Democracy V Margaret Wilson

Democracy V Margaret Wilson – By Nigel Kearney.

First published on Spectator.co.nz…

The decision to abolish the right of appeal to the Privy Council and replacing this with a new 'Supreme Court' is unjustified and disturbing.
The Privy Council protects us from political 'stacking' of our courts. Political considerations mean it is not possible for governments to implement their most extreme ideologies as law. With a politically appointed Supreme Court, a government could rely on activist judges to do this on their behalf.

The decision of the U.S. Supreme Court in favour of George W. Bush is an example of what can happen when the courts are not independent. One of the members of that court is a former Republican politician. Australia has also appointed former politicians as judges, with less than satisfactory results.

Overseas experience with this type of court shows that judges will tend not to retire until the party that appointed them is re-elected. This allows an ideologically equivalent replacement to be put in place. Margaret Wilson will be able to personally appoint all the initial members of the proposed Supreme Court so even if we continue the trend where Labour is only in government one third of the time, Labour appointed judges are likely to dominate the court indefinitely.

A Judicial Appointments Commission will not alleviate the problem and simply adds another layer of bureaucracy. It means that instead of judges being appointed by politicians, they will be appointed by people appointed by politicians. In fact, Labour will initially stack the Judicial Commission with their own people, resulting in the continued appointment of left-wing judges, long after Labour has been voted out of office.

The appointments of Rosslyn Noonan and Ella Henry to the Human Rights Commission show that Margaret Wilson cannot be trusted to place ability and integrity ahead of ideology. There have also been problems with other Labour appointees such as Susan Bathgate, Kathie Irwin and Gregory Fortuin.

At present, there is no incentive for the Government to stack the courts since the Privy Council will overrule any obviously biased decisions. This safeguard will not exist once the proposed Supreme Court takes over.

The Privy Council represents the top echelon of judicial expertise in a nation of more than 60 million people. In NZ, when a major issue comes before the court, it is common for the judge to be confronted with that issue for only the first time or second time in his career.

British judges are more likely to specialise in a particular area of law, this means that the Privy Council will always be able to appoint a panel of judges with more knowledge and experience on any particular issue than our proposed Supreme Court.

It's misleading to suggest that we are replacing one court with another. In fact, under the proposed solution, we will lose the expertise of the Privy Council judges, we'll move Court of Appeal and High Court judges into the new Supreme Court, we'll move High Court judges into the Court of Appeal, District Court judges into the High Court and appoint some new judges into the District Court.

We are, in fact, replacing the world's best judges with nothing at all.

New Zealand's small size means that conflicts of interest can easily occur, and accusations and resentment of favouritism are commonplace. The current Chief Justice is married to the head of one of our largest companies. If that company was involved in a court case, none of our top judges could easily refute accusations of bias.

International businesses are sick of being robbed in the courtrooms of tin pot dictatorships all around the world. One of our few attractions for business is a stable legal system. If foreign owned companies start losing cases against NZ companies in NZ courts with politically appointed judges, they will drop us like a hot potato.

The Privy Council is the best way for our justice system to protect itself against allegations of bias, both nationally and internationally.

Lowering the cost of appeals is easily the most spurious argument advanced in favour of the change to the new Supreme Court. New Zealand does not pay the full cost of appeals to the Privy Council and there is no requirement or advantage in hiring British barristers to argue our cases there. In fact, the proposed Supreme Court would be considerably more expensive.

In addition, a few years ago the NZ Government won a judgment worth millions of dollars in the Petrocorp case, where the Privy Council overruled the Court of Appeal. The Privy Council has more than paid for itself with this judgment alone. With a Supreme Court, we would pay more and receive less.

Another bad argument for the Supreme Court is the 'nationalism' argument.

New Zealand is a fully independent nation and since all Privy Council decisions are based entirely on New Zealand law, there is no reason to feel that we must abolish the Privy Council in order to assert our independence as a nation.

In fact, if we truly believed in ourselves, we would simply want access to the highest quality court available, rather than insisting on cutting our ties to Britain in order to prove we have 'grown up', the way a teenager rebels against their parents.

The requirement that one member of our new Supreme Court must be Maori or 'Maori-friendly' can only mean that there is no intention that appointments be made strictly on merit or that the court should be independent.

The law is the same regardless of the race or ideology of a particular judge, therefore the only reason to require a Maori judge is that the law is not necessarily intended to be the only basis for making decisions in the proposed Supreme Court. Nor are legal ability and integrity to be the only requirements for appointments to the court.

Law is not politics and attempts to mix the two have not worked in the past and will not work this time. I suspect that the Maori requirement was included to address valid Maori concerns over abolishing the Privy Council so I hope Maori understand that losing the right of appeal to the Privy Council will be permanent whereas the composition of the court will not.

At the heart of the matter is the following: the Government can pass virtually any law it wishes and the courts are bound to apply that law.

Why, then, is Margaret Wilson so concerned with abolishing the Privy Council? If the Government doesn't like a decision made by any court, it can always introduce a law change to give effect to its intention.

There is only one reason for the government to abolish appeals to the Privy Council, and it's a very undemocratic one. The government wants to use the courts to implement policy that is too unpopular to be introduced as legislation, debated in Parliament and passed by politicians who hope to be re-elected.

When you think about it, this is the only explanation that makes sense. Let's stick with democracy and the Privy Council.
Nigel Kearney - Wellington, NZ.