THE PRESS WEDNESDAY, OCTOBER 7, 1987. Away from the Privy Council

Press, 7 October 1987, Page 20

THE PRESS WEDNESDAY, OCTOBER 7, 1987. Away from the Privy Council

A measured yet certain removal of the Privy Council from New Zealand’s court system is not likely to cause a great commotion. Of course, objections will be raised. They will be answered. As has been as good as promised by the Attorney-General, Mr Palmer, the opportunity to take appeals to the Judicial Committee of the Privy Council is bound to end sooner or later — probably within a few years. The case for retaining this tier of authority above New Zealand’s own Court of Appeal rests on the tradition of more than a century, on a belief that the independence of the council ensures a degree of impartiality not to be had closer to home, and on the wisdom and experience of the law lords in London. Reliance on the independence argument contains the seeds for the change: independence has also come to mean the remoteness of the Privy Council from our own legal and social circumstances. Judges in both New Zealand and Britain have been recognising the growing differences between the two societies, and the increasing identity of New Zealand’s legal system. As Mr Palmer and others have said, the change must be preceded by creating a sufficient substitute in the New Zealand legal arrangements. This is unlikely to be another tier of appeal above the present Court of Appeal. Such a new, superior court, so readily accessible, would become overworked. A more likely course, already suggested in discussion about the change, seems to be a provision for the full Court of Appeal to sit on cases of great and general importance. Financial requirements to approach the Privy Council today are so great that they provide probably the worst example of how access to the law can become the preserve of people with plenty of money. That is an objectionable feature of the present ultimate appeal. The other extreme, if a court superior to the Court of Appeal became the constant recourse of reasonably financial litigants, would also become burdensome for those of less means. Bringing the full wisdom of the Court of Appeal to bear on significant or complex cases seems much to be preferred. New Zealand’s law may be changed, through a Bill of Rights, to enable the judges

to rule on Parliament’s law. This, alone, might be a compelling reason for ensuring that New Zealand judges had the final say. An end to the jurisdiction of the Privy Council here would mean that the authority of the council’s decisions — beyond just appeals from this country — would cease to be binding. This would not, however, mean that the decisions of the English judges would cease to be observed here. Our courts can, and do, refer to other Commonwealth jurisdictions for authoritative judgments — to Canadian decisions, to Australian judgments more and more, and to the English courts. Privy Council decisions would no longer be binding here, but they would continue to have persuasive force when they are relevant to New Zealand cases.

A small country cannot hope to assemble a great wealth and variety of cases, and of the considerations and arguments that resolve them. A case may be without precedent here, or very rare; the same kind of issue has probably been dealt with many times elsewhere. Circumstances may differ in detail, and social attitudes that are recognised locally by the court may be quite different. Nevertheless, just as the law is expected to be consistent within our own community from case to case, decisions on similar cases in Britain or Australia may have been argued out and settled with exemplary reasoning and fairness. What is fair and reasonable may vary a little between similar, but distinct, societies; different weight can be given to facts and circumstances; but compelling reasoning crosses borders and this country’s courts should be able to draw upon appropriate decisions. If they were not capable of doing so, they could fall into a quirky isolation, and the whole legal system with them. Finding the right balance between a general legal wisdom and the particular sensibilities and experience of the community is the starting point for the argument against continuing the binding authority of the Privy Council. Preserving the persuasive authority of similar jurisdictions abroad is one of the protections against a local jurisdiction’s becoming eccentric, unpredictable, or isolated from the mainstream of justice.