PITA PARAONE (NZ First) Link to this
I move, That the Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill be now read a second time. Tēnā koe. This bill comes back to this House after having been considered by the Justice and Electoral Committee, which, unfortunately, has recommended that the bill not be passed. It is a bill that I personally sponsored, and I am not ashamed to have done so. This bill formalised what New Zealand First indicated it would do prior to the last election. How this bill could be credited to a bigot, a redneck, a racist, or just a plain idiot beggars belief. This bill is not about doing away with references to the Treaty of Waitangi from legislation. It is not about the watering down of the Treaty of Waitangi in legislation. It is not about personalities. In particular, it is not about the incumbent, as has been suggested by some commentators, and it is not about preventing Māori from sitting on land cases—yes, indeed; to the member who proffered this preposterous thought, I say āe mārika.
This bill is about removing the ability of serving judges of the High Court or Māori Land Court to also sit on the Waitangi Tribunal. The amending legislation enacted in 1998 allows serving and retired judges of the High Court to act as members and as chairpersons of the tribunal. Since the tribunal’s establishment there has been provision for the Chief Judge of the Māori Land Court to act as its chairperson, and because of that provision that has been the situation to date. Of course that begs the question as to why the Chief Judge of the Māori Land Court was appointed and not a retired judge, as is allowed by the 1998 legislation. And I should say that during the select committee process, although that question was asked by the membership of the committee, we did not actually get an answer. As I said during the first reading of this bill, it would seem highly dubious to us in New Zealand First that serving judges of either the High Court or the Māori Land Court are allowed to preside over matters in the tribunal, when they may have presided over those matters in the High Court or, indeed, in the Māori Land Court.
I appreciate that the Hon Peter Salmon QC was asked by the Solicitor-General to undertake an independent review into the appropriateness of the chairperson of the tribunal also holding an appointment to the Māori Land Court. Can I say that the honourable judge, the Hon Peter Salmon QC, found that there was no inherent conflict. He also pointed out, quite correctly, that all submitters on the bill opposed it. Now, many of the submitters indicated that they could see no reason why there should be a separation of the two appointments. I ought to say that in 2001 the Solicitor-General was asked to provide a similar opinion as to the relevance or irrelevance of the position of chairperson of the tribunal being held by the Chief Judge of the Māori Land Court. I quote him: “In the context of the tribunal, of course, there is a history of conjoint holding of offices and a very good practical reason for this—namely, the relative scarcity of prospective members with the necessary expertise.”
So the suggestion is that Māori Land Court judges are sitting on the tribunal because of the expertise they bring to the position. I would ask, then, why laypersons of Māori descent who have a knowledge of things Māori are appointed to the same tribunal. I would have thought that it would be the responsibility of those laypersons to bring that knowledge to the tribunal. However, people obviously believe that only a judge of the Māori Land Court can do that. Secondly, I want to say that although it is recognised that the present judges of the Māori Land Court bring expertise, skill, and experience to the tribunal in terms of Māori and Māori culture, it was not very long ago that the Chief Judge of the Māori Land Court, and indeed other judges of the Māori Land Court, were not even Māori. So we have to ask ourselves why it is, then, that all of a sudden people who become Māori Land Court judges, and who are required to sit on the tribunal, need to be Māori and need to have expertise in and knowledge of Māori culture.
New Zealand First has always been of the view that although we recognise that the learned judges who sit on both the Māori Land Court and the tribunal will know the difference between a situation that presents a conflict of interest and one that does not, the fact is that there is still the opportunity for a conflict of interest to arise. I do not in any way doubt the integrity of those persons who have been appointed to those positions.
I also want to make a comment with regard to the alleged personality issue of both the Chief Judge of the Māori Land Court and the chairman of the tribunal being one and the same person. I want to make it quite clear that it was never the intention of New Zealand First to question the present incumbent. We have the highest respect for the knowledge and integrity that he brings to the position. However, that does not divert the view of New Zealand First in terms of there being an inherent conflict of interest.
I do not need to go on too much about this bill. Suffice it to say that while New Zealand First is a party in this House, this issue will need to be discussed—not necessarily agreed on, but certainly considered—by any party that sees itself as forming the next Government of this country. In conclusion, I reiterate the support of New Zealand First for this bill.
CHRISTOPHER FINLAYSON (National) Link to this
Conflict of interest is a very serious matter for any professional, and certainly for any judge. In the legal profession, for example, it can arise in a number of ways: lawyers acting against former clients, lawyers acting on both sides of a transaction, or, indeed, lawyers who become involved in the commercial dealings of their clients. It is certainly not something that one regards lightly. So the issue raised by the Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill required very careful consideration by the Justice and Electoral Committee. I can tell the House that having closely studied the issue, having listened to the submissions, and having had the benefit of the views of retired High Court Judge Peter Salmon, the select committee was satisfied there was no real issue that needed to be considered by the bill.
The House referred this bill to the select committee on or about 27 June last year, and we are dealing with it only now. Regrettably, the bill took somewhat longer than usual to deal with at the select committee, as we could not get on to it because of the need for the committee to deal with the odious Electoral Finance Bill. As we all know, that legislation was aimed at the National Party, although as today’s judgment of Justice MacKenzie on the application of the New Zealand Amalgamated Engineering, Printing and Manufacturing Union shows, it was really a cunning plan by Lynne Pillay to aim it at the foot of the Labour Party. Indeed, that is what happened in the High Court today to her very own union, which appeared before the select committee and argued strenuously for the new regime but which is the first victim of it. But I digress, and it is important that at this late hour we come back to the bill.
Lynne PillayCHRISTOPHER FINLAYSON Link to this
What does the Labour Party know about justice?
I come back to the structure of the Waitangi Tribunal. We looked at the structure of the Waitangi Tribunal and of the Māori Land Court, and I was very interested in the New Zealand First minority comment, which correctly described the tribunal as a commission of inquiry but questioned why it was necessary to have a judge as head of the tribunal. The New Zealand First member failed to understand that although the tribunal is a commission of inquiry, it fulfils many of the functions of a court. It gathers facts; it applies the law to the facts. Those are obviously tasks that belong to a judge, and New Zealand First never really came out and said what sort of person it would prefer to head the tribunal. Should it be an accountant or a teacher? Everyone knows that lawyers do those sorts of things better than anyone else.
Then we got on to the important question of conflict of interest. Although the New Zealand First members were yelling and screaming from the pulpit at the first reading, alleging an inherent conflict of interest, it seems to be the case that New Zealand First does not understand the distinction to be made between an inherent conflict of interest and a potential conflict of interest, or a conflict of interest that arises on the particular facts. It was the issue of an inherent conflict of interest that concerned me, which is why I was pleased that the bill went to a select committee, and I paid very careful attention to it in the select committee deliberations.
But the fact of the matter is there is no inherent conflict of interest. It is not unusual for judges in New Zealand to sit on a number of different courts. From time to time a judge of the High Court will sit on the civil appeal division of the Court of Appeal, or on the criminal appeal division of the Court of Appeal. But it would be unheard-of for a High Court judge to sit as an appellate court judge on his or her appeals, because on the facts there would be a conflict of interest. There is no inherent conflict of interest here. The New Zealand First comment in the select committee report almost concedes that, because it states that judges can have potential conflicts of interest. Well, we acknowledge that, but one is never going to be able to do away with potential conflicts of interest. They will arise on the particular facts. What we are satisfied with is that there is no inherent conflict of interest such as would prevent judges of the Māori Land Court from also sitting on the tribunal.
The third issue that was looked at was knowledge of the issues. The majority of the select committee agreed with Mr Salmon’s conclusion that the best qualified people should be appointed to sit on the tribunal, and that such people should have a good understanding of tribal structures, Māori land history, and Māori customs and tradition. Those competencies are very important in the chairperson of the Waitangi Tribunal, just as they are in the Chief Judge of the Māori Land Court. Given the relatively small size of the New Zealand jurisdiction, sometimes there could be practical difficulties in finding the right people to sit on the tribunal, and sometimes there will necessarily have to be an overlap. I do not really think that the New Zealand First minority report addressed that issue, at all. There seemed to be quite a lot of waffle about judges in the tribunal having to deal with highly charged atmospheres because of some of the issues that arise, but the minority report did not really address the issue of knowledge of the issues at all.
So all in all, it was a very interesting exercise. I satisfied myself that there is no inherent conflict of interest, and that the tribunal is particularly well served by the judges of the Māori Land Court who also preside on the tribunal. I might say that New Zealand is extremely lucky to have as Chief Judge of the Māori Land Court and chairperson of the tribunal a man of the stature of Judge Joe Williams. He is a great New Zealander. He is an inspirational New Zealander, who has achieved a great deal for his country in a very short period of time.
Hon Trevor MallardCHRISTOPHER FINLAYSON Link to this
Well put, and that man should have been Attorney-General! At least I can say that if they came from many lawyers these words would appear to be weasel words, laying the foundation for appointment as a silk. But, of course, I am never going to be one, so I can make these comments from the heart and say that Judge Joe Williams is a very fine fellow.
This bill, well intentioned though it may have been, was fundamentally misconceived, and I come back and remind the New Zealand First members that they were the ones who made the allegations about an inherent conflict of interest. There is no inherent conflict of interest. Admittedly from time to time there can be a potential conflict of interest arising on the facts, and then any judges worth their salt will recuse themselves from sitting on the particular cases, as one would expect.
Dail JonesCHRISTOPHER FINLAYSON Link to this
That happens all the time, I say to the New Zealand First member who questions me. It is right that judges do that. It happens not only in the tribunal but in the High Court, the District Court, and other courts as well. We are satisfied that the issue, though interesting and very important, has been satisfactorily resolved; and that is why National will not be supporting the second reading of this bill.