1. R v. Clarke (1849–1851) N.Z.P.C.C. 516.Google Scholar

2. (1903) N.Z.P.C.C. 23.Google Scholar

3. (1903) N.Z.P.C.C. 730.Google Scholar

4. idem, p.759.

5. Supreme Court Amendment Act 1949 (Can. 2nd sess.) c.37. Criminal appeals had already been abolished in 1933, shortly after the Statute of Westminster: see Criminal Code, s.1024(4).

6. See Privy Council (Limitation of Appeals) Act 1968 (Cth), Privy Council (Appeals from the High Court) Act 1975 (Cth), Australia Act 1986 (Cth).

7. See “The Late Sir Michael Myers: Tributes to His Life and Work” (1950) 26 N.Z.L.J. 118, 119.Google Scholar

8. Cameron, , “Appeals to the Privy Council—New Zealand” (1970) 2 Otago L. Rev. 172, 179. Approximately 15 New Zealand judges (one every 2 years) have since sat on the Privy Council.Google Scholar

9. Idem, p.183. The statement was an exaggeration since Malaysia, Singapore and Hong Kong still retained the appeal (Malaysia abolishing the appeal in 1982 and, more recently, Singapore abolished it in 1994). Australian States also retained the appeal until 1986: see supra n.6.

10. See Law Commission, The Structure of the Courts (R 7, Wellington, 1989).Google Scholar

11. Idem, p.2.

12. Judicature Act 1908, s.56B and District Courts Act 1947, s.29.

13. [1989] 1 N.Z.L.R. 422.Google Scholar

14. [1991] 1 N.Z.L.R. 27.Google Scholar

15. Commissioner of Inland Revenue v. Databank Systems Ltd [1990] 3 N.Z.L.R. 385Google Scholar; Minister of Energy v. Petrocorp Exploration Ltd [1991] 1 N.Z.L.R. 641.Google Scholar

16. Cameron, op. cit. supra n.8, at p. 178.Google Scholar

17. Appeals to the Privy Council: Report of the Solicitor-General to the Cabinet Strategy Committee on Issues of Termination and Court Structure (Crown Law Office, Wellington, 1995).Google Scholar

18. Idem, pp.13–18 and, further, pp.27–28.

19. See Courts Structure Bill 1996. The history of the bill is described in a “Post-Election Briefing Paper” (Ministry of Justice, Wellington, 10 1996), p.64.Google Scholar

20. The possibility had already been identified in Oct., before the coalition was formed: idem, p.65.

21. Solicitor-General's Report, supra n.17, at p.9.Google Scholar

22. [1997] 1 N.Z.L.R. 513.Google Scholar

23. Te Runanga o Muriwhenua v. Te Runaganui o Te Upoko o Te Ika [1996] 3 N.Z.L.R. 10.Google Scholar

24. See also with respect to Canada, Greenwood, , “Lord Watson, Institutional Self-interest and the Decentralization of Canadian Federalism in the 1890s” (1974) 9 U.B.C.L. Rev. 244, 261et seqGoogle Scholar. and, further, Clarke, , “The Privy Council, Politics and Precedent in the AsiaPacific Region” (1990) 39 I.C.L.Q. 741—although note that those writers both appear to claim that the Privy Council had deliberately (in the sense of this being its purpose) acted in those jurisdictions to preserve its role as a final appellate tribunal.Google Scholar

25. Databank, supra n.13, at p.428 (McMullin, Somers and Casey JJ concurring, Richard son J dissenting)Google Scholar; Petrocorp, supra n.14, at pp.34–36 (Bisson, Hardie Boys and Heron JJ concurring, Richardson J dissenting).Google Scholar

26. Petrocorp, idem, p.34.

27. Databank, supra n.15, at pp.392–393Google Scholar; Petrocorp, supra n.15, at pp.655–656.Google Scholar

28. [1986] 1 A.C. 240, 250–251.Google Scholar

29. [1985] 1 A.C. 1000.Google Scholar

30. Harris, , “The Privy Council and the Common Law” (1990) 106 L.Q.R. 574, 598.Google Scholar

31. Clarke, , op. cit supra n.24, at p.746. See also McHugh, “The Appeal of ‘Local Circum stances’ to the Privy Council” [1987] N.Z.L.J. 23, 28.Google Scholar

32. [1987] 2 N.Z.L.R. 700.Google Scholar

33. Also held to be in excess of his powers in judicial review proceedings: [1975] 2 N.Z.L.R. 62.Google Scholar

34. Cato, , “Privy Council: The Takaro Properties Case” [1988] N.Z.L.J. 110.Google Scholar

35. [1996] 1 N.Z.L.R. 513.Google Scholar

36. [1994] 3 N.Z.L.R. 513. In the majority were Richardson, Cooke P, Casey, , and Gault, JJ, dissenting, McKay J.Google Scholar

37. Supra n.35, at pp.519–520Google Scholar and see, similarly, Australia Consolidated Press Ltd v. Uren [1969] 1 A.C. 590, 641.Google Scholar

38. [1994] 1 A.C. 324.Google Scholar

39. Idem, p.338. For a critical comment on the ambiguous position in which the Privy Council judgment left the New Zealand courts, see Waters, “Proprietary Relief: Two Privy Council Decisions—A Canadian Perspective” (1995) 25 Can.Bus.L.J. 90, 92.

40. Solicitor-General's Report, supra n.17, at App.G.

41. Based on reported and unreported judgments of the Privy Council, only 2 out of 9 appeals succeeded in 1996, and 2 out of 8 in 1995: see Report of the New Zealand Judiciary 1996(Wellington, 1996)Google Scholar. The proportion of 1 out of 4 successful appeals brings New Zealand below the average figures for Privy Council appeals allowed from Commonwealth courts (roughly 1 out of 3): see See Clarke op. cit. supra n.24, at p.755.Google Scholar

42. The years 1987–1997 have seen an unprecedented turnaround in the make-up of the Court of Appeal, with the retirement of 5 permanent judges (including Sir Robin Cooke, who is now Lord Cooke of Thorndon) and the appointment of 6 new judges to an expanded court of 7 permanent judges, not including the Chief Justice. Only Sir Ivor Richardson, now the President, remains of the Court of Appeal judges who decided the Databank and Petrocorp cases.

43. E.g. ASB Bank Ltd v. Harlick [1996] 1 N.Z.L.R. 655Google Scholar (applying Barclays Bank plc v. O'Brien [1994] 1 A.C. 180 to deny relief based on undue influence where the presumption of reliance and trust between parents and child could not be established); Wellington City Council v. Woolwonhs NZ Ltd (No. 2) [1996]2 N.Z.L.R. 537Google Scholar (applying Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 K.B. 223 to hold that the city council's ratings determination, involving proper consultation, compliance with statutory procedures, and a judgment in good faith as to the interests of the city, had not been “unreasonable”). Cf., however. Peninsula Watchdog Group (Inc) v. Minister for Energy [1996] 2 N.Z.L.R. 529 (holding invalid the minister's exercise of discretion to extend the time for five mining applications in the Peninsula area under s.109 of the Mining Act 1971).Google Scholar

44. Ryder, , “The Demise and Rise of the Classical Paradigm” (1991) 36 McGill L.J. 309Google Scholar and Risk, “The Scholars and the Constitution: POGG and the Privy Council” (1996) 23 Manitoba L.Rev. 496, 522.Google Scholar

45. Sir Michael Hardie Boys sat on Hamlin and the Chief Justice, Sir Thomas Eichelbaum, sat on Reid.

46. See Waters, op. cit. supra n.39 and, further, Beatson, “Proprietary Claims in the Law of Restitution” (1995) 25 Can.Bus.L.J. 66.Google Scholar

47. See especially supra n.36, at pp.523 (per Cooke P—although more prepared than the other judges to argue also that separate development of New Zealand law per se should be sufficient), 525–526 (per Richardson J) and 533–534 (per Gault J).

48. Post-Election Briefing Paper, supra n.19, at p.65.Google Scholar

49. See McHugh, op. cit. supra n.31 with reference to Nireaha Tamaki v. Baker (1902) N.Z.P.C.C. 371 and Wallis v. Solicitor-General, supra n.2.Google Scholar

50. See supra, n.3 and Cameron, op. cit. supra n.8, at p.176.Google Scholar

51. New Zealand Maori Council v. Attorney-General [1987] 1 N.Z.L.R. 641.Google Scholar

52. Te Runanga o Muriwhenua Inc v. Attorney-General [1990] 2 N.Z.L.R. 641 (fisheries)Google Scholar; Taunui Maori Trust Board v. Attorney-General, [1989] 2 N.Z.L.R. 513 (coal).Google Scholar

53. Te Runanga o Te Ika Whenua Inc Society v. Attorney-General [1994] 2 N.Z.L.R. 20.Google Scholar

54. New Zealand Maori Council v. Attorney-General [1992] 2 N.Z.L.R. 576.Google Scholar

55. See New Zealand Maori Council v. Attorney-General [1994] 1 N.Z.L.R. 513.Google Scholar

56. In a third case the Privy Council refused leave to appeal from the Full Court of Appeal's judgment in Tairoav. Minister of Justice [1995] 1 N.Z.L.R. 411Google Scholar that the government had made adequate provision for the promotion of the Maori option (to be registered on the Maori electoral roll) prior to the deadline for exercising the option in the run-up to the 1996 election: see Joseph, , “Constitutional Law” [1996] 1 N.Z.L.Rev. 1, 9.Google Scholar

57. Supra n.22.

58. Idem, pp.521–522. The Court of Appeal's view was that the questions were clearly raised in the proceedings before it, brought to challenge an order of Anderson J in the High Court that the following issue should be determined before trial: “Is the Treaty of Waitangi Fisheries Commission, in the exercise of its power to allocate pre-settlement assets as set out in s.9(2) of the Maori Fisheries Act 1989 … required to allocate those pre-settlement assets solely to iwi and/or bodies representing iwi or groups of iwi”: supra n.23, at p.18. The Court of Appeal's conclusion that "Iwi" could be broadly interpreted directly led to their conclusion that no useful purpose would be served by the determination of the preliminary point as ordered by Anderson J: idem, p.20.

59. Supra n.22, at p.522.Google Scholar

60. For a similarly inconclusive judgment (an income tax case) from the Privy Council, see Rangatira Ltd v. Commissioner of Inland Revenue (1996) 17 N.Z.T.C. 12, 727Google Scholar, commenting that, although the High Court could have decided the case differently, its findings could not be overturned by the Court of Appeal.

61. Solicitor-General's Report, supra n.17, at p.13Google Scholar. See also Laskin, , “The Supreme Court of Canada: A Final Court of and for Canadians” (1951) Can.Bar.Rev. 1038 and Clarke, op. cit. supra n.24.Google Scholar

62. The comments are reported in [1976] N.Z.L.J. 376, 380.Google Scholar

63. Sir Thomas Eichelbaum, “Brooding Inhibition—Or Guiding Hand? Reflections on the Privy Council Appeal”, in Joseph, (Ed.), Essays on the Constitution (1995), p.112.Google Scholar

64. Idem, p.128.

65. Supra n.7.

66. Cameron, , op. cit supra n.8, at p. 173.Google Scholar

67. “The New Zealand National Identity” (1987) 3 Cant.L.Rev. 172.Google Scholar

68. Idem, p.183.

69. Solicitor-General's Report, supra n.17, at p.13.Google Scholar

70. Ibid.

71. Hannum, Autonomy, Sovereignty and Self-Determination (1990), p.15.Google Scholar

72. See especially Solicitor-General's Report, supra n.17.

73. Ibid, although recommending the appointment of additional judges to the Court of Appeal. See also Sir Ivor Richardson, Address to New Zealand Bar Association Conference (July 1996) and Report of the New Zealand Judiciary, supra n.40.

74. Law Commission, op. cit. supra n.10, at pp.84–85Google Scholar; Solicitor-General's Report, idem, pp.17–18.Google Scholar

75. See also Harris, “The Law-Making Power of the Judiciary”, in Joseph, op. cit. supra n.63, p.265 at pp.260–270: “Yet it is sometimes difficult [for lawyers and law academics] to feel an unquestioning confidence in the infallibility of Judges” in New Zealand, commenting on the small size and close-knit nature of the New Zealand legal community.Google Scholar

76. The view of at least one member of the Privy Council appears to be that “the Privy Council has saved New Zealand law from going off the rails”: Eichelbaum, op. cit. supra n.63, at p.128.Google Scholar

77. Especially those involving non-New Zealand parties: see e.g. Attorney-General for Hong Kong v. Reid, supra n.38 and more recently Brannigan v. Davison [1996] 3 W.L.R. 859 (holding that a New Zealand Royal Commission had acted properly in its process for deciding how the interests of New Zealand and the Cook Islands should be resolved in a dispute over tax concessions provided by the Cook Islands to New Zealander residents). Cases of this kind are, however, very rare.Google Scholar

78. Law Commission, op. cit. supra n.10, at p.167.Google Scholar

79. Similarly, in the private sphere, the liberal philosopher's rejection of the “freedom” of a person who chooses to be a slave on the basis that “[t]he principle of freedom cannot mean that he should be free not to be free”: Mill, On Liberty (1859; Gray, (Ed.) 1991), p.114.Google Scholar

80. Op. cit. supra n.61, at p.1040.Google Scholar

81. See Kelly, , “Leaving their Lordships: the Commonwealth Experience” [1994] N.Z.LJ. 101, 109Google Scholar; Waters, op. cit. supra n.39, at pp.90–91.Google Scholar

82. E.g. regarding important cases decided under the State Owned Enterprises Act 1986, the Bill of Rights Act 1990 and the Resource Management Act 1991, see Harris, op. cit. supra n.75 and, further, supra nn.51–52.

83. A recent example is Telecom Corporation of New Zealand Ltd v. Clear Corporation Ltd [1995] 1 N.Z.L.R. 385 (regarding the basis for determining interconnection charges under New Zealand's Commerce Act 1986)—see, for a critical comment, Van Roy [1995] N.Z.L J.55.Google Scholar

84. See further, McHugh, op. cit. supra n31, at p.25 and Harris, op. cit supra n.30, at pp.598–599.Google Scholar

85. Op. cit. supra n.62. See also Eichelbaum, op. cit. supra n.63, at p.112.Google Scholar

86. For instance, even since the Minister of Justice's announcement in January, the Courts Structure Bill 1996 to remove the appeal still remains on the list, and the Prime Minister has expressed a personal preference to abolish the appeal.

87. Lord Chancellor's Department, Judicial Statistics Annual Report 1995 (Cmnd 3290, 1996, HMSO).Google Scholar

88. “The Caribbean: A Relic of the Empire”, The Economist, 02 1997, pp.47–50, indicating that the change may occur as early as the end of 1997.Google Scholar

89. See supra n.41.

90. See supra n.73 and accompanying text.