Dialogue: Privy Council still valuable forum for resolving issues

By PHILIP WARREN*

In recent weeks, we have seen a number of issues and cases that look set to head over the waters to the Privy Council in London. The likes, for example, of Maori land claims and driver licence objections.

So why England and why the Privy Council? Many of the legal arguments that remain unresolved under New Zealand law are complex, technical in nature and have a commercial value associated with them that is very significant.

And while I am not saying that our legal professionals or the judicial system in New Zealand are not capable of ruling on such cases, there are circumstances where New Zealand law is either unclear or undeveloped. And for many, the only option is to keep open recourse to a further tier of judiciary.

At least the Privy Council offers a degree of freshness of perspective and objectivity, particularly in respect of matters that are emotional issues locally. At the same time, it applies a common tradition, framework and approach to resolving legal disputes.

Perhaps more so, the Privy Council is able to draw on a larger pool of judicial skills and experiences than the relatively limited resources and cases of New Zealand alone Some may argue that moving a case to England loses a degree of local knowledge and understanding. Not so. For a number of years, it has been the practice to appoint certain judges from the overseas jurisdiction as Privy Councillors and, on occasions, to include them in sittings of the council.

In this way, any necessary appreciation and understanding of local context can sometimes be achieved. This practice could be extended to ensure a New Zealand judge sits on all New Zealand appeals.

If appeals to the Privy Council were abolished, it would be necessary to create a new appellate court. It may be difficult to achieve a satisfactory new court from New Zealand resources. It may also require a review of the present relationships between the district courts, the High Court and the Court of Appeal, and consideration of whether a special appellate forum is required for constitutional or Treaty of Waitangi issues.

If such a new appellate court were to be established, even part-time and using existing court buildings, its costs would need to be borne totally by the New Zealand taxpayer. At present, there is little or no direct cost to the taxpayer for maintaining such a forum.

It has also been suggested that current or retired New Zealand judges could be used for a new local appellate court, possibly supplemented by overseas judges. The use of existing or retired local judges does not provide the necessary element of separation, freshness of approach or perceived independence from the judges at the level from which appeals arise.

There is already frequent involvement of individual High Court judges sitting with the Court of Appeal and there is a danger a further appellate court drawing on the same pool of judges would be too closely intermingled to allow its decisions to be seen as truly independent from those of the courts appealed from.

Finally, New Zealand is headed by the English monarch, but in her capacity as Queen of New Zealand, New Zealand is regarded as a separate and independent realm. While this state remains, arguably it does not offend notions of sovereignty that a final level of appeal remains to the judicial committee of the Privy Council.

Such a body may be seen as a direct link with the monarch and as particularly important for constitutional and Treaty of Waitangi issues. Any move to abolish appeals to the Privy Council, therefore, involves significant constitutional change. There is no compelling need or reason for such change.

Clearly, the ongoing retention of the Privy Council is a matter for further public debate. But recourse to the Privy Council must be a welcome remedy in circumstances where the rule of New Zealand law is less developed.

Reducing this country's access to the accumulated wisdom of the Privy Council judiciary is both unnecessary and grossly inefficient. The system appears to have worked well in the past, so why knock it?

By the way, the Auckland Regional Council is the respondent to forthcoming Privy Council action. It has been engaged in litigation with the Commissioner of Inland Revenue on a tax matter which arose from the divestment of Auckland Regional Authority assets.

Typically for cases which go to the Privy Council, the legal arguments are complex and technical. The judgments to date have been evenly weighted, with no clear consensus on the issue on which the Privy Council will rule.

* Philip Warren is chairman of the Auckland Regional Council.