Smith Murray: Supreme Court Bill — Instruction to CommitteeCWH In Committee Speaker Recalled In Committee Speaker Recalled In Committee 
Smith Murray: Supreme Court Bill — Instruction to CommitteeCWH In Committee Speaker Recalled In Committee Speaker Recalled In Committee 
[Volume:612;Page:9030] 
MURRAY SMITH (United Future) 
: 
 I want to make reference to clause 48 relating to the transition period. This matter caused the select committee some concern. The bill initially provided that it would come into effect 28 days after receiving the royal assent. That time limit for bringing in the situation was very very narrow. The difficulty that was clearly going to arise was that there would be conflicts of interest. Court of Appeal judges who are the ones most likely to be promoted to the Supreme Court could well face the situation where as the sole members on the Supreme Court bench they were looking at decisions on appeal that they themselves had given judgments on in the lower court. 
The initial proposal appeared to be that temporary judges would be used in that instance. That was clearly undesirable because given that most of the Court of Appeal judges may well end up on the Supreme Court it would mean that in the early stages almost every decision being appealed would be a decision in which former Court of Appeal judges who were on the Supreme Court had participated and therefore temporary judges would have to be used. The difficulty that that would create is that the court would get off to a false start. It would look like a Mickey Mouse court because the full-time judges are not sitting on almost anything at all. 
A number of dates were proposed in order to try to get round that problem: the date that the appeal in the Court of Appeal was lodged the commencement of the hearing in the Court of Appeal the completion of the hearing in the Court of Appeal the date of issue of the judgment and the date of lodgment of the Supreme Court appeal. United Future took the view that there was really only one date that was relevant and that was the date upon which judges could be changed; a Court of Appeal hearing would not have commenced and judges who were not going to be on the Supreme Court could be appointed to hear that case in the Court of Appeal. 
In the end the select committee accommodated that to a large extent but decided that the date would be the date of completion of the hearing. That may give rise to a situation where judges who have completed their hearings then find that they are on the Supreme Court and therefore are facing their own judgments. However we were assured by the select committee officials that the vast bulk of Court of Appeal cases were dealt with within a 2-day period. It also appeared that the Supreme Court judges would be appointed prior to the commencement date of the bill. That certainly seems to be the case now given that the bill will commence on 1 January 2004 but the hearings will not commence until 1 July 2004 and given that the Court of Appeal judges who will replace those Supreme Court judges will also be known. It also appeared that given the limited number of cases that were likely to be appealed to the Supreme Court and given the workload of the Court of Appeal it would be possible to ensure that any prospective Supreme Court judge did not hear a case in the Court of Appeal and in fact that no cases would be heard in the Court of Appeal during the critical period. 
It was for that reason and particularly because we are really talking about only 2 days that United Future went along with the proposal. We did subsequently as will be known suggest to the Government that the date be extended—that instead of it being 28 days after the date of assent the date be put out. We are now faced with a situation where it is likely to be some 2 months after the royal assent before the bill comes into effect and a further 6 months after that before the first substantive cases are considered. Therefore it seems that that problem has really been abated. 
The second clause that United Future had real concerns about was clause 51 which provided that the rules of the Court of Appeal would apply until new rules had been developed.