Dialogue: Replacing Privy Council too big a task for NZ

Axing appeals to the Privy Council means New Zealand will no longer have free access to the Commonwealth's best legal brains, writes PATRICIA SCHNAUER*.

If it ain't broke, don't fix it. Yet the Government decision to abolish appeal rights to the Privy Council contradicts that notion. Why? Because our appeal structure is not so bad it warrants wholesale demolition and replacement.

The fundamental question is: what delivers to New Zealand the highest-quality legal system? Providing for appeal rights to the top law lords in the Commonwealth must be a good start. It is impossible for New Zealand, with its small population, to provide the quality and number of judges required in any new structure.

Most people accept this. That is why, if we move away from using the Privy Council, it is suggested we would accept foreign judges here as part of any new structure.

Presumably countries providing those judges would do so on a full cost-recovery basis. It seems a waste of money setting up a whole new appeal structure when the Privy Council provides the best legal brains in the Commonwealth and does not cost taxpayers anything.

It also seems incongruous that until about 1950 or 1960 lawyers went to the Privy Council by boat and it took about six months. Today, as the world gets smaller it has never been easier to get to London.

New Zealand businesses are the largest users of the Privy Council. Of nine cases decided by the Privy Council and reported in last year's New Zealand Law Reports, six involved commercial enterprises, one of the remaining three cases involved the right to earn a living, and in another, significant commercial interests were involved.

The notion that cases are increasingly being sent back to New Zealand is not true. Only one has been remitted recently (Lange v Atkinson) and that was not a commercial case. Six of the last 16 appeals have been allowed. This highlights the important role the Privy Council plays in our legal system.

These facts also support the view that many consider appeals to the Privy Council relevant and important. This was particularly true in recent years when judicial activism was alive and well in our courts.

Our Court of Appeal has since moved from that position. But at that time it was reassuring to know that, ultimately, appeals to the Privy Council were available to clarify the law and ensure certainty, especially in contractual arrangements.

The argument that because other Commonwealth countries no longer use the Privy Council, we should follow does not stack up. New Zealand has 3.8 million people from which to draw six to eight top appellate judges. England has 60 million from which to choose 11 law lords. Any new two-tiered appeal structure would require more judges to be appointed.

Australia and Canada have abolished appeals. But they are bigger than us. South Africa and Fiji abolished appeals on constitutional grounds. Hong Kong withdrew because it is no longer subject to the law of Britain, but that of China.

New Zealand's size is relevant. Our population is about the same as that of Melbourne, yet most people would doubt that Melbourne was big enough and mature enough to have its own separate legal system, including a final appellate court.

As a country, then, we should be slow to dispense with the opportunity to have the best brains in the Commonwealth interpret our law.

The populist view that retention of appeals to the Privy Council somehow erodes our sovereignty is emotive and poorly founded.

If the argument were true, then we would equally have surrendered sovereignty by subjecting ourselves to United Nations conventions and to the International Labour Organisation committees.

The UN can pronounce on our Court of Appeal decisions through an appeal right to an entirely non-New-Zealand quasi-judicial body. This arose by our adopting the optional protocol to the United Nations Covenant on Civil and Political Rights in 1990. After all domestic remedies have been exhausted, the appeal right gives the appellant the ability to allege that our local law breaches obligations under international human rights.

Similarly, the ILO can challenge New Zealand's industrial relations legislation.

The appeal right to the Privy Council sees law lords interpreting only the law of New Zealand. It is difficult to see how this could be any greater loss of sovereignty than we may already have by being subject to UN conventions and to the ILO.

The constant appointment of New Zealand judges to the Privy Council provides those judges with a breadth of experience they would not otherwise enjoy.

It also ensures the Privy Council has a direct link with our judicial thinking.

New Zealand is fortunate to have a strong and independent judiciary that serves us well. However, we should never forget that we are a small, remote island nation at the bottom of the South Pacific.

With the move to globalisation, we will see a greater interaction between our domestic companies and those from overseas. Accordingly, it is important that our legal structure continues to be seen by the international commercial community as independent and of the highest quality.

Today the Privy Council ensures that that is so.

* Patricia Schnauer, a former MP, is a public law specialist.