Examination of Witnesses (Questions 36-39)
HON MARGARET
WILSON
25 MAY 2004
Chairman: Attorney General, you are most
welcome. We are pleased to have you here and get the benefit of
your advice. Because judicial appointments issues do tend to come
up a bit, I will ask Members to declare their interests.
Mr Clappison: I am a non practising member
of the bar.
Ross Cranston: I am a barrister and recorder.
Q36 Chairman: Now, you have had some
experience of setting up a court from scratch over a period of,
what, four years?
Margaret Wilson: Yes. We issued
a discussion paper in the year 2000, and that went out for quite
extensive consultation, and the options that were put there were
those that were essentially carried over from attempts by previous
attorney generals to establish a Supreme Court, so we by and large
reproduced that but undertook a different process of consultation.
The principal option there had been one of do nothing or basically
convert the Court of Appeal into the highest court, in other words
only have one appeal, and what came through clearly was that,
if we were going to do anything, two appeals would in fact be
seen as preferable, so from that idea came the notion of a Supreme
Court, interestingly, as a result of that consultation process.
So what emerged from there is that I set up an advisory committee
upon which the bar, the Law Society, the judiciary, Maori and
others were represented, and they in effect recommended what became
the Supreme Court Act, and the structure emerged from that. That
took just over three years, and the legislation was enacted last
year.
Q37 Chairman: So did most of the modifications
and changes to the plans take place during the advisory committee
process, rather than during the legislative process?
Margaret Wilson: Yes. During the
legislative process, because we are a minority government and
therefore the government does not have a majority on the select
committee, or very few select committees, there is quite genuinely
a process of negotiation and contribution into legislation, not
only this legislation but all legislation. On the Supreme Court
one issue was that we should invite judges from overseas to sit
on the final court, and while the legislation did not provide
for that, I had made it clear that we were happy to take advice
basically because the matter was such an important one, so at
the end of the day, after quite a lot of submissions and consultation,
the advice was no. I think that surprised some people, but there
are lots of practical and logistical issues associated with inviting
judges from other jurisdictions to sit on other courts and we
know the President of Hong Kong was mentioned, but most final
courts do not have many spare judges, though there are some, of
course, who are retired and may be available to sit when needed.
So at the end I think it was as much a practical issue of judicial
administration than any in principle sovereignty issue that probably
swayed the select committee. Other issues emerged in terms of
what was in the purposes provision of the legislation to make
quite clear principles, so arguments relating to the Treaty of
Waitangi and what its status should be were prominent, and that
was because of the special relationship through the treaty that
Maori had with the Crown, and it is fair to say that most of the
submissions we heard on it from Maori were not in support of dis-establishing
appeals from the Privy Council but there were some submissions
that were, and by and large I think it was also quite understandably
a question of not wanting to change when you were not quite sure
what you were getting into. So we tried to ensure at each stage
that there was adequate consultation with Maori and we had a special
hui relating to that, and in the end on the advisory group that
was set up to advise appointments to the Supreme Court we ensured
there was Sir Paul Reeves, who was Maori but had been Governor
General and Primate of the Anglican Church and was represented
there as well, so at each point we did try to accommodate.
Q38 Ross Cranston: In terms of background,
do you anticipate that the Supreme Court is going to be different
from the Privy Council? Is the notion that they are going to be
performing a different function, or basically are they going to
be performing the same function?
Margaret Wilson: I think on one
level the answer is yes and no. Yes, they are envisaged to be
the final Court of Appeal and, therefore, it is envisaged that
obviously that court will create the precedent and we hope will
develop a New Zealand jurisprudence which, of course, will be
based on common law but will also perhaps take account a little
more of the context within which the legislation and cases arise.
Probably what has not always been understood, however, is that
many cases were statute barred from coming to the Privy Council,
so in a way the Privy Council only ever got a few cases. The Court
of Appeal in many ways was effectively the final Court of Appeal
for the majority of New Zealanders, and so the combination of
being statute barred plus cost effectively meant that it was important
that we established our own final court.
Q39 Ross Cranston: There is some talk
here that, if we are going to establish a Supreme Court, then
really we are establishing a different sort of court from the
existing House of Lords Judicial Committee, and there is some
talk that we really need a written constitution for that Supreme
Court to interpret and all the rest of it. So in a way, raising
that particular issue, do you anticipate this new court to be
doing something different?
Margaret Wilson: Not in that sense,
I think. Really what was envisaged by some, and everyone has their
own view I guess, is that they would have the time to be able
to consider those cases upon which it was important that there
be guidance given so there can be some certainty when people come
to advise on what is the law, and I think it was fairly well accepted
that, while we had very good and high quality judiciary in New
Zealand, the Court of Appeal was overworked. There were just too
many cases to be able always to provide the opportunity for reflection
that I think is needed, so we do not see it as being different
qualitatively, I think, at all. One comment about the written
constitutions that I will make is that in the course of the submissions
that were given on the Supreme Court Bill, I would say the vast
majority had nothing to do with the Supreme Court Act itself but
had everything to do with the whole range of constitutional issues,
including whether or not we should have a written constitution,
so the select committee, as you may know, in its report did suggest
that perhaps an opportunity should be provided at some stage for
reflection on those matters, but it was not appropriate in this
context.
|
