Reshaping New Zealand's Appeal Structure Discussion Paper 1/4

Margaret Wilson Attorney-General
  1. It's time for change

Introduction

  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?

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

National identity and independence

  1. 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.
  2. 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

  1. 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

  1. 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

  1. 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.
  2. 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

  1. 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.
  2. 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.
  3. 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

  1. 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

  1. 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

  1. 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.
  2. 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

  1. 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

  1. 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

  1. 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

  1. 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

  1. 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.
  2. 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.