Attorney-General v Goodwin [1994] CKCA 9; CA 02.1994 (7 July 1994)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
(REMOVED FROM THE HIGH COURT)
C.A.NO.2/94

IN THE MATTER
of Section 3 of the Electoral Amendment Act 1993 No.3

AND

IN THE MATTER
of the Cook Islands Constitution

BETWEEN

THE ATTORNEY GENERAL OF THE COOK ISLANDS
Appellant
(Respondent in the High Court)

AND

FREDERICK GOODWIN
of Matavera, Rarotonga, Crown Servant
First Respondent
(First Applicant in the High Court)

AND

THE COOK ISLANDS PUBLIC SERVICE ASSOCIATION
a society duly incorporated under the Incorporated Societies Act 1908
and having its registered office at Rarotonga
Second Respondent
(Second Applicant in the High Court)

Coram: Sir Ian Barker (Presiding)
Hillyer J.A.
Henry J.A.

Counsel: Solicitor-General J. McFadzien for Appellant
T. Arnold for First & Second Respondent

Hearing: 7 July 1994
Date of Judgment: 7 July 1994

(ORAL) JUDGMENT OF THE COURT DELIVERED BY SIR IAN BARKER

This is an application for leave of this Court to appeal to the Judicial Committee of the Privy Council in accordance with the Privy Council (Judicial Committee) Act 1984 and the New Zealand Appeals to the Privy Council Order 1910. The application concerns a judgment of this Court given on 22 February 1994 with reasons delivered on 10 March 1994. The Court (consisting of Quilliam, Prichard, Dillon JJA) declared invalid section 3(2) of the Electoral Amendment Act 1993 it having conceded that section 3(1) of the same Act was unconstitutional.

The first respondent Mr Goodwin was a public servant who wished to stand for Parliament at the recent elections. His case was supported by the second respondent, the Cook Islands Public Service Association, an incorporated society representing public servants in the Cook Islands. The Court held that section 3(2) of the Amendment Act which required public servants to resign before standing for parliament, was contrary to the rights given under the Constitution to all citizens to be eligible to stand for parliament apart from bankrupts and those who had been convicted of certain offences.

The judgment of Quilliam J.A noted that an affidavit had been given by the Chief Executive Officer of the Prime Minister's Office: he had explained the reasons behind the legislation including the practical difficulties of public servants leaving their office for the purpose of standing for parliament. The Court held that such difficulties were not a reason for denying a right given by the Constitution.

The Court also stated that the Constitution could be amended in the recognised way to give effect to the wishes of the Government. A constitutional amendment would require a two-thirds majority in Parliament which the current government now enjoys: a further affidavit filed by the Secretary to Cabinet in support of this application indicates that there is a general feeling that even where a government has a two-thirds majority, there is an inclination against effecting a constitutional amendment unless it is absolutely necessary to do because of the political sensitivity of such use of a majority. The Government wishes to test the question of whether the two-thirds majority procedure for a change was necessary for the valid introduction of what is called the “resign to run” provision for public servants.

The basis for the present application is two-fold. This Court may give leave to appeal to the Privy Council:

(a) If in the opinion of the Court the case involves a substantial question of law as to the effect of any provision of the Constitution of the Cook Islands.

(b) If the question of law is of such general or public importance, or otherwise, that it should be referred to Her Majesty in Council.

We think this application qualifies under both headings, but particularly the first. This is the first occasion when a piece of legislation in the Cook Islands has been declared unconstitutional. We do not see as a reason for denying leave to appeal the fact that the Government could, if it wished, change the Constitution because it happens to have the necessary two-third majority.

We think that on an important constitutional question like this, the Government is entitled to exercise its right of appeal, particularly when there has been only one hearing i.e. the hearing in the High Court having been by-passed.

Mr Giles who appeared as senior counsel before the Court in Wellington in February 1994, has filed a memorandum which was expanded upon today by Mr Arnold. Both made the point that the present respondents could not themselves incur the expenses of participating fully in an appeal hearing at the Privy Council. There are not only sound financial reasons for this stance but the election has been concluded: the first respondent Mr Goodwin was unsuccessful: the next election is not due for another five years. There is no point in the respondent's attending the hearing by the Privy Council in London at their cost.

Mr Giles in his memorandum suggested that the Court make an order that, in the event of leave being granted, the appellant would pay the respondents costs. We are unaware of any such order having been made by the New Zealand Court of Appeal. Certainly nothing is noted in the text book: Mr Giles referred to this kind of order being imposed by the High Court of Australia on ‘public issue’ appeals. No authority was provided.

The only right to impose conditions that this Court has is under Rule 5. Having said that, however, the Solicitor-General indicated that there had been discussions between the parties and there were possibility of financial assistance being given to the respondents to defend the appeal at Privy Council. That is not a matter of which we can make any order: but we would observe that the Privy Council would be unlikely to be particularly receptive to an appeal at which only one party, the appellant, is represented.

We therefore grant conditional leave to appeal to the Privy Council: we do so in terms of Rule 2(a) and (c) as amended by the Cook Islands legislation. In terms of Rule 5, we order $2,000 security for costs be secured within three months and that the record be prepared in terms of the Rules also within three months. It will then be necessary for an application for final leave to be made. There is the outstanding question of costs due to the respondents in the hearing in Wellington. For the sake of finality, we fix the costs payable by the appellant to the respondents for the hearing in this Court in Wellington and for today’s hearing at $10,000 together with disbursements including filing fees, photocopying, toll calls, etc., plus reasonable travel expenses of one counsel from Auckland to Wellington: particulars may be settled by the Registrar in the event that counsel do not agree.

BARKER JA