Mr SPEAKERI have received a letter from the Hon David Parker seeking to debate the resignation of Justice Wilson. I have also received a letter from the Hon Trevor Mallard seeking to debate the decision of the Acting Attorney-General to approve a resignation package for former Justice Wilson.
Justice Wilson’s resignation is a particular case of recent occurrence. It became effective from 5 November. The matter involves the administrative responsibility of the Government in respect of the court system and confidence in it. Given the significance of a decision to accept the resignation of a very senior judge in such circumstances, I am persuaded that the matter does warrant the immediate attention of the House.
However, in debating the matter it is important that members have regard to the comity between Parliament and the courts. It is highly unconstitutional to reflect on, or speak disrespectfully of, the judiciary. The court system may be criticised, but such criticism cannot extend to the court itself. Although there is no prohibition on referring to a judge, members must not do so in a way that is critical or suggests a judge was unfair or unjust. The conduct of a former judge, however, is not so protected.
The two applications are not identical but relate to the same matter. As the Hon David Parker lodged his application first, I call upon the Hon David Parker to move that the House take note of a matter of urgent public importance.
Hon DAVID PARKER (Labour) Link to this
I move, That the House take note of a matter of urgent public importance. The seriousness of this issue was highlighted by the Hon Judith Collins when she said in her press release that, in respect of the acceptance of the resignation of Justice Wilson, the payment of close to $900,000 to him, which comprised a $400,000 golden handshake and $475,000 in costs, was unprecedented and was very relevant to the reputation of the judiciary.
It is important that we put on record the history of this affair, which is long, protracted, and quite complex. I want to start by recording the background. There was a decision of the Court of Appeal in the case of Saxmere and Radford against the Wool Board Disestablishment Co., where Justice Wilson participated in the hearing and delivered a judgment, despite the fact that he had a business relationship with Rich Hill Ltd and a business relationship through that entity with counsel acting in that case. The case went against Saxmere and Radford, and they were disappointed in the result. They then got wind of a background relationship between the judge and counsel appearing, and expressed their concerns.
The principle at stake here is not whether a judge is biased or acts in a biased way. For a start, that can seldom be proved even if it is the case, and I am not suggesting that there is proof of actual bias in this case. But justice has to be done by ensuring that parties to any dispute being settled by the judiciary feel they have been dealt with fairly. For that to be maintained, it is clear from the authorities that judges should recuse themselves from a hearing where they have some sort of relationship either with a party to the litigation or with counsel in the litigation that would cause a fair-minded observer to think that they might not be impartial.
It was against that background that Saxmere and Radford applied to the Supreme Court some time later, when they got wind of these things, for the decision of the Court of Appeal to be set aside. The Attorney-General decided to take part in that process. The Attorney-General’s submission to the Supreme Court was that there was nothing to worry about, that the disclosures that had by then been made by Justice Wilson should be taken at face value, that there was no need to look any further, and that the case decision should stand. I am not too critical of the decision of the Attorney-General at that stage, based on his information at that time.
On the basis of that and the information that was then before the Supreme Court, the Supreme Court rejected the application by Saxmere and Radford for the decision to be recalled. That was on 3 July 2009. As a consequence, Saxmere and Radford had a costs award against them of $15,000, plus disbursements, which would have taken that amount higher. Soon thereafter, Saxmere and Radford discovered that there was another provision in legislation governing the duty of judges not to have other business roles, and on that basis they went back and inquired of the Supreme Court whether this decision could be recalled. They were not aware of other background information at that stage as to the depth of the business relationship between Justice Wilson, Rich Hill Ltd, and counsel in the case.
Indeed, I think it was a coincidence that during the intervening period before the case was eventually recalled a second time in the Supreme Court, Justice Thomas—I think concerned about the original Supreme Court decision, based on his own knowledge—off his own bat wrote a letter to the Chief Justice and the Attorney-General to say that there were other matters relating to Justice Wilson’s business relationships with counsel, and a company that they shared ownership interest in, that ought to have been disclosed to the court. That was in a letter, dated 27 July 2009, sent to the Chief Justice and the Attorney-General. It was known to the Attorney-General and, within the Supreme Court, to at least the Chief Justice; I suspect—although I do not know—it may also have been discussed by the Chief Justice with other members of the Supreme Court.
This is the mistake that was made then. No one told Radford or Saxmere. So Radford and Saxmere, who, as we now know, had suffered the injustice, were not told what Justice Thomas had told the Chief Justice and the Attorney-General. That was a bad mistake made by the system—a bad mistake—because the litigant, who was adversely affected by the decision and who was complaining about the appearance of bias and the refusal of the judge to recuse himself from the case, had the greatest interest in knowing. When this matter came back before the Supreme Court, Saxmere and Radford still did not know what was in the letter from Justice Thomas to the Chief Justice. The Chief Justice had responded to Justice Thomas and the Attorney-General, saying that the matter was in hand, but it seems that if it was in hand, it must have been through some separate process, which I suggest was improper. It should have gone, in a process sense, through the Supreme Court and been openly shown to counsel acting for Saxmere and Radford so they could protect their clients’ interests.
What else was happening during that period? Well, I know, from having spoken to one of the counsel for Saxmere and Radford, that they were under pressure from the Wool Board Disestablishment Co. not to push this matter any further. They were having threats made against them that costs would be sought both against Saxmere and Radford and personally against counsel if they pushed this any further, despite the fact that they were pursuing something that was their right to pursue, and that we now know the Supreme Court agrees was a just complaint, because eventually the Supreme Court decided that Justice Wilson should have recused himself and that, accordingly, the Court of Appeal decision could not stand, and the matter was remitted to the Court of Appeal.
The other thing that went wrong was that the Attorney-General, having received the information from Justice Thomas and the information from the Chief Justice, took part in a titular sense in respect of the second Supreme Court application for the judgment to be set aside, but did not correct the information that lay on record from the first application for rehearing, as part of which, as I have already said, the Attorney-General had said all was well. The Attorney-General did not correct the record in light of what he subsequently knew was the depth of the relationship between Justice Wilson and counsel.
Where does this lead us? I do not have time to go into all of it, but some things here need to be tidied up in the judicial branch of government. This has been a very difficult issue for the Supreme Court to deal with, but it does have some expertise in this matter. How do I know? Because the Court of Appeal, in the case Muir v Commissioner of Inland Revenue, has considered what the appropriate test is for judicial bias in New Zealand. That decision was delivered by one of the world’s experts on judicial recusal. Indeed, Justice Hammond is the author of a book entitled Judicial Recusal: Principles, Process, and Problems, which came out within the last year. It is an internationally regarded text on this very issue. He wrote the judgment on behalf of the Court of Appeal in Muir v Commissioner of Inland Revenue. Who else sat on that case? Justice Wilson. So Justice Wilson knew the rules, or should have known the rules. He should have known the rules. I find it very hard to believe that he did not know the rules, but if he did not, then he sure as heck should have known those rules. Justice Hammond has expertise in these issues. These issues need to be sorted out.
Still at large in New Zealand is the issue of business relationships between judges and counsel. Judges may have friendships with counsel—that is obviously not a step too far—but if one goes further and has a business relationship, is that too far? This is a very difficult issue for the judiciary to deal with, in part because New Zealand is a small country, and in part because we now know from things we have seen in the media that there are business relationships between other judges, including the Chief Justice and senior counsel relating to horse partnerships. The courts have to ask themselves what a fair-minded third party would believe when the decision in their case goes against them and they discover that counsel for an opposing party had a relationship, through a horse partnership, with a Supreme Court judge. I have to say that if I were a litigant who lost, I would be questioning whether I had been dealt with fairly. I think that as a reasonably fair-minded third party, I would be asking that question.
It is time for there to be some transparency in these rules. We have somewhat belatedly discovered that New Zealand does have some rules surrounding judicial conduct. They were promulgated in 2003 but were, for some reason, kept secret in New Zealand until last year. Indeed, the decision of the Court of Appeal in Muir v Commissioner of Inland Revenue did not make reference to the New Zealand guidelines; it referred instead to the Australian guidelines, which happen to be very similar. It is strange that the New Zealand guidelines were not referred to in the Muir decision. So I call upon the justices at the most senior level in New Zealand to be reasonably transparent about where they get to as to what level of relationship between judges and counsel is appropriate or inappropriate when it involves business relationships. I suggest, given we have this expert, Justice Hammond, in the Court of Appeal, that they involve him. I think they also have to include all of the justices of the Supreme Court, and perhaps they should also take some advice from the Law Commission.
Some mistakes have been made with regard to the Hon Judith Collins. The judicial conduct complaint report by Sir David Gascoigne was imperfect. It did not deal with some of the complaints that had been made by Saxmere and it was too general in respect of the complaints it made of Justice Wilson, in respect of those that it did consider. It was on that later ground that the courts and the judicial review proceedings brought by Justice Wilson said that the findings of the judicial conduct complaints process were deficient. That could have been fixed by the Hon Judith Collins, because she was warned of that very issue by counsel for Saxmere and Radford after the Judicial Conduct Commissioner’s report came back.
It is a very sad day when we have this taint on our judiciary—and it is a taint. We have to acknowledge that it is a taint. I think in the end we came to the right decision, whereby the judgment was recalled. There is a question as to why it is taking so long for the Court of Appeal to deliver its judgment in respect of the rehearing of the Saxmere and Radford case against the Wool Board Disestablishment Co. I do hope the occasion of the delay is not the resignation of Justice Wilson.
I also say it is inappropriate to pay golden handshakes and large amounts of costs on a solicitor-client basis. The costs of $475,000 seem patently excessive to me, and a $400,000 golden handshake in respect of someone who, it appears, has erred is inappropriate. This is a very serious matter. There are issues as to whether the Attorney-General should have gone back to the Supreme Court and said he had more information, and that Saxmere, Radford, and the court needed to know it officially, rather than just through back-office routes. There is also the issue as to whether Judith Collins should have listened to the warning she received from counsel for Saxmere and Radford that the judicial complaint that was going to be forwarded was sufficiently particularised and did not cover some of the issues that have been raised by Radford and Saxmere.
The other issues that need to be looked at are what happened to the Wool Board Disestablishment Co. money—there is still some murkiness around that—and also why the Solicitor-General, the Attorney-General, or some arm of Government took this case out personally on the person who was doing a public good, and caused the dismissal of Sue Grey.
Hon JUDITH COLLINS (Acting Attorney-General) Link to this
Thank you for the opportunity to speak on this matter. The member who has just resumed his seat, David Parker, a former Attorney-General, has raised some issues. I will not deal with all of them, because some of them relate to issues that he has stated as fact, but also he has asked some questions about issues relating to the former Justice Wilson and my actions.
I took over this matter on 19 April this year when the Attorney-General, the Hon Christopher Finlayson, transferred it to me, under section 7 of the Constitution Act. Later on, I was granted a warrant to be the Acting Attorney-General in relation specifically to this matter. At that stage the Attorney-General, the Hon Christopher Finlayson, had already referred this matter to the Judicial Conduct Commissioner. The commissioner was already dealing with the matter. He presented a finding to me, on 7 May, recommending that I appoint a Judicial Conduct Panel under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 to further investigate the complaints against Justice Wilson. I accepted that recommendation. At that stage I had received many unsolicited submissions from many members of the senior Bar, including Queen’s Counsel and Senior Counsel. I had also received submissions from people who felt that they had been badly disadvantaged by the judge staying on the court when their matter was dealt with, and I took advice from the Solicitor-General. The decision I made was that the matter should proceed and that I should appoint a panel.
This is the first time that this Act has been used, and it is the first time that we have come up against certain issues in it. For instance, when appointing the panel, I was not able to appoint an overseas judge. I was not able to bring some semblance that we had people from overseas who were not part of the judiciary in New Zealand or part of the New Zealand senior Bar. That was an issue that I think should be considered in future. I was one of the people who spoke against getting rid of our right to appeal to the Privy Council, and this was one of the reasons. The fact is that New Zealand has a very small senior Bar and a very small judiciary, and great care needs to be taken in relation to any matters. I support what the member who has just resumed his seat has said about great care needing to be taken in relation to appointments and judges’ behaviour.
A judicial review was brought by the former Justice Wilson, a full bench of the High Court heard the review on 1 to 3 September, and it gave its judgment on 28 September. The court noted that the commissioner carried out an appropriate evaluative exercise in relation to the complaints, and found that there was a legal basis upon which aspects of the judge’s conduct might properly be the subject of inquiry by a panel. It also dismissed the judge’s allegations concerning breach of natural justice and the taking into account of material that was hearsay or obtained in breach of confidence and legal privilege. The court directed the commissioner to conduct any further preliminary examination of the complaints that he considered necessary, to form an opinion under section 15(1) in relation to the judge’s conduct, including the period between the Supreme Court decisions Saxmere Company Limited and others v Wool Board Disestablishment Company Limited and Saxmere Company Ltd v Wool Board Disestablishment Company (No. 2), and, if recommending the appointment of a panel to the Acting Attorney-General, to identify the matters concerning the judge’s alleged conduct that met the requirements of the Act.
This must surely rank as one of the most worrying matters that the very new Supreme Court and the judiciary have had to deal with. It has been a very difficult time for the judiciary and also, I believe, for the senior Bar to have seen this matter progress. Some comment has been made about the settlement arrangements that I made on behalf of the people, in relation to the former Justice Wilson. I am happy to take full responsibility for those decisions, and I believe that they were the right decisions. I am happy to speak to the House about how I came to those decisions.
On 4 October this year the judge’s counsel approached the Solicitor-General to discuss whether, and on what terms, the judge might tender his resignation. The terms offered by the former judge were extremely excessive and I would not countenance them at all.
Hon Pete HodgsonHon JUDITH COLLINS Link to this
I am not prepared to reveal them at this stage, given that they were made in confidence. I would need to seek advice on that. However, I can say that they were absolutely excessive, and I would not take them further. After discussions, and there were many discussions—not with me and the former judge, because I did not meet the former judge and I do not believe I have ever met him in my life; if I did, it obviously did not leave an impression—he tendered his resignation on 21 October, with effect from 5 p.m. on 5 November, on the following terms: that he receive payment of his existing entitlements, and I am sure nobody would disagree with that; and, that he receive payment of 1 year’s salary, which is taxable, being $410,000 gross, from 5 November. I bore in mind, when I agreed to that, that this matter could drag on for another 2 years or more. I was advised that there was something like six different appeal opportunities along the way.
Despite the fact that there were all sorts of suggestions at various times that the judge might resign of his own accord, there seemed very little reality that that would ever happen unless the matter was settled. It was not my intention to bring about the resignation of a judge. I think it is an extraordinarily difficult thing to ever have to oversee. However, the judge made this offer himself. It was not asked of him. We also had to agree to pay his solicitor-client costs, and, like the speaker who has resumed his seat, I thought they were very high. I was, however, informed that they were reasonable in the meaning of the word, and in the meaning of what had gone on and the matter of proceedings. I was also fully aware that it is a constitutional principle that the Crown should meet at least part of the reasonable costs of counsel for a judge in complaints proceedings. I refer to section 27 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, which made it very clear that it was expected that the judge’s expenses would be paid.
Of course, the Crown also has to meet its own costs in this matter. The costs for judicial proceedings of this nature, if they had been allowed to continue because I did not feel able to accept the judge’s offer to resign, could have been far more severe. The costs, in my view, looked very much as though they would continue into stratospheric levels. I was not prepared to have that happen if there was an opportunity to cut the losses for such for the Crown and the taxpayer. I also noted that all the way through these proceedings the judge would be entitled to be paid his full salary, even though he was in effect on garden leave, and I did not think that that was a useful spend of the taxpayer’s money, either.
This has been an extraordinarily difficult time, as I have said. I, however, believe that I have made the right decision, and that this matter had to be brought to an end. We have a very new Supreme Court. We have a court that is still working very hard and is trying very, very solidly to build its reputation. It did not need this matter continuing. Comment has been made—I think not today, but certainly in the media—about whether we will know what actually happened and whether we will find an end to this, and to the effect that if the Judicial Conduct Commissioner had been allowed to continue with his second report, it would show it. Actually, as soon as the judge resigned, then that report had to stop, and the investigation had to stop. There was no guarantee at all that that would come out. Yes, we could have continued on. Yes, I could have said that we were not going to pay the judge anything and that we were not going to settle the matter. But I believe that that would have been at a far greater cost.
There is a matter that I am aware of, which the next speaker, Dr Kennedy Graham, is going to raise, and that is the issue of pecuniary interests for judges. I think it is quite important to note that the former judge was appointed straight to the Court of Appeal by the previous Attorney-General, the Hon Dr Michael Cullen. That was in 2007, and that was without the more traditional apprenticeship of being on the High Court. Ten months later, he was elevated to the Supreme Court. I do not know whether that had anything to do with the matters that then proceeded, but I do think that it is very difficult sometimes for people who have come in from very high positions, in, say, the legal profession, to suddenly know that every matter that they do will be scrutinised. Many people come to Parliament from very high positions and suddenly find that all their actions will be scrutinised and the subject of debate.
Hon JUDITH COLLINS Link to this
Well, that is a point raised. But I would have to say that that was very concerning, and it is a point.
Although this matter has been very unfortunate, I believe that there are some positives to be found in its entrails. It has shown that judges, of even the highest court in New Zealand, are open to scrutiny. It shows that they can be held to account and therefore find their continued hold on office untenable; I believe that that is what has happened here. I took absolutely no pleasure whatsoever in receiving Justice Wilson’s resignation. I thought it was an extraordinarily sad day that we had got to that situation, and I do not think that anybody in this House would find it a very edifying situation. As I said, I could have kept the matter going, but I chose not to. I believe that that was the right decision, based on the cost to the public and the Supreme Court, which is very new and needs to have a lot more years under it before it sees anything like this again. Hopefully, it never will.
I know that there are people who have felt that this matter has hurt their feelings about, and confidence in, the judiciary of New Zealand. They should not—because the judiciary in New Zealand has felt this more strongly than anybody else.
In essence, this matter is something that nobody would wish on the judiciary of New Zealand again. I would hope that the matter of pecuniary interests will be addressed in some way, shape, or form. I know it is a matter that the judges feel very keenly, and it is a matter that nobody ever wants to see repeated.
Dr KENNEDY GRAHAM (Green) Link to this
The Green Party notes with considerable sadness the resignation of Justice Bill Wilson. Justice Wilson had built up a brilliant reputation in the course of his legal career. It is a personal tragedy that an unexpected event of this nature should put to such an abrupt end the work of such a talented individual. We wish him well on a personal level. We trust that Bill Wilson still has a major contribution to make to New Zealand.
The Green Party has no doubt that it is proper for this Parliament to debate standards and conduct affecting the judiciary, just as it is in order for the courts to scrutinise the legality of the actions of members of Parliament and the executive, as my colleague the Hon David Parker pointed out in his request. What we are doing here is debating the conduct of the executive and the principles by which the judiciary functions in our society. The Acting Attorney-General herself has described this case as “an unprecedented situation in New Zealand’s legal history.” I advance no judgment on the conduct of the executive at this stage—the Attorney-General, or the Acting Attorney-General, who, I gather, took over the matter in mid-April. I prefer to focus on the broader implications for the judiciary of this particular episode. That is why it is critically important for this House to debate matters of constitutional significance such as this. That said, we need to be circumspect in what we say and we should maintain the due deference that this House pays to the judiciary.
The circumstances that led to Mr Wilson’s resignation are complex. They do not warrant detailed investigation here in this debate. Suffice it to say that they expose a number of the characteristics of the judiciary in a small country such as New Zealand—and perhaps even in countries that are not as small as New Zealand—and the rather intimate circle of acquaintances that go to make up the higher echelons of the judiciary. In such circumstances there exists an even greater than usual responsibility on the part of all the individuals involved to ensure that the integrity of the system is not in any way compromised. That is achieved through a strict respect for the principles of openness and transparency.
It is a time-honoured principle of Western democracy that public servants of every kind must be beyond reproach. Public confidence in the standards of behaviour and conduct observed by leading servants of the people is a cornerstone of social harmony and political stability. The threshold of confidence should ideally be enshrined in constitutional and legislative form. Little scope should be available for individual discretion or subjective perception. The principle of transparency in this respect pertains in particular to issues of financial interest. Nothing undermines public confidence in a nation’s institutions and procedures more than suspicion that a public servant may have, or especially proof that one has, suffered a conflict of interest arising from a financial interest in a particular case in which he or she was professionally involved.
In New Zealand, members of the executive have been required under statute since 1990 to provide statements of pecuniary interests pertaining to their personal financial affairs. Such statements are submitted to the Speaker, and these are made available for public consumption. In 2006 this practice was extended to all members of Parliament. Since then members of Parliament have been required to submit annual statements of pecuniary interests to a registrar, who makes the information publicly available. The legislature’s version of pecuniary interest statements was modelled along the lines of that of the executive. In both cases a careful balance has been struck between transparent public knowledge of an individual’s financial affairs and the preservation of personal privacy. The correct balance in this respect appears to have been achieved over the years. The public interest in such annual statements is significant without appearing prurient, and few complaints have been voiced by those on whom the obligations are placed, such as ourselves. There seems to be a general acceptance that such exercises are in the public interest and are neither unduly onerous nor revealing.
No such practice, however, has been observed in the case of the judiciary. This recent development within New Zealand’s judicial conduct processes suggests to me that the application of the same practice observed by the other two branches of Government might assist in the protection of the judiciary in the future. Being obliged under law to declare pecuniary interests that might be relevant to the conduct of a future case in which one is involved would relieve a judge from the repetitive weight of responsibility of having to make discretionary judgments about his or her personal affairs as each case arises. A judge, having declared his or her pecuniary interests once in a generic manner, independent of any particular trial, could freely proceed in the knowledge that if he or she was appointed to adjudicate, public confidence in his or her participation would have already been met. Yet care has to be exercised to ensure that the final decision is left to the individual judge as to whether to accept a case. There should be no intention of external interference into the self-regulation of the judiciary by the judiciary.
This is the reasoning behind the draft legislation that I developed some months ago as a member’s bill, which has been in the ballot since August. The Register of Pecuniary Interests of Judges Bill has as its purpose the promotion of the due administration of justice. It requires judges to make returns of pecuniary interests, to provide greater transparency within the judicial system and to avoid any conflict of interest in the judicial role. The bill would require returns of pecuniary interests from judges and would establish a register of such returns. It would impose a duty on all judges to make an initial return immediately upon being first appointed, and on an annual basis thereafter. Information pertaining to relationship property settlements and debts owed to certain family members would not need to be disclosed, nor would short-term debts for the supply of goods and services. The actual value amount or extent of any relevant matter under the bill would not be required to be disclosed.
My bill is not designed to imply any right of the legislature to intervene in the affairs of the judiciary. Nothing in the bill would be interpreted as compromising the constitutional principle of judicial independence guaranteed by the Constitution Act 1986 and respected by constitutional convention. There is a clause to that effect in my bill. The intention of my bill is simply to facilitate the promotion of the due administration of justice by requiring a similar financial return by judges to that already required by both the legislature and the executive of this country. If this sad occurrence of Bill Wilson’s resignation results in such a development, something positive will have been gained from this whole episode.
HILARY CALVERT (ACT) Link to this
I agree with the previous speakers that this has been a very worrying and difficult position for the Government and, in fact, all of us to find ourselves in. When the judiciary is challenged and does not appear to be meeting the standards we expect, then all of us have failed to some extent. Serious constitutional issues are arising, and although we would like to turn back the clock, we cannot do that. We can do our best to right any wrongs that were done, if they were ever done.
In this case a judge has been found wanting. The judge has been dealt with in two manners. One is that he is no longer a sitting judge. The second is that the judge has been made some payments. They arose, really, as a matter of practicality; some of them were due to him and some of them were made probably because they were the most cost-effective way of finishing what is a sad and sorry affair. I think we all agree that there has been a suggestion of the possibility of bias in this case. That is what started our position.
There are a variety of parties to this issue. One of them is the Government and one of them is the judiciary—and, in fact, Justice Wilson. But also there is the person who had the issue, whom the wrong thing happened to. In my opinion, we have done the best we could to deal with the problem that was before us and stop it happening again. We have not done the other thing, to the best of my knowledge—maybe the Hon Mr Parker knows more about this matter than me. We have dealt with the person who may have been part of the problem, but we have left the person who was wronged with the wrong still done.
Yes. So to me the important thing is to finish this sorry affair by making sure that the people who were wronged are put back in the best position they can be, in the most appropriate way we can, to give them their recourse. We should deal with people in the usual manner, which in this case means making sure that financially—as we have done with the judge; we have done the appropriate thing financially—we deal with the victims in at least as sympathetic, appropriate, and effective a way as we have dealt with the judge.
RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this
The Māori Party stands to take a call in this urgent debate around the appropriate call of judicial bias in New Zealand. There are many issues embedded in the situation around Justice Bill Wilson, which cut to the thrust of issues around justice and injustice—around the proper application of the law. The injustice we are dealing with today is more along the lines of the perception of injustice: the question of perceived judicial bias. I have to agree with other members that there are certainly issues around the supposed golden handshake of a year’s salary of $410,000, as well as solicitor-client costs, which are calculated at $475,000. Of course, on top of that there are the additional legal costs that come with the work of the Judicial Conduct Commissioner and the Judicial Conduct Act. It is not appropriate for me or for the Māori Party to make comments about this situation related to the individual—Justice Wilson. These matters have been dealt with appropriately by the Acting Attorney-General, Judith Collins, and indeed before her by the Judicial Conduct Commissioner, Dr David Gascoigne.
Justice Wilson has been through the process that was outlined by previous speakers. He has taken a decision to tender his resignation, and the matter has therefore been brought to an effective resolution. But I want to comment on two issues that have stood out in the way in which this situation has been dealt with. First, I commend Minister Collins for her brave decision to call on a judicial conduct panel to investigate the longstanding issues associated with Justice Wilson’s conduct in the Saxmere wool case. As I understand it, in the opinion of Auckland University law professor, Bill Hodge, this was the first time such a panel had been appointed. The Minister determined that a panel was necessary to follow up on an investigation into the situation, following inquiries about complaints against Justice Wilson.
The second bold determination was to work towards the resignation of the judge, in the best interests of New Zealand’s legal standing and legal history. I heard the Minister say, earlier, that that was an independent decision from the judge, but I commend her for taking a very strong line in the situation and, as such, preventing even more excessive costs to be spent if the case had proceeded even further. The Minister has suggested that carrying on with the case, just for the sake of taking the case to court, would have caused incalculable damage to confidence in the judiciary. So I commend her for a solid decision in bringing this matter to a speedy resolution and, to this end, helping to both safeguard the judicial reputation and save inordinate expenses for the taxpayer.
We believe that, in this case, justice has not only been done but been seen to be done. To this end we support the decision taken by Minister Collins for the long-term interest. We cannot have a judiciary in which there are any questions of bias or perceived conflict of interest operating. Indeed, it is one of the most significant issues impacting upon the experience of Māori in the justice system. There is another debate to be had that might bring to the House the question that bias operates within the criminal justice system, such that any suspected or actual offending by Māori has harsher consequences for those Māori, resulting in a gross overrepresentation within that system, but that is not a debate to be had today. For the purposes of this debate we support the actions of the Acting Attorney-General and the Government in relation to Justice Wilson.
Hon TREVOR MALLARD (Labour—Hutt South) Link to this
I will make a few points, but I start off by saying that this situation is very sad. It is sad for former Justice Wilson. I am not a lawyer—although learned colleagues, eminent lawyers, are seated to my left and my right—but I know that Justice Wilson had a very good mind and a good reputation as a jurist. So it is sad to lose him. There is also some sadness, in my view, for the position that the Saxmere Company has been put in as a result of the lack of disclosure in this matter, not only on the part of Mr Wilson originally but also subsequently on the part of the Chief Justice and the Attorney-General.
In this debate I do agree with my colleague David Parker about the inappropriateness of making a payout, but I disagree with him in that he focused in particular on the amount of money. My view is that the judiciary and the court system in New Zealand would have been better served by letting this matter run its course, because at the moment there is a reflection on the Chief Justice and on the Attorney-General in New Zealand for their involvement. In my opinion that is not a good position to be in, and my view, therefore, is that if a process had been followed, things would have been clearer.
I will make two or three points. I preface them by saying that in the United Kingdom the Attorney-General is not a member of Cabinet; the Attorney-General is independent. In New Zealand, in my time in Parliament, we have had an Attorney-General who was not a member of Cabinet. Having some sort of independence in that way, I think, would be useful. I notice that my learned colleague on my left is not very keen on that approach; it might be that he covets both jobs!
I make the point that on 25 February 2009 the Attorney-General filed a written submission in which he said: “As Justice Wilson’s statement must be authoritative on the matter, the Crown adopts his description of those interests.” Chris Finlayson aligned himself with the judge and said that it was a correct position. Subsequently, on receipt of correspondence from the Rt Hon Sir Edmund Thomas QC, Chris Finlayson became aware of the fact that Justice Wilson’s description of his interests was not accurate, but he did not do what was appropriate and file a corrective statement in the court indicating that he was aware of that fact.
Neither was there a formal approach from the Chief Justice. It is now a matter of public record that the Chief Justice was written to by Sir Edmund and she replied to him that the matter was in hand. We do not know how the matter was in hand or what she did. The problem I have is that a party to the proceedings—Saxmere—was totally excluded from the knowledge that, apparently through an informal channel, the Chief Justice was putting before justices. She did not do it in a proper manner, such that the parties to the case were aware of it.
She should have done her job properly. The Attorney-General should have done his job properly—in fact, he should never have filed the first submission. As he made clear to Mr Colin King and to the Prime Minister, he was either a close friend or a friend of Mr Wilson’s. The Attorney-General should not have been involved; he should have asked a colleague to make those submissions. This is not a good day, it is not a good period for the judiciary, and I hope that the matters can be clarified as soon as possible.
PAUL QUINN (National) Link to this
I rise to support the Acting Attorney-General in the decision that she made to settle this matter with former Justice Wilson, because it was in the interests of all parties that this matter be brought to an expeditious close.
To that extent I pick up on a comment that the mover of the debate, the Hon David Parker, alluded to. He said that if this matter showed one thing quite publicly, it was the closeness, the intertwining, of senior counsel and the judiciary in New Zealand. This was certainly one of the reasons why I, like the Acting Attorney-General, was not in favour of getting rid of the Privy Council as the last court of appeal for this country. This case has clearly demonstrated the simple fact that all senior counsel in this country—certainly, all of the good ones—and most of the judges are on friendly terms.
I also, like Kennedy Graham, record my sadness about what this has done to Bill Wilson’s career. I know Bill; he is not a friend but, none the less, I can share and enjoy an ale with him from time to time. It is sad because, as Kennedy Graham said, Bill Wilson has an outstanding record before the Bar. I guess that is one of the reasons the previous Attorney-General elevated him, first, straight to the Court of Appeal and then, 10 months later, to the Supreme Court.
The sadness in all of this is that for Bill Wilson, notwithstanding—as the previous speaker, Trevor Mallard, alluded to—his outstanding mind, all of his dealings were done in a traditional way where a man’s word was his bond, if you will. In this instance, as I understand many of the facts, this has led to his downfall. He relied on his traditions, in the fact that he had previously, in an informal sense, made it known to the parties that he was in a business relationship with Galbraith but had not formalised it in the court records. So it is sad, and the previous speaker alluded to other incidental matters that other people knew about these facts. It is sad.
I also support the Acting Attorney-General in the fact that she reached a settlement. Members of the Opposition have questioned that settlement, but it pales into insignificance compared with some of the settlements that occurred during their time in Government—and I start with John Hawkesby’s $6 million settlement with Television New Zealand, and Peter Doone’s settlement, when he was put on gardening leave and then paid off. How can members on that side of the House criticise an excellent settlement by the Acting Attorney-General? In terms of opportunity cost, it saved the country hundreds of thousands of dollars—of that there is no question. I support the Minister in all of those actions. Thank you.
CHARLES CHAUVEL (Labour) Link to this
I want to make four points in my contribution to this debate. The first one is by way of tribute to Mr Bill Wilson QC, because New Zealand has been extremely fortunate to have had his service, first in the Court of Appeal and then in the Supreme Court. His service in those capacities was all too short. Bill Wilson, as has been recorded rightly by some speakers in this debate already, was an outstanding member of the commercial Bar, and he was a highly regarded company director—including, I recall, on the board of Air New Zealand. Prior to that he was an extremely well-thought-of partner, and a senior partner, in one of New Zealand’s most illustrious law firms, Bell Gully, a firm that is rightly known to have contributed some of the country’s leading lawyers to the bench, to the Bar, and even to this place—I speak, of course, of the historical precedent of Dillon Bell, a former Attorney-General, and others who have come from that firm and become members of Parliament.
It is apparent from any reading of any of Bill Wilson’s judgments that he brought a degree of commercial acumen to the senior reaches of the New Zealand judiciary that must have been welcomed by any objective observer of these matters. But more than his commercial acumen—because there are many people who will attest to that—I think it is appropriate to also record that Bill Wilson brought to the task of appellate judging a liberal and humane approach that we certainly want to see more of in the senior reaches of judicial decision-making.
The second thing I want to say on the record, because an error has been made already as far as at least one speech that we have heard in the House is concerned, is that Bill Wilson has been found to have committed no wrongdoing in his time on the bench. The complaints against him were found to be lacking in substance by the investigator appointed by the Judicial Conduct Commissioner; and on judicial review, despite the carefully worded speech we heard from the Acting Attorney-General, the full court of the High Court granted Bill Wilson’s judicial review application. It sent the matter back to the Judicial Conduct Commissioner, and directed the commissioner to reconsider his decision to recommend that a judicial panel should be convened to investigate Mr Wilson’s conduct.
So although discussion on this matter has proceeded in public on the basis that Mr Wilson’s resignation is some sort of admission of guilt, it is not; and it is important, in my view, that this should be reflected in the record on this debate.
I said I would make four brief contributions. The third point I want to make is that having pointed out that Mr Wilson was found guilty of no wrongdoing, I am not standing in this House today to pretend that it might not have been wise to give full disclosure of the matters complained about. But that is a reflection more of the mores of the times, more of the fact that we are in a transitional phase from the way things used to be done, for want of putting it in a better or more elegant fashion, at the bench and the Bar, to a more open, more divisive, more litigious society that demands and requires transparency, particularly now that we have repatriated the right of appeal from a foreign court and decided that those rights should be exercised here in Wellington—a decision I wholeheartedly support.
Transparency is important; no one should deny that. What would be helpful for this House to now do is to take up the exhortation that we heard from Kennedy Graham and from other speakers in this debate and think about what can be learnt from the circumstances, the sad and tragic circumstances, that we currently find ourselves in. What can be done realistically to enhance transparency in terms of judicial appointments and judicial tenure, and of the interests of the judges so that public confidence in the judiciary is maintained and enhanced, but in a way that does not drive away the brightest and the best commercial and other litigators at the Bar, in universities, and other places from where we want to draw appointees to the Court of Appeal and to the Supreme Court—to our highest courts—because there is an excessive level of transparency or scrutiny imposed on them, such that it is discouraging to want to take on high judicial office? We have an excellent legal profession in this country, and the last thing we should do is make judicial office unappealing to people who are eminently qualified for it.
Fourthly and finally, having sat here and heard the contribution made to the debate by the Acting Attorney-General, Judith Collins, I say that I think we have lost an opportunity here to protect the reputation of our new Supreme Court and to make it clear to the public that there is every reason that they should continue to have the utmost confidence and respect in and for the New Zealand judiciary, its independence, and its lack of corruption. We are so lucky to live in a country where we do not have to worry about graft in these institutions at these levels, because we do not. Here, there is an allegation of the appearance of conflict. As I say, it has never been made out; it is an issue of appearance. That is the worst that can be said about the allegations that are being dealt with here. We are lucky that this is as bad as it gets in New Zealand. This is something the Acting Attorney-General should be celebrating. It should be made very clear to the public that there is every reason to continue to maintain the utmost confidence in the judges of New Zealand.
Instead, the Acting Attorney-General failed to protect publicly the independence and the integrity of the judiciary. She maintained that she did not know why Mr Wilson resigned, when it is obvious that she has had the facts all along. After his resignation, she welcomed it and said: “It was the best thing for the judiciary.” Well, that will have a chilling effect on judges and judicial candidates for office who think they are entitled, as they are under our constitution, to the full protection from the Attorney-General of their independence and their integrity when they are accused but not yet found guilty of any wrongdoing.
I conclude by saying that perhaps Mr Wilson would have been better advised to disclose his business relationship with Mr Galbraith; he did not. Perhaps there should have been some consequence, but should that consequence have been the forfeiture of his office? Should it have been at the price of being hounded from that office in a hail of bad publicity with no real public opportunity to put his side of the case? Should it have been at the price to New Zealand of the loss of an extremely able judge, 6 years before his retirement was due by statute? I think that puts into context the opportunity cost point that was rightly made by Mr Quinn earlier.
This matter has been poorly handled. It has left the judiciary and the new Supreme Court damaged. It has left Mr Wilson without a career and it has made becoming a judge in New Zealand noticeably less attractive to the many excellent barristers we have in practice here. If we do nothing else as a result of this fiasco, we need to learn the lessons and put some remedies in place so that we do not find ourselves in this situation again.
CHESTER BORROWS (National—Whanganui) Link to this
It gives me some heart to note the tenor of the debate in respect of the issue currently before the House. It seems to be that the damage to public confidence has been because of the perception of a conflict of interest, rather than because any actual corruption has been found. I agree with the previous speaker, Charles Chauvel, who said we must do all that we can to protect confidence in our court system.
I want to recall to the House a paragraph from an article in the Press that speaks to this issue. It states: “Some erosion of confidence must have already occurred, because the primary facts of Wilson’s behaviour—his failure to recognise immediately the extent of his personal and financial connections with a lawyer arguing a case in his court room and to remove himself from the case—raise serious doubts about his judgment. So do his failure to realise the grievousness of his mistake and fully account for his relationship with the lawyer. An offer to resign should have followed.”
Of course, we now know that Justice Wilson’s resignation did follow. It is a shame that it has occurred, because by reputation we know that Justice Wilson did a lot of work pro bono for interests groups, such as Māori, to promote the interests of various iwi. We need to respect him for the fact that he did that, as well as for the public appreciation of what he brought to the table in terms of his experience, his candour, and the gravitas that he brought to his role.
It is important to make just a couple of points too in respect of speeches that have been made. One is to acknowledge the openness of the Acting Attorney-General, the Hon Judith Collins, in respect of what occurred and what finally occurred by way of the settlement. She did not seek to hide that, and that has been a matter of public record. It is important for the public who are watching on to note that openness, and to note what the expenses were to the Crown on behalf of the taxpayer. The other point that needs to be made is in respect of comments made by the Hon Trevor Mallard, I think, who said submissions should not have been filed by the Attorney-General, and the Attorney-General should have had another colleague file them for him. For the sake of clarification, it is important to point out that the submissions that were made were prepared by the Solicitor-General. They stated the Crown’s position on this matter, and they were filed only nominally by the Attorney-General as a party to the proceedings.
It is important to note that in these legal processes, the law is an unusual sort of environment for lay people to get their heads around. It appears that when there is a conflict of interest, or it appears that there may be a conflict of interest, lay people are very quick to make leaps in their decision making as to whether there is an element of corruption. In other words, they are prepared to say that if something is smelly, there is definitely something wrong. In fact, the different arms of Government under the separation of power are loath to point the finger at one another, because it is important that confidence remains for the people who have to live under the law: under the adjudication of one branch of the law, and under the laws created and enforced by the other two branches of the law.
I see no reason to go much further in this speech, other than to say this is a sad day for New Zealand, because of the loss of an esteemed member of the judiciary. At the same time, I recognise the need for that to happen in order to preserve the perception of openness. Maintaining integrity within our judicial system involves making sacrifices for the sake of the greater good. The public perception that our legal system is above reproach is something that we must jealously guard and work strenuously as a House to protect in the future, for the good of all New Zealanders. Thank you.