Tisch Lindsay: Supreme Court Bill — In Committee 
Tisch Lindsay: Supreme Court Bill — In Committee 
[Volume:612;Page:9060] 
LINDSAY TISCH (NZ National—Piako) 
: 
 Part 2 is interesting. Stephen Franks made the point in his earlier address that it relates to the transitional provisions. Because there was not sufficient time last evening to talk at length about the very important provisions in Part 1 it is now left to us to surmise how the transitional provisions will work. 
First I draw the Committee’s attention to clause 48 which in essence provides that a case cannot go to the Privy Council unless the Privy Council appeal process is under way before the Supreme Court legislation comes into force. We have an issue with the transitional phase. It was recommended in a number of submissions that the transitional phase should be longer so that no one would be particularly disadvantaged by that. As a matter of principle one would have thought that existing rights should not be taken away by legislation except to the minimum extent necessary to achieve other interests that plainly outweigh any existing rights. We are concerned that the existing rights of appeal to the Privy Council can be defined as applying to those cases that are engaged and proceeding in New Zealand and for which the final court of appeal is the Privy Council. The transitional provision identified in Part 2 is not sufficiently long for that. 
I draw the Committee’s attention to the next point regarding the transitional arrangement for running the court in clause 51(2). Before I do that we need to ask how the judges will be appointed. Part of the transition— 
Dail Jones 
: There’s nothing in this bill. 
LINDSAY TISCH 
: That is right. 
Dail Jones 
: It should be here. 
LINDSAY TISCH 
: The point I make is that if there is to be a transitional clause we need to know how the process will work. If we go back to the provision about the constitution of the court we see that there will be five permanent judges in the Supreme Court and they will determine all appeals. There was a very strong argument that maybe there should be six judges but that has been left in limbo. How can there be a transitional provision when we do not know how many judges there will be? 
It is surprising to have a proposed constitutional enactment prescribing the number of permanent judges in the top court as no more than the number of judges required to decide the cases before the court. That will create a number of problems. The Law Society suggested that the number of judges should be seven or eight just as it did with regard to the Court of Appeal which I talked about earlier. The Court of Appeal is covered in clause 43. The society said that in relation to the Court of Appeal rather than reduce the number of judges the number should be extended to eight because the workload would not reduce. At the moment it is six or seven; it should go out to eight. 
With regard to the constitution of the Supreme Court if there are to be only five permanent judges and the Chief Justice some of those judges may be away. There will be absences for various reasons—for example one judge may be sick and another judge may be on leave or attending a conference or there could be other obligations. Also judges have their sabbaticals. Within a 5-year period most lawyers—and we have lawyers in Parliament—would be able to take up those sabbaticals. 
Simon Power 
: I wish I had. 
LINDSAY TISCH 
: That member is a young lawyer who is probably too young to know what a sabbatical is. The point I make is that there will be times when judges will not be available. We believe that the transitional period—and we argued this at the select committee and the submitters were very clear on this—needs to be much longer than it is now.