A New Zealand Supreme Court looks likely to be established this term of parliament. In supporting the government at the bill's first reading, the Greens have ensured they will help decide its final shape.

A move to a New Zealand Supreme Court, ending the right of appeal to the Privy Council, is part of a process of decolonisation. It signifies a desire to chart our own course as a Pacific nation taking account of international, as opposed to imperial, law.

Whether we view it with excitement or with fear depends to some degree on where we stand on this wider issue.

The Green Party has been supportive of this process so far, voting with the government to send the bill to select committee. Following the Ministerial Advisory Group's report, a full and unhurried select committee process is crucial to allow the people of New Zealand to have a say.

Some have suggested a referendum. While this is superficially attractive, it is no answer. The latest NBR poll, for example, indicates that 51 per cent of people support ending appeals to the Privy Council, 28 per cent oppose and 21 per cent are unsure or say it depends. Depends on what? Referenda are unable to tell us.

More useful is to allow proper considered submissions to be made by anyone who wants to. That is what select committees do. At the same time, we must go out of our way to make participation easy. The Green Party has made it clear that a condition of our support was that select committee hearings genuinely allow time for proper consultation. We have also suggested that hearings be held outside Wellington, on marae and in places accessible to the Pakeha community.

Most people are not familiar with parliamentary procedure. The committee needs to be flexible about how it receives submissions, while members of the public should know that a simple letter to the committee is enough. They can also ask to be heard in person.

Some Maori are skeptical of receiving justice from a domestic court against decisions of the settler government. Yet Arahia Burkhardt Macrae states in the Auckland University Law Review (V.9/3 2002) that in recent times the Court of Appeal has been more proactive than the Privy Council in recognizing the Treaty of Waitangi and Maori claims in general.

Some feel that we have too small a pool from which to draw the judges, and that we lack the necessary depth of expertise. There is also a fear that social and political loyalties will influence judicial decisions. The bill itself refers to fostering 'collegiality', which arouses suspicion, as does the proposed appointments process, with its potential to stack the bench at its establishment.

A look at the make up of the Judicial Committee of the Privy Council is instructive. The Judges who sit are in the main, the twelve Law Lords. No-one of an ethnic minority is represented in the Law Lords or the senior judges, such as High Court Judges from which they are drawn. Statistics from the UK Parliament show that between 1980 and 2000 only ten Judges from outside the United Kingdom served on the Judicial committee, seven of these Judges were from New Zealand. Our own Chief Justice Sian Elias has been the only woman.

These are real questions that the select committee must grapple with. But of the 16 independent States that allow appeal to the Privy Council, 10 are establishing a Caribbean Court of Justice this year. The other five nations are the Bahamas, Brunei, Kiribati, Mauritius and Tuvalu. Even the English don't, in general, have a right of appeal to the Privy Council. We may not have the luxury of the status quo for eternity.

Why not a Pacific Supreme Court? The idea has merit and some support here, but may not have much support among other Pacific nations at this stage.

One possibility is suggested by the Hong Kong Final Court of Appeal, which has an overseas panel of judges. One of them sits on every case before the court. Lord Cooke of Thorndon NPJ discussed the role of the overseas judge in Chen Li Hung and Another v. Ting Lei Miao and Others. He said

"...in appropriate cases, a function of a judge from other common law jurisdictions is to give particular consideration to whether a proposed decision of this Court is in accord with generally accepted principles of the common law"

By incorporating an overseas panel into our Supreme Court we could make use of outside legal expertise in particular areas, such as commercial law, and in the growing international jurisprudence on the rights of indigenous people and on treaty interpretation.

Lord Steyn, in his recent visit here, referred to the possibility of an overseas panel and the opportunity this bill provides to clarify the constitutional status of the Treaty of Waitangi. It is these kinds of possibilities that make the Supreme Court Bill, I believe, a chance to be seized rather than a danger to be feared.