Judicial Matters Bill

CHESTER BORROWS (National—Whanganui) Link to this

I rise in respect of the Judicial Matters Bill, and note that the bill’s explanatory note states that the bill is designed to implement measures that “are aimed at maintaining and enhancing public confidence in the judiciary; and recognise the fundamental importance in a democracy of ensuring an independent judiciary and addressing judicial resources.” I do not think anyone in this House would disagree with these broad objectives. It seems obvious that public confidence and an independent and adequately resourced judiciary is essential to maintaining the rule of law. Let us look closely at how Government has chosen to address these worthy objectives. The Judicial Matters Bill can essentially be broken down into two components.

Firstly, the bill seeks to make changes to the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. The bill allows for the appointment of a deputy commissioner to perform the commissioner’s functions when the commissioner has a conflict of interest, is absent from office, or is incapacitated, and during a vacancy in the office of the commissioner. As National members have previously pointed out in the course of this debate, it is difficult to see where or how the conflicts that the bill contemplates would arise. Even if a conflict did arise it is likely to be minimal and easily overcome—maybe by the appointment or secondment of another judge to step in and take over. It seems that Part 1 essentially seeks to address a mischief that does not even exist by creating the post of deputy commissioner. It is creating another tier within the judicial system—one that does not need to be there. Given that the office is relatively small, conflicts virtually never arise, and when they do they are hardly insurmountable.

The second problem is that the bill seeks to amend the Judicature Act 1908 to increase the number of Associate Judges of the High Court from six to nine. Leaving aside the fact that there are already seven associate judges sitting in the High Court, this provision seems to be pretty sensible, but this part is more significant in terms of what it does not do. The problem with this provision, and the entire bill, is that it does not even begin to address the underlying problems affecting the court system—those problems around court delays. The bill is nothing more than window dressing. It ignores the systemic problems that are plaguing the court system and plunging it into what seems to be a state of trying to swim in golden syrup. We know that public confidence in our court system is low, and it is little wonder. In my electorate in Wanganui the average waiting time for a High Court jury trial is around 383 days.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

Kia ora, Madam Assistant Speaker. Kia ora tātou te Whare. I was thinking about how best to open my speech on this bill, and I happened to raise the subject with a good friend of mine, a Mr Derek Fox, the Māori Party candidate for Ikaroa-Rāwhiti. He suggested a line used by Te Kooti, back in the 1860s. It went something like this: “Mā te ture anō te ture e aki.” Let the law look after the law. I was so impressed with that little comment from Mr Fox that I thought I would see whether I could get a double-up. So I called up another good friend of mine, Rāhui Kātene, the Māori Party candidate for Te Tai Tonga, who happens to be an excellent lawyer with very good connections right throughout the South Island and Wellington. She told me that Dame Sian Elias, when she was appointed Chief Justice, said: “One of the reasons I’m so optimistic about the future is because what happened at Waitangi in 1840 is so consciously founded on an expectation that justice will be achieved through law.” So given the quality of the contributions of my good friends Derek Fox and Rāhui Kātene, I am happy to say that it is those thoughts that have helped guide our consideration of this bill about the appointment and conduct of judges.

We take it for granted that the public should have confidence in the honesty and integrity of the judiciary, and in the impartiality, consistency, and fairness of their decisions. Yet in the first year of the operation of the Judicial Conduct Commissioner, I note that about 100 complaints were made against judges. Those complaints were of bias, sexism, rudeness, delays, incompetence, inappropriate remarks, and a failure to listen. Most were dismissed and none was referred to the Attorney-General for action.

I also note the comment that although Ministers of the Crown are supposed to be accountable to Parliament, judges are accountable only to the Judicial Conduct Commissioner and judicial panels for misconduct, which means that it is really important that those appeal authorities are functional, efficient, and open to public scrutiny. So although the Māori Party supports the appointment of a Deputy Judicial Conduct Commissioner to cover absences and possible conflicts of interest for the commissioner, I decided to get another view on the whole issue. While we were out door-knocking for the Māori Party in Hamilton last week—and I am happy to report to the House that the analysis of the door-knocking suggests that the Māori Party will be a shoo-in at the election—I decided to ask another good friend of mine, Angeline Greensill, Māori Party candidate for Hauraki-Waikato, what she thought about the appointment of a Deputy Judicial Conduct Commissioner.

She suggested that we should recommend people who have demonstrated an ability to uphold kaupapa and tikanga Māori in the justice system. She also suggested that we note Moana Jackson’s analysis in TheMāori and the Criminal Justice System: a new perspective—he whaipainga hou, where he states: “The background and experience of judges is confined by the ethno-centrism of their own heritage and the social attitudes which they address are determined by the values of the dominant culture.”

That report was written in 1988 so we thought we would see how things have changed over the last two decades, if at all. What we found was that in 1980 Māori were being convicted twice as often as Pākehā for crimes that receive a custodial sentence, and in 2006 Māori were still one-third more likely to receive a custodial sentence than Pākehā. We also found that although the total number of sentences handed down to Pākehā has remained basically unchanged since 1980, the number of sentences handed down to Māori has more than doubled from 20,000 in 1980 to 42,000 in 2006.

I take this opportunity to extend my heartfelt thanks to Derek Fox, Rāhui Kātene, and Angeline Greensill for the excellent quality of their contributions to this debate and I look forward to their being able to offer that knowledge and analysis to other legislation when they join us here in this House on a more permanent basis after the election.

Of course other factors that influence sentencing by judges are a critical variable in the judicial process, hence the need for scrupulous conduct on their part. Among the issues we want to raise is the need to identify judges whose sentences are so consistently harsh that they may be seen as criminalising youngsters without sufficient consideration for their rehabilitation, or judges who treat the underclass much more severely than they treat offenders from the upper class. Sometimes a judge’s conduct might not look too bad in a particular case, but shows a distinct pattern and bias when considered over a longer period. I will be asking the select committee to look into whether there should be room for complaints about conduct based upon a judge’s overall record and not just on specific decisions.

This legislation also proposes to allow the commissioner to take no further action if he or she feels it might be unjustified. Although we accept that proposal in the interests of honesty and integrity, we would also expect the commissioner to ensure equality and fairness to all parties involved in a complaint. The main issue for the Māori Party is that in whatever stage of the justice system our people may be involved, they get a fair, efficient, independent, and impartial hearing, and we know from the 2004 Law Commission report they are not currently getting that. Māori and Pasifika consistently tell us how hard it is to get basic information, how hard it is to get a decent lawyer, and how, if they get one, the lawyer costs too much, how some judges are to be avoided like the Black Plague, and how monocultural, unfriendly, and alienating the whole judicial system is.

Like everybody else, the Māori Party wants to see a decrease in the number of Māori arrested, convicted, and imprisoned through the criminal justice system. But we are also passionate about the pursuit of justice and the need for respect from the judiciary to Māori people and Māori issues. Someone once told me that if peace is not merely the absence of war but also the presence of justice, then we have no peace in Aotearoa because we sure ain’t got no frickin’ justice. We do not get justice by fiddling with existing laws, we get justice by reconsidering the very principles on which we base our laws, the way in which we make them, the way in which we enforce them, and the way in which we repeal them when we realise how stupid some of them are. It is in that spirit that we will be supporting this bill at its first reading. Kia ora, Madam Assistant Speaker.