māori people, but that is what they do—they stand up and babble on about Māori tino rangatiratanga. When they had the chance to show they appreciated what that was and that they would support it, what did they do? They turned their backs on Māori and showed, in essence, that they do not understand what Māori tino rangatiratanga is.

I also want to turn to the Māori MPs in the Government. Seven of those MPs are in Government on the strength of the Māori votes. As I look across the House, I see my whanaunga from the Bay of Plenty, Mita Ririnui. We were both on the select committee in Rotorua, as was the Rt Hon Winston Peters, and no doubt he will say something just as damning of those Māori MPs. Miti Ririnui heard the severe opposition by Māori submitters to this bill. But it is kind of like: “Well, yes, OK, we hear you Māori”, but either they do not hear or they give no credence to the Māori arguments, and I think that that is disgusting. Māori people know exactly what they are talking about when they talk about things like the constitution and the court structure. They have had so much experience of all of that over 160 years. They know exactly what they are talking about when they talk about the foreshore and seabed, as well. Yet the Māori MPs have given no indication that they took any of the arguments from the Opposition on board. They have not replied, which would have been normal courtesy in my view. It would have been in keeping with tikanga to go back to the Māori electorate and say: “Well, we heard your arguments.”, then discuss each of those arguments. That would have been tikanga, but no, the Māori Labour MPs will go down in this House with what, I think, will not be a proud record, at all. They are helping Margaret Wilson to shepherd this legislation through. Goodness knows what they will do on the foreshore and seabed issue. They are in power on the strength of the Māori vote, and they ignore that vote at their peril, and that is what they are doing here in relation to this bill.

The weight of the opinion before the select committee, as we have been told a number of times already, was that just over 70 percent of the submissions are opposed to the Supreme Court Bill. Given the weight of the opposition from business, Māori interests, representative groups, like Local Government New Zealand, and so on, and Federated Farmers, many, many individuals, and the legal profession, as well, I would think that this Government might have slowed down and decided that, really, there is no rush for this—because there is not. There is no rush for this. They might have taken it into their heads to think: “Well, maybe, when people come to us and say this is a major constitutional move, and that it should not be done without the will of the public of New Zealand or a 75 percent majority in this House, we will take two steps back and think about it, and perhaps put it on hold.” But no, they are determined to push this through. They are determined to push it through in the face of major opposition. That opposition was absolutely evident throughout the 4 or 5 months that we sat on the select committee. Nothing that Margaret Wilson or any of the Government speakers has said answers what, I think, were very valid, cogent arguments put to us by those who took the time and delivered their submissions before the committee.

The point about the Māori opposition—particularly based, as it was, on opposition to a constitutional change of this magnitude when issues like the place of the Treaty of Waitangi in New Zealand’s constitution have not been properly debated or considered—and issues like that, in my view, ought to have made the Government slow down. Addressing those issues by way of changes to the purpose clause and the leave provisions does not answer the objection, no matter what Nandor Tanczos might think. I am sure he thinks that Māori ought to be happy now because the Treaty of Waitangi is referred to in both the purpose clause and the leave provisions. Well, he needs to think again, because that does not address any of the arguments that they put, and it will not satisfy the opposition that they brought to us.

I think this is a sad day. We have come back from the select committee, and I want to thank the select committee officials and the departmental officials. They were extremely helpful. But in the end, I guess they have a little bit of responsibility, in a way, to bring back advice that basically supports what this Government wants. They certainly answered all the queries and the requests from the Opposition, but ultimately, I guess, when it comes to the crunch, this Government is embarking on a course of its own regardless of who supports it. I suppose that in a way the official advice probably has to reflect that. I do not mean any disrespect to the officials, but I guess that is the way it goes. I come back to where I started—this is a sad day. It will be a sad day for New Zealand when access to the Privy Council is lost to us. The existence of an independent arbiter at the highest level of our court structure is something we are so fortunate to have, and is something that we will all be the worse off for when it is gone.

I stand to take a brief call in this second reading debate on the Supreme Court Bill, but before doing so I join some of my colleagues, including Nandor Tanczos, in congratulating the clerks, officials, and advisers to the Justice and Electoral Committee on their accurate and timely advice in assisting the committees to bring this bill back to the House.

Is it not amazing that people say one thing in Opposition and say something else when they are in Government? I was listening very carefully to the previous speakers and the statements that they made in opposition to the abolition of the Privy Council. I, too, will make some statements about the strength of the Māori submissions during the submission process. I heard the question earlier on, from the National Party member Richard Worth: “Why do away with it?”. Well, I want to quote what a couple of his own party members said in 1994 and 1995. In 1994 the Hon Nick Smith said: “I am one of those who believe that the Privy Council has out-served its time.” Now, that is exactly how we feel on this side of the House, and, surprisingly enough, even though a lot of submissions from Māori were concerned about the abolition of the Privy Council, many did say that it is running out of time and that its shelf life is almost up. In 1994, and in 1995, the Hon Maurice Williamson—admittedly at No. 28 on the National Party list—said: “I think the Privy Council is outdated.” In 1995 he also said: “We should not have to trot off to London for certain permissions on all sorts of constitutional matters. We should do it here.” Now, it does not come any more accurate than that! I want to congratulate those members on making those statements. They probably would have had their legislation up before this House had they not been told to withdraw it by “you know who.”

I want to speak briefly on the submissions from Māori groups, and I congratulate Nandor Tanczos because he actually did listen to what they were saying. On the one hand, they were saying that they have a concern—

Rt Hon Winston Peters: Rubbish!

MITA RIRINUI: The member will have his opportunity to speak. Māori did say to the select committee that they oppose the abolition of the Privy Council for one reason and one reason alone—because as yet we do not have a written constitution in place. That was the main concern of those groups, and, of course, it is a concern to many of us. But we were able to satisfy those submitters by explaining that we are proposing a constitutional inquiry through the same select committee process, and that, by and large, satisfied many of those people. The Hon Richard Prebble has described Margaret Wilson as the most dangerous politician in this country. Well, let me tell that member something. Margaret Wilson has put the Treaty of Waitangi at a level that we can all debate. She has also made sure that it is included in much of our legislation. Members can be sure, as well, that when we come to a constitutional debate, the treaty will be prominent. It is interesting that New Zealand First member Dail Jones’ idea of a treaty policy is having a hui on a marae. Well, I tell Mr Jones that the treaty is bigger than that. It is about all of us having a debate. It is not just the Māori treaty—

Rt Hon Winston Peters: What did Judge Hingston say at Rotorua?

MITA RIRINUI: Well, he actually said that he was speaking on behalf of the paramount chief of Ngāti Tuwharetoa. What happened the next day? There was a disclaimer in the New Zealand Herald. What does Mr Peters think of that? I got it right. That member went to Rotorua not to assist those submitters in the process but to advocate for votes. That is all.

Sitting suspended from 6 p.m. to 7.30 p.m.

I am somewhat surprised to find that Mita Ririnui is not here to complete his speech. He said he would talk about a number of issues. He dealt with none of them in any substance and length, and after 4 minutes he has resigned his position and left it to the House to get on with the debate. That underscores exactly what is going on in the world of Māori politics, where the Labour Party is concerned.

We have a system that has worked effectively in New Zealand for well over 100 years, at no cost to the New Zealand taxpayer at all. The reasons for fixing something that is not broken must therefore 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—rather unusually—overseas judges to be on the Supreme Court. What is eccentric about providing an important constitutional safeguard in a country that has neither a written constitution nor an Upper House? What is anachronistic about the vision of a two-tier system of appeal? That is fundamental to the interests of justice, and allows the full development of legal argument. Lord Cooke’s suggestion that the proposed Supreme Court panel of judges should include overseas judges is contradictory. That is another reason for the retention of the Privy Council, which already provides that.

What are the real advantages of this nation of 4 million people going judicially alone? Lord Cooke claims that including overseas judges on the Supreme Court panel would ensure diversity and resist the tendency to be isolationist or inward looking. Precisely, Lord Cooke, precisely! It is the independence and geographic remoteness of the Privy Council that provides the 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 wine box, and I will deal with that issue shortly.

Lord Cooke said that the people could not be trusted on this decision.

Dail Jones: It made him tremble.

Rt Hon WINSTON PETERS: It made him tremble to think that the people may be allowed to make this decision. I do not want to criticise the learned judge, other than to say that it makes people tremble more to think that, without any mandate from the people of this country, the judiciary would decide what our rules and constitutional precedents should be. That would concern people more than making the decision themselves.

I say this in respect of the background of this legislation. A discussion paper titled Reshaping New Zealand’s Appeal Structure was released three Christmases ago, and that so-called discussion paper is now being touted as consultation in respect of the abolition of the Privy Council. It was no such thing, and Margaret Wilson knows full well that it was no such thing. To many Māori, the appeal to the Judicial Committee of the Privy Council is seen as a symbolic link to the British monarch, and as a protecting factor in relation to issues of concern. The lack of real consultation on this proposal is deplorable, and every Māori member in this Parliament knows that, where the Māori people are concerned, and every other MP knows that, where professional groups and others are concerned. A small group of pseudo-academics in the current administration is hijacking New Zealand’s constitutional processes, and it will ignore public opinion at its peril.

We in New Zealand First intend to be back in the next Government, and the first thing we will do is to repeal this legislation and restore the constitutional arrangements we have enjoyed for over 100 years. That will be the first thing that we will do. To anybody who has any high and mighty ideas of promotion to the judiciary, I tell that person, or the institution that is thinking of promoting him or her, that it will be a very short-term occupation—if any at all, given the time it will take to set up the Supreme Court.

I have this to say about the seven Labour Māori MPs. It comes down to this: the vote for this bill will be by a bare majority, and the seven Labour Māori MPs in the Māori seats have betrayed their people again.

Jill Pettis: Rubbish!

Rt Hon WINSTON PETERS: Here comes the fishwife to speak for the Māori members. The usual paternalism that emanates from Labour has her speaking for the Māori members now. It is the socialist version of the white man’s burden that Labour does not have Māori speak for themselves. That woman, who just made it back in Whanganui at the last election and who will be beaten next time, speaks for Māori. The seven Labour Māori MPs have betrayed their people, again. They have ignored Māori leadership, again. They have deserted Māori people, and Māori institutions and beliefs, again. They have distrusted the Māori people, again. Anyone who knows anything about Māori society knows full well that from Kaitaia to Invercargill, Māoridom is against this measure.

Jill Pettis: Why did you deny you were Māori?

Rt Hon WINSTON PETERS: I have never done that. How could the captain of the Auckland Māori team deny that he was Māori? I totally debunk that in one statement, just like that. I hear that kind of lie often. But how could the captain of the Auckland Māori team for years claim that he was not Māori? I have debunked that already. I hoped not to hear that rubbish, but I know that it is market day, and anything can happen on market day.

The seven Māori members in the Māori seats do not trust the Māori people. Instead, they trust Helen Clark. They trust not the Māori people. Instead, they trust Margaret Wilson, who will not be in Parliament after the next election. She is a temporarily empowered Minister, who is soon to go. She will write her stamp over the New Zealand system, regardless of how unpopular it is. Margaret Wilson was president of the Labour Party during the 1984-90 period. Margaret Wilson knows—and books reveal this, and it is confirmed by David Lange—that millions of dollars had been given by dubious businesses to the Labour Party, to fund its campaign. At the same time, Labour was implementing policies that were very destructive in terms of Māori employment, and tens of thousands of Māori lost their opportunities forever. Six hundred Māori families went out of fishing between Mahia and Whangarei alone, as a consequence of Labour’s changes to the fishing laws. That is the Margaret Wilson whom the Māori members trust, but they do not trust Api Mahuika and every other senior Māori elder in this country. They do not trust the elders of Ngāti Whakaue of Rotorua, who got into the Māori members in a big way, and, in particular, into Mita Ririnui. They gave the message very clearly. If Nandor or “Tandor” could not understand that, it is beyond me. He said that the Greens would listen to the Māori people and would heed them. The Greens had no such intention.

It is a fact that such an important issue as this has never passed this way. [Interruption] I do not want to hear that rubbish from that woman over there. With the greatest of respect, she knows nothing of the Māori world, but she claims she is one. She should give us a sign of that, because right now it is New Zealand’s best-kept secret. If the Māori people’s interests were given here in Parliament and that member’s own socialist views were to be asked for to balance them out, we all know who would win.

I say to those seven Māori members that at the end of the next election they will have found out just what a betrayal the Māori people have experienced at their hands. When the party vote comes in, it will be all over. But the good news for Māori is that we in New Zealand First will be back, and this legislation will be out.

The Māori vote spoken about by the previous member is represented by rhetoric and bullying, and that member knows very well that most submitters on that issue at the hui at Rotorua had not read the bill. That included former Judge Heta Hingston of the Māori Land Court, who spoke loudly in opposition to the bill but who, when I asked, admitted that he had not read the bill. That was the substance of the submissions. The submitters were wound up by that member for the benefit of that member’s vote, as he tried to curry favour with and mislead the submitters.

Yet what has the Privy Council done for Māori? The Privy Council has done for Māori precisely what it has done for the rest of New Zealanders: very, very little. In 2001, President Gault of the Court of Appeal said that 95 percent of the cases in New Zealand never go to the Privy Council, and that the Court of Appeal is virtually the final court of appeal for most cases in New Zealand. That is because the jurisdiction to get a case to London is so narrow. And when people do get to London with their cases, they often find it is a New Zealand judge who will preside.

Let me take the case of Chris Wingate, who paid $3.5 million in New Zealand to have his case defended. After the High Court had twice found in his favour he went to the Privy Council, paying $1 million for English counsel. There his case was rejected, in a judgment written by a New Zealand judge. That is not English justice; that is New Zealand justice delivered 12,000 miles away. Those who have spoken against this proposal and most submitters have never been to the Privy Council. They have no concept of what it is like. They have the belief that the Privy Council is much better than our courts because it is a long way away in England, and, because it is free, it must be far better still. Well, Winston Peters is free to most people in this country, but he is not admired by many of them.

This bill will bring to all New Zealanders a right of final appeal before a court that is made up of people who understand and represent New Zealand. Recently in my electorate of Napier one of the country’s most profitable freezing works companies, the Richmond freezing company, was subject to an underhand takeover by a South Island freezing works, PPCS Ltd. The High Court found that its efforts were dishonest. Recently the Court of Appeal released a judgment upholding the PPCS appeal and overturning the High Court judgment in favour of the Richmond freezing company. And what did that major freezing works say? It said it could not afford the cost of going to the Privy Council. So even in the commercial sector, the most recent instance of a matter that should be taken to a higher court languishes undecided, because London is too far away and too inaccessible.

It is not just commercial cases that are affected by that. What has the track record of the Privy Council been in respect of Māori in recent times? It has been nothing at all; the cases are sent back to New Zealand for decision. Litigants who have no money whatsoever have to rely on a lawyer who is prepared to do the work for nothing and to go to London to argue the case, because the cost of getting legal aid is too prohibitive. Many people are languishing in our jails right now who have taken good cases to the Court of Appeal and have been concerned about its judgments, solely because that court handles nine times the amount of work of any other final appellate court in a Commonwealth jurisdiction. The Court of Appeal turns out 450-odd judgments a year, whereas a final appellate court should address just 50 cases or fewer—as will the Supreme Court.

When we get a final court of appeal—the Supreme Court of New Zealand—that handles a reasonable number of cases, we will get considered decisions that reflect the major movements in our law in this country. It will give service to the people of New Zealand and give judgments that people will be satisfied with. We have the intellectual capability here, because our judges are welcome to sit on the Privy Council. We have the training here, and we will develop a Bar that will be able to argue at the final level of appeal. At present we have a Bar that is not experienced in arguing at the second level of appeal, because so few of its members go to London. We will develop a jurisprudence that reflects New Zealand, we will develop an expertise with our legal profession that will develop New Zealand, and we will develop a respect in the Commonwealth for our judicial system—a respect that we engender in all activities in this country.

I endorse this bill thoroughly, because it brings New Zealand justice home to this country—justice by New Zealanders. It will be justice of a standard we all desire, and we will get top-shelf decisions from our top judicial leaders. They will deliver judgments that will lead us into the rest of this century. I support this bill.