The Supreme Court - 10 years on

The Supreme Court, New Zealand’s final court of appeal, recently marked its 10 year anniversary. Before 1 January 2004, the Judicial Committee of the Privy Council in London was New Zealand’s final court of appeal.

Decisions made in New Zealand Courts before 31 December 2003 still have the right of appeal to the Privy Council. It is for this reason that appeals such as the Teina Pora case are still being heard in London 10 years on.

The Court was established to recognise New Zealand’s independence, history and traditions, to enable important legal matters to be resolved in New Zealand’s unique context and improve access to justice. The Court will only hear appeals that it considers are in the interests of justice.

The Court was created amid much controversy. There were, amongst other things, concerns that the Court bench would be politically “stacked” and that it would interfere with Parliament’s role as the country’s supreme law maker (a common criticism of some foreign jurisdictions). These concerns appear not to have eventuated.

In fact, the Court has undoubtedly increased access to justice. In the 1990s, less than 10 appeals per year were being heard by the Privy Council. In contrast the Court now hears on average more than 20 appeals per year. In particular, the Court hears a far greater number of criminal appeals than were heard by the Privy Council.

While arguments about whether or not the right of appeal to the Privy Council should have been abolished may no longer be useful, at a recent forum held to mark the Court’s anniversary, a number of legal academics met with the current Judges of the Court to critique its performance.

A common thread in the discussion was the suggestion that the Court’s decisions be presented with more clarity. Each of the five Justices who hear an appeal may deliver their own judgment. Although the majority wins the day, each individual judgment may have different reasoning, which can make judgments difficult to interpret. It was proposed that the Court issue judgments in majority order and consider single judgments for clarity’s sake. On the flipside, it was acknowledged that while these differences of opinion can make interpreting a decision difficult, they can also be useful in future litigation.

The Court’s approach to Treaty issues and criminal cases was applauded. In other areas, the Court was urged not to equivocate but to develop the law by elaborating clear legal principles and making clear cut decisions.

Criticism of the Court is the bread and butter of legal academics. Uncertainty about the law is what drives litigants to Court, thus criticism of the Court’s performance is inevitable. The Court’s relative infancy must also be considered. However, these criticisms should be viewed in the context of the numerous decisions that have been welcomed by the legal profession.

The task for the Court will be to continue to build on and improve its approach in providing clear legal principles and finality in the law.