Judicial Retirement Age Bill

CHRISTOPHER FINLAYSON (National) Link to this

Congratulations, Mr Chairman, on your promotion. I think it befits you very well. I am just sorry that the Minister in the chair, Rick Barker, had to turn up, because Winnie Laban was far more attractive and far more pleasant. But there we go.

I will briefly address Part 1—and I place emphasis on the adverb “briefly”, because Part 1 simply deals with the machinery aspects of the bill. We do not yet know when the Act will come into force, but the purpose clause succinctly states exactly what this bill is all about. As I said in my speech the other night, in 1980 the retiring age for judges was reduced from 72 to 68. That reduction in the retirement age was consequent upon the Beattie commission on the courts, which reported in 1979. As I observed in my speech, there was no discussion of the rationale for reducing the age. That is why I think that the other night all speakers, from both sides of the House, tried to explain the rationale for at least increasing it. The bill brings the age of retirement for High Court judges and the other judges mentioned into line with other jurisdictions.

Perhaps I should observe that every judge of the High Court, Court of Appeal, and Supreme Court is sworn in as a High Court judge, even though certain of them—nine in the Court of Appeal, and five in the Supreme Court—sit as appellate court judges. So when we see the term “judges” in relation to High Court judges, we know that it also includes Court of Appeal judges and Supreme Court judges.

I think that other speakers apart from myself also mentioned the fact that in many states of the United States the retirement age is around 70. In the United Kingdom, Australia, and Canada the retirement age is about 70. Some jurisdictions have no retirement age. Indeed, that issue was touched on by my friend Dr Worth in his speech when he sought to explain the rationale for why there is a retirement age. If there is no retirement age, there is the risk that judges can stay on for far too long and can, in fact, become an impediment to justice. I can think of a number of foreign judges who come into that category. They simply sat on the United States Supreme Court or the English Court of Appeal for too long. I recall very clearly the case of Lord Denning, a former Master of the Rolls. He was an outstanding judge—probably one of the greatest judges in Anglo - New Zealand - Australian history—but he left his high office in a very tragic way. He had stayed on too long and made some silly remark about a jury, which hastened his pretty well immediate retirement. I think that when he retired he was about 88.

So there are very good reasons for having a retirement age, but there are extremely good reasons for the age of retirement to be increased from 68 to 70 years. This reflects increasing longevity on the part of all of us and the fact that judging is an art that requires much reflection. It is a job that is naturally suited to people in their 60s and into their early 70s—I say into their early 70s because, on occasion, judges will be asked to come back as temporary judges. In the case of judges of the Supreme Court, after their retirement they can come back and sit until the age of 75. From time to time in the High Court there are judges who come back and sit after their retirement in order to assist with workloads and so on. That principle applies not only to judges of the superior courts and the appellate court but also to associate judges of the High Court and, quite sensibly, to coroners and community magistrates.

As I said a few days ago, National supports this legislation. It is a sensible provision that we are dealing with here. I do not think I need to detain the Committee any longer.

Dr RICHARD WORTH (National) Link to this

As the previous speaker, Chris Finlayson, said, this important legislation—the Judicial Retirement Age Bill, which National supports—raises the statutory retirement age for all judges, associate judges of the High Court, coroners, and community magistrates in New Zealand, from the age of 68 to the more magic age of 70.

But it is not in this part of the debate that I want to focus on clause 3—that all-important purpose clause. Instead, I want to take a moment to deal with the commencement provision, which is contained in clause 2. It is simply stated: “This Act comes into force on the day after the date on which it receives the Royal Assent.” As those who follow the parliamentary process know only too well, a bill must set out precisely when it is proposed to come into force. This rule reflects the legal rule that an Act comes into force on the date stated or provided for in the Act. That rule is contained in the Interpretation Act 1999.

In principle, the commencement provision should fix a precise date, but the commencement of legislation can be deferred for it to be brought into force by Order in Council, where there are considered to be good reasons for doing so. In this case, of course, the Act will come into force on the day after the date on which it receives the Royal assent. But if that were not so, in the circumstances that I have spoken about that relate to Acts coming into force by Order in Council, the reasons for deferring the commencement of the legislation to an unspecified date are set out in the bill’s explanatory note. As the Regulations Review Committee commented in an earlier Parliament, any use of the power to defer the commencement of a bill’s provision, other than for reasons given in the explanatory note, is very likely to attract criticism.

I note that until 1999 the commencement of a bill was invariably dealt with in the first clause, along with the title. But that is not so in the case of this bill. Here we find the title in clause 1, and the commencement date in clause 2, which reflects the requirement that the commencement provision must now be in a distinct clause devoted solely to that matter. I see that the Minister in charge of the bill, Rick Barker, is watching me in a rapt way and doubtless learning much that he has never known of before.

So that is the second clause of the bill. That clause forms, along with the title clause, a bill’s preliminary clause, which precedes the first distinct part of the bill—if the bill is drafted in parts. There may, of course, be different provisions in the bill that come into force at different times. As the Minister will know, this must be indicated in the commencement clause, with cross-references to those other clauses where the precise commencement details are set out. I need to refer in that regard only to Standing Order 257(2). That said, I think National is pleased that in this particular case the Act comes into force on the nominated date in clause 2. Certainly, we do not have any misgivings about that planned course of action. So I commend those who, with care, have drafted clause 2 in the neat and precise way they have.

KATE WILKINSON (National) Link to this

I stand to take a call on Part 1 of the Judicial Retirement Age Bill. My colleagues have already commented that only two clauses are provided in Part 1: one is the commencement clause and the other is the purpose clause. Just to reiterate the purpose, I say that the bill is a fairly straightforward bill to increase the statutory retiring age of judges, associate judges of the High Court, coroners, and community magistrates, from 68 years of age to 70 years of age.

I would like to mention in this part of the call perhaps not what Part 1 provides for, but what it does not provide for—that is, justices of the peace. There is no mention in the Judicial Retirement Age Bill of the Justices of the Peace Act. There is absolute silence as to that Act, and there is no mention of the retirement age of justices of the peace. Justices of the Peace are appointed as justices. They hold judicial office and, at the moment, the retirement age for JPs is 72 years of age. So that situation is incongruous with the proposed retirement age of 70 years in the Judicial Retirement Age Bill. We are aware, of course, that the Justices of the Peace Amendment Bill is currently before a select committee. I just remind the Committee that we need to ensure that the retirement age of JPs is consistent with the proposed retirement age of 70 years in the Judicial Retirement Age Bill. If we do not, we could have the incongruous situation of one class of judicial officer having a completely different compulsory retirement age from another class. JPs would retire at 72 and judges would retire at 70.

Perhaps in this vein I will refer to the comments of my colleague Dr Worth in relation to the commencement date of this bill. It may be conceivable that the commencement date of this Act could occur prior to any amendment to the Justices of the Peace Act. So there may be an interval of time—assuming that the justices of the peace legislation will make those age limits consistent—when we have inconsistencies and differences in retirement age. It seems that it is certainly preferable to have the retirement age of both justices of the peace and judges—indeed, of judicial officers—consistent and at 70 years.

In earlier speeches I referred to the arbitrary nature of age—whether it was the arbitrary nature of a young age-limit, as in the age-limits for holding a firearm or purchasing a beer, or whether it was the age-limit at the other end of the scale, that of a compulsory age-limit. It is quite interesting to look at the age of our current judges, and if we look at the ones aged between 65 and 68, we see that 11 of them are currently sitting in New Zealand. Nine of them are District Court judges and two are High Court judges. To extend that retirement age would certainly help to retain that intellectual capital. In my speech on the second reading, I think I said that 68 years did not appear to be a particularly old age—neither does 70, for that matter—but the nearer one approaches that age, the younger the age seems.

I would like to take a call on Part 2 later on. National supports the bill. It is straightforward and merely increases the retirement age of judges and other justices to 70 years of age, which is consistent with many other jurisdictions such as those of the United Kingdom, Australia, and Ireland. It is an arbitrary age-limit. It is not an indication of a judge’s competence, or otherwise. It is merely a mandatory retirement age. It is important to have a mandatory retirement age for judicial officers for the security of tenure and also, as has previously been mentioned by the Minister, for judicial independence.

JOHN CARTER (National—Northland) Link to this

I feel compelled to take the opportunity to speak on this Judicial Retirement Age Bill. As previous speakers have said, the National Party is supporting the bill. We are supporting it for a number of very good legal reasons and for reasons that are important to this Parliament and the country. But one of the things that is most important for this country, which we need to recognise today in the House, is that we need to keep institutional knowledge in areas such as the judiciary or within any other capacity.

One of the sad things that has happened too often in this country is that people have been retired early and we have lost a whole lot of experience. The judiciary is no different from any other group in that regard. Those people are well skilled, they are well versed, and they have huge knowledge, but then often as they are reaching the stage when they can make a very good contribution to our society—

CHRISTOPHER FINLAYSON (National) Link to this

I have just a couple of points to make about Part 2. The first is to address a question that the Law Society raised in a letter it sent to the Justice and Electoral Committee. The letter said there was quite a good argument for the retirement age to go back to 72—indeed, some people would say it should go up to 75. That is, perhaps, a question for the future, but in the meantime I think that the move to 70 is about right, and for the reasons I have already said—it is basically in line with what happens in other jurisdictions.

Admittedly, however, many fine people have retired from our bench, then gone on to serve in other courts for quite a number of years. I refer, for example, to the former President of the Court of Appeal, Sir Robin Cooke, as he then was. He retired as President of the Court of Appeal in 1996 and, uniquely for a New Zealander, he was appointed to the House of Lords, where he sat dealing with English appeals. He also sat on the Privy Council dealing with New Zealand appeals. He did that for another 5 or 6 years. So he continued to make a huge contribution there. He also continued to sit, even after he retired from the House of Lords, on the Court of Appeal of Samoa and a number of the other courts around the Pacific.

A more recent example is that of Sir Kenneth Keith, who, having served with distinction on the Court of Appeal and on the new Supreme Court, retired from the Supreme Court last year after his appointment as a judge of the International Court of Justice. He retired from the Supreme Court at the age of 68, and he will be able to sit on the International Court of Justice until the age of 78. The points made by the Law Society are not without merit, and I think the question will be revisited sometime in the future.

I have only one question of the Minister, which may entice him to get to his feet, and that concerns Subpart 5, which deals with amendments to the Coroners Act 1988. I am not quite sure—and I would be grateful if the Minister could elucidate—why exactly it is necessary to refer to the 1988 legislation when, of course, Subpart 6 refers to the Coroners Act 2006. As the Minister well knows, that legislation went through this House last year. If my memory serves me correctly, the Government has already appointed a new chief coroner, who is a former District Court judge from Christchurch, and is in the process of appointing the 14 or 15 coroners who will serve full-time, as is anticipated by the new regime. So perhaps the Minister could tell me why it is necessary to amend legislation that I know has not been repealed. I know there are some transitional provisions, but it would seem to be a bit of a waste of time, because the new regime will be in place very soon indeed.

The final point I make, and it is in the nature of a suggestion to the Minister for Courts, is that when one looks at the various legislation we are amending, like the District Courts Act 1947 and the Judicature Act 1908, one can see that those Acts are long overdue for comprehensive reform. I suggest to the Government that there would be much to commend it if we had a comprehensive Courts Act. For example, when one reads through the Judicature Act 1908, one sees that in the space of 99 years it has been amended on a huge number of occasions, and at least half of the sections that were originally in that Act have been repealed. When one looks at the various court statutes in this way, one sees that a very strong case can be made for a consolidated Courts Act. I suggest to the Minister that 2008, the 100th anniversary of the passage of the Judicature Act 1908, would be a very good time to do that. It should not be too much work; it would be a question of consolidating the various statutes. [Interruption] It is a complicated matter, but I believe that the Minister should take it on board, because it would be a very good piece of work, and I could assure him that the Justice and Electoral Committee, with its usual sedulous approach to the dispatch of business, would deal with it very carefully. But I would be very interested to know why we are amending legislation that is very soon to be totally repealed.

Hon RICK BARKER (Minister for Courts) Link to this

I will reply just briefly. The reason we are amending the legislation is that the Coroners Act 1988 expires on 30 June 2007, and this legislation could well come into force before that legislation expires. It will be replaced by the Coroners Act 2006, which will come into effect on 1 July. It is necessary to mention both pieces of legislation.

Dr RICHARD WORTH (National) Link to this

National supports the speedy passage of the Judicial Retirement Age Bill. I would like to add to the comments made by the previous speaker, Chris Finlayson, by saying that in looking at the division of this bill into parts, there certainly is a case for the District Courts Act and the Judicature Act to be brought into closer alignment. It would be a very fitting end, I believe, to the career of the Minister in the chair, the Hon Rick Barker, if he were to commence upon such a task as that.

There is not a lot of substance in Part 2. The only point of substance is to increase the retirement age of judges in the way that is being described. But I would also like to pick up on a comment made earlier that it is appropriate to reflect on the contribution that the judges, at all levels of the system, make to the legal system. It is a man-made system; it suffers, of course, from imperfections. But one of its great strengths is the calibre and the intellectual capability of the judges.

It is often said that being a judge is a difficult task—not so difficult, perhaps, in terms of its intellectual dimension but in terms of the daily grind. The Minister will be very much aware of pressures emanating from the Auckland High Court district in connection with massive delays in the criminal jurisdiction, which have been substantially brought about by the refusal of the Government to transfer a substantial body of work to the lower court. I am speaking about the delays in bringing drug dealers to trial in respect of methamphetamine activity.

This is an issue that has been raised with the Minister in the chair on a number of occasions. It is very much a hot issue amongst the judges in Auckland, and it has a significant consequence, in the context of this Judicial Retirement Age Bill. The delays are of such a magnitude that there may be some cases that will see judicial lives flourish until the end of the extended term of 70 years of age without a number of these cases being resolved. I commend the Minister that he look at that particular issue without further delay.

In the course of the debate on this bill I have made three essential points. Those three points have been these. First, there is a clear case for extension of the retirement age. That could be done in a number of ways. It could be done by fixing an age, or it could be done by creating a term of years for judges to serve. In the particular instance here the Government has followed a traditional path in extending the retirement age to 70. It could have been 72. As I commented earlier, we have made provision in our Supreme Court for acting judges to serve up to the age of 75. So there is no necessary magic in what the age might be.

The second point, which I think is worth noting, is that judges are being given tenure akin to the tenure that is given to people like professors at universities. Associated with that there must always be the question that arises when a judge starts to flag, when perhaps his or her faculties begin to fail. In 2004 Parliament passed legislation that I think is particularly relevant and significant in that regard, and that was the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. It was the case that a judge could behave in an errant fashion for many years and not be held accountable. It was seen as a hugely Draconian step for a judge to be removed for misconduct. In the history of New Zealand we came close to doing that only once, and it concerned the conduct of Mr Justice Edwards in about 1920. But now we have in place this legislation that deals with judicial conduct and sets up a Judicial Conduct Commissioner and Judicial Conduct Panel Act. So those who are aggrieved, who appear as litigants in the courts or as accused persons, have a mechanism, working parallel with this legislation—the Judicial Retirement Age Bill—to make complaints through the system if that is appropriate.

The third and final thing I would like to say is that I have expressed concern in the past that this legislation may be a pathway that excites some judges to look again at the prospect of being part-time judges. I hope that the Minister and the Attorney-General will set their hearts firmly against that course, because judging is a full-time occupation. It is not to be carried out in association with other trades and hobbies.

KATE WILKINSON (National) Link to this

In taking a call on Part 2, which has been more than adequately described by my colleagues, I point out that it increases the retirement age of the various District Court judges, Employment Court judges, High Court judges, Supreme Court judges, Māori Land Court judges, and coroners. The explanatory note is pretty helpful in explaining the rationale and the positive benefits of increasing the age of retirement of judges from 68 to 70. I shall quote from it for the record, because I think it is important: “The current retirement age of 68 years causes a loss of valuable knowledge and experience to the judiciary. The current age also presents a barrier to attracting senior practitioners or lawyers who have distinguished themselves in other fields … to judicial office. Experienced practitioners and academics can bring significant depth to the bench. … Raising the judicial retirement age will enable the retention of our most experienced and capable Judges and encourage recruitment of senior practitioners.” I think that intellectual capital—that experience—has already been well mentioned by my colleague Mr Carter.

Dr Worth mentioned briefly that there is a concern and an issue at the moment in relation to the delay in court hearings. It is hoped that this legislation might go some way to perhaps making those court delays a little less. Some of the figures—and, yes, I will be selective about the figures to illustrate the point—certainly paint a somewhat horrific picture. I appreciate that not all the delays are due to the lack of availability of a judge, but it is certainly hoped that if we increase the ages of judges, more may be available and the waiting times might be reduced. It is well known that justice delayed is certainly justice denied. As lawmakers it is important for us to legislate law that provides, as far as possible, that our citizens have adequate, speedy, efficient access to justice.

There is a case in the District Court in Auckland that has been waiting 1,179 days for a hearing date. That is unacceptable. As I said, it is not necessarily because of the unavailability of judges—it might be for a lot of reasons—but waiting 1,179 days for any case to come to a hearing is not an acceptable state of affairs. I will give two other indications. There is a case in the Christchurch District Court that has been waiting for a jury trial hearing for 742 days. Another case, in the Manukau District Court, has been waiting for 705 days. I think that in anyone’s language, 2 years to obtain a hearing date for a District Court trial is not speedy, efficient access to justice.

In relation even to civil cases there are also delays in many of the courts. For example, in the Auckland High Court the median waiting time for a High Court civil case to be heard is 264 days. That is nearly a year, and a lot can happen in that year. Whilst people are waiting for their legal problems to be resolved, they are caused a lot of uncertainty, angst, and worry. To have to wait 264 days for a civil High Court hearing in the Auckland High Court is certainly a worry, and not good enough. By comparison, in the capital the median waiting time for a High Court civil hearing is 231 days, which is slightly better than in Auckland but certainly nothing to write home about.

We can compare District Court jury waiting times—and, again, it is important that criminal matters are dealt with as soon as possible. There are people like the accused, defendants who have been accused of a crime, who are pleading their innocence and wanting the matter resolved as quickly as possible. I will just mention some of the waiting times for District Court jury trials, and I will mention only those that have run over 300 days. That is the median waiting time, but of course 300 days is nearly 1 year. The Auckland District Court has a median waiting time for District Court trials of 321 days, whereas in the Blenheim District Court—the worst in the country—it is actually 372 days. I will mention one other figure, which is the High Court jury waiting time. In Napier, for example, the median waiting time is 346 days. Again, that is approximately 1 year and far too long for anybody to have access to justice, or for the system to be called access to justice—efficient and speedy access to justice. We certainly hope that by increasing the retirement age of judges to 70 there may be more intellectual capital available, and we may be able to utilise the skill and experience of our judicial bench.