Judicature Amendment Bill (No 3)

The CHAIRPERSON (Hon Clem Simich) Link to this

I remind members of the instruction for the Committee to have the power to consider and, if it thinks fit, to adopt the amendments set out on Supplementary Order Paper 21.

Dr WAYNE MAPP (National—North Shore) Link to this

I wish to talk about the way this bill fails to deal with the real issues around the Court of Appeal. The truth is that our court system has grown on an ad hoc basis, by adding bits here and fixing bits there, and the current Government is guilty of participating in that. It made a major reform—an important reform—a few years ago by establishing the Supreme Court. One would think that the opportunity would be taken with a Judicature Amendment Bill to actually fix up the court system. For instance, the overall structure of the Court of Appeal could have been looked at. It has been analysed by the Law Commission, which has done a report on it. The work of the commission could have been taken into account, and some coherence could have been brought into our appeal system. Has that opportunity been taken? I say to my colleagues that the answer is no. The Government might think it good enough to put up little bills to tweak things a bit and do a little repair job, but the truth is that Parliament’s legislative time is scarce. We expect the Government to take a serious approach and bring to Parliament what I would regard as a proper bill that deals with the issues around the Court of Appeal.

The Court of Appeal typically sits in Wellington and Auckland.

Dr RICHARD WORTH (National) Link to this

I take up the challenge that the previous speaker, Dr Wayne Mapp, has thrown down and respond to the question he asked with regard to why, in this legislation, the Government has not dealt more broadly with issues of significant concern. This is the Judicature Amendment Bill (No 3), and I start by asking what happened to the Judicature Amendment Bill (No 2). Where has the Judicature Amendment Bill (No 1) gone? I suspect the answer is that those bills just vanished into the ether.

The reason the Government has not dealt in a more broad-brush way with these issues of real concern relating to the efficiency and effectiveness of the court is twofold. First, the Government simply does not know what to do. Instead, it is following this piecemeal, ad hoc approach with no conspicuous success. Second, the Government decides that the very best thing to do with bills that touch on critical aspects relating to the legal system is to send them off to select committees that have no subject responsibility for the work in hand.

So it was that on 21 June 2005 the Judicature Amendment Bill (No 3) was sent to the Government Administration Committee. I do not doubt that the members on that committee are fine souls. Indeed, the membership of this committee comprised none other than Shane Ardern, H V Ross Robertson, Brian Connell, Russell Fairbrother, Sandra Goudie, and the Hon Dover Samuels. There was no legal skill at all—no background legal knowledge—on the committee to undertake the task entrusted of it. So, it was not in a position to propose any wide-ranging, far-reaching provisions. That is to be seen by the very minor amendments that were made to this legislation as it has come back to Parliament.

This legislation is substantially about three things, but the primary one—the one that Dr Mapp has attached importance to—is an issue relating to the constitution of the Court of Appeal and increasing the maximum number of permanent Court of Appeal judges from seven to nine, including the president. But there are a raft of issues that could have been dealt with at the same time.

A hot issue at the moment, as some on the Government side will know, concerns the retiring age for judges. That current age is 68. It has been suggested that the age be increased to 72. In the Supreme Court, acting judges can be appointed up to the age of 75. Quite clearly it would be appropriate to use the resource associated with judges serving longer periods—provided that they were fit and of sound mind, and a large number of people at the ages running up to 75 assuredly are. That is just one issue that could have been dealt with.

Another issue that is a significant issue and of concern to the public at large, concerns the actual process of appointment. For a very short time—a few months—David Parker held the post of Attorney-General in the present Labour Government. But he was not permitted to continue to serve in that role and stood down. We now have, in the shape of the Deputy Prime Minister, the Hon Dr Michael Cullen again responsible for senior judicial appointments. He does not have any skill or knowledge in that area at all; his background is an economic historian. He is not in a position to make sound judgments as to who should or should not be a judge. So, he just becomes a cipher of the Ministry of Justice, blindly accepting the recommendations offered up to him and not prepared at all to consult with other parties.

I think that is a tragedy. Whilst perhaps it does not matter in respect of positions that are less senior, it does matter in respect of the Court of Appeal and the Supreme Court. For the transparency of the appointments process, for selecting people of undoubted merit, and so as not to cause challenge, one would have thought that a Government that prides itself on consultation in some areas would take the bold step of consultation in that particular area.

KATE WILKINSON (National) Link to this

This bill really reinforces the common theme over the past few weeks of access to justice. Firstly, the bill increases the number of Court of Appeal judges. Why do we need to do that? We need to do that for several reasons. When the Supreme Court was created, the Court of Appeal judges were taken out of that jurisdiction and dropped into the Supreme Court, so the Court of Appeal was then under-resourced. We can also argue that we need the increased number of judges, because if we look at the appalling crime statistics we see that more people will be in the court system, so we need more judges to actually deal with those matters. The 2005 crime statistics that were recently released show that violent crime is up 6.9 percent, grievous assaults are up 13 percent, homicide is up 27 percent, intimidation and threats are up 11 percent, robberies are up 12 percent, sex crimes are up 6.4 percent, and burglaries are up. It is no wonder that we will need more resources in our judicial system.

Secondly, the bill deals with appeals. There are no longer appeals to the Privy Council because this Government abolished that right. We have to ask ourselves why this Government abolished that right of appeal to the Privy Council. Why did this Government deprive New Zealanders, without their mandate or consent, of their right to appeal to the Privy Council and of their right to avail themselves of the best legal brains in Britain—rights that did not cost New Zealanders one single cent? The same cannot be said of the Supreme Court. Why was no thought given at that time to the fact that New Zealand is small? It is like a village—a wonderful village, but a village none the less—where it is not uncommon for our Supreme Court judges to have to excuse themselves from hearing a case because they may have heard it at a lower level or may know one or other of the appellants or participants. In fact, one of our High Court judges has recently been challenged in a forestry case because he had an interest in forestry. New Zealand is small—very small—but despite all this our right to appeal to the Privy Council was unilaterally abolished.

Part 2 deals with appeals. The decision of the High Court on appeal from an inferior court is final unless a party obtains leave to appeal against that decision to the Court of Appeal, or directly to the Supreme Court in exceptional circumstances. One of the very purposes of the ability to appeal a lower court decision is to avoid miscarriages of justice and to ensure that justice is, indeed, achieved. As the famous quote states, it is better that 10 guilty persons escape than one innocent one suffer.

It is especially timely when dealing with appeals to refer to the report of Sir Thomas Thorp entitled Miscarriages of Justice. From that report it is clear that New Zealand lags behind the United Kingdom and other countries in terms of having the procedures in place to deal with miscarriages of justice. In fact, Justice Thorp suggests that as many as 20 people may be wrongly incarcerated in New Zealand prisons. That is 20 people too many. We must have confidence in the integrity of our legal system, and the appellate process is part and parcel of that integrity.

Thirdly, this bill deals with how the judgments of the Court of Appeal are delivered, by providing that the delivery of a judgment of the Court of Appeal may be affected in any manner and by any number of judges provided for by the rules. At present under the Court of Appeal Rules a judgment of the Court of Appeal on appeal must be delivered on behalf of the court, in open court, by no fewer than two permanent judges of that court. No similar provisions apply to the High Court—the High Court Rules lay down requirements for the giving of judgments, orally or in writing, but the actual delivery can be done by the registrar.

The New Zealand Law Society’s submission on this point suggests that the Court of Appeal may wish to adopt the same procedure as the High Court so that judgments are given by the judges but can be delivered through the registrar. We could interpret clause 5, and namely the words “and by any number of Judges”, as actually implying that at least one judge must be there to deliver the judgment. At present, at least two Court of Appeal judges must be present, but the courtroom may be empty.

Dr WAYNE MAPP (National—North Shore) Link to this

Thank you for the opportunity to include the comments I made earlier today about the importance of the Government getting to grips with the structure of our appellate system. It is clear, as my colleague indicated, that we have had Judicature Amendment bills Nos 1 and 2, and this particular one is No. 3. Not one of them is substantive. Each of them does valuable things, and National will be supporting them, but when the Government made such a significant reform as establishing the Supreme Court, which my colleague Kate Wilkinson has just referred to, one would think there would have been an obligation upon it to take a broader view and to fix up—as I would put it—the overall appellate structure of the New Zealand judicial system.

I am also aware that my colleague Mr Chris Finlayson, who is a highly experienced advocate both in the High Court and in the appellate jurisdiction, has said that what is really needed, and what Parliament should be debating, is a courts restructuring bill that would really deal with those issues in depth. It would properly establish, for instance, the relationship between the Māori Appellate Court and other courts, and the relationship generally between courts of specific jurisdiction—such as the Environment Court, the Employment Court, and the Māori Land Court—and courts of general jurisdiction. That sort of work has not been done. I admit that that is a very big project, and I suspect that it would take some significant time, after proper consultation with the Law Commission and the Ministry of Justice.

But a more narrowly focused project would concern the appellate courts themselves. Frankly, the country deserved that at the time when the Supreme Court was established. I am one of those who recognise that the establishment of the Supreme Court has been a development in the New Zealand legal system from which there is no turning back, and I acknowledge that the court has jurists of international repute on it. The fact that Sir Kenneth Keith was appointed to the International Court of Justice, in a highly competitive international vote at the United Nations, demonstrates the respect and regard that he was held in as a jurist of international quality. I can think of other judges in New Zealand who in the past or, indeed, in the present, meet those tests, so I am not one of those who say that the shift to the Supreme Court means that we get some sort of inferior justice. In any event, that argument is long passed.

The matter at the moment that the Minister should be turning his mind to is how we reorganise the balance of the appellate system to ensure we get a fundamentally more coherent approach. I mentioned in my first speech the fact that it has become a practice—although not established by legislation—that the Appellate Court sits in Auckland, on essentially an ad hoc basis and always as a court of three. I personally think—but others will have different views, of course—that given that Auckland has one-third of New Zealand’s population, and that it certainly generates at least one-third of appellate cases, there is a very substantial case for there to be two, or maybe even three, appellate courts in New Zealand. There should certainly be one in Auckland and one in Wellington, and there is possibly a case for one in Christchurch—I remain to be convinced about that, however. But it can be seen that we have not even considered those kinds of issues, and it does not appear that the ministry has properly considered them. Certainly, some years ago the Law Commission did some work on them, but it was rather overtaken by the events around the Supreme Court. So it seems to me that the Government is missing opportunities.

I say to the Minister that this 2005-08 Parliament, in terms of its legislative agenda—but not in terms of the politics of the place—is likely to be somewhat quiet, if I can put it like that. The reasons are obvious. In a finely balanced Parliament it is difficult for any Government to construct majorities for legislation. Indeed, as we have seen, and as Barbara Stewart and I can both testify, it is not only the Government that can construct majorities for legislation—certainly at first readings. In an MMP Parliament it is actually possible for parties across the Parliament to construct majorities for legislation on policies they think are important to the nation.

One would think that that would give the Government pause for thought, so I ask why it does not use this opportunity to do some repair to what I have referred to in other speeches as the “legal toolkit of New Zealand”. If we look at our legislation going back many years, we see that that is exactly what the Parliament of 1908 did. It did a superb piece of work in passing a whole lot of legislation, principally commercial but not only that, and lawyers, business people, and citizens benefited enormously from the work of that Parliament. The Sale of Goods Act is its most notable highlight.

The point I am making to Minister Barker is that he is faced with a circumstance in this Parliament when he can also repair the legal toolkit. I see this legislation as legislation that fundamentally reflects a lost opportunity—we can tell that, can we not—and I am disappointed to see a bill of this size. As is noted in the appendix, the hearing of evidence took the grand total of 15 minutes, and the consideration, which took 2 hours and 15 minutes, was heard some time ago. I say to the Minister that he should use his ministerial authority, his warrant, and his directive powers vis-à-vis the Law Commission—he has, after all, one of New Zealand’s most highly trained jurists and a former Prime Minister as head of the Law Commission—to repair the legal toolkit for the benefit of New Zealand. Then, maybe this Minister will still be referred to a hundred years from now as the man who did the important repair job on New Zealand’s legal toolkit. That is the opportunity he has; the question I ask of him is whether he will take that opportunity.