Barnett Tim: Supreme Court Bill — Second Reading 
Barnett Tim: Supreme Court Bill — Second Reading 
[Volume:612;Page:8904] 
TIM BARNETT (NZ Labour—Christchurch Central) 
: 
 As chair of the Justice and Electoral Committee which spent 9 months dealing with the Supreme Court Bill I rise a proud person to speak to the process that the select committee went through and to comment on some of the particular changes that we pushed for. I will talk about the challenge we faced the work we did the report we produced the changes we made and the issues we raised. 
I think Mr Worth is quite right to say that this is a historic debate. The legislation is obviously of historic importance. In the absence of a written constitution we can reasonably say that this legislation is not only about access to justice but also has a constitutional edge to it. The challenge faced by the select committee was to make sure that the various groups in our society who were particular consumers of the Privy Council were properly engaged with the select committee process and also that the wider community reflecting the increased number of New Zealanders who will have access to the new Supreme Court could have their voices heard. If members look at our report they will see that Maori legal interests commercial interests and community interests all had a say in the process the committee went through. 
The committee inherited the ministerial advisory group report and we inherited a history—not only of the Labour-Alliance Government and the Labour-Progressive Government but also going back to the National Government in the 1990s—of attempts to deal with the issue of the Supreme Court. It is a matter that is certainly being dealt with now in the party political environment but that has also exercised many minds in this Chamber over the last 15 or 20 years. 
In addressing the legislation the select committee first of all gave 4 months for consultation so that we generated in total 315 submissions. The committee heard the submissions around the country at great length—they averaged over 30 minutes per hearing. We also identified a number of prominent individuals to whom we gave extra time to make sure that we were making decisions and producing recommendations on an informed basis. After hearing the submissions we then spent another 2 months deciding how to take matters further. 
The report produced by the committee essentially tells the story through a combination of chronology followed by a clause-by-clause analysis. Thanks to Murray Smith the committee started off by inviting submitters not only to look at the details of the bill but also to go back to the policy questions behind the legislation. I thank Mr Smith for that proposal and I think it enriched the work of the select committee. The commentary identifies the questions that we put including the fundamental one of whether the right of appeal to the Privy Council should be abolished maintained or extended. 
 The report to the committee then looks at the environment which both the previous speakers have mentioned of the Privy Council looking at reforming itself and the British Government addressing those issues but also the prior consultation and prior debates within the New Zealand Parliament on these issues. The report then goes through the submitters grouped into legal Maori business and other submitters and identifies the main arguments on either side and the report goes into that in much more detail than any other select committee report I have seen. Again I think it is proper for any reader to be able to identify the range of arguments and I was not in the least worried that the length of arguments against the bill in the report was very slightly greater than for those in favour of the bill. We are not trying to produce a propaganda document here; what we are trying to do is to explain to readers now and in the future exactly why the select committee came up with the decisions that it did. 
We then went on to look at some of the particular arguments around the legislation. The budget is obviously an important argument. It was itemised and it appeared in the process of the committee considering the bill. The cost to litigants is a matter of great debate. I think most people would imagine that a court sitting in Wellington would be a bit cheaper for New Zealanders using it than would a court overseas. There were one or two particular factors about the Privy Council—existing mainly thanks to the British taxpayer—that might mean we do get some things somewhat cheaper than we might do from the Supreme Court. But the reality is that the system being established here will be both more accessible and more cost-effective to New Zealanders choosing to access it and the report of the select committee details why we believe that to be the case. 
We then moved on to look at the issue of referenda already mentioned by Mr Worth. We noted that no other country that has made the same decision that we are looking at making in the next few days has held a referendum in the process of making that decision and I did not hear any arguments to counter that. Clearly there is a constitutional aspect to this legislation but we have to draw a line between when referenda are appropriate and when they are not. It was pretty clear from the majority of the select committee that the debate had been a lengthy one going on for a number of years but that the issues were clear and that New Zealanders were not faced with such a loss of rights to counterbalance the increase in rights they would get through access to a new Supreme Court that a referendum would be an appropriate way to go. The report details both the history of referenda in New Zealand and also the arguments of submitters on both sides. 
We did hear at length from Maori submitters and some very clear points were made by them about the relevance of the proposal to the relationship between tangata whenua and the Crown. We thought it was useful to add into the legislation a purpose clause that reiterated that Parliament is the supreme decision-making body in this land but at the same time also recognised that the court existed in an environment where the Treaty of Waitangi was of importance. I thank Jack Hodder the Wellington lawyer for his very powerful submission which I think made all the committee think again about those issues to very useful effect. 
We considered the issue of consultation with Maori which my colleague Mita Ririnui will be speaking more on later but our committee did engage at a very high level with Maori recognising the particular relevance of this proposal to them. We looked at the issue of the first appointments to the Supreme Court and we noted the comments made by the Attorney-General leading up to the introduction of the legislation. We supported the concept that the appointments should essentially be drawn from the current membership of the Court of Appeal so far as that is possible. 
I note what Mr Worth said in terms of judicial appointments. I think the concern of all the people on our select committee about aspects of the way judicial appointments have been made in New Zealand was something that was reflected in our report. I am very pleased that the Attorney-General has responded by announcing that the Government will be consulting on those issues in time to come. 
We then went on to look at the qualities of judges. We went on to look at a particular phrase in the legislation that we unanimously decided was inappropriate which was the phrase “tikanga Maori”. The legislation as it came to the select committee said that matters to do with the treaty or tikanga Maori would automatically get leave to the Supreme Court. We felt that to leave what is such an ill-defined phrase for the court to work out was not necessarily a good way to go. 
I want to just touch on one or two other issues. The issue of overseas judges exercised the committee. I think a number of us went into that debate with very open minds and were persuaded by the power of argument over those issues. Retirement age of judges was touched on and that is a debate that may well come up again. Just to back up something the Minister said in terms of our recommendations at the end I point out that the committee unanimously supported the need to continue the debate about New Zealand’s constitutional arrangements and in principle we supported the concept of an inquiry into those issues. All of us were conscious of a number of matters that were raised by submitters that were not appropriate to be dealt with in this legislation but indicated that a debate has begun in this nation and that the Supreme Court legislation formed part of that debate. It is appropriate that it be captured not by a Government but more appropriately by a Parliament. Our select committee felt that we were maybe a body that could take that debate a bit further. 
That really goes through the broad approach that we took to the legislation. I want to thank the committee for their good humour. Obviously we were sharply divided politically on these issues. I thank particularly the Green and the United Future members for coming into the committee with an open mind. They gave support for the legislation coming in but did not necessarily support it going out from the committee. Both were persuaded by the arguments and were open to discussion in that process. I really very much regret that United Future has subsequently changed its mind but I do thank Murray Smith in particular for his support for the legislation going out of the select committee and for the constructive role he played. 
I want to respond lastly to one point mentioned by Mr Worth which was the issue of “Why do it?”. We deal with the abolition of the link with the Privy Council because we as a nation want to move forward. We have to mature and part of that maturing process is to establish our own Supreme Court.