Mapp Wayne: Judicature Amendment Bill (No 3) — In Committee 
Mapp Wayne: Judicature Amendment Bill (No 3) — In Committee 
[Volume:630;Page:2466] 
Dr WAYNE MAPP (National—North Shore) 
: 
 I wish to talk about the way this bill fails to deal with the real issues around the Court of Appeal. The truth is that our court system has grown on an ad hoc basis by adding bits here and fixing bits there and the current Government is guilty of participating in that. It made a major reform—an important reform—a few years ago by establishing the Supreme Court. One would think that the opportunity would be taken with a Judicature Amendment Bill to actually fix up the court system. For instance the overall structure of the Court of Appeal could have been looked at. It has been analysed by the Law Commission which has done a report on it. The work of the commission could have been taken into account and some coherence could have been brought into our appeal system. Has that opportunity been taken? I say to my colleagues that the answer is no. The Government might think it good enough to put up little bills to tweak things a bit and do a little repair job but the truth is that Parliament’s legislative time is scarce. We expect the Government to take a serious approach and bring to Parliament what I would regard as a proper bill that deals with the issues around the Court of Appeal. 
The Court of Appeal typically sits in Wellington and Auckland. 
Hon Clayton Cosgrove 
: You’re joking! 
Dr WAYNE MAPP 
: Yes it does for the information of that Associate Minister of Justice. But there is no permanent facility in Auckland. Again it is an ad hoc facility. There is no practice except what has grown informally if you will for the court always to sit in panels of three. Most of the time it does but from time to time it sits as a full court of five. 
One has to ask oneself whether that is logical or sensible now that we have a Supreme Court. It was sensible and appropriate when all appeals went to the Privy Council because more often than not the final appeal was in New Zealand. Most people would not appeal to the Privy Council for a variety of reasons—including costs distance difficulty in getting cases there and so on. So a full court of five such as in the Ngati Apa decision was appropriate. 
Let us be honest the Ngati Apa decision on the foreshore and seabed was seen by the country and this Parliament to be the final decision. Of course in theory the Crown could have appealed to the Privy Council. It did not. The Government took the path of legislation which in effect denied a proper hearing and consideration of the merits at what was the true final appellate court for New Zealand at that time—the Privy Council. 
As a matter of practice—and I say this to the Government—lessons should be learnt from that experience. When there are highly contentious issues and people are part way through a court process the appropriate procedure is to go all the way through the court process so as not to deny those people their right to be heard in the courts. Only if that does not work out should the legislature and the executive consider legislation. 
When the Supreme Court was established it was imperative to change the approach and look at the Court of Appeal in quite a different light—as a true intermediate court that should in my view sit in panels of three. It should be permanently established in Auckland with a panel of three there and permanently established in Wellington also with a panel of three. The Government has certainly appointed enough judges to achieve that outcome. It could actually do it. That is one good aspect of this legislation. But I have to ask the Minister why the Government has failed to really get to grips with this issue and produce to Parliament a substantial Judicature Bill that would actually deal with the overall structure of the appellate courts of New Zealand. That is what is required now in our court structure.