Privy Council

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The Privy Council had been New Zealand’s final appeal court for 160 years till the enactment of Supreme Court Act 2003. It appears an inevitable trend as Canada and Australia already had abolished appeals to the Privy Council, New Zealand was the last major Commonwealth country to do so since the arose of national legal identity. This essay will discuss why the decision of abolition the right of appeal to the Privy Council was controversial because New Zealand is so unique due to the Treaty of Waitangi and its geographical character, which result in dispute about Maori rights, legal autonomy, judge selection, 2 tier of appeal court and cost to appeal. Apart from that,explain how the Privy Council still has a significant influence in the New Zealand legal system today. To begin with,Compared to other Commonwealth countries, New Zealand is distinguished by the Treaty of Waitangi signed between Maori and the Crown in 1840. Thus Maori believe the Privy Council gave them direct access to the Crown for claiming their rights under the Treaty of Waitangi. On the other hand, it is controversial whether the Privy Council performed good enough to promote the treaty’s involvement as a constitutional document. For instance, in Te Heuheu Tukino v Aotea District Maori Land Board, The Privy Council ruled that any right purporting to be conferred by the Treaty of Waitangi was invalid unless incorporated into New Zealand statutes. On the contrary, Ngai Tahu Maori Trust Board v Director-General of Conservation, Court of Appeal Wellington approved the appeal and entitled the appealant to remedies sought by virtue of the Treaty of Waitangi. So it is unknown that keeping appeal to the Privy Council protect Maori’s interests or not. Secondly,Some argue that the right of appeal to the Privy Council would help to promote consistency in the common law of the commonwealth countries. With regard to legal autonomy, Even the final appeal court is the Privy Council but each country still has freedom to develop laws according to their requirements. Besides, it is quite common to have a extra-territorial jurisdiction to co-exist with domestic judicial bodies such as the European Court of Justice. However, a big concern is that as judiciary is an indispensible element of state sovereignty, New Zealand gained full independence from the United Kingdom in 1947, as an independent country, New Zealand should have an absolutely control of its judiciary system. The historical context with the United Kingdom can not be ignored though, abolition of appeal to the Privy Council is an important step to decolonization as New Zealand is an independent nation with its own history and traditions So it is arguable whether retention of Privy Council affect New Zealand’s legal autonomy or not. Thirdly, judges of the Privy Council are senior judges from the United Kingdom as well as other commonwealth countries. Therefore, it is regarded consisted of the top quality judges in common law world. As New Zealand is a small country with a small pool of legal professionals, on occasion, New Zealand judges were given the opportunity to sit on the Privy Council enabling them to experience judicial decision making in another jurisdiction at a high level, and thereby improving the quality of decision making in the New Zealand courts. Apart from that, judges from the Privy Council are more likely to be impartial due to less local interference while judges are more susceptible to be influenced by the political factors in Wellington. Nevertheless, Another essential point is, judges come from New Zealand should have a better understanding of the Treaty of Waitangi and the local society and culture , thus it is controversial which composition of judges benefit New Zealand more. Fourthly, The main purposes of the appeals courts is to provide a mechanism to correct errors and develop the law. Whereas unlike Britain and Australia have double judiciary system, If the Privy Council had been...
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