Judicial Matters Bill

I move, That the Judicial Matters Bill be now read a first time. At the appropriate time I intend to move that the bill be referred to the Justice and Electoral Committee for consideration, and that the committee have the authority to meet at any time while the House is sitting, except during oral questions, during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 193 and 196(1)(b).

The bill is an important piece of constitutional legislation. The measures in it are aimed at maintaining and enhancing public confidence in the judiciary, and recognise the fundamental importance in a democracy of ensuring an independent judiciary in addressing judicial resources. The bill also responds to this Government’s commitment to revisit, update, and consolidate the laws and procedures that delineate the relationship between the judiciary and other branches of Government.

The bill is divided into two parts. The first part will become a stand-alone Act, and the second part amends various existing statutes and will be split into the relevant amendment Acts. Part 1 establishes new processes for dealing with complaints about the conduct of judges and those rare situations when it may be necessary to consider removal of a judge. A new office of the Judicial Conduct Commissioner will be established. The commissioner’s role will be to receive and process complaints about judges, to identify those requiring a full investigation because they raise a question of removal of a judge. The Judicial Conduct Commissioner will have the power to dismiss complaints that are frivolous, vexatious, and trivial, and may refer complaints to the relevant head of bench. If the Judicial Conduct Commissioner is of the opinion, following an initial examination, that an inquiry into the complaint is necessary, and that the complaint, if substantiated, may warrant removal of the judge, he or she will report to the Attorney-General and recommend appointment of a Judicial Conduct Panel.

The Judicial Conduct Commissioner will be appointed by the Governor-General, on the recommendation of this House. Before a recommendation is offered, the Governor-General and the Attorney-General must consult with the Chief Justice and advise the House that consultation has taken place. The Judicial Conduct Commissioner must be a person whose impartiality and integrity is beyond question, and in whom the public and the judiciary may have confidence. A retired judge or other senior figure may be able to fulfil the role. The commissioner is a statutory appointee. The office of the commissioner will be located, for administrative convenience only, within the Ministry of Justice. The commissioner will be under a duty to act independently and will not be accountable to the Secretary for Justice in carrying out the functions of the office. Every year the commissioner will provide a report, which will be laid before this House and contain information about the complaints process.

The Judicial Conduct Panel will play a crucial role in maintaining public confidence in the judiciary. It will inquire into a serious complaint that has been referred to it by the Attorney-General. The panel may determine whether the conduct complained of occurred, and, if so, whether the conduct amounts to incapacity or misbehaviour that demonstrates a judge is unfit for office. The removal of a judge has never been necessary in this country, so the exact process leading to the dismissal has not been established. It is desirable for this process to be set out before it is required, as a hastily devised process may damage public confidence and impose risks to judicial independence.

The Judicial Conduct Panel will be made up of three people. There will be one lay member, who will be neither a judge nor a lawyer. The other two members will be a judge or a retired judge, and may include a senior member of the legal profession. The panel will be appointed—

Richard Worth: I raise a point of order, Mr Speaker. There is a requirement in this House that speeches be given in English or Māori. We are being treated to high-speed gabble.

The ASSISTANT SPEAKER (H V Ross Robertson): No, that is not a point of order.

Richard Worth: I would invite the Minister to slow down so we can hear what she is saying. She is reading from densely written typescript. It is almost impossible to hear on this side of the House. I appreciate she wants to get through the material quickly, but it would be good if the House could hear.

The ASSISTANT SPEAKER (H V Ross Robertson): The issue is a debatable matter. The Minister has heard what has been said.

Hon Ken Shirley: I raise a point of order, Mr Speaker. I ask you to reflect on your ruling that this is a debatable matter. I totally concur with Mr Worth. It was an absolute bullet-like, repetitive gabble. I could not understand what the Minister was saying. She is reading from prepared notes, and that is not debatable. The House, or certainly the Opposition parties, could not understand what the Minister was saying.

The ASSISTANT SPEAKER (H V Ross Robertson): I thank the honourable member. The way in which a Minister delivers his or her speech is not a matter of order. It is entirely up to the Minister concerned. The member is playing with the House.

Hon MARGARET WILSON: I apologise if honourable members could not follow me. I assumed they had read the bill, which has been tabled.

The panel will be appointed by the Attorney-General, after consultation with the Attorney-General. Judges of the High Court, the Court of Appeal, and the Employment Court are subject to removal by the Attorney-General, on the grounds of incapacity or misbehaviour, on an address from this House. Other judges are subject to removal by the Governor-General, on the grounds of inability or misbehaviour. In the case of other judges the Governor-General acts, by convention, on the advice of the Attorney-General. There are no changes proposed to these arrangements.

Part 2 implements various proposals to strengthen judicial independence, or address judicial resources. Amendments will be made to the relevant Acts to enable judges of all benches to work part time. Flexible working arrangements are increasingly possible and desirable in the modern workplace and should be available to judges, subject to the needs of the courts in which they sit and the needs of the public.

The bill provides an absolute immunity from suit, to be extended to all judges. At present, judges of the Court of Appeal, High Court, and Employment Court have absolute immunity from suit in respect of actions taken against them in their role as judges. Judicial immunity promotes judicial independence by allowing the fearless performance of the judicial function. It does not preclude other remedies for persons aggrieved by the actions of a judge. Appeal to a higher court is, and should be, the primary remedy for a litigant who is dissatisfied with the judge’s decision. Judicial immunity does not exclude compensation from the Crown in cases of miscarriage of justice, and, in cases of misbehaviour or incapacity that indicates a judge is unfit for the office, he or she may be removed. Criminal prosecution for corruption remains available, and there are formal complaints processes that are strengthened by the proposals for a judicial conduct commissioner and a judicial conduct panel.

The bill contains proposals that will strengthen the office of Master of the High Court by providing the masters with the same rights of permanent tenure as other judges. Masters will also have a new title—Associate Judge of the High Court—that more accurately reflects their role.

Two proposals in the bill directly address issues of judicial resources. Firstly, the bill provides a new mechanism for setting a maximum number of judges in the High Court and the District Court. Currently when the number of judges is at a maximum, separate legislative amendments to the District Courts Act and the Judicature Act are required each time an additional judge is needed in the District Court or High Court, respectively, to deal with increased workloads. Under the new proposal, the maximum number of judges in those courts will be raised by Order in Council. The order will come into effect once it has been converted by resolution in this House.

The changes to the tenure and role of the Principal Family Court Judge and the Principal Youth Court Judge included in the bill are intended to provide a regular turnover in the administrative leadership of those functions by introducing a fixed 8-year, non-renewable term. The changes are made in a manner that recognises the principle of judicial independence and, therefore, will not affect the present Principal Youth Court Judge or Principal Family Court Judge.

The bill enables community magistrates to be appointed on a temporary warrant after they have reached the mandatory retirement age, and also consistent with provision of District Court judges. It also provides for future Environment Court judges and commissioners to be appointed by the Governor-General, on the recommendation of the Attorney-General after consultation with the Minister for the Environment and the Minister of Māori Affairs. The effect is that all judges, with the exception of the Chief Justice and the judges of the Māori Land Court, will be appointed on the recommendation of the Attorney-General. This proposal will help in promoting coherence, consistency, and professionalism in the appointments process, and is the appropriate match with the Attorney-General’s role as the Government’s senior law officer.

I commend this bill to the House.

Would it not be great if we had a confidence that the Attorney-General believed in the merits of this bill? We have been treated to a gabbled speech, read at high speed from closely written typescript. I would like to start, if I may—and against the background of the interruptions from the Minister of Defence; we all know about his legal experience, do we not?—with the overview provisions in the explanatory note of the bill. The Government asserts that collectively the measures are aimed at maintaining and enhancing public confidence in the judiciary, and recognising the fundamental importance in a democracy of ensuring an independent judiciary and addressing judicial resources.

I have to say, with a measure of sadness, that National supports this bill going to a select committee. We do so with significant reservations. For my part, those reservations centre on two things: first of all, the absence of provisions relating to judicial appointments; and, second, the provisions relating to the appointment of part-time judges. I do not take any heart from the fact that in material produced by the New Zealand Law Society, Law Talk 610, dated 1 September 2003, this comment appears: “Margaret Wilson said work on proposals for such an office”—that is, relating to the appointments process—“was continuing, with final decisions expected by the end of the year.” So here we have an incomplete, imperfect bill that fails to deal with what is really the critical issue confronting the judiciary today, which is that related to judicial appointments.

There is a growing apprehension in the community, and I speak of the legal community and the non-legal community, about the ability of the Attorney-General to make merit-based recommendations on judicial appointments. There are two reasons for that, I suggest. The first is related to the innate limitations of the Attorney-General’s decision-making process, and the second is a bias that she has against merit selection. There are multiple illustrations of mal-appointment, and they range through the judicial ranks. So on a quasi-judicial level they touch people like Susan Bathgate, Ella Henry, and Joris de Bres. In the District Court, unfortunately, there are also some recent examples.

The Attorney-General may think that these affirmative action programmes are justified—that political correctness is, in some way, justified. But I suggest that all parties lose from the process. Who are those parties? Well, the public lose because they lose confidence in the judiciary and the system of judicial administration. The second group of people who lose out are the litigants appearing before the courts. And, of course, not to be forgotten, another person who loses out is the judge who is out of his or her depth with the role entrusted to him or her. We have seen in the last 2 years, I would say, a number of judges appointed who are literally out of their depth. Why is that? It is because they have not been appointed on a merit basis. They have been appointed on a basis that reflects political correctness or affirmative action. I am interested to see the Minister of Defence—the so-called know-all on matters relating to all things—shaking his head, and intervening in the incautious way that he so often does. I pose the question: what would he know about these issues? What is the answer to that? Absolutely nothing. But confidence characterises this Minister of Defence, with flawed procurement policies in defence. He is, nevertheless, prepared to offer a view on anything and everything.

Parliament had been led to believe that legislation would shortly be forthcoming to deal with judicial appointments. I see opposite the hard-working chairman of the Justice and Electoral Committee—a committee on which I, too, am privileged to sit. He has laboured under the same delusion as I have; that there would be shortly coming to the House—particularly in the context of the Supreme Court Bill, which abolishes the Privy Council—material of substance relating to judicial appointments. Well, he has been disappointed, I have been disappointed, and the other members of the select committee have been similarly disappointed.

It is a very curious position that in the context of the bill that plans to abolish the Privy Council, an informal process is to be embarked on for the appointment of the judges of our highest court. It is clearly a recognition that what is occurring at the moment, under the aegis of the Attorney-General’s power, is unsatisfactory, because what she has proposed to establish is an informal advisory committee. And who are the players on that? Well, herself—and I am sure she will be consulting herself—the Chief Justice, the Solicitor-General, and a former Governor-General. I do not wish to criticise the former Governor-General who has been placed on the advisory committee, but I venture to suggest that he will find it very difficult to make a contribution to the sorts of issues that will be importantly before him.

I would like, if I may, to turn to a second issue, which, judging by the statements that the Attorney-General has made tonight, is clearly an important one. These are her plans in respect of part-time judges. Who would like a part-time, non-committed judge to sit in judgement on a particular case, if one were a litigant? The explanatory note states: “Provisions in the Bill allow for Judges to sit on a part-time basis in appropriate circumstances. The proposal will ensure that Judges have good work conditions consistent with EEO policies.” What might that mean? “In the modern workplace, flexible working arrangements are increasingly desirable and achievable. The proposal may also assist with recruitment and retention of high calibre members of the judiciary.” The explanatory note continues: “Part-time work will be authorised by the Attorney-General, with the concurrence of the relevant Head of Bench. Part-time work will usually be sought for defined periods for reasons of health, family commitments, or approaching retirement.” I would like to underscore those criteria relating to health or approaching retirement. If I were a litigant, I would not want a sick judge sitting on my case. If I were a litigant, I would not like an ageing and decrepit judge sitting on my case, where the amounts at issue might be significant.

Where is the Attorney-General taking us, in respect of the Judicial Matters Bill? Nowhere good, I would say. A number of commentators have already offered insights into the merit of this legislation. I would like to ask some questions of the Attorney-General, noting her seated opposite and listening with rapt attention to the comments I now make. Here are two of the questions. Is it appropriate for the Attorney-General to become so directly involved in the management of the judiciary? How are the Attorney-General and Chief District Court Judge to choose between applicants for part-time positions where it is likely there is competition for such positions?

I will speak briefly, as chair of the Justice and Electoral Committee to which this bill is to be referred for public consultation and detailed consideration. The timing of the bill could barely be better. The select committee has been considering the Supreme Court Bill, as Mr Worth has just mentioned, for the past 5 months. That debate has raised a whole series of matters that are touched on in this legislation or are within the ambit of the debate that, undoubtedly, we are going to have around those issues. I am sure I can speak for the whole select committee when I say that we are keen and ready to address these matters. We are also currently out for consultation on the Lawyers and Conveyancers Bill. Additionally, as that bill is to revise the whole complaints system relating to the legal profession, it is highly relevant that in this legislation we are looking at a new complaints system relating to judges.

Matters that affect the judiciary are inevitably of constitutional importance, as noted by the Minister. Such matters do deserve rigorous consideration, and I can undertake on behalf of the select committee that we will do our job, and do it very well.

The Judicial Matters Bill was heralded as being the answer to a considerable number of problems, including, in particular, the appointment of High Court judges. We heard from the United Future member of the Justice and Electoral Committee various comments that hinted that this bill would be covering those issues. Obviously he was not able to put any pressure on the Government to make sure that those issues were contained in this bill. I read with interest a comment in the paper indicating that United Future was going to vote against this bill. I will have to congratulate United Future members, if they do vote against this bill, on maintaining that standard. As far as New Zealand First members are concerned, we will support this bill going to the Justice and Electoral Committee.

I do wonder about the bill’s overall worth, when I look at Part 1. I can see the overall requirements in Part 2, regarding increasing the number of judges, and such like. But, really, I am a bit sceptical about setting up yet another commission. We are going to have a Judicial Conduct Commissioner who will be appointed by the Governor-General on the recommendation of the House of Representatives. That person is going to be appointed by the House of Representatives. We do not seem to have the privilege of being able to do this for the new Supreme Court judges, but we are going to appoint a Judicial Conduct Commissioner, by appointment through the House of Representatives. We manage to appoint the ombudsmen, and, I think, the Parliamentary Commissioner for the Environment, who are parliamentary officers, through the House of Representatives, but we cannot appoint the new lot of Supreme Court judges, if the bill ever gets to that stage, by some sort of consultation though a select committee of this House or through some general approval by members of the House of Representatives, as happens for the ombudsmen. However, we can find space to appoint a Judicial Conduct Commissioner—yet another one of these groups—through the House of Representatives.

What is this person going to do? He or she will receive complaints about judges, and will deal with those complaints in the manner required by this bill. It is difficult enough to get really good barristers to take on positions as judges, and now they are going to be confronted by some person—and, as members of Parliament we have all had these people coming to see us—saying: “That judge got it wrong. Now I am going to take it to various members of Parliament, and to the Minister. I am going to write to the editor, go to the ombudsman, and I’ve got another one now. I can take it to the Judicial Conduct Commissioner.”

R Doug Woolerton: Who needs it?

DAIL JONES: Yes—who needs it? One wonders: just where do we go? We appoint people to be judges, and we now have to scrutinise everything they do. Do we not trust them, in the first place? Are they not the best in the land? Now we are going to have a person scrutinising them.

One of the things that has been given to the judges—and it is the lower court judges; usually at District Court level—is that they can be the subject of civil proceedings, as I recall it, if they act in excess of jurisdiction. I see that this bill seems to be covering that immunity in so far as District Court judges are concerned. I guess that is something of a quid pro quo; I get the feeling it is a quid pro quo for this extra examination by this particular type of commissioner.

What is going to be the subject of the complaint? Clause 11 states that any person may make a complaint about the conduct of a judge. What on earth is that? People can complain about the conduct of a judge. Did he or she arrive late? Did he or she not ask the right questions? Did he not accept the person’s evidence, and say the person was guilty of whatever it was—when the person was obviously innocent and the whole world knew it!

Stephen Franks: He dresses funny.

DAIL JONES: Yes—does he dress funny? Does he have long hair? That could be the subject of a complaint. The judge might be a Rastafarian. We all know that Rastafarians on cannabis cases will probably be too strict with cannabis smokers! Judges get strange like that.

Any person can make a complaint about a judge. The complaint does have to be in writing, it must identify the judge who is the subject of the complaint, identify the complainant, and state the subject matter of the complaint. The bill has not been with us for too long, but I presume that the complaint must have been about a case in which the complainant was involved. If we do not have those busybodies who can go along to a court to say: “Oh, that case wasn’t handled very well, and I’m going to make a complaint about the judge in that case, because that judge didn’t do this, that, or whatever.”, what sort of situation will we have?

The bill states that the commissioner must dismiss complaints that fail to meet a required threshold. What does that mean? Is the complaint frivolous, vexatious, or not in good faith? The type of people I am speaking about are people who will never accept that their complaint is frivolous, vexatious, or not in good faith. They believe very, very sincerely that their complaint is of the utmost importance, and nothing could be of the greatest requirement to ensure the highest standard of the judiciary.

In the short time I have been back in the House I have had letters complaining about the judiciary. I have heard all sorts of allegations about the judiciary. People do hold those views sincerely, but one must ask oneself whether the Government’s answer is to set up a body that will get those people on their way to the commissioner, and maybe we will not see them again. I am sure that once they go to the commissioner and the case is rejected, they will be back to their MPs once more, and we will only have delayed the inevitable.

As far as membership of the Judicial Conduct Panel is concerned, the Attorney-General may at any time appoint a Judicial Conduct Panel to inquire into and report on a complaint about a judge who has been the subject of a recommendation. A Judicial Conduct Commissioner is being appointed now, and that will be one nice job for somebody. One can see them all lining up now.

Judith Collins: You can see Margaret’s mates lining up.

DAIL JONES: One can see Margaret Wilson’s mates all lining up for the job of Judicial Conduct Commissioner. However, on top of that, or below it, is the layer of Judicial Conduct Panel.

Judith Collins: Joris de Bres can do that.

DAIL JONES: Yes, Joris de Bres could do that. Clause 21 refers to membership of panels. A Judicial Conduct Panel consists of the following persons, appointed by the Attorney-General—and we know how good all her appointments can be. Two members will be judges, or a retired judge, etc., and there will also be a lay member. So here we go. We have jobs for the boys and girls. It is amazing how this Labour Party continues to create all those bodies, and such like. What is all this trying to achieve?

R Doug Woolerton: How many have they got in Cabinet?

DAIL JONES: They have about 24 in Cabinet. Just about everybody in the Labour Government has a job. If any of their friends do not have a job at this stage, then here is a chance for them to get one. Of course, if one is not satisfied, one can appeal to the Court of Appeal. What are we coming to? Judge Smith wore the wrong sort of shirt and tie. He was wearing his King’s College tie or shirt, and did not go to St Paul’s College in Ponsonby. I assume that would be frivolous or vexatious. However, one can take it that there will be cases where they will not be satisfied, and there will be an appeal to the Court of Appeal. What on earth is New Zealand coming to? We will be spending all this money on that particular body. I just wonder what we are coming to.

The last point I want to comment on is the part-time judge. When my wife was teaching, at one stage she was involved in job-sharing. One of the teachers at the school had just had a child and my wife job-shared with her for a year. I expect that this provision probably relates to job-sharing for judges who have just had children—males or females, in this day and age—and there is some merit in it. However, one issue that has not been covered by the Minister is the system in the United Kingdom of having part-time recorders. The Minister does not even seem to have touched on this, but we could have a similar position of recorder; someone who has a trial run to see how good a judge he or she will be. That is the only reason I can see for having a part-time judge, similar to a recorder. Otherwise, as Richard Worth said, do people want a sick person to be their judge? Do they want some old fogey, as old as 67-plus, and who is not very well, either, to be a judge? This bill leaves a lot to be desired.

I am pleased to take a call in the first reading debate on the Judicial Matters Bill. National will support the bill’s referral to a select committee only because it probably has some reasonable provisions. Like my colleague Richard Worth, I note that there are also some worrying aspects to it as well, and I shall come to those.

The underlying aim of the bill is to maintain an enhanced public confidence with regard to the judiciary. That is a laudable aim, but it addresses only half the problem. Part of the notion of public confidence depends upon the confidence the public can have in those people who are appointed to the bench in the first place. The other aim of the bill is to adjust other matters within the judicial sphere to improve efficiency and consistency. We look forward to discussion in the select committee to see whether those objectives will be attained in any event.

The provisions of the bill set up a judicial complaints and removals process to deal with the situation if the removal of a judge is seen to be appropriate. It establishes a new role, a Judicial Conduct Commissioner, who acts independently to oversee complaints against judges, and comes to a view as to whether complaints need to be addressed. It establishes a Judicial Conduct Panel that would oversee any complaints that require an inquiry into a judge’s conduct. That panel will be made up of three people—a lay member and two with legal expertise. National has some reservations about that, and we will be looking fairly closely at the submissions made in that regard. Judicial immunity by suit is extended to District Court judges, Environment Court judges, Masters of the High Court, Courts Martial Appeal Court judges, and Māori Land Court judges. This seems to be an appropriate provision.

There is also provision for judges to sit on a part-time basis in “appropriate circumstances”. I am not sure what those circumstances will be. The bill sets out some comment on it, but, again, I would urge the select committee, as it considers this bill, to see whether that is a reasonable provision. My colleague Richard Worth has already addressed that, as well. It may be that the provision for part-time judges suits the personal or domestic circumstances of those who might end up sitting in a part-time manner. But I would query whether that is an appropriate way to man—or woman—a bench.

Richard Worth: Yes, an old sick judge, covered by a rug, trying to dispense justice—ridiculous!

Hon GEORGINA TE HEUHEU: Yes. That may be so, as well, but all I am saying is that I would have thought that the coherency and consistency of the bench depends upon judges sitting full time. There are other matters, as well. I shall comment on just two other matters that I think need close scrutiny. Principal Family Court judges and Principal Youth Court judges will now be appointed for a fixed 8-year non-renewable term. On the face of it, that may be reasonable, but I do not see any appropriate rationale for that occurring.

Again, from my point of view, there would be the issue of consistency and continuity on those particular benches. The other matter I raise is the issue of Masters of the High Court being renamed Associate Judges of the High Court and gaining the same rights of permanent tenure as other judges. Although acknowledging the fine work that Masters of the High Court conduct and carry out, I question the appropriateness of that. I would have thought that they have different roles and responsibilities. What is the notion of an Associate Judge of the High Court? I do not know. One ought to be either a judge or a master. As I say, I raise a reservation about that as well.

At the beginning of my speech I signalled that I thought there was a major flaw in this legislation in that it deals with only half of the problem, and, in my view, not even the more important half of the problem.

R Doug Woolerton: What’s happening to Queen’s Counsel? What are they doing with them?

Hon GEORGINA TE HEUHEU: Exactly. The member asked what is happening to Queen’s Counsel. It is part of the issue of republican creep. I think that is what is happening in that regard. Slowly but surely we will degrade the whole thing. We will bring in part-time judges, we will make masters into judges, and now we are taking away Queen’s Counsel, as well. Those are all things that are occurring in the wider scene under the hand of the Minister Margaret Wilson, and one has to question most things that she does, particularly her record of appointments. Although I think it is a bit incoherent to deal with removals and complaints and not deal with the issue of appointments at the same time, I suppose that if further work is being done in the area of appointments, then it may be a good thing because we may be able to find a way to ensure that if this Attorney-General is to be in charge of the legislation that sets up an appointment process, it is not subject to political interference. I think that is always the worry with this Government.

As I say, the public has a right to expect a bench of the highest order and the highest quality. This legislation deals with removing judges but does not really address the more critical issue, which is the way our judges are appointed to the bench and the way their tenure is characterised. I think that is a major flaw in this legislation. It is a pity that the Minister did not see fit to address both issues at once. After all, the work that sits behind this is the report completed by Sir Geoffrey Palmer, and I think that he certainly saw both of those responsibilities being addressed at the same time. I want to refer to some comments made by the former Attorney-General, Sir Douglas Graham, who publicly expressed reservations about possible political interference in the judiciary, inherent in this bill with the establishment of the Judicial Conduct Panel. I have already indicated that part of the concern there is probably due to the fact that a lay member will be part of the process and there is not a lot of detail as to the overall make-up of the panel. That is Sir Douglas Graham’s comment—an eminent former Attorney-General.

Richard Worth: Eminent.

Hon GEORGINA TE HEUHEU: Absolutely, an eminent former Attorney-General who had no republican agenda in his mind, and would never support a downgrading of the judiciary in any way. He played it absolutely straight up and straight to the point, and he was very committed to those things that uphold the constitution. Such an important part of that is personnel—those who man, and woman, our judiciary. We support the bill’s referral to the select committee, but we certainly have reservations about it, and we will be looking to scrutinise those matters at the committee.

I rise in support of this bill. It is a good bill, and I think we should facilitate its passage through the House. I am pleased to support it.

I concur with the National Party’s view that this bill should really have dealt with the issue of appointments. United Future differs from the National Party in so far as we believe that the failure of this bill to deal with the appointment process is sufficient to warrant us not supporting the bill in its first reading. We believe that the Judicial Matters Bill was a golden opportunity for this Government to address the whole issue of how judges ought to be appointed, and to examine the various models available from overseas in order to determine whether, in particular, there should be a Judicial Appointments Commission. It is United Future’s view that the availability of a Judicial Appointments Commission in order to do this is a step that we should be seriously examining in this country, following what is a growing trend overseas.

We oppose this bill not so much on what is in the bill but on what is not, and the appointment process is the major item. Some of the other issues that I will deal with, such as fundamental flaws in the bill as it stands, are matters that could be addressed by the select committee and corrected. However, the appointment process, because of its substance, is not a matter that could be dealt with by the select committee. This Government, in its 1999 manifesto, promised the people that there would be an independent decision-making body for judicial appointments. The 1999 Labour manifesto promised an independent decision-making body for judicial appointments. Where is it?

Stephen Franks: We’ve got it—the Hon Margaret Wilson.

MURRAY SMITH: It does not reside in the Hon Margaret Wilson. However, in her press release she said that public confidence in the judiciary and judicial independence are of fundamental importance in a democracy. She said that it was important that judicial appointments and removals were more transparent.

R Doug Woolerton: Who told her that?

MURRAY SMITH: This is from her press release of 7 March this year. Well, we do not have a more transparent process. This bill does nothing to give us a more transparent process in judicial appointments. It does nothing to take it away from one person making the decision at the end of the day as to who should be on the bench of this country. That is not transparency. That is not independence. Private consultations with the Solicitor-General and the Chief Justice do not constitute transparency and independence.

It is too easy for there to be political influence in the appointment of the judiciary. I acknowledge that there is no evidence in New Zealand that people have been able to point to to suggest that it has happened so far, but when I was at the Commonwealth Law Conference in Melbourne I was struck by just how politicised the judiciary just over the ditch has got. Seventeen out of the 35 appointments to the High Court, we know, are ex-politicians. I had dinner with some judges when I was there, and it was a topic of conversation as to why so-and-so had not been appointed to the bench. The answer was that he was too closely aligned with the Labour Party. Another comment made was that a person was likely to be the next Governor-General, depending on the outcome of the election. Australia has a very politicised system. Although that has not happened in New Zealand, I think it is an influence that will grow here. It is an influence that we need to provide for at this early stage, particularly when we are dealing with issues such as the Supreme Court and the appointment and removal process through this bill. This is our golden opportunity. If this bill goes through as it is, we will have lost that opportunity.

It has been suggested that maybe a cross-party support of parties in terms of judicial appointments, at senior levels particularly, be used. United Future is not in favour of that, because we believe that politicians ought to be kept out of the process. Even though cross-party support gives a variety of views, politicians do have vested interests that they all share in common—such as the supremacy of Parliament—which would influence their decisions in terms of the judges who were acceptable. I think it is better that it is kept right out of the political process. We know that Canada, at provincial level, has a Judicial Commission. The new Caribbean Court of Justice is going to have its appointments dealt with through a Judicial Commission. The UK is currently examining having a Judicial Commission for appointments at the lower level at this stage. A number of African Commonwealth countries are now moving to judicial commissions. It is about time we looked at that issue. So, as I said, I believe that that is a serious flaw. United Future does not support this bill, because it does not deal with that issue.

In terms of removal, the paper presented by Sir Geoffrey Palmer, upon which this Government is meant to have designed this bill, states that the commissioner would inevitably become a point of contact and clearing-house for complaints regarding the judiciary and could conveniently be advertised as a proper first port of call for complaints. The commissioner would be responsible for screening complaints. In most cases this would simply require forwarding the complaint to the relevant Head of Bench for handling through the judicial complaints lay observer process. In the case of non-serious complaints the statute would require that these be referred to the relevant Head of Bench. The current judicial complaints lay observer process, which does not need to be codified in statute, would then take over. Well, this bill does not do that.

Clause 15 states that the commissioner must dismiss a complaint if it does not warrant consideration of removal of a judge. The only power of a commissioner to refer the matter to the Head of Bench is if the complaint is not dismissed. So we have a situation where Joe Blow citizen, having been dissatisfied with the way that a judge has conducted him or herself, approaches this new commissioner, who is touted as being the person to whom to refer complaints. And because the commissioner decides that, effectively, it is not a complaint that amounts to “serious enough conduct to warrant dismissal”, he then rejects the complaint—must dismiss the complaint. He then writes back to the complainant: “Sorry, you don’t qualify. Get lost!”. Well, I can imagine what the public image of judges will be in that sort of judicial process.

We all have received letters from people who feel dissatisfied with the way that the court process has worked. Some of the submissions we have heard on the Supreme Court Bill have been very full submissions about people who have repeatedly felt they have been poorly served by the judicial process. For such people to write to this new commissioner, with great promise, then get a rejection saying: “Well, it’s not serious enough. Get lost!”, will do nothing to help to sustain the public view of the process. For that reason, I believe that is a serious flaw in the bill. As I said, that is a matter that could be corrected at the select committee, but my big concern about the bill is that those sorts of things show that this bill has been rushed and was ill conceived.

When I was a student and had an assignment due the next day, once or twice—probably more—I worked through the night to get it finished, so I could hand it in the next day. This bill suffers from the same sort of late, rushed drafting that such a practice denotes, and therefore I give it four out of 10. Four out of 10 is not a pass mark, and therefore does not justify our party supporting the bill. It is important that the Government prepares legislation that is well-thought-through and is given the time to be properly thought through. I have to say that if United Future had been consulted on this bill before it entered the House, we might have been able to point out some of these things and get it into better shape for select committee consideration. We are opposing the bill. We believe that an appointments process needs to be looked at—and that needs to be considered at this point; it should be in the first draft of the bill. We believe that the bill has been rushed and poorly thought through. In terms of the other recommendations, most of them, we believe, are probably fairly innocuous. It is a pity that this bill, which could have been such an important measure—it was something we were looking forward to; we expected it to be significant—has not been seen by this Government as an opportunity to look at the whole issue properly.

The Judicial Matters Bill, as previous speakers have said, is just one part of some significant reforms of the legal system being undertaken by this Government that the Green Party, in general, does support.

Richard Worth: It doesn’t support it.

NANDOR TANCZOS: It does support them, I say to Mr Worth. The Green Party will support this bill going to a select committee, and we look forward to hearing submissions on it, particularly in the context of a number of the issues raised by the Supreme Court Bill, as has been referred to previous speakers. We are pleased to see that the bill contains a number of changes to the management of the judiciary; we think a number of those changes are long overdue. But, as previous speakers have said, there are some important omissions in it, and we hope there will be an opportunity to address some of those things during the select committee process.

Of course, the bill has to be seen in the context of the review by Chen and Palmer of the judicial management system. The Judicial Administration Issues report, which was released last year, raised a number of important issues. One of the questions that the report looked to address was that of a judicial appointments commission. The Greens do support the establishment of such a body, as does United Future, as stated by Murray Smith. The Supreme Court Bill, which is currently before the Justice and Electoral Committee, has precipitated wide discussion, as members know, on the appointment process for judges in the context of the establishment of a domestic court of final appeal. Although there has been no suggestion that the process has been biased or corrupted in the past, there is growing interest in this country in removing judicial appointments from the realm of politics, as much as possible. The basic principle is that judges not only should be free of political influence but should be seen to be free of it. That is particularly important if we are to move to a domestic court of final appeal, such as a Supreme Court.

That general principle was acknowledged in the Chen and Palmer report. The report comments on the fundamental constitutional importance of the independence of the judiciary, continued—and probably intensifying—public scepticism about judicial independence, criticism of judicial accountability, and, of course, Labour’s 1999 commitment to introduce an independent decision-making body for judicial appointments and removals. But the report did not go so far as to recommend an independent appointments body, which the Green Party believes is the obvious logical step to take given those stated concerns. The Greens are very keen to see the establishment of such a body, and we will be very interested in what submitters to the select committee say on that subject. Unlike Mr Smith, I do not agree that the Justice and Electoral Committee will be unable to look at that question. If it is raised by submitters, of course we will look at it, and we believe that there are a number of ways that such a thing could be introduced. This bill is the appropriate vehicle to do that.

A number of submissions on the Supreme Court Bill also addressed the question of the retirement age of judges. The ministerial advisory group on the Supreme Court also suggested that the question of the retirement age of judges generally should be looked at, although it did not express an opinion on that matter. That is also something the select committee should examine in the context of this bill.

The bill does some good things. We welcome the establishment of a Judicial Conduct Commissioner. We believe that this new position and process will increase public access to the complaints procedure, and it will also increase transparency in the complaints process, which is essential if we want to build public confidence in the judicial process. This position and process are particularly essential when judges are accorded the protection of absolute immunity from suit. Although there are good reasons for that protection, it needs to be properly balanced with a transparent process for public complaint. Judicial accountability is essential, given the extraordinary level of authority and coercive power that the judiciary holds over the community.

The Greens also welcome the ability for judges to work part-time. We believe that this is an important facility if we want to attract more judges to the bench, and it is important if we want to attract judges who are committed to their families and to community activity as well. This provision will help to increase the diversity of judges and, perhaps, as a result, their temperament.

The Greens are pleased to see the capacity to increase the number of District Court and High Court judges. One of the major issues for our judicial system is the delays for individuals and their families who either seek justice in the court or are subject to the force of the law. We believe that long delays between hearings cause considerable uncertainty, unnecessary disruption to families, and hardship. Given that the court process is an intimidating and complex process, this uncertainty and disruption will be assisted to some degree by, effectively, increased court sitting time.

The bill, as I have said, has a number of omissions, but the Green Party believes that it is a useful place to start. On that basis we are supporting it going to a select committee and look forward to hearing submissions at that stage.

The ACT party will vote on this bill in the same way as the United Future party will—against it, even at its introduction. But we would be less likely to vote that way if the Associate Minister of Justice, Margaret Wilson, had not introduced it with a reference motion that would suspend or avoid the operation of the Standing Orders, in order to have the bill rammed through the select committee process together with, or almost at the same time as, the Supreme Court Bill, essentially as a decoy action. What the introduction of this bill at this time does is simply enable members of this House who do not want to face the reality of what the Supreme Court Bill is doing, to postpone and put off to the consideration of this bill matters that really should be dealt with before the Supreme Court Bill passes.

So this Judicial Matters Bill is a very empty bill. It is a bill that should be rejected out of hand because it does not do a fraction of what even Labour said it wanted to do about judicial appointments. It is simply a device to enable the Government to persuade the more weak-minded members in this House that they are not avoiding their duty in postponing to a bill such as this things that are critical to the establishment of a new Supreme Court—if that is to be rammed through.

All that this bill really does is appoint a judicial discipliner—as the Green member has just said, someone he expects to manage the judiciary. Does that phrase not send shudders down the spines of those of us who know anything about the constitution? The Green member said he welcomed this bill for the better management of the judiciary. That is what this bill is to do—put the judiciary under the thumb of someone appointed at the absolute discretion of the Attorney-General. This bill says it is on the motion of the House of Representatives, but, of course, it does not have in it anything simple to ensure cross-party support, such as the words “with the approval of the Leader of the Opposition”, or perhaps “with the approval of leaders of parties representing 66 percent”—or 75 percent—“of the members of the House”. No, this bill is simply a provision for the Attorney-General to appoint a person congenial to her, to ensure the judges are politically correct.

When we see the criteria for considering complaints, and the duty on the Judicial Conduct Commissioner to consider the complaints, we can see that there has been no desire to constrain them. The commissioner must consider the complaints. Even if the commissioner concludes that they are about matters that could not result in removal, they must still be considered and go through this process. I believe that the Attorney-General thinks that will be highly educative for the judges. In other words, it is to ensure that the judges feel the heavy, hot breath of the regulator over their shoulders.

Richard Worth: The heavy, hot breath of the Attorney-General.

STEPHEN FRANKS: The heavy, hot breath of the Attorney-General, as Mr Worth says. The Judicial Conduct Commissioner would be free to look into complaints about the dress sense of a judge, the religion of a judge, perhaps the sexual preferences of a judge, or perhaps the lack of obsequiousness of a judge. Perhaps he or she will look into the failure of a judge to attend the brainwashing sessions that the judges now have to attend, where they all sit in ritual obeisance, listening to imported harridans telling them how beastly they are to women or to other minorities whom the Government wants to favour. Any of those things could be considered by the Judicial Conduct Commissioner, and would have to go through the motions that would allow the commissioner to form an opinion whether the complaint, if substantiated, could warrant consideration of the removal of the judge from office.

But there is nothing in this bill that tells us what a judge can be removed for. There is nothing here that gets over the fact that a former Minister of Justice, the Rt Hon Doug Graham, did not have the courage to get rid of judges who had patently trashed the reputation of the judiciary in this country. The Rt Hon Doug Graham left those judges in position and would not bring a motion to the House, and this bill does not do anything about that. This bill says that the Judicial Conduct Commissioner will report to the Attorney-General, and the Attorney-General then will face exactly the same pressures that the Rt Hon Doug Graham could not face. We still do not know whether there will be a motion before the House. We do not even know whether the House can, in effect, take its own motion; whether this bill protects the traditional sanction by those “elected of the people” against a judge. Those who are able to be ejected by the votes of the people deciding that a judge has broken the required standards, and perhaps get rid of him or her, should decide without the Judicial Conduct Panel’s recommendation.

When we look at clause 33 we see it is entirely opaque. The Attorney-General has a discretion to act on the recommendation of the panel, but not an obligation to do so—it is an absolute discretion. Then there is a further constraint in that the judge must not be removed on the ground of a finding made by the Judicial Conduct Panel unless the panel has reported to the Attorney-General that it justifies consideration. In effect, this bill gives an absolute discretion to the Attorney-General as to whether he or she will act on the conduct panel’s motion, and appears to leave no room for Parliament to decide to act, even if the conduct panel looks like a bunch of cronies, and even if the conduct panel looks as if it has allowed familiarity or undue concern for the sensitivities of the Government to result in a recommendation that there has been conduct that could justify removal but the conduct panel does not think there should be removal. In other words, the conduct panel appears to have been set up to snooker Parliament, to snooker the possibility of Parliament taking this out of the hands of an Attorney-General who is colluding with the judiciary; it makes sure that Parliament could not do that. This bill confirms the power of the Attorney-General and the Government in power over the judiciary, instead of providing a buttress or protections against interference.

This bill does trifling things, but it does them in a way that opens it up for them to be extremely significant. As has already been said, this does not deal with the real concern of New Zealanders that we are about to see a Government attempting to set up an entire top court, to give it a quasi-constitutional role—

Debate interrupted.

The House adjourned at 10 p.m.