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NZ and the Judicial Committee of the Privy Council

01 August 2016

Twelve years after New Zealand's Supreme Court sat for the first time on 1 July 2004, there are 22 New Zealanders who were appointed to the Privy Council. 

Of those listed as New Zealand members of Her Majesty's Privy Council, there are eight former and one current judges, many of whom have sat on the Judicial Committee - until 2004 our highest court. They are Rt Hon Sir Duncan McMullin, Rt Hon Sir Thomas Eichelbaum, Rt Hon Sir Michael Hardie Boys, Rt Hon Sir John Henry, Rt Hon Sir Edmund Thomas, Rt Hon Sir Kenneth Keith, Rt Hon Sir Peter Blanchard, Rt Hon Sir Andrew Tipping and Rt Hon Dame Sian Elias. Rt Hon Sir Geoffrey Palmer QC, while not a member of the judiciary, is also a Privy Councillor.

So "Rt Hon" means a Privy Council member?

No, not since 2010. In New Zealand in the past the service of senior Cabinet Ministers and member of the judiciary was recognised by their appointment to the Privy Council and the consequent right to use the title "The Right Honourable" while in office and for life. New Zealand Prime Ministers could not make the appointment - they needed to "suggest" an appointment to the British Prime Minister who would then have a word with the Queen.

From around 2000 successive New Zealand Prime Ministers (all two of them) decided not to suggest any further appointments. We discontinued the right to appeal to the Judicial Committee of the Privy Council in 2004 and stopped all formal links to it. It was not until 2010, however, that the arrangement for suggesting appointments was formally discontinued.

The Queen wrote to Prime Minister John Key in 2010 asking if we could retain the title "The Right Honourable". However, it is now restricted to Governors-General, Prime Ministers, Speakers of the House of Representatives, and Chief Justices. If someone from New Zealand hasn't held one of these offices but has "Rt Hon" in front of their name, they were appointed to the Privy Council.

Why is the Privy Council in the news?

Located 19,000 kilometres away in London but once our highest court, the Judicial Committee has made the news again, with the United Kingdom Supreme Court having decided that as its members are normally the members of the Judicial Committee, the lower courts of England and Wales may, perhaps, follow the Judicial Committee's decisions in certain circumstances.

In Willers v Joyce [2016] UKSC 44 (20 July 2016), the Supreme Court has decided that if the Judicial Committee may be invited to depart from a decision of the House of Lords or Supreme Court and it involves a point of English law, the Judicial Committee may so depart and expressly direct that English and Welsh courts should treat its decision as representing the law.

There's an interesting New Zealand footnote to the case. The respondents were the executors of the estate of Albert Gubay, the Welsh supermarket operator who died in January 2016 and who set up the 3 Guys chain in New Zealand for a while last century.

In some ways the latest decision is a fitting illustration of the strange institution which is the Judicial Committee of the Privy Council. In a land which abolished the death penalty for murder in 1965, the most senior members of its judiciary still act as the final court of appeal for those who have been sentenced to death in countries such as Trinidad and Tobago, inquire into the claimants of 300-year-old baronetcies, or deliberate on firearm control in Mauritius.

It's been around a long time

The institution itself orginated way back at the Norman conquest as an advisory council to the monarch. The more modern version began with the Judicial Committee Act 1833, which allowed it to hear appeals which were formerly heard by the King/Queen-in-Council.

Since 1876 the Supreme Court Justices of the United Kingdom (the "Law Lords" until recently) have been the permanent judges of the Judicial Committee. Privy Counsellors who are or have been judges of the Court of Appeal of England and Wales, the Inner House of the Court of Session, the Court of Appeal of Northern Ireland and "certain Commonwealth nations" are eligible to sit on the Judicial Committee, as long as they are under the age of 75.

The Privy Council itself has put together a watchable 5-minute video of its history.

Who still uses the Judicial Committee?

The Privy Council's map has many arrows pointing to Caribbean countries. Many small Commonwealth nations still tap into its expertise, and there are also some weird English institutions as well: Appellants from the Arches of Canterbury and the Chancery of Court of York, Prize Courts, Veterinary Surgeons and the Court of Admiralty of Cinque Ports may all head to the Judicial Committee as their court of final resort.

The following countries still retain the right to appeal to the Judicial Committee. The Sultan of Brunei may refer appeals made to him to the Judicial Committee, which will then report back to him. Jamaica decided to abolish appeals, but is now planning a referendum sometime this year.

AnguillaFalkland IslandsNiue
Angtigua and BarbudaGibraltarPitcairn Islands
The BahamasGuernseySt Helena, Ascension
BermudaGrenadaSt Kitts and Nevis
British Antarctic TerritoryIsle of Man Staff of Government DivisionSt Lucia
British Ocean TerritoryJamaicaSt Vincent and the Grenadines
British Virgin IslandsJerseySouth Georgia
BruneiKiribatiTrinidad and Tobago
Cayman IslandsMauritiusTurks and Caicos Islands
Cook IslandsMontserratTuvalu

New Zealand is, of course, now among the countries which have abolished appeals. The dates of final abolition are as follows:

JurisdictionFinal abolition
Australia1986
Canada1949
Dominica2015
Guyana1970
Hong Kong1997
India1950
Ireland1933
Malaysia1985
New Zealand2003
Pakistan1950
Singapore1994
South Africa1950
Sri Lanka1972
How long was the Privy Council our highest court?

At the outset it's worth noting that 40% of New Zealand-based lawyers who hold a practising certificate have been admitted since the Supreme Court became our highest court.

A New Zealand Legal History (2nd edition) says when New Zealand was founded as a British colony in 1840, its inhabitants as British subjects acquired the right to appeal to the Queen in Council. "Four years later, an Imperial Act gave statutory validity to the Crown's right to hear appeals from colonial courts. As a preliminary step, an appeal required a 'Petition to the Queen', which involved great expense and delay. Not surprisingly, only two appeals were recorded from 1840 to 1860." (page 243).

The first New Zealand appeal was in 1851 (The Queen (by her Attorney-General for New Zealand) v Clarke NZPCC 516) and related to land claims and the Crown Prerogative. An Imperial Order in Council made specific provision for appeals to the Judicial Committee from New Zealand in 1860.

Over the 164 years between 1851 and the last appeal, in 2015, there were at least 316 appeals from New Zealand to the Judicial Committee. While we abolished the right to appeal in 2004, there have only been five years this century when there has not been a New Zealand appeal. And 23% of all New Zealand appeals to the Privy Council have been heard in the 21st century (assuming the century started in the year 2000).

New Zealand Appeals to the Privy Council

YearAppealsAllowedDismissedWithdrawn/Varied
20151100
20140000
20131100
20120000
20110000
20100000
20092020
20080000
20071100
20064130
20055140
200412390
200310460
200213661
2001172132
20006330
1950 to 199912944832
1900 to 19498935531
1851 to 18992610151
     
TOTAL3161121977

 The information to compile this list has been taken from A New Supreme Court, Report of the Advisory Group replacing the Privy Council (April 2002) and from the Judicial Committee decisions on Bailii (and thanks to New Zealand Law Society Wellington librarian Robin Anderson).

Have New Zealand Judges sat on the Judicial Committee? 

Definitely - as recently as March 2015 when Dame Sian Elias sat on the Judicial Committee bench when it quashed the conviction of Teina Pora.

Since 1914, when Sir Joshua Williams became the first New Zealand judge appointed to the Judicial Committee, New Zealand judges have sat on the Judicial Committee many times. There have been 26 New Zealand judges appointed to the Privy Council. Peter Spiller notes the close relationship between Court of Appeal judges and the Judicial Committee: "Judges such as Wild CJ spent some of their sabbatical leave working in the Privy Council, without encouragement or assistance from the New Zealand Government, out of a sense of duty to do their share in staffing the Board." (New Zealand Court of Appeal 1958-1996, Brookers Ltd, 2002, page 356).

New Zealand judges have also delivered the Judicial Committee's decisions - one example being Progressive Enterprises Ltd v Foodstuffs (Auckland) Ltd [2002] UKPC 25 (23 May 2002) when Tipping J delivered the decision which overturned the Court of Appeal.

The following list shows New Zealand Judges who have been appointed to the Privy Council.

NamePrivy Council Appointment
Sir Joshua Williams31 January 1914
Sir Robert Stout10 June 1921
Sir Michael Myers4 May 1932
Sir Humphrey O'Leary1 January 1948
Sir Harold Barrowclough13 January 1954
Sir Kenneth GressonDecember 1962
Sir Alfred North4 November 1966
Sir Richard Wild5 November 1966
Sir Alexander Turner19 August 1968
Sir Thaddeus McCarthy19 August 1968
Sir Owen Woodhouse1974
Lord Cooke1977
Sir Ivor Richardson1978
Sir Ronald Davison1978
Sir Duncan McMullin30 April 1980
Sir Gordon Bisson1987
Sir Thomas Eichelbaum17 April 1989
Sir Michael Hardie Boys1 November 1989
Sir Thomas Gault1992
Sir Ian McKay8 April 1992
Sir John Henry19 November 1996
Sir Edmund Thomas19 November 1996
Sir Kenneth Keith21 May 1998
Sir Peter Blanchard21 May 1998
Sir Andrew Tipping21 May 1998
Dame Sian Elias24 November 1999

Last updated on the 1st August 2016