Third Reading Of Bill Scheduled For Tomorrow

The third reading of the Supreme Court Bill is set down for Tuesday 14 October. It is the first item on the Order Paper, reflecting the priority the Government has given to ensuring the Bill is passed. A united Opposition of National, New Zealand First, ACT, and United Future will be voting against it.

The Government And The Rule Of Law

The Government's determination to force the Bill through Parliament displays a breath-taking arrogance. Margaret Wilson has alleged that opposition is party political, thereby implying that it can be safely ignored. That is perhaps an unwise conclusion for the Labour Party's unelectable MP to arrive at.

It is true that much legislation is passed by a slender majority; that even contentious Bill's are sometimes passed by a narrow margin; and that opposition to Government Bill's is often political rather than based on any principled objection to the proposal. These are all inevitable in a parliamentary system of government. However they are also irrelevant in the present case.

The abolition of appeals to the Judicial Committee of the Privy Council is not a mere technical change to a part of the Court structure. The Supreme Court Bill is not a run-of-the-mill measure for advancing the "peace, order and good government" of the country. It is a change to the country's Constitution. Indeed it is a "lopping off" of one of the three tiers of government.

Most people would agree that the abolition of the House of Representatives, or the creation of a Republic, would be a major Constitutional reform. Either would be a fundamental change to the body politic- the legislative and executive branches of Government respectively. These proposals would require significant consultation, either a consensus in Parliament or the support of the major parties, and a public referendum.

The "lopping off" of Privy Council appeals is an equally significant change to the judicial branch of government. Yet it is likely to be pushed through with a bare majority, in the face of united opposition from all non-Government parties, the business community, Maori, and major sections of the community. It is truly a constitutional outrage, worthy of a third world banana republic. The Caribbean states that are considering ending appeals to the Privy Council will not do so before holding referenda. The Attorney-General has ruled out that democratic option as unnecessary.

OPPOSITION BASED ON PRINCIPLES, NOT POLITICS

Margaret Wilson has stated that opposition to the Supreme Court Bill is purely political. She points to the alleged fact that some opponents of the Bill may once have supported the abolition of appeals to the Privy Council. Whilst this may be partly true, it is also irrelevant.

Many people are opposed to the present Bill because of the lack of consultation; the patent lack of support for the proposal; the strong opposition of both Maori and business; and because constitutional reforms require something more than a bare majority in Parliament.

Some of those who are now speaking out against the Bill are themselves supporters of abolition of appeals to the Privy Council, at least in principle. However they object to the heavy-handed way that the Government is approaching the change. By rejecting opposition to the Bill, and calls for a referendum, the Government is sending the worst sort of message to the people and the world: we know best, no opposition will be brooked, and the people cannot be allowed to make decisions for themselves. This is a real worry, particularly when we remember that what is at issue here is our Constitution. If the Government shows such contempt for opposition, due processes, the rule of law, and ultimately the Constitution, the future of parliamentary democracy itself may be endangered.

The Prime Minister has criticized those National Party members of Parliament that are now opposed to the Supreme Court Bill but who had once been in favour of ending of appeals to the Privy Council. However has she forgotten that the Labour Party has itself opposed a Bill cutting appeals? In 1996 Labour's Shadow Attorney-General David Caygill said that Labour was concerned that the plan of the then Attorney-General Paul East to end appeals was "part of the Prime Ministers drive to make New Zealand a republic". Labour opposed the Bill. In August 1996 Helen Clark was quoted as saying that ending appeals to the Privy Council "should only be considered as part of a wider constitutional debate". In 1997 the Labour Deputy Leader (now Deputy Prime Minister) Dr Michael Cullen said that [another reason why] "it is not appropriate to legislate to remove the Privy Council appeal right is that it is clear that, in particular, a significant section of Maori see the right of appeal as part of the basic safeguards of the Treaty of Waitangi". This situation has not changed, and it is even more apparent today that the Attorney-General's plans are motivated in part by a desire to bring about a republic.

The Justice and Electoral Select committee considered appeals to the Privy Council in 2001. The committee, chaired then as now by Tim Barnett, recommended against plans to abolish appeals to the Privy Council. He expressed concern with "the loss of access to a pool of judges who are widely acknowledged to be among the best in the world".

Unfortunately the Government has chosen to ignore both its own advisers, and a groundswell of opinion against ending appeals, and proceed with this unpopular and unnecessary act of Constitutional and judicial vandalism.

If the Supreme Court Bill is passed tomorrow it will be a Constitutional outrage and a blow to democracy, and a serious setback for Maori, the business community, the judicial system, and ultimately all New Zealanders.

John Cox

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