Smith Murray: Supreme Court Bill — In Committee 
Smith Murray: Supreme Court Bill — In Committee 
[Volume:612;Page:9066] 
MURRAY SMITH (United Future) 
: 
 If there is one amendment that stands out in the schedules it is the amendment to the Legal Services Act which will provide for legal aid to be granted to people who want to apply to the Supreme Court. This is an addition that the select committee put in because we recognised that a failing of the Privy Council is the inability of people to get legal aid to take cases to the council. However they will still have to go through the same tests for legal aid applications as all other cases and in particular go through tests for prospects of success. Given the leave application that people will also have to go through it effectively means that cases will have to be pretty serious to get legal aid to go to the court. 
That people will be able to get legal aid is a welcome extension in terms of the Supreme Court but the irony is—as was pointed out by a number of submitters and in our own discussions—that it would be cheaper to give people legal aid to go to the Privy Council than to set up this court. That deficiency could have been better remedied by allowing people legal aid to go to the Privy Council and we could have had that advantage far more cheaply than the cost of setting up this court. 
One of the things the Attorney-General touted heavily with regard to the bill and is revealed in the schedules is the amendments to various pieces of legislation to allow appeals beyond the Court of Appeal to the Supreme Court—in particular employment environment and family cases and courts martial. Previous speakers have alluded to a second right of appeal and my friend Dail Jones talked about bypassing the Court of Appeal. My concern is that this measure now allows three tiers of appeal for those cases. That could lead to an unfortunate situation whereby plaintiffs and defendants could find themselves through appeals being tied up in the court process for even longer and at far greater expense—even in cases where a small amount of money is involved but perhaps a matter of significant principle. So there is a bit of a two-edged sword in allowing a third-tier appeal level. However the third tier is obviously meant for cases that have serious issues that need to be dealt with. It is the seriousness of the particular issues that the Supreme Court will be dealing with that is at the real heart of this court. It will deal with issues that are more serious on average than those before the Court of Appeal. 
That was the problem that the business community in particular but also the legal community had when it came to the whole issue of putting the Supreme Court in the place of the Privy Council. That issue could have been easily resolved and was picked up early enough with the proposal to have overseas judges which was something that United Future was trying to achieve. There was a clear lack of confidence in the business community in respect of these third-tier appeals and a lack of confidence that the Supreme Court would be capable of making the right decisions in all cases. It was not because the business community lacked confidence in the Court of Appeal judges per se but because it felt that the skills and experience it was looking for in a superior court were far better found in Privy Council judges than in New Zealand Court of Appeal judges. At the heart of it the business community felt that the Privy Council judges—whom even our current Court of Appeal judges accept as being of the highest calibre—were no longer going to be able to rule on decisions that would involve millions and millions of dollars. 
If the Attorney-General had listened and seriously considered the prospect of overseas judges the issue could have been resolved by appointing such judges to the court even on a transitional basis. As recently as the last week or so business community people have said to me that if two out of the five judges were overseas judges with commercial experience they would be far happier with this court. If United Future could have negotiated that provision then effectively it would have gone a long way to addressing their primary concerns and at least some of the business community would have changed their views.