| Supreme Court of New Zealand | |
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 The Supreme Court building under construction in Wellington, July 2009. |
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| Established in | 1 January 2004 |
| Jurisdiction | New Zealand |
| Location | Wellington |
| Composition method | Prime Minister of New Zealand (Chief Justice) and Attorney-General of New Zealand nomination with appointment by Her Majesty Queen Elizabeth II |
| Authorized by | Supreme Court Act 2003 |
| Judge term length | Life tenure (under Constitution Act 1986) |
| Number of positions | 5 |
| Website | Supreme Court of New Zealand Courts of New Zealand - Supreme Court |
| Chief Justice | |
| Currently | Rt Hon. Dame Sian Elias |
| Since | 1 January 2004 |
| New Zealand | |
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The Supreme Court of New Zealand is the highest court in the land and the court of last resort in New Zealand, having formally come into existence at the beginning of 2004, and sitting for the first time on 1 July 2004. It controversially replaced the right of appeal to the Judicial Committee of the Privy Council, based in London. It was created with the passing of the Supreme Court Act 2003, on 15 October 2003.
It is no relation to the "old" Supreme Court, which was renamed in 1980 (as the result of a Royal Commission recommendation) as the High Court in anticipation of the creation of a court like the one that now bears its former name.
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Building
The Supreme Court sits in Wellington. Until the Court's new $67 million home is built, beside and to expand into the historic High Court building, the court is housed in temporary facilities located in the High Court in Wellington with offices located in Old Government Buildings. The building will be formally opened in 18 January 2010 by Prince William.[1]
Composition
The inaugural bench (with the exception of the Chief Justice, who had automatic appointment) were the most senior judges of the Court of Appeal at the time. Their appointment to the new Court was said to have been based on seniority and merit.
Several acting Judges have also been appointed to sit whenever a permanent judge was unable to do so due to illness or a conflict of interest. These judges were appointed from the retired judges of the Court of Appeal and including Justices John Henry, Ted Thomas, former President of the Court of Appeal Sir Ivor Richardson and former Chief Justice Sir Thomas Eichelbaum. Acting judges only sit on substantive appeals, and not applications for leave, due to the requirement for appeals to be heard en banc by five judges.
On 4 May 2005, Attorney General Michael Cullen announced the appointment of Justice John McGrath of the Court of Appeal to the Supreme Court bench as its sixth permanent judge. On 21 February 2006, the Honourable Noel Crossley Anderson (at the time President of the Court of Appeal) was appointed to the Supreme Court. Thus the promotion of the most senior Court of Appeal member has continued. This practice was broken with the appointment of Justice Bill Wilson in December 2007 after having served less than a year as a judge of the Court of Appeal.
Background
Proposals to end appeals to the Privy Council began in the late 1970s, when a Royal Commission on the judiciary canvassed arguments for replacing the Privy Council.[2] In the early 1980s, Minister of Justice Jim McLay suggested their abolition.[3] Proposals for an indigenous final appellate court can be traced back to 1985. In 1996, Paul East, Attorney-General of the Bolger government, proposed to end the status of the Privy Council as the country's highest court of appeal. The proposal got as far as a Bill being introduced into Parliament. However, this Bill met with little support from within the National Party, and the Bill was not carried over by the next Parliament following the 1996 general election.[3]
The policy was resurrected in 2000 by the Fifth Labour Government of 1999–2008. A discussion paper, Reshaping New Zealand's Appeal Structure attracted 70 submissions.[2] A year later a Ministerial Action Group was formed to assist Ministers in designing the purpose, structure and make-up of a final court of appeal. The Group's report, Replacing the Privy Council: A New Supreme Court was published in April 2002,[4] before the general election a few months later.[2] Upon the re-election at the New Zealand general election 2002, as part of the Labour Party's election manifesto, the Government introduced legislation to abolish appeals to the Privy Council on 9 December 2002.[2]
At select committee, the Bill attracted numerous submissions for and against creating the Supreme Court. Notable supporters of the Supreme Court were former Privy Councillor Baron Cooke of Thorndon and former Prime Minister Sir Geoffrey Palmer, while most senior lawyers were opposed to the change.[2] The Supreme Court Act 2003 was passed by a relatively small margin - the governing Labour and Progressive parties, supported by the Greens, voted in favour, while the National, New Zealand First, ACT, and United Future parties voted against. In 2008, National leader John Key (now Prime Minister) ruled out any abolition of the Supreme Court and return to the Privy Council.[5]
Referendum
After the Opposition parties unsuccessfully called for a national referendum on the matter, Auckland lawyer Dennis J Gates launched a petition for a non-binding citizens initiated referendum on April 3 2003, asking the question "Should all rights of appeal to the Privy Council be abolished?".[6] The petition failed to gain the 310,000 signatures of registered electors needed and lapsed on 2 July 2004. The legal profession in general were opposed to the creation of the new court, and members were generally concerned that such an important legal change was forced through in the face of heated opposition.
Appointments
One issue that was particularly contentious as the Bill was being debated in Parliament was the appointment of judges to the Court, with opposition parties claiming that the Attorney-General, Labour's Margaret Wilson, would make partisan choices. These concerns were because the entire bench was to be appointed simultaneously, and no clear statement had been made about how they would be selected. However, the level of concern was considerably lessened when Wilson announced that the appointments would be based on merit and seniority. Appointments to the Court were expected and unsurprising. The most senior Justices on the Court of Appeal were appointed to the new Court.
Cases
One of the grounds advanced for the creation of the Court was that it would allow more people to have access to the country's highest appellate court. From 1851 until 2002, the Privy Council made 268 decisions relating to New Zealand. In the ten years from 1992 - 2002, only 21 decisions had been allowed with respect to New Zealand.[4] The Supreme Court hears many more cases than were heard by the Judicial Committee of the Privy Council due to its jurisdiction being considerably broader. For example, cases in the areas of employment, criminal and family law can be heard by the Supreme Court, whereas previously cases in both areas of law could normally progress no further than the Court of Appeal. The proximity of the Court is another factor that is likely to contribute to it hearing an increased number of appeals and also allows appeals to be heard and determined considerable faster than under the former system.
The Court heard many applications to leave. It has also heard many substantive appeals. Notable substantive cases include:
- Taunoa v Attorney-General [2008] 1 NZLR 429 (remedies for Bill of Rights breach).
- R v Hansen [2007] 3 NZLR 1 (burden of proof and evidential burden under Misuse of Drugs Act 1975 in relation to Bill of Rights).
- Lai v Chamberlains [2007] 2 NZLR 7 (immunity of barristers from suit).
- R v L [2006] 3 NZLR 291 (mens rea of attempted sexual violation).
- Zaoui v Attorney-General [2006] 1 NZLR 289 (human rights in relation to national security).
- Morgan v Superintendent of Rimutaka Prison [2005] 3 NZLR 1 (retrospective penalties).
Leave
Unlike some other final appellate courts internationally, there is no automatic right of appeal to the Supreme Court of New Zealand. All appeals are first required to apply to the Court for leave to appeal. This is granted or declined based on a number of factors listed in the Supreme Court Act, with the overarching principle being that it must be necessary in the interests of justice for the Court to hear the appeal. Leave applications are normally determined by any two judges of the court based on the written submission of the parties without an oral hearing; however, the judges hearing the application can decide to hold an oral hearing if they wish.
This system is also in place in the United Kingdom where the Supreme Court of the United Kingdom, the highest court of appeal in the United Kingdom, also must grant leave for appeal for cases to be heard before it. Similarly, most litigants seeking to appeal to the United States Supreme Court, Supreme Court of Canada or High Court of Australia require leave before their case can be heard - although there are some exceptions to this the latter two courts.
Table of Judges of the Supreme Court
| Judge | Took office | Left office | |
|---|---|---|---|
| 1 | Rt Hon. Chief Justice Dame Sian Elias | 1 July 2004 | |
| 2 | Rt Hon. Justice Sir Peter Blanchard | 1 July 2004 | |
| 3 | Rt Hon. Justice Sir Andrew Tipping | 1 July 2004 | |
| 4 | Rt Hon. Justice Sir Thomas Gault | 1 July 2004 | |
| 5 | Rt Hon. Justice Sir Kenneth Keith | 1 July 2004 | 21 December 2007 |
| 6 | Hon. Justice Sir John McGrath | 4 May 2005 | |
| 7 | Hon. Justice Sir Noel Anderson | 21 February 2006 | |
| 8 | Hon. Justice Bill Wilson | 21 December 2007 |
See also
References
- ^ New Zealand Government (2 November 2009). "Prime Minister announces visit of Prince William". Scoop.co.nz. http://www.scoop.co.nz/stories/PA0911/S00015.htm.
- ^ a b c d e Chris Eichbaum, Richard Shaw (2005). Public Policy In New Zealand - Institutions, Processes and Outcomes. Pearson. ISBN 1877258938.
- ^ a b Colin James, ed. (2000), Building The Constitution, Institute of Policy Studies, Victoria University of Wellington, p. 162
- ^ a b "Replacing the Privy Council: A New Supreme Court". New Zealand. April 2002. http://www.crownlaw.govt.nz/uploads/JusticePCReport.pdf.
- ^ Jane Clifton (1 November 2008). Leaders Loosen Up. The Listener.
- ^ "Petition for a Citizens' Intiated Referendum". 2003. http://www.businessnz.org.nz/file/532/privycouncil_petition.pdf.
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