Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this
I move, That the Judicial Matters Bill be now read a second time. This is an omnibus bill that amends the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, and also amends the Judicature Act 1908. The Justice and Electoral Committee has examined the bill and in May last year unanimously recommended that the bill be passed with one amendment.
During the first reading National expressed its opposition to the bill, and following the 2008 election we indicated that we would carefully scrutinise all reinstated legislation. I reviewed the need for the Judicial Matters Bill and was able to inform the select committee that the Government was prepared to support the legislation. Part 1 amends the Judicial Conduct Commissioner and Judicial Conduct Panel Act. Last year, before confirming our support for the bill, I met with the inaugural commissioner, Mr Ian Haynes, and he confirmed the need for these amendments. His successor, Sir David Gascoigne—like Mr Chauvel, a former partner of Minter Ellison—was appointed on 3 August 2009 on the recommendation of this House, and he, too, supports these amendments. I also met with members of the judiciary, who recognise that the office fulfils a valuable role, and in fact they are prepared to go so far as to say it enhances judicial independence. The Chief Justice, in association and in consultation with the President of the Court of Appeal and the Chief High Court Judge, provided a written submission to the select committee and that was generally supportive of the bill.
The Office of the Judicial Conduct Commissioner was established on 1 August 2005. The office provides the public with a transparent and accessible judicial complaints process. It allows a proper investigation of all complaints alleging judicial misconduct, while adhering to the principle of judicial independence. The complaints process compliments the principal forms of judicial accountability, such as conducting proceedings in public, giving reasons for judicial decisions, and allowing certain decisions to be subjected to appellate review.
In the 4½ years to 31 January 2010 the office received 530 complaints and has determined 400 of them. Some complaints that have yet to be determined await the finalisation of court proceedings. Ninety-four percent, or 374, of complaints have been dismissed. These were the sorts of complaints that were made because the complainant disagreed with the judge’s decision. In such circumstances the appropriate course of action is to appeal that decision. Fourteen complaints were withdrawn. Ten complaints were formally referred to the relevant head of bench and were resolved through the voluntary internal judicial complaints process. In 2005-06 a further two complaints were also referred to the head of bench, with the consent of the complainant, because the commissioner had a conflict of interest—the subject of the complaint would have been either a partner or a friend of the judge. To date there has been no recommendation for the appointment of a judicial conduct panel.
The amendments proposed by this part strengthen the Act’s primary objective of the prompt handling of judicial complaints. They are based on the previous commissioner’s recommendations in his annual reports to Parliament. Clauses 4 to 9 create the position of a Deputy Judicial Conduct Commissioner. Currently, the Act does not permit the commissioner to delegate the power to conduct a preliminary examination of a complaint, and this can cause difficulty where the commissioner has a conflict of interest, as I said a few minutes ago, or is unavailable.
The bill enables the appointment of a deputy commissioner to whom the commissioner can delegate his or her functions concerning a particular complaint. Where the deputy commissioner has a conflict of interest, he or she will be able to refer the complaint to the commissioner or the relevant head of bench. The Chief Justice’s submission expressed a preference for an ad hoc commissioner to be appointed to deal with a specific complaint where both the commissioner and the deputy commissioner had a conflict of interest. Although I acknowledge the concern that all complaints should be independently assessed, certainly experience to date suggests that the provision is unnecessary, but the Minister of Justice will monitor future developments to ensure that both the integrity of the complaints process and the independence of the judiciary will not be compromised. The deputy commissioner will be appointed in the same manner as the commissioner—that is, by the Governor-General on the recommendation of this House.
Clauses 10 to 13 clarify the commissioner’s powers to dispose of complaints. They enable the commissioner to dispose of a complaint if in all the circumstances further consideration of the complaint is simply not justified. This is appropriate where, for example, the complainant is satisfied following an explanation or apology from the judge. However, the bill clarifies that resolution of a complaint following an apology from the judge will not of itself justify disposal of the complaint. In such cases, there may still be a question of conduct that the commissioner may want to refer to the relevant head of bench, even if the complainant is satisfied with the particular outcome.
The Justice and Electoral Committee has recommended that an additional clause—clause 12A—be inserted to amend section 17(1) of the principal Act. This amendment will clarify that where the commissioner has exercised his or her power to take no further action on a complaint, the commissioner is not required to refer the complaint to the head of bench. Currently, the Act does not allow the commissioner to dismiss a complaint on the ground that further consideration of it would be unjustified.
Clauses 14 and 15 make necessary consequential amendments to the Coroners Act 2006 and the Official Information Act 1982, to recognise the new position of deputy commissioner. The schedules of the bill set out the necessary amendments to the schedules of the principal Act, and that includes updating a diagram that provides an overview for the Judicial Conduct Commissioner and the panel itself.
Part 2 amends the Judicature Act 1908 to increase the statutory limit on the number of Associate Judges of the High Court from six to nine, and that is the first increase since 1991. Since the office was established in 1989, associate judges have made a huge contribution to civil proceedings in the High Court. Their work has relieved pressure on the work of judges. Their jurisdiction includes dealing with applications for summary judgment, dealing with insolvency proceedings, and dealing with other types of civil proceedings. In the first reading debate, I asked whether simply increasing the number of associate judges was sufficient to address the court’s growing workload, and thanks, if I may say so, to your efforts, Mr Assistant Speaker Barker, many of those questions were addressed when the Judicature Amendment Act was passed in 2008 and the High Court Rules were amended. That has played a really great role in speeding up the conduct of civil proceedings.
Since then I have also met with the Associate Judges of the High Court in Auckland, and I have learnt that they are spending a great deal of their time on judicial settlement conferences and with pre-trial matters. I spoke to my colleagues about that, and in July 2009 the Minister of Justice and the Minister for Courts announced the introduction of a court-assisted mediation pilot in Auckland. That will go a long way towards helping the associate judges to deal with judicial settlement conferences.
I intend to put forward a Supplementary Order Paper in the Committee of the whole House stage to make a couple of other amendments. These amendments are designed to enhance public confidence in the administration of justice, just as the bill that we are dealing with this afternoon is designed to do, and to ensure that people have confidence that if they are dissatisfied with the way a case has been dealt with by a judge, there is an avenue that they can take to complain about that judge’s behaviour. I commend the bill to the House.
CHARLES CHAUVEL (Labour) Link to this
I wonder, Mr Assistant Speaker, whether I could follow the habit adopted by the previous speaker, Chris Finlayson, and briefly make a reference to you in your previous role. I was standing outside the entrance to Bowen House yesterday, looking across at our magnificent new Supreme Court, and to see your name emblazoned there as the Minister of Courts responsible for laying the foundation stone was something to be very proud of.
The aim of the Judicial Matters Bill is to amend the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, chiefly to achieve two things: first, to provide for the Office of the Deputy Judicial Conduct Commissioner; and, secondly, to provide that the commissioner, in addition to the existing remedies that he can grant under the legislation, may decide to take no further action on a complaint received by him. As we have heard, there is another purpose to the legislation. It will amend the Judicature Act to raise the maximum number of associate judges who may hold office at any particular time from six to nine.
As with much recent legislation in this sector, including the Child and Family Protection Bill that the House has just read a first time, the Judicial Matters Bill originated under the previous Labour-led Government. The history of the legislation is this. It was introduced on 25 June 2008, read a first time, referred to the Justice and Electoral Committee on 22 July 2008, and, as the bill was carried forward into the current Parliament, the committee reported on 18 May last year. Today the bill comes back to the House. Mr Finlayson adverted to what I might call the irony in the fact that the bill is now sponsored by him as a National member, because Hansard shows that National opposed the bill on its first reading.
It is interesting to read National’s objection, set out in his customary learned fashion by National’s then shadow Minister of Justice, Dr Richard Worth. Dr Worth thought that the bill would do nothing to improve judicial productivity, and, because in his view it would not improve productivity, it was undesirable. Of course, the reason that a Judicial Conduct Commissioner is constituted is not to speed the throughput by judges of their reasons for judgment; it is to maintain and, if possible, enhance public confidence in one of the three pillars of Government—the judicial branch. Accordingly, it is something to strengthen confidence in the administration of justice. I have to say that there is every reason to suppose that under the able stewardship of David Gascoigne, the present holder of the commissioner’s warrant, the office will fulfil its purpose.
The Judicial Conduct Commissioner and Judicial Conduct Panel Act established an office called the Judicial Conduct Commissioner, appointed by the Governor-General, after consultation with the Chief Justice, on the recommendation of the House. The principal Act sets out a process for the receipt and processing of all complaints against judges to be managed by the commissioner. When the Judicial Conduct Commissioner receives a complaint about a judge, he can dismiss it if it is outside his jurisdiction or if it is vexatious, he can pass the complaint to a judge superior in office to the one about whom the complaint was made, or he may appoint a Judicial Conduct Panel. The last course of action would obviously occur in only serious cases where there is a possibility of the dismissal of the judge. The membership of a conduct panel, determined by the Attorney-General after consultation with the Chief Justice, can consist of the following persons: two judges, or a judge and a retired judge, or a sitting or retired judge and a practising lawyer and a lay member.
The bill now before us would establish the new office of Deputy Judicial Conduct Commissioner, appointed by the Governor-General on the recommendation of this House after the Governor-General has received advice that the Attorney-General has consulted the Chief Justice on the recommendation. Generally, the function of the deputy commissioner is to carry out the functions of the commissioner in relation to complaints during the commissioner’s absence from office, or the incapacity of the commissioner, or in a vacancy in the office of the commissioner. It is probably sufficient for present purposes to say that the operation of the legislation to date has demonstrated the need for the deputy’s position, and the manner of appointment set out by the amendment seems entirely appropriate.
The bill also gives the commissioner the power to take no further action in respect of a complaint if the commissioner is satisfied that further consideration of the complaint would, in all the circumstances, be unjustified. This is in addition to the three current powers held by the commissioner, which I listed earlier. Again, experience with the legislation to date indicates that the amendment is highly desirable. It makes no sense for the commissioner not to have this power, and it was an omission in the original bill.
Section 26C of the Judicature Act 1908 provides that the Governor-General may from time to time, by warrant, appoint fit and proper persons to be Associate Judges of the High Court. Associate judges have a specialist and only civil jurisdiction, and they undertake a range of company and insolvency work. They have extensive jurisdiction in interlocutory matters, including summary judgment applications, and they have jurisdiction to assess damages. Some lawyers present in the House will remember, as part of their training, going up to the Masters of the High Court for bankruptcy or call-overs. Others, perhaps of a newer vintage, will remember only appearing before an associate judge. I am not deliberately not looking at Kate Wilkinson when I make that reference. But associate judges were, of course, formerly known as Masters of the High Court, and in those days they were appointed for fixed terms. I believe it was a 5-year term.
As the Attorney-General has pointed out, they did not have a role on the judicial committee, where he and I both had the privilege of appearing. From 20 May 2004, Masters of the High Court were renamed Associate Judges of the High Court and began to serve on the basis of permanent tenure. The maximum number of associate judges is six, although part-time associate judges may be appointed. Clause 17 increases the maximum permissible number of associate judges from six to nine.
As we have heard in the speech from the Attorney-General, the Justice and Electoral Committee received only one submission on this legislation. That submission was from the Chief Justice and it was generally supportive of the bill. As is customary, her submission was made following consultation with the heads of bench of the other superior courts: the President of the Court of Appeal and the Chief High Court Judge. In the end, only one amendment was recommended by the select committee. As the select committee notes in its report, new section 15A, inserted by clause 11, would allow the Judicial Conduct Commissioner to take no further action in respect of a complaint, on the grounds that further consideration of it would be unjustified. The select committee recommended inserting a new clause to clarify that where the commissioner has exercised his or her power to take no further action on a complaint, the commissioner is not required to refer the complaint to a head of bench. Because the Judicial Conduct Commissioner is not entitled to dismiss a complaint on the grounds that further consideration of it would be unjustified, without this amendment the commissioner would arguably be required to refer such complaints to the relevant head of bench. That clearly is a nonsensical situation.
In summary, Labour continues to support the amendment, including the change recommended by the select committee. We do not know why it has taken the Attorney-General since May last year, when the committee reported, to prevail on his Cabinet colleagues to allow him to bring the bill back to the House. Whatever the reasons for that delay, we are pleased to see its return and we look forward to its speedy enactment.
SIMON BRIDGES (National—Tauranga) Link to this
It is good to take a call on the Judicial Matters Bill. I want to talk briefly about the bill and then talk about some matters of principle.
The bill establishes the office of the Deputy Judicial Conduct Commissioner. It is surprising in a way that this was not done under the initial law that created the Judicial Conduct Commissioner. One can think of any manner of reasons why a commissioner may have to rescind his or her position. There may be a conflict of interest or, at least, a perceived one. The legal community is relatively small. Any lawyer who has been in a big firm will have certainly worked with and amongst lawyers who have gone on to be judges at all sorts of levels, and will undoubtedly have many friends who are lawyers—probably a few enemies as well, but certainly friends. Perceived conflicts can arise, so a deputy is a necessary component of the system. Of course, there are other reasons: the commissioner might be absent, overseas, or incapacitated. My recollection is that there have been situations where that has arisen—certainly, with the commissioner being overseas for periods of time. So it is welcome that we are doing this, and it is timely.
This bill increases the number of Associate Judges of the High Court from six to nine—at least, potentially. I do not know whether those positions have to be filled, but there is now scope for nine. The position of Associate Judge of the High Court is an important one. In many ways these judges are unsung heroes, who push a large volume of commercial and civil work through our courts. The list before an associate judge can be like a supermarket list, with many lawyers, often some lay litigants, and the like. The associate judges do an invaluable job not just for the court system but for our commercial community to ensure that business in this country functions.
I certainly have some fond, and not so fond, memories of appearing before masters as a young lawyer. My first ever appearance in court was before Master Anne Gambrill, a great trailblazer for female lawyers and judges. In the firm I was in, I remember that a lawyer slightly older than me could not be bothered going up to court. I do not know what colour the shirt was that I was wearing, but we had a policy at the time that we had to have a white shirt to go to court. I went to Hugh Wright’s and I bought a white shirt for about $29.99, and I had my first court appearance. I shakily got up and read to Master Anne Gambrill something like: “May it please the court, the parties by consent seek an adjournment.”, and I sat down. Fortunately she did not ask me any questions.
Hon Steve ChadwickIt was. She was good to me, and I recall appearing before her many times after that, when I got to say a bit more than I did that first time when I read out a sentence or two.
It is good that we are doing this. Although this bill may, in some ways, seem a bit dry and—it is not quite the word I am looking for—minor, behind it are some fundamental principles that are prerequisites for the rule of law in this country and, more than that, for liberal democracy and a functioning business community and economy. Behind all this is an independent judiciary where we have the rule of law, not the rule of men—or women for that matter, I say in order to save myself quickly. Where we do not have that independence, and we have people simply working to their own standards, democratic values and actually business values of open and fair conduct are threatened. We see that in a number of States, where we cannot rely on any part of the Government, and we cannot rely on anyone’s word. There is no ability to rely on food standards, for example, or any kind of commercial practice.
I have digressed, but I come back to the bill. An independent judiciary that has a watchdog in the form of a Judicial Conduct Commissioner is an important pillar of both our business community, which is so important to us, and our liberal democracy. I commend this bill to the House.
Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this
It is always a pleasure to follow the honourable member Simon Bridges, especially when we hear those stories about his youthful appearances in court.
Hon LIANNE DALZIEL Link to this
He obviously got off lightly. It might have been a skill he was well versed in at the time, but he has not quite managed to translate it to this environment. He is getting there.
Of course Labour supports the Judicial Matters Bill; it was a bill that was introduced when we were in Government, on 25 June 2008. I think the member who moved it on behalf of the Attorney-General was our Associate Minister of Justice at the time, the Hon Clayton Cosgrove—an excellent member. He did a very fine job of presenting the bill and taking the House through its provisions.
The bill is not extensive. It covers three particular areas. It establishes the office of the Deputy Judicial Conduct Commissioner. It allows the Judicial Conduct Commissioner to decide to take no further action in respect of a complaint, and it increases the statutory maximum number of Associate Judges of the High Court from six to nine. It is relatively straightforward legislation.
The Justice and Electoral Committee managed to report this bill back to the House on 18 May last year, so the question I have for the next Government speaker is why it has taken the Government so long to deal with the bill, given that it makes three relatively small adjustments to the principal legislation. Then the question is why on earth it has taken so long for it to come up on the Order Paper. I think I know the answer. Do members know who the Opposition spokesperson on justice was at the time that this bill was introduced?
Hon LIANNE DALZIEL Link to this
It was Richard Worth—Dr Richard Worth. He was not Dr Richard Worth when he first became the then Opposition spokesperson on justice. He actually did his PhD while he was here as a member of Parliament. Well, he had time on his hands, obviously.
The next point I will make, I think, says a lot about this individual. Members know that we should play the ball rather than the player. Well, after Clayton Cosgrove gave an excellent speech on behalf of Michael Cullen, who was the then Attorney-General, Richard Worth made the following comment. He said he thought that Clayton Cosgrove was very competent in his field, but that certainly that was not his field. What an arrogant thing that was for him to say. He said: “I think it reflects a tragedy in the present Labour-led Government that those who have been put in positions of responsibility in respect of judicial roles do not have any legal training or any sense of what is appropriate or what is not appropriate.” What a funny thing that was for that gentleman to say. He went on to say: “It is not a particular criticism of the member—he has just been put into a position that is unenviable—but, sadly, it also applies to the Attorney-General. As others may well know, we have not had a situation in the history of New Zealand where an Attorney-General without legal qualification has occupied that particular responsibility for so long.”
Well, I just think that that is arrogant nonsense. I think that was actually behind the current Government’s position on this bill. It actually thought that if it left the bill languishing for long enough on the Order Paper after it had come back from the select committee, we might forget what the then Opposition spokesperson on justice had said. Of course, National opposed the bill.
Hon LIANNE DALZIEL Link to this
National opposed the bill when it was introduced. Dr Richard Worth had some interesting things to say about that. Essentially, he felt that there was not sufficient evidence that judges’ productivity would be improved by this bill. He said the system did not appear to be robust enough when a Judicial Conduct Commissioner could dismiss 72 complaints against judges without referring them to the bench.
I just think that sometimes one should be a little cautious about the positions one adopts in Opposition, because it may well be that it is not the position that one would want to adopt in Government. As the Opposition spokesperson on justice, I have tried to take the line pretty clearly on this side of the House that when the Government is doing something that we agree with—if it makes sense—then I will say so. I will work with the Government to achieve the end that we have in mind if there is mutuality. On issues like domestic violence, which we are debating now, we did not oppose the bill; we support the bill. It is a part of a bill that, in fact, we introduced ourselves. I have worked with the Minister of Commerce, who is also the Minister of Justice, on issues when I was the Minister of Commerce and he was the Opposition spokesperson. There has been a little bit of that coming back the other way, but not as much as one would have hoped to see.
In the justice area—the drivers of crime stuff—again there is disappointment on our side that the expression of our desire to work with the Government on a collaborative basis has been pretty much put on hold. I think that is unfortunate. I think the problem that the Government has had with this bill was that an Opposition spokesperson who had the arrogance to say that one of my very fine colleagues did not have any sense of what is appropriate or not appropriate was leading the Government’s position on this when he was in Opposition. I just sound a little note of caution there to various members of the House.
Obviously, the proposals within this bill are very sensible indeed. The main reason I think that they are sensible is that the work of the Judicial Conduct Commissioner is absolutely fundamental to maintaining confidence in our justice system. With public confidence in the administration of justice comes the capacity for the justice system to respond to the needs of the community that it serves, in a much more effective way. If people feel that there is no capacity to make a complaint about judicial conduct, issues are then raised in the public arena that undermine confidence. We have seen some examples of those over recent years. I think that the Judicial Conduct Commissioner is doing an excellent job, and to have a Deputy Judicial Conduct Commissioner is an obvious extension of that work, and will enable that work to be undertaken more effectively and more efficiently.
The fact that there are a number of complaints that require no further action is, I think, a positive—I actually think that that is a positive. It is a very sensible approach to have a provision written into the law to allow the Judicial Conduct Commissioner to decide to take no further action in respect of a complaint. Again, the numbers speak for themselves in terms of the complaints that have been received and what is required to be actioned.
There is an increase in the statutory maximum number of Associate Judges of the High Court from six to nine. I supported the establishment of the position of associate judge—I think they used to be called Masters of the High Court. I was certainly very supportive of the change of title to associate judge, because I think that better reflects the role. It probably reflects a better gender balance, too, than the word “master” might have reflected. I also think that when we look at the ranks of our High Court judges who have been pulled from the ranks of the masters in the past, we see the expression “associate judge” suggests the pathway that was not there. I think Sir John Hansen was the first master to be appointed—
Hon LIANNE DALZIEL Link to this
And then Justice Venning after that. With that changing of the name to associate judge, it really does give an indication of progression. One of the reasons for having conflict of interest provisions written into the law was to enable the employment of part-time judges, and I think that has been a useful move, as well. I commend the bill to the House.
Dr KENNEDY GRAHAM (Green) Link to this
I rise to express the support of the Green Party for the Judicial Matters Bill. The principal objectives of the bill have already been spelt out, and there is no need for me to reiterate them. I simply say that we are prepared to support them. In doing so, I would like to advance two comments. The first is that try as I might, I have to confess that I am struggling in my own way—and it has been picked up by colleagues in the House—to comprehend the thread of logic and consistency on the part of the present Government in its approach to this issue.
When I look back to the first reading, I see that it is not so much the thought processes of the departed Dr Worth that leap out at me; it is the thought processes of the current Attorney-General, for whom I have a very high regard indeed. I look forward to having it explained, by him or his colleagues. I will quote from him. Back in July 2008 he said: “Of course, judges can be rude, grumpy, or discourteous.”, and indeed he gave some very colourful examples thereof. He then continued: “In many cases one can hardly blame them, given the quality of submissions they have to hear from lawyers. But are we”, he asks, “such a weak-kneed, sissy society that if a judge barks at us we have to run off to some judicial complaints body? I do not think so.” Well, today it is clear that he does think so. He continued: “We do not see any need for a deputy commissioner. In fact, we do not see any need for a commissioner.” But that is enough on that point.
He later said the following: “This bill will not be supported by the National Party. The material dealing with the Deputy Judicial Conduct Commissioner is as misconceived as the contents of the substantive legislation. Secondly, although National has great respect for associate judges and the work they do, simply increasing their number is not the answer. … Of course, ”, he says, “this Government”, meaning the previous Government, “not only does not know the answers; it is so hopeless that it does not even know which questions to ask.” Well, with great respect, it is clear that the Attorney-General now believes that the previous Government was asking the correct questions and providing the correct answers, which are now being adopted by this Government. I congratulate it on doing so. All it has to do now is to acknowledge the inconsistency of its previous position.
The second point I wanted to explore pertains to the proposed Supplementary Order Paper. It intends to provide three amendments, and the Attorney-General identified them briefly. It is not my purpose to explore that paper in detail today, because I understand that it will come before us in the Committee stage, but I would like to raise one aspect for advance consideration by my colleagues. It pertains to the proposed second amendment, which would authorise the payment of higher duties allowances to High Court judges serving in the Court of Appeal, and authorise allowances paid previously.
The explanatory note states that this administrative practice—that is, High Court judges serving in the Court of Appeal and receiving higher allowances as a result—was agreed in 1998 by the then Chief Justice and the then Acting Secretary for Justice. In a 2007 judgment, the High Court considered that the arrangement needed to “rest on a more secure constitutional foundation.”, which is a large hammer with which to be approaching the nut. The explanatory note states that “The proposed amendment will provide that foundation by establishing in legislation the formulation for that higher duties allowance. The amendment also confirms that all allowances paid previously were authorised and valid.” I have raised this matter, I have been assured that there will be a more detailed explanation forthcoming, and I look forward to that happening in a constructive spirit; it is not my intent to create problems where none exist. But I do look forward to the “more secure constitutional foundation” that will authorise and validate previously paid allowances. Thank you.
JOHN BOSCAWEN (ACT) Link to this
I do not wish to speak a great deal on the Judicial Matters Bill, but I make it quite clear that the ACT Party will be supporting its passage through the House. One question that we would ask relates to the proposal contained in the bill to increase the number of Associate Judges of the High Court from six to nine. Of course, associate judges used to be Masters of the High Court. Masters or—now—associate judges are responsible for doing a lot of procedural issues. They look at cases coming up, schedule hearings, deal with timetabling, and issue orders in respect of cases before they come before a High Court judge. We have spoken a lot in the last 10 days about the importance of economic growth and giving the country the turbocharger that it needs. It seems to the ACT Party that rather than increasing the number of associate judges from six to nine we should perhaps be looking at 12 or 15, or an even bigger number. We should be doing everything we can to oil the wheels of justice to ensure there is speedy access to justice, and that parties that want to have their cases adjudicated can do so quickly and efficiently. The ACT Party certainly believes that that would add to the economic growth of the country. The ACT Party will be supporting this bill. Thank you.
RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this
One of the legacies of being a politician who was once a lawyer, like all of those who have spoken so far, is the unique perspective we bring to the debate on the separation of powers. I will not give any of my work experiences, unlike Mr Bridges, but I will focus on the boundaries between the executive, the judiciary, and the legislature and how they are an essential hallmark of our constitutional system.
It is fundamental to this framework that the judiciary be publicly accountable for the administration of law while the sovereignty of Parliament should remain intact. In the Judicial Matters Bill we bring the two together. The aim of the bill is to amend the current legislation to enable the appointment of a Deputy Judicial Conduct Commissioner who can perform the functions of the Judicial Conduct Commissioner when the commissioner has a conflict of interest, is absent from the office, or is incapacitated. Due and proper judicial conduct is about maintaining judicial independence and integrity, and this amendment does exactly that. So we are not surprised that the New Zealand Bar Association provided general support for the bill, because it aims at maintaining and enhancing public confidence in the judiciary.
The association was particularly supportive of the provisions that result in a more transparent process to deal with complaints about the conduct of judges. Before 2004, if anyone complained about the conduct of a judge it was referred to that judge’s Chief Judge, who would take such action as the Chief Judge thought fit. It was an informal procedure without any statutory base. The old way was thought to be out of touch with the modern age, so an independent investigation process was set up in 2004. Today’s amendments emerged from that process.
I make a clear distinction between those who criticise the utterances of judges as coming from the school of judicial activism, and the absolute right of judges to express an independent view. The House will be well aware that over the last decade the judiciary has come under attack from successive administrations. The first swipe came from Margaret Wilson’s description of Dame Sian Elias as the judges’ “shop steward”. The second was a challenge by the then new Attorney-General, Michael Cullen, against judicial activism. Indeed, it has become so commonplace for politicians to criticise the judiciary that retired Māori Land Court judge Heta Hingston concluded that “attacks on the judiciary have become par for the course since the 2003 foreshore and seabed Court of Appeal.”
The point I raise is that we must be careful to ensure that when considering complaints against the judiciary we consider them based on the genuine assessment of inadequate or inappropriate conduct, rather than simply because we disagree with the things they say. Judges have been criticised for misconduct, and so they should be. It is only right and proper that inappropriate behaviour should be open to scrutiny, but it should not be a free-for-all. The Principal Family Court Judge, Peter Boshier, in a speech published in Butterworth’sFamily Law Journal in 1999, raised an interesting question that tests this out further. He said: “After all, what would the public rather have: a statute firmly set in the social mores of the 1970s or a statute that lives and evolves within our society? Law does not exist in a vacuum, but is an evolutionary process. Development of the law is dependent on counsel being prepared to push boundaries, and challenge judges to find ways to flesh the bones of the Act and do justice to all parties.”
I believe we need more judicial activism, not less, and that we should welcome the opportunity for the law to evolve in ways that meet the needs of our changing society. To do this we need judges who have demonstrated integrity. However, it is one thing to act with independence and integrity; it is quite another to act in ways that could serve to threaten the very foundations of justice. The Māori Party believes there must be some mechanism established to identify judges whose sentences are so consistently harsh that they may be seen as criminalising youngsters without sufficient consideration for their rehabilitation. Anecdotally, too, we have all been told the stories of judges who treat the so-called underclass much more severely than they treat offenders from the overclass. Sometimes conduct that does not seem overtly serious in a particular case assumes the appearance of bias when it is so consistent as to demonstrate a pattern. Perhaps, then, there should be room for complaints about conduct based upon a judge’s overall record.
The role, then, of the Judicial Conduct Commissioner is critical. The commissioner, in carrying out an investigation of all complaints against judges, is a vital means of upholding the dignity and the integrity of the role of the judiciary. Such a role is a critical safeguard to ensure that the principles of judicial independence are upheld and valued by all. Of course, we recognise that within these amendments there is now the possibility that the Judicial Conduct Commissioner, in addition to existing remedies, may decide to take no further action on a complaint.
Another feature of this bill is that it makes the necessary amendments to increase the size of the judiciary across a number of levels. The Judicature Act 1908 is amended to raise the maximum number of Associate Judges of the High Court who may hold office at any particular time from six to nine. There are other amendments that increase the number of District Court Judges from 140 to 156, and that increase the number of Court of Appeal Judges from nine to 10.
We note, too, the very wise advice of the Wellington Women Lawyers Association. It has recommended that the bill be amended to provide for permanent part-time appointments, with a provision that a part-time judge may be appointed on a full-time basis at a later stage on a vacancy arising. Its recommendation was that the bill should enable an opportunity for an application to work part-time, on the proviso that, following advice from the relevant head of bench that the approval will not unduly interfere with the ability of the court to discharge its obligations in an orderly and expeditious way, there should be no impediments to introducing such an approach. I will be interested to hear back from the Attorney-General specifically about these proposals for part-time provision to enable a more flexible and supportive workplace environment.
Due access to justice, the right to impartial and equitable treatment from the law, and the commitment to fairness are what drives us in taking that extra look at this legislation. We are satisfied with what we see at this reading and we are pleased to add our support. Kia ora.
PAUL QUINN (National) Link to this
Thank you, Mr Deputy Speaker, for inviting me to address the House on the Judicial Matters Bill. Although a number of people have referred to it as a bit of a clean-up bill—an omnibus bill just to tidy up things—it supports the work of the Judicial Conduct Commissioner.
At the start of my speech will I pick up on the invitation offered to this side of the House by the previous Labour speaker, Lianne Dalziel, to explain why this bill had taken so long, as she described it, to return to this House. It may have passed the members on the other side by or gone above their heads, but, in fact, this Government in its first year in office has been focused on a number of very urgent issues that needed to be addressed, starting with the mess that the previous administration left this country in when we took office. It was very important that we spent time addressing the urgent matters that needed addressing. We had a full work programme. In fact, our programme has been so full that in 2009 we passed in excess of 70 Acts, which is almost a record, as I understand it. A number of those Acts were in the area of law and order, along with others in a number of other areas. So it is pretty clear why it has taken a bit longer to reach this second reading. It was simply because we had a number of urgent issues to address, which we have done very successfully, as the Prime Minister traversed in his speech on Tuesday. He spoke of actions that everyone on this side of the House is very proud of. That is why it has taken so long; one does not have to be Einstein to work that out.
But of much more seriousness, I was disappointed in Ms Dalziel’s contribution. I suggest that the next time she wants to comment on people in this House she first look in the mirror. I suggest that she perhaps reflect on the time when she lost her ministerial warrant and the reasons for which she did so. She should stop looking accusingly at members on this side of the House. It is time that she stood in front of the mirror, looked at her own behaviour, and asked herself why she was sacked as a Minister of the Crown.
Having set that matter aside, I will briefly outline for the House the main purposes of this bill. Firstly, as others have referred to, it establishes the Office of the Deputy Judicial Conduct Commissioner. Clearly this change has been brought about because, whether we like it or not, the experienced law fraternity are closely linked and well known to each other. So when people feel that they need to lay a complaint, there may be an occasion where a complaint is laid against, for instance, a firm such as Minter Ellison, in which the current commissioner, Sir David Gascoigne, is a partner. It would be unwise for him to investigate a complaint against that firm, because although he may not have any direct conflict, the mere perception of a conflict needs to be addressed in that process. That is the first critical issue to be addressed.
The second purpose is to provide the deputy commissioner with the powers to run his or her office more efficiently so that he or she does not have to deal with a complaint when really there is no need to proceed with it. With those few remarks, it gives me great pleasure to support this bill at its second reading.
JACINDA ARDERN (Labour) Link to this
It is my pleasure to follow on from my colleague on the Justice and Electoral Committee Paul Quinn and also speak to the Judicial Matters Bill. We were both members of the select committee that considered this bill. I acknowledge that the bill was considered in a very brief amount of time, primarily because it was perceived within the select committee to be reasonably uncontroversial, and there was only one submission.
Basically, I want to come back to the first principles, which Paul Quinn touched on briefly in his contribution. The goal of this omnibus legislation, in conjunction with the primary legislation, was, I believe, to enhance public confidence in the judiciary. I think that is quite critical, just as I believe that it is critical that people have faith in the politicians they democratically elect. The goal was not only to enhance public confidence in the judiciary but to ensure that there were adequate resources to meet the growing workload of the judiciary. I do not think any of us can deny that that is the case.
We received only one submission on the Judicial Matters Bill, and that was from Chief Justice Dame Sian Elias, who made a submission after consultation with the President of the Court of Appeal and the Chief High Court Judge. They were in support of the bill and made a few short suggestions to the bill itself.
I will touch on the bill as it was reported back to the House from the Justice and Electoral Committee. We made one small recommendation. We recommended the insertion of clause 12A, which amends section 17(1) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act. That was to clarify that where the commissioner has exercised his or her power to take no further action on a complaint, the commissioner is not required to then refer that complaint back to the head of bench. That is an acknowledgment that although what is key in all of this is that we have this system in place, by the very nature of our justice system people may use this complaints process to complain about a judgment, as opposed to complaining about the conduct of the judge presiding over the court at that time. We were mindful that a balance needs to be struck, and that although this mechanism is key and important, we do not wish it to be unnecessarily bureaucratic.
I will come back to a few of the figures about how frequently this process has been used since its introduction in, I believe, 2004. But before I do that, I want to return to some comments that have been made by my colleagues in this House, not just this afternoon but when this bill was first introduced. In fact, I want to go all the way back to the first reading of this bill, in July 2008. A member of the National Party stated clearly and categorically: “This bill will not be supported by the National Party. The material dealing with the Deputy Judicial Conduct Commissioner is as misconceived as the contents of the substantive legislation.” Not only the amendment but the whole notion of this process, this backstop measure, this measure of confidence was something National stood against. “Secondly, although National has great respect for associate judges and the work they do, simply increasing their number is not the answer. Reforming the civil justice system is the answer. Of course, this Government not only does not know the answers; it is so hopeless that it does not even know which questions to ask.”
I have a question to ask. If the key to everything, including deeming the Judicial Matters Bill to be unnecessary, was to reform the civil justice system, why have we not seen that bill come before the House yet? Perhaps it is in the work programme, and is to be introduced some time in the future. Instead, National decided to support the Judicial Matters Bill. Just for clarity’s sake, can I say was reading from Chris Finlayson’s first reading speech. Those were his comments. He clearly and categorically spoke against this bill. I would be very interested to hear from him further down the track as to why he has changed his mind on this bill. I would be genuinely interested.
My colleague is right; we did not get that in his substantive speech, and I would be interested to hear further from him. In fact, I have a couple of follow-on questions for him, which I will throw out now while I am reviewing his words. He also said that he saw this as “an unwarranted attack on judicial independence and that it would encourage ineffective and stupid complaints—in fact, that it would encourage a culture of complaints.” So we should not have any ombudsmen in this country, because then people might just complain to them!
I added the ombudsmen remark, but his final statement, which I will read again, was: “in fact, that it would encourage a culture of complaints”. He went on to say: “And colleagues of mine, like Judith Collins, who spoke against the legislation were indeed prophetic, because it has basically been a waste of time. We were right to oppose this legislation in 2004, and we are right to oppose this amendment bill, the Judicial Matters Bill.” We have, of course, had a select committee process. That may have been the time to withdraw it. As a Minister, perhaps he could have withdrawn the bill from the Order Paper. It has not happened. I would be interested to know why, given the strength of feeling coming through in his speech.
It does appear, as my colleague says, to be a flip-flop, or perhaps—I want to give the Minister the benefit of the doubt—he has had new information before him that has substantively changed his mind. I think the House would benefit from hearing that information.
He did have one specific point on the deputy commissioner: “We do not see any need for a deputy commissioner. In fact, we do not see any need for a commissioner. I noted from the commissioner’s report that it was said it would be helpful to have a deputy because of conflict of interest, but Dr Worth has dealt with that. This person does not need a deputy, because the prospect of conflict of interest is minimal.” I am sorry, but in my mind that is not good enough. Saying that the prospect of conflict of interest is minimal, and therefore there is no need for a commissioner at all, again undermines that first principle of ensuring that we can all have faith in our judiciary.
The fact that we are a small country is consistently raised when we talk about the criminal justice system and our judiciary generally in New Zealand. It was the argument made by some people in claiming that we should maintain the Privy Council—that we were too small to maintain our own truly independent judiciary, and we could not do it on our own. Those were the kinds of arguments that were made, probably by people who considered themselves to be royalists. But this provision is the kind of thing we put in place to pay heed to that; to acknowledge that, yes, we are a small country, but we do have the depth, the knowledge, and the experience in our judiciary to be entirely independent, but we should put in safety measures as well so that we can ensure that the public has faith and trust in our system.
I do not care if there are two, three, or no cases of a conflict of interest for a commissioner at any one time; the amount is significant enough in my mind to require us to have the right people in place to deal with those cases, and if that includes having a deputy commissioner to assist, then I think that is something worth doing in order to maintain faith in the system. I want to reflect on the fact that in 2009 the Judicial Conduct Commissioner reported that the number of complaints about judges dealt with in the year ended July had increased from 132 to 189. According to Chris Finlayson, they exist only because there is an ability to complain—that is the only reason there are complaints to be heard. Those complaints included 139 new complaints, and 50 carried over from the previous year—so they were obviously worth consideration. The number of complaints against High Court judges increased from 19 to 44, and those against Family Court judges from 13 to 27. We have to acknowledge that some of those would have been frivolous, but four complaints were significant enough to be referred to the head of bench to deal with, compared with two in the previous year. The grounds for some of those were rudeness, unfairness, inappropriate remarks, failure to listen, bias, and predetermination. I think those are significant enough grounds to ensure that we at least have a mechanism in place to consider those complaints on behalf of New Zealanders.
I briefly mention that in December last year we had the first case of a judge going before the conduct panel, in relation to a financial relationship. Details had emerged that the judge had presided over a case involving a Queen’s Counsel to whom he owed $250,000. That is the kind of situation where it is important that we have this mechanism in place, so that if there is a clear conflict of interest that has not been dealt with appropriately, it can be dealt with.
I commend this bill to the House.
KANWALJIT SINGH BAKSHI (National) Link to this
I stand to support the Judicial Matters Bill. The purpose of the bill is to introduce measures aimed at maintaining and enhancing public confidence in the judicial system. The principal provision is to amend the Judicial Conduct Commissioner, the Judicial Conduct Panel Act 2004, and the Judicature Act 1908; to increase the statutory limit on the number of Associate Judges of the High Court at any particular time from six to nine; and to allow for the proper investigation of matters that may lead to the removal of a judge.
The Office of the Judicial Conduct Commissioner provides the public with a transparent and accessible judicial complaints process. This bill establishes the new Office of the Deputy Judicial Conduct Commissioner, to be appointed by the Governor-General after consultation with the Chief Justice of New Zealand on a recommended appointment. The deputy commissioner must deal with complaints in respect of which the commissioner has decided he or she has a conflict of interest. The bill covers complaints about judges of the Supreme Court, the Court of Appeal, the High Court, Associate Judges of the High Court, and coroners. This bill gives the commissioner power to take no further action in respect of a complaint if the complaint is deemed unjustified. The reason could be as follows: the complaint has been resolved to the complainant’s satisfaction; the complaint, although genuine and made in good faith, is based on misunderstanding; or a lack of enough information into the conduct of a person to form an opinion. The Judicial Conduct Commissioner’s office receives approximately 100 complaints a year. Of those, approximately 80 percent are dismissed. In the commissioner’s annual report to Parliament, he noted that the most common reason for dismissing a complaint has been that the complaint seems to arise from the complainant’s disagreement with the judge’s decision, rather than from the judge’s conduct. To conclude, I say that this bill will increase the limit on the number of Associate Judges of the High Court, which in turn will improve the judicial system. I commend this bill to the House.
RAYMOND HUO (Labour) Link to this
The Judicial Matters Bill matters in various aspects, including providing for transparency, public confidence, and an important constitutional process. The bill passed its first reading in June 2008 under the previous Labour Government, and it has been brought to its second reading by the current National Government. The bill was introduced to establish a statutory process for the receipt of a complaint about a judge’s conduct and for the investigation of complaints that would raise a question of removing a judge from office. The bill addresses existing risks arising from the lack of procedure to support a decision to remove a judge, and from the public perception of a lack of transparency in the judicial complaints process.
Public confidence in the judiciary and judicial independence are fundamental in a democracy. Fortunately, there have been few complaints so far, and the removal of a judge has never been necessary in this country. As the Hon Clayton Cosgrove pointed out when introducing the bill in June 2008, the Office of the Judicial Conduct Commissioner receives approximately 100 complaints a year. Of those, approximately 80 percent are dismissed. In the Judicial Conduct Commissioner’s annual report to Parliament, he noted that the most common reason for dismissing a complaint has been that it stems from a complainant’s disagreement with the judge’s decision, rather than from the judge’s conduct. In the first 2 years, four complaints were referred to the relevant head of bench and were resolved through the voluntary internal judicial complaints process. So far, the commissioner has not made any recommendation for the appointment of a judicial conduct panel.
However, it is worth noting that complaints about judges are increasing, although most are dismissed. The New Zealand Press Association reported on 12 October 2009 that the Judicial Conduct Commissioner said in his annual report that the number of complaints he dealt with in the year ended 31 July 2009 had increased from 132 to 189. This included 139 new complaints and 50 complaints carried over from the previous year, when 101 new complaints were laid. The number of complaints against High Court judges had increased from 19 to 44, and complaints against Family Court judges from 13 to 27. Complaints against District Court judges fell from 50 to 48 of the 189 complaints in that year. One hundred and thirteen complaints were dismissed, compared with the 80 complaints dismissed in the previous year. This bill takes the precautionary step of setting processes out in law, so that the rules will be clear if a situation ever arises.
In New Zealand law, a senior judge can be removed from office by the Governor-General following an address from Parliament. This bill does not change that. It does not change the grounds on which a judge could be removed. Instead, it ensures that such a difficult decision will be well supported. In addition, the bill incorporates measures relating to judicial immunity, part-time service for judges, the principal judges of the Family Court and Youth Court, and other administrative matters.
The bill is an omnibus bill, which amends the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 and section 26C(2) of the Judicature Act 1908. The bill proposes to “establish the Office of the Deputy Judicial Conduct Commissioner”, “allow the Judicial Conduct Commissioner to decide to take no further action in respect of a complaint”, and “increase the statutory maximum number of Associate Judges of the High Court from six to nine.” As the Justice and Electoral Committee report of 18 May 2009 pointed out, the amendments to the Judicial Conduct Commissioner and Judicial Conduct Panel Act are in part the result of recommendations by the Judicial Conduct Commissioner. The Judicial Conduct Commissioner considered that these amendments will better achieve the stated purpose of the Judicial Conduct Commissioner and Judicial Conduct Panel Act.
This bill is about ensuring there is public confidence in the system. It is about ensuring there is transparency, it is about an important constitutional process, and is a prudent reinforcement of our constitutional principles. I commend the bill to the House.
HEKIA PARATA (National) Link to this
Tēnā koe, e Te Mana Whakawā. Nā te mea koi nei te wā tuatahi ka whai wāhi ahau ki te mihi ki te Whare, ka tū ki te mihi ki ngā kaitōrangapū o tēnā rōpū, o tēnā rōpū, o tēnā rōpū kua hoki pai mai nei ki te mahi i tēnei tau, me te tūmanako kia haere pai katoa ngā mahi, kia oti pai ngā mahi o tēnei Whare. Nā reira, huri noa i tō tātou Whare, tēnā koutou, tēnā koutou, kia ora tātou katoa.
[Greetings to you, Mr Deputy Speaker. As this is the first opportunity for me to acknowledge the House, I rise and extend greetings to political colleagues from each party who have returned to work this year refreshed. The hope is that everything goes well in the job and that the work of this House is completed well. So, greetings to each of you, and to us all throughout our House.]
I will take just a couple of minutes for a call on the Judicial Matters Bill. I have become a new member of the Justice and Electoral Committee. I am looking forward to learning about all the work of this committee and to participating in the development and the processing of further legislation.
I am not a lawyer. I start by establishing what I am not in order to then introduce my support for this bill. I am not a lawyer; I am not a member of that august body of professionals who support the institution of this country. My colleague across the way, Steve Chadwick, knows intimately that there are far too many of that profession. I share an interest with one of the previous speakers from the other side of the House in maintaining public confidence not only in that profession but also in ours here in the House. It is important that we pass bills such as these that maintain transparency, public confidence, trust, and integrity.
It is important in a democracy that we have constitutional elements and institutions that we can rely on so that we order our society in a trustful way and people who participate in these processes and these institutions can repose their confidence in them. As my colleague Rahui Katene also mentioned, sometimes on the surface something looks insignificant but it can develop somewhat more serious aspects to it. Therefore, it is important that we have systems, procedures, and institutions that allow us to dig deeper into what may at first glance not require very much attention at all.
As my colleagues have previously remarked, this bill provides for such institutional integrity and processes as ensuring that where members of the public and members of the profession do not feel they have been accorded the appropriate fairness and integrity that they are entitled to expect, they have the opportunity to take their complaints to an institution or to go through a process that will allow them to be heard.
The role of Parliament is to ensure not only that its own processes are well regarded and transparent, and enjoy public confidence and trust, but also that other institutions that similarly contribute to the constitutional well-being and health of our society enjoy those kinds of systems and protections. This bill contributes to that.
I do not propose to rehearse the particular detail that is set out in this bill. That has been well covered by speakers on all sides of the House. It remains only for me to say that I too commend this bill to the House. Kia ora tātou.