New Zealand Supreme Court

Supreme Court Determined to Keep Court Applications Sequestered

The Supreme Court of New Zealand issued a 18 December 2015 edict in Greer v Smith ([2015] NZSC 196) after all five judge quietly convened to consider their own motion to change law on public access to its court records.


The edict “proposes” that New Zealand’s highest court will address public requests for court records according to “pre-1973” law.  This new process means any administrative request to access the Supreme Court public record must be determined by a single Supreme Court judge, off-the-record, privately in chambers, with no right of appeal or review.


The Supremes’ nostalgic hark back 43 years is not insignificant.  Forty-three is the years needed to evade the public access-enabling legislation passed by Parliament in 1973 & 1974, the right to impart public information guaranteed by the New Zealand Bill of Rights Act 1990, the section 28(3) Supreme Court Act 2003 right of review and Section 3 of the Public Records Act 2005.  These relevant laws – all of which conflict with the full Court’s negation of jurisdiction to review their privately-made orders – were not applied by the bench.


New Zealand’s unwritten Constitution prohibits Supreme Court judges from convening private court on their own motion to pass new law.  This violates the separation of power doctrine which vests law-making powers only with the legislature and limits legal determinations by judges to matters placed before them by a legislative application process.  Doing so without giving public notice or without allowing legal submissions raises further constitutional issues.


One upshot is Attorney-General Chris Finlayson has been formally notified of the Constitutional breaches and asked to support a recall application.  The Cabinet Manual places a remedial obligation on New Zealand’s highest law-enforcement officer; “The Attorney-General has particular responsibility for maintaining the rule of law.  The Attorney-General has a responsibility to notify Cabinet of any proposals or government actions that do not comply with existing law and to propose action to remedy such matters.”


The cover story provided in the judgment indicates the five Supreme Court judges were mindful they were breaching the law.  The judges recorded in their judgment that “Mr Siemer in person” appeared as counsel in the matter.   In response Mr Siemer has provided an affidavit confirming the Court provided no notice of its actions and allowed no submissions.  The judges then proclaimed their action did nothing more than bring the process to access Supreme Court records in line with the legislatively established process at the High Court.   Exactly equal – except for High Court decisions on access begin with the Registrar, get appealed to a judge, then appealed to the Court of Appeal and then appealed to the Supreme Court if a law has been violated.   In contrast, the first stop chambers decision of a Supreme Court judge is the first, last and final word.


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Why This Site is Necessary

The New Zealand Supreme Court was established by statute only in 2003. It replaced the Privy Council in England as New Zealand's highest court.

Two years before its establishment, the New Zealand Court of Appeal was found by the Privy Council in Taito v Q [2002] UKPC 15 to have engaged in systemic abuses of due process by dismissing as many as 1,500 appeals on an ex-parte basis over the previous 10 years, sometimes on the signature of a court registrar - dismissals often given only in handwritten notations on the court file.

The public have been told these abuses have ceased despite the Court of Appeal judges found culpable for these due process breaches being the first appointees to the new Supreme Court. Only by seeing the public court records which these judges have been hiding will we truly know.