Judicial Matters Bill

This legislation is a disgrace to the New Zealand Parliament, especially in the year in which we are celebrating 150 years of our democratic system of government in New Zealand. One of the fundamental aspects of proper democratic, constitutional government is the independence of its judiciary. Any means of changing the independence of the judiciary itself should surely be conducted by way of a substantial majority vote of this Parliament—that is, at least a 75 percent majority vote of this Parliament. Instead, what do we see here today? We see a substantial change in the way the judiciary will operate in New Zealand. The judiciary is losing its independence. I say that not because of what New Zealand First has to say about this bill, but because of the views of the New Zealand Law Society, for example. The Law Society rarely—I cannot use the word unique—ever indicates a view on legislation, yet it says it opposes this legislation. It says the basic reason for its opposition is the fact that this bill shows that we are losing the independence of the judiciary in New Zealand.

Again, we have the view of the New Zealand Council for Civil Liberties, as expressed by Tony Ellis, Barrister, LLB, LLM, and a whole host of other qualifications. He takes the view that this part of the bill, and the bill generally, 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. He said it would also appear to be nothing more than an unnecessary complication to the current unencumbered right of Parliament to impeach a judge.

Until the passing of this legislation in its final form, this House would have been able to say that Judge X or Y of the High Court was not doing his or her job properly, and that that judge should no longer be performing his or her role as a judge. That right has never been exercised by this Parliament, but today we say that there needs to be a change to that role. What is the reason for it? There is no reason for it. It is the politically correct whim of Margaret Wilson and Helen Clark to try to set up a system by which any member of the public can come up with some possibly fictitious complaint about a member of the High Court and put him or her to a considerable degree of trouble as a result of that complaint.

The complaint itself might not be just because of the way that judge is performing on the bench; it can also be related to the judge’s behaviour elsewhere. That is totally intolerable. Can our judges not have a good time and relax—as we saw with those barristers coming back from Pitcairn Island? They were possibly behaving slightly outrageously, but having fun as they crossed the equator. This bill prevents High Court and District Court judges from having a good time in their private lives, and other judges, including Māori Land Court judges.

If one is a Māori Land Court judge, and at a hangi, and having a damn good time, does one have to constantly comply with tikanga Māori? There is no provision in this bill for the description of tikanga Māori, and just how a Māori Land Court judge should behave in his or her free time. Yet this bill states that if a judge is having a good time at a hangi, a marae, or somewhere like that, and if he or she perhaps commits a breach of tikanga Māori, someone can say to this complaints body that “Judge so and so” should be the subject of a complaint and lose his or her job. What a terrible piece of legislation to pass by a majority of about 63 to 55!

💬 Brian Connell: I thought the member supported the Government.

Brian Connell has not been listening. He is so out of touch. Once again, I advise a National Party member of Parliament to listen to me and take notice of what I am saying. I say to Brian Connell, the National Party member of Parliament for somewhere in the South Island, that he should have been here all the time during this debate, as I have been.

We have been opposing this legislation. In fact, we oppose this Labour Party Government more than the National Party does. We do not support the Government on votes of confidence, as Mr Connell has done. Our record on votes of confidence against this Labour Party is twice as good as that of the National Party. Mr Brian Connell should stop chipping in, because he has really put his foot in it once again. For example, we will oppose the Government on the Forests Amendment Bill. As I understand it, the National Party will be cuddling up with the Government.

Mr Connell should wake up and take notice of the way New Zealand First uses its brains as much as its mouth in coming to a decision. I appreciate that that would be a difficulty for Mr Connell, but not for New Zealand First members. I hope Mr Connell will desist from his totally baseless interjection.

As I was saying before Mr Connell’s totally baseless interjection, this legislation is a constitutional outrage. It should not be passed in this way. I am surprised and amazed that the Māori members of this House, especially Tariana Turia, have not taken a call in this debate. Māori members are closely linked with the Crown and the way in which New Zealand has been established. Our right in this Parliament to impeach a judge goes back to 1700, not just 1852.

If we look at the overall history of the New Zealand Parliament and New Zealand generally, our rights in 1852 under the Westminster system can be traced back at least to 1700 and William and Mary—well before we could say that there was a United Kingdom under the Act of Union of 1707. I would have thought that the Māori members of this House, especially Tariana Turia, would be up here supporting New Zealand First—even supporting the National Party, United Future, and the ACT party—in ensuring that this constitutional outrage did not take place.

During the course of the earlier part of this Committee stage, we found the Greens once again supporting the Labour Party on constitutional matters. The Greens say they listen to what the Māori people of New Zealand have to say. That was not the case with the Supreme Court Bill, that is for sure, and it is not the case with this particular legislation. As I said during the Committee stage, it is sad that the hīkoi took place last Wednesday. It should have taken place this Wednesday, because something more important has taken place in the House this Wednesday than took place last Wednesday—the constitutional outrage we are seeing in this legislation. It is regrettable that Mr Richard Worth is not here to fill in Mr Connell, but perhaps he might fill him in later on, with regard to the attitude Mr Connell is taking at the present time.

I did express my support for the fact that this bill allows the appointment of part-time judges. Let us give some credit where it is due. I think that is a good move, but it is very, very sad that it is part of this particular legislation. It is in total contrast to the thinking behind the legislation. This legislation, generally, is the type of PC stuff we would expect from Margaret Wilson and the Rt Hon Helen Clark. It is legislation that does away with the well-established rights of New Zealanders, and especially the rights of this Parliament. As I said at the beginning of this speech, the New Zealand Parliament has been going for 150 years. For 150 years we have had the right to impeach judges. We have never done it once during that time, yet this particular Government has decided in this legislation that some judicial commissioner or judicial conduct officer can do it.

The National Party does not seem to be interested in opposing this legislation, but New Zealand First is determined to oppose it.

💬 Brian Connell: Take another call.

I will take another call, if I can get it. I assure the member that New Zealand First opposes this constitutional outrage. If we have to show the National Party how it is done, then we will.

Between 1975 and 1984 I had pretty good experience of knowing how long to speak in a debate. In those days members could speak for 20 minutes, and sometimes for 30 minutes, so in speaking for a mere 10 minutes, I will be just warming up. It will be like a good old Morris Minor just getting under way for a long haul. If Brian Connell does not want to take a call, and the National Party is not interested in opposing this bill, that is their problem. New Zealand First opposes it. I am here on behalf of New Zealand First to oppose it. That is what I will do, and that is what I am doing now.

We have seen problems with this legislation, as I have said.

I am delighted to have the chance to speak, following what I thought was an excellent summary by New Zealand First’s Dail Jones of the reasons for opposing this bill. Like him, I am a little surprised at the apparent lack of passion on the part of National in its opposition to the bill. This bill has been very properly opposed by National at an earlier stage, for most of the reasons that Mr Jones raised. I suspect that the difficulty he was facing was temporary and may be related more to the change in personnel on the National benches at the moment.

I am concerned that this bill not be treated lightly, because a constitutional change without a consensus, against the considered views of the Law Society, the judges, and the people concerned about civil liberties, is a serious issue. It is particularly serious when it occurs after New Zealanders no longer have the comfort that they can appeal outside New Zealand to a body that is patently beyond the reach of local passions and local political influences.

Regardless of the fears that people have about potential political alignment or consideration by New Zealand courts, we did have the comfort that it was not worth stacking the New Zealand courts. It was not worth loading them up with people sharing ruling ideological views, so long as we had a right of appeal outside New Zealand to a court that was beyond reach of the New Zealand appointment process.

Now we have this Judicial Matters Bill. I do not think most of us who were looking at it in the select committee realised until quite a late stage that it allows the Attorney-General to appoint a very large number—almost infinite at its extreme—of new judges and to fill up slots well in advance. That is because there is no restriction on the new power to appoint part-time judges. Strictly, this debate is about the title of the bill. Of course this bill is about to be divided into 11 bills, covering all the different Acts that it amends. But the part that relates to the appointment of judges, which goes into each Act constituting the particular court, does not indicate how significant this constitutional change is.

Firstly, each subpart simply amends the total number of judges, and provides that part-timers can be appointed, which is not in itself an objectionable concept, but then the bill says that it is the Attorney-General who decides how much or how little time those judges will spend working. It is not the head of bench, not the judges collectively, not the court, but the Attorney-General who will decide. Secondly the bill says that the number of part-timers will be counted as fractions for the purpose of the total limit. That provides a way to evade what has been a constitutional protection for generations—that is, that the number of Her Majesty’s judges cannot be increased by a politician, without going through Parliament and making his or her intentions plain and justifying them. That has been removed.

The other concern, of course, is the provisions that came under the label “judicial conduct”. When the provisions were first introduced, the journalists were persuaded that these were to deal with complaints against judges, and to upgrade what was called the “accountability of the judiciary”. They are nothing of the kind. This bill is all about sacking judges. It should have been called the “Judicial Impeachment Bill”, or it could have been called the “Judicial Removal Bill”. It has nothing to do with ordinary complaints of misconduct. They will go to the Judicial Conduct Commissioner, but the commissioner is simply a postbox to pass them on to the head of bench in each area, if they are not of a kind that goes as far as removal.

What have we done with the removal power? This bill allows the Attorney-General to ensure that a judge favoured by the Attorney-General cannot be impeached. It allows the Attorney-General to appoint the Judicial Conduct Panel. If the panel decides there is not enough to justify removal, it does not go any further. Even if it does decide, and the Attorney-General does not like it, she can decide that it does not go further. This contrasts with the current position, where any member of this House can impeach a judge.

ACT would have been quite happy to support a more disciplined process. ACT would have been very happy to support many of the provisions in this bill if it was simply about providing a better investigative process as an immediate consequence of one of those impeachment motions. If it had been a set of changes to the Standing Orders, which provided for a proper dispassionate investigation and report to Parliament to precede any debate on an impeachment motion, this would have been quite unobjectionable in constitutional terms. Instead, this bill, which was just blandly called the Judicial Matters Bill, contains a constitutional bomb—that is, the removal of the people’s power, through their elected representatives, to impeach a judge in whom they have lost confidence.

Worse, it does not even tackle the hard issues on removal. The hard issues are the issues that the Solicitor-General grappled with in relation to Judge Beattie. The hard issue is: what is the standard? Is it just conduct unbecoming in a sense that it is conduct that brings discredit to the judiciary, or does it actually have to be something that is nearer to a criminal offence—a sort of fraud, something that shows real moral turpitude? I hope that it is the higher standard, because we need to require a high standard in this area, otherwise judges could feel that their independence was threatened and be kowtowing to the executive—to Government Ministers—to avoid any prospect of their becoming the victims of a Judicial Conduct Panel witch-hunt.

There is nothing in this bill about whether the conduct has to be proved beyond reasonable doubt. In other words, is it appropriate for the commission or the panel to report that a judge should not be removed if it simply has not been proven that he or she has been guilty of a serious wrong? Is it enough for a judge that he or she can get off, simply because it is not proven? Should we deem innocence? Or if the circumstances are pretty reprehensible and their very presence on the bench will bring it into disrepute, should that not be something that Parliament can proceed with to protect the reputation of the judiciary? Of course it should.

As it is at present undefined, Parliament can do that. But under the system as it will be, if the Judicial Conduct Panel decides that the appropriate test is “proven beyond reasonable doubt”, and that it must deem someone who has not met that standard to be innocent, then the whole question is beyond Parliament. In an MMP Parliament it may be only one party that wants to protect the bad judge. It need only be the party of the Attorney-General, and the judge is protected. This is a significant change, and an unnecessary change. It would have been easy to get the agreement of the rest of this Parliament, I am certain, to a much more modest and defensible change that did not enhance the powers of the Attorney-General. Instead, the Attorney-General would not accept amendments that would have made that possible.

I tell members opposite that when they thought they could get rid of the Privy Council recourse without political cost they were wrong. They scoffed at the idea that people would become interested enough in a matter that was so arcane. Yet it has become part of genuine, well-founded folklore that the Government has designs on the constitution. This will be another piece of that pattern. This is an unnecessary provocation. This is quite rightly upsetting people who worry about civil liberties; of course, not the Greens, who only pretend to worry about civil liberties.

This bill will draw attention, however much it has slipped through without notice at the moment. It may be that that attention will not be drawn until there is an incident. But the Government will wear the responsibility for setting a precedent that a bare majority in this Committee can tinker with the constitution. The Government should remember that when it changes, and the temptation is in the hands of people such as myself, the National Party, and New Zealand First, and we have this precedent in front of us, even those of us who do not want to use it will face colleagues who are saying: “Why not? They did.” Those of us who worry about the constitution will face the precedent that this Government has established of being able to tinker with judges. Our less sensitive colleagues will not worry.

This is just a very brief call. It highlights as much as anything the failure of the National Party to make any contribution opposing this particular part of the legislation. This part, of course, summarises what took place at the Justice and Electoral Committee, and the National Party is not interested. I take the point raised by Stephen Franks at the end of his speech, and pass on an anecdote. As a lawyer, one does come under pressure from one’s caucus colleagues, who ask: “Why are you being so pedantic and so legalistic on an issue? Don’t worry about it. We, the rest of this caucus, know better than you, and you shouldn’t be too concerned.”

Well, when I came into this House, we had a vote for the first time on electricity legislation, which was harmless enough. We had quite a number of legal members of Parliament in 1975, and we warned the caucus that there would be a debate from the Opposition on the right of entry into properties that electricity inspectors had—the absolute right for a meter reader to go on to a property and do the necessary inspection without any authority or proof whatsoever. We warned the caucus that that was what the Labour Party would take up. We were pooh-poohed by the rest of our National Party caucus. We were 55, they were 32, and it did not really matter.

Well, would members believe it, that is all the Labour Party ran on during that first reading in those days. The debate went on and on about the entry into property by those inspectors, and the fact that the rights of a person to free occupation of his or her own home was being undermined.

Well, I think there are fewer practising lawyer members of Parliament today than there were in 1975. When I was on that select committee in 1975—the Statutes Revision Committee—we had about five members of Parliament who were fully practising lawyers and, as well, there were some others who were not on the committee. But times change, and I think Stephen Franks’ view that he expressed at the end of his speech is a very important one.

This bill will see pressure put on subsequent Ministers of Justice and subsequent Attorneys-General to make changes. We have seen it already, and I think the Attorney-General, who is now in the chair, has made some appointments of people who, perhaps, have not supported her in the way in which she might have supported them, and she has had to take the appropriate action in so far as they are concerned. That is the type of pressure that is put on a person. That is the type of pressure that will ensure that this legislation, which the Labour Government wants to see go through the Committee today, will come back to haunt this House in the future.

I move, That the Committee divide the bill into the Judicial Conduct Commissioner and Judicial Conduct Panel Bill, the Children, Young Persons, and Their Families Amendment Bill (No 3), the Coroners Amendment Bill (No 2), the Courts Martial Appeals Amendment Bill (No 2), the District Courts Amendment Bill (No 3), the Employment Relations Amendment Bill, the Family Courts Amendment Bill, the Judicature Amendment Bill (No 2), the Resource Management Amendment Bill (No 3), the Summary Proceedings Amendment Bill (No 2), and the Te Ture Whenua Maori Amendment Bill, pursuant to Supplementary Order Paper 206.