Examination of Witnesses (Questions 40-58)
HON MARGARET
WILSON
25 MAY 2004
Q40 Mrs Cryer: Can you see any friction
between the two concepts of the rule of law and the sovereignty
of Parliament?
Margaret Wilson: No, not in principle,
no. Parliament should act consistent with the rule of law, as
should the courts, so I think it would be quite strange if there
was.
Q41 Mrs Cryer: You have already touched
on a number of issues but, simply for clarity, why did it take
almost four years for New Zealand to establish its Supreme Court,
and what steps were taken along the way to ensure a smooth transition
to the Judicial Committee of the Privy Council?
Margaret Wilson: Contrary to some
reports this was not rushed. What happened, however, is that we
did the discussion papers; I deliberately recommended to my parliamentary
colleagues that we did not rush the legislation before an election,
so we had an election intervening. We had, however, made the decision
in principle to proceed with legislation relating to a Supreme
Court so that people knew that was a part of the manifesto, a
specific manifesto commitment. We also had the issue of Maori,
and it was important to take time I think to try and work out
really what would be the best way to go for their involvement
but also for the outcome of what sort of court. Also, it was important
that we provide a time for transitions; there was no need to rush
anything, it seemed to me. These things can take their own time
but if you leave them too long—and in a way we may have
almost left it too long—then that creates its own issue
so, in terms of transition, there will be cases still going to
the Privy Council as a result of appeals from the Court of Appeal
decisions. The Supreme Court came into life on 1 January this
year but it starts hearing cases on 1 July, and those other cases
will continue on. So we tried to make it as smooth as possible
but I think what happened in the end was that some sections of
the community and the media discovered the proposal, and that
highlighted some issues, which came mainly from some sections
of the business community, which was the same when I did my researches.
In all other jurisdictions that have gone through this process,
very similar sections of the community raised very similar issues,
so it was generic.
Q42 Chairman: Was there an issue about
the corporate independence of the court and how its funding was
achieved, how its staff were appointed, and, if there was, how
did you resolve it? It is one of the areas where there can be
conflict between judicial independence and accountability to Parliament
for money spent.
Margaret Wilson: Yes. I do not
think it has been addressed as being perhaps any more different
from funding of other courts, I must say. The process we used
was that, when we agreed in principle to proceed to the Supreme
Court legislation, then obviously the costings were done, the
business case was made, and it was factored into the budget. When
it came nearer the time, though it was about a year I think before
the legislation was passed, I put a business case and proposal
to Cabinet for funding of accommodation and a building, so it
was all done I think in a timely and what would have been normal
way to do it. We have in the meantime merged our Ministry of Justice
and the Department of Courts into a Ministry for Justice, and
issues of court administration generally have been raised, and
I am sure the Chief Justice and Justices will be able to comment
from their perspective on that but certainly the involvement of
the judiciary and judicial administration personally I think is
important. However, I do know that some judges have felt this
might intrude on judicial independence, so I suppose it is a question
of balance.
Q43 Chairman: So is the court dependent
on you and your successors in the future for its budget? Is it
you who go to your equivalent of the Chancellor of the Exchequer
and to your Treasury to say, "The courts need more",
or "They will have to manage with less" or "No,
they cannot accept 5%"?
Margaret Wilson: That has always
been the way it has been.. There was a brief moment in the 90s
where there was a Treasury view, as I understand it, that courts
could be self-funding.
Q44 Chairman: We have that here!
Margaret Wilson: That was highly
optimistic and I think in many ways, having come to the position
much later, it did raise some infrastructure issues for the court
and I personally do not think it was a wise policy to follow.
I think our Budget is tomorrow so I would not want to anticipate
our Minister of Finance's announcements but I think there is recognition
that certainly administration of justice is an important infrastructure
issue for any society in roads, water, etc.
Q45 Chairman: You have the same title,
Attorney-General, as the member of our administration. He has
responsibility for prosecutions. Do you share that responsibility?
Margaret Wilson: No. That is the
Solicitor-General's responsibility.
Q46 Chairman: That is wholly separate?
Margaret Wilson: Yes, and an apolitical
position, so it has nothing to do with political parties' appointments
at all. Appointed on merit.
Q47 Chairman: And does the judiciary
in any way look to you, do you think, as a defender of the judiciary
against other parts of the administration and other ministers
who might start to encroach on their territory, at least in their
rhetoric?
Margaret Wilson: The way the system
in New Zealand is set up the Attorney-General has traditionally
had that position, and certainly I think it is an important position
to defend the judiciary. Certainly one of the more difficult positions
we had during the Supreme Court debate was criticism from the
bar, which did provide some rather difficult conflicts potentially,
I think. Certainly I felt the criticism of the judiciary from
the bar was totally unwarranted, and certainly the Solicitor-General
formally said that and I said it in as many ways as I could without
further politicising it.
Q48 Ross Cranston: The other issue associated
with the establishment of the Supreme Court is the establishment
of a Judicial Appointments Commission, and our diligent staff
have come up with a press release that you recently issued about
this. Could you just say a little bit about this in the New Zealand
context? You quite rightly say that in the past there has been
no question about the outstanding nature of the judiciary in New
Zealand, but also about the integrity of the appointment process.
But what has led to this, and how do you envisage it being taken
forward? You probably appreciate that here a lot of the pressure
is because of the diversity issue, and the need to address that.
Margaret Wilson: Certainly one
of the issues that emerged from the submission process on the
Bill was a Judicial Appointments Body. I felt it was too important
a step to rush without putting out a discussion paper in an opportunity
for full consultation, so undertook to issue a discussion paper
with a view to introducing legislation, or a different process,
according to what emerged as a result of that process. That discussion
paper has now been issued and one of the reasons I am visiting
the United Kingdom is to have an opportunity to observe your experience,
but also I went up to Edinburgh and met with some members of the
Scottish Judicial Appointments Board because they have had the
opportunity of two to three years' experience now in this matter.
So what drives it I think is probably the same reasons; it is
felt that the judiciary is not representative enough of the community
it judges, and at the same time I think everyone would accept
that appointments should be on merit, and therein I guess lies
the dilemma. So I have no doubt at all we probably will merge
to some form of appointments body.
Q49 Ross Cranston: Yet you yourself appoint
a number of them, and obviously the distinguished Chief Justice
who we are going to hear from, but they are also members of the
Court of Appeal, and there are some quite young members as well.
Margaret Wilson: The Chief Justice
was appointed by the Prime Minister and by a previous Prime Minister
who also happened to be a woman. My experience would be this;
that women have been graduating from law schools in New Zealand
about 50% plus of the graduating classes for maybe fifteen years,
maybe a bit longer in some law schools. The reality is, however,
they are not so represented in the profession and they are not
so represented at the bar or in those areas of litigation that
one would look to see for those skills when one was appointed
to the bench. I think the issue lies very much now with the profession.
Personally I have not detected in our processes a gender bias
but you have to have a pool of people who have had the experience
to be able to have the position, and I think that is a challenge
for us. I know there are some jurisdictions in Australia that
are also looking at this, and Victoria has engaged in a more proactive
approach now I understand, engaging the profession to see what
it is doing. Also to ensure that work is given and opportunities
provided.
Q50 Ross Cranston: Could I ask you about
whether there has been criticism of political appointments to
the higher judiciary? Here, in the first part of the 20th century
it was quite openly political and then it became depoliticised,
and in recent times there has not been criticism of Lord Chancellors
from either of the major parties in terms of their appointment
but, all of a sudden, there seems to be a criticism that appointments
would be political if we do not change to an Appointments Commission.
Margaret Wilson: There certainly
was criticism that appointments would be political. I suppose
it depends on what you mean by "political". They have
always been political in the sense that Parliament has the authority
to remove judges and they are, in effect, appointed by the Governor
General through a process of recommendation from the executive,
so the assumption I guess has been, if you look for those lines
of accountability, there is a synergy there. The allegations I
suppose are more party political allegations, I presume. There
seems to have been very little evidence from whoever has been
the government that that, in fact, has been borne out in reality.
Q51 Ross Cranston: Has there been any
criticism?
Margaret Wilson: There does not
appear to have been from whatever government. There has been criticism
but if you look at the appointments the reality does not seem
to justify the amount of concern. However, perception is very
important and that is why I think a Judicial Appointments Commission
body probably will be required, but then the question becomes
to whom are they accountable, and if the diversity does not emerge
or if it does emerge but merit does not emerge, then what happens?
Q52 Ross Cranston: I take the view that
there has to be some minister making the appointment or the Prime
Minister because there has to be some sort of accountability;
that it cannot be completely depoliticised—but this is not
necessarily the view of everyone.
Margaret Wilson: Well, in our
system anyway, or while I have had the position it tends to be
as consultative a process as you can make it, with the judiciary
being consulted and the profession, both the Law Society and the
bar, and from there recommendations are made so it will be interesting
to see. Various models are out there and we have been looking
at them. I understand that in South Africa they have a very interesting
model of sectors of civil society who are very actively involved
in all levels of recommendation. Presumably it works there. Certainly
their constitutional court is an extraordinarily distinguished
court. It does not seem to suffer as a result of this quite extensive
involvement from communities, so I suppose any appointment system
at the end of the day will be reflected in society because it
is really the confidence of the people in the process that is
most important.
Q53 Ross Cranston: Was there any pressure
to create a distinct system for the appointments to the Supreme
Court as opposed to the rest of the judiciary?
Margaret Wilson: There was a lot
of pressure just to automatically appoint members of the Court
of Appeal, and I suppose that would have been an option. However,
there were seven members of the Court of Appeal and five for the
Supreme Court so it was not just as simple as a transfer. Also,
my own personal view was that it was important that the body was
appointed on merit and not just on precedent. Others may disagree
with me on that. It is politically more comfortable to appoint
on seniority, but it may not always produce the best court. I
think in this instance we were fortunate that the committee that
advised me on the appointments, which was a special committee
set up, did recommend basically in line of precedence from the
Court of Appeal to the Supreme Court. Whether that continues in
the future or not I guess time will tell.
Q54 Ross Cranston: So this was a one-off
body—
Margaret Wilson: Yes. I thought
it was important, and important not just to automatically make
some assumptions. That was a judgment call; as I said it would
have been politically more comfortable just to say seniority prevailed.
The legal profession operates on precedent and, once you do it
once, it is very difficult to justify doing it differently again,
so I felt it was important to keep that option open.
Q55 Ross Cranston: Can I ask if there
was any move that Parliament should be involved in judicial appointments?
Margaret Wilson: Yes. My opposition
parliamentary colleagues and many of my legal colleagues did suggest
from time to time that judges should be appointed by select committees,
that I suppose a process that might be more akin to perhaps that
of the United States would be preferable, or that there should
be some direct endorsement from Parliament. My own personal view
on that is if you wanted to depoliticise it that may not have
been the appropriate way to do it in the New Zealand context.
I do not know about your own.
Q56 Ross Cranston: There is no great
pressure to go down that particular avenue?
Margaret Wilson: I did not feel
personally any pressure, but I have to say that was put out.
Q57 Chairman: And is there a relationship
of the kind that we have developed in this Committee, for example,
with senior judges, and Lord Bingham will be in later this afternoon,
whereby, quite outside the context of confirmation hearings or
anything like that which we do not have, judges do feel free to
come and speak to this Committee on matters affecting the judiciary?
Margaret Wilson: Certainly. The
Chief Justice can talk directly to that, but from my perspective
there are no issues with that. The only precautionary is I suppose
that from time to time matters can be taken out of context so
it is always a matter of judgment on these matters, but judges
have been appearing before select committees, both open and not
open committees, for some considerable time. I personally think
it is extremely important that the judiciary has an input into
matters relating to judicial administration. After all, they know
how the job is to be done because they do it and how it can be
improved and done better, so it seems to me that on those matters
they should have an influence on what goes in the legislation.
Q58 Chairman: Thank you very much indeed.
I am very grateful for your help. Best wishes to New Zealand's
new Supreme Court.
Margaret Wilson: And to yours!
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