In late 2010, the Law Commission received a reference from the Minister of Justice under which it was asked to consider the creation of a single Courts Act consolidating the legislation governing the District Courts, High Court, Court of Appeal and Supreme Court; and the amendment, modernisation or repeal of certain provisions of the Judicature Act 1908.

The reference explicitly directed that the Commission not turn its attention to “major matters of policy”, such as the structure and character of the existing trial courts and appellate courts in New Zealand. The enterprise was to be directed to establishing the architecture and parameters of the jurisdiction of each of these courts in one statute, in a way which is principled, modern and clear, and easily accessible to all New Zealanders.

A reference of this character is well within the statutory jurisdiction of the Law Commission. Section 5 of the Law Commission Act 1985 imposes a duty on the Commission to take and keep under review the law of New Zealand with a view to its systematic development and reform, including, in particular, the desirability of simplifying the expression and content of the law as far as that is practicable. That includes the elimination of anomalies, the reduction of the number of separate enactments, and making the law “as accessible as is practicable”.

It is appropriate to emphasise the underlying reasons for the objectives of this reference. These are grounded in the rule of law. That requires all persons and authorities within a state, whether public or private, to be bound by, and entitled to, the benefit of laws publicly made and publicly administered by the courts. The very objective of the rule of law – an overarching principle of fundamental constitutional importance in our system – is that how courts are set up, what their jurisdiction is, and the essential operational characteristics must be clear, accessible and intelligible.

The thinking behind the reference is that this cannot presently be said, with a sufficient degree of confidence, as to the architecture of the New Zealand courts. This is because the legislation relating to the New Zealand trial and appellate courts is presently to be found in a melange of statutes: the Judicature Act 1908, the District Courts Act 1947; and the Supreme Court Act 2003. These statutes have evolved at widely differing times and have drafting styles that reflect their particular eras. They have become complex and difficult to follow, with many amendments. The interface between them is routinely awkward.

The reference as advanced to the Commission was not therefore one of “pure” consolidation under which those responsible for the reference could properly certify that the law has not been changed at all (as is the case with a pure consolidation). It invited the bringing together of the trial and appellate courts statutes into one, with such matters as needed to be addressed, to enable that objective to be met. But the reference did not amount to an invitation to review the courts generally; still less to be something like a Royal Commission to enquire into the appropriateness of the present and future scope and operation of the New Zealand courts.

References of this kind always attract a certain amount of difficulty as to exactly where the line is to be drawn. Some submitters on the reference were clearly of the view that there should be a healthy measure of “real” reform. Some of the proposals made to us clearly went beyond any reasonable interpretation of the scope of the reference. However, in fairness to submitters we have endeavoured to include at least the tenor of their views, for such future consideration as they might attract.

The reference also attracted two particular kinds of difficulty. The initial view of the Commission, which we were strongly attracted to, was that it would best be attended to by the drafting of a new Courts Act, with commentary. At the inception of the reference the late George Tanner QC, formerly Chief Parliamentary Counsel and Compiler of Statutes for New Zealand, was a Commissioner. He was extremely well placed – and eager – to undertake this exercise. He was the ideal person to undertake the task, enjoying, as he did, the full confidence of the public sector and Ministers; and of the Bar and Bench for his sterling work over many years in New Zealand.

Regrettably, George died after a serious illness just as the project gained momentum. We were considering how that very considerable gap in our resource might be addressed when the Responsible Minister indicated in the letter of understanding issued to the Commission under the provisions of the Crown Entities Act that the Commission is not, for the moment at least, to undertake drafting exercises.

We were, however, concerned to see whether, as a matter of practicality, the sort of drafting exercise we had in mind was feasible. We are most grateful to the Acting Chief Parliamentary Counsel, Bill Moore, for making available to us the services of a professional drafter during the run-up to the last General Election, when there is less pressure on the Parliamentary Counsel Office. We were able to satisfy ourselves – the results are appended to Issues Paper 29 – that the exercise we had in mind is distinctly achievable. For instance, that drafter set out what the appointment provisions would look like in a consolidated statute.

A second complication then ensued. In the submissions we received on Issues Paper 29 it can be fairly said there was widespread support for the idea of a unitary court statute. However, what for the moment I will call “the Higher Courts” objected to a unitary statute on what, through their Heads of Bench, they characterised as constitutional grounds.

On closer examination, that objection needs refinement. The basic concern is that the High Court undoubtedly occupies a constitutional position, particularly in relation to judicial review, which is the vehicle by which unlawful governmental action is constrained. As we point out in the Report, however, nothing in what we recommend explicitly or impliedly reduces the present constitutional role and jurisdiction of the High Court. All would be exactly as it was before the advent of such a statute.

The objection is therefore on a second ground, of a visceral character: that by being emplaced in a unitary statute along with the District Courts, the significant constitutional role of the High Court (and remembering that Court of Appeal and Supreme Court judges are also High Court judges in New Zealand) would somehow be diminished.

Arguments about “how things will look” are always difficult, and not amenable to scientific or precise answers. However, we doubt that the issue is one which will or should attract much attention from the citizens of New Zealand, particularly if it is accepted (as it is on all sides) that the constitutional position of the High Court will not in fact be altered. To our mind the important factor to have regard to is the utility of a unitary statute which inspired the advancement of the reference in the first place.

It can be said that it would be possible to have a binary system (say, a Senior Courts Act for the High Court and above, and an amended District Courts Act). That is not our preference, although we note the possibility. When work was still being undertaken in the way of drafting, it became readily apparent to us how much overlapping of statutes there would have to be. There is also the consideration that the District Court has long since been established as a jury trial court. Those responsible for the courts legislation in the United Kingdom have had no difficulty in seeing the Crown Court there (which in many respects has less jurisdiction than the District Court) as a “senior court”.

At the end of the day, however, our fundamental concern is for the citizens of New Zealand, who should be placed squarely at the forefront of any reform legislation. In our estimation they would be better served by a unitary Courts Act, rather than a scheme under which they and their advisers have to sit with several statutes in front of them to work out their position.

Sir Grant Hammond Signature

Grant Hammond