Supreme Court Bill

It is often said that there is not a great deal of interest in the schedules to substantive legislation. This case perhaps proves the validity of that point by being the exception. Within the schedules there is substantial material, structured in an infinite variety of ways and, in many circumstances, calculated to confuse.

I start by dealing with schedule 1. I note that it amends approximately 30 pieces of legislation. When the Attorney-General would have us believe that the schedules are of little consequence, she could not be more wrong. Schedule 1 makes amendments to a raft of New Zealand statutory provisions. I note changes to the Child Support Act, the Children, Young Persons, and Their Families Act, the Courts Martial Appeals Act, the Guardianship Act, the Harassment Act, the Human Rights Act, the Summary Proceedings Act, and the Animal Products Act—and the list goes on and on and on—and that is only the first schedule. This bill is characterised by the fact that it has a number of schedules. Schedule 1 is what I have been reading from, but in fact beyond that there are other schedules. Schedule 2 deals with consequential repeals, and there follows, again, a long list of statutory provisions.

Also, and quite unusually, schedule 3 contains, as its heading states, provisions containing references to the former Supreme Court. That touches a raft of what are probably private Acts—the Auckland Baptist Tabernacle Act, the Church of Jesus Christ of Latter-day Saints Trust Board Empowering Act, and so on. But what I need to flag for the attention of members of the Committee is that National has made a commitment, when it comes to power in 2005, to abolish the Supreme Court and to repeal this legislation. That will have significant consequences, of course, for those judges who are foolish enough to seek and take tenure in the new Supreme Court. They should be under no illusion at all that that path will be extraordinarily rocky for them, because this major constitutional change starts with no support from many members of the House.

I recall, in the context of statutory history—and relevant to these schedules—that when the Constitution Act was passed, which was a major constitutional change, every member of the House voted in favour of that legislation. No votes of dissent were recorded. Now, in respect of this legislation, there is massive dissent. I refer to the position of the judges because I believe that it should be flagged that their tenure will be wholly uncertain. Whether it appears just as a note in the schedule rather than as a substantive enacting provision, reference should be made to the possibility of insecurity of tenure, so that the warning is loud and crystal clear. The issue arises in constitutional terms because of the provisions of Part IV of the Constitution Act, which deals with two things. Section 23 deals with “Protection of Judges against removal from office.” National would, in effect, with the support of the other centre-right parties, be seeking to cut across that provision. Because it is an issue of substantial constitutional significance, it is appropriate that the warning be clearly expressed, and where better than in the schedules to this legislation. The other section of Part IV, section 24, relates to the salaries of judges and the fact that those salaries should not be reduced. Well, of course, when judges lose their positions, they lose not only their tenure but also their salaries and allowances. That should also be made clear.

I talk to the schedules and small amendments as set out in the Supplementary Order Paper. I first thank the staff at the Parliamentary Counsel Office and those who assisted them, and the officials in the Ministry of Justice and Crown Law who have gone through—as has been mentioned by the member preceding me—the many pieces of legislation that require me to make reference to the Supreme Court, to ensure that the jurisdictions are there. I think it highlights the point that has been made that many of the measures mentioned in this schedule will now enable people to have the right of a second appeal, which they do not have at the moment. That is a point that I think is emphasised by the detail that this schedule goes into.

What the Minister has said is absolutely wrong. Many of these people will not have the right of a second appeal, in the sense that they can bypass the Court of Appeal and go directly to the Supreme Court. Therefore, they will still only have the right of one appeal under this new legislation. The Minister has forgotten the situation with regard to the Employment Court for example, where people can go directly to the Supreme Court, bypassing the Court of Appeal. I am staggered that this Attorney-General should be totally unaware of what is in her own legislation, and that she should come here and tell members that there will be a right of two appeals. In fact when the New Zealand Council of Trade Unions gave evidence before the select committee, it was adamant that it wanted to have this right of direct appeal to the Supreme Court, bypassing appeal to the Court of Appeal.

It shows how little attention the Attorney-General has given to this legislation. It shows that she is interested only in ramrodding it through Parliament, come what may. Before Parliament we have a bill that came back for the report back on Tuesday. I asked the Attorney-General during that debate for the amendments that were to be made, but nothing was forthcoming on Tuesday. On Wednesday we got eight pages of amendments. We even got amendments to the schedules, which we are now discussing. Even at this late stage we now have the Attorney-General indicating she is not familiar with the complete nuts and bolts of this legislation.

The member for Epsom, Richard Worth, went through some of the provisions of schedule 1. We are not talking about a minor schedule, as is often the case. That schedule actually has 12 substantial amendments to the legislation, on top of many other smaller amendments. The 12 substantial amendments that I counted—and when I say substantial, I do not mean a two-line job that just replaces “High Court” with “Supreme Court”, or “Court of Appeal” with “Supreme Court”, but substantial amendments—include changes to the Child Support Act and the Children, Young Persons, and Their Families Act. The amendment to the Courts Martial Appeals Act, which we are dismissing in a matter of moments, actually goes on for two and a half pages. That is the length of the amendments, taking out the fact that one or two parts are struck out—perhaps I will reduce it to just under two pages, to take into account the struck out bits.

But here we have amendments to the Courts Martial Appeals Act totalling almost two pages, which we are having rushed through Parliament. The Crimes Act again has a substantial amendment that is being rushed through. The next major one, the Harassment Act, has a reasonably small amendment. The Human Rights Act has a substantial amendment and we are going to have to rush that one through. The Summary Proceedings Act is the sixth major amendment. The amendments to this start on page 38—if it is taken into account that page 37 is totally deleted—and go through almost to the end of page 39.

Substantial amendments to the Privy Council legislation and the Supreme Court legislation are being rushed and ramrodded through Parliament by this minority Labour Government. There is no majority support for this legislation as far as the votes at the last election were concerned, even taking into account the Labour vote, the Greens vote, and the Progressive vote. They got 38 percent of the vote, and the other votes were also at 38 percent. There is no electoral support whatsoever for this legislation.

💬 Clayton Cosgrove: What was your vote?

I have had 9 years in this House as a constituency member and I can tell those members that they do not know what being a constituency member is. The soft life they lead nowadays as constituency members is just unbelievable compared with the good old days.

The Bail Act is another piece of legislation with amendments, and there are one and a half pages of amendments to that legislation. It is the seventh amendment I must mention, and the amendments to the Crimes Act is the eighth major one. For all those practitioners in that area, there are six pages of this schedule devoted to an amendment to the Crimes Act. We will be lucky if we get 5 minutes to speak on this schedule, so that is why I am rushing through in this way. If I start to speak on the six pages of the Crimes Act amendments I will be cut short and not get another chance to speak.

I am very hopeful that either the Minister in the chair, the Hon Rick Barker, or the Hon Margaret Wilson can explain something that the Hon Margaret Wilson’s officials were unable to explain in the select committee about the schedules. There is a mystery in the schedules that, as far as I can tell, is explicable only with some rather sinister assumptions. The mystery in the schedules is that the ability to appeal to the new Supreme Court is extended to people going through the Family Court, the Environment Court, the Employment Court, various courts martial appeals levels, and the Māori Appellate Court. That is fair enough, it is what the bill is set out to do, so why should that be a sinister mystery?

💬 Simon Power: What about the Habeas Corpus Bill?

Habeas Corpus? OK. The Supreme Court Bill also states that such appeals can be on both fact and law. A lot of appeal bodies hear appeals on matters of law only, as a way of ensuring that the poor people tangled up in litigation do not have to spend the money that is required when they may have to readdress factual issues. An appeal on both fact and law is an absolute misery. The Jarndyce v Jarndyce case in the Dickens novel Bleak House is the archetypal case of misery caused by litigation irrespective of the outcome, and appeals on fact and law through three levels cause that. Appeals on fact and law in the Supreme Court are the fate awaiting many New Zealand families in the Family Court, many New Zealand businesses, farmers, and others through the Environment Court, and many other New Zealanders through the other courts.

But there is a very mysterious omission. In all of the other legislation that amends appeal rights that were previously expressed as being on matters of law only, there is one omission. What might it be? Appeals from the Employment Court will not go on matters of fact and law. Why would that be? Would we not think that the Attorney-General would want Employment Court appeals on her little baby—employment law—to be dealt with on the basis of being able to get right to the bottom of the facts, as every other kind of appeal will? I think there is only one explanation. Officials could not give an explanation when they were asked at the select committee. They did their duty, they muttered and mumbled and tried to look as if there were some intelligent reason that perhaps was just escaping me, but the reason, I believe, is inescapable.

The reason must be that the Minister knows she has been rolled on the matter of whom the new court will comprise. She will not be able to go and select her own toadies to sit on the Supreme Court. She might get a chance to put some of them in waiting at the new Court of Appeal level, or put them into the High Court, but the Supreme Court will be made up largely of Court of Appeal judges. So she does not want the new Supreme Court playing around with her creation—our employment law—until a little way down the track, when she has had a chance to stack the new Supreme Court with new judges more to her liking.

That mysterious omission of appeals on fact and law, reserved only for employment law, is more telling than anything else in the schedules, about what this bill is really about. There can be no other reason for making a distinction in relation to the Employment Court. It is not because there are already three levels of appeal. That in itself might have been enough to say that Employment Court matters should not be appealed through to the Supreme Court. That gives absolute misery and suffering to many New Zealand employers—when people have their unions financing them all the way through three levels of appeal, employers will roll over and concede, simply because they cannot face the costs.

We have something much more telling here, in that people cannot take their employment case on fact and law, when every other level must. When families go through the Family Court, the High Court, the Court of Appeal, and the Supreme Court, they have to face an appeal on fact and law. When farmers, or business people, or developers, or just people who want to build a new granny bach, have to go through the Environment Court, the High Court, the Court of Appeal, and the Supreme Court, they have to deal with fact and law. But they do not have to when it is a matter of employment law. The Attorney-General does not want to have Employment Court decisions reopened, and Judge Goddard’s curious findings of fact reversed.

If there is one amendment that stands out in the schedules, it is the amendment to the Legal Services Act, which will provide for legal aid to be granted to people who want to apply to the Supreme Court. This is an addition that the select committee put in, because we recognised that a failing of the Privy Council is the inability of people to get legal aid to take cases to the council. However, they will still have to go through the same tests for legal aid applications as all other cases, and, in particular, go through tests for prospects of success. Given the leave application that people will also have to go through, it effectively means that cases will have to be pretty serious to get legal aid to go to the court.

That people will be able to get legal aid is a welcome extension in terms of the Supreme Court, but the irony is—as was pointed out by a number of submitters, and in our own discussions—that it would be cheaper to give people legal aid to go to the Privy Council than to set up this court. That deficiency could have been better remedied by allowing people legal aid to go to the Privy Council, and we could have had that advantage far more cheaply than the cost of setting up this court.

One of the things the Attorney-General touted heavily with regard to the bill, and is revealed in the schedules, is the amendments to various pieces of legislation to allow appeals beyond the Court of Appeal to the Supreme Court—in particular, employment, environment, and family cases, and courts martial. Previous speakers have alluded to a second right of appeal, and my friend Dail Jones talked about bypassing the Court of Appeal. My concern is that this measure now allows three tiers of appeal for those cases. That could lead to an unfortunate situation whereby plaintiffs and defendants could find themselves, through appeals, being tied up in the court process for even longer and at far greater expense—even in cases where a small amount of money is involved but perhaps a matter of significant principle. So there is a bit of a two-edged sword in allowing a third-tier appeal level. However, the third tier is obviously meant for cases that have serious issues that need to be dealt with. It is the seriousness of the particular issues that the Supreme Court will be dealing with that is at the real heart of this court. It will deal with issues that are more serious on average than those before the Court of Appeal.

That was the problem that the business community in particular, but also the legal community, had when it came to the whole issue of putting the Supreme Court in the place of the Privy Council. That issue could have been easily resolved, and was picked up early enough, with the proposal to have overseas judges, which was something that United Future was trying to achieve. There was a clear lack of confidence in the business community in respect of these third-tier appeals, and a lack of confidence that the Supreme Court would be capable of making the right decisions in all cases. It was not because the business community lacked confidence in the Court of Appeal judges per se, but because it felt that the skills and experience it was looking for in a superior court were far better found in Privy Council judges than in New Zealand Court of Appeal judges. At the heart of it, the business community felt that the Privy Council judges—whom even our current Court of Appeal judges accept as being of the highest calibre—were no longer going to be able to rule on decisions that would involve millions and millions of dollars.

If the Attorney-General had listened and seriously considered the prospect of overseas judges, the issue could have been resolved by appointing such judges to the court, even on a transitional basis. As recently as the last week or so, business community people have said to me that if two out of the five judges were overseas judges with commercial experience, they would be far happier with this court. If United Future could have negotiated that provision, then effectively it would have gone a long way to addressing their primary concerns, and at least some of the business community would have changed their views.

I move, That the question be now put.