Hon RICK BARKER (Minister for Courts) Link to this
I move, That the Judicial Retirement Age Bill be now read a first time. At the appropriate time I intend to move that the bill be referred to the Justice and Electoral Committee for consideration.
This bill proposes to raise the retirement age for all judges of all courts, associate judges of the High Court, coroners, and community magistrates from 68 to 70 years. Judicial retirement age has received little legislative attention since it was first introduced in 1903, when the Supreme Court Judges Act introduced a mandatory retirement age of 72 for judges of the higher courts. In 1908 the Judicature Act consolidated various Acts relating to the higher courts, including the Supreme Court Judges Act, and the retirement age of 72 was retained. The statutory retirement age for higher court judges has since been provided for by section 13 of the Judicature Act.
In 1979 the report of the Royal Commission on the Courts noted that 72 years was out of line with the generally accepted retirement age for most public offices, the civil service—where people at that time were required to retire at 60—and the business community. The commission recommended that the retirement age for all judges be reduced to 65. In 1981 the retirement age for higher court judges was reduced from 72 to 68, to bring the retirement age into line with that for judges of other courts such as the District Court, where it had been set at 68 since 1924.
A compulsory retirement age is desirable for a number of reasons. The first reason is that of judicial independence. Judicial independence is fundamental to the operation of a democratic society. Judges need to be able to act independently. They must be able to carry out their role of determining cases before them in accordance with the law, and free of concern about their security of tenure. Judicial independence may be compromised if there is a perception that judges are not concerned with the merits of the case before them and instead are concerned with finding favour with the Government in order to secure appointment. An apparent lack of independence would also diminish public confidence in the administration of justice. Security of tenure and its counterpoint, a compulsory retirement age, are key protections of judicial independence. A compulsory retirement age enables judges to carry out their functions and duties fearlessly, without concern as to their future term of office.
The second reason a compulsory retirement age is seen is desirable is that it limits the need to monitor individual judges’ ability, which might otherwise be required so as to ensure the continuing effectiveness of the judiciary. At present a judge can be removed from office only on the grounds of that judge’s misbehaviour or incapacity to discharge the functions of his or her office. Having a compulsory retirement age helps to ensure that issues of incapacity rarely arise.
New Zealand’s current judicial retirement age of 68 is low compared with that in overseas jurisdictions. In the United Kingdom, Australia, and Ireland, the retirement age is 70. In Canada, all superior court judges retire at 75. Not only is a retirement age of 68 comparatively low in relation to that in overseas jurisdictions but also it does not reflect the fact that many people, including judges, are more than capable of working well past their 68th birthday. Improved health and lifestyle standards mean that many people now expect to actively participate in employment into their late 60s and, in some cases, beyond then. With many people able to continue working later in life, the requirement to retire from the bench at 68 may also discourage some worthy candidates from accepting a position as a judge at a later stage in their legal career.
The current retirement age of 68 causes a loss of valuable knowledge and experience to the judiciary. It removes from the bench a group that possesses experience, maturity, and judgment. In New Zealand many judges continue to work in related fields after retiring from the bench—for example, as arbitrators. A number of retired judges have gone on to become highly regarded arbitrators.
The bill is a simple one. It proposes to replace the retirement age of 68 with 70 in six Acts: the District Courts Act 1947, the Employment Relations Act 2000, the Judicature Act 1908, the Te Ture Whenua Maori Act 1993, the Coroners Act 1988, and the Coroners Act 2006. The new retirement age will apply to all existing appointments as at the date of commencement, and to all new appointments following that date. I commend this bill to the House.
Dr RICHARD WORTH (National) Link to this
We have just heard a splendid recitation of the history of judicial tenure from the repository of judicial insight in the Labour Government. There is little I can further say in support of the commendable purpose behind the Judicial Retirement Age Bill. However, there are probably three points to make.
The first point is that under the Human Rights Act there are prohibited grounds of discrimination. One of those grounds of discrimination, to be found in section 21(1)(i) of the Act, is that there should not be discrimination on the grounds of age. But here, of course, we have an exception to that provision. The exception is that judges—if this bill is passed—are to be forced from office when they reach the age of 70. That provision in the bill may or may not be appropriate, but it is an interesting statutory exception to what has been seen as a clearly established principle in legislation: there should not be discrimination on the grounds of age.
The second point that is important to reflect upon is that in the context of constitutional law, it is important that judges have security of tenure. Fixing an age for their retirement is not inappropriate in that context.
The third point I make in passing is that I believe it is wholly unsatisfactory that we should encourage any outcome that would see part-time judges. This issue has been explored and considered by the Justice and Electoral Committee. As a general proposition, that committee found some difficulty in contemplating the status of part-time judges. So on behalf of National I express the hope that in supporting this legislation, which increases the retirement age of judges to 70, we will not have to confront that particular issue.
Finally, under the Supreme Court Act 2003, which saw the abolition of the Privy Council and the setting up in New Zealand of the Supreme Court as our highest court, we decided that it was not inappropriate to have acting judges. Section 23 of the Supreme Court Act 2003 permits of the possibility that judges of the Supreme Court who are acting judges might hold that office until the age of 75. We might see whether this bill will presage the possibility of the age of retirement, which used to be 72, drifting back to the original position of 75. National supports this legislation.
RUSSELL FAIRBROTHER Link to this
After that effort, I felt compelled to speak. The Judicial Retirement Age Bill appeals to me because it gives Dr Richard Worth a retirement occupation, having seemed to suggest his retirement days have already commenced in the House.
I have to say that the age of retirement is a contestable issue. There are many lawyers who would agree with me that many judges should be retired at 45, whereas there are a number of other judges who clearly should go on for many years beyond that. Competence of judges, unfortunately, is not an artefact of age, and a very good judge is a loss to the profession and to the courts when he or she does retire at the compulsory retirement age. There are many judges—particularly of the High Court and the Court of Appeal—who retired far too soon on obtaining the age of 68 years and although they would have said they were tired because the workload they carried was considerable, from talking to them one got a sense of loss and, certainly, many of the Bar shared that sense of loss. Having a low compulsory retirement age is not a filter for keeping judges no longer competent away from doing the work. In fact, it presents as a loss to the community of some very good minds that seem to get better with advancing years.
The real problem for judicial capacity is workload pressures. This Government has worked to ease that by spreading the work over the courts and bringing more equity and appointing judges from a wider cross-section of the community so that they represent the community and, strangely enough, could even find reasons to find some good in the community of Dr Worth. So it is my pleasure to speak in support of this bill; for some judges I know, 70 is still too young an age.
NANDOR TANCZOS (Green) Link to this
I thought my colleague might rise, but I just rise to indicate briefly that the Green Party is supporting the Judicial Retirement Age Bill. The Minister the Hon Rick Barker made reference to the fact that 68 is a comparatively young age—when compared with other jurisdictions—when it comes to judicial retirement. So I think that is a strong argument. The argument around the need for security of tenure is also an important one, as is the enhancement that raising the retirement age will give to the ability to attract senior practitioners and academics who might be put off by a retirement age of 68. I think they are good reasons. I also see merit in the argument that the current age causes a significant loss of valuable knowledge and experience from the bench and, I might add, brilliance as well.
I was reflecting on the fact that I have been fortunate to hear Sir Ivor Richardson speak recently—both before the select committee and at some other forums—and I was enormously impressed by the brilliance and the sharpness of his mind, and the erudite arguments that he put forward. I also heard Lord Cooke when he came and gave evidence to the select committee on the Supreme Court legislation. So when I look at some of the people of that magnificence who have been on the bench in New Zealand, I have no doubt that for some people 68 is far too young an age and that we would do very well from seeing some of those senior judiciary continue on the bench for some time further. So we support the bill. Kia ora.
RON MARK (NZ First) Link to this
I very briefly put on the record that New Zealand First is also supporting this bill. I think it is worthy of note, actually, that as an MP one often gets approached by people who want to be Justices of the Peace, and I have noted with some alarm the age of some people who are still supposedly functioning as Justices of the Peace—some as old as 90, I am told. It does beg the question when one has business people such as the great Sir Angus Tait. He is a very highly regarded businessman in Christchurch. One would shudder at the thought of people retiring Angus Tait out of business at the age of 65.
If one looks at a number of the captains of industry, and, indeed, even some of the leaders in this House—Dr Don Brash must be getting close to his retirement age if he had been a judge. To actually say that Don Brash could not continue on as a leader after 65 years of age because he was too old for the job would be a little unfair, a little cruel, and a little unkind. I know that some members of Parliament want to get rid of him a lot quicker than that, and that is their choice, but—
Old enough to see what is happening around here. I am a bit embarrassed to give my age—it is the grand old age of 52, since the member asked.
Hon Harry DuynhovenA little bit younger than him. So being a younger man, and being very respectful and mindful of my elders, I do not think I would like to see Dr Richard Worth forcibly retired as a judge at the age of 65. That would leave him only 1 year to go if he got the job next year, would it not? I think there is a lot more work in that old horse over there, and a lot more wisdom. It is actually an interesting question is it not? We have gone through an era in this country when we suddenly deemed, by fashion I guess, that it was inappropriate to have older New Zealanders holding senior management jobs or positions of authority. We suddenly turned, and if I could put a finger on a time and say “I think it happened about there.”, I would probably target the Roger Douglas Labour Government era, when suddenly people viewed Government departments, the public service, and captains of industry as being all businesses, and that businesses needed to be run by young, vibrant, vigorous people—not necessarily people of great depth, great wisdom, or great experience, but young and vibrant. One of the legacies that that has left us is a whole bunch—a mass of highly qualified, highly competent, wise, seasoned, experienced New Zealanders now sitting on the scrap heap.
Some call it retirement, but regretfully—and unfortunately it affects men, I think, more these days—a large number of men in their 50s who are on the scrap heap struggle to get back into the workforce because they are deemed too old. Well, I think that is a load of nonsense. I think, and New Zealand First believes, there are judges who are serving this nation today who are of immense value to this nation. They have a lot of service left in them, and we can ill do without their wisdom, knowledge, and experience. All I ask the House to consider when we work our way through this bill is to cast one’s mind a little wider at the greater New Zealand society and ask ourselves whether we have not, in fact, done ourselves a disservice by forcing people to retire from the public service—from the service of the Government—when really they should never have left, but were forced into retirement, forced into redundancy, and forced out of work, simply because they were deemed or considered to be too old.
TE URUROA FLAVELL (Māori Party—Waiariki) Link to this
Kia ora tātou. The Māori Party comes to the Judicial Retirement Age Bill tonight understanding the very unique status of judges as repositories of learning and wisdom. We are particularly influenced by the high calibre of a number of judges who have spoken in support of the human rights of tangata whenua.
Tangata whenua have long been aware of, and have greatly respected, the questioning of the colonial policy that the first Chief Justice, Sir Charles Martin, is remembered for. We respect the views of Sian Elias, the Court of Appeal judge, and her comments on the foreshore and seabed ruling. We appreciate the expertise of Judge Caren Fox in relation to the foreshore and seabed legislation. We are also eternally grateful for the insights and leadership provided by Judge Heta Hingston. We are grateful for his involvement in reforming the Maori Affairs Act of 1953 and the Te Ture Whenua Maori Act 1993, and, of course, for his work in relation to the foreshore and seabed legislation.
This House and this nation have long paid their respects to Lord Cooke of Thorndon, who recently passed away. In the 1987 Court of Appeal case New Zealand Maori Council v Attorney-General, Lord Cooke described Te Tiriti o Waitangi as still being a “valid compact” that imposes “fiduciary” duties of “mutual obligation” between the Crown and Māori tribes. Such a commentary is part of our history as a nation. Lord Cooke left this nation significant statements, which include: “the Treaty signified a partnership between races”. Such statements have contributed to the growing maturity of our land.
Those names and those judges are but a few of a strong cast of potential leaders who are taking this nation forward with their deliberations and their findings. As a party that absolutely values the capacity of being able to speak out, the Māori Party says it is vital that the ability of judges to speak frankly on issues is preserved.
Not long ago I spoke in the context of the Evidence Bill on the values of democracy as a “form of Government in which the people have a voice in the exercise of power.” We remember a couple of years back when Māori Land Court judge Caren Wickliffe, now known as Judge Fox, reminded the Prime Minister, Helen Clark, that there were proper routes to take if she disagreed with judges’ decisions. If the House cares to cast its collective mind back, that reminder came at a time when the current Speaker, the current Leader of the House, and the current Prime Minister were frequently criticising the status of some members of the judiciary. The clear distinguishing line between the executive and the judiciary is an essential element of our democracy. At that time Judge Wickliffe stated that the executive should not tell the court what to do, especially if it was still involved in the case. Indeed, the Crown or any other party could appeal or seek a judicial review of a decision they did not agree with. Judge Wickliffe had rejected the Crown’s attempts to prevent East Coast foreshore and seabed claimants from proceeding to the substantive hearing. The Crown wanted a stay on the proceedings because of planned legislation affecting the seabed and foreshore ownership.
This was a murky period of our history, but through it all the virtues of judicial independence remained unscathed. These same democratic principles lead the Māori Party to look favourably at the Judicial Retirement Age Bill. The bill promotes the notion that security of tenure and a compulsory retirement age are “key protections for judicial independence”, thus enabling the judiciary’s “fearless performance of judicial functions” by keeping its members free of concerns about job security. That fearless, frank, and fierce critique we have associated with the judiciary must be protected at all times.
When we consider “fearless, frank, and fierce”, we could do no better than to recall the advice of former Māori Land Court judge Heta Hingston, who famously described the Government’s public domain title as being nothing more than a smokescreen to its true motives. In mid-2004 he said: “The foreshore and seabed has never been in public domain. Their position that public access would be jeopardised is complete ignorance. Essentially what the Government has done is take away from Māori. Quite simply, it is another case of raupatu; it’s confiscation.” Judge Hingston concluded that the Government’s actions were best interpreted as the “tyranny of the minority by the majority”. He urged Māori to continue to seek justification on all options that were available to them, and he spoke of the value of international forums.
In the context of such brilliant advice from Heta, we welcome this bill, which increases the statutory retirement age for judges and associate judges of the High Court, coroners, and community magistrates from 68 years to 70 years. The Māori Party will support the proposals to amend the District Courts Act 1947, the Employment Relations Act 2000, the Judicature Act 1908, Te Ture Whenua Maori Act 1993, the Coroners Act 1988, and the Coroners Act 2006. We believe that in all of these areas age should not present a barrier to the provision of expert advice.
It is, of course, fitting to be speaking to this bill on a night when we have all been considering better opportunities to provide for the ongoing contributions of our elders. The current retirement age runs the risk of the nation missing out on the valuable knowledge and experience that the judiciary offers. We know that the restrictions around retirement age are also perceived as being a barrier to attracting senior practitioners and lawyers to the judicial office.
We cannot leave this important bill, however, without also raising the critical issue of judicial impartiality. In Māori and the Criminal Justice System: a new perspective—he whaipainga hou,the Kahungunu lawyer Moana Jackson discussed the concept of the potential for judicial bias to be realised as the end result of a process that is itself culturally biased. His report noted that when all necessary variables of previous offending, legislative guidelines, and the gravity of the offence have been considered, Māori believe that the differential notion of the sentence can be attributed only to judicial insensitivity and prejudice. I quote directly from that report: “I have noticed that judges, while most of them try their hardest to show themselves to be free of prejudice and some of them may be … a subconscious form of prejudice shows itself in the judge’s attitudes, sometimes when talking to, sometimes when looking at Maori defendants. … Māori people know that look and they know what it means”.
These are grave issues of State. I hope that in subsequent discussion on the Judicial Retirement Age Bill barriers other than age, such as those of institutional racism, may also be considered. Kia ora tātou.