The CHAIRPERSON (H V Ross Robertson) Link to this
For the benefit of Committee members, I note the instruction for the Committee to have power to consider and, if it thinks fit, adopt the amendments set out on Supplementary Order Paper 21.
CHRISTOPHER FINLAYSON (National) Link to this
The National Opposition will support this legislation. It makes a number of changes that are necessary—in one case, which I will come to in Part 2, embarrassingly so. But let us look first at Part 1, which deals with three matters. The first is to increase the number of permanent judges of the Court of Appeal from six to eight. National says that is necessary, because when the Labour Government stopped appeals to the Privy Council and created the new Supreme Court, in its zeal and desire to say farewell to their lordships in London it forgot about the intermediate appellate court, which forms such a fundamental part of our justice system.
When Labour created the Supreme Court, it moved four permanent judges of the Court of Appeal into the Supreme Court, which I personally believe was the right thing to do when creating a new top court, but it left the existing Court of Appeal really exposed because a number of new appointments needed to be made to the Court of Appeal. Those judges came from the High Court bench and they were placed under enormous pressure in having to come to grips with being appellate court judges. So this is important. The judges of the Court of Appeal do a good job, but they have been under far too much pressure. Increasing the number of permanent judges to eight will ensure that the court can sit as two divisions, and there will be a number of judges who do not have to sit every day because they can then get on with writing their judgments.
At the second reading stage of this bill, I suggested that perhaps the time was coming when, in order to provide greater assistance to the Court of Appeal, a leave provision should be introduced to regulate appeals to the Court of Appeal from the High Court and, secondly, that something ought to be done about the number of jury trials that are appealed from the District Court and go straight to the Court of Appeal. They are, perhaps, matters that can be debated some other day but I suggest that simply increasing the number of judges in the Court of Appeal is a good step that goes some of the way. There are further changes that need to be made.
The second aspect of Part 1 is reflected in clause 5, which provides for the way in which judgments of the Court of Appeal may be delivered. In the old days a person used to receive a telephone call from the registrar to say the judgment in a particular case would be coming out the next morning. That person would have to tramp down to the Court of Appeal and at 10 o’clock Their Honours would appear and give a short précis of the judgment. This provision provides that the Rules Committee could make rules so that one does not need to go down to the Court of Appeal on the morning of the judgment; the judgment can simply be released.
The rationale of the old practice was that if a person wished to seek leave to appeal to the Privy Council that person could simply leap to their feet and seek it orally—although that was sometimes regarded as very rude to the judges who had just delivered the judgment. More often than not one would file a written motion on appeal. But that kind of provision is no longer necessary, especially given the fact that under the new Supreme Court procedures, leave to go to the Supreme Court must be obtained not from the Court of Appeal but from the Supreme Court itself. So the existing procedure being redundant, this provision is necessary.
The only other thing I want to say about Part 1 is to address new clause 5A set out on Supplementary Order Paper 21, which proposes the insertion of new section 26IB. That provision gives to the judge or associate judge the power to preside at the hearing of specified matters by video link, which simply reflects the fact that technology has made that facility available. In certain preliminary or interlocutory matters it makes a lot of sense that if a case is, for example, under the supervision of a judge in Auckland, there should not be a need for a person to fly to Auckland to deal with the case on behalf of the client. It should be possible to deal with preparatory or interlocutory matters by way of video link. The new clause provides that the Rules Committee should be able to make rules under section 55 of the Judicature Act for the purposes of the section. I suggest that is a sensible move and it is one that I certainly commend.
The only closing point I would make is that the Judicature Act—and this is something the Minister may care to think about—is a bit of a dog’s breakfast now, and will be made more so as a result of these amendments. In an earlier debate I said that the District Courts Act was a dog’s breakfast, as well. Perhaps the time is coming when there should be a consolidated “Courts Bill” that brings together all the various legislation dealing with the establishment and practice of courts in this country. They could be put into one “Courts Bill”. To do so by 2008 would be very appropriate, given that it will be a century since the Judicature Act was passed. But that is further down the track. These amendments are practical and sensible, and National will support Part 1.
Dr RICHARD WORTH (National) Link to this
As the previous speaker, Mr Chris Finlayson, has indicated, National supports the Judicature Amendment Bill (No 3). I would like to reflect for a moment on the place of the New Zealand Court of Appeal in the appellate structure, and confirm National’s position that it is appropriate to increase the number of permanent Court of Appeal judges to the new number that is identified in the bill.
The Court of Appeal, which is located not too far away from this building—probably 200 metres away—is New Zealand’s principal intermediate appellate court. In practice, most appeals are resolved at this intermediate appellate level rather than at the Supreme Court. The Court of Appeal has had a long history. It existed as a separate court from 1862, but until 1957 it was composed of judges of what was then called the Supreme Court—that is what the High Court was then known as—which sat periodically in panels. In 1957 the Court of Appeal was reconstituted as a permanent court that was separate from that old Supreme Court.
The Court of Appeal generally sits in panels of five judges or sometimes three judges, depending upon the nature and wider significance of the particular case. A considerable number of three-judge cases are heard by divisional courts that consist of one permanent judge and two High Court judges who are seconded for that purpose. The Court of Appeal deals with civil and criminal appeals from proceedings that are heard in the High Court, and with indictable criminal proceedings in the District Courts. As well, matters appealed to the High Court from a District Court can be taken to the Court of Appeal with leave, if they are considered to be of sufficient significance to warrant a second appeal. The Court may, if it grants leave, hear appeals against pre-trial rulings in criminal cases. Finally, the Court hears appeals on questions of law from the Employment Court.
I have offered these views because it is to be instantly seen that this is a busy court. I have said on previous occasions, and I repeat now, that it is right to talk about the workhorses of the Court of Appeal. The judges carry very substantial workloads. It is therefore appropriate that their numbers be increased.
I also think the Government’s response to the pressures in the courts, which is simply to appoint new judges, is only a small part of the processes that should be employed to deal with the problem of clogging in the courts. A topical issue at the moment, with the retiring age of judges fixed at 68, is whether it would be a good plan to increase the retiring age to what it used to be—72—or perhaps to a midpoint of 70. I see a frown on the face of a member on the other side of the Chamber, and I remind that particular member that in the Supreme Court, our highest court, acting judges can be appointed up to the age of 75. So it is not to be assumed that those who are in their 70s are less capable and less committed to the discharge of the judicial function than those who are substantially younger.
In the context of the plan to create vacancies for more judges—of course, the implication is that those vacancies will be filled—I also say that this Labour Government is unlike previous Governments in that it is incredibly reluctant to consult on judicial appointments at the higher levels. In not being prepared to undertake that consultation, I believe that the Government does a disservice to the judges, because it leaves open the very clear possibility that appointments will attract political flak and adverse media comment, which is clearly not in the interests of the separation of powers doctrine, nor in the interests of the judges. The judges are in an invidious position when they are attacked and unable, for reasons primarily of convention, to respond.
We are seeing, in current issues relating to the appointment of judges, a continuing reluctance by this Government to consult with members of the Opposition who have some insight into the judicial system. I believe that that is drawing us into a new world that we must reflect upon. I am not suggesting that in respect of judicial appointments we should necessarily go the way of the United States’ system, with its confirmation hearings, but if there is not to be consultation, then a middle ground must be sought out whereby the public and Parliament can have confidence in the judicial appointment processes.
A number of models are available to us, and a model that comes readily to mind is that which is followed in Canada. We are talking here about appointments to the appellate levels of court—in this case, in New Zealand, it would be to the Court of Appeal and the Supreme Court. In Canada the appointment is made after consultation. Following that consultation, the relevant Minister—in Canada it is the Justice Minister—would come to the relevant select committee of Parliament and brief the committee as to the consultation that was involved in the events leading to the appointment and also to the merit of the particular candidate. In that way, I believe we can be satisfied that there is a transparency of process, and also a process that produces a merit outcome.
This is a very small country. The pool from which judges are drawn is tiny. The reality is that most lawyers know most lawyers. Certainly, most court lawyers would know those who are aspirants for the judiciary. That, for me, was a compelling reason to resist the plan to abolish the Privy Council and substitute in its place this indigenous court—we now have the Supreme Court as our final appellate court. If the Government will not consult with the Opposition on judicial appointments—and we have a new, albeit returned, Attorney-General, Dr Michael Cullen, who has made it clear that he is simply not prepared to consult—then we have to start thinking, in the context of this bill being worked through its parliamentary process, whether at the appellate level there should be some enforced consultation process that would give a confidence and integrity to the appointment of the rank of judges.
Clause 3 deals with the constitution of the Court of Appeal. I do not wish to say anything concerning delivery of judgments, or concerning the issues picked up in clause 6 that relate to the finality of decisions of the Court. But I pick up the merit of the argument in connection with the greater use of video conferencing, because this issue circles back to what I said right at the outset. When we are looking at creating a legal system that we can be proud of, which is efficient, effective, and serves our citizens well, we need to look beyond the issue of judicial appointments to questions of process and efficiency in the courts. This is clearly one of those situations where there is an increasing place, in terms of the timeliness of dispatch of court business, to have video conferencing, and the like.
HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this
Kia ora tātou. I am reading a book at the moment that is about a guy who gets convicted in the United States, and about the whole process of his going through to face the death penalty. The interesting thing about the process is that it is more about the process of law than it is about the individual who is being prosecuted before the law. That is why I referred to one of the previous bills, the Legal Services Amendment Bill (No 2), as being the “Legal Services (Grease the Machine) Bill”, and this bill is the “Judicature (Grease the Machine) Bill”. Again, the Courts and Criminal Matters Bill is very similar, because just as that bill is all about improving the effectiveness of fines-gathering, this Judicature Amendment Bill (No 3) is about alleviating workload pressure on the courts, getting more judges, and, basically, greasing the machine to get more and more people through the system.
I tell folks we need to realise that the system is all full up. We cannot just keep on making it easier to put more and more people through the system, and we cannot talk about getting tough on them, or doing what with them. This side of the Chamber cannot stick them in jail, because that side of the Chamber is planning to send them home for weekends. Sooner or later we have to deal with the fundamental problems that this nation faces, and I am sorry to say that more judges will not fix the problem.
I also note that one of the Māori Party’s concerns about the judicature is that although members are talking about having more judges and alleviating the workload pressure for the Court of Appeal, etc., we are not doing anything to put pressure on those who are interfering politically in the rights of judges. I refer there to the Deputy Prime Minister in his role as Attorney-General last year, when he unnecessarily criticised a couple of the judges of the Māori Land Court. Then he talked about an inquiry into the process, yet pulled the plug on the inquiry a little later on. But the word was out there, that while Parliament was talking about creating more judges and putting more people into work to do that kind of activity, the Government still reserved the right to attack those judges on the one hand, and on the other to criticise members on the other side of the Chamber should they dare to mention a judge. So all those issues have yet to be tidied up.
In terms of having videos I am opposed, because the video thing is just a start. I say it tonight because I am absolutely convinced that further on down the track we will find ourselves going the way of the book I am reading, where the process becomes more important than the person. Consequently, we will have a situation where lawyers having access to the video—that is, the judge, the prosecutor, and the defence attorney—will be more in sync with one another over a video, whether or not they have someone to deal with or a defendant on hand. So while I hear Mr Finlayson’s kōrero about the video being basic, pre-trial kind of stuff, which is what is proposed at the moment, I am concerned because I know that the video thing is part of that “grease the machine” thinking that the Government seems to have in terms of alleviating workload, improving effectiveness, etc. It is becoming more and more about the importance of the process, and less and less about the importance of the person.
The reason the Māori Party opposes this bill—probably at 4 to 116—is that it does not reflect the fact that for many thousands of Māori and Pacific Islanders more judges will not actually mean more justice, and neither will easing the workload pressure on the Court of Appeal, allowing appeals to the Supreme Court, or giving increased access to the Supreme Court, for the very simple reason that we Polynesian folks simply do not have the financial capability to engage the experienced, high-cost lawyers we cannot get from legal aid, and we cannot get normally, to ensure that we can actually have access to justice.
BRIAN CONNELL (National—Rakaia) Link to this
I will pick up where my National colleagues left off, and the first issue I want to raise is the Supplementary Order Paper. I agree with the analysis of Dr Worth and Mr Finlayson that the Supplementary Order Paper makes a lot of sense, but I do wonder how it is that a select committee can sit through its process and not have this issue brought before it. Here we are now, on the day the bill is being debated in the Committee stage, and the amendment is actually being put before the Committee for discussion. I do not believe that it makes for good order or good business for such things to be dropped on the Committee at the last moment. That is not an argument about the veracity of the Supplementary Order Paper; it is just an observation about the process. That is the first thing I wanted to raise. The second issue concerns the fact that most speakers here tonight have legal backgrounds. I do not, and one of the benefits of sitting through the select committee process as a lay person is that one sits there and tries to determine issues as matters of practical—
—common sense is the term I was looking for—as opposed to legal process.
The argument that was put forward in favour of more judges was one of workload. I listened carefully to the arguments that were mounted and, on balance, I accepted those arguments. But I feel we are still falling into the trap of treating the symptoms and not the problem. What we did not do, and one of the things I argued at the time, was look beneath the surface of what those workload pressures are all about. My colleague Chris Finlayson has raised the issue of too many District Court jury trials going to the Court of Appeal. I see nothing in the discussion from the Government that suggests it is in a position and has the will to do something about that. So that is something else I would ask the Committee to be cognisant of.
The other issue raised by a submitter is the use of seconded judges in the Court of Appeal, or judges seconded from the District Court to the High Court, and from the High Court to the Court of Appeal. One of the concerns raised was double-dipping. The issue at hand was that a lot of those judges were retired judges who were claiming superannuation, and at the same time could claim salaries of $240,000-odd. That figure is not exact, it is approximate, but it is the best as my memory serves me. We were satisfied that nothing was illegal in that, but the issue was raised of its morality. I think people listening out there might be concerned to know why that issue was not addressed.
The other issue I want to spend a little time talking about is the reporting of judges’ decisions. I notice that hitherto a decision could be reported to an empty courthouse, which did not make good use of judicial resources. The bill will take care of that issue by allowing decisions to be reported through the registry. That is fine, but in the course of those discussions another issue was raised—that is, that a number of judges’ decisions were not being authenticated. By that I mean that a judge was not putting his or her name to a decision, which leaves us with the possibility that some people sitting in the Court of Appeal as judges could actually be sitting in judgment upon themselves, and the parties affected by the decision would not know about it. I thought that surely that could not be right, so I asked around for some advice. Our officials sought advice from the President of the Court of Appeal, who told us that if that were happening it was inadvertent. On face value I accepted that, and so did the members of the select committee, until submitters started raising it as an issue. A high-profile legal professional said: “Look, that does happen; it happens all too often.” So I and other colleagues on the select committee moved to try to deal with that issue.
I have to say that the advice and help we got from our officials on the issue was first class. I do not mind saying that I thought we should make sure that a provision requiring that judges’ decisions were authenticated should be written into the legislation. As I have already said, our officials wrote to the President of the Court of Appeal who gave us that advice, and he said he would make sure that he reinforced with the judiciary that those decisions were to be authenticated. Again, that did not satisfy me because, with the best will in the world, the current President of the Court of Appeal might do that, but personnel change and I wanted it to be written into legislation. After our discussion it became apparent to me that that probably was not the best course of action, so a compromise decision was reached whereby the Regulations Review Committee would address this matter in regulations. I am now satisfied on this matter.
So I will conclude my initial remarks by saying the National Party supports dealing with the issue around having more judicial resources at the Court of Appeal. I think, though, that an underlying issue does need to be addressed, which is finding out what is exacerbating the workload pressures. I thought the contribution made by the Māori Party member was very good and very relevant in regard to this issue. But I also believe that the process itself may be flawed and that it should be refined somewhat.
KATE WILKINSON (National) Link to this
In rising to speak to Part 1 of the Judicature Amendment Bill (No 3), which relates to the procedures and constitution of the Court of Appeal, I would like to deal more with the constitution of the Court of Appeal than its procedures. Although I have been in practice for 26 years prior to my change of career, I have to confess never to have been in the premises of the Court of Appeal whatsoever.
This bill does increase the number of permanent Court of Appeal judges from six to eight, including the President, and this move continues with the theme of access to justice, which we spoke about earlier this evening in relation to the Legal Services Amendment Bill (No 2). Increasing the number of judges in the Court of Appeal certainly should reduce the pressures of the workload and the caseload there, and it should lead to earlier hearing dates and quicker decisions.
I say at this point I have the highest regard for the quality and calibre of our Court of Appeal judges in New Zealand, but I also have to wonder, however, why on earth we have total disregard for some of the best legal brains of Britain and why we have abolished the right of appeal to the Privy Council. The Privy Council did not cost New Zealanders one solitary cent; the Court of Appeal and the increased personnel of the Court of Appeal will—which is why we must be satisfied that the current workload and pressures need to be eased by the passing of this bill and by increasing the number of judges to eight.
I would like to have a little interlude and perhaps revisit why on earth we are in this situation. We have to have regard for the effect of the abolition of appeals to the Privy Council and the creation of the Supreme Court as our highest court, and what effect that has had on the Court of Appeal. As I understand it, the effect was that five of our Court of Appeal judges went straight from the Court of Appeal to the Supreme Court—hence the need to now increase the number of judges in the Court of Appeal. One would have thought that some basic succession planning or forethought might be in order, or this Parliament might even have thought about a hybrid situation of allowing offshore judges to sit on the Supreme Court, thereby reducing and relieving the pressure on our own Court of Appeal judges.
History has shown that the number of cases and appeals going to the Court of Appeal is increasing. My colleague Mr Finlayson rather wisely, I thought, referred in the second reading of this bill to the number of cases being dealt with in both the criminal jurisdiction and the civil jurisdiction. In 2003 the Court of Appeal dealt with 630 cases, being 482 criminal cases and 148 civil cases; in 2004 the number of cases had increased to 506 criminal cases and 148 civil cases. But it is not just the number of cases that our learned Court of Appeal judges must hear; it is also important to consider the length of time they take to deliver those decisions and judgments.
With the proviso that this is not to be interpreted or taken in any way whatsoever as a criticism of the Court of Appeal judges, we can relate instances of cases taking over 1 year for the decision to be made and for the judgments to be delivered in one case, and over 7 months in another case. To my mind that is simply not adequate access to justice. So I believe we must look at this bill in a holistic way on the basis of access to justice, which is not too dissimilar to our approach to the issue being debated previously relating to legal aid. Just as under the Legal Services Amendment Bill (No 2) we must ensure that there are sufficient legal providers—that is, lawyers—to cope with the demand of the users of legal aid—that is, the clients—so we must ensure that in the Court of Appeal there are sufficient judges to meet the demands of the caseloads and of the appellants. Our judges are overworked; we have anecdotal evidence of that.
RUSSELL FAIRBROTHER (Labour) Link to this
I rise in support of the Judicature Amendment Bill (No 3). I have been listening to some of the previous speeches, to the debate about whether we need more judges, and to Hone Harawira’s concern about telephone conferences and the whole process. And I heard the previous speaker once again rattle off the numbers of cases in the Court of Appeal. The argument those speakers advance is quite endless.
The lawyers on the other side of the Chamber are refusing to acknowledge that the hysteria for increased sentences has led to the Court of Appeal becoming quite reactionary, so that the concept of merciful sentencing in criminal courts, which was a valid concept in the early 1970s, has been removed by the minimum sentencing levels increasingly imposed by the Court of Appeal, in response to public clamour based on the false assumption that longer sentences will reduce crime. Of course, those who think about the issue for longer than a morning tea break realise that longer sentences increase crime rather than decrease it, because people are not idle while they are in prison. They train themselves with their colleagues and friends, and they build a new circle of friends. They divorce themselves from their families, and they divorce themselves from the supportive institutions in society that have not worked well for them but that work even more badly for them after they have spent a period of time in incarceration. The real cause of that is not something that we in this Parliament can really fix with an amendment to the bill. We can only tag along behind what really is a Court of Appeal that has been running along on a track of populism rather than following the principles set down by this Government in various pieces of legislation.
There is ample legislation, such as the Sentencing Act and the Parole Act, that makes it quite clear that in cases of serious offending, serious sentences should be imposed. However, in the majority of cases there is an opportunity for mercy in the court of first instance, but no longer is that a valid argument on appeal. So whenever a judge, whether it be in the District Court or High Court, exercises his or her previously inherent prerogative of mercy, Crown prosecutors, in response to that clamour for heavier sentences, are bound to take the matter on appeal. In the early 1980s, therefore, the Court of Appeal started—unwisely, some would argue—to impose minimum sentences for a range of offences. It then got itself in the bind of having to move away from the experience of judges of first instance—judges who are first instance judges because of their experience of humans, of people giving evidence, and of dealing with the everyday problems that come before them—and move to the more refined atmosphere of the Court of Appeal.
Of course, a Court of Appeal judge is a more academic judge, and a more banco judge than a trial judge in many instances. In fact, some Court of Appeal judges are very good Court of Appeal judges, but they have no advocacy background whatsoever. That is a natural consequence of having an appellate court. But until we recognise that our courts have a responsibility to reflect the legislation that this Parliament passes, we will continue to pass legislation such as the Judicature Amendment Bill (No 3) that increases incrementally the number of judges in the Court of Appeal.
The real truth is that we have to ask ourselves what we want from our justice system, and we have to ask ourselves whether we trust the judges of first instance—we pay them enough for them to be trusted—and trust their judgment, including the prerogative of mercy, so that when a case goes up to the Court of Appeal from either the High Court or the District Court, there is not a reaction of bringing out a law book to say, for instance, that in 1986 we set the minimum sentence for that type of offending at X number of years.
We get a ludicrous situation when we talk about rape. In the 1970s the average penalty for a rape offence was 3 years. It then went to 5 years, and it is now about 8 years. But, of course, as soon as a judge of the first instance says that the starting point is 8 years, the Court of Appeal jumps in and says there is no starting point but the average is seen to be about 8 years. So we cannot adopt an artificial starting point, because the maximum is 20 years and we work down from there.
We go through those strange mind games, because the public of New Zealand—led by the reactionary right-wing parties sometimes reflected in this Parliament, with their neo-Christian attitudes—has demanded that the courts impose sentences to quell some of the self-righteous and indignant protest in the street, which is led by ignorance, not knowledge. So it is a sad day when our appellate courts have had to set artificial levels of sentencing that have had the result of increasing the courts’ own workload. If we could move back to look at the laws that were passed by this Labour Government since 2000 under the former Minister of Justice, Phil Goff—and I am sure some equally good ones will follow under the current Minister, Mark Burton—we would see that the opportunity is there to reduce the number of judges. We do not need the other complaints.
DAVID BENNETT (National—Hamilton East) Link to this
I think that today we are missing two vital points. Firstly, this bill is a result of legislation regarding a Supreme Court that was passed in 6 weeks. The public of New Zealand had no idea what was happening until it actually happened. The Privy Council was gone. Getting rid of it was an ambush on the public of New Zealand. Labour members sit there now and want to go through the fine details of legislation that it passed against the wishes of the New Zealand public, when nobody knew what was going on. It was the ambush of the century. Labour members have come here today to tell us about how great and wonderful they have been in solving all the legal problems. New Zealand First members have been backing them up and saying that they knew everything first. But the reality is that we would not be passing this legislation if there had been a genuine decision by the New Zealand public to move to a Supreme Court.
I think the Māori Party has an axe to grind, as well. The major thing for the Māori Party was its ability to take its case in respect of the foreshore and seabed legislation to court. This bill is just another attempt to do things such as take away the Privy Council, which would have assisted the Māori Party with the opportunity it desired. Labour took away the right of ordinary New Zealanders to a judicial process that had been built up over a number of years.
Labour members now talk about the judicial system that they want to create for all New Zealanders. Let us look at what Labour has achieved in the last 6 years for all New Zealanders.
Yes, exactly. The growth rate has just collapsed. They cannot blame anyone but themselves for that. They have been in charge, and what have they done? They have taken growth to zero and below.
About 14 percent of cases heard at the Court of Appeal have gone to the Supreme Court. That shows that the Court of Appeal has had a large body of work to deal with over the last year or so. The Court of Appeal has always been held in high esteem in New Zealand and around the world. We have a history of producing some of the finest judges in the world. Lord Cooke is probably our best known judge, and he is the equal of the US greats, such as Justice Cardozo, and the British great, Lord Denning. The Court of Appeal has a proud and colourful history. Often the law made at the Court of Appeal is more in tune with our geographic and historical position in the world than that which was made at the Privy Council.
An increase in the number of permanent judges at the Court of Appeal is welcomed considering its high workload, but we need to take it with caution. We must be careful not to lose the integrity and strength of our Court of Appeal that have been built up over many years. I am sure that the great law schools of this country, such as that at the University of Waikato, will ensure this standard is maintained. However, we also need to take caution in the approach. As Stephen Franks pointed out in the first reading debate, a greater number of judges can expose a legal system, in that the chief judge could select appropriate judges for particular cases, which could potentially influence the nature of ultimate decisions. He also pointed out that the legal community may need to take responsibility for concerns about greater workloads. Perhaps we need to see the right signals from the courts about cases that should be going to the Court of Appeal, rather than let frivolous appeals go forward to do with changes in sentencing. The Court of Appeal is there for a reason—to talk about principles and policy, not just to look at sentencing arrangements.
The increase in the number of judges in the Court of Appeal is to be welcomed in our legal system, but let us not lose sight of the history of the Court of Appeal and the culture it has brought to New Zealanders and the world legal community. We need to be engaged in that and support it.
The bill looks at a number of issues. Clauses 4 and 5 relate to the manner in which High Court Rules and Supreme Court Rules will be applied. They will allow judgments to be made under the rules of the High Court and the Supreme Court, which will give some flexibility to the Court of Appeal and the Supreme Court. The New Zealand Law Society submitted to the Government Administration Committee that a similar process to that at the High Court would be appropriate, so that judges can deliver judgments through the registrar. The aim of that is to give greater flexibility and efficiency.
Hon JIM SUTTON (Minister of State) Link to this
Before the Committee wanders off permanently into debating things that are not in the bill rather than things that are, I thought I should take the opportunity to respond to one or two matters that have been raised. Not wanting to encourage members to relitigate the decision of whether we should have the Supreme Court, I point out that in 166 years the Privy Council heard only seven criminal appeals from New Zealand. Already, in 2 years, the Supreme Court has granted leave to hear 12 criminal appeals, so the point made about there being a final Court of Appeal that people can actually, conceivably get to is, I think, well made.
I acknowledge the support for this bill. The debate has been constructive. I understand that the proceedings in the Government Administration Committee were constructive, although I do detect tonight the first signs of a split between ACT and the Māori Party. We will see when the votes come. By and large, members on both sides seem to be pretty like-minded on this bill. I point out that the videoconferencing proposal arose after the bill had been reported back from the select committee, so it shows some willingness around the Chamber to be flexible that this is proceeding with general agreement.
Chris Finlayson expressed support for the Law Commission recommendation that first appeals from District Court jury trials be made to the High Court instead of directly to the Court of Appeal. The Government, in its response to the Law Commission, has agreed to examine this recommendation, and we are not unsympathetic to it. But the fact is that the homework has to be done, and we should not hold up this sensible legislation while we do it. That is not to say that we should not get officials to do the work on it, and we will get there.
Finally, in response to the point made by the member who just resumed his seat, I note that the New Zealand Bill of Rights Act provides that all persons convicted of an offence have the right to appeal to a higher court against the conviction, the sentence, or both. I note that the provision guarantees only one right of appeal; second and subsequent appeals may require the appellant to seek leave to appeal.
CHESTER BORROWS (National—Whanganui) Link to this
I rise to speak in support of the Judicature Amendment Bill (No 3), and I take note of some of the comments made by other speakers, particularly Hone Harawira. It is a shame that he has expressed some dissatisfaction with the way that the Court of Appeal and other courts have treated lay people over time. I recall another comment he made a few speeches ago in relation to his decision never to appear in court without defending himself because of the lack of service he received from those who were appointed to appear for him.
The problem is that whether we like it or not the court system is there and will remain. People have a right to receive justice in a timely manner—and if they do not see it as justice, at least a decision in a timely manner. That is a basic right in a free and democratic society. Many of us have the perception that any matter that goes before the court will be dealt with in a cumbersome and an expensive way, and that in many cases it is hardly worth the effort. But sight should not be lost of the fact that a case well presented, even by lay people, is frequently a breath of fresh air in the courts and tends to get a reasonable hearing in any event.
It is unfortunate that the cost of appearing before the court, and so of taking a matter before the Court of Appeal, is beyond many of those who would seek justice and would seek an answer to their claim. Many people start to go through the court system based on a matter of principle, but unfortunately the truth is that principles cost money. Waiting for a matter to be heard costs big money, too. Waiting to find a point on appeal, or to hear a decision that will decide whether a person can proceed with one initiative or another, not only costs money but frequently costs jobs. In respect of businesses that are seeking to start initiatives, shift them, or continue working with them, there are people at the bottom of the tree who suffer from the lack of a timely decision, as well. The very nature of matters that go before the Court of Appeal tends to be complex and important, and the matters tend to affect people’s lives, even if for most of the people in this nation those things carry on far above their heads and do not seem to be of any real substance as far as they affect them.
I found in my dealings with the court system that I was much happier, whether I was working as prosecutor or as defence counsel, when someone had belted someone, someone had pinched something, or someone had been found where he or she should not have been—and frequently with his or her pants down—because the arguments were fairly tangible.
I thought I would. I was asked earlier by a colleague from the Green Party to try to liven it up a little bit, and I am doing as good as I can.
The fact is that most of us think of the court system as operating at a very low level, but the proof of the integrity of the system is that we get things right at the top of the tree, as well. Although it may be absolutely boring—and, to be honest, to listen to some of the speeches, especially from the professionals, as much as I love them dearly, is as boring as all hell—it is important to get the integrity of the system right at the top. Our legal system, whether or not we like it, is one of the few areas in life where justice does trickle down. If we stuff it up at the top, and if we stuff it up when we set up, for instance, the Court of Appeal or the Supreme Court, and the intricacies of the way they will work, then we will stuff it up further down the tree, as well.
It is good that people coming from the lowest level of the court system have the opportunity to appeal to the courts above. I can think of one of our colourful countrymen, Sir Robert Jones, who, fortunately, has the wealth to be able to take what seems on the face of it to be the smallest of issues to the highest of courts in his attempt to effect justice. He is prepared to put his money where his mouth is, and that is a good thing. The trickle-down effect of that is that once the case is won at the highest levels, justice does trickle down, and the authorities charged with enforcing the law of the land, as we dictate it to be in this Chamber, then apply it to those in our society least able to afford to make those defences.
MARYAN STREET
PITA PARAONE (NZ First) Link to this
I am probably one of the few people participating in this debate who does not have a law background and therefore cannot be called a lawyer—although some of my relatives have referred to me as being a bush lawyer, having come from the bushes of Mōtatau.
First off, I shall respond to a comment made by one of the speakers from National. I remind that member that New Zealand First did not support the replacement of the Privy Council, so National cannot put us in that category. Probably one of the reasons we did not support the replacement was that we saw it as a first step towards republicanism. It is funny that a former leader of the National Party actually promoted the notion of New Zealand moving to republicanism.
The other comment I make is that the Minister in the chair, Jim Sutton, made reference to the apparent breakdown between ACT and the Māori Party, in that there seemed to be some dissension. I just point out to members in the Chamber tonight, if it is not known, that there was a dissenting voice in the Māori Party caucus regarding the decision for the Māori Party to be present at the ACT annual general conference. That dissenting voice is present in the Chamber, so the Minister in the chair should not be too surprised at what might be an apparent breakdown between the Māori Party and ACT.
In talking to this bill, I say that the evidence is quite clearly that criminal appeals have increased, as have miscellaneous appeals, while at the same time it appears that civil appeals have declined. As I understand it, both miscellaneous and civil appeals are heard by permanently appointed judges. An increase in the number of Court of Appeal judges and the continued use of High Court judges will, as the Government Administration Committee found, ease the predicted workload in the foreseeable future, enabling the Court of Appeal to hear appeals more promptly. Whatever we might say about the law and the process system—that the law is shonky or is not up to the standard we expect; however we might want to describe it—at the end of the day, if there is a breakdown in the process, then it can equally be argued that it is justice denied.
However, it is important that judicial independence is not compromised. I do not believe that, as a consequence of this bill, the independence of judges will be compromised. I am not so sure about the use of video interviewing and the passing of sentences per that medium. I believe that if defendants have been tried by their peers, then it is important that those peers pass their judgment face to face rather than behind the anonymity of a video camera. At the end of the day, if that is the way we are likely to move, I would tend to support the concerns expressed by the member from the Māori Party.
Although no mention has been made of the amendment proposed by Chris Finlayson, I say to this Committee tonight that although I might personally agree with the intent of the amendment, I am also bound by a signed confidence and supply agreement between New Zealand First and the Labour-led coalition Government. Unlike previous coalition Governments, whereby there was a breakdown of a signed agreement, on behalf of New Zealand First I will certainly ensure that we complete our agreement.
BRIAN CONNELL (National—Rakaia) Link to this
I have to comment on the contribution from Russell Fairbrother. If he had made that contribution in the Government Administration Committee rather than having his head in his laptop all the time, we would not have been any wiser but we certainly would have been much more amused.
I want to take the opportunity to summarise some of the points that have been made, by going through some of the key issues. The maximum number of Court of Appeal judges will be increased from seven to nine, including the President, and National accepts that as sensible. But underneath that is an inherently deeper problem, and the issue of workload, with the pressures that are causing the number of judges to be increased, in my view still has not been adequately addressed. We are in danger of treating the symptom but not addressing the problem.
The flexibility and delivery of judgments we accept as sensible, but my concern regarding the authoring of decisions is something about which I still leave the Committee on notice. It is not just my view. In fact, I think that it is one of the contributions Mr Fairbrother made when he confirmed to the select committee that that was happening, and happening all too often. So it is a real issue that I hope we now have covered off. Relaxing the restriction on appeals to the Supreme Court is something that should have been done sooner, but because of the great work that National members did on the select committee, that issue has now been addressed.
Removal of the redundant reference to the Privy Council—well, it should not have been necessary in the first place. We should never have given up our right to appeal to the Privy Council. The argument has been made, and made very well this evening, that if we want quality decisions, then we want quality brains making them, and the reference to the Privy Council is right there in the bill. If we want quality decisions made, then we need the best brains available, and the abolition of that right was just an example of the tall-poppy syndrome in action. We should never have lost that right. The reason behind it was that this Government thought that if it could abolish going to the Privy Council it could influence the judiciary in this country—as is the wont of the Prime Minister. It is happening regularly; we are seeing lots of examples of it—and Mr Benson-Pope should get that smile off his face because he is one of the prime examples.
And it is happening again, is it not? It is happening again now with the Parker “Pimpernel”—with David Parker right at the moment—and we are seeing the long reach of the Prime Minister influencing the judiciary, once again. This bill should not have been addressing that particular issue. If we had not lost appeal rights to the Privy Council in the first place, we would not need to make reference to that council in this bill. What is happening, of course—the real agenda here—is that the Prime Minister wants to turn this country into a republic. That is what is really happening, and any linkage with the Privy Council would have been a flaw in that strategy. Any links with the monarchy is something that is anathema to this Prime Minister.
This bill, on balance, is something that National supports. The contribution that has been made by National members in the select committee has been simply stunning. Russell Fairbrother, in a weak moment, took me aside and said: “Brian, thank goodness we have you and your other National colleagues on this, because I don’t turn up very often, and I don’t concentrate very often. So thank God someone is making sensible decisions on behalf not only of the Government but of other members of this House, as well.”
I see I have a bit of time to make another couple of comments regarding access to the Court of Appeal. Access to that court is sensible, and it is something the National Party supports, as well.
TIM BARNETTDr RICHARD WORTH (National) Link to this
At first blush Part 2 does not seem all that important. After all, it comprises only three short clauses. But as one delves into the wording, one sees immediately just what the repercussions of this important part are. I would like to take up three points that emerge so clearly from those three clauses.
The first proposition I would like to advance to members is simply to say there is a well-known legal tag: it is in the public interest that there be an end to litigation—
—and a number of constraints justify that course. Mr Finlayson has invited me to put that tag into Latin, but I am going to leave it for later calls that he makes, and indicate that words like “ut sit finis litium”, or words to that effect, somehow pick up some old schoolboy or law-school Latin—not quite correctly, I suspect. But the point is that it is in the public interest that there be an end to litigation. A curious feature of the appeal process, which is observable in all common law jurisdictions, is that as cases progress through a hierarchy upwards, about one-third of them are reversed. That is so whether they are in Canada, Australia, the UK, or New Zealand. That, I guess, reflects the man-made nature of the legal system—that legitimate opinions can be held at different levels of the process, and produce different results.
That is why we see in clause 7—and this is the first point I am seeking to make in the first, I hope, of a number of calls—the reference to appeals against the decisions of courts being final. We see in that clause that although it states that a decision is final, there are some outs, there are some qualifications, and there are some exceptions. Exceptions are given for decisions of the High Court to be taken both to the Court of Appeal or, in “exceptional circumstances”, to the Supreme Court. There is no definition as to what “exceptional circumstances” might be. Clearly it is undesirable that there be an appeal process that will permit multiple rights of appeal to be exercised, with the consequences I have indicated. That is the primary point I sought to make in relation to Part 2.
But I cannot help but make the comment, in response to what Mr Fairbrother said, that his views in connection with this legislation—probably more appropriately made in Part 2—would cause immense offence to Court of Appeal judges. He told us in Committee tonight that the Court of Appeal is running along a track of populism. That is wrong; it is mischievous. The Court of Appeal, and especially this particular Court of Appeal, does not feel that it has an opportunity to demonstrate judicial activism, judicial creativity, and whereas he is quick to condemn the Court of Appeal for its decision making, he needs to reflect that in the very particular areas he identified, it is interpreting legislation passed by this Government. Much of that legislation National finds substantial fault with.
So there it is—decisions of the court are to be final but subject to a number of exceptions, and those exceptions are to be exercised by leave to appeal. It is generally the case in respect of such leave provisions that they are available both in the court appealed from and in the court the intending appellant seeks to access. That is generally so here, except that we have a situation in terms of our legislation where the Supreme Court exercises an exclusive right to determine what cases come to it. That is why the Supreme Court can be as busy or as slack as it chooses to be, because it can simply refuse to grant leave, and so control its workload in that way.
CHRISTOPHER FINLAYSON (National) Link to this
I do not propose to say very much at all about clauses 7 and 8 in Part 2, but I do want to say something about clause 6. In my second reading speech, I said that it was a splendid example of sloppy drafting. It is something that should not have happened, and it is totally unacceptable that the New Zealand Parliament should pass legislation abolishing leave to appeal to the Privy Council and then have to come back almost 3 years later to tidy up something that had been missed. So a little bit of background is required.
Section 64 of the Judicature Act provides for the transfer of civil proceedings from the High Court to the Court of Appeal in exceptional circumstances. An example in our history of an exceptional circumstance was the decision in 1987 by the late Justice Heron to remove into the Court of Appeal the famous New Zealand Māori Council v case. His Honour thought that the circumstances of the case justified it being dealt with at the Court of Appeal level rather than at the High Court then inevitably going on appeal to the Court of Appeal. So that is what section 64 of the Judicature Act is about. Section 65, which this bill repeals, states: “Decision of Court of Appeal final as regards tribunals of New Zealand …”. But then there is a proviso: “Provided that the Court of Appeal may give leave to either party to appeal to the Privy Council.”
At the second reading, I referred the House to a decision of the Supreme Court in the case Henry John Esdaile Nation v and to what the Supreme Court referred to as “this curious proviso”. But the reality of the matter is that the proviso should have been repealed 3 years ago. What I find extraordinary—and I invite the Minister to comment on how these things happen—is that schedule 1 of the Supreme Court Act contains a number of amendments to legislation. Part 1 deals with substantive amendments, and there is numerous legislation where the words “Privy Council” were removed and “Supreme Court” inserted. Part 2 deals with certain consequential amendments, and again a similar process whereby lists of statutes were referred to, including the Judicature Act 1908. If there were consequential amendments to the Judicature Act that were picked up in Part 2 of the first schedule, one wonders why this could not also have been a consequential amendment. There were then certain consequential repeals and various other changes that were made as a result of the appeals to the Privy Council being abandoned and the substitution of the Supreme Court.
It is unsatisfactory that these sorts of things need to be revisited 3 years later. It behoves the New Zealand Parliament to do it right the first time. I express my disappointment that this is all too common. In the very short time that I have been here, numerous bills have been introduced that have required this kind of minor consequential amendment because the job was not done properly in the first place. The proviso to section 65 should go. Section 65 should go.
The Chairperson reported the Legal Services Amendment Bill (No 2) with amendment, the Courts and Criminal Matters Bill with amendment, and that the Committee had divided it into nine bills, progress on the Judicature Amendment Bill (No 3), and no progress on the New Zealand Council of Law Reporting Amendment Bill.