Richard Cornes: Don't drop commitment to the rule of law

Labour's Jacinda Ardern has lodged papers to reinstate the missing provisions. Photo / Brett Phibbs

Parliament seems about to drop New Zealand's commitment to the rule of law and parliamentary sovereignty from the act underpinning the judicial branch in New Zealand. That really is quite odd.

The main act being replaced dates back to 1908. It was passed when our longest serving Chief Justice, Shetland-born Sir Robert Stout, was in office. Sir Robert, who had a hand in the 1908 act (and its predecessors) is one of the great New Zealanders. As well as Chief Justice he held office as Premier, Attorney-General, and Minister of Education. What Parliament is now considering would have him turning pale.

In 2003, we decided to cut off appeals to the Privy Council (something Sir Robert had called for over 100 years ago). That was a major constitutional moment for New Zealand. After months of hearings and deliberation, the then Justice and Electoral Committee, while recommending the bill to establish the Supreme Court back to Parliament, also recommended including a carefully balanced purpose clause.

In the committee's view, cutting off the Privy Council appeal needed to be joined with setting down in statute, for the first time, a commitment to the rule of law and parliamentary sovereignty. They also included reference to the Treaty of Waitangi. Sir John McGrath, just retiring from the Supreme Court (and also a former Solicitor-General), in his final sitting at the Supreme Court has just called the balance struck in 2003 "elegant".

The Judicature Modernisation Bill (running to over 1000 pages) is at its committee stage before Parliament now. The seven-page majority report back from the current Justice Committee contained no explanation for dropping New Zealand's commitment to these constitutional fundamentals. McGrath took time in his final sitting address to note his concern about this move.

The minister speaking for the Minister of Justice in the second reading debate said that the provisions, being constitutional in nature, were out of place in the new bill; their place would be in the Constitution Act. Now, if Parliament were simultaneously amending the Constitution Act to include the provisions, New Zealanders might rest. It is not though.

There are many admirable aspects to New Zealand's pragmatic approach to public affairs. It makes our nation agile. It likely contributed to the country leading the world with labour and social welfare reform in the 1890s, giving women the vote before any other nation, and having the guts as a small country to set out an independent foreign policy, an attitude which has just seen New Zealand take up a seat on the Security Council.

However, New Zealand's disinterest in too much formality carries within it a threat. Some things do need to be formally noted and marked off as requiring more than usual thought. That's why changing the term of Parliament requires a special 75 per cent vote in the single chamber legislature, or referendum approval. A commitment to the rule of law and an independent judiciary is another.

The Supreme Court Act's reference to the rule of law was a small, positive contribution to New Zealand's constitutional culture. Dropping that language is alarming. It is also an odd message to be sending internationally (including for instance to regional neighbours such as Fiji).

Labour's Jacinda Ardern has lodged papers to reinstate the missing provisions. I'd hope though that a matter of constitutional significance would not get caught up in partisan concerns. This is something all parties should be working together on in the interest of our shared constitutional future.

The Judicature Modernisation Bill will not make the front pages, but it should. I've made similar points in my submissions on the bill. There is still space to lobby on this, but not much. Time to log on and email the minister.

Dr Richard Cornes, @CornesLawNZUK, an expat Kiwi lawyer, is a visiting fellow at the University of Otago's Centre for Legal Issues, and senior lecturer at Essex University in the United Kingdom.