The programme for the Supreme Court 20th Anniversary Conference is stacked with talent. Jack Hodder giving an advocate’s view, Peter Watts getting some stuff off his chest, and Dean Knight telling us what the colour of carpet tiles in the Court’s foyer tells us about the adjudicative function. The clerk’s view is going to be given by Imogen Hensman, who once interned in my team at work – an idyllic four months where I would copy-and-paste her stellar work. Andrew Geddis and Marcelo Rodriguez Ferrere’s presentation is called “Adjudicative Minimalism” which I’m pretty sure is code for “You lot steadfastly refuse to say anything about intensity of review”. And a keynote by Justice Forrest “The Supreme Court Must Do Better” Miller, recently appointed to the Supreme Court.
Of course, no one asked for a gadfly’s view. If they had, I’m sure we could come up with all sorts. How for years the Supreme Court Rules required an incomplete Te Reo Māori translation on the intituling. That time a matter got all the way to the Supreme Court before everyone realised there was a whole other statutory scheme governing the issue. The Court declining to grant leave, then recalling its decline of leave, granting leave, and ultimately allowing the appeal. The time we found out what Blanchard, Tipping, McGrath, Wilson and Gault JJ all each thought about the admissiblity of pre-contractual negotiations. A sailing trip that the Court made counsel’s fault instead of the judge’s fault – the closest New Zealand has ever come to that time a man apologised for being shot in the face by Dick Cheney. Racehorses and, worse, Fitzgerald.
Yes, it’s true I don’t have anything intelligent to say about the Supreme Court turning 20. But there is something bubbling away at the level of sub-thought that I think the great-and-the-good in their 50s, 60s and 70s probably ‘know’, but don’t feel.
I studied law from 2009 to 2012 (well, 2013, but only because I miscounted my papers). I was in the early ranks of an ever-growing cohort where the Supreme Court has been a given.
Dissatisfaction with the structure of courts in this country runs deep. Legislation establishing New Zealand’s first western court system was enacted in June 1841 with the creation of the Courts of Session, followed by Courts of Request in July. By December that same year they were gone – replaced with County Courts, and a Supreme Court. And by July 1842, Henry Chapman (latterly a Supreme Court Judge) was writing to the Secretary of State of the Colonies urging reforms to the court system. But like my mum always said, it’s never going to get better if you keep picking at it.
It was probably that same national feeling that informed the debate about doing away with appeals to the Privy Council at the turn of the millennium. That was an idea that was hardly new: Robert Stout wrote in 1904 that “The English, it is said, are not, like the French, a logical people. The existence of the final Colonial Court of Appeal sitting in London, with Judges not appointed by the Colonies, is proof of the statement”. There is something about the more absurd elements of the English high judicial theatre that probably doesn’t suit the New Zealand soul. Sir Kenneth Gresson sat on the Privy Council in the 1960s. Glyn Strange’s Brief Encounters records that “In London, when the Law Lords were going to their usual sumptuous lunch they courteously invited Sir Kenneth, who replied tersely that he had his sandwiches and was going to eat them in his chambers as he always did.”
The debate around the establishment of the Supreme Court is covered well elsewhere (particularly in Margaret Wilson’s writing), but the spirit of the debate is probably best captured by a typically philosophical Sian Elias, who said told the Legal Research Foundation in 2001 that “In the frenzy over a Supreme Court to replace the Privy Council, it is important that we do not get the rapture of the heights”.
Twenty years of the Supreme Court and no one will now seriously suggest we do away with it. My small point isn’t that the Supreme Court is good at its job, or that it is “working” or that it is better than the Privy Council. The point I am reaching for is that the mark of the Court’s success is that my reaction to the fact we have a New Zealand-based apex court is simply “well of course we do”. And I think that is the reaction of my peers.
Twenty years of its work has not just proven that New Zealand can have a successful apex court; it’s proven that that shouldn’t have ever been in doubt.
How could the Privy Council do what the Supreme Court has achieved in the last 20 years? How could London be home to Lex Aotearoa? A Fitzgerald-style dialogue with Parliament can hardly conducted through tin cans and string from Westminster. And what would tall poppy syndrome have had to say about Jonathan Sumption at his most prattish?
Whatever foibles the Court had or has, they can be forgiven. A few years of playing with separate judgments has mostly been left behind as the Court matured. We improved on our line up of “old white guys” faster than the United Kingdom Supreme Court did. Judgment delivery time, well, we’ll get there.
And since the advent of the Supreme Court we get these occasional reminders of what the Privy Council offered us. Lundy in 2013. Here were the benefits of the famed wise men on far-flung shores. Counsel said no thank you to our Supreme Court and schlepped halfway across the globe to London, only to find Dame Sian Elias smiling beatifically down from the bench. That’s farce! If there was ever a case for New Zealand courts surely it was the one about meat pies and Palmerston North.
I’ll hide at the back of the conference sessions and probably not talk to anyone, but I’ll enjoy whatever scholarly analysis a lot of smart people have to share. I’ll also enjoy the deeper foundation to 20 year celebrations: the fact that after 20 years the Supreme Court does not need to justify its existence. We have a Supreme Court of New Zealand. And the alternative is absurd. It’s what a generation of lawyers know. More than anything else, that must be the mark of its success. But then, maybe that’s the rapture of the heights talking.
Strictly obiter 