Judicial Matters Bill

National has already indicated its concern about the Judicial Matters Bill, and that concern is deep-seated for a number of reasons. In connection with this particular call, I would like to start on Part 1, which deals with the Judicial Conduct Commissioner and the Judicial Conduct Panel. There are three subparts, one concerned with preliminary provisions, one concerned with the Judicial Conduct Commissioner, and one concerned with the Judicial Conduct Panel.

Just from those headings, one might think that what we are looking at in Part 1 is judicial conduct, that had varying degrees of lapse seriousness. But we are not. We are talking about only the circumstances in which it is appropriate to remove a judge, and that is a judge of the District Court, a judge of the High Court, a judge of the Court of Appeal, and a judge of the Supreme Court. It is obviously intended that this power be rarely used. The reality is that it has never been used in New Zealand, at all. So the first question is why are we debating a proposal that, it would seem on past history, there is no need to advance at all? I said yesterday that legislation should be remedial in nature. That means that it should have a positive purpose, and it should be designed to remedy an ill or an evil. Here we have the Government spending a considerable amount of time and energy in advancing a cause that is meritless, in that there is no mischief.

I am not saying on any basis that the public is wholly satisfied with the judges. Quite clearly, the level of complaint indicates there is room for improved performance, a greater understanding by the judiciary of its role, and a greater understanding by the public of the judges’ role. But that is not what we are about in looking at Part 1. Part 1 is all about removing a judge from office—a very significant constitutional step. If there is concern about judicial conduct, it is here in Part 1 that it should be addressed. The Government did not have the fortitude to do that. It did not have the fortitude to look at conduct that falls below the standard of proven misconduct.

I think that is a pity, because the Justice and Electoral Committee heard evidence and submissions from a number of people who wished to see a tighter code of conduct. They wished the circumstance of the intemperate judge dealing perhaps unfairly, in their perspective, with counsel or a witness, to be dealt with. They wished something to be done—as it has been done, for example, in Australia—with the judge who fails to get on with his judgments. It is fair to say, and it is an old saying, that “Justice delayed is justice denied”. There have been instances in Australia where judges have been brought to account for their failure to get on and deal with cases on a timely basis, and to get on and write judgments that represent the closing part of the judicial process.

I also resent the fact that a right I have as a member of Parliament to move an address seeking the removal of a judge is to be taken away from me and other members of the House. Instead, this whole process is to be entrusted to a complex bureaucracy that is explained by a line diagram, which is included in the bill, so that we can follow through the various process pathways. Why should not we all, as members of Parliament, continue to have the right we have had for many years to move an address for the removal of a judge if the circumstances are so serious? But no, a bureaucracy is to be set up.

A significant element of costs is to be associated with both the Judicial Conduct Commissioner and his panel. I think it is wrong that heads of bench who are given specific statutory status are not being given associated power and responsibility.

Part 1 of this bill, which we are now considering, is a lengthy part with some very important provisions dealing with the Judicial Conduct Commissioner, which is a debate in itself, and a Judicial Conduct Panel. There have been a good number of submissions on this bill, and a good amount of objection to it, and that relates especially to Part 1. I turn, for example, to the submission from the New Zealand Council for Civil Liberties. Usually, one would expect a Labour Party to be concerned about anything the New Zealand Council for Civil Liberties might say, but times have changed—

💬 Jill Pettis: Times have changed!

As Jill Pettis indicates, times have changed. The Labour Party’s regard for the New Zealand Council for Civil Liberties has decreased the longer it stays in office—

💬 Jill Pettis: It depends on the issue.

It depends on the viewpoint of the New Zealand Council for Civil Liberties. In this case the council says: “This part of the bill is nothing more than an elaborate piece of window dressing, and does not give effect to the comments of the United Nations High Commissioner for Human Rights of 15 March 2000.”

Once upon a time the Labour Party would bow down and genuflect forever in front of a United Nations High Commissioner for Human Rights, but those days have long gone. Those comments were made in the context of a complaint regarding a New Zealand judge through a United Nations special rapporteur on judicial independence. The witness said: “It would also appear to be nothing more than an unnecessary complication to the current unencumbered right of Parliament to impeach a judge.”—as the previous speaker was saying. “The right of Parliament rather than the executive to exercise that power is one that I hope any parliamentarian would be loath to surrender without full and adequate reasons, of which none are evident here.”

I think the Law Society submission indicated that this right goes back at least as far as the 1700 Act of Settlement. This Labour Party has no regard for history, and no regard for the rights of this Parliament or parliamentarians. If one links this system back to the English Westminster system and the Houses of Parliament, we as parliamentarians have had an unencumbered right for at least 304 years, it would seem, to impeach a judge. This Labour Party is wiping it away in one piece of legislation, which gets very little support in this Committee. I think there is support only from the Labour Party and the Greens.

Dare I say it again, the Labour Party and the Greens are again supporting legislation that gives New Zealand lengthy and long-term rights. They got together on the Supreme Court Bill and passed legislation to abolish the Privy Council, without any regard for the rights of the Māori people of New Zealand, all of whom opposed that bill despite everything the Greens said. The Greens said they would not support the Supreme Court Bill if the Māori people opposed it, but of course they changed their minds in some sort of deal they did with the Labour Party. Here they are again, the Labour Party and the Greens, taking steps to remove this Parliament’s long-held constitutional right, in terms of Part 1 of this bill, to impeach a judge. The Greens are taking that right away.

The civil liberties people said: “This bill does not conform to international norms. New Zealand entered into the first optional protocol to the International Covenant on Civil and Political Rights on 26 October 1989. According to the fourth report of the New Zealand Government itself on its compliance, at paragraph 47: ‘Use of international human rights norms is not confined to the courts.’ ” It pointed out how Cabinet should be involved with them, as well.

The New Zealand Law Society, which rarely, if ever, issues views on policy, opposes this bill. It opposes the proposals in Part 1 to establish the office of the Judicial Conduct Commissioner. In this call, I am unlikely to have enough time to speak about that, but I hope to get a second call to do so. However, the Law Society’s reasons are that the proposals are constitutionally unacceptable because they will undermine the independence of the judiciary, and, most important, there is no evidence of a problem that requires this legislation.

I rise for the ACT party to speak in this stage of the Judicial Matters Bill—a bill with a title so bland that anybody who is listening to the debate and is not involved in this process will not know what it is about. We are addressing Part 1, which really embodies the recommendations of a friend of the Attorney-General, Margaret Wilson. The Attorney-General asked Sir Geoffrey Palmer to give her a report on how she should go about disciplining judges—a matter of high constitutionality.

Who judges the judges, who guards the guardians, who watches the watchdogs, is one of the hardest issues for any constitution to deal with. In our system it has been dealt with by a mixture of convention, law, and care in appointment. New Zealand has never had a judge sacked by Parliament, although we may have had one or two who ought to have been. Such matters have been managed very discreetly—usually by getting the judges to resign before they become an embarrassment to the judiciary and themselves. Mr Richard Worth gave us a useful historical survey of the only occasion when people asked, or wanted, Parliament to use the power. Eventually there, too, the judge was retired.

This part sets out a complicated complaints system that takes all kinds of complaints about the judiciary. It will funnel in the many complaints that it is absolutely inevitable come from people disappointed with the outcome of their litigation. A judge in the judicial system will always get complaints. Nearly always, one side will be upset and convinced that its case was not understood, or that the judge was curt or rude. So, in this situation, to have some law that sets out a comprehensive complaints mechanism is foolish. The judges, in an unusual step under our conventions, made submissions that showed they were clearly unhappy with what is proposed, yet the Minister has pushed the bill through to this stage with very little amendment.

We have someone called a Judicial Conduct Commissioner and a panel called the Judicial Conduct Panel. They become the gateway, the roadblock, or the keepers of the sword for sacking judges. Instead of it being the right of any member of the House—which could be a very important right in an MMP Parliament—to initiate the sacking of a judge, from now on it will happen only if the Attorney-General wants it to happen. The Attorney-General can prevent the appointment of a Judicial Conduct Panel. The Attorney-General can get a report from the Judicial Conduct Panel and ignore it, and not move a motion in this House. The Attorney-General cannot actually sack a judge if the Judicial Conduct Panel does not make a recommendation or a report along the lines that that should happen. So instead of increasing the likelihood that an unsuitable judge might be ejected by the House, this bill, which has been portrayed by the Labour Party Government as being an enhanced protection for the people, goes in the opposite direction. This bill means that the Attorney-General could protect her mates, come what may, even if the majority of Parliament thought they should go. This bill means that Judge Martin Beattie—who of course was not subject to the ability of the House to turf out a judge—had he been a High Court judge, could not have been tossed out by the House if the Attorney-General decided it was not warranted.

This matter comes at a time when the constitutional position of our judiciary should be under far more careful consideration, and when we should be getting a broad consensus of Parliament around it. The Attorney-General should not be ramming through a constitutional change with the bare majority she will get by persuading the Greens that if they are nice enough to her, she might one day support something they want—some political deal. This part, which deals with judges, goes to the heart of judicial independence. It is being passed through the House with hardly anyone even knowing it is happening. There has been virtually no media discussion of a significant change. Worse still, the media do not even seem to have woken up to the fact that it gives the Judicial Conduct Panel the power to suppress complaints about a judge. It can subpoena, for example, a reporter who was reporting dissatisfaction about a judge. That judge can be protected by the Judicial Conduct Panel.

I rise to speak against this bill. I have been listening with interest, again, to the very good speeches that have been made from this side of the Committee. I have to say I am very surprised that the Greens are voting for this bill, because I have thought that over the last few years they have shown they are somewhat concerned about what might be happening with a Government that can be out of control. Unfortunately, something has happened and they have decided to go in with the Government on this bill.

I would like to take up the point made by Mr Dail Jones previously, and that is that the New Zealand Law Society, in an almost unprecedented move—as Mr Jones indicated—has come out against this bill, full stop. This is a bill that the society says it opposes. It opposes the bill’s proposals to establish the office of Judicial Conduct Commissioner. It says that the bill will undermine the independence of the judiciary, and that there is no need for this legislation. There is no need for it, because we have already seen—and it is in the papers with the bill—that hardly any complaints are made against the judges in this country. The number of complaints is minuscule, and most of those complaints have very little in them.

We on this side of the Chamber do not want to see judges reduced to being people who tick boxes, make innocuous comments, and cannot be straight up with the people who appear before them. We do not want judges emasculated by a politically correct Government that is incapable of understanding that occasionally people need to be told the truth, whether or not they like it. But that is what this bill will ensure.

When we look at the other submissions on the bill, from responsible people, then, goodness gracious, we see that the judges of the High Court and the Court of Appeal have come out against this bill! That has to be unprecedented. Those judges have come out and said they believe there is an unintentional—and it was very nice of them to say that to the Government—dilution of the protection of judges against removal from office that is provided in section 23 of the Constitution Act 1986. This bill is a change to our constitution, and it will pass because unfortunately the Greens, I believe, have been misinformed. I do not think they would want to vote for it.

The judges of the court oppose it, but not because they cannot be subject to scrutiny. The judges of our courts are subject to tremendous scrutiny. In fact, Family Court judges are now seeking to have more public scrutiny. They are subject to the scrutiny of the media, of the parties, and of this Parliament. They are not frightened of scrutiny. They are concerned that when they are sitting in judgment they will be thinking: “Oh no, is this going to end up in a complaint? Because I am going to have to tell this offender the truth.” As the complaint would then go on to this commissioner, bureaucracy would take over. The judges have to get their lawyers involved, and the cost of the whole thing escalates. In fact, I see that the bill calls for judges to have representation, and provides that the taxpayer will fund it. The taxpayer will fund the reasonable costs of judges’ representation.

None of that would be necessary if only we stuck with the Constitution Act and the ability that Parliament has to end the tenure of a judge who is performing so badly that his or her tenure should be ended. In the past that has not been necessary, because the judges know that that power is there, and know that it will not be used unless it is absolutely necessary. In fact, the Chief Justice has been able to talk to judges who have got to the stage where they should no longer be sitting. That has happened all the way through. But all that is needed for this Parliament to bring to an end the career of a judge is for one MP, at the moment, to come to Parliament and say that something has to be done about that judge, and if that is fair, we can do something about it.

I listened with a great deal of interest to the contribution from my learned colleague Judith Collins, who, I should inform the House, is the former president of the Auckland District Law Society. She has a huge array of contacts in the profession and the judiciary. I make the point to the Minister in the chair that when judges use terms like “unintended dilution”, it is expected that the more astute members of the ministry, such as, I assume, Mr Tamihere is, will read it for what it is. I think that we on this side of the House would all know that it is actually “intended dilution”.

This legislation is a constitutional measure. To have legislation that seriously affects the Constitution Act, which is something of a little prized gem of Sir Geoffrey Palmer, and greatly treasured by him as part of the constitution framework, and for this Government to dilute that, one would think that at the very least it would wish to have the consent of Parliament as a whole, but it does not.

As I indicated in my second reading speech last night, this kind of legislation does smack of arrogance. In the past it has always been the practice of Governments—both Labour and National—to consult with the other side on constitutional issues and to try to get a consensus. We are not supposed to do violence to our constitution by narrow majorities. That has always been the practice in New Zealand in the past. Take the MMP legislation that was passed by the consent of the vast majority of Parliament; and indeed, the Constitution Act itself, and the New Zealand Bill of Rights Act. However, this legislation, which does affect the independence of the judiciary, is being forced through by a narrow majority.

It reminds one also of the Supreme Court Bill, which is now an Act, which had precisely the same result of major changes to the constitution, forced through on the narrowest of majorities, with Mr Locke providing the majority, as one would expect. That party purports to be the protector of the constitution. One hears Mr Locke always going on about the New Zealand Bill of Rights Act and the rights of citizens. But obviously, he is not overly worried about the independence of the judiciary, because I suspect that he will vote to help the Government pass this bill, which will damage the constitution.

These are important issues to state, and I note that when the Law Society opposes legislation, because it is not needed and will affect the independence of the judiciary, one would think that the Government would take that on board; but it has not. It is passing this legislation.

My final point is that this bill is part of a total package. The Government is intending to change fundamentally the role of the judiciary in both the appointment process and judicial conduct issues where people may have concerns about the judiciary. It is all being removed to politically appointed, non-accountable people.

The Government will say that that is advantageous. I suggest that it is not. At least the value of the Attorney-General is that she or he, whoever the person might be from time to time, is answerable directly in this House and accountable to the people of New Zealand through the parliamentary process. An independent panel appointed by the Government of the day—almost certainly from its preferred friends—will not be accountable, and that is not the way we should treat the judiciary. It has the effect of reducing their role.

We are dealing with Part 1 of the Judicial Matters Bill that National and other parties strongly oppose. I made the point in my first call on Part 1 that this bill takes away from members of Parliament a significant constitutional right that they have enjoyed from the earliest days of the New Zealand Parliament. That is a shame as we come to celebrate 150 years of parliamentary democracy.

I shall make two points in this call. The first point centres on clause 11, “Who may complain”. The clause in its unaltered form represents a failure by National to persuade other members of the Justice and Electoral Committee that there was a case to change that particular clause. Clause 11 is headed “Who may complain” and states that any person may make a complaint under section 10 about the conduct of a judge. That means any person. I suggest that the only person who should be able to complain about a judge is a person who is aggrieved. It should not be the media or a person in Northland in respect of a case heard in the Christchurch District Court. It should be someone who is clearly impacted by what he or she asserts to have been less than satisfactory treatment at the hands of a judge.

My second point is to trace through this new process. We know the process at the moment. It is simply that an MP puts a motion to the House for the removal of a judge. What will happen now? Here it is. Step 1, the Judicial Conduct Commissioner receives a written complaint about a judge. Step 2, the commissioner acknowledges receipt of the complaint and notifies the judge. Step 3, the commissioner undertakes a preliminary examination of the complaint. Step 4, the commissioner concludes that an inquiry is necessary, and recommends to the Attorney-General that a Judicial Conduct Panel be appointed. Step 5, the Judicial Conduct Panel conducts a hearing to examine the matter. The contemplation is that the hearing will usually be in public. Step 6, the Judicial Conduct Panel reports to the Attorney-General, first, its findings of fact; second, its opinion as to whether the conduct justifies consideration of removal; and third, the reasons for its conclusion. Step 7, the Attorney-General decides whether to initiate a complaint. Step 8, there is a motion in Parliament for an address to the Governor-General seeking removal of judges in the High Court, Court of Appeal, Supreme Court, and Employment Court. Step 9, the Governor-General removes the judge from office. That is why I said in my first call that we have established a costly and unnecessary bureaucracy to deal with a problem, which in fact is not a problem at all.

During my first call on this matter I drew to the attention of the House, on behalf of New Zealand First, the concern of the New Zealand Council for Civil Liberties, and I also mentioned the New Zealand Law Society’s opposition to the bill. I wish now to turn to just one point in addition to the comments made by the National Party speaker, Mr Worth, and that is to point out that the commissioner must receive and deal with every complaint made under the bill about the conduct of a judge, regardless of whether the subject matter of the complaint arises in the exercise of the judge’s judicial duties or otherwise. Or otherwise! So the point I was making during the second reading debate—for example, on the types of speeches judges can make, and the types of activities they can do—is that a judge may have a bit of fun at a racing club or polo club, or something like that, and if someone does not like it—well, it becomes a complaint to this commission.

It is very hard to get High Court judges today. The income is not all that great from the point of view of a High Court judge. Judges have a great deal of restriction placed on them already, through convention, and now this bill says that if they do something that somebody thinks is out of the ordinary, they can be up before this Judicial Conduct Commissioner and this panel, for misbehaviour. Let us take, for example, a judge of the Māori Land Court.

💬 Hon Dover Samuels: Who?

Mr Samuels says: “Who?”. Well, “Who, who, who?” I can tell you that “who, who” is a judge of the Māori Land Court, and that judge of the Māori Land Court comes within the control of the Judicial Conduct Commissioner.

What is going to happen next? The judge is on the marae, he does something that someone says is contrary to tikanga Māori, and, bang, the judge is up on a complaint. I am surprised that this bill has no reference to tikanga Māori. This is one of the first bills involving Māori Land Court judges that does not have something about tikanga Māori in it.

It may sound amusing, and I see that Mr John Tamihere is the Minister in the chair, but this is a matter that, clearly, the Government has not given any consideration to. Māori Land Court judges are affected by this bill. So a person goes along to the Māori Land Court and lodges an application for separation and for a share in the farm, or whatever it might be, and someone objects to the way in which the order is made. What next? A complaint to the judicial conduct commissioner, perhaps? Someone thinks: “I don’t like the way in which the Māori Land Court judge made that order. He didn’t take tikanga properly into account.”

This bill is opening itself up to all sorts of problems. I can see that the Labour Māori members have not given any thought to it. I can assure them that Mr Pita Paraone of New Zealand First drew this point about the Māori Land Court judges to my attention. In New Zealand First we are very concerned about the way in which Māori Land Court judges will be dealt with in terms of this bill. It seems to me that the Labour Party has not given it any thought whatsoever. But whether we are talking about a Māori Land Court judge or a District Court judge, or whatever, they will all have the same problem. A judge may go along to a marae, to a function—a private function—and perhaps enjoy himself or herself a bit too much, and partake of the hospitality a bit too much, and then he or she is on a charge—virtually on a charge.

💬 Brian Connell: Don’t drink on the marae.

Well, some marae are more urbane than others perhaps. One may enjoy oneself too much, and one may come up on a charge.

This bill is a dreadful piece of legislation. It makes it almost impossible for people to consider becoming members of the judiciary. It makes it very, very difficult for people to continue to become High Court judges. It will make it even harder still for people of the highest calibre to accept the position of High Court judge. New Zealand First thinks that this matter is one of great constitutional importance, just as the Supreme Court Bill was, and what will we have again in this House? I think it will be a vote of about 62 to 58, if that, to push this bill through.

💬 Dr Wayne Mapp: What about the Greens?

The Greens are supporting this bill—it is ridiculous.

The CHAIRPERSON (H V Ross Robertson): I am sorry to interrupt the member but it is getting a bit too noisy. Tātou, tātou—together, together, honourable members. Courtesy is contagious, and we will all prosper if we keep within the spirit of the Standing Orders.

Thank you, Mr Chairman. As I was saying, we should have at least a 75 percent majority of this House amending the constitution on this issue, and we are not going to get it.

I move, That the question be now put.

A party vote was called for on the question that the question be now put.

I raise a point of order, Mr Chairperson. I assume this means that Mrs Tariana Turia has given a proxy to the Labour Party for this bill.

The CHAIRPERSON (H V Ross Robertson): I am not aware of what the situation is regarding that.

I think we are entitled to know, because she is supposed to be an Independent now.

💬 Darren Hughes: The situation is the same as last Tuesday. The Labour Party has 52 votes.

I am on a point of order, Mr Chairperson. I have not finished yet. I was asking you to perhaps consider getting a formal statement from the Labour Party, that it has the proxy of Mrs Turia.

The CHAIRPERSON (H V Ross Robertson): Can I just say to the member that voting lists are available at the Table if members wish to see them. That is the normal convention in the Chamber. [Interruption] The Committee is becoming a little bit too noisy. I refer members to Speakers’ rulings 61/2 and 61/5. There is to be no comment at all when votes are being taken.

I raise a point of order, Mr Chairperson. I waited until the vote was finished before I raised this point of order. I wonder whether you could help the Committee, and it would be helpful to me as far as planning the rest of the night is concerned. On the debate we have just had, there were seven calls plus the closure call, I think, which is quite a short time. I wonder whether you can give me an indication. That is not normally the convention. Normally the debate goes for three-quarters of an hour or more. Could you indicate whether it is likely that the closure motions will be accepted after a shorter time than has been the norm, so that I can plan my speaking list, please.

This section of the bill has 34 clauses. The next, Part 2, goes from clause 36 to clause 75, so I would expect that we would have twice as many calls on Part 2, in that sort of situation.

I just make the observation that, of course, this is always a matter for the judgment of the chairperson, and the quality of members’ contributions would normally determine how long the debate goes on.

The CHAIRPERSON (H V Ross Robertson): Can I just say to members that I am sure whoever might be in the Chair at the recommencement of the Committee after the dinner break will take all those things into consideration, and will, I am sure, be liberal with the interpretation.

I raise a point of order, Mr Chairperson. I am sure of that, too, but I asked a genuine question and I have not had a response from the Chair. Are you able to indicate the length of time that is now likely to be taken over the next parts in Committee so that we can plan? As I said, the norm has been about 45 minutes. This debate was shortened down a little, and I wonder whether that is what we can expect. Do you know whether, for some reason, the debate will be shorter tonight, or are we going back to the norm of about three-quarters of an hour so we can plan around that? I accept all those other points—that is why I did not raise them myself. I do well know what matters are your prerogative, and all those sorts of things. I just wondered whether we could get an indication of whether there has been some change with regard to the norm.

The CHAIRPERSON (H V Ross Robertson): No, there has been no change, Mr Carter. I can say that generally the manner in which the House is run is under custom and practice, and if it is custom and practice I am sure that the debates will continue as they have, and that the interpretation will be liberal.

The question was put that the amendments set out on Supplementary Order Paper 205 in the name of the Hon Margaret Wilson to Part 1 be agreed to.