Supreme Court of 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 July 1, 2004. It 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 October 15, 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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[edit] Composition

The Supreme Court sits in Wellington. The Court is to get a new $67millon home to be built beside, and to expand into the historic High Court building, located near Parliament, although the court is being housed in temporary facilities while the new building is built and the High Court building refurbished.

Inaugural judges were:

The bench (with the exception of the Chief Justice, who had automatic appointment) were the most senior judges of the Court of Appeal. Their appointment to the new Court was said to have been based on seniority and merit.

The historic Old High Court building in Wellington, the future home of the Supreme Court.
The historic Old High Court building in Wellington, the future home of the Supreme Court.

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 May 4, 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 February 21, 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.

[edit] Controversy

Although proposals for an indigenous final appellate court can be traced back to 1985, the creation of the Supreme Court was controversial. 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.

[edit] Referendum

After the Opposition parties unsuccessfully called for a national referendum on the matter, they launched a petition for a non-binding referendum of their own. However, the petition failed to gain the 310,000 signatures needed. 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.

[edit] 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 due to the fact that 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. Nevertheless, the issue of appointments still lingers; while the appointment of Justice McGrath was expected and unsurprising (McGrath and Anderson being the most senior judge on the Court of Appeal at the time of their appointments) whether future appointment will follow the same pattern remains unclear.

[edit] 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. The Supreme Court is likely to hear 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 first substantive case to be heard by the Supreme Court was the matter of Donna Awatere Huata's expulsion from Parliament. Her former party, ACT, was appealing a decision by a lower court which invalidated attempts to expel her. The case began on October 5, 2004, and the court issued its judgment (unanimously in favour of the ACT) on November 18.

The court's second decision related to the case of Ahmed Zaoui, an Algerian asylum-seeker detained by the government because the Security Intelligence Service considered him a threat to national security. The Supreme Court decided to allow Zaoui to be released on bail, against the wishes of the government.

Since then, the Court has heard a further 11 substantive appeals (with decisions released in nine of those), along with approximately 55 applications of leave to appeal.

[edit] 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 House of Lords Appellate Committee, 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 in both courts.

[edit] See also


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