Tanczos Nandor: Supreme Court Bill — Second Reading 
Tanczos Nandor: Supreme Court Bill — Second Reading 
[Volume:612;Page:8911] 
NANDOR TANCZOS (Green) 
: 
 I would like to begin my speech by echoing some of the words of Dail Jones in terms of his thanks to Pat McCabe and the team who advised us during the Justice and Electoral Committee proceedings. The quality of the advice was extremely good and impartial. I think all committee members owe the advisers a vote of thanks for that. I would also like to thank Tim Barnett for his chairing which was both fair and open-handed in its approach. Again I think all committee members would probably agree with me on that so I would like to begin on that note. 
As Tim Barnett said in the first reading Green Party members took the position that we would support this bill going to the select committee although we were uncommitted about whether we would support it further than that. We were looking forward to taking part in the select committee process and working through a number of questions in some detail. The select committee process was very good in terms of doing that and in clarifying some of the concerns we had. 
The question has been put whether the Greens will continue to support the bill now that United Future has decided to oppose it. The Greens will be supporting the bill on the basis that it is good legislation. Our position on the bill will not be determined by United Future’s position as that would be quite improper. So the Greens will be supporting this bill through the remaining stages. 
For me one of the crucial factors was that the select committee process brought me to the opinion that this bill will finally give this country a fully functioning final court of appeal. That point was made quite strongly by Sir Geoffrey Palmer and Francis Cooke. Sir Geoffrey said the Privy Council simply did not have enough New Zealand cases to fulfil the function of a final appellate court which is to clarify and develop the law of New Zealand so far as that is appropriate for the courts. The ministerial advisory group also made the point that the role of a Supreme Court is traditionally to correct errors and clarify and develop the law in the context of the individual cases before it consistent with the limits of judicial decision-making. The Privy Council is not fulfilling that function nor is the Court of Appeal able to fulfil it because it is too overworked. Again and again the select committee heard submitters say that the Court of Appeal is a very effective workhorse court but is too overworked to survey points of law exhaustively and clarify their application in a manner that one expects of a final appellate court. 
Francis Cooke made the point that final courts of appeal do not determine technical legal issues where it is a simple question of right or wrong but they do decide the appropriate rule to apply within the community. That was the subject of quite a wide-ranging debate in the select committee. Is it the role of the courts simply to apply the law in a black-letter fashion or do they have an interpretative function? It is interesting that the opposition to the bill fell on both sides of that argument. Some submitters said they opposed this bill because it would lead to judicial activism in the way that Mr Prebble referred to earlier. Other submitters—like the Auckland Council for Civil Liberties—said they opposed the bill because the Privy Council was becoming increasingly activist and they wanted an activist court so we needed to retain the Privy Council because a Supreme Court would be too technical and black letter. So one of the difficulties is that the arguments are going both ways. 
I believe it is appropriate for the court to interpret the law and apply it within the particular community and the Privy Council is increasingly recognising its own incapacity to fulfil that function. Submitters pointed out that the Privy Council now declines to overturn New Zealand Court of Appeal decisions or to determine matters in cases where there is a policy component. That is exactly what various people are talking about when they say it is important that we have an appellate court that has some appreciation of local conditions. 
Some people made the point that we get superior judgments from the Privy Council; that we get much better justice; that they are wonderful judges and we cannot hope to come anywhere near their quality. That is premised on a number of different assumptions. One is that New Zealand has less able raw material and I simply do not accept that. Again after hearing the submissions I do not accept that we are not capable of filling the bench of a final court of appeal. If we look at how highly regarded the New Zealand law profession is internationally I think that bears that out. 
The other thing is whether we get superior judgments anyway. Jack Hodder makes it his business to compare the decisions of final courts of appeal and he is regarded highly by many members of the select committee including some opposing the bill such as Stephen Franks. He said that the Privy Council judgments were amongst the least satisfactory in the world of those final courts of appeal he has looked at because they were non-detailed and single. If I remember the quote correctly he said the judgments of the Privy Council were singular and cryptic. That is what people are holding up as the superior law we are getting from the Privy Council. 
The problem is not that the Privy Counsellors are not able—that is not the case and I would not want anyone to think that was my point. What we did hear in the select committee was that there is a lack of interest among the law lords for sitting on the Privy Council because as far as they are concerned it is small fry. They are dealing with minor matters and they have much more interesting things to do sitting on the appellate committee of the House of Lords. So the Privy Council depends—at least to some degree—on ring-ins. In light of the changes that are going on in Britain that is extremely important because in June this year the British Government announced plans for a United Kingdom Supreme Court to replace the House of Lords appellate committee. We know that medical disciplinary issues have already been removed from the Privy Council and that the proposal for a United Kingdom Supreme Court intends that devolution appeals—from Scotland Northern Ireland and Wales—will transfer to the Supreme Court. They are probably the most interesting thing that the Privy Council has to deal with at this stage. 
OK at this stage it is true that no proposal has been made to end the Privy Council but it is difficult to imagine how it will survive the changes going on in Britain. Once it loses those devolution cases once the Caribbean nations—the CARICOM 10—move to their Caribbean Court of Justice which is what they are talking about what will the Privy Council be left with? It is predicted that the appeals that the Privy Council has to deal with will go down to 24 and 12 of those will come from New Zealand. Getting senior judges to sit on the Privy Council will become an increasingly difficult problem. If the Privy Council survives at all it will be a sad shadow of its former self and the question is whether that is what we in New Zealand want for our final court of appeal. 
I would like to quickly address some of the points raised by Dail Jones. He made up a number of things in his speech including the Green position on hearings at hui. In the same way he released a press release during the select committee’s consideration of the bill and when the committee bailed him up saying it was a breach of privilege he said it was not a breach of privilege because he made it up. Because the decision he said the select committee had made had not been made it was not a breach of privilege. That is his position. Dail Jones says he wrote a letter to the committee about having hearings on marae. He did write a letter to the committee but he did not bring it to a vote at the committee. I was waiting for him to bring it up for discussion because I was very interested in that discussion. Unless he brought it up when I was visiting the toilet—to make sure he could score a cheap political point—as far as I am aware he never brought it up at all so the contention he made in his speech is quite false. 
In terms of Maori issues there were a lot of submissions from Maori and various points were made. There was a very real fear that this bill is an attempt to belittle the treaty and that was one of the reasons that the select committee moved to amend the purpose clause and make clear reference to the Treaty of Waitangi. The Greens would have liked a much stronger reference in that clause but we were convinced that that was properly the subject of its own debate and that is why we are very keen to support the idea of an inquiry into the New Zealand constitution by the Justice and Electoral Committee. I think that will go some way to address some of the concerns because a number of submitters said they did not oppose a New Zealand Supreme Court but they wanted it to be in the context of a constitutional debate.