Examination of Witnesses (Questions 59-79)
RT HON
DAME SIAN
ELIAS GNZM, RT
HON THOMAS
GAULT DCNZM AND
RT HON
SIR KENNETH
KEITH KBE
25 MAY 2004
Q59 Chairman: Chief Justice and colleagues,
welcome. Perhaps you would introduce yourselves?
Dame Sian Elias: Thank you. I
am the Chief Justice, and with me are Justice Thomas Gault and
Sir Kenneth Keith. We are three of the five members of the New
Zealand Supreme Court.
Q60 Ross Cranston: I guess I am going
to ask you the same question as I asked the Attorney. Do you envisage
the job as being different now that you are in the Supreme Court
as opposed to what you were doing in the Court of Appeal, or is
it simply that in the Court of Appeal the pressure of work was
such that you could not be as reflective as you might want to
be? Do you see it as a stepchange in terms of the nature of the
work?
Dame Sian Elias: It is a court
of general jurisdiction and not a constitutional court so that
does not change. As the Attorney said, there are areas of New
Zealand law which have not had effectively the benefit of second
tier appeal, so I expect this will be a court with a sense of
the scope and reach of the whole law, which is not something that
a Privy Council has been able to have in relation to our law.
So that will be a change. Also, as the Attorney said, the Court
of Appeal has been a very busy intermediate appellate forum and
that has led to some strains in terms of resourcing, so there
are community expectations of the court which we will have to
try to fulfil. Some of those are expressed in the legislation;
others have been expressed during the process of putting the court
in place; and one of those expectations is for raising the game.
Justice Gault: I could perhaps
add that, the way the jurisdictions fell in the courts in the
past, in some civil case hearings there was virtually a right
of appeal to the Privy Council and very few criminal appeals were
accepted by the Privy Council, so the Supreme Court is likely
to better sift the civil cases and focus on the more appropriate
ones through the leave mechanism, and will hear more criminal
appeals than the Privy Council did, so there are those differences.
Q61 Ross Cranston: I guess it is appropriate
to note for the record that in the Naomi Campbell case the other
day a New Zealand case was cited; I think it was a five judge
Court of Appeal case. So—how can I put this—it is
not as though you need to lift your game, as it were, to have
an influence in the common law world because your Court of Appeal
has had that influence over the years with the quality of its
judgments.
Dame Sian Elias: I think that
is true and I think some of the criticism that was voiced during
the process, which has been fairly bruising, has been unfair in
that connection. That was a bit of special pleading by particular
interest groups to some extent.
Q62 Ross Cranston: Could I just ask this
question? I met Sir Kenneth many years ago when I was a graduate
student and he was a professor at that stage. Do you anticipate
that the Supreme Court might have more academics because of its
nature? Is there any move towards that?
Dame Sian Elias: We have been
quite receptive to the appointment of academics. There have been
a few appointed, I should not exaggerate—
Q63 Ross Cranston: I should say that
this is in a way a self-interest question!
Dame Sian Elias: I understand
that! There is no real impediment. We are, of course, in appointments
looking for experienced people but you can gain experience in
a number of different areas. All things being equal, the higher
judiciary is likely to be staffed by people who have had substantial
experience in the practising profession, but that does not exclude
exceptional appointments, and Sir Kenneth is clearly an exceptional
appointment.
Q64 Ross Cranston: He is not going to
comment! Some of my colleagues are going to ask about some of
the mechanical issues, the Supreme Court as a corporate body and
running the ship itself rather than having the Attorney General
provide rations and so on, but can I just ask you a practical
question? How much assistance will you have in terms of clerks
or associates, or whatever you might call them?
Dame Sian Elias: We each have
a secretary and we each have a clerk, and in addition to that
the Chief Justice has some administrative support—not lavish.
Q65 Ross Cranston: And the clerk would
be a recent graduate who would be there to help with legal research?
Dame Sian Elias: Yes. Usually
a graduate student progressing on to further education.
Q66 Ross Cranston: Yes, because, until
recently, the House of Lords did not have that sort of assistance.
Dame Sian Elias: Yes.
Q67 Chairman: Did you have some influence
into the kind of building that you were going to use?
Dame Sian Elias: No.
Q68 Chairman: You had none?
Dame Sian Elias: I would like
to correct I am sure an inadvertent matter that the Attorney raised
and that was that there had been judicial input throughout. In
fact, there was no judicial membership of the Steering Committee.
I declined an invitation to participate in it and one of the reasons
is because of my view that communication between judiciary and
the executive and Parliament needs to be formal and needs to be
public and I was not prepared for the judiciary to participate
in committee discussions in camera in a back room. So the judicial
representation which I think the Attorney was referring to was
one of the retired judges of the Court of Appeal, who accepted
a personal appointment but was not representative of the judiciary,
and another judge who was the President of the Law Commission,
again without reference to the judiciary accepted appointment.
What we did, however, when the working party came out with its
report, was we responded formally after I had consulted my colleagues,
and our concerns were matters such as institutional independence,
fragmentation of the judiciary—because I think there is
real risk in a country like ours where you do not have a Scotland
issue, for example, that we should not set up a court that is
off on its own but is part of the general judicial system—and
also appointments because they had arisen. It was our strong contention
that the stability of the judiciary had to be maintained and that
really meant that, in the creation of a new court, the only safe
way was to take senior members of the Court of Appeal, and there
was quite a lot of criticism in public or of anxiety about the
possibilities of political appointment. I think that was the solution
eventually adopted by the appointing committee, and I think that
diffused a lot of anxiety.
Q69 Chairman: So your responses on some
of these matters significantly influenced the decision-making
by government and Parliament when it came to the legislation?
Justice Gault: I think they did
but it was through an open and formal process rather than through
participating in a committee which was not an open forum.
Q70 Chairman: And you did not have a
concordat like our Lord Chief Justice which was not publicly arrived
at but then became a public document?
Dame Sian Elias: Well, there is
nothing wrong with working something up as long as, in the end,
it is laid open and transparent and people can comment on it.
Q71 Chairman: Did you have a view about
the issue which Lord Bingham has raised that the kind of courtroom
which is appropriate should be partly based on experience in the
House of Lords, and I suppose not unlike that of the Privy Council
Judicial Chamber either, which is not a very grand sort of room.
What have you finished up with? Something which suits the style
that you have to produce for the court, or have you had the sort
of fears that Lord Bingham has of being elevated like a criminal
trial to some high judicial bench?
Dame Sian Elias: We have had almost
no judicial input into that and I have been concentrating on temporary
accommodation because I think it might be preferable for us to
be in temporary accommodation. The Supreme Court of the United
States was in temporary accommodation for 100 years, and I think
it is the mental freedom you are after more than the physical
space as long as you have the facilities to do the job, including,
say, the library facilities and so on. But we do have preference
for a committee-style room because appellate argument is conducted
like a seminar so we agree with Lord Bingham, but we are less
anxious to get into our Gar's Mahal than perhaps the House of
Lords understandably is, because after all they are already housed.
We are not, yet.
Q72 Chairman: And there is not a point
to be made that this new court is no longer a part of the House
of Lords, which is obviously not a factor.
Dame Sian Elias: Exactly, so our
reforms are really quite different.
Q73 Chairman: Gar's Mahal comes from
Sir Garfield Barwick who was the Attorney General and then became
the Chief Justice, but a very shrewd operator, and got them a
very good building with excellent facilities.
Dame Sian Elias: Which shows that
the separation of powers does not always work to the advantage
of the judiciary. Our most effective Chief Justice was probably
Sir Robert Stout, who had been a former Prime Minister and managed
to achieve quite a lot too, but we do not have that pull any more!
Q74 Peter Bottomley: Can you as the Supreme
Court rule that an Act of Parliament is either unconstitutional
or unjust?
Dame Sian Elias: We can make declarations
about compatibility with our equivalent of your Human Rights Act,
not that that is legislatively conferred but it follows from the
function being pursued but no, we have the same system that you
have and indeed our legislation, as you are aware, affirms parliamentary
sovereignty and the rule of law. Parliamentary sovereignty is
a concept that has been developed by judges, by judicial determination,
so this system is not going to give us the power to strike down
legislation.
Q75 Peter Bottomley: In any way, at any
time?
Dame Sian Elias: The New Zealand
constitution, whatever it is, is not changed by this, just as
the British constitution, whatever it is, would not be changed
by the setting up of a Supreme Court—well, that is not quite
right because you have the legislative dimension which will alter
a bit, but I think Maitland and Bagehot—everyone—has
always said that you cannot take a snapshot of the constitution
of a country, it evolves, or you only have a snapshot but it evolves
over time, and what the constitutional limits are has not really
been explored recently in jurisdictions like mine or, indeed,
in jurisdictions like yours, and we can all hope that we do not
have ever to get there.
Sir Kenneth Keith: Each time I
come here and hear discussions about the sovereignty of Parliament
I think of the paragraph that Lord Bridge included in his Factortame
judgment in 1991 in which he said that in 1972 things happened
and things changed and power went to Brussels, and so on. It is
a very cautious and in some ways slightly confusing paragraph
and I think probably deliberately obscure at times, but things
do change, do they not, and the context in which a constitution
works changes. In 1986 when our constitution was rewritten and
the New Zealand Parliament finally repealed the 1852 New Zealand
Constitution Act that had been passed here, all that the law-making
provision said was "Parliament continues to have full powers
to make laws for New Zealand", and that is a provision that
can only be descriptive I guess, or declaratory, and now of course
we do have, in terms of Ann Cryer's question, that reference to
New Zealand's continuing commitment to the rule of law and the
sovereignty of Parliament.
Q76 Ross Cranston: There is an article
by one of the many New Zealanders in academic life in this country
about this clash between sovereignty and rule of law in section
3(2).
Sir Kenneth Keith: Yes. Comparing
the view of the one time Professor Wilson with mine, I still think,
as Dicey said all those years ago, that if you tried to put those
two things in the same sentence you would have real problems,
but that is a matter that academics can argue about for a long
time and like the Chief Justice, who I think was implying this,
I trust the issue does not ever arise in a sharp way in New Zealand.
I was really interested to see from a distance the debate that
you had here about the inclusion of that very strong ouster clause
in the Immigration Bill and the way in which the constitutional
debate was carried on in public and resolved in public, and I
would have thought very fortunately did not get into the courts,
but you had, did you not, the robustness of exchanges between
politicians and judges and so on.
Q77 Ross Cranston: This Committee did
a strong report.
Sir Kenneth Keith: Yes, I saw
that, and then I kept getting sent copies of speeches that various
people were making, and I thought that was a very interesting
and proper way in which constitutional debate should be carried
on quite separately from what might have happened in the courtroom.
Q78 Peter Bottomley: Do you appear in
front of the New Zealand Parliament? And do you?
Dame Sian Elias: I have only done
it once since I became Chief Justice which is now five years ago,
so it is not anything that I am very keen to do. I have put in
submissions, however, to select committees on particular Bills
and provided what the judiciary does is formal and open and able
to be publicly disclosed I do not see problems in communication
between the judiciary and the executive or the judiciary and Parliament.
I think there is a variety of ways in which you can do it.
Q79 Chairman: Do your colleagues do so,
or other members of the judiciary, or is it quite rare for a personal
appearance by a judge in front of a Committee like this?
Dame Sian Elias: It is quite rare
at higher court level and it would always be something I would
expect to be co-coordinated through the Chief Justice. It would
not necessarily be the Chief Justice who would go along; we would
probably send somebody who has particular expertise in a particular
area, but we do exercise judgment about that. We did not get involved
at all in the decision whether appeals to the Privy Council should
be abolished, because it was a judgment for the people of New
Zealand to make. On the other hand, when it came to looking at
how you would go about implementing that without undermining some
fairly important principles, we felt that we should express our
concerns about the way in which the appointments should be made,
that sort of thing; the fragmentation of the judiciary.
| 
