Supreme Court of New Zealand
Encyclopedia
The Supreme Court of New Zealand (in Māori
Maori language
Māori or te reo Māori , commonly te reo , is the language of the indigenous population of New Zealand, the Māori. It has the status of an official language in New Zealand...

: Te Kōti Matua o Aotearoa) is the highest court and the court of last resort in New Zealand, having formally come into existence on 1 January 2004. The court sat for the first time on 1 July 2004. It replaced the right of appeal to the Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...

, based in London. It was created with the passing of the Supreme Court Act 2003, on 15 October 2003. At the time, the creation of the Supreme Court and the abolition of appeals to the Privy Council were controversial constitutional changes in New Zealand.

It should not be confused with New Zealand's "old" Supreme Court, which was a superior court
Superior court
In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases...

 that was established in 1841 and continued in 1980 as the High Court of New Zealand
High Court of New Zealand
The High Court of New Zealand is a superior court of New Zealand. It was established in 1841 and known as the Supreme Court of New Zealand until 1980....

. The name was changed in anticipation of the eventual creation of a final court of appeal for New Zealand that would be called the "Supreme Court".

Composition

The inaugural bench (with the exception of the Chief Justice
Chief Justice of New Zealand
The Chief Justice of New Zealand is the head of the New Zealand judiciary, and presides over the Supreme Court of New Zealand. Before the establishment of the latter court in 2004 the Chief Justice was the presiding judge in the High Court of New Zealand and was also ex officio a member of the...

, who had automatic appointment) were the most senior judges of the New Zealand Court of Appeal at the time. Their appointment to the new Court was said to have been based on seniority and merit. The maximum bench under statute is six judges.

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 Sir John Henry
John Henry (New Zealand Justice)
Sir John Steele Henry, KNZM, QC, is a New Zealand jurist and former Court of Appeal judge, and member of the well-known Henry Family.The son of former High Court judge, the Hon...

, Sir Ted Thomas
Edmund Thomas (jurist)
He educated at Fielding Agricultural High School and Victoria University of Wellington graduating with a BA and LLB in 1956. He was admitted to the bar as a barrister and solicitor of the Supreme Court of New Zealand....

, former President of the Court of Appeal
Court of Appeal of New Zealand
The Court of Appeal of New Zealand, located in Wellington, is New Zealand’s principal intermediate appellate court. In practice, most appeals are resolved at this intermediate appellate level, rather than in the Supreme Court...

 Sir Ivor Richardson
Ivor Richardson
Sir Ivor Lloyd Morgan Richardson, PCNZM is an eminent New Zealand and Commonwealth jurist and legal writer and a member of the Judicial Committee of the Privy Council.-Education:...

 and former Chief Justice Sir Thomas Eichelbaum
Thomas Eichelbaum
Sir Johann Thomas Eichelbaum, GBE, QC was the eleventh Chief Justice of New Zealand.-Early life:He was born in Königsberg, Germany, and his family emigrated to Wellington, New Zealand in 1938 to escape the persecution of Jews...

. Acting judges only sit on substantive appeals, and not applications for leave, due to the requirement for appeals to be heard en banc
En banc
En banc, in banc, in banco or in bank is a French term used to refer to the hearing of a legal case where all judges of a court will hear the case , rather than a panel of them. It is often used for unusually complex cases or cases considered to be of greater importance...

 by five judges.

On 4 May 2005, Attorney General
Attorney-General (New Zealand)
The Attorney-General is a political office in New Zealand. It is simultaneously a ministerial position and an administrative office, and has responsibility for supervising New Zealand law and advising the government on legal matters...

 Michael Cullen announced the appointment of Justice Sir John McGrath
John McGrath (judge)
Sir John Joseph McGrath, KNZM, QC is a Judge of the Supreme Court of New Zealand. He was formerly the Solicitor-General of New Zealand for eleven years from 1989, before being made a judge of the Court of Appeal of New Zealand in 2000. He was elevated to the Supreme Court in 2005.-Career:Justice...

 of the Court of Appeal to the Supreme Court bench as its sixth permanent judge. On 21 February 2006, the Honourable Sir Noel Anderson
Noel Anderson
Sir Noel Crossley Anderson, KNZM, QC was President of the Court of Appeal of New Zealand from 2004 to 2006, before being elevated to the Supreme Court. He left office in 2008.-Career:...

 (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

While the suggestion of ending appeals to the Privy Council had been around since the Statute of Westminster Adoption Act 1947
Statute of Westminster Adoption Act 1947
The Statute of Westminster Adoption Act 1947 was a constitutional Act of the New Zealand Parliament that formally accepted the full external autonomy offered by the British Parliament...

, 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. In the early 1980s, Minister of Justice Jim McLay
Jim McLay
James Kenneth McLay, CNZM, QSO , generally known as Jim McLay, is a former New Zealand politician. He was Deputy Prime Minister, leader of the National Party and Leader of the Opposition for a short time. McLay is currently New Zealand's Permanent Representative to the United Nations.-Early...

 suggested their abolition. Proposals for an indigenous final appellate court can be traced back to 1985. In 1996, Paul East
Paul East
Paul Clayton East, CNZM, QC, is a former New Zealand politician.-Early life:Paul East was educated at King's College and The University of Auckland He was a Member of Parliament from 1978 to 1999, representing the National Party....

, Attorney-General of the Bolger government, proposed to end the status of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...

 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
New Zealand general election, 1996
The 1996 New Zealand general election was held on 12 October 1996 to determine the composition of the 45th New Zealand Parliament. It was notable for being the first election to be held under the new Mixed Member Proportional electoral system, and produced a parliament considerably more diverse...

.

The policy was resurrected in 1999 by the Fifth Labour
Fifth Labour Government of New Zealand
The Fifth Labour Government of New Zealand was the government of New Zealand between 10 December 1999 and 19 November 2008.-Overview:The fourth National government, in power since 1990, was widely unpopular by 1999, with much of the public antagonised by a series of free-market economic reforms,...

 Government of 19992008. A discussion paper, Reshaping New Zealand's Appeal Structure attracted 70 submissions. 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, before the general election a few months later. Upon the re-election at the New Zealand general election, 2002
New Zealand general election, 2002
The 2002 New Zealand general election was held on 27 July 2002 to determine the composition of the 47th New Zealand Parliament. It saw the reelection of Helen Clark's Labour Party government, as well as the worst-ever performance by the opposition National Party.Arguably the most controversial...

, as part of the Labour Party's election manifesto, the Attorney-General
Attorney-General (New Zealand)
The Attorney-General is a political office in New Zealand. It is simultaneously a ministerial position and an administrative office, and has responsibility for supervising New Zealand law and advising the government on legal matters...

, Labour's Margaret Wilson
Margaret Wilson
Dame Margaret Wilson DCNZM is a New Zealand academic and former politician. She was Speaker of the New Zealand House of Representatives during the Fifth Labour Government of New Zealand. She is a member of the Labour Party.-Early life:...

, introduced the Supreme Court Bill
Supreme Court Act 2003
The Supreme Court Act 2003 is an Act of the Parliament of New Zealand which created the Supreme Court of New Zealand as the country's court of final appeal, and which consequentially abolished appeals to the Judicial Committee of the Privy Council in the United Kingdom.-Purpose:Section 3 of the...

 to create the Supreme Court and abolish appeals to the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...

 on 9 December 2002. The Monarchist League of New Zealand began a campaign against the abolition of appeals, stating "Most lawyers are opposed to the abolition of appeals to the Privy Council, and doubtless will continue to do so until a more satisfactory justification is given for the abandonment of a tribunal which costs the New Zealand taxpayer nothing, and which gives us access to some of the finest legal minds in the common law world. Many Maori also see this proposal as a retrograde step, both by removing an impartial tribunal to which they have hitherto been able to appeal, and by cutting another link with the Crown." Margaret Wilson argued in favour of the Bill, stating "When reviewing the legal needs of the community appeals to the Privy Council seemed increasingly anomalous. It was anomalous because of the narrow range of cases that actually were appealed to the Privy Council. The Privy Council itself recognised that some cases it considered were better settled by a New Zealand court and referred back for decision. Its precedent value was therefore quite limited. Few cases got to the Privy Council because of the costs involved, and because in some areas, such as employment and environment law, the statutes barred such appeals."

Select Committee

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
Robin Cooke, Baron Cooke of Thorndon
-External links:*, The Times, 22 September 2006*, The Daily Telegraph, 26 September 2006* House of Lords minutes of proceedings, 9 October 2006*, 4 September 2006...

 and former Prime Minister Sir Geoffrey Palmer, while most senior lawyers were opposed to the change. The Monarchist League complained the majority of members of the select committee were motivated by a "republican agenda".

Third reading

The Supreme Court Act 2003
Supreme Court Act 2003
The Supreme Court Act 2003 is an Act of the Parliament of New Zealand which created the Supreme Court of New Zealand as the country's court of final appeal, and which consequentially abolished appeals to the Judicial Committee of the Privy Council in the United Kingdom.-Purpose:Section 3 of the...

 passed its third reading by a relatively small margin – the governing Labour
New Zealand Labour Party
The New Zealand Labour Party is a New Zealand political party. It describes itself as centre-left and socially progressive and has been one of the two primary parties of New Zealand politics since 1935....

 and Progressive
New Zealand Progressive Party
Jim Anderton's Progressive Party , is a New Zealand political party generally somewhat to the left of its ally, the Labour Party....

 parties, supported by the Greens
Green Party of Aotearoa New Zealand
The Green Party of Aotearoa New Zealand is a political party that has seats in the New Zealand parliament. It focuses firstly on environmentalism, arguing that all other aspects of humanity will cease to be of concern if there is no environment to sustain it...

, voted in favour, while the National
New Zealand National Party
The New Zealand National Party is the largest party in the New Zealand House of Representatives and in November 2008 formed a minority government with support from three minor parties.-Policies:...

, New Zealand First
New Zealand First
New Zealand First is a political party in New Zealand that was founded in 1993, following party founder Winston Peters' resignation from the National Party in 1992...

, ACT New Zealand, and United Future parties voted against. It received Royal Assent on 17 October 2003, with commencement on 1 January 2004.

In 2008, National leader John Key
John Key
John Phillip Key is the 38th Prime Minister of New Zealand, in office since 2008. He has led the New Zealand National Party since 2006....

 (now Prime Minister) ruled out any abolition of the Supreme Court and return to the Privy Council.

Referendum petition

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 3 April 2003, asking the question "Should all rights of appeal to the Privy Council be abolished?". The petition failed to gain the 310,000 signatures of registered electors needed and lapsed on 2 July 2004.

Appointments

One issue that was particularly contentious as the Bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....

 was being debated in Parliament
Parliament of New Zealand
The Parliament of New Zealand consists of the Queen of New Zealand and the New Zealand House of Representatives and, until 1951, the New Zealand Legislative Council. The House of Representatives is often referred to as "Parliament".The House of Representatives usually consists of 120 Members of...

 was the appointment of judges to the Court, with opposition parties claiming that the Attorney-General 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. The Supreme Court hears many more cases than were heard by the Judicial Committee of the Privy Council
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...

 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
Court of Appeal of New Zealand
The Court of Appeal of New Zealand, located in Wellington, is New Zealand’s principal intermediate appellate court. In practice, most appeals are resolved at this intermediate appellate level, rather than in the Supreme Court...

. 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
    Ahmed Zaoui
    Ahmed Zaoui is an Algerian member of the Islamic Salvation Front. He arrived in New Zealand on 4 December 2002 where he sought refugee status. Objections from the Security Intelligence Service were withdrawn in September 2007, allowing him to remain in New Zealand.-Pre 1991:Ahmed Zaoui was born as...

     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).

Building

The Supreme Court sits in Wellington
Wellington
Wellington is the capital city and third most populous urban area of New Zealand, although it is likely to have surpassed Christchurch due to the exodus following the Canterbury Earthquake. It is at the southwestern tip of the North Island, between Cook Strait and the Rimutaka Range...

. Until the Court's new $80.7 million home was built, beside and expanding into the historic High Court building, the court was housed in temporary facilities located in the High Court in Wellington with offices located in Old Government Buildings
Old Government Buildings (Wellington)
The Government Buildings Historic Reserve, or more commonly referred to as the Old Government Buildings, is situated on Lambton Quay in Wellington...

. The building was formally opened on 18 January 2010 by Prince William of Wales.

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
Supreme Court of the United Kingdom
The Supreme Court of the United Kingdom is the supreme court in all matters under English law, Northern Ireland law and Scottish civil law. It is the court of last resort and highest appellate court in the United Kingdom; however the High Court of Justiciary remains the supreme court for criminal...

, 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 Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

, Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 or High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...

 require leave before their case can be heard – although there are some exceptions to this in the latter three courts.

List of Judges of the Supreme Court

Judge Took office
1 Rt Hon. Chief Justice
Chief Justice of New Zealand
The Chief Justice of New Zealand is the head of the New Zealand judiciary, and presides over the Supreme Court of New Zealand. Before the establishment of the latter court in 2004 the Chief Justice was the presiding judge in the High Court of New Zealand and was also ex officio a member of the...

 Dame Sian Elias
Sian Elias
Dame Sian Seerpoohi Elias, GNZM, PC, QC is the Chief Justice of New Zealand, and is therefore the most senior member of the country's judiciary. She is the presiding judge of the Supreme Court of New Zealand...

 GNZM PC QC
1 July 2004
2 Rt Hon. Justice Sir Peter Blanchard KNZM 1 July 2004
3 Rt Hon. Justice Sir Andrew Tipping KNZM 1 July 2004
4 Hon. Justice Sir John McGrath
John McGrath (judge)
Sir John Joseph McGrath, KNZM, QC is a Judge of the Supreme Court of New Zealand. He was formerly the Solicitor-General of New Zealand for eleven years from 1989, before being made a judge of the Court of Appeal of New Zealand in 2000. He was elevated to the Supreme Court in 2005.-Career:Justice...

 KNZM QC
4 May 2005
5 Hon. Justice Sir William Young KNZM QC 1 July 2010

Former judges

Judge Took office Left office
Rt Hon. Justice Sir Thomas Gault
Thomas Gault
Sir Thomas Munro Gault, KNZM, QC, PC was a Justice of the Supreme Court of New Zealand and is a member of the Privy Council of the United Kingdom as well as a non-permanent judge of the Court of Final Appeal in Hong Kong....

 KNZM QC
1 July 2004 5 April 2006
Rt Hon. Justice Sir Kenneth Keith
Kenneth Keith
Sir Kenneth James Keith, ONZ, KBE, QC is a New Zealand judge appointed to the International Court of Justice in November 2005....

 ONZ KBE QC
1 July 2004 21 December 2007
Hon. Justice Sir Noel Anderson
Noel Anderson
Sir Noel Crossley Anderson, KNZM, QC was President of the Court of Appeal of New Zealand from 2004 to 2006, before being elevated to the Supreme Court. He left office in 2008.-Career:...

 KNZM QC
21 February 2006 2008
Hon. Justice Bill Wilson QC 21 December 2007 22 October 2010

External links



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