Supreme Court rulings extolled

Critical judgments issued by the five Supreme Court judges on politically contentious cases such as Deborah Manning's campaign for Algerian refugee Ahmed Zaoui to be released on bail have been acclaimed by the legal profession. Picture / Dean Purcell

Some politicians believe Chief Justice Sian Elias pulled off a constitutional coup by persuading the Government to put New Zealand's most senior judges on the Supreme Court.

They may be right.

Critical judgments issued by the five Supreme Court judges on politically contentious cases such as former Act MP Donna Awatere Huata's bid to stay in Parliament, and, Algerian refugee Ahmed Zaoui's campaign to be released on bail have been acclaimed by the legal profession as showing all the hallmarks of a weighty final appellate court.

This is not a court which should be marked down.

It may have been drawn from a limited gene pool - as critics of the decision to axe New Zealand's right of appeal to the Privy Council contended - but its initial judgments are rated as "conservative" by experts such as Chapman Tripp's Jack Hodder.

A de facto war between the Executive and judiciary created much angst among the players. Top lawyers point to an upside: If there were any concerns that the Supreme Court would be somehow politically stacked the jousting shows judicial independence is alive and well in New Zealand.

"We have judges who are speaking their minds and a Government that is robustly responding - but finds judges an irritant," said a top Auckland barrister. "They all play lip service in public. But in private they're a wretched nuisance ... it's like Thomas Becket ... they'd hack them to death."

The silk's hyperbole underscores an unfortunate truth.

Yesterday the Executive dipped into its dirt-bag accusing Maori Land Court chief judge Joe Williams of making public details of a coastline claim made under the Foreshore and Seabed Act.

Weekend news stories that Judge Williams had agreed to hear Whakatohea's claim for kaitaikitanga (authority and guardianship) over 50km of coastline in Eastern Bay of Plenty incensed Prime Minister Helen Clark and Deputy Prime Minister Michael Cullen, who fronted the attack in Parliament. Cullen warned the Crown would take a vigorous position and indicated he was not prepared to rule out an appeal.

If the case goes to the wire it is likely to join other politically nuanced issues - such as the Zaoui case - on the Supreme Court's plate.

The Government will shortly be faced with a quandary.

Two Supreme Court judges - Sir Kenneth Keith and Thomas (Tom) Gault - retire within the next 18 months.

Unfortunately for Cullen, his fellow Cabinet Minister Trevor Mallard has already thrown an arrow into the Supreme Court's heart telling a soiree it was a pity the judges had not been "appointed on merit". Mallard's comments - which Clark claims he made under Chatham House rules - were double-edged.

On one hand he was retaliating for Elias' propensity to "speak out" - but was also perceived to be giving a signal the Government would make a careful choice when filling the upcoming vacancies.

The absurdity of Mallard's swipe is underlined by the fact that Sir Kenneth is rated so meritoriously by the Clark Government that it is supporting his bid for a seat on the International Court of Justice.

Sir Kenneth, who is due to retire in November when he reaches the statutory retirement age of 68, may resign earlier if he wins a place in this year's election. Gault, who along with Sir Kenneth, joined Elias in a controversial appearance in front of a House of Lords select committee, faces statutory retirement in 18 months.

The appointment process is critical.

Clark, who has publicly praised the Supreme Court judges, notes they had all been appointed by National to the Court of Appeal.

Critics say this is the first opportunity Labour has to subtly influence the composition of the Supreme Court - if it chooses.

 

But they warn that if Cullen persists in casting aspersions on the profession and raising the bogey of "judicial activism" - even though unlikely - it will make it more difficult for him to persuade high-calibre candidates to accept appointment. Act MP Stephen Frank says the most important aspect will be to weigh the philosophical inclinations of prospective candidates to ensure the Supreme Court is balanced.

Franks believes the Government will be "looking for things that are never written down". Whether a prospective Supreme Court judge is "prone to adventuring or vain enough to want to stamp their own mark on history".

He maintains the last thing Cullen will want is to pave the way for another magisterial figure like former Court of Appeal Judge Robin Cooke (now Lord Thorndon).

"In some periods people would like that because of the excitement and progressivism. In other times they will just want a safe pair of hands - give me the most boringly predictable black letter lawyer and I'll feel comfortable."

Cullen will recommend the replacements.

Court of Appeal president Noel Anderson is an obvious choice if he opts for seniority. But Anderson has been president only for a short time and may be needed to give continuity on that bench. Justices John McGrath and Susan Glazebrook are the next most senior.

A process has yet to be outlined.

Former Attorney-General Margaret Wilson spearheaded the Government-led debate on axing appeals to the Privy Council in favour of a New Zealand Supreme Court.

Wilson - a former Labour Party president and head of the PM's office in Sir Geoffrey Palmer's Beehive days - has strong law qualifications herself but was considered too partisan by her legal peers be "truly effective".

It was Wilson who indicated to Parliament that she was comfortable to follow a British example: Release a discussion paper and hold an inquiry into whether a separate commission should be established to recommend judicial appointments. But the discussion paper has yet to emerge.

National's justice spokesman, Richard Worth, is opposed to a judicial appointments commission. "I think that allows the Government to put in place what was probably its plan from the outset which is a politically appointed Supreme Court.

"By stacking first appointments on the commission you produce the outcomes you want."

Worth wants the current system to continue so there is "one person of whom it can be said that he or she was responsible".

The Government's volatile response to Judge Williams indicates there could well be more scraps ahead.

Elias' fearless campaign to ensure judicial independence for the new Supreme Court may backfire is she is not careful.

Lord (Harry) Woolf - who remains as Lord Chief Justice of England and Wales - received a raft of counter-attacks from Tony Blair's attack dogs - in particular former Home Secretary David Blunkett who labelled him a "confused old codger".

Among Woolf's egregious sins was to suggest Blunkett's plans to limit the rights for asylum seekers were "fundamentally in conflict with the law".

The critical issue is that Woolf got offside after taking a public stance on sentencing "which must be taken out of politics" - the "provisions are bespattered with what a judge must do". He attacked proposals to force judges to run their courts in specific ways; end automatic rights to jury trial and water down the double jeopardy rule - "courts could become tools of Government policy".

He panned plans for a new British Supreme Court saying: "Though called a Supreme Court - it will not in fact be a Supreme Court - as it would not be endowed with powers to rule legislation invalid as is the case in the US".

The Herald spoke to a wide range of barristers and lawyers about Elias and judicial independence.

There is strong support for her campaign to reinstate a defined benefit scheme for judges. And strong sympathy for her contention that judicial independence would be strengthened if the judiciary's "immediate support systems" such as IT networks, office security and employees were under judicial control, not the Justice Ministry.

While Elias has not herself come out and said so directly, others point to the clear jeopardy that the judiciary's correspondence and deliberations "could be tapped into" by a party seeking an unscrupulous advantage.

Barristers relate stories of judges' notes going missing from the files, judges being told how much time they should lock people up for. "Look what happened to Bob Fisher - somebody found out he used his computer to watch a dirty video. That means somebody in the department of courts ruled it was their business to monitor what the judge was doing on his computer. Well if it's good enough for them to doing that why aren't they looking at draft judgments for example?"

Cullen's statement in Parliament yesterday, that Judge Williams had released the confidential minute detailing his decision to Herald on Sunday political editor Jonathan Milne undermines confidence in both the judiciary and himself - as Attorney-General.

Where the bar does have a collective gripe with Elias is over her refusal to allow specialisation on the bench.

Barristers point to instances where High Court judges do not have sufficient technical expertise to adjudicate complex cases such as on tax and resource management issues.

"She resolutely refuses to do it against the wishes of the majority and certainly the wishes of the profession," said one high-profile Queens Counsel.

"In Auckland hardly any commercial work is going to the courts," said a solicitor. "But those doing the arbitration get pissed off because the serious law is only known privately to a few people."

The upshot is many business people avoid the courts and go straight to arbitration. In 1990, 5276 civil claims were filed with the High Court. Today, the annual figure is more like 1300, of which about 400 are minor matters dealt with on an undefended basis.

Lawyers point to a serious constitutional risk emerging that cases not going to the courts in the first place, or, being judged by inappropriate judges if they do.

Behind the issue is a perception that the Executive - particularly the Justice Ministry and Treasury - sees the courts as providing commercial players a platform to settle disputes at a very low cost.

The criticism is to some extent unfair. Even the Law Commission in its report "Making Justice Fairer for all" does not recommend abandoning plans to scrap the High Court commercial list, or, a move to greater specialisation.

But if the lower courts - particularly the High Court - does not attract specialists, the gene pool for future Supreme Courts will be limited.

Of even more immediate concern is the suggestion the Executive is pricing access to justice "off the market" through an escalation in court fees.

The Law Society and the Bar Association have waged a campaign to force the executive to account for regulated fees increases ranging from 14 per cent to 1592 per cent since 2001.

The two organisations argue that the regulations were an improper use of delegated power of such a magnitude that they were more properly decided by Parliament than by regulation.

Parliament's Regulations Review Committee, which studied the complaint, said, "We consider that access to justice is so fundamental that a move to use fees to ration access would require explicit legislative authority."

The committee also expressed concern at the 50 per cent cost recovery target underpinning the fee levels, which it said had led to inflexibility.

Suggestions persist that the overall make-up of the judiciary had been undergoing a re-engineering operation by former Attorney-General Margaret Wilson (and Elias) along gender, and, party lines in the case of one district court judge appointment.

Typical comments from the notoriously bitchy profession: "The white-middle class male is an endangered species on the bench"; "What's the point of having an advisory panel if she doesn't accept its recommendations."

In reality the truth is more prosaic. A report out this week shows many more women have been appointed as judges in recent years - but the ratio of women being appointed to the bench is still far less than that of men - particularly when the numbers of qualified candidates are measured. The so-called political appointee had the requisite qualification.

The Supreme Court

Why the Supreme Court was set up:

* To recognise that New Zealand is an independent nation with its own history and traditions
* To enable important legal matters, including those relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history and traditions
* To improve access to justice.
* The Supreme Court has wide powers to hear: Appeals on civil matters; appeals on criminal cases - if satisfied it involves a matter of general or public importance, a substantial miscarriage of justice may have occurred or a matter of general commercial significance.