Judicial Matters Bill

In speaking to Part 2, “Judicial immunity, number of Judges, principal Judges, part-time Judges, and other matters relating to judicial officers”, of the Judicial Matters Bill, I would like to commend the Justice and Electoral Committee for disregarding the attempts of the Attorney-General, the Hon Margaret Wilson, to set the number of the judiciary by way of Order in Council. That matter should always come before and be considered by Parliament, and the attempted sleight of hand by this Government in terms of clause 41(2), which would have set the number of judges by way of Order in Council in the future, was absolutely rejected by the select committee. I am pleased that the provision was struck out by a majority, and the provision put in by a majority that that matter should not be done by way of Order in Council but by way of an amendment to the appropriate legislation. That is a victory for common sense and the constitution, and is an effort to make sure this Labour Government’s unconstitutional way of doing things, if I may say so, without a proper 75 percent majority of Parliament is set back in one instance, at least.

I am particularly concerned that in terms of clauses 72, 73, and suchlike, the Māori Land Court should now become subject to this legislation, which no one has really requested. Where is the demand for this legislation? Have the Māori members gone to Margaret Wilson and said some legislation is needed to cover that issue? Have they asked her to please set out the amendments to Te Ture Whenua Maori Act? When I look at the unconstitutional nature of this matter, I wonder whether the hīkoi was 1 week too early. I wonder whether the hīkoi should have been this week rather than last week, because this is a real change to our constitution. I think if the people on the hīkoi knew what was happening in this legislation they would have been here this week as well as last week, because this week is much more important than last week.

Sitting suspended from 6 p.m. to 7.30 p.m.

After enjoying the hospitality of Mr Speaker, reference to the Judicial Matters Bill can be something of a tongue-twister at 7.30 p.m. We are back to talk about the constitutional outrage before us. We have had a situation since the Act of Settlement in 1701. I think William and Mary were King and Queen in those days. That was before the Act of Union of 1707—before the United Kingdom even, and well before Great Britain. This minority Labour Government, supported by the Greens, is trying to rush this legislation through the Chamber at this time of the night. At least we are on the air—that is something we can say about the present situation.

Who asked for this legislation? Who asked for this bill? Nobody has asked for this bill. About the only people who want it are Margaret Wilson and the Labour Party, supported by the Greens. [Interruption] The Green member knew exactly what I was going to say. A conscience exists in this Chamber on the part of the Greens. He knew that I was going to mention him, and he sang in unison with my phrase. This bill alters, for example, the Te Ture Whenua Maori Act. I ask the Māori members—the Māori Labour members, in particular—what they have to say about that constitutional outrage. They have been quiet up until now. I would have expected them to get up, speak to Part 2, and ask what the problem is that requires the amendment in Part 2.

I would have expected other members to ask why we now need to increase the number of District Court judges from 123 to 140. It is absolutely disgraceful. This Government does not have control of the judicial system in our country—that is very, very clear. More and more money is being spent on the judiciary because this Government is passing more and more unusual laws. That causes all sorts of unusual problems for the judiciary, especially, I suspect, in the Family Court area, with regard to some of the same-sex legislation and suchlike. I suspect the reason why we are seeing the increase in judges is that they are trying to interpret very unusual legislation.

This Government should ensure that the judiciary in this country operates efficiently. I know that when I was in Parliament way back in 1979 and we introduced provisions arising from the findings of the royal commission on the judiciary, the idea was to reduce the number of judges.

I have made a number of points about the Judicial Matters Bill in the course of this Committee stage to indicate on behalf of National how strongly we feel against this legislation. We see this bill as being very significant in constitutional terms, and as being an incredible erosion of the rights that Parliament has had for a long time in respect of the removal of judges. The plans for the removal of judges have been replaced by a bureaucratic process that is clearly capable of manipulation and politicisation. I do not want to cover those issues again. Instead, I would like to deal with a very specific provision in Part 2 relating to the number of judges. That issue caused debate in the Justice and Electoral Committee, and I think the debate was wholly warranted. I was reminded of that today, and I will burden the Committee with an observation.

At the Regulations Review Committee, Sir Geoffrey Palmer and the Clerk of the House talked to us about issues relating to processes in the House that could be substantially altered to improve democracy in the Chamber. The issue that taxed us related to the so-called affirmative resolution procedure. That is a shortcut procedure that falls short of the normal parliamentary process, and it was proposed in this bill in order to ramp up the number of judges. Sir Geoffrey Palmer, whose politics are not my politics, but whose intellect I assuredly admire—

💬 Hon Ruth Dyson: It’s not yours, either.

RICHARD WORTH:—drew attention to the dangers of the affirmative resolution procedure. I cannot really let that intervention from the Minister in the chair go unanswered. I hope that she will make a substantive contribution to this debate, but I doubt whether she will. An interesting aspect of this debate—which involves, I think, high constitutional principle—is that the Government has been strangely silent, and, I would say, un-strangely ashamed. It did the Minister in the chair no credit to interject in the way she did, but it was not unexpected.

I want to go on to the issue of judicial numbers. Sir Geoffrey Palmer—whom this Minister may not respect, but I assuredly do—said that the use of the affirmative resolution procedure posed the possibility of judicial packing. Through the delegated procedures of legislation, the Attorney-General would have the ability to effectively stack the court in a way that reflects judges with a particular bias right through the whole court structure. It is really important that judges show no favour and no bias. In fact, they take that oath. Clauses 41 and 51 increase the number of judges, by providing for a really huge hike in the number of District Court judges—they are to go from 123 to 140—and for the number of High Court judges to be increased from 37 to 55.

I raise for serious debate and consideration the issue that we have too many judges. We should look at better methods of judicial resourcing and at improved case management strategies. Simply increasing the number of judges is not the way to achieve the desired outcome, in any event. The desired outcome is, obviously, access to justice for all. It has been truly said that the courts are open to everyone, like the Ritz Hotel. We need to be utterly committed to fair process, which is absent.

Part 2 of the Judicial Matters Bill will become a whole series of changes to the Acts under which our judges are appointed—judges of the Environment Court, the Family Court, the Employment Court, and the High Court, and even coroners.

Very significantly, the bill allows the Attorney-General to appoint part-time judges. This was justified to us on the basis that it would make more people willing to offer themselves for appointment, and that it would enable women who, for example, have family responsibilities to hold judgeships and contribute to some extent. It was also justified to us on the grounds that there are judges, from time to time, who have commitments arise that have not been anticipated, and they should be allowed to continue part-time. ACT was not opposed to that kind of flexibility, but we find, after a bit of probing in the bill, that simply allowing flexibility might have been the last thing on the Attorney-General’s mind. The Justice and Electoral Committee was properly concerned about the potential for panel packing. There may not be an actual intention to panel pack—that is, to ensure there is a big enough pool of judges for the Chief Judge to allocate a matter to a judge known to have the right predisposition. The problem is the appearance of panel packing, and the possibility of subverting what has been a part of our law for generations—namely, a limit on the number of judges, so that the politicians cannot do what has been done in many countries when they have not liked what the judges are doing, and that is to appoint judges more to their taste.

In short, this bill allows the Attorney-General to appoint an almost infinite number of judges. Although the number of High Court judges is fixed at 55, and the number of district court judges at 140, the bill says that a part-time judge is counted as a fraction of a full-time judge. For example, by appointing 20 judges who each work 1 day a week, the Attorney-General would have a chance to stack the judiciary using the equivalent of only five judge spaces. One judicial space, one vacancy, could be taken up by up to 10 extra judges if she chose to appoint them on the basis that they do half a day each. That may be an extreme, but I offer it to the Committee to consider the constitutional implications of this change.

Why is it sinister? Because it would have been very easy for the Minister to have instructed her officials not to oppose a really simple reassurance to us all that that was not her motive. We discussed in the select committee putting in a limit that no more than, say, 25 percent of the judges could be part-timers. We were told that this power would be exercised rarely. We were told not to worry, because the Chief Judge was in a position to approve or not approve someone going on part-time work. But, of course, the Chief Judge might have her arm up her back. The Chief Judge might be desperate to have some extra capacity, and would not have a choice if the Attorney-General—an Attorney-General who is not trusted in this country—decided that she wanted some of her mates on the bench to fill up all the vacant slots. That might be the best that the Chief Judge could get.

Worse still, the Labour majority on the select committee would not allow this bill to remove the power of the Attorney-General to decide who gets to be a part-timer, when, and for how long. Each court, which should be governed by its own judges through the Chief Judge, should at least have been allowed the power to decide which judges will be part-time and when. Instead, the Act expressly states that it is the Attorney-General who decides when a judge can go on light duties and when a judge comes off them.

This is not just point-scoring; this is a serious constitutional matter. For generations we have had in our law that when the number of judges has to be increased it must be done by Parliament. That gives Parliament a chance to debate whether the reason for the extra judges is because our legal system is going wrong. For example, it is quite proper that we have a chance to debate the number of Family Court judges, because 2 years ago we passed a bill that effectively married 200,000 couples, and that measure inevitably increased the load on the Family Court. That is a proper matter for political debate. The Attorney-General can now sidestep that by making a series of part-time appointments, thereby filling up the slots. The moment she changes them from part-time to full-time, there is no vacancy. In other words—and I do not know whether the National Party or New Zealand First have realised this; I must say it had not occurred to me—there is a strategy here open to the Attorney-General to fill up the available slots in the judiciary for the foreseeable future. All that she needs to do is appoint judges as part-timers, and then it is in her gift to convert them to full-timers, as and when a vacancy occurs, so that there are no more vacancies for some time.

This is not a light issue. I am astonished that the Greens have allowed this to happen. I can see why Labour might want to do this. It has an agenda. It wants to change our constitution, and it does not want to have to go to the people on it. Labour does not want referenda. It does not even like having this issue debated in Parliament. It will quite happily push these things through on a bare majority. In this case, Labour is pushing it through without even the judiciary or the profession approving of it.

It is also astonishing that this issue has not been noticed by our media. We have here a power to stack our courts with political mates of the politicians in rule from time to time, and their decisions are now out of reach of reversal by a patently independent court in London. When we are in power I would not want to have the temptation offered by this bill. I would much prefer that it was locked away. With the best will in the world, I will be quite convinced that people I know will be better judges than the ones whom Margaret Wilson mixes with. I would love to be able to reduce the flexibility for a succeeding Government to appoint a judiciary to its taste, but this bill now makes it possible to sidestep the provisions that we have had in our law for so long to try to prevent that.

This issue is not something that should be pushed through with disinterest. I am glad that United Future is voting against it, and that New Zealand First agrees with us. I have appreciated the historical survey that Mr Richard Worth has given us, and Dail Jones’ reference to the submitters. Yet at the moment it does not seem to have a political cost. I think the Labour Party members should reflect on the fact that it will. When the collective impact of this kind of change, this kind of high-handedness with the constitution, is recognised, it might explain to them why they have had such a shocking and unexpected reversal in the polls. It might explain why what Labour thought was an innocuous or simply scurrilous speech from Dr Brash touched a nerve with people who have lost trust in the Government. It is because of this kind of change, this kind of sneakiness, this view that propriety does not matter, and that the Government does not need to get consensus before it imposes its social views to engineer New Zealand.

So we get all these provisions in Part 2 applying to the Youth Court, the Family Court, the Environment Court, the Employment Court, and, worst of all, the High Court, where the Attorney-General gets the power to appoint a nearly unconstrained number of judges—to decide what hours they will work. It is an odd provision anyway. From the language all that it says is that part-time judges are treated as the appropriate fraction of a full-time judge, and that they are paid a pro rata proportion. What is the fraction? If the Attorney-General says that judges are working 1 day a week, what happens when they are thinking about their judgment in the shower, if they take it home at night, or if they work on it on other days—trying to catch up with a backlog—when they are not supposed to be working? Does the judge potentially come back and say that the pro rata proportion should be more? Will the Chief Judge back them in a claim that what they are expected to do in their 1 day is not possible?

The next issue that I wished to discuss was the question of part-time judges, which are referred to in clauses 42, 47, 52, 55, 60, and 73. I refrain from endorsing the previous speaker, Stephen Franks, because I am told that endorsements are out of order in the present circumstances, but as a member of the Justice and Electoral Committee he makes some very good points.

I am in support of the concept of part-time work for the judicial officers—and I gained the impression that, generally speaking, Mr Franks would be—but there needs to be more safeguards than currently appear in the legislation. There are any number of women—and part-timers are usually women—who have very good experience in the law, who have considerable ability, who are very clever people, who go on to even greater duties as mothers. Later they decide they want to go back into the workforce and have to consider how they will do that. Some of them today decide they will not leave the workforce, and will try to stay in the workforce on a part-time basis and bring up their children at the same time. Such people are a wonderful resource that is available to New Zealand, and New Zealand First supports the possibility of women—part-timers are usually women—being able to continue their legal careers. My own wife was able to come back into the teaching profession on a part-time basis, job-sharing with another person, so I have first-hand experience of the matter.

The Law Society supports the provision that will enable judges to be authorised to act for a defined period on a part-time basis. I am encouraged that the Law Society is moving well and truly into the 21st century on that basis. Other forms of part-time judicial work are mentioned by the Law Society, and its submission refers to the office of recorder in England and Wales. I am sure I mentioned in my speech on the first reading that the office of recorder is available part-time in England and Wales. recorders, being barristers as a rule, get the chance to work out whether they want to be judges or whether being barristers is a more acceptable form of profession.

I think the concept of part-time judges is a good one. I have criticised the Government very severely on what is really a constitutional outrage in this bill, generally speaking; it is regrettable that the bill was not introduced solely from the point of view of part-time judicial work being made available to qualified people. So I will give credit where credit is due. However, I take the point that perhaps there needs to be more clarity, and I suspect there may be amendments in the Committee stage on just what is available in the way of part-time work for the District Court. I see there is provision for up to six associate judges in the High Court, but when I went through the bill I could not find any sort of limitation on the number of part-time judges in the District Court, and wonder whether it is possible to set that out.

There are problems with part-time judges, male or female. As Richard Worth properly pointed out, one often starts out on a case that should last a day but it goes into 2 days, or on a 2-day case that ends up as a 4-day case. I am sure that the people who manage the courts in the present system can provide that a 1-day case means a 1-day case, and that such a case, if it does go into 2 days, has the same judge—it could only be the same judge—deciding it on the second day. There is nothing worse, even today—and I have experienced it—than the judge saying at around about 4.20 in a midweek afternoon: “Look, I’ve got to go now. I’ve got a meeting.” Being a humble lawyer, one cannot ask the judge what the meeting is, but one does suspect that it has something to do with uplifting someone from somewhere because the other partner cannot do it. That happens today. I would have thought that, in a part-time situation, there would be greater safeguards to make sure that cases are not abruptly left partly heard.

This is very important legislation. The next area I am concerned about is the situation of the other judges. I am concerned about clause 72, “Appointment of Judges”, and the following clauses, which relate to the Māori Land Court. I would have thought that any member of this House who represented a Māori constituency—the seven Labour Party Māori members of Parliament—would give us his or her view on the amendment to the Te Ture Whenua Maori Act, which I was discussing before the break. Those members are indeed strangely silent. What is their view on Māori Land Court judges being appointed on a full-time basis but being authorised to act part-time? What would they say about some Māori Land Court judges being appointed part-time? How part-time is part-time? When does the time begin and when does the time end, and how do the people involved in a case know whether the judge is part-time or full-time? That same query applies to every other judge as well, but just before the break a significant number of members who represent Māori seats were taking an interest in the issue, and I would have thought that, on behalf of their constituents, they would be here in the Chamber taking calls. I would have thought that there would be Labour members in the Chamber taking calls on this very important issue, and trying to answer the questions that have been raised by members of the Opposition parties. But, strangely enough, despite the fact that we have a constitutional outrage and an amendment to the Te Ture Whenua Maori Act, there seems to be no Labour Māori member of Parliament taking any interest in this matter. Of course, I include Tariana Turia, who I would have thought might take an interest in the issue, seeing that there is an amendment to the Te Ture Whenua Maori Act.

The question was put that the amendments set out on Supplementary Order Paper 205 in the name of the Hon Margaret Wilson to Part 2 be agreed to.