James Farmer

Legal Commentary

In Defence of the Supreme Court

Monday, December 12, 2011

Perhaps unwisely, I recently appeared on TVNZ Channel 7’s “Court Report”, hosted by barrister Greg King, with Rodney Harrison QC, to talk about the Supreme Court. I say “unwisely”, not because I think that senior barristers should not talk publicly about our Courts – I think, to the contrary, that they have a public duty to do so – but because criticism, even when appropriately qualified, can all too easily be taken up as a platform by zealots who have their own agenda and which involves attempting to destroy or damage the very institution that is the subject of comment. 

The occasion for the programme was the fact that in, launching this column, I had been critical of two of the Supreme Court’s decisions – the Morse case (the burning of the New Zealand flag at the Anzac Dawn Day Parade) and the Telecom 0867 case (an important competition law case). Those cases were discussed during the TV programme and I repeated my criticisms. I also expressed the view that I thought the Court was too liberal in granting leave to hear appeals, many of which are relatively run of the mill, and that, where possible, they should try a bit harder to give a single Judgment rather than concurring, separate Judgments. Neither of these views are particularly novel and indeed there has been much debate within legal circles on those issues previously.

Not wishing to be misunderstood, I made two points on the programme. The most important, in the present context, was that I support the Supreme Court and think that constructive criticism is the best way of providing that support. Secondly, there is no utility in debating a return to the Privy Council. To add here to that last comment, not only is that not a sensible or practical call but, in my view, the establishment of our own Supreme Court was always inevitable at some time and, that having been done, we should all join in making it the best court that it can be.

In this last respect, it is worth saying also that it is hardly fair to expect a new Court to be perfect from day one. The US Supreme Court struggled for many years to gain acceptance and it is natural for our Supreme Court to need time to find and develop its role. I had thought, by saying publicly the Court is going too far in its application of the principle of access to Justice and should, as a general rule at least, only grant leave in cases of public importance, that might engender some useful discussion around the role of the Court. My ventilation of the Morse case was perhaps less dispassionate but clearly the question of how far freedom of expression should be taken in the face of countervailing freedoms (public assembly) is also an important subject for debate.

I have heard it said that lawyers have the skills and experience to make good politicians but that, a lawyer who has become a politician, loses those skills and can seldom return to being a good lawyer. I was reminded of this when I read the interpretation to the Court Report broadcast given by Stephen Franks (a former commercial lawyer, ACT party MP and now lawyer again) on his web site. His discussion of the programme and in particular of my contribution to it begins with the heading “Heat Builds on Supreme Court” and then immediately suggests that the “skids” are under the Supreme Court in its current form.

What nonsense! And it is just this kind of destructive and emotive and irresponsible language from someone who is well known that makes constructive debate that much more difficult. Constructive debate should lead to a greater awareness of issues that can be addressed and that may lead to improvement in an institution. Destructive commentary from the likes of Franks, particularly when it is not backed by practical suggestions of what should be changed, does nothing that is positive and is just plain corrosive.

Having got that off my chest, I should acknowledge that I may have been at fault in not compiling a list of the achievements and good features of the Supreme Court since its inception. I have to say I rather took them as being widely and generally accepted within the legal profession and had assumed that, whatever grumblings there were about the Court (and no institution is ever free from that), lawyers were – post-Privy Council - very much behind the Court. So, for the record, here it is.

First, the 5 Judges of the Court are all highly respected, all are very able, hard-working and have long, distinguished legal careers. Two of them – Justices Blanchard and Tipping – retire next year by virtue of the compulsory retirement age. In my respectful view, they have made a huge contribution to the early development of the Court. The other Judges of the Court also make significant contributions to the Court. The Chief Justice in particular, has given the Court a profile that, in its early days, it needs.

Although I did myself question whether $80 million should be spent on a Court building, I do have to say too that the Court room is magnificent, it does add to the occasion and to the enjoyment of appearing as counsel before the Court (at least when one’s arguments are reasonable).

If my specific criticisms of specific Supreme Court Judgments lead to a rebuttal – as they did from Rodney Harrison in the Court Report programme – that will be very much to the good. Reasoned debate is what we should all aspire to and we should not shrink from making that debate public on occasion. But I do emphasise the word “reasoned”. An unqualified statement that the skids are under the Supreme Court because one barrister has criticised two of the Court’s decisions hardly meets that standard.


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