Reshaping New Zealand's Appeal Structure

Discussion Paper

Hon Margaret Wilson Attorney-General

December 2000

1. It's time for change

1. Earlier this year the Government signalled that ending appeals to the Privy Council seems an inevitable next step in the development of New Zealand's national identity and independence.

2. As Lord Cooke of Thorndon has noted:

   "…New Zealand law has now evolved into a truly distinctive body of principles and practices, reflecting a truly distinctive outlook. Commonsense dictates the inevitable result. The differences have reached the stage where the last say in the decisions of our case law… cannot sensibly be left to a remote body with little real connection with New Zealand or touch for New Zealand issues… We must accept responsibility for our own national legal destiny and recognise that the Privy Council appeal has outlived its time. Not to take the obvious decision now would be to renounce part of our nationhood."¹

3. During previous discussions on this issue Maori have raised concerns about the effect that ending appeals to the Privy Council may have on the relationship established between the Crown and Maori under the Treaty of Waitangi. This Government is committed to working with Maori to ensure that any change to the appeal structure of the courts will not change the protection of Maori interests under the Treaty of Waitangi.

4. This discussion paper invites all interested parties to work with the Government to develop a modern, inclusive and enduring New Zealand appeal structure that will promote effective and fair access to justice.

Why change?

5. There are several reasons to support ending the right of appeal to the Privy Council.

National identity and independence

6. The first set of reasons relates to matters of national identity and the desirability of having all parts of the judicial system located in New Zealand. It is argued that ending appeals to the Privy Council will:
   • recognise New Zealand's constitutional status as an independent nation;

   • reinforce New Zealand's confidence in its judiciary;

   • ensure that final decisions are made by judges who live in New Zealand and who are familiar with New Zealand society.

7. In recent times the Privy Council itself has acknowledged that final decisions on matters of important legal policy are best made in New Zealand by referring cases back to the Court of Appeal.²

Many Commonwealth countries have abolished appeals to the Privy Council

8. Most other Commonwealth countries have already abolished the right of appeal to the Privy Council. For example:
   • Canada abolished criminal appeals in 1933 and civil appeals in 1949.

   • South Africa ended appeals in 1950.

   • Australia terminated all appeal rights between 1975 and 1986.

   • Hong Kong severed its ties with the Privy Council in 1997.

   • Other countries which have abolished the right of appeal to the Privy Council include Pakistan, Ireland, India, Malaysia and Singapore.

   • Caribbean nations have discussed plans to replace the Privy Council with a Regional Court of Appeal.

Few New Zealand cases are heard by the Privy Council

9. In practice only a small number of appeals from New Zealand are made to the Privy Council each year. Even fewer are successful.
   • Between 1990 and 1994 the Privy Council heard 33 appeals from New Zealand. Seventeen were successful.

   • Between 1995 and 1999, those figures dropped to 11 out of 48 appeals being successful.

   • In 1999 the Court of Appeal heard and decided approximately 508 appeals. In the same year only 10 appeals went to the Privy Council. Eight of those 10 were dismissed.

New Zealand's changing international relationships

10. The changing nature of our society brought about by regionalisation and changes in New Zealand's commercial interests have shifted New Zealand's focus from Europe to Asia and the Pacific. New Zealand is increasingly forming trade links with countries that have no link with the Privy Council. The ending of the right of appeal to the Privy Council is therefore unlikely to have a significant impact on business.

11. Removing the Privy Council as New Zealand's final appeal court will not isolate New Zealand from the international scene. On the contrary, while English law is increasingly focussed on Europe, New Zealand is participating more in international legal processes. For example at a government level, New Zealand takes cases to the International Court of Justice and the World Trade Organisation. Individuals can take cases to United Nations bodies such as the Human Rights Committee or use private arbitration processes such as those run by the International Centre for the Settlement of Investment Disputes. New Zealand also actively participates in the international processes for developing new laws, including UN committees, UNCITRAL on international trade law, WTO negotiations and the Hague Conference on private international law. Most importantly, the courts of New Zealand draw on legal developments in a whole range of countries and international areas when making decisions on New Zealand cases.

Cost and accessibility

12. Issues of cost and access to justice arise because of the physical distance between the New Zealand and the Privy Council in London. Many litigants simply cannot afford to take a case to the Privy Council and so in practice they are unable to exercise their full appeal rights.

13. At present the average cost for the Crown to take a civil appeal to the Privy Council is approximately $100,000 compared with $20,000 to take a similar case to the Court of Appeal. Typically the costs incurred by private litigants in these Courts will be higher, probably double.

14. While the United Kingdom pays for the Privy Council, the New Zealand taxpayer pays for legal aid for appeals and the costs of a New Zealand Court of Appeal judge sitting on the bench of the Privy Council. Legal aid costs can become significant. For example, in 1998/99 the Legal Services Board provided legal aid to five clients, totalling $281,400, and five clients in 1999/2000, totalling $103,800. Payments per case ranged from approximately $30,000 to slightly more than $100,000.

Arguments for retention of appeals to the Privy Council

15. Over the years two main arguments have been developed for retaining appeals to the Privy Council. These include the cost and the quality of decision making.

Cost

16. As New Zealand pays few of the costs of running the court, it is suggested that retaining appeals to the Privy Council is a cost-effective way of obtaining an extra level of appeal. For individual litigants however, the cost of taking a case to the Privy Council is often prohibitive. Similarly, as noted above, there are significant legal aid costs paid by the New Zealand taxpayer. For users of the appeal system, access to the Privy Council can be expensive and therefore a less effective appeal option.

Quality of decisions

17. Some commentators have suggested that Privy Council decisions are of better quality than those made by New Zealand courts. There is simply no evidence to support this suggestion. Cases that reach the Court of Appeal and Privy Council usually involve complex issues over which able judges can and do differ. This bears no reflection on the quality of decision making at those levels. It is important to note that New Zealand Court of Appeal judges sit on other courts alongside members of the Privy Council and take their place at the Privy Council bench when it hears New Zealand appeals. As already noted, the Privy Council itself increasingly refers matters back to the New Zealand courts for decision.

18. A further reason for retaining appeals to the Privy Council that has sometimes been put forward by both Maori and business groups, is that the Privy Council provides detachment in decision making because it is removed from the pressures of the local environment and therefore makes decisions that are favourable to those groups. As previously noted, distance from New Zealand can also be seen as detrimental, as the judges making final decisions are largely unfamiliar with New Zealand society. To ensure the integrity of the justice system, any decisions on whether to reform the appeal system cannot be based on the outcome of individual cases. The Government intends to adopt a principled approach to resolving such important issues.

Issues for Maori

19. In previous discussions Maori have indicated that ending the right of appeal to the Privy Council raises several important issues.

The symbolic link to the Sovereign

20. The Government acknowledges and respects the views held by Maori that the Privy Council provides a means of direct access to the Sovereign as guaranteed under the Treaty of Waitangi. In recent times, however, the Privy Council itself has recognised that the link between indigenous people and the Crown is no longer maintained through the monarch's English representatives ( New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513).

Favourable hearing

21. There is a perception amongst some Maori that they receive a more favourable hearing from the Privy Council than the Court of Appeal. This perception seems to have arisen from two cases in the early 20th century, Wallis v Solicitor-General [1902-1903] NZPPC 23 and Nireaha Tamaki v Baker [1900-1902] NZPCC 371 and one recent case, New Zealand Maori Council v Attorney General [1994] 1 NZLR 513. The other two cases heard by the Privy Council, involving significant Maori rights, were either dismissed or involved issues that did not concern the Crown.³

The practical relevance of appeals to the Privy Council

22. Throughout the 20th century there have been approximately 13 cases appealed to the Privy Council which were of significance to Maori. Only two cases to the Privy Council considered issues relevant to the Treaty of Waitangi and only five cases were significant in terms of Maori rights and interests. In contrast it is the New Zealand courts that have mainly dealt with matters affecting Maori.⁴ These cases suggest that the right to appeal to the Privy Council is perhaps of more symbolic than practical legal value to Maori. In real terms, it is the New Zealand courts that have made the most substantial contributions to the development of the law on Maori issues.

Recognising Maori interests and values

23. The Government is committed to ensuring that Maori interests and values are appropriately reflected in the legal system. During earlier consultations Maori have made several suggestions. These included:
    • greater representation of Maori within the justice system;

    • acknowledgment of Maori values within the substantive law;

    • processes to give the Court of Appeal access to expert advice on Maori values;

    • overseas judges to sit on the Appeal Court bench.

24. These suggestions are discussed in further detail in Section Three. The Government welcomes discussions of these and any other suggestions on how best to reflect Maori values within the New Zealand court system.

Footnotes

1. Sir Robin Cooke (as he was then), "The NZ National Legal Identity", an address delivered at the New Zealand Law Conference, October 1987, Canterbury Law Review 3 [1987] 171, 182-83.

2. See Invercargill City Council v Hamlin [1996] 1 NZLR 513 and Lange v Atkinson [2000] 1 NZLR 257.

3. Hoani Te HeuHeu Tukino v Aotea District Maori Land Board [1941] AC 308 and Tainui Maori Trust Board v Waitangi Fisheries Commission [1997] 1 NZLR 513.

4. For example, R v Symonds, [1847]; Re the Bed of the Wanganui River,[1960] NZLR 673; Te Weehi v Regional Fisheries Officer,[1986] 1 NZLR 682; Huakina Development Trust v Waikato Valley Authority[1987] 1 NZLR 641; New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641; and Nga Tahu Maori Trust Board & Ors v Director of Conservation & Ors [1995] 3 NZLR 553.