Monday, November 22, 2004

Fundamental incomprehension

Judging from SageNZ's latest response on the Privy Council, it seems I was right in thinking that he fundamentally fails to comprehend the nature of our legal system, past or present. To correct his two most obvious errors:

The Privy Council was not a link to European jurisprudence, on human rights or on any other matter. As I said earlier, and as Holden Republic points out, the Privy Council interpreted New Zealand law. While the European Convention on Human Rights is an admirable document, it does not and never has applied in New Zealand. Likewise, the Privy Council did not represent a link to any wider system of law; it was not a Commonwealth equivalent of the US Supreme Court whose decisions had universal applicability in all former British colonies.

We do not need the Privy Council to take cognisance of other jurisdictions' judgements. In fact, we've never needed it for that, because it is a basic part of the common law paradigm. Common law works by precedent; where there is no specific precedent, it works by analogy. And here there are no real limits on what it draws on. If another court in another jurisdiction has dealt with the same sort of problem in a broadly similar framework, then lawyers and judges will pay attention to their reasoning. This takes place at all levels of the court system, and foreign judgements have been recognised in new Zealand courts since the beginning. To use some examples in the area of aboriginal title: early cases such as R v Symonds (1847) and Wi Parata v Bishop of Wellington (1877) both reference US Supreme Court decisions. More recently, a Privy Council judgement Amodu Tijani vs Secretary, Southern Nigeria (1921) has been influential in laying out the nature of customary rights, while the Australian Supreme Court decision in Mabo v Queensland (No 2) has influenced their scope and recognition. And the notion of "fiduciary duty" has been introduced from Canadian decisions. All of these foreign decisions have been recognised not because they are binding precedent (they clearly are not), but because the problems they addressed were analogous to problems faced here, and their reasoning could be easily adapted to local needs. This does not require the Privy Council - all it requires is a good library and access to legal databases. The fact that our original two Supreme (High) Court justices could do it at the arse-end of the world's communications links back in the 1840's shows that we have no need to go to London.

Shorn of these two misconceptions, its quite clear that we have lost nothing by ditching the Privy Council, because it did nothing that we could not do for ourselves. At the same time, we have gained a great deal. Our justice is more accessible, more timely, and (most of all) ours.