Worth Richard: Supreme Court Bill — Second Reading 
Worth Richard: Supreme Court Bill — Second Reading 
[Volume:612;Page:8902] 
RICHARD WORTH (NZ National—Epsom) 
: 
 This is not a good day for the Government and it is certainly not a good day for this Parliament as we come to the second reading of the Supreme Court Bill. I say from the outset that National is strongly opposed to this bill and will take whatever steps are necessary to see in due time the repeal of this legislation and the restoration of a court structure that has served this country particularly well. 
In commenting on what the Government proposes is the objective of the bill a good starting point is the introductory material set out in the commentary. One of the defined objectives is improving access to justice. This is a claim that the Government has made on a number of occasions. We in this Parliament have had an opportunity to judge the sincerity of that objective. We have seen on a number of occasions that the claim of improving access to justice is a hollow one. Here we have another illustration of that. 
This morning an interesting thing happened. United Future had supported this bill out of the select committee. In other words United Future wanted to see the Privy Council scrapped and this new court put in place. But this morning it changed its mind—for good reason I think. Anyone who carefully reflects on the merit of this legislation will see that it is hugely flawed. National’s position can be quickly and shortly stated. We see no reason for this legislation apart from a desire on the part of the Government to implement Labour Party policy. 
Much could be said against this bill in the short time that is available. I will confine myself to making some points by way of summary. The reasons for retention of the Privy Council include these: first it is a court of acknowledged excellence. In the course of the submissions we heard a former New Zealand Chief Justice said: “The Privy Council certainly is an extremely high-class polished Rolls Royce service. There’s no gainsaying that.” I ask rhetorically if this is a great service—which it is and many of the submitters acknowledged that—why we are doing away with it. 
The second proposition I would like to advance is that the major users of the Privy Council—which include business interests and Maori—are opposed to the abolition of rights of appeal to the court. I think it is instructive to refer to comments the Attorney-General made in the  
Independent 
 on 10 October 2001. In that article she was reported as saying that it was of substantial importance that the business community agreed with any legislation to do away with the Privy Council. What is the reality? The reality is that the business community is strongly opposed to this legislation. 
The third point I would like to make is that some people—not strongly and not well—advanced the argument that as a matter of national identity New Zealand should no longer defer to an overseas jurisdiction. There is apparently an aspect of colonial cringe in retaining appeals to the Privy Council. What nonsense that is! The reality of the modern world is that many countries have ceded sovereignty in a number of ways. New Zealand has entered into a number of international conventions which is just one example of where sovereignty has been ceded. More significantly many countries have chosen to look to outside adjudicative bodies for the resolution of disputes. Even countries that are not members of the European Community seek to use the adjudicative mechanisms set up by the community for the resolution of disputes. New Zealand will follow a contrary course and move against the stream if this legislation is passed. National’s simple position is that justice transcends nationalism. 
My next point is that the committee heard from a number of people with active involvement in business and investment who said it was of critical importance that investment interests had confidence in the domestic legal system. The evidence we heard persuaded us that the Privy Council as the final appellate court for investment and business interests provided substantial confidence in the New Zealand legal system. 
My final point in this short summary of why we should keep the Privy Council is that issues of substantial constitutional substance should be subject to referenda. So it is that the parties of the centre-right which might well include United Future—if United Future is a centre-right party and sometimes we wonder about that—are actively promoting a referendum. We have set in motion a train of events under the Citizens Initiated Referenda Act and we believe that debate on the bill should not proceed further until the outcome of that course of action is clear. 
It has been more than 30 years since we have faced a measure of this constitutional significance. If the bill passes on the numbers then as the numbers look tonight—as we stand on this second reading—it will pass with a margin of three. That has to be the most slender of margins for what is hugely significant legislation so on regaining office in 2005 National plans to seek to re-establish rights of appeal to the Privy Council—if that course is possible. The Privy Council will still be around in 2005 and we plan to negotiate with the British Government to restore the right of appeal. Other changes we would seek to negotiate with the British Government include making the Privy Council a court accessible by leave and for a greater range of interests. 
We have sought in a constructive way to suggest changes to the bill to make it more workable. We have major reservations about the appointment process for the proposed Supreme Court. For a number of reasons we do not have confidence that the Attorney-General will make appropriate recommendations. These include her track record particularly in respect of quasi-judicial appointments. I can name a number of cases where her judgment in making those appointments seems to have gone sadly astray and been wholly flawed. 
I am bound to say that some of her recent appointments to the District Court have also attracted a degree of scrutiny both from District Court judges and others outside the profession. She has set in place an advisory panel which she obviously thinks represents some answer but I simply note that she has chosen who will be on that panel. She is not obliged to accept the panel’s recommendations and in any event she has said publicly—and it has been reported in the media—what her plan is and who will be appointed. That is why it was said in question time today that the advisory panel is simply a Clayton’s device. National would like to see greater transparency in the appointment of judges. One of the suggestions made which I personally support is that judges should be appointed by the Governor-General on the recommendation of the House of Representatives. The method of appointment would be the same as that for the Ombudsman and other senior statutory appointees. 
My final point is that judges of the new court have the potential to shape the legal and social landscape of New Zealand in a significant way. We have seen this in its most dramatic form with the recent decision of the Court of Appeal in respect of the foreshore and seabed. It is wrong that judges should be appointed through a limited political process.