Reshaping New Zealand's Appeal Structure

Discussion Paper

Hon Margaret Wilson Attorney-General

December 2000

3. Options to address Maori issues

Greater representation of Maori within the justice system

43. In 1995 the Maori Committee of the Law Commission recommended greater representation of Maori within the justice system by increasing the number of Maori appointed to the benches of all courts.

44. It may be appropriate when considering appointments to New Zealand's final appellate Court to reassess the current appointment process.

45. The appointment process for members of the judiciary is set out in the booklet, High Court Judges Appointments. People seeking appointment to the High Court and Court of Appeal are assessed in relation to four criteria: legal ability; qualities of character; personal technical skills, and reflection of society. The last criterion states:

    "This is the quality of being a person who is aware of, and sensitive to, the diversity of modern New Zealand society. It is very important that the judiciary comprise those with experience of the community of which the court is part and who clearly demonstrate their social awareness."

46. It is noted that s 174(2) of the South African Constitution Act 1996 states:

    "The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed."

47. In New Zealand, when considering appointments to the High Court bench, the Attorney-General consults members of the legal professional community, including the Chief Justice, President of the Court of Appeal, Secretary for Justice, President of the Law Commission, New Zealand Bar Association and President of the New Zealand Law Society. Nominations are sought from the Ministers of Justice, Women's Affairs and Maori Affairs. Other organisations which may be consulted include the District Law Societies, women lawyers' associations and the Maori Law Society. Further enhancements of this process to increase the participation of Maori in the judiciary may be appropriate. When considering appointments to the Court of Appeal, there may be other community, Maori or legal organisations that the Attorney-General could consult.

Processes to give the Court of Appeal access to expert advice on Maori values

48. In cases involving the Treaty of Waitangi or constitutional issues, or substantial questions of Maori culture and values, it might be appropriate for the Court of Appeal to have direct access to expert advice on Maori values and tikanga Maori.

49. The 1999 amendment to the Judicature Act included provisions for the Court of Appeal to appoint technical advisers to provide advice on scientific, technical or economic matters or other matters arising from expert evidence. This provision reflected concerns expressed in the commercial community that the Court of Appeal could find such assistance of value in particular cases. A similar process may address Maori concerns in relation to the ability of the courts to deal with Treaty issues or matters involving Maori values. It has also been suggested that in cases involving the relationship between Maori and the land, it may be appropriate for the Court to access the expertise of the Maori Appellate Court.

Acknowledging Maori values within the substantive law

50. In 1995, the Maori Committee of the Law Commission noted that acknowledging Maori values within the substantive law is an important issue. There are an increasing number of provisions where these issues have been incorporated into the law. For example:
    • Section 16 of the Criminal Justice Act 1985 allows an offender appearing for sentence to call witnesses to speak about his or her cultural background, the way it may relate to the commission of the offence, and the positive effects it may have in avoiding further offending.

    • The Children, Young Persons and Their Families Act 1989 provides for Youth Courts to appoint lay advocates to appear in support of those charged with offences. Their principal function is to ensure that the Court is made aware of all cultural matters that are relevant to the proceedings and to represent the interests of the young person's whanau, hapu and iwi as necessary.

    • In the area of restorative justice, traditional Maori values are also being brought to bear.

51. It may be appropriate to provide for appeals from the Maori Appellate Court, which presently go to the Privy Council, to be heard in the Court of Appeal. This appeal route was provided for in the 1996 Court Structures Bill but never enacted. This option could be revived. Such appeals could be made by leave from the Maori Appellate Court or the Court of Appeal.

Overseas judges on appeal bench

52. This option was also raised by the Maori Committee and would enable judicial officers from outside New Zealand to sit on the Court of Appeal bench. For example, the Chief Justice of Samoa or judicial members of the Privy Council, the Canadian Supreme Court and the Australian High Court could be included. This option could address concerns raised by Maori about the detachment of a wholly New Zealand bench.

53. Hong Kong has adopted a similar model and has invited judges from other common law jurisdictions to sit on the bench of its final appeal court. These include Lord Cooke of Thorndon (NZ), Sir Edward Somers (NZ), and Lord Hoffman (UK).⁵ Earlier this year Lord Cooke suggested that the Hong Kong model should be seriously considered as an alternative for New Zealand if appeals to Privy Council are abolished. This suggestion could be seen to be at odds with New Zealand's independence. But it can also be viewed as a practical way for a small country to make the most of its own and international judicial talent.

Footnotes

5. For further detail see Appendix Three.