Dialogue: We have the legal skills to stand alone

By COLIN KEATING*

As a diplomat representing New Zealand overseas you get a very good window on the international reputation of various sectors of our economy.

My observation, from 27 years in that capacity, is that the New Zealand legal community, particularly the judiciary, has a very high international reputation. Moreover, it is one of the sectors where New Zealand is clearly seen as punching above its weight.

By international standards, the New Zealand business community is extremely well-served by the quality, skills and reputation of all the components of our legal system.

No one would deny that the pool of individual judicial talent in London (or Washington or Australia for that matter) is likely to be greater than in Wellington. But that is not a conclusive argument for our top court being in London.

It is equally obvious that the potential pool of political talent, of administrative talent, of financial services talent and even business talent is much greater in London as well.

If we followed the logic of some who support retaining Privy Council appeals, then NZ business would be better served if our laws were made at Westminster, if our Government departments were run by chief executives in Whitehall, and if all our big financial and business ventures were run from the City.

This demonstrates the basic lack of common sense behind the argument that the Privy Council should stay. And it is all the more nonsensical when you reflect on the fact that, seen from an international perspective, the New Zealand legal community stacks up rather better in terms of reputation, credibility and competitive advantage for the country than many other sectors of the economy.

Certainly, when we repatriate all appeals to New Zealand, we will need a new top court to replace the Privy Council. And there are some important practical issues to resolve in that context.

It needs judges who will command the respect of the business community as well as other sectors of society. And we should be open in this age of globalisation to including an occasional foreign judge on our top court.

We need to acknowledge that this court will cost more in judges' salaries, staff and facilities.

The Privy Council has been a cheapskate option for New Zealand for many years - a saving for the Government but not for private litigants. It is well past time to stop freeloading on the British taxpayers.

It should also be acknowledged that, for some business deals, the specialist skills of overseas adjudication may still be desirable. But in those cases, the private option of writing international arbitration provisions into the contracts should perhaps be used more often.

And why limit international private adjudication to London? We can get the best legal minds globally by including the United States and Europe as well.

But my main concern about many of the arguments made in favour of retaining the Privy Council is that they are so self-defeating.

The last thing our economy and business need is for people to wallow in a self-flagellating debate based on sentiment and politics.

When people run the argument that New Zealand is too small, too fragile and that foreigners do it better, we only talk ourselves down. And in the process, we talk down our national credibility and business confidence.

If New Zealand thinks small and thinks helpless, then that is what we will become.

Business interests are best-served by a robust and deserved confidence in ourselves, in our governance structures and in our ability to run a world-class legal system of our own.

* Colin Keating is a partner in law firm Chen Palmer & Partners. He is a former Secretary for Justice, former international legal adviser for the Ministry of Foreign Affairs and Trade and a former ambassador. E-mail: colin.keating@chenpalm.co.nz

* TOMORROW: In the first of a three-part series, Ted Thomas, QC, recently retired from the Court of Appeal, gives his views on the Privy Council connection.