Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Bill, District Courts (District Court Judges) Amendment Bill, Judicature (Judicial Matters) Amendment Bill

Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this

I move, That the Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Bill, the District Courts (District Court Judges) Amendment Bill, and the Judicature (Judicial Matters) Amendment Bill be now read a third time. These three bills emerge from the division of the Judicial Matters Bill and I will deal with them one by one.

The first is the Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Bill. It amends the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. The Office of the Judicial Conduct Commissioner provides a public and transparent judicial complaints process while upholding the principle of judicial independence. The bill makes three changes. Firstly, it creates the position of Deputy Judicial Conduct Commissioner, who will be appointed in the same manner as the Judicial Conduct Commissioner—that is, by the Governor-General on the recommendation of this House. The Attorney-General is required to consult the Chief Justice on the proposed nomination prior to the debate in the House. The deputy commissioner will be able to conduct a preliminary examination of a complaint when the commissioner has a conflict of interest regarding the complaint or is otherwise unavailable.

Secondly, the bill allows the commissioner to dispose of a complaint if in all the circumstances further consideration of the complaint is not justified. This is appropriate where the complainant is satisfied following an explanation or apology from the judge. However, even though the complainant may be satisfied by the judge’s explanation or apology, the commissioner may still decide that further consideration of the complaint is required. In making the changes on the disposal of complaints, the opportunity has been taken to do a number of other things to clarify some reasons why the commissioner may take particular actions, to set out the actions available to the commissioner in the sequence of the Act as amended by this legislation, and to update schedule 1, which provides a diagrammatic overview of the complaints process.

Finally, the bill states that the amendments do not apply to complaints lodged prior to the commencement of this legislation. Consequential amendments are also made to the Coroners Act 2006 and the Official Information Act 1982. The amendments 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 report to Parliament and are endorsed by the present commissioner.

The second bill is the District Courts (District Court Judges) Amendment Bill, which amends the District Courts Act 1947 to increase the statutory limit on the number of judges who may be appointed from 140 to 156. This limit includes all judges holding a District Court judicial warrant. These are judges of the District Court in its specialist divisions—the Family Court and the Youth Court—as well as judges of the Environment Court and the chairperson of the proposed new Immigration and Protection Tribunal. Currently, two judges of the Employment Court hold warrants as District Court judges, as do the chief coroner and the outgoing Principal Disputes Referee.

Since coming into office, this Government has progressed and continues to progress significant legislative and policy initiatives that are aimed at making New Zealand a fairer and safer society. The effective implementation of these initiatives, particularly those arising from the Government’s 100-day action plan, will require increased judicial resources, and this need is primarily in the District Courts. The legislation amends the District Courts Act to increase the statutory limit, and it is the first increase since 2004. While meeting the judicial resource requirement flowing on from the Government’s initiatives, the increase will also allow some scope for future appointments.

The final bill is the Judicature (Judicial Matters) Amendment Bill, which makes three amendments to the Judicature Act 1908. First, it confirms that High Court judges serving as acting judges of the Court of Appeal should receive the same remuneration for that period of service as the permanent judges of the Court of Appeal. The bill also validates past payments made in these circumstances. High Court judges provide a valuable supply of additional judicial resource to the Court of Appeal, especially for hearings in both the criminal appeals division and the civil appeals division. In addition to ensuring the Court of Appeal can get through its heavy workload, High Court judges are able to share their current experience in conducting trials, while gaining insights into the appellate process.

While serving in the Court of Appeal, High Court judges receive a higher duties allowance, which is calculated on a per diem basis on the difference between the salaries of judges of the two courts as determined by the Remuneration Authority. Although the payment practice is consistent with the principles of judicial independence, in 2008 the High Court, in Wikio v Attorney-General, expressed the view that the payment of an allowance to a High Court judge sitting in the Court of Appeal should rest on a more secure constitutional foundation than was apparent from the available evidence. The amendment addresses this concern. I note that there was a very helpful discussion in the Committee, where members of all sides raised a number of points, and the concerns expressed by the Labour Opposition about the placing of judicial salaries on a more sound constitutional footing were certainly noted.

Secondly, the bill increases the current statutory limit on the number of Associate Judges of the High Court who may be appointed; this limit increases from six to nine. It is the first increase for many years. The office was created in 1989, and associate judges have made a valuable contribution to civil proceedings in the High Court. As I noted in my speech on the second reading of the Judicial Matters Bill, the increase in the cap, together with the recently announced court-assisted mediation pilot and the recent improvements to the High Court Rules, will ensure adequate judicial resources are available to meet the increasing demands of the High Court’s workload.

Lastly, the bill amends the statutory limit on the number of Court of Appeal judges, so that the maximum number, including the President, is increased from nine to 10. This amendment is intended to meet the increasing workload of the Court of Appeal. The statutory limit was last increased in 2006.

In conclusion, the amendments set out in these bills are important improvements to enhance public confidence in the judicial complaints process, and they will ensure that our courts are adequately resourced. I thank members once again for their collaborative spirit in discussing some of the important constitutional issues addressed by this legislation. I commend these bills to the House.

CHARLES CHAUVEL (Labour) Link to this

The parts of this legislation that reform the judicial complaints procedure and allow for an increase in the number of Associate Judges of the High Court were introduced originally by Clayton Cosgrove on 25 June 2008, and were read by the House a first time on 26 August of that year. In his capacity as Associate Minister of Justice at the time, Mr Cosgrove said they would increase public confidence in the judicial complaints process and ensure that an adequate resourcing level was available to meet the growing workload of the judiciary.

In respect of the amendments to the judicial complaints procedure, Mr Cosgrove explained that the amendments were based on the Judicial Conduct Commissioner’s recommendations in his reports annually to Parliament. Despite some minor changes recommended by the Justice and Electoral Committee and some further changes introduced by Supplementary Order Paper 108 in the name of the Hon Christopher Finlayson in the Committee stage, in essence the legislation that we are now reading a third time and that will become the Judicial Conduct Commissioner and the Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act will do just that. David Gascoigne, a friend and former colleague of mine, now holds office as the Judicial Conduct Commissioner. As I have said on previous occasions, the House can be very confident that he will do an excellent job in that role, and the amendments that we are about to make to the law will assist him to do so.

As to the raising of the cap on the number of associate judges from six to nine, at the time of the first reading of this legislation Clayton Cosgrove pointed out that this is the first increase in the ceiling since 1991. He set out very helpfully in his speech the history of this class of judicial officer. He started with the amendment back in 1989 to provide for the appointment of Masters of the High Court. He noted that since their inception, the jurisdiction of the masters increased from hearing summary judgment and bankruptcy applications to much more complex commercial issues, such as insolvency proceedings. He canvassed the renaming of the masters in 2004 to become associate judges, and he recited the fact that at that time they were given permanent tenure of the court. He noted that associate judges have a specialist civil jurisdiction, and that they are invaluable in alleviating the workload pressures of judges by undertaking a range of work in the company law and insolvency areas.

It is clear, I think, that the increase in the statutory cap will enable future associate judge appointments to be made if and when they are required, without an unnecessary legislative delay. This in turn will ensure that adequate resources are available for the growing workload of associate judges, especially given the commencement of the Insolvency Act 2006.

Christopher Finlayson conceded during the second reading of this legislation that he and his colleagues had opposed it when it first came before the House. He had used quite strong language to express that opposition. On the judicial complaints issue he originally said in the first reading that the approach adopted by Labour was “illustrated by this foolish legislation: set up an office, create procedures, appoint a commissioner, and then bring on the inevitable amendment bill that seeks to appoint a deputy commissioner. The next thing we will have is … a culture of complaint being encouraged and nurtured. There are plenty of litigants out there who, having lost their cases, will personalise them against judges. They are encouraged by this ridiculous regime to make complaints. … We do not see any need for a deputy commissioner. In fact, we do not see any need for a commissioner. … This person does not need a deputy, because the prospect of conflict of interest is minimal. … There is no need to legislate the obvious, such as clauses dealing with the disposal of complaints, and we are, therefore, opposed to this stupid legislation.”

In respect of the proposal to raise the maximum number of associate judges, Mr Finlayson wondered “whether simply increasing their number at this time masks the real problem with civil litigation, an area of the law that this Government [the previous Labour Government] has neglected throughout its term.” He referred to a crisis in civil litigation and a system that he said was “undermined by costs, increasingly prescriptive processes, and delay. A real problem in civil litigation is the vast amount of money being spent on needless discovery of documents. Another problem, in my opinion, is the prescriptive case management procedures”. Mr Finlayson went on to suggest that “Fundamental reform of the civil justice system is required. I do not think we need more associate judges; we need fundamental reform. We also need to free judges from the burdens of administration, so that they can concentrate on their core job, which is to judge.”

As I said, Mr Finlayson acknowledged the change in his position during subsequent readings of this legislation. I suppose he could hardly do less than that, since by then he had become the sponsor of it. He did not apologise for the intemperate language that he had used in his original speech in the first reading; perhaps that would be too much to hope for. But Mr Finlayson went further than reversing his original position and his party’s original opposition. He tabled further amendments during the course of the Committee stage that provide for another permanent member of the Court of Appeal, 16 new District Court judges, and the regularisation of a higher duties allowance payable to members of the High Court who are sitting temporarily on the Court of Appeal. None of those amendments went to a select committee, despite the significant financial and constitutional issues that they raise. Mr Finlayson even sought at one stage to have the House deal with them under urgency. Labour did decide in the end to support the changes sought by the Government when it was asked to do so, although not to have them dealt with under urgency.

In closing, I want to tell the Government and the Attorney-General that, in fact, many members on this side of the House actually have sympathy with the original sentiments that he expressed. There are real issues with regard to the administration of our justice system, and ordinary New Zealanders have real problems in accessing justice meaningfully in our country. Many of those matters were ameliorated by Labour when it was in office, but I do agree that more thorough reform is needed. It should not simply be a matter of always increasing the maximum number of judges that can sit in a particular court. As was noted during the Committee stage debate, if we reach the new ceiling for the number of District Court judges, the largest court in Australasia will be represented by the District Court. It cannot be the case that we will simply continue to add more and more judicial officers to the system, without looking at the fundamental questions that arise about the operation of that system.

I hope that Mr Finlayson will be equal to the challenge of reforming the system, the challenge that he laid out in Opposition, and that he does not lose his passion for reform now simply because he is sitting on the Treasury benches and is being advised by officials. If he is to have a place in our history as a significant reformer of the civil justice system, he needs to rise to the challenge of the need for thorough reform of that system, along the lines, perhaps, of the excellent report of the Law Commission on the structure of the courts, which sadly has sat on the shelves since it was published. That is an excellent report. It recommends thorough reform of the system, the creation of a community court at the first level, the rationalisation of the High Court and the Court of Appeal, and the Supreme Court sitting at the apex of the system. That sort of reform is needed in the system at the moment, not simply the continued addition of more and more judicial officers to the creaky system that currently exists. If Mr Finlayson is up to that challenge, he will certainly have support from this side of the House. If he is not, then certainly the next Labour Government will look to enact those sort of reforms. Thank you.

SIMON BRIDGES (National—Tauranga) Link to this

I said in an earlier reading of the Judicial Matters Bill that the matters we are dealing with in it may in many ways seem dry or not even technical, really, in that we are just increasing some numbers and creating a new role, and that is about it. But behind it all are important constitutional principles that go to the heart of the rule of law in this country and, ultimately, our democracy. It is important that we get legislation like this right and that we do a good and thorough job. It is good to see, as we come to the third reading stage of what was one bill but is now three bills, that we have done that.

This legislation does a number of things. It takes the original law that created a Judicial Conduct Commissioner and a Judicial Conduct Panel—which was important for giving confidence in the complaints process in relation to the judiciary—and it creates the new position of Deputy Judicial Conduct Commissioner. Again, as I said in an earlier speech, there are many reasons why it is important to have a deputy. It is surprising in many ways that we did not get this right the first time we did the job and created the position of the Judicial Conduct Commissioner, given that in a small nation like New Zealand, where the legal community is obviously even smaller—people know each other well, and everyone who has worked in a law firm knows many other lawyers well, professionally and personally—conflicts of interest and appearances of conflicts of interest will arise. Also, the Judicial Conduct Commissioner will from time to time get sick, be overseas, or not be able to perform his or her job for any variety of reasons, so it is important that we create the position of a Deputy Judicial Conduct Commissioner. We have also given this office the power to take no further action, which is something that I think the Judicial Conduct Panel recommended.

Through a series of bills we have increased the number of Associate Judges of the High Court. I remember talking fondly about associate judges in an earlier reading. I said what an important role they play in terms of getting through the lion’s share of corporate commercial company securities work in our country. They do a very good job for us.

The legislation also increases the number of District Court judges, High Court judges, and Court of Appeal judges. Let me just ponder very briefly the increase in the number of District Court judges, from 140 to 156. I think it is worth noting that our District Court judges do a superb job for us in this country. As a lawyer, I appeared before a wide variety of judges of all shapes and sizes and of all intellects—I will not dwell on that point—and they do a very good job in our courts. In the Tauranga District Court, we are exceptionally well served by Judges Thomas, Harding, Rollo, Ingram, Bidois, Somerville, and Geoghegan. All of them do an excellent job, day in, day out, under what is—sadly, given that most of it is criminal and family work—a growing demand for their expertise and wisdom.

With those remarks, I finish by saying that this series of bills does a number of things that some might think of as boring. Nevertheless, behind all that is important principles and issues that go to the heart of the rule of law and democracy in our country.

Hon LIANNE DALZIEL (Labour—Christchurch East) Link to this

Thank you for the opportunity to address the three bills that now take the place of the Judicial Matters Bill that we have been debating over the last wee while. I think it is worth reflecting on some of the comments that were made by the National Party in Opposition, when this bill was introduced originally by a Labour-led Government.

I know that people change their minds. One can understand that after considering all of the facts and taking into account a consideration of advice both from officials and perhaps from submissions that have been made, a party may change its position, and that is something to be encouraged. Listening to people, hearing the evidence, considering expert advice—all of those things ought to lead a Minister of a Government of any colour to be willing to take into account those matters and to adjust the position so that it is reflective of a sensible policy position, rather than one that is not substantiated by evidence. National standards would be a really good example of where that has not happened. On this occasion it has happened, but the Government has gone completely to the opposite extreme, and at no stage has it given us a clear exposition as to why it shifted from one position to the other.

There was a point, which I will just follow on, from Simon Bridges, who was addressing this issue just before when he talked about judges and having to increase their numbers. I will simply quote back the statement made by Chris Finlayson before he became the Attorney-General. He said, in respect of associate judges: “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.” I would support that; I agree that we need a substantive reform of our civil justice system, and it is something that I am working on from the Labour Party perspective.

It is a shame that we have not really had the in-depth debate on this legislation that we should have. We have not really engaged with the Minister about the change in approach that has been adopted. For example, when National started with this particular legislation from the position of being in Opposition, it completely opposed it. Its members spoke against the bill and voted against it, but, more so, they were actually quite derisory of the type of legislation that it represents. Let me read this quote from, again, the Hon Chris Finlayson at the time that he was the Opposition spokesperson: “The Labour Party approach is illustrated by this foolish legislation: set up an office, create procedures, appoint a commissioner, and then bring on the inevitable amendment bill that seeks to appoint a deputy commissioner.”, which is what this bill does. “The next thing we will have is a registrar, a council of worthies, hundreds of bureaucrats, and, lo and behold, a culture of complaint being encouraged and nurtured. There are plenty of litigants out there who, having lost their cases, will personalise them against judges. They are encouraged by this ridiculous regime to make complaints. Of course, judges can be rude, grumpy, or discourteous. In many cases one can hardly blame them, given the quality of submissions they have to hear from lawyers. But are we 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.”

CATHERINE DELAHUNTY (Green) Link to this

I rise to take a very short call on the Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Bill, the District Courts (District Court Judges) Amendment Bill, and the Judicature (Judicial Matters) Amendment Bill, because the Green Party will be supporting all of them. I want to speak in support of comments made by my colleague Dr Kennedy Graham in the first reading, the second reading, and the Committee stage. He wanted me to assure the House that we had some concerns, particularly around Supplementary Order Paper 108, but we were provided with background information by the Attorney-General that satisfied all of our concerns, so we are comfortable now to vote with others in support of all stages of the legislation. Thank you.

RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this

These three bills—the Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Bill, the District Courts (District Court Judges) Amendment Bill, and the Judicature (Judicial Matters) Amendment Bill—emerged from two simple issues. The first is the opportunity to look afresh at the role of the Judicial Conduct Commissioner and the Judicial Conduct Panel and to understand how to best improve upon their performance. Specifically, the bills introduce the means by which a deputy commissioner can be appointed when the commissioner has a conflict of interest, is absent from the office, or is incapacitated. The second initiative amends the Judicature Act 1908 to increase the maximum number of associate judges of the High Court from six to nine.

Of course, this is about more than bumping up the numbers on the bench or finding substitutes to fill in for the commissioner. The wider purpose behind these initiatives is to enhance public confidence in the judicial system and protect impartiality and integrity in the system. It would seem a most opportune time to be doing so. Just 3 months ago a report was released based on research published during the last 40 years to bring together findings on bias against ethnic minorities and indigenous peoples at key stages of the criminal justice system. That report, entitled Identifying and Responding to Bias in the Criminal Justice System, represents the most comprehensive review on the literature around ethnicity and the criminal justice system undertaken in New Zealand to date. It is clearly of key interest in terms of this bill.

Probably the most significant finding from the review is the conclusion that further research is required to remedy the gaps in current knowledge about ethnic disparities in the New Zealand criminal justice system. Importantly, it also notes that although further research is always useful, it is unlikely to provide definitive conclusions about the location, nature, and extent of bias in the system. The report cautions against placing any policy development on hold pending the outcome of the review. The report does identify, however, that research undertaken by the Law Commission in New Zealand found substantial variations in practice between different court districts in sentences imposed, which were unlikely to be accounted for by offence or offender variables. We need to understand how such significant differences can occur between different court regions and different judges. But as the review itself states, we do not have the luxury of time to wait and wonder; we must do what we can to maintain and enhance public confidence in the judiciary now.

A common response to situations of criminal justice bias has been the introduction of cultural awareness training programmes. Initiatives to raise cultural awareness are found in the United States, the United Kingdom, Australia, Canada, and New Zealand. Specific examples here include the cultural awareness training undertaken by police recruits and probation officers, as well as cultural awareness programmes for judges. The Māori Party is a strong advocate of cultural competency—that is, competence in our beliefs, practices, expectations, and behaviours—to be able to operate in different cultural contexts. Although cultural awareness—by which we mean sensitivity and understanding towards other cultures—is critical, the more proactive step is to be able to act in ways that acknowledge, respect, and build upon ethnic, sociocultural, and linguistic diversity.

One would hope that as a result of this review, the Judicial Conduct Commissioner and those involved in assisting the Judicial Conduct Panel will be supported by specific professional development in both cultural awareness and cultural competency. For all those who have to ask why, I simply point to the outcomes, which reveal that when our identities are valued and our cultural integrity is intact, the difference in productivity, in positivity, and in perception is measurable.

This legislation does a number of things. It sets in place the expectation of a fair investigation process to enable informed decisions to be made about the removal of judges from office. It establishes the Office of the Judicial Conduct Commissioner for the receipt and assessment of complaints about the conduct of judges. It includes provisions that will result in a more transparent process to deal with complaints about the conduct of judges. It introduces greater flexibility in the manner of determining the maximum number of judges. All these initiatives enhance the transparency and accountability of the judiciary through public scrutiny, and that in itself is helpful.

I think that while these developments are in progress it is absolutely appropriate to be looking at the issues associated with bias in the criminal justice system. This is the right time for a comprehensive look at the big picture. We all know that sometimes individual conduct, which may 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. I go back to something that Ngāti Kahungunu lawyer Moana Jackson once said in his report, TheMāori and the Criminal Justice System: a new perspective—he whaipainga hou: “The ethnocentric and unquestioning acceptance of the ideas of judicial impartiality essentially means that the possibility of such views affecting sentencing is rarely raised or even less frequently researched.” Thus, studies indicating that Māori are more likely than Pākehā to receive custodial sentences are explained purely in terms of more frequent and more serious offending.

The report produced for the Ministry of Justice last November and this bill’s proceeding through the House today provide us with all the opportunity we need to respond to Jackson’s concerns about judicial impartiality. It would inevitably be useful if we were able to develop a robust process by which complaints against judges’ conduct based on their overall sentencing record could be investigated. We support greater flexibility in the manner of determining the maximum number of judges, but, most of all, we welcome these bills to initiate a more transparent process to deal with any nature of complaints about the conduct of judges. Such initiatives do much to maintain and enhance public confidence in the judiciary, and for these reasons the Māori Party will be supporting the bills at their third reading.

KANWALJIT SINGH BAKSHI (National) Link to this

I stand to support the Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Bill, the District Courts (District Court Judges) Amendment Bill, and the Judicature (Judicial Matters) Amendment Bill. The purpose of the Judicial Conduct (Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Bill is to introduce measures aimed at maintaining and enhancing public confidence in the judicial system. The bill allows for the proper investigation of matters that will lead to the removal of a judge.

The office of the Deputy Judicial Conduct Commissioner provides the public with a transparent and accessible judicial complaints process. The bill establishes that new office, and the deputy commissioner is to be appointed by the Governor-General after consultation with the Chief Justice of New Zealand, on the recommendation of the House of Representatives. The deputy commissioner must deal with the complaint in respect of which the Judicial Conduct Commissioner has decided that he or she has a conflict of interest. The bill covers complaints about judges of the Supreme Court, the Court of Appeal, or the High Court, and also associate judges of the High Court, and coroners. The bill gives the commissioner the power to take no further action in respect of the complaint, if further consideration of 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, was based on a misunderstanding; or the amount of information about the conduct of the person is not enough to form an opinion. The complaint, if substantiated, must warrant consideration of the removal of the judge from office or referral to the head of the bench.

The Judicial Conduct Commissioner’s office receives approximately 100 complaints a year, and of those complaints approximately 80 percent are dismissed. The commissioner’s annual report to Parliament noted that the most common reason for dismissing a complaint was that the complaint stemmed from the complainant’s disagreement with the judge’s decision, rather than the judge’s conduct.

The District Courts (District Court Judges) Amendment Bill increases the number of District Court judges from 140 to 156, which will help in providing justice to victims at a faster rate. The Judicature (Judicial Matters) Amendment Bill increases the number of associate judges from six to nine. The bill will also increase the limit on Court of Appeal judges, which will, in turn, improve the judicial system. Those increases deal with the impasse that currently exists in the system and that creates an unacceptable delay for victims. I commend the bills to the House.

JACINDA ARDERN (Labour) Link to this

I am pleased to stand and speak on the third readings of the Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Bill, the District Courts (District Court Judges) Amendment Bill, and the Judicature (Judicial Matters) Amendment Bill. I have been lucky enough to have had the opportunity to contribute several times through the passage of this legislation. It has changed a little since it was first introduced to this House; however, Labour still supports the bills in their totality.

It is important to point out that the Government has not always supported the legislation it is now ushering through the House. I note that my colleague the Hon Lianne Dalziel raised some concerns about the comments made in the first reading debate by the Attorney-General, who is in charge of this legislation. I do not believe that this House’s queries as to his initial feelings about the legislation have been satisfied through its passage. I want to reflect on some of those comments to point out how I believe that we may have a case where legislation has been taken through the House by a Minister who does not entirely believe in it. However, it may not be the first time; I think that Simon Power is another example of a Minister who has taken through bills that he does not entirely believe in.

During the first reading of this legislation, Christopher Finlayson stated: “That is the National Party approach—do it subtly, but do it effectively. The Labour Party approach is illustrated by this foolish legislation: set up an office, create procedures, appoint a commissioner, and then bring on the inevitable amendment bill that seeks to appoint a deputy commissioner.”

PAUL QUINN (National) Link to this

I took the liberty of checking Speakers’ Rulings, and I can perhaps remind the House that third reading debates, by their nature, are ones of summarising the discussion and conversation that have gone on during the course of the debate on the particular bill. I do not know why Trevor Mallard contributed to the debate at the time, but perhaps it was because the Hon David Parker was yet again late to get to his speaking spot, as I think he might have been this afternoon. But it so happened that young Trevor Mallard somehow contributed to the debate.

Of course, most of this debate has been centred on the Judicial Conduct Commissioner, and only in the latter part of the Committee stage was the original bill split. But during the substantive discussions on the Judicial Conduct Commissioner part, the Hon Trevor Mallard focused at the time on the role of the commissioner, and the fact that his or her job was to hear complaints. For some reason he seemed to think that I might be an appropriate subject for a complaint, because he alleged that I did not know my way to the Hutt Valley. I assured him during the debate that I did, so perhaps the laying of a complaint would not be possible.

What I found fascinating was that subsequently there was an article in the local community newspaper around WelTec parking in Pētone. I had a meeting—this is a matter that I have been working on for many months—

Hon DAVID PARKER (Labour) Link to this

I want to start my remarks by referencing the changes in relation to the Judicial Conduct Commissioner. The introduction of a deputy commissioner is supported by the Labour Party. Labour, of course, proposed the measure prior to the election. The move was opposed by National, but, in a change of heart since then, National has realised the wisdom of the moves that were initiated by Labour. National now supports the change and is also making an additional change in respect of the circumstances in which a commissioner can take no further action on a complaint. If I have time, I might come back to that a little, but that is the essence of that bill, and the Labour Party supports it.

I think the more substantive change that is being made in this legislation is the change in respect of the number of District Court judges, because it raises a number of issues. I think that the most powerful reason for increasing the number of District Court judges is that otherwise we are reliant upon too many retired or semi-retired judges acting under temporary warrants. That is problematic for two reasons. The first is that I think there are many people in New Zealand who do not think it is good practice to have some judges retired, on superannuation, and collecting remuneration as acting judges. That just does not seem right, given that judges are pretty well paid in the first place. If that is too prevalent, then we could expect to see newspaper criticisms of people in judicial offices. That is something we ought to try to protect the judicial system from through having enough judges so that we are not reliant on retired judges acting under temporary warrants.

The other constitutional principle that lies under the objection to having too many acting judges who are retired judges is the separation of powers. Retired judges under temporary warrants effectively have their warrants renewed quite regularly through executive action—through the Attorney-General renewing the warrant of a temporary judge. In a theoretical sense that means the accusation can be made that a temporary judge acting under a temporary warrant is reliant on a good relationship with the executive.

So rather than being seen as independent—as judges normally are, and ought to be—from the executive, the assertion or aspersion can be made that they are reliant upon that relationship in order to get a renewal of their temporary warrant, in a way that undermines their independence and undermines the confidence of participants in the judicial system that the judgement the temporary judge is exercising is separate from the influence of the executive via the Attorney-General. So that is the principle that underlies not having too much of a reliance on temporary District Court judges or judges acting under temporary warrants following their retirement.

The other issue that is raised every time we look at increases in judge numbers—and here we have an increase not in just District Court judge numbers; in related legislation or companion legislation there is an increase in the number of associate judges as well—is whether this is brought about by inefficiencies in the judicial system. Judicial processes are expensive to the litigant and to the Crown, and, through the Crown, to taxpayers, who pay the judges’ salaries, pay for their support staff, pay for the maintenance of offices, and pay for the security arrangements, etc.

I think that some good points were made by Dr Richard Worth during the debate on the original bill. He noted that over the years the number of cases that High Court judges deal with has decreased very dramatically. I know that in the period when I was practising law, and since I have been practising regularly, the length of judgments has become, I think, wrong. They are just so long and inordinately complex that we are letting the pursuit of perfection get in the way of the sensible.

That is most true in the High Court, the Court of Appeal, and the Supreme Court. But it is also something that we need to keep an eye on in the District Court, where in the last 20 years civil processes, especially, but also criminal processes, have become more complex. Life has become more complex—that is true. Expectations as to the quality of decisions have probably increased. Some of those changed expectations were probably good. But I question whether we have now gone a bit far in New Zealand and whether we have the right balance between perfection and practicality.

The danger is that if we move too far towards perfection, we have a system that is perfect for those who access it but is inaccessible to most people because they cannot afford to access it. I think the reality now is that most people cannot afford to go to court to have their disputes resolved, and that is the underlying purpose of courts—to resolve disputes in a civil manner so that we do not resolve them through recourse to fisticuffs, the Mongrel Mob, or whatever our method of settlement of disputes may be. I thought Richard Worth made a good point in that there needs to be a focus on judicial productivity on the rules. Some good changes are being made. During the short period that I was the Attorney-General I was quite supportive of the changes being made to the District Court Rules, particularly around civil processes.

These things take a long time, it seems, to come through the system, but those changes have recently been promulgated. I congratulate those leading the charge on that, including Judge Colin Doherty from Christchurch, who was instrumental in those changes. I encourage the Attorney-General, Chris Finlayson, to follow his instincts, because I think he is similarly concerned about the decrease in the number of cases that are heard by a judge every year, and the increasing complexity of those cases for the judicial officers presiding as well as for the people who are bringing their disputes to the courts for resolution. I for one think that most people would be happy to sacrifice a little bit of the perfection in order to have a process that is still fair but more accessible to them because they can afford to go there. I think that is probably the main point I would make in respect of the increase in judicial numbers.

I do not want to be seen to be always criticising retired judges who are acting under temporary warrants. Again, this is a question where there is a need for balance. Retired judges, by dint of their experience before retirement, are generally the most experienced judges we have in the system. I think it is good that we have a system in New Zealand that allows that experience to be brought to bear, because it can be passed on to new judges. Also, when we have a bolus of work or when we have a bit more work on a temporary basis in a particular region, then that can be dealt with efficiently without the need to take on a permanent judge, because we can take on a temporary judge who is a retired judge. That is a good thing, particularly in a country of low population density like New Zealand. A relatively small change in workloads in a lowly populated area can change the workload of a court unexpectedly, albeit temporarily.

Temporary judges have their place, but we ought not to become too reliant upon them, for two reasons. Firstly, some people see it as double-dipping—superannuation income plus being paid as a judge. Secondly, there is accountability argument. The judge seeking a temporary warrant might become dependent and therefore influenced by the member of the executive, in this case the Attorney-General, who appoints him or her, and therefore the judge’s independence is undermined. The Labour Party supports the legislation. Thank you.

AMY ADAMS (National—Selwyn) Link to this

I am delighted to take a short call on the three bills that have come from the Judicial Matters Bill. I will start by commenting on the speech of the member who has just resumed his seat, the Hon David Parker. I agree with a great deal of what he said, and I want to touch on one of the points that he made on the desirability of extending the number of Associate Judges of the High Court. Until Mr Parker’s contribution, I had not heard that proposal discussed a lot in this debate. The flipside of that, I guess, is the desirability of moving away from having a large number of temporary warrant holders. Mr Parker quite rightly spoke about the number of those judges who have retired and been given temporary warrants. I would also highlight that in that category there are a number of judges who are at the other end of their career. As there has not been the legislative capacity to appoint more associate judges, there has been a need to bring in judges as temporary judges to fill the void. We have not had the legislative mandate to appoint them as associate judges, and I am sure there has been a desire to do so. I know that the temporary associate judges who are in that category are left in somewhat of a void.

I take on board Mr Parker’s comments, although I would hate to think there is any suggestion—and I am sure he did not mean to imply it—that those judges would operate their warrants in anything other than a very objective, fair, and impartial manner, regardless of their temporary warrants. I think we owe it to those judges, where there is an intention for them to be associate judges for the long term, to give them that certainty. Certainly, by moving the threshold from six to nine judges, we now have the capacity to be far more clear when we appoint associate judges as to their real expected tenure, rather than having to use an inappropriate mechanism to allow that void to be filled.

The only other point I wanted to touch on in my contribution to this debate is in respect of the additional power given to the Judicial Conduct Commissioner to take no further action on complaints. Obviously it is very good—and I know it has been spoken of extensively in this debate—that there will now be a deputy commissioner. The element of the extra power for that officer, in terms of dealing with complaints, is an important step.

I want to reflect that we have an excellent judiciary in this country, and, I think, one that we can all be rightly very proud of, but it is not a given in every country. I have just been reading in the latest LawTalk about Kenya’s judiciary, which is in a very perilous state. We have an excellent judiciary in New Zealand, but none the less we need to have an effective process whereby people feel that if they have a complaint it will be heard. But equally the history of this office has shown that although there has been a significant number of complaints—certainly enough to justify the office of deputy commissioner—the vast bulk of those can be disposed of reasonably simply, without significant steps having to be taken. I think that adding “no further action” to the statutory remedies provides a good mechanism for dealing with those complaints. People can still feel they have been heard, there has been a good independent review, but it ensures that we do not have to take up too much of that office’s time with complaints that can be dealt with reasonably simply.

I just wanted to make those two small contributions to the debate. It is very good to see this legislation progressing, it is good to see the support it has around the House, and I add my voice to commending the legislation to the House. Thank you.

JOHN BOSCAWEN (ACT) Link to this

The ACT Party will be supporting this legislation.