United Future
Murray Smith

Murray Smith's speech - Third Reading of Supreme Court Bill

We need to replace our right of appeal to the Privy Council. The Supreme Court proposal put up by the Government was generally a good proposal.

The only problem is that the public do not want it. The Government’s response to the public’s opposition to it is: “Stuff the public! We are going ahead anyway.”

Support for the Government drops further, and slowly its buffer zone whittles away. So let us have a post-mortem. What went wrong for the Government? It all comes down to marketing. For marketing, I would give the Government a D-.

Simply, it did not sell this proposal to the public. It was a constitutional issue, it needed the public to be onside, but the Government failed to get public support.

What were the errors the Government made? Firstly, there should have been a select committee inquiry into whether the Privy Council should be abandoned in favour of a Supreme Court, based on a specific discussion paper that was effectively a shadow bill.

Instead, the Government tabled a Supreme Court Bill, said: “Well, here it is. Now we will discuss it, and then we will pass it.”, and the public felt it was a fait accompli. The issue needed to be taken on a gentler basis.

The issue of whether the right of appeal to the Privy Council should be abandoned in favour of the Supreme Court should have been fronted up directly to the public—not just through a consultation paper that asked what would replace it, on the assumption that it would be replaced, and not based simply on private conversations with selected people.

There should have been a discussion paper, because then there would have been public ownership of this issue. The public would have said: “All right, we have been asked the question. These are our views.” Those views could have been discussed, and the public might have come onside.

Secondly, the Government should have said to the public: “The Privy Council is in decline. What are we going to do to replace it?” We know that countries have left the Privy Council, and we know that only three countries, apart from New Zealand, now actively participate in the Privy Council. The public do not know that. It has been too little and too late for the Government to now sell this bill on that basis. The public needed to know that fact a long time ago.

Even recently, I have been getting emails from people, saying: “If it isn’t broke, why fix it?” The fact of the matter is that if the Privy Council is not broken now, it will be broken shortly, but the public do not realise that, and that is the Government’s fault. Even in this House there are people who did not know that the Caribbean countries are leaving the Privy Council, and they make up 40 percent of the caseload of the current council. They did not know that England is to set up a new Supreme Court, which would take 20 percent of the caseload away from the Privy Council, leaving New Zealand and those other small countries. The lack of education within this House, let alone outside it—and I am talking about Labour MPs here—has been abysmal.

It is only in the last week that the Government has finally started arguing that this is a necessary bill because the Privy Council is going into decline. However, the Privy Council was probably not in demise 2 years ago, when the Government actively started this process. The Caribbean departure has occurred over the last 12 months, and the Supreme Court proposals in England have really taken place this year. The Government’s initial approach was to do this as an ideological drive, so its timing was out. If the Government had been a little bit more patient about this bill and taken a little bit more time to get the public onside, then the events we have seen in the last year would have helped it achieve the goal it felt it needed to achieve.

But once the Government realised the public was not onside, it could even then have taken a step back and looked at some degree of compromise that could have resulted in this bill going through. Government members could have swallowed their pride, opened their minds, and said: “All right, we do not have public support. What do we need to get it?” That is the approach United Future took. One way would have been to disclose the names of the senior Court of Appeal judges on the first court. There is no reason why the names of the first court could not have been decided and disclosed before this bill went through. The Government could have consulted as much as it liked beforehand, but that disclosure would have given the public and the business community confidence that the court would not be stacked.

With regard to judicial appointments, clearly there are the beginnings of a worldwide trend—particularly in Commonwealth countries—for there to be an independent judicial appointments commission. As those criticisms arose, the Government should have volunteered a discussion paper and announced that there would be a move to work towards a more independent judicial consultation process. That would have allayed fears among the legal and business communities about the stacking of courts, and the judicial process that has started to arise, particularly on the back of the Australian experience.

Thirdly, among Mâori the key argument was that a constitutional review was needed, and that the place of the treaty within our constitution needed to be examined and cemented in. That was the message that came out of the Taupo hui, and it has been ignored. For all sorts of reasons, we are long overdue in deciding what the place of the Treaty of Waitangi in our nation is. Instead, National and Labour have taken the approach of saying that they are too scared to address the place of the treaty, but that they will create “treaty principles”. That has confused the situation even more. We have been wandering around—as Labour continues to do—with no vision of the place of Mâori and the treaty within New Zealand for the next 5 to 10 years. We need a clear direction, and that is what Mâori are calling for in the context of this bill.

Fourthly, the business community clearly lacks confidence that the Court of Appeal judges appointed to the Supreme Court will be able to decide their multi-million dollar cases in that court. That is not necessarily to say that our Court of Appeal judges do not have competence. They do have competence, but in comparison to the level of support and confidence engendered by British judges and the senior Commonwealth law lords, the business community thinks we will be poorly served.

What could we have done to try to alleviate that concern? Why not arrange that two of the five judges on the initial bench will be overseas judges with commercial experience? In exchange for us withdrawing from the Privy Council, why not ask the British legislature to make two judges available to us—even just during the transition process—in order to get the support of the business community? I am sure the British Government would have been sympathetic to that request, but it was never put. There could have been a transition. We could have looked at reviewing the system in 5 years’ time. That would have allowed the court to begin with the confidence of the public, and to prove to itself and to New Zealanders that our judges had competence. When it was reviewed in 5 years’ time, it might well have been OK. Instead, Labour is seen as arrogant, ideology-driven, dismissive of public opinion, and untrustworthy.

Why are the Greens supporting this bill? According to Green members, they got no concessions. They went into the select committee process wanting three things. They wanted overseas judges, more consultation with Mâori, and a clause inserted in the bill to the effect that the bill did not affect the treaty rights of Mâori. Have they got any of those? No, they did not get a single one. They said they changed their minds on overseas judges. There might have been more consultation with Mâori, but Mâori emphatically said “No”, so the Greens ignored them. Is there a clause protecting treaty rights? No, there is not. The right of appeal based on treaty issues has been taken away and put into the purpose clause. One could argue that, effectively, the role of the treaty has been demeaned, not encouraged. So much for that!

The mystery is what the Greens have achieved from it. They have achieved nothing. They have sold out their constituency and New Zealanders who do not support this bill. It will not be the last time they sell out their constituency. They have promised to bring the Government down after the end of the month if the moratorium is lifted. They have said they will not support the Government’s legislation. It will be interesting to see whether they welsh on the commitment they made to the people, as well, and, once again, sacrifice their constituency.