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Otago Daily Times
April 2 2002
Independent, regionally-based appeal court is needed
An international appeal court
based in the South Pacific might be a better option than the Government's
proposed Supreme Court as New Zealand's final court of appeal, writes Fred
Fastier.
Professor Fred Fastier is a
retired Dunedin
academic.
The Supreme Court Bill, which is now before a parliamentary select committee,
is concerned almost entirely with the setting up and running of a final
appellate court. Hence, it is tempting to suppose this Bill is of little
concern to persons other than some lawyers. In fact, its enactment would have
serious consequences for many New Zealanders.
Government already has too few restraints. There is no upper house to hold up
hasty or intemperate legislation; there are too few MPs to resist domination
by Cabinet; the civil service has lost much of its independence; the
universities are being muzzled; and citizens lack the protection of an
effective constitution.
Some persons who would never win an electorate become MPs on the basis of
party membership, despite the fact that the Government may disregard party
manifesto and election promises (as with the continuance of the supertax and
the introduction of Rogernomics). In these circumstances, it is especially
important for there to be a final appellate court that is obviously
independent of the executive arm of government.
The importance of being able to contest executive decisions is well
illustrated by a recent case involving the University of Otago.
In 1994, the then Minister of Education, Dr Lockwood Smith, announced the
university's funding for dental education would be cut by upwards of 40%.
This appalling ministerial directive resulted in a huge increase in tuition
fees, which neared $22,000 a year by 1999. Many potential students were
deterred from studying dentistry.
A judicial review of the situation led to Justice Goddard finding that the
minister had made several "gross errors of fact" in reaching a
decision that was "so erroneous that it could only be categorised as
irrational". This trenchant criticism did not deter the succeeding
government from appealing (unsuccessfully) against the awarding of nearly $15
million to the university and former dental students.
Persons who claim that the law is "an idiot" should remember that
law-making is the prerogative of Parliament. Whereas lawyers are concerned,
essentially, with existing laws, MPs introduce new laws and amend others, not
always commendably.
A substantial proportion of our legislation has been slipshod. Though many of
the defects have been quickly noted, amendment of the law has often come too
late to prevent unfortunate consequences. Some of the legislation has been
utterly execrable: for example, the Waterfront Strike Emergency Regulations,
which prohibited not only freedom of speech in respect to the strike, but
also the supplying of food to a striker's family.
It is vital for democracy that our final court of appeal should not only be,
but also be seen to be, independent of political pressure.
The Government's case for ending appeals to the judicial committee of the
Privy Council is summarised in the overview of the Bill, where it is claimed,
inter alia, the judges of the proposed court would have "a greater
understanding of local conditions". The presumption is that the only
alternative to the Privy Council is a supreme court based in New Zealand.
However, there are other possibilities, including the creation of a supreme
court for Australia,
New Zealand
and some other countries of the South Pacific region.
If Australia
were, like New Zealand,
a single state from a legal viewpoint, I would be reluctant to raise the
possibility; but Australia
is, in fact, a confederation of states that are commonly opposed to one
another and to "Canberra".
This is the very situation in which legal problems could be thrashed out by
judges who combine a good understanding of local conditions with
international considerations.
As Sir Geoffrey Palmer has pointed out in his New Zealand's Constitution in
Crisis (which provides details of some of the ills to which I have been
alluding), we "cannot restrict ourselves any more to the content of the
law in New Zealand because that is not the way that law practice is evolving.
Indeed, much of our legislation has its origins in international obligations.
The Legislative Advisory Committee in 1992 listed more than 185 New Zealand
statutes that seemed to be affected in some way by treaty obligations."
It is of particular importance that our Closer Economic Relations agreement
with Australia
should not be messed up by quite unnecessary legal complications.
I was delighted to learn that the United Future party has also been
considering the possibility of New Zealand combining with nearby
countries to form an international appeal court. Moreover, it has succeeded
in getting the date for submissions on the Supreme Court Bill extended until
April 11. As Act New Zealand MP Stephen Franks said, the request for
submissions to a select committee is a poor substitute for a referendum. Even
so, it might prevent governments taking a step further to untrammelled power.
Recently, many New Zealanders have been reading Lynley Hood's A City
Possessed. This is a detailed account, not only of the trial of Peter Ellis,
but also of the building up of a climate of opinion that almost certainly
precluded a fair trial. Due to the efforts of pressure groups, Parliament has
so altered the rules of evidence obtaining in child abuse trials that the
scales of justice were savagely tipped against the defendant. Witnesses are
ordinarily required to give evidence in person and to be subject to
cross-examination, because that is thought to make it much easier for the
judge and jury to assess the credibility of the evidence.
In the Christchurch
creche case, the children did not appear in court, their evidence being
provided in the form of videotapes. It was presumed that children of even
that tender age would be telling the truth. As it happened, the oldest
subsequently admitted that his evidence was false. It is difficult to imagine
how some of the acts that Mr Ellis was alleged to have committed could have
taken place at all, let alone without their having been witnessed by adults;
yet no adult witnesses of these acts were produced by the prosecution. Its
case was based on what could be deduced from videotapes featuring preschool
children.
Why do I mention this case? My basic concern is the part played in it by
defective legislation. Altering rules of evidence made it possible to obtain
a conviction that almost certainly would not have resulted had the ordinary
rules applied.
Our final appellate court must be able to decide whether a case was properly
tried according to the laws of New Zealand; it must be able to take account
of flaws that violate fundamental human rights.
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