Third Readings

I move, That 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 be now read a third time.

The provisions contained in what was formerly the Judicial Matters Bill will maintain and enhance public confidence in the judiciary, and recognise the fundamental importance in a democracy of ensuring an independent judiciary and of addressing judicial resources. By enacting this legislation we are confirming New Zealand’s commitment to the United Nations’ Basic Principles on the Independence of the Judiciary. The United Nations endorsed the basic principles in 1985, to help member States in their task of securing and promoting the independence of the judiciary. The principles confirm that judicial independence is the cornerstone of civil and political rights, such as the right to a fair trial before a competent, independent, and impartial tribunal established by law. It is the duty of Governments to respect and observe that independence.

As required by article 17, the legislation establishes an appropriate procedure for the receipt and processing of complaints about judges, and for investigation of serious matters of conduct. From time to time there have been questions about the process for handling complaints about judges. The Judicial Conduct Commissioner will ensure complaints are processed expeditiously and fairly under a process that has due regard for judicial independence.

We have always been well served by our judiciary, which is highly respected both domestically and internationally. We have never removed a judge from office in New Zealand, but refusing to provide for that possibility invites disaster. The alternative is to establish a process in the face of a crisis, risking both public confidence and judicial independence. The provision for the appointment of a Judicial Conduct Panel ensures proper investigation of serious allegations and avoids those risks. The requirement for investigation by a Judicial Conduct Panel supports Parliament’s role in the removal of judges. Natural justice requires a proper investigation and determination of the facts before a judge can be removed. The Judicial Conduct Panel will have responsibility for that investigation, ensuring Parliament has a proper basis for its decision about removal.

The next step is the establishment of the office of the Judicial Conduct Commissioner, which will now begin. The commissioner will be appointed by the Governor-General on the recommendation of this House. The Judicial Conduct Commissioner must be a person whose impartiality and integrity are beyond question and in whom the public and the judiciary have confidence. As Attorney-General, I am required to consult with the Chief Justice on the appointment of the commissioner, and to report to this House the outcome of that consultation.

Security of tenure is also a cornerstone of protecting judicial independence. This legislation provides Masters of the High Court, who will now be known as Associate Justices of the High Court, with the same rights of permanent tenure as other judges. In accordance with article 16 of the basic principles, the legislation provides an absolute immunity from suit, to be extended to all judges. Judicial immunity promotes independence by allowing the fearless performance of the judicial function. It also helps in achieving finality in litigation.

The Basic Principles on the Independence of the Judiciary confirm the duty of each State to provide adequate resources to enable the judiciary properly to perform its functions. This legislation addresses judicial resources by increasing the maximum number of District Court and High Court judges, providing for retired community magistrates to be appointed as temporary community magistrates, and increasing flexibility by enabling judges to work part-time. The new 8-year term for the Principal Family Court Judge and the Principal Youth Court Judge enhances resources by encouraging continuous vigour and innovation in the role. As a result, there will be a broader pool of District Court judges with leadership experience from which the Chief District Court Judge may be selected.

I note some members of this House and submitters thought the legislation should address the appointment of judges. I have now released a paper on the judicial appointments process to provide an opportunity for wider discussion on this issue. As I have said before, New Zealand has been well served by judges who have integrity and ability. However, from time to time, commentators have asked whether the appointments process can be improved, possibly by the establishment of a judicial appointments commission to identify and recommend suitable candidates for judicial office. I again encourage all New Zealanders with an interest in this subject to make their views known to the Ministry of Justice.

With the passage of this legislation, New Zealanders can be confident that complaints about judges will be heard, and that a robust, fair process for deciding whether to remove a judge from office will be available if the need arises. The other provisions of the legislation contribute to the proper administration of justice by safeguarding judicial independence and enhancing judicial resources. I commend this legislation to the House.

I think it is very pleasing to many members of the House to hear the Attorney-General speak about the importance of the independence of the judiciary. If only we had heard her speak before on this legislation, which she has until now been strangely silent on. Having said that, it seems to me as though the Attorney-General must be looking at different legislation from this, because certainly the submissions from the High Court judges, the Court of Appeal judges, and the New Zealand Law Society were unanimous in their view that this legislation was an attack on the independence of the judiciary. So I think that perhaps the Attorney-General is looking at different legislation, and certainly not the legislation that is before this House.

💬 Stephen Franks: The legislation she thought she had written.

As Mr Franks has said, it is the legislation she thought she had written. Perhaps the legislation has changed while she was not speaking about it.

Legislation like this should come before the House to address evils, and the evil in this case would no doubt be seen in relation to the appointment of unsuitable people and the disciplining of judges. The Attorney-General has correctly pointed out that this legislation does not address the issue of appointments, and she herself has come under considerable negative comment from time to time with regard to her own appointments. Certainly, the legislation does deal with discipline, but only in relation to the removal of judges. This Parliament, as the representative body of the people of New Zealand, already has the right to remove a judge. Any member of this House can bring a motion to have a judge removed. The fact that none has had to be removed is an indication that the system works. It works because judges know it can happen, and would happen, if necessary. It also works because no member of this House is likely either to bring such a motion without some very good advice and reason to do so, or to do so without the support of his or her colleagues in Parliament.

What this legislation does, however, is to put disciplinary issues off to a commission that this Attorney-General will appoint. So this legislation is, in fact, an attack on the judiciary. The people of New Zealand are losing the right to be able to speak to their MPs and lobby Parliament to bring about the end of the tenure of a judge who is unsuitable and is acting unsuitably. That right is to be given away, and given away to a commission that the Attorney-General will appoint. In other words, the very Attorney-General who from time to time makes appointments that many people, including myself, consider to be inappropriate is to appoint the people who will decide on the actions of those particular people. That is not a move for independence; it is a move for dependence. The judges have rejected it, and they have been ignored. They are the very people whom this legislation most affects. I have already, in previous debates on this legislation, looked at and spoken about the number of complaints—the few that there are—received about the judges in our New Zealand courts, from one extreme to the other.

There are very, very few complaints. I note that despite that, this legislation is still being pushed through the House, and it is being pushed through with a very small majority. Only the Greens have joined with Labour and the Progressive Coalition on this legislation, and all other parties have disowned it. Those parties have listened to the people who know best about it: both the judges and the New Zealand Law Society—the people who deal with the law. I do not think we should move past or just ignore the fact that this legislation is an insult to the people of New Zealand. Judges in this country are not elected officials, and the people of New Zealand do not get a chance to decide who will be their judges. Many of us would say that that is probably a good thing. But people do currently have the right, until this legislation is passed, to get any member of this House, as their representative, to look at and question the actions of judges. That right will be lost, because it is to go off into another sphere where a politically appointed group of people will look at that.

The Minister talked about the appointment process, but I note that the date when the new legislation on appointments is to come into force will be very, very close to the end of her term as Attorney-General. She will, by that time, have had 6 years of interference in the judiciary—6 years of appointing people who should not necessarily have been appointed, and of a person who has resigned from a District Court position being appointed as a Master of the High Court. Judges are now to be given complete tenure, which they did not have before. That is the sort of action this Attorney-General has complied with—in fact, she has been absolutely complicit in it.

💬 Hon David Cunliffe: Unreal!

If there is anything that member on the Government side of the House, who keeps calling out “Unreal!” all the time does not understand, then I consider he should actually read the legislation. As he has not read the legislation, he should perhaps be quiet.

This legislation is a shame. It perpetrates a constitutional outrage upon the people of New Zealand. Unfortunately, the media have not quite picked up on the importance of this legislation. It is another example, just like the debate on the Privy Council, where the issues are very serious. They should be going through to a referendum at the very least, but that is being denied yet again by this Government, which does not want people to go anywhere near the polls because it has certainly seen what has been happening to the polls lately. I think it is a terrible shame that everybody involved in this legislation says it is bad legislation—everybody from the Law Society to the judges. How often do judges make submissions to select committees? It is an extremely small number of times. They made a submission on this legislation not because they are frightened of having any independence, or anything like that. The reason is quite the opposite of that. It is not that judges are frightened of any criticism, because they certainly come in for a tremendous amount of criticism, which they are often not in a position to deal with. Judges are already under massive public scrutiny. What they are concerned about is that this legislation is yet another attack on their independence and on their ability to do the job. That is a shame.

The fact is that we will find fewer very qualified, competent people in this country who want to be judges. We have already noticed over the last few years that there has been an attitude amongst many of the senior people in the legal profession of not seeking an office in the judiciary. One of the reasons for that is that they feel the position of being a member of the judiciary has been lowered, and they do not want to have any part of that. They do not want to have any part of this legislation, and nor should we.

I am pleased to rise to support the judicial matters legislation. Before that member scurries out of the Chamber, she may like to listen to the riposte to the absurd and untoward accusations she made about the Attorney-General in that shameful speech.

That member simply cannot have it both ways. She cannot on the one hand accuse the nation’s most senior lawyer of meddling in the judiciary, and then on the other hand grizzle when a transparent and proper process is set up to deal with matters of conduct. Where is the integrity in doing that? Moreover, the member, in making those baseless comments, has seen fit to descend from the level of principle to the level of an individual case, by referring to the recent instance of a judge who resigned and was then reappointed as a Master of the High Court—a case that all members would agree was most controversial. The member has drawn personalities into the debate, and I think that that is regrettable. Let me say that if this legislation had been in force at the time, there would have been no need for the Attorney-General to have to respond to the recommendations of the Chief Justice, who had to make those recommendations in the absence of a transparent process like this.

💬 Stephen Franks: Nonsense!

Indeed, I wish that member would refresh his practising certificate, and do something useful with his life. Actually, I probably did the member a wrong. He has probably been doing some practising on the side.

The judicial matters legislation is a necessity, in light of recent controversy, to preserve and promote the integrity and public standing of the judiciary. Which member of this House could possibly object to that aim? Or is the member who resumed her seat previously—of whom, I add, one could ask whether she had done the House the courtesy of listening to the response, and I invite her to take the next call—

💬 Dail Jones: She can’t have two calls.

—after Mr Jones, who I believe has a contribution to make. I invite her to take the next call after that, if she is prepared to rebut the claim that this legislation actually strengthens due process. She will not, because she cannot. This legislation is essential in order to promote the good management and the good standing of New Zealand's fine judiciary, and I urge its speedy passage through the House.

The previous speaker for the Labour Party knows nothing at all about this legislation. The objection to it comes, for example, from the New Zealand Law Society, which opposes the legislation’s proposal to establish the office of the Judicial Conduct Commissioner. It states that the legislation will undermine that most vital part of our constitution, the independence of the judiciary. The Law Society takes the view that judicial independence, which we need in this country, will be undermined by this legislation. The previous speaker had nothing to say about that crucial point.

In its submissions, the Law Society also states that there is no need for legislation of this nature, except in instances where a judge might be removed from office. Currently, we in this Parliament have the right to remove a High Court judge from office, and if we look back over our entire history to the British Westminster system, we have had that right from around about 1700. We have had it at least since the establishment of constitutional government in New Zealand, and of Parliament and the judiciary. It has worked very well in all that time, because no High Court judge has ever been removed from office, yet we could have done so by a simple motion in this House if so required.

No one has asked for this legislation, which sets up a Judicial Conduct Commissioner who will inquire into complaints about judicial behaviour. That is not just judicial behaviour in the court, but also judicial behaviour in the judge’s private life. If a judge goes to a party, allegedly misbehaves, and someone gets grumpy about it, that person can write to the Judicial Conduct Commissioner and complain. It is hard enough to get judges today as it is, because judges work to a code of trying to keep their private lives as well behaved as possible. They have to be like Caesar’s wife—totally above suspicion. Their standard of behaviour has to be more than immaculate.

Now, when anybody can complain about what judges might do in their private lives, they will have to go through all the problems associated with a complaint to the Judicial Conduct Commissioner. The commissioner will look at the complaint and then it will go to a Judicial Conduct Panel, which will also have a crack at it. During the Committee stage, we worked out that about nine steps would be involved as a result of this legislation. In the past, there was just one. If that person was not satisfactory, this House could dismiss that person—which has never happened.

If it has never happened, why do we need it now? No one has asked for it to happen now. I suspect it is part of the Labour Party’s overall plan to change the way of life in New Zealand. We have seen it remove the right of appeal to the Privy Council. We have seen it wanting to remove the title “Queen’s Counsel”. We saw it try to introduce what is called a “public domain”, although how one can have a public domain on the wet bits, the foreshore and seabed—given that the public domain was nearly always land-based and in the middle of the village—is absolutely beyond me.

After all, King Canute proved over a thousand years ago that one cannot stop the tide coming in, yet, the Prime Minister, the Rt Hon Helen Clark, wanted to have public domain over the foreshore and seabed. The old public domain was in the middle of the village—on the hard, dry bits. How on earth could she ever have dreamt of having a public domain on the foreshore and seabed? That was out of date a thousand years ago. King Canute proved it at that stage, but that is part of the Labour Party’s policy of doing things—apart from its social policy, of course, with things like the Civil Union Bill.

But getting back to this legislation, one might say about the New Zealand Law Society complaints: “So what? They are just a bunch of lawyers.” The fact is that the Law Society very rarely comes out with a policy decision on legislation, but on this occasion it did. When we go to the other extreme, what about the New Zealand Council for Civil Liberties? What was its view on the legislation? Now, one might say that lawyers tend to be more conservative, and the Council for Civil Liberties on the slightly more radical side of the spectrum. But the Council for Civil Liberties also opposed this bill, terming it “an unnecessary complication to Parliament’s current right to impeach a judge.” That is the other end of the spectrum, so what real support is there for this legislation?

Once upon a time, we might have had the Labour Party jumping up and down and supporting anything coming from the New Zealand Council for Civil Liberties. We know that those days have gone, and in the Committee stage the senior Government whip confirmed that that was the case. One might have thought that today it is the Greens who support the view of the Council for Civil Liberties. The Greens are forever jumping up and down and saying how we must protect individuals’ rights. We have had speeches about Mr Zaoui being locked up, and anti-American speeches, and all that sort of thing, so one would have thought that the Greens would support the Council for Civil Liberties on this occasion. But no, they do not.

Just as the Greens supported the Labour Party in putting the Supreme Court legislation through and abolishing the right of appeal to the Privy Council, so the Green Party is the only party—if we count the Progressive Coalition as a party at all—that is ending that 300-year-old right to impeach a judge. That right could be exercised by various citizens and British subjects, given that Westminster was the mother of this Parliament when it passed the 1852 New Zealand Constitution Act. It is the Green Party that is ending the right of this Parliament to impeach a judge. The Green members are saying that they do not have faith in their own ability to decide whether a judge is doing the job properly, and they want to hand it over to some other person appointed by a member of Parliament.

What we are now seeing is that two major bodies—the New Zealand Council for Civil Liberties and the New Zealand Law Society do not support this legislation. What will happen is that in place of us deciding if a High Court judge should be impeached, a person appointed by a member of Parliament will set up a committee of less efficient people—people of a lesser standing—who will then decide on the future of the judiciary of New Zealand. That is a lowering of standards, as I see it. We will have some fairly secretive body deciding the future of the judiciary in New Zealand.

Mr Cunliffe can laugh, but this Judicial Conduct Commissioner will be working to decide whether or not these people in the judiciary will be removed from their positions. As I said during the Committee stage, and as the National Party person speaking today said, it is an absolute constitutional outrage.

Of course, we are used to constitutional outrages on the part of this Labour Party. It is becoming second nature to us to see the way in which the Labour Party is ruining New Zealand’s judicial system. It cannot run the police force—we know how that is falling apart. We have seen how it is harder and harder to get High Court judges of the best possible calibre. Today we are introducing a system whereby judges of every kind will be subjected to so much scrutiny that one wonders whether anyone will really want to become a judge today. What is it worth to give up one’s private life absolutely and totally as a result of this bill, should one want to become a judge?

The Council for Civil Liberties went on to say that: “International norms have not been conformed with this bill, such as the ICCPR. The bill provides merely for removal of judges, not for judicial discipline.” That is the other interesting point—there is no provision for judicial discipline, just for removal. “The removal provisions are subject to the absolute discretion of the Attorney-General of the day.” One member of Parliament, not all of us, will have that decision. The comment from the New Zealand Council for Civil Liberties was: “There is no provision for complaint removal of any of the heads of bench.”

It is not surprising, therefore, that New Zealand First opposes this legislation. We want to put New Zealand first and make sure that our traditions and conventions are maintained, and that the New Zealand Parliament—all of us, not just the Attorney-General—have the right to decide on the impeachment of a judge. Of course, today the Attorney-General is not even a constituency MP. Today the Attorney-General is a list MP, as I am, and I think it is absolutely wrong that a list MP, with no responsibility to any constituency, can decide whether a judge stays or goes. That list MP, the Attorney-General, ought to be the one who goes, and I am sure she will.

I rise to speak on behalf of the Green Party on the third readings of the legislation that was formerly the Judicial Matters Bill. I am pleased, on behalf of the Green Party, to express our support for the legislation because we think it is important that finally in this country we are able to develop a process for dealing with complaints against judges—a formal, transparent, and fair process. It is important at a time when judges are under increasing scrutiny and criticism by the media, the public, and not least by members of this House. We believe that a process such as this is important, not just to protect the public interest and the integrity of the bench, but also to protect the judges themselves so that complaints made against judges can be dealt with in a proper manner and either upheld or dismissed, so that they are not left to media campaigns and innuendo.

It has been interesting to listen to the Opposition speaking on this legislation. There is a strange confusion in the reasoning, at least to my mind, because we hear the Opposition say that it wants to preserve the independence of the judiciary—and presumably this means the independence of the judiciary from political interference—yet what it wants to remain in place in terms of dealing with complaints against judges is a process that is left up to the political whim of Parliament. If we can muster 61 votes in this House, we can oust a judge, under the present system.

It seems to me that if we are really talking about preserving the independence of the judiciary, we need a process that depoliticises the investigation of complaints and allows them to be dealt with fairly and transparently. That is what this legislation was set up to do.

Mr Jones said that the Green Party is party to the ending of a 300-year right that British citizens have to deal with judges. I make the point that it is not a right of British citizens at all. It is only a right of members of this elite club of ours that we call Parliament. Most ordinary people have no show of trying to deal with complaints against judges, and Mr Jones would know that as well as I and other members of the committee do. We heard from submitters who came to the committee, who talked about complaints that they had against the judges and who got nowhere. They were intensely frustrated because they felt that their concerns were simply ignored and—

💬 Stephen Franks: Half of them were nutters.

That is the point. Whether or not their complaints have merit, there needs to be a process so that any independent bystander can look and say that a matter has been dealt with in a fair and transparent manner and that is the end of it. At the moment we do not have a process that can reassure an independent third party that the matter has been dealt with in a proper way.

Judith Collins spoke on this as well. She made the point that any member of this House could move a motion for the dismissal of a judge. Members should note that the minority report of the National Party in the select committee report showed how the process did not work—and I made this point during the second reading debate as well—and it raised the matter of Justice Edwards, who should surely have been removed from the bench. Because it was left to this Parliament to do something about it, Justice Edwards was never removed, and ended up resigning on his own account and received ₤1,000 in compensation for his troubles. That is a perfect example furnished by the National Party on why the current process is entirely inadequate and why it needs to be taken out of the hands of politicians and given to a body that is able to look at the issue without fear of its own political favour.

I do not believe that less competent and less qualified judges will take positions on the bench as a result of a process that will hold bad judges accountable for their actions. I do not see that at all. By establishing such a process, the integrity of the bench will be preserved and it will protect judges themselves from the innuendo that comes from a process that does not allow those issues to be properly investigated.

David Cunliffe pointed out in his speech the contradiction that is at the heart of the arguments. Members of the Opposition are continually criticising the Attorney-General. They have established a spurious and scurrilous campaign against the Attorney-General to criticise her consistently for her political involvement and the politicisation of her decisions. The criticisms are entirely unfair, but Opposition members criticised the Attorney-General for political involvement in decisions, and then, on the other hand, they wanted to preserve a procedure to leave those matters in political hands. That is the key issue and that is what this legislation is about. It is about taking complaints against judges out of the hands of politicians and putting them into the hands of a transparent and independent process.

The Opposition talked about judicial independence. What does that mean? As I said during the second reading debate, I do not believe that judicial independence means a licence to behave badly, without any fear of sanction. Surely, judicial independence must be about the ability of judges to be fearless in their findings, without fear of political favour. This legislation does not change that at all.

In fact, the legislation was criticised by some for not going far enough and not dealing with complaints below the threshold where removal of a judge might be considered. So I think it is quite wrong to say that everyone who came to the committee criticised the legislation and opposed it, simply because it set up a process. Many submitters said that it did not go far enough.

Mr Jones misrepresented what the legislation will do, when he said that under the system, for example, if a judge got drunk at some party someone could complain, that complaint would go to the Judicial Conducts Commissioner, a Judicial Conduct Panel would then be set up, and it would go through that whole process.

💬 Dail Jones: It can happen.

As Mr Jones knows, that is a misrepresentation of what would happen in that case. The legislation states, and we have a lovely flow diagram—an innovation of the Justice and Electoral Committee in various pieces of legislation, to make interpretation of the legislation easier for the lay person—that shows that the Judicial Conducts Commissioner would receive a written complaint, then he or she would acknowledge receipt of the complaint, and notify the judge. The commissioner would not have to provide a copy of the complaint to the judge. The complaint may be minor and the commissioner may not consider it worthy to provide the judge with a copy. However, the judge is always entitled to it. The commissioner would undertake a preliminary examination and either dismiss the complaint, refer it to the head of bench if it is not sufficient to consider removal of the judge, or he or she may conclude that an inquiry is necessary and then would recommend the setting up of a Judicial Conduct Panel.

In the case of a judge who got drunk at a party and offended someone, surely we would have to accept that it is extremely unlikely that that situation would ever go to a Judicial Conduct Panel. It would either be dismissed forthwith, or at the most, would be referred to the head of the bench, and Mr Jones knows that, as well as I do. It is about time that a proper process was set up to deal with these things and have the ability to hear and resolve complaints, so that those complaints are not left to media campaigns and political innuendo.

Mr Jones also made the point that the House has never removed a judge from office, and asked why we need the process now. The Attorney-General dealt with that forcibly when she made the point that if we waited for a crisis in the judiciary before a process was developed to deal with judicial complaint, then we would have a serious crisis. We would have a process that would really threaten judicial independence. It would be policy developed in panic, and we have seen many examples of policy of that nature developed in the House. It has always led to problems and to our having to redo the issue because it was done wrongly in haste, and out of fear, in the first place. The Green Party supports this legislation. We support the development of this process, and we commend it to the House.

I rise for the ACT party in the final stage of this legislation. It has been touted as increasing accountability of the judiciary and providing a complaints process. Indeed, we just heard the member from the Green Party Mr Nandor Tanczos urging what he called the Opposition—it is quite interesting that we are all collectively called the Opposition now; of course, they are the Government.

💬 Dail Jones: They are the Government.

Yes, the member is there, too. United Future is in the Opposition with us, and we welcome it. We are a broad church. We welcome it. The Opposition pointed out that legislation that has been touted as a complaints process is, in fact, simply a complaints funnel. In fact almost all the complaints will simply drop out of that funnel back to exactly where they are now—that is, with absolutely no change. They go to the head of bench, and the head of bench will deal with them or not as the head of bench decides, which is precisely what happens now with nearly every complaint. The only difference is that we have set up a mechanism that will be sitting there as a very attractive opportunity for someone with no respect for judicial independence, and for people who think that there are simple solutions to the question: “Who watches the watchdog?”. This law will now sit there as a standing invitation to make what people will call the simple step of accountability meaningful—in other words, putting someone else in there to decide when a judge’s conduct is unacceptable.

We know that this Government will find a lot of things unacceptable that in a country that respects judicial independence and liberty has previously been seen as a matter of etiquette and judgment—in fact, as a matter that we just endure because we know that once we give people the power to interfere with judges, ultimately it will be misused.

The legislation pretended to be comprehensive. The name of the original bill looks comprehensive, but as far as judicial discipline goes, all it is is legislation around sacking judges—hanging offences, impeachment, or removal. It has nothing to do with the broad run of complaints.

ACT would have been able to support a straightforward reform of the kind that Mr Tanczos urged. If this had been legislation that stated that when an MP moves a motion to remove a judge—something that has never happened in our history—it then gets sent to a process of independent examination and a report back to Parliament so that whatever debate occurs is well informed, we would have supported it, boots and all. That is what we thought was desired. That is what we thought the Minister was talking about when she first started parroting the phrase “judicial independence”. What in fact she has done is to secure a power for her to stop an inquiry into judges and to stop any motion to remove a judge if she does not want it.

She might be in a minority party, as it is now, and every other party in the House might want to remove a judge who has disgraced his or her office, but the Attorney-General can now make sure that she can block that. She has three ways. She appoints the Judicial Conduct Commissioner. She appoints the Judicial Conduct Panel. She can disregard the panel even if it says that removal might be warranted. She can simply decline to initiate, and this legislation takes away the power of any other member to cleanse the stables, or at least to ensure that there is a debate.

That Attorney-General’s power to block the removal of a judge could have had a very simple solution. It could have simply provided, for example, that following the report of a Judicial Conduct Panel there were proper grounds to consider the matter. Any member could move that motion. A very simple safeguard would have meant this was unexceptionable in constitutional terms; possibly only less unexceptionable because the panel then becomes the gatekeeper, but, still, the Minister could have made efforts to secure a consensus around this legislation. This is a constitutional matter, and with her high-handedness she simply ignored the fact that she had only a bare majority cobbled together, by telling the Green members, no doubt, that some nice deal will await them further on for their own political advantage.

This could have been a process that restored the reputation she trashed of the Attorney-General being the highest law officer, the office of the representative of the rule of law in Cabinet. She could have gone some way to restoring that. She lost it over the Supreme Court Act. She could have gone some way to restoring it if she had made even the slightest effort to recognise the concerns of the opposition, as we are now termed—that is, the National Party, New Zealand First, ACT, and United Future, all concerned.

This is not a matter that immediately attracts political attention. We were not grandstanding on this. We were concerned about the precedent. When we are in power we do not want our own colleagues coming to us and saying: “Why not tinker with your judiciary? They did. There’s the precedent. They got away with it.” They will not get away with it. Just as the Government thought that it could, with the abolition of the Privy Council, get rid of a patently independent international umpire and replace it with its own appointees within reach of New Zealand politicians’ appointment powers, and just as that in the end came to cause the Government loss—and it is cited every time people want to refer to the high-handedness of this Government—so, too, this legislation will form part of that pattern.

It does not stop at the Attorney-General’s grasp for the control of power to impeach judges. She has also given herself power to appoint a nearly infinite number of judges. She can stack the judiciary in a way that no Attorney-General has ever been able to do before. She can now appoint part-time judges. There is no lower limit on the extent to which it is part-time. They might be appointed to do a day a week. They are then counted as fractional judges so that when we get one new vacancy this Attorney-General could appoint 10 new judges. Again, she could have reassured us that that was not her intention.

We suggested a very reasonable safeguard. For example, we suggested that there be a rule that no more than 25 percent of judges be part-timers. No, not for this Attorney-General! This Attorney-General seems to want to be sure that when she gets one vacancy she can appoint 10 judges, and up to an infinite number.

That power to stack might seem a far-fetched risk. Why should New Zealanders be any different from the many other countries that have had politicians frustrated with the independence of the bench? Why would we be any different from Australia, where 17 of the first 31 High Court of Australia judges were appointed from the ranks of serving politicians? Why should we be any different from the United States, where Franklin Roosevelt got a bit frustrated with what he saw as the pedantic objections of judges in the 1930s who wanted to protect property rights and state rights, and simply said he would appoint a whole lot of new judges?

That was the reason. Because there is a limit to the number of judges in statute, and it requires an Act of Parliament to change it, so that an Attorney-General cannot simply stack the judiciary. Well, this Attorney-General has found a cute way through it—supported by the Greens. If she gets, say, five vacancies she would be able to produce up to 50 judges. She could create a situation where no new judge could be appointed for generations. I do not think she will do it, and I hope she will not do it. However, she made no attempt to reassure anyone—not the Law Society, the High Court judges who submitted, the Court of Appeal judges who submitted, the civil liberties organisations, or any other party in this House—that that was not her covert intention. The solution would have been so simple. This is an Attorney-General who rightly deserves the suspicion. She is sinister. She is the least-capable and most-sinister Attorney-General this Parliament has seen for many years.

United Future opposes the Judicial Conduct Commissioner and Judicial Conduct Panel Bill and the other bills into which the Judicial Matters Bill has been divided. However, we support the Government’s decision to set up the office of Judicial Complaints Commissioner, which will operate outside the judiciary. It offers a number of positive features. Firstly, it centralises the complaints process. At the moment, complaints are directed to the heads of bench from various courts, the Department for Courts, the Ministry of Justice, and the Attorney-General. As the public gets used to the system, complaints will be centralised in one place. That will result in more reliable statistics on the number of complaints made against judges. The statistics will be able to be objectively appraised, and we will quickly learn of any problems arising within the judiciary. Those matters, no doubt, will be raised with the various heads of bench.

The legislation also makes dealing with complaints the key function of the commissioner, instead of it simply being an ancillary function of the various heads of bench. We will therefore be able to gauge any loss of confidence in the judicial system, and, hopefully, can nip it in the bud. I have no doubt that although the legislation does not have any legislative provisions for the sanctioning of judges—and I will refer to that again shortly—the commissioner will have the ability informally to have quiet words with heads of bench if the commissioner sees some trend occurring, either in a particular judge or among judges, and therefore pass the message on.

But United Future cannot support this legislation, because the Judicial Conduct Commissioner is a stand-alone function, and we believe that that will cause a huge amount of problems for the way that the commissioner starts life. The judiciary does not want this Judicial Conduct Commissioner, and therefore the commissioner will start life behind the eight ball. Winning the confidence of the judiciary, and proving its worth, will be a task that the commissioner finds hard to do when starting from behind.

That could have been avoided with a wider review of judicial processes, especially the appointment process for judges but also judicial training and education, and the amalgamation, particularly, of the complaints function and the appointments function into one body. The implementation of a Supreme Court for New Zealand was a development that screamed out for a review of appointment procedures. For the first time, the Attorney-General has almost total control over the appointment of the judiciary in all levels of our system. The Government, I note, reluctantly has issued a discussion paper on judicial appointments commissions but with no commitment whatsoever beyond simply issuing the discussion paper and receiving the responses. It has done that simply to get the Greens’ vote on this legislation and see it passed. The lack of backbone of the Greens in this respect is very clear.

In turn, National’s approach is nonsensical, constitutionally naive, and visionless. National says that there is no need for the legislation—that it has never been used and therefore is not needed. However, by way of an example National refers to the case of Justice Worley Bassett Edwards, who in 1913 started getting into serious difficulty in the eyes of the profession because his courtroom behaviour had become intolerable. There are reports, even at that stage, in 1913, of his bias towards a female respondent in a particular case but also of his attacks on the legal profession. The Auckland law society—a conservative body, I am sure, at that time—was moved to pass a resolution stating “with deep regret” its conviction “that the administration of justice had been imperilled and public confidence in the Supreme Court shaken by Mr Justice Edwards’ failure in recent years to maintain that judicial and impartial attitude in civil cases which had distinguished the holder of such an office”. An overwhelming majority of Auckland lawyers signed it. What did the Government do? Of course, it sent him to Wellington, thinking that Wellington was a softer touch. But even the then Wellington law society complained about it. This matter was taken to the Attorney-General and Minister of Justice, who, of course, was in a position to move the removal of the judge, but he simply said the Government would not take any steps. Therefore, nothing was done about the judge until he was retired early in 1921 on a full pension with ₤1,000 in compensation.

So for National to say that, effectively, this legislation is not needed is nonsensical. Clearly, if Justice Edwards had been facing this legislation, a public complaint or lawyers complaining to the commissioner would have resulted in an inquiry by an independent body, and, quite likely, a conduct panel would have been formed and the matter would have proceeded.

National also says that the legislation should provide for heads of bench to discipline judges, and that there should be an outline of some of the abilities they have in order to sanction judges—such as censure, counselling, and public apology. However, to do that goes against the separation of powers, and I believe that it is constitutionally naive for National to think that, effectively, putting statutory obligations on judges to censure will do anything but try to fuse the separated powers, instead of keeping them separate. For heads of bench then to be subject to court action because they have not sanctioned, or have not taken or considered taking steps, would be intolerable. It would open up a situation where people sued heads of bench for that, and, also, where criticism was encouraged within the legislative branch of Government of the fact that judges were or were not upholding certain provisions. It seems to me that that is a step we ought to be extremely reluctant to take. I think that the leaving aside of the things that judges can do—the sanctions that they can take as a statutory function—is the proper course.

The National Party’s approach is also visionless. It says that it thinks there should be a review of appointments, but states nothing in terms of what its alternative policy is. Does National support a judicial appointments commission, or has it not even thought about it? What would it do? I challenge National to come up with some sort of policy on this, rather than simply saying that appointments should have been considered. That smacks of the same visionless statements that we see from National throughout, where it is very quick to criticise but very slow to provide any constructive alternative.

Judicial appointments commissions exist in a number of countries—Canada, New South Wales, the Caribbean, and Britain. This legislation was an opportunity to have a commission that would cover appointments, complaints, and an educative function. The opportunity has been lost. Even as notable a figure as the Hon Sir Anthony Mason has recommended independent commissions, and has pointed out that if there is a complaints commission, it is important that it is not simply a commission that does that solely. He said: “If the system of accountability for less serious complaints is sufficiently open and transparent, it will go a far way to satisfying the demand for judicial accountability as long as it is coupled with, (1), a mechanism for handling serious complaints on grounds justifying consideration of removal, and, (2), the provision of education, research, and other assistance to judges. From the perspective of accountability the principal emphasis should be placed on processing serious complaints, and the accountability complaints function should be seen as part of a total function which has as its object the enhancement of judicial performance and judicial services. The fact that a body is intended to enhance judicial performance and services will create a much more positive impression.”

That is what should have happened here. The warnings are there that a complaints process by itself will cause far less acceptance by the judiciary. There was no urgency to put this legislation through before the whole area of judicial appointments was considered. The Government should have got the discussion paper out sooner, it should have waited till it had run its course before going ahead with the Judicial Conduct Commissioner, and it should have issued the statutes in conjunction with the creation of a judicial appointments commission. The way that the Government has gone about it seriously undermines, and will seriously undermine, the effectiveness of the Judicial Conduct Commissioner, because of its rashness.