The Judicial Committee of the Privy Council Decisions

Tangiora v.Wellington District Legal Services Committee (New Zealand) [1999] UKPC 42 (4th October, 1999)

Pauline Eunice Tangiora Appellant

v.

Wellington District Legal Services Committee Respondent

FROM

THE COURT OF APPEAL OF NEW ZEALAND

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 4th October 1999

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Present at the hearing:-

Lord Nicholls of Birkenhead

[Delivered by Lord Millett]

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1. The appellant is one of 19 signatories to a communication submitted to the United Nations Human Rights Committee ("the Human Rights Committee") under the First Optional Protocol to the International Covenant on Civil and Political Rights ("the Covenant"). The signatories complain that in breach of their civil and political rights under the Covenant the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 of New Zealand confiscates their fishing resources, denies them the right freely to determine their political status and interferes with their right freely to pursue their economic social and cultural development. The Human Rights Committee has declared the complaint admissible in part. The Government of New Zealand denies that there has been any violation of the complainants’ rights under the Covenant. It contends that the 1992 Act marks a significant achievement in the resolution of Maori grievances and will enable Maori to play a major role in New Zealand’s commercial fishing industry.

2. The appellant now needs to instruct counsel to prepare her written response to the extensive legal submissions and voluminous affidavit evidence submitted to the Human Rights Committee on behalf of the Government of New Zealand. She has applied to the respondent, which is the appropriate Legal Services Committee in New Zealand, for legal aid in connection with the proceedings. Her application has been rejected by the respondent on the ground that it has no jurisdiction to grant legal aid in connection with proceedings outside New Zealand. The appellant obtained a declaration in the High Court that the refusal of legal aid was unlawful, but the respondent has succeeded in having the judgment of the High Court reversed by the New Zealand Court of Appeal.

3. It is common ground before their Lordships that there is no international obligation on the part of the Government of New Zealand to make legal aid available in connection with proceedings before the Human Rights Committee. Accordingly, the sole question in this appeal is whether legal aid is available in respect of such proceedings under the relevant domestic legislation in force in New Zealand. This is a narrow question of statutory construction. The answer turns on whether the Human Rights Committee is an "administrative tribunal or judicial authority" within the meaning of section 19(1)(e)(v) of the Legal Services Act 1991 ("the 1991 Act"). No one suggests that it is an administrative tribunal. The question, therefore, is whether it is a "judicial authority" within the meaning of that expression in the 1991 Act. The Court of Appeal has unanimously held that it is not.

4. The long title of the 1991 Act is "An Act to make legal assistance and legal services more readily available to persons of insufficient means". The Ministers of Justice responsible for introducing the 1991 Act and its predecessor in 1969 acknowledged the basic responsibility of the State to ensure that its citizens have access to the legal system, and cited Article 7 of the Universal Declaration of Human Rights which, like Article 26 of the Covenant, secures to all the equal protection of the law without discrimination.

5. In making legal aid available to the people of New Zealand, therefore, the New Zealand Parliament was discharging an important responsibility that it considered necessary to secure their legal rights. But Parliament did not make legal aid available to everyone and for proceedings of all kinds without restriction. This would have been an irresponsible use of public funds. Instead it enacted a detailed scheme which defined the circumstances which would qualify for legal aid and in particular the proceedings in which it should be available. Section 19(1) lists in 12 separate paragraphs lettered (a) to (l) the proceedings in which civil legal aid may be granted. The subsection is set out in full in the judgment of the Court of Appeal, to which reference may be made, and it is not necessary for their Lordships to set it out again. They can sufficiently summarise it as follows.

6. Section 19(1) sets out a list of designated proceedings. The list is exhaustive. Paragraph (e)(v) contains the only residual group. It is the only group which is capable of including proceedings before a court or tribunal not established at the date of the 1991 Act. Paragraphs (a) to (d) designate proceedings in the Courts of general jurisdiction which form the main corpus of the judicial system in New Zealand: the District and Family Courts, the High Court and Court of Appeal, their Lordships’ Board, and proceedings commenced in a Youth Court. With the exception of appeals to their Lordships’ Board, legal aid is available in all such proceedings on the usual basis but without any special restriction introduced by the section. Legal aid is available for appeals to their Lordships Board only (i) where the applicant has succeeded in the Court of Appeal and is the respondent in the appeal to their Lordships’ Board, and the Minister has approved the grant of legal aid; or (ii) where the Attorney-General certifies that a question of law of exceptional public importance is involved and that the grant of legal aid is desirable in the public interest. The Court of Appeal found this to be particularly significant. They thought that it would be strange if access to the final Court in the New Zealand court system was tightly controlled, while access to the Human Rights Committee was unrestricted. Their Lordships are not persuaded by this argument. It is readily understandable that a litigant should ordinarily be required to accept the decision of the local Courts, including the Court of Appeal, and that anyone who wishes to appeal to their Lordships’ Board after the case has been considered by at least two tiers of local Courts should normally have to finance the appeal without recourse to public funds. But while all domestic remedies must be exhausted before application can be made to the Human Rights Committee, such remedies are not always available. The signatories’ complaints in the present case, for example, have not been considered by the New Zealand Courts.

7. Paragraph (e) describes proceedings in four specialised courts or tribunals separately designated in subparagraphs (i) to (iv) together with a residual group (v) described as follows:-

"(v) Any administrative tribunal or judicial authority …"

with the exclusion of certain first instance bodies. Legal aid under paragraph (e) is subject to a special screening procedure to ensure that it is available only where the case is one that requires legal representation and where the applicant would suffer substantial hardship if it were not granted.

8. Paragraphs (f) to (l) list proceedings before other designated courts or tribunals with specialised jurisdiction. These are not subject to the screening procedure in paragraph (e). Paragraphs (g) to (j) are appellate bodies which hear appeals from decisions of the first instance bodies excluded from paragraph (e)(v). Paragraph (j) describes proceedings before any body (by whatever name called) established by the Government of New Zealand to determine appeals against decisions made by immigration officers and relating to the status of persons as refugees.

9. The Court of Appeal observed that the body described in paragraph (j) is the only body identified in the list which was not established by statute or which does not have authority conferred upon it by statute. The appellant contends that in this the Court of Appeal was mistaken; their Lordships’ Board is another example. Their Lordships do not accept this.

10. The Privy Council is not, of course, a statutory creation. It is even older than the English Parliament and was exercising judicial functions long before Captain Cook set foot in New Zealand. But the Judicial Committee was established by an Act of the Imperial Parliament in 1833. New Zealand briefly became a dependency of New South Wales in 1840 and the statute and common law of England were thereby introduced into the territory. The Supreme Court and Court of Appeal of New Zealand with appeal to Her Majesty in Council were established by local Ordinances passed by the Governor and Legislative Council of New Zealand in 1844 and 1847 respectively. The 1833 Act formed part of the statute law of New Zealand when New Zealand became part of the Queen’s dominions, and it remains part of the statute law of New Zealand today by virtue of the Imperial Laws Application Act 1988 of New Zealand.

11. The expression "judicial authority" in paragraph (e)(v) was considered by Heron J. in Arbitrators’ Institute of New Zealand Inc. v. Legal Services Board [1995] 2 N.Z.L.R. 202. The case concerned a dispute which had been referred to arbitration, and the question was whether a private arbitrator was a "judicial authority". The judge held that in their natural and ordinary meaning those words referred to a person or body:-

"… having power to judge a matter before it, which power is derived from the state."

12. After a lengthy examination of the statutory context and its legislative history, the judge concluded that a private arbitrator, whose authority derived from the consent of the parties and not from the state, was not a "judicial authority" within the meaning of the subparagraph. Their Lordships agree.

13. The respondent has consistently argued that the Human Rights Committee is not a "judicial authority" for any purpose because its proceedings are not adjudicative. The respondent relies on the deliberate choice of the title "Committee" rather than "Court"; on the character of the body, which is said to be advisory rather than adjudicative; on the result of its deliberations, when it makes no findings or orders but merely publishes its "final views"; and on the fact that its final views are not binding rulings but merely authoritative recommendations. It acknowledges that the Human Rights Committee is composed of individual judges and jurists of the highest standing, and that its recommendations carry great persuasive authority. But its functions mirror those of the European Commission on Human Rights and the Inter-American Commission of Human Rights and the supervisory systems of the International Labour Organisation and the European Social Charter. They contrast markedly with the functions and powers of the European Court of Human Rights and the Inter-American Court of Human Rights.

14. Their Lordships feel the force of these submissions. Like Thomas J. in the Court of Appeal, however, they are not wholly persuaded that the function of the Human Rights Committee is not adjudicative. It is true that its views are not binding on the State party concerned, which is free to criticise them and may refuse to implement them. Nevertheless, as Professor Tomuschat has observed, a State party may find it hard to reject such findings when they are based on orderly proceedings during which the State party has had a proper opportunity to present its case. The views of the Human Rights Committee acquire authority from the standing of its members and their judicial qualities of impartiality, objectivity and restraint. Moreover, there is much force in the provisional view of Thomas J. that its functions are adjudicative. As he pointed out, when it reaches a final view that a State party is in breach of it obligations under the Covenant, it makes a definitive and final ruling which is determinative of an issue that has been referred to it.

15. Their Lordships do not, however, find it necessary to express a concluded view on this question. They are satisfied that, even if the Human Rights Committee is a "judicial authority" in other contexts and for other purposes, it is not a "judicial authority" within the meaning of section 19 of the 1991 Act.

16. The starting point for the determination of the present question is that, as the appellant accepts, the words "any administrative tribunal or judicial authority" cannot be read literally. They do not include any such body anywhere in the world. They do not, for example, include the English High Court or the District Court for Madison County. New Zealanders may sue or be sued in those courts, but they are not eligible to have recourse to New Zealand legal aid to finance the litigation. So some limitation must be put on the word "any". Given that the section creates a charge on the public funds of New Zealand, it should be limited by imposing a requirement importing some relevant connection with New Zealand and its legal system. The real question is what should be the nature of the necessary connection.

17. The respondent ruled that the proceedings must not be outside New Zealand. If this means that the hearing must be before a body sitting in the territory of New Zealand, it is open to the objection that this would exclude their Lordships’ Board, which is expressly included by paragraph (c). Their Lordships doubt that this is what the respondent really had in mind. The Court of Appeal held that the proceedings must be in courts or tribunals established under New Zealand law and by or with the authority of Parliament. Their Lordships do not consider that either the legislative purpose or the context in which the expression under consideration is found requires it to be confined to bodies established by or under statutory authority. But they are satisfied that it should be restricted to bodies forming part of the legal system of New Zealand.

18. The appellant submits that the body must satisfy three conditions. It must, she says, "be recognised by the law of New Zealand, derive its jurisdiction from the state, and adjudicate on legal disputes affecting the rights and interests of individuals in New Zealand". She submits that the Human Rights Committee satisfies those conditions. She points out that the Covenant has been confirmed by the New Zealand Bill of Rights, and that by acceding to the Optional Protocol the Government of New Zealand submitted to the jurisdiction of the Human Rights Committee. Accordingly, she says, its jurisdiction is derived from New Zealand.

19. In their Lordships’ view this submission merely demonstrates an ambiguity in the expression "derives its jurisdiction from New Zealand". The Human Rights Committee "derives its jurisdiction from the state" in the sense that the state has submitted to its having jurisdiction. It has jurisdiction only over those State parties which have signed the Optional Protocol and thereby conferred jurisdiction upon it. But that is not the sense in which the other courts and tribunals mentioned in section 19 derive their jurisdiction from New Zealand.

20. Their Lordships consider that the nature of the necessary connection with New Zealand sufficiently appears when consideration is given to the evident legislative purpose of the section and the nature of the courts and tribunals which it designates. Every such body forms part of the legal system of New Zealand in that it exercises the adjudicative functions of New Zealand. The jurisdiction of such a body is coercive, not consensual. It exercises in the name of the state the sovereign adjudicative power of the state.

21. The jurisdiction of the Human Rights Committee is very different. It is not an organ of a sovereign state but the creation of an international convention. Its jurisdiction over State parties is consensual. By signing the Optional Protocol New Zealand submitted to its jurisdiction, and can be said to have conferred jurisdiction upon it. But it did not cede to it its own sovereign power of adjudication over the inhabitants of New Zealand. The Human Rights Committee does not exercise the adjudicative functions of New Zealand, but its own independent jurisdiction derived from an international instrument and the submission of State parties.

22. It is this independent source of jurisdiction which, in their Lordships’ view, distinguishes the Human Rights Committee from the other bodies listed in section 19, and which makes it impossible to regard it as part of the legal system of New Zealand. There is nothing in section 19 to suggest that the public funds of New Zealand should be available for proceedings before such a body.

23. Their Lordships will humbly advise Her Majesty that the appeal should be dismissed. The appellant must pay the respondent’s costs before the Board.