The majority of these principles were developed by the Royal Commission on the Courts in 1978 and the Law Commission in 1986.
Recognising the Court of Appeal as New Zealand's final appellate court
Consistent with New Zealand's independence, our final court of appeal should be located in New Zealand.
Reflective development of the law
Any restructuring of the New Zealand appeal system should provide for the presentation of more developed and refined arguments, ensuring overall quality of decision making and more reflective development of law. This, in turn, maintains public confidence in the justice system by ensuring that parties' concerns have been fully addressed and by reducing the possibility of error.
Recognising Maori values and interests protected by the Treaty of Waitangi
Maori are the indigenous people of New Zealand and are entitled to protection of their culture and interests under the Treaty of Waitangi. The New Zealand judicial system should be structured to allow proper consideration of Maori values.
Reflecting the nature of New Zealand society
The shape of the New Zealand judicial system should be in harmony with the essential nature of the society it serves. New Zealand's small scattered population requires a carefully considered balance of centralised and regional judicial services. Appropriate recognition of the diversity in New Zealand society within the structure of the judicial system is important. Similarly the judicial system should be structured to deliver justice in a manner that reflects New Zealand values.
Economic viability
Financial cost is an important factor to consider in any restructuring. Expenditure on administration, accommodation and other costs associated with changes to the judiciary should be carefully assessed against short and long term benefits.
Meeting the needs of the community
Any restructuring of the court system should give particular consideration to meeting the needs of the communities it serves. In this regard any restructuring must ensure that services are readily accessible, not unduly expensive, and are provided in a timely manner.
Maintaining the independence of the judiciary
Judicial independence is a fundamental constitutional principle, which is central to maintaining the proper balance between the executive power of the government and the delivery of justice through the courts. Maintaining judicial independence is essential to ensuring public confidence and integrity of the justice system. It is therefore essential that the restructuring process does not erode this principle.
Effective use of resources
As a small country with a diverse and geographically dispersed population it is important to maximise the use of limited judicial resources. As a general premise, disputes should be dealt with at the lowest appropriate level. In practice this means that the District Court should deal with the bulk of judicial work. In contrast, judges of the Court of Appeal should be free from routine matters and provided with the resources to focus on leading the development of the common law.
Simplicity
The judicial system should be as simple as possible. Judicial processes should not be unnecessarily complex and the proliferation of courts should be avoided. Members of the public should be able to understand the justice system, assess their options and access justice without undue delay.
Efficient administration
Any restructuring of judicial services should ensure efficient administration. Inefficient administration may lead to injustices. The smooth running of judicial services is essential to the delivery of justice.
Access to justice
Every person has a right to access legal remedies and is entitled to fair and equal treatment before the law in accordance with the principles of natural justice.
Appendix Two: Countries which have retained the right of appeal to the Privy Council
Countries and dependant territories that have retained the right of appeal to the Privy Council
| Antigua and Barbuda Auguilla Bahamas Barbados Belize Bermuda British Virgin Islands Brunei & Maldives Dominica |
Cayman Islands Falkland Islands Gibralta Grenada Jamaica Kiribati Mauritius Montserrat New Zealand (Tokelau, Cook Islands, Niue) |
St Helena St Kitts and Nevis St Lucia St Vincent and the Grenadines Trinidad and Tobago Turks and Carcos Islands Tuvalu |
Countries that have abolished the right of appeal to the Privy Council
| Australia Canada Cyprus Fiji Ghana Guyana Hong Kong |
India Ireland Lesotho Malaysia Malta Pakistan Sierra Leone |
Singapore South Africa Sri Lanka Tanzania Zambia Zimbabwe |
Appendix Three: Reforms in countries which have ended Privy Council appeals
Federal Systems
Canada
The Supreme Court of Canada was established in 1875. However, it was not until 1949 that all rights of appeal to the Privy Council were abolished.
Currently within the Canadian Federal justice system, each province has a separate hierarchy of courts, with jurisdiction to hear federal, provincial and constitutional law. Tiers within the provinces include a first-level provincial court, a superior provincial court and a provincial Court of Appeal. The superior court level also includes the Tax Court of Canada and the Federal Court of Canada, which comprises a Trial Division and the Federal Court of Appeal. The Federal Court's jurisdiction encompasses any matter falling within the competence of the Federal Government.
The Supreme Court of Canada hears appeals from the provincial courts of appeal and the Federal Court of Appeal. Although most civil appeals require leave to appeal, in criminal cases an appeal may be brought as of right where there is a dissenting opinion in the provincial court of appeal.
The jurisdiction of the Supreme Court also includes the provision of advisory opinions on questions referred directly to the court by the Governor in Council. This reference procedure has been primarily used for constitutional questions. In Australia, the High Court has refused to issue advisory opinions on the basis that it is a non-judicial function. In 1912, the reference jurisdiction of the Supreme Court was challenged in the Privy Council, Reference Appeal [1912] AC 571. The Privy Council held that although the function was not judicial but merely advisory, with no more effect than the opinions of the law officers, it upheld the jurisdiction. As a consequence, the Court's answer on reference questions is non-binding.
As noted in Hogg, Constitutional Law of Canada, a second objection to the reference question concerns the exercise of original jurisdiction. Section 101 of the Constitution Act authorised the establishment of a Court of Appeal. In the United States, an attempt to confer original jurisdiction on the Supreme Court was held to be unconstitutional. This objection has never been lodged against the reference jurisdiction of the Canadian Supreme Court.
The Supreme Court of Canada considers approximately 500 applications for leave to appeal each year and hears 120 appeals. A quorum consists of five members for appeals, but most appeals are heard by a panel of seven or nine judges. There are nine permanent appointments to the bench. Although the Court normally adheres to its prior decisions, it is not absolutely bound to do so.
Australia
Like Canada, the Australian judicial system is federal. Each state has a separate three-tier hierarchy of courts from Magistrate level to Court of Appeal. In addition, the Federal Court of Australia exercises appellate jurisdiction over certain State Supreme Courts in proceedings concerning federal jurisdiction. The High Court is Australia's highest appellate court.
There is no automatic right for an appeal to the High Court and parties seeking to appeal State Court and Federal Court decisions must apply for leave to appeal. The High Court also has original jurisdiction to hear matters, which arise under any Treaty, or affect representatives of other countries. It can also hear matters in which the Commonwealth is a party or matters between states. In addition, it considers matters where an injunction is sought against an officer of the Commonwealth. The High Court also has a broad original jurisdiction to determine matters arising under the Constitution or involving its interpretation. The High Court is not bound by its previous decisions.
There are seven permanent members of the High Court. A full court of five or seven judges hears constitutional cases and appeals that raise important questions of law. In 1998-1999, the High Court considered 328 matters, only one of which was heard by the full Court.
Malaysia
Between 1978 and 1985, Malaysia abolished all rights of appeal to the Privy Council. The Federal Court of Malaysia is now the highest judicial authority.
Within the court structure, there are two High Courts relating to the two Malaysian provinces. A single Court of Appeal has appellate jurisdiction to hear civil and criminal cases originating from them. The Federal Court has both appellate and original jurisdiction.
In its original jurisdiction, the Court may determine disputes between states and the validity of laws made by Parliament. It also has an advisory jurisdiction and may provide an opinion to the King on matters concerning the Constitution. In addition, the High Court may refer constitutional questions directly to the Federal Court. Finally, the court exercises its appellate jurisdiction, determining appeals from the Court of Appeal.
The Federal Court consists of the Chief Justice, President of the Court of Appeal, the two Chief Judges of the High Courts and three Federal Court judges. A full court comprises three judges on the bench, but on constitutional matters the bench can increase to include five or seven judges.
Unitary Systems
Singapore
In 1994 Singapore abolished appeals to the Privy Council. The court structure now comprises District Courts and the Supreme Court, which includes the High Court and the Court of Appeal, Singapore's final court. The High Court exercises both original and appellate jurisdiction, similar to New Zealand's High Court, and the Court of Appeal hears appeals from the High Court. The President of Singapore may also refer to a tribunal consisting of not less than three judges of the Supreme Court for its opinion on any question as to the effect of any provision of the Constitution.
The Court of Appeal usually consists of three judges. However, on request of the Chief Justice, a judge of the High Court can sit on the bench and five judges may consider important cases. The Court of Appeal is not bound by its own previous decisions.
Hong Kong
In 1997 appeals to the Privy Council from the Hong Kong courts were abolished. Hong Kong now has a four tier judicial system.
The District Court hears civil claims up to $120,000 and criminal cases, apart from murder, manslaughter and rape. The High Court is divided into two levels, the Court of First Instance of the High Court and the Court of Appeal of the High Court. The former has unlimited jurisdiction in both civil and criminal matters and the latter hears appeals from the Court of the First Instance and the District Court.
The Court of Final Appeal is the highest appellate court in Hong Kong. In civil matters, appellants can appeal as of right the final judgment of the Court of Appeal where the amount in dispute exceeds $1,000,000. Any other civil matter may be appealed with leave from either the Court of Appeal or the Court of Final Appeal where the question involved is one of great general or public importance. In criminal matters, leave to appeal must be obtained from the Court of Final Appeal. The Court of Final Appeal has no jurisdiction over acts of state such as defence and foreign affairs.
The Court of Final Appeal is constituted by the Chief Justice, three permanent judges and one non-permanent Hong Kong judge or one judge from another common law jurisdiction. Under section 9 of the Hong Kong Court of Final Appeal Ordinance, the Chief Executive, on advice from the Judicial Officers of the Recommendation Commission, compiles a list of judges from other common law jurisdictions. The current list of judges includes the Rt Honourable the Lord Cooke of Thorndon, the Rt Honourable Sir Edward Somers and the Honourable Lord Hoffman.
In 1998, the Court of Appeal of the High Court heard 653 criminal appeals and 184 civil appeals. During that same year, the Court of Final Appeal dealt with 24 criminal and 21 civil applications for leave to appeal and three substantive criminal appeals and 14 substantive civil appeals.
