Hon RICK BARKER (Minister for Courts) Link to this
I move, That the Judicial Retirement Age Bill be now read a second time. I thank the Justice and Electoral Committee for its efficient consideration of this bill. The bill raises the retirement age for all judges of all courts, Associate Judges of the High Court, coroners, and community magistrates from 68 to 70 years. The committee sought comment from the Chief Justice and the Chief District Court judge, both of whom agreed wholeheartedly with the bill. As a result, the committee has reported this bill back quickly and recommended that it be passed without amendment.
The bill is very simple and straightforward. Its sole purpose is to raise the statutory retirement age for all judges and certain other judicial officers. This will bring New Zealand in line with other jurisdictions including Australia, Ireland, and the United Kingdom. The bill will enable experienced judges to provide their services for a longer time. It will also ensure that those who are eligible for appointment to the bench will be more attracted to it, because they will have the ability to remain on the bench for a longer time. This will, hopefully, encourage more practitioners and academics to consider a career on the bench. I mentioned earlier, in my first reading speech, that there are two other things that the bill will do: it will help ensure judicial independence, and it will help ensure that there is no reason for judges to be monitored for incapacity reasons.
I have circulated two Supplementary Order Papers to the bill. The first Supplementary Order Paper removes clause 3, which provides the purpose of the bill—namely, “to increase the statutory retiring age of Judges, Associate Judges of the High Court, coroners, and Community Magistrates”. Once the bill has been divided into six bills, clause 3 will no longer be necessary. The second Supplementary Order Paper divides the bill into six separate amendments, respectively amending the Judicature Act 1908, the District Courts Act 1947, the Employment Relations Act 2000, Te Ture Whenua Maori Act 1993, the Coroners Act 1988, and the Coroners Act 2006. Again, I thank the Justice and Electoral Committee for its swift consideration, and I look forward to the swift action of this House to pass this legislation.
CHRISTOPHER FINLAYSON (National) Link to this
National supports the second reading of the Judicial Retirement Age Bill. I thank the Minister for Courts, the Hon Rick Barker, for his generous comments about the work of the Justice and Electoral Committee. For reasons that I will develop later, perhaps it could be said that we in the committee moved too quickly. Certainly, that is what the Law Society thought. It submitted a letter to us after the bill had been reported back to the House in which it raised a number of points. Out of deference to the Law Society I will mention in the course of my speech some of the arguments it advanced.
As the Minister said, we resolved not to call for public submissions on the bill, as we considered that it was straightforward and uncontroversial. We certainly did invite comments from the Chief Justice and the Chief District Court Judge on the bill, and both endorsed its intention and supported its progression.
Because this is the first time the issue has been before Parliament for over a quarter of a century, I thought it would be useful simply to trace, by reference to the Judicature Act, how the question of the age of retirement has developed over the years. Section 13 of the Judicature Act 1908 was amended as from 24 December 1980 to substitute the expression “68” for the expression “72”. So for a number of years there were judges who could retire at 72, but the age was reduced to 68 from 1980. I took the liberty of looking up the Hansard of the debate in 1980—Volume 434, at page 4172. In fact, the only reference to the provision—it was part of a Courts Amendment Bill—stated that clause 86 reduced the age of retirement to 68 years, and that it was based on the recommendations of the Royal Commission on the Courts, which had been chaired by the late Sir David Beattie. There was no discussion on the rationale for the provision.
So it may be helpful today to set out some of the thinking behind this current legislation to increase the retirement age from 68 to 70. The first point that can be made is that, as the Minister said, the age of 70 is in line with other jurisdictions. The Minister mentioned the United Kingdom, Ireland, and Australia, and reference could also be made to 24 states in the United States. Apparently, there is no mandatory retirement age at the federal level in the United States. For example, Justice Stevens of the United States Supreme Court is aged about 85, and over the years a number of judges have served in that great court who have been even older than that.
For many years there was no specified retirement age for certain classes of judge in the United Kingdom. Lord Denning, for example, a former Master of the Rolls, was still going in his 80s. Apparently, he was on record as saying he had all Christian virtues except resignation. I think he finally retired when he was about the age of 90. That probably is far too old to be sitting as a judge—although, apparently, the age of 90 for retirement is still the law of the state of Vermont. [Interruption] Jonathan Hunt will be long gone before he is 90.
The Law Society made the point that perhaps the age could be increased back to 72, but when one looks at the international comparison, one sees that the age of 70 seems to be consistent with those of other jurisdictions, and I support 70. It could well be that within a reasonably short period of time we revisit this issue and decide to bump it up to 72.
Another point the Law Society made in its belated submission was to express concern that if the age was kept at 70 it would not be possible for some judges, in the course of their careers, to have a decent period of time on the Court of Appeal then a decent period of time on the Supreme Court if they were promoted. For myself, I do not think that is sufficient justification to move the retirement age to 72 for Supreme Court judges. I think it is best to keep the age at 70 for all judges, as the bill, indeed, provides.
Another matter the Law Society raised was the possible impact on judicial superannuation. It expressed a concern that if the age was moved, the subsidy rates for judicial superannuation could be decreased. Nothing of that sort has been referred to in the bill, let alone discussed. I really think that is an argument that need not detain the House, at all.
The Law Society makes a very important point that, from a constitutional point of view, it is important that we not have too many temporary judges, or judges who are appointed on a short-term basis. I certainly endorse that view, but I do not really think it is a problem at the moment, notwithstanding the relatively short careers of Justice Gault and Sir Kenneth Keith, for example, on the Supreme Court. Indeed, increasing the age to 70 will mean that people are able to go on to the bench at the age of 55 and expect to have at least 15 years on the bench, during which time they can make a huge contribution to the law in New Zealand.
The final point that the Law Society raised was that if a judge is appointed then retires, he or she can still be an acting judge until the age of 72. The society suggested that that age could be altered so that judges could sit as temporary judges until aged 75. For myself, I do not agree with that. I think that if a judge serves as a full-time judge up to the age of 70, there may be special reasons why that person could stay on for an extra couple of years, but I do not think it is a good thing from a policy point of view for judges to be able to come back and sit for as much as 5 further years.
The Law Society was concerned that we had not considered these arguments. I can assure the House that I read very carefully what the society said and reflected on it, even though the submission was received a little late. But, on balance, I think this bill strikes a very good balance. Seventy years seems to be the right age, and, as I said, at some later stage we can always revisit that question.
I do not know that there is too much more that one can say about this legislation. It should be able to move through its remaining stages reasonably quickly. I think it is a good move, and for that reason the National Party supports the second reading of this bill.
Dr RICHARD WORTH (National) Link to this
This is a short bill with a planned, speedy passage. Its history is that having been introduced on 8 November last year, it was read a first time on 15 November. Then, as Mr Finlayson has said, it went off to the Justice and Electoral Committee where it was robustly dealt with. It returned on 8 December last year to this House, and now it faces a second reading, which National supports—as I understand do other parties in Parliament tonight.
It is an interesting point that most people the world over want to retire, generally, in their early 60s, but there are dramatic exceptions including popes, United States Supreme Court justices, and dictators. I would say that the exceptions are becoming increasingly problematic, with the extension of life brought about by modern medicine. If the only effect of medicine were to postpone incapacity, so that instead of becoming incapable of work at 70 one became incapable of work at 80, increased longevity would not pose a social problem—or at least a problem that concerns us here. The problem arises from the fact that medicine increases the average period in which a person remains alive, despite physical or mental incapacity. Medicine does not merely increase the length of life; it also increases the length of “sick” life.
If one looks around the world, one sees that the entire trend is against fixed retirement ages. That seems a mistake. It is premised on the correct observation that people decay at different ages, so setting any age of mandatory retirement, designed to make sure that people incapacitated by age are removed, will remove some people who are not incapacitated. But, I guess, that observation merely identifies one cost of mandatory retirement, and the benefits must also be considered. And they are, in fact, quite great, because of the cost of removing people on the basis of individualised determinations of incapacity. Not only are such determinations often very difficult to make, unless the individual has deteriorated to an extremely low level, but there is a justified concern that they may be used selectively to remove political enemies or professional rivals.
The crunch issue in the New Zealand Parliament that relates to fixing a mandatory retirement age revolves around two pieces of legislation. The first is the New Zealand Bill of Rights Act and the second is the Human Rights Act. In terms of those two pieces of legislation, fixing a mandatory retirement age necessarily gives rise to a case of discrimination on the grounds of age, which is contrary to those two Acts. So it becomes necessary to consider whether that prima facie—as the lawyers would say—discrimination is justifiable, and that involves considering section 5 of the New Zealand Bill of Rights Act. Without wading into legal swamps, I tell members that that provision states that subject to another provision of the Bill of Rights Act, “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
This is not a local or domestic New Zealand issue; this same issue is before the United Nations, as is indicated in comments made by the United Nations Human Rights Committee. The committee, in one of its statements on the issue of non-discrimination, stated, “… not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.” That is the examination I would like to speak about, in the short time I have.
The New Zealand Court of Appeal has discussed the question of justification on several occasions. Very broadly, the court has stated that one has to look at three issues in seeing whether discrimination is justified. First, what objective is Parliament endeavouring to achieve by the provision? Second, what is being done rationally connected to that objective? Third, is the means chosen to achieve the objective “proportionate”, given the nature of the right being limited?
Just looking briefly at those issues, we see quite clearly that the independence of the judiciary is an objective of fundamental importance, and other provisions in the New Zealand Bill of Rights Act spell that out. It is fair to say that mandatory judicial retirement is rationally connected and proportionate to that objective. As Mr Finlayson has said in his review of what the case is in other jurisdictions, the appropriateness of mandatory retirement ages has been recognised in a number of them. Some jurisdictions, as Mr Finlayson has said—notably United States federal courts—have lifetime tenure, so without a retirement age one can be there literally till one drops, although others, such as transnational courts and the Constitutional Court of South Africa, have term appointments with or without a mandatory retirement age. That is another way this issue could have been addressed. Instead of having a mandatory retirement age, the New Zealand Parliament could have said that judges would have security of tenure, could discharge their obligations in a fearless manner, and would have 20 years to do that in, if they lasted that period. So there are some real issues around lifetime tenure.
In completing my comments on this legislation, I will just pick up on two points. The first one is that this legislation is not a significant change in any real way. We are lifting the age of retirement from 68 to 70 years and, as others have said, the age used to be 72 years. But I am aware that there is a wish by some members of the judiciary to be part-time judges. I express the hope that as a result of making this change and lifting the retirement age to 70, the system will not yield for the possibility of judges to become part-time judges, because I would say to the members of this House that judging is a full-time profession. There is not, and should not be created, an opportunity for judges to come and go as they fit their judicial obligations around, perhaps, a score of other activities. I say firmly that there is no place in New Zealand—despite judicial requests to the contrary—for having part-time judges.
The other point, which I just note in passing, is that those of us who were in Parliament when we looked at the abolition of the Privy Council and the establishment of the Supreme Court, thought that it was appropriate to provide the possibility for acting judges of the Supreme Court—our highest court—to remain in office until the age of 75. I am talking about only acting judges.
So we have come to the view that it is appropriate to lift the age of retirement for judges, associate judges of the High Court, coroners, and community magistrates, from 68 to 70. There is no necessary magic in that 70-year age barrier, but let us see how that works and whether it has the intended consequences for which the Government hopes. National supports the bill.
HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this
Tēnā koe, Mr Assistant Speaker. Tēnā tātou katoa i te Whare. Six sentences is all that the Justice and Electoral Committee came back to us with on this Judicial Retirement Age Bill, because, the report states—and I like this bit: “We resolved not to call for public submissions on this bill as we considered that the effect of the bill was straightforward and uncontroversial.”
At first glance, so it might seem, because all the bill talks about is raising the age when judges have to retire from 68 to 70. But when we look at the statistics and we see that Pākehā men live to 77 but Māori men die at around 69, we very quickly realise that becoming a judge is not such a wise career choice for tangata whenua. If we are Māori, we ask ourselves how a society that can value its judges so highly can allow its indigenous people to die younger than the rest of the population every single year for as long as statistics have been kept.
Raising the age for judges to retire fits with the way the rest of the world is going, and 70 seems to be the norm. But, thankfully, this bill is not just about age; it also confirms the independence of the judiciary from politicians, and that is a very important principle in a world driven by politics that are clearly anti-Māori. This bill will let judges do their jobs free of any concern about job security, and free of the rantings and ravings of loose-lipped politicians who demand that judges jump through their twisted hoops or be dumped from the bench. The judiciary needs as much separation from that kind of thinking as possible if it is to function effectively, and any protection this bill can provide will be welcome.
The other positive spin-off, of course, is that the bill enables the judiciary to retain the expertise and experience of people who still have much to offer. It is appropriate here that I mihi to our longest-serving judge, Eddie Taihākūrei Durie, who has served in a wide range of jurisdictions for more than 32 years. Hon Justice Durie, the first Māori Chief Judge of the Māori Land Court and, later, a judge of the High Court, retired just a couple of months ago, in December 2006. During his time as chairman of the Waitangi Tribunal Justice Durie oversaw many important land claim reports that led to the Treaty of Waitangi being enshrined in law almost 20 years ago. During his time he also promoted the importance of the values and ethics of Māori research, and showed how a lot of research was being judged according to the colonisers’ agenda and ignored what he described as “the depth of the ancestral opinions that influenced Māori thinking”.
Yet this most brilliant of judicial minds is now lost to us because he is too old—a huge loss to Māoridom, to the judiciary, and to our society at large. This is a man who at 34 was the youngest judicial appointment to the Māori Land Court, rose to become Chief Māori Land Court Judge, then at the tender age of 40 became the first Māori appointed to the High Court. Now, because he has reached the age of 68, his judicial expertise is lost to us all.
How frustrating that must be for him, particularly in the light of the work that his brother Professor Mason Durie has done in voicing the experiences of older Māori in his 2002 report, Ngā Āhuatanga Noho o te Hunga Pakeke Māori: E tū te huru mā, haramai e noho, subtitled, “To the elderly who have reached the pinnacle, remain as a guiding light for us all”. Mason Durie’s report recognises clearly that Māori still hold dear to the view that kaumātua and kuia are to be valued for the wisdom, experience, and learning they bring to everyday life, and also recognises the many and varied roles expected of an older Māori person: “The roles of kaumātua include: resolving disputes and conflicts between families and between iwi, carrying the culture, recognising and encouraging the potential of younger members, cultural guidance and advice, maintenance of protocol, reception and care of visitors, protection and nurturing of younger adults and children, performance of ceremonial duties, spiritual leadership, and attendance at tangihanga.” So much is expected of our old people that one gets dizzy just thinking about it. Maybe that is what Te Ururoa Flavell means when he says that we need to keep going to the gym every day just to train for our greatest role: being old.
For some cultures, getting shunted into an old people’s home and left to die lonely is what an old person has to look forward to. But for Māori, being a kaumātua or kuia is an extremely busy and productive time. For Māori, being old is not a sin. It is an opportunity to use one’s experience to help guide the next generations, and, of course, to help spoil the mokopuna.
Making our most experienced and capable judges redundant because they have reached a particular age simply does not make sense. Extending the age for retirement has to be a good idea, and the case of the Hon Justice Eddie Durie simply confirms the need for this bill.
This brings me naturally to the question of what we do with people of such knowledge, people who have the respect of all sectors of our society and the confidence of jurists the world over. Well, it just so happens that there may indeed be a position befitting a man of such unquestioned qualification in the field of Treaty issues. On Waitangi Day I proposed the idea of a Treaty Commissioner to protect and promote the rights and interests of the Treaty of Waitangi in the same way that Laurie O’Reilly so passionately advocated for children’s rights during his time as Commissioner for Children. I referred to the Treaty Commissioner’s role in my reply to the Prime Minister’s speech, and I repeat that role here: to honour the vision of those who signed the Treaty; to promote the Treaty’s commitment to partnership; to support Māori rights to control and authority over their treasures; to ensure that Waitangi Day is meaningful for all citizens of Aotearoa; to review any decision made in respect of the Treaty by the Government; to raise awareness and understanding of the Treaty; to be an advocate for the Treaty; and to promote the proper application of the Treaty in legislation.
The next thing I thought about, of course, was the kind of expertise, experience, and status required for such a key role: the intellectual capacity to review Government decisions regarding the Treaty; the legislative know-how to be able to promote the application of the Treaty across our statutes; the background required to honour the vision of those who signed the Treaty; and the special leadership needed to make the Treaty live in the hearts and minds of all citizens of Aotearoa. When I started looking for suitable contenders one name kept coming to mind: the Hon Justice Eddie Durie, a hugely significant figure in our legal landscape who is noted for saying: “If Māori are the tangata whenua, the original people, then Pākehā are the tangata Tiriti, those who belong to this land by right of the Treaty.”
The Māori Party welcomes this Judicial Retirement Age Bill as a positive way of keeping the senior members of the judiciary so that we can keep some of the finest thinkers and practitioners of the legal profession, and for opening up the pool of contenders for the unique position of New Zealand’s first Treaty Commissioner. We look forward to working with those proactive and intellectually superior politicians and their equally superior parties who are willing to support the establishment of this new position. Kia ora tātou. Tēnā koe.
LYNNE PILLAY (Labour—Waitakere) Link to this
It is a pleasure, as the chair of the Justice and Electoral Committee, to stand and speak in support of the Judicial Retirement Age Bill. In doing so I want to acknowledge all members of the select committee who, with their unanimous and common-sense approach, enabled this bill to come back to this House in a timely manner, which means that it can very quickly take effect .
The bill raises the statutory retirement age for all judges, associate judges of the High Court, coroners, and community magistrates from 68 to 70 years. The committee sought comment from the Chief Justice and the Chief District Court Judge, both of whom agreed wholeheartedly with the bill, and that enabled us to report it back very quickly. The current retirement age for judges is low by international standards. Increasing the retirement age retains the valuable knowledge and experience of judges for longer and brings us into line with other jurisdictions, including Australia, Ireland, and the United Kingdom.
The Justice and Electoral Committee recommended that the bill be passed without amendment, and I am very happy to stand here in this House and reinforce that position.
PITA PARAONE (NZ First) Link to this
Tēnā koe. Again I stand on behalf of New Zealand First, and particularly on behalf of my colleague Ron Mark.
I want to say right from the start that there is a saying: “There is nothing like experience.” It seems to me that this bill recognises the experience of those who are charged with the responsibility of looking after our legislative requirements. It is good to see that although we accept New Zealand is a unique country, we do not believe its uniqueness should extend to the fact that we are the only country at this point of time where members of the judiciary are required to retire at the age of 68. Given that the bill highlights a number of countries where members of the judiciary do not need to retire earlier than the age of 68, it seems appropriate that we should make the best use of our best legal brains. It also seems to me that it is appropriate that this legislation provides an opportunity for those practitioners who want to give up work as a practitioner and sit on the bench. This bill certainly provides that.
I just want to make some comments about a member’s bill that New Zealand First is responsible for: the Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill. It suggests that retired High Court judges and Māori Land Court judges should be able to fulfil the position of chairperson of the Waitangi Tribunal. I hope, given the comments made by the spokesperson from the Māori Party, and particularly recognising the experience of and the high regard we have for the Hon Justice Durie, that the Māori Party members will lend their support to that bill.
I reiterate the support of New Zealand First for this legislation. I note that the report from the Justice and Electoral Committee does not identify who was on that committee. I am not quite sure whether that is an oversight that needs to be corrected. But suffice it to say that we will be supporting this bill.
KATE WILKINSON (National) Link to this
I will take only a brief call in relation to this bill, in support of it. In speaking to the bill, which as we have heard increases the retirement age for judges, coroners, etc., from 68 to 70 years of age, it is perhaps opportune to reflect on the arbitrary nature of age itself, and age limits themselves. When is old too old—when is one too old to function—and, conversely, when is one old enough? This bill is not about saying that at 70 one is too old to carry out one’s duties and obligations; it is about setting an arbitrary age at which judges, coroners, justices, etc. must retire.
Whenever we look at the issue of age, whether in terms of too young or too old, we will always see inconsistencies. For example, throughout the alcohol purchasing age legislation we learnt that someone can marry at 18, go to war at 18, hold a firearms licence at 16, drive a motor vehicle at 15, and sell adult material at any age—although not buy it at any age—yet if the bill had progressed young people would not have been able to buy a beer at 18. What arbitrary age restrictions do is remove the requirement for any subjective assessment as to a person’s maturity, sense of responsibility, and ability. It is similarly so with judges, because under the Judicial Retirement Age Bill the age of retirement is upon them at 70, whether or not they like it.
We have heard the comparisons with other countries. Our existing retirement age is 68, which is relatively young—it is interesting that the closer one comes to such an age, the younger that age seems. By comparison, in the United Kingdom, Australia, and Ireland the retirement age is 70. In Canada it is as high as 75. Just out of interest I asked the Minister the current ages of our judges, and I would like to mention them for the record. Of our current District Court judges three are under 40 years of age, with 25 between the ages of 41 and 50, 82 between the ages of 51 and 60, 12 between the ages of 61 and 64, and nine between the ages of 65 and 68. By comparison, of the High Court judges seven are between the ages of 40 and 50, 14 between the ages of 51 and 60, nine between the ages of 61 and 64, and two between the ages of 65 and 68. So I think we could say that they are a pretty young bunch, really.
One of the reasons given by the Minister for a compulsory retirement age is that of judicial independence. I totally agree that the separation of powers is vital to the integrity of our democracy. Judges must—and must be able to—act independently of the executive, and of us. Similarly, we should not blame judges for giving inadequate sentences to criminals when it is members of Parliament as lawmakers who provide them with the rules for such sentences. If we do not like that we need to change the law, not criticise the judges. That is the essence of judicial independence and separation of powers.
So I speak in support of this bill, although it must be re-emphasised that 70 years of age is not an indication of either ability or inability; it is an arbitrary age limit, and for many it is still very young. Even by fixing the age limit at 70 years we will be losing valuable judicial resources on the bench, but it is important that we set some age limit, and 70 years of age certainly seems consistent with other jurisdictions, and reasonable in the circumstances. Accordingly, on behalf of National, I speak in support of this bill.