Franks Stephen: Supreme Court Bill — In Committee 
Franks Stephen: Supreme Court Bill — In Committee 
[Volume:612;Page:9061] 
STEPHEN FRANKS (ACT NZ) 
: 
 In the debate on this part we have had some quite curiously wide comments and I will refer very briefly to a couple of them. First on the question of cost there is the notion that somehow New Zealanders will be saving something with the commencement of this legislation. Indeed the cost will come in very early because the court is to be set up and ready to run by the middle of next year. However it may well be that people will elect to run most of the appeals that could be run—a backlog a pipeline of appeals for several years—to the Privy Council. So we will incur all the set-up costs we will incur the cost of removing judges from the Court of Appeal and taking them to the Supreme Court where they will sit twiddling their thumbs for quite a long while if as we expect those New Zealanders who can still do so exercise their right to take their cases to an assuredly impartial and independent tribunal. That may be the dozen or so cases a year that we currently have. 
This legislation subjects New Zealanders to another 40 or 50 cases a year. We will have the highest ratio in the English-speaking world of final appeals at the third level. We will have around 12 appeals per million people when the court is in full force after the transitional period is over and I calculate the transitional period set out in clauses 48 and 50 will expire in around 2 years. When that is over we will have around 12 appeals per million people and that number will go up while Britain contents itself with one per million the United States with even less the Canadians with around two to three per million and the Australians with at most four to five per million. This Government thinks it is justice to have New Zealanders so engaged in dispute resolution that they carry 12 appeals per million people through at the expense of approximately $200000 to $300000 a case. 
I also want to talk about the reasons for the changes recommended by the Justice and Electoral Committee to clause 48 and the consequential changes to clause 50. Clause 48 states that a case that has been fully heard in the Court of Appeal or another New Zealand court and that could have been appealed to the Privy Council can still go ahead to the Privy Council after the Supreme Court is set up. The obvious reason for that is that the judges who are being appealed from may be the same judges one is forced to appeal to. That is elementary. But what about the cases that have been partly heard? The same problem occurs but the bill does not deal with it. Of course the Government is utterly indifferent to the problem of apparent bias or apparent partiality in a court. It just says we should leave things to it and that is not what it intends. 
The effect of the transitional provision is that if one has a partly heard application that has not been completed or for which a decision has not been rendered one may be obliged to appeal to the same judges at the next level. If a matter is partly heard and a decision is given after the commencement of this legislation then the applicant must apply and take an appeal to the same judges. That did not matter to the Minister. She did not want her court to sit twiddling its thumbs and looking idle while consuming $6.5 million a year and sitting in premises that cost $20 million to set up because New Zealanders who had a choice continued to take cases to the court they preferred. That would be a very bad look in an election year so we have this half-cocked transitional provision that does not achieve what it should have achieved. Clause 48 is an abortion to those who believe that justice should be done by courts that patently are not being judges in their own cause. 
The other element that arises as Mr Lindsay Tisch said is the appointment process. We left that open and had no time to debate it because we had one 5-minute speech on the previous part. The only way to avoid apparent bias under clause 47 I believe will be to use to the max the power to appoint temporary judges. And of course who does that? The Attorney-General can choose temporary judges who suit the Attorney-General’s ideology. There is no protection in this bill against stacking the court with the favourites who have proved by their decisions to suit the Government. The Government can go out and recall Justice Thomas. Justice Thomas made it plain in his submissions how keen he was to be able to develop an indigenous law and we can expect to see him back as a temporary judge appointed by the Minister to deal with that.