Appointments — Judicial Conduct Commissioner

I move, That, pursuant to section 7(2) and clause 1(1) of schedule 2 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, this House recommend Her Excellency the Governor-General to appoint Ian Leslie Haynes ONZM, of Auckland, as the Judicial Conduct Commissioner for a term of 5 years commencing on 1 August 2005, having noted that the Attorney-General advises this House, in accordance with section 7(3) of the Act, that the Chief Justice has been consulted about the proposed appointment.

The principal Act was passed last year, but it does not come into force until an Order in Council has been passed. My predecessor as Attorney-General received universal cross-party support for the appointment of Mr Haynes as Judicial Conduct Commissioner, but he is unavailable to take up the position until late July this year, hence the delay in the process.

Mr Haynes is a very senior lawyer. He has been a partner in Kensington Swan and its predecessor firms for something over 35 years, a specialist in commercial property law, but also in a range of other areas. He has a special interest in the reform of the profession, and professional ethics, and was president of the New Zealand Law Society from 1997 to 2000 while the New Zealand Law Society reform model was pushed through with the support of the district law societies. So I think that Mr Haynes is eminently qualified to fulfil this role, which is designed to be the first port of call for all complaints about judges in the future.

On behalf of National I indicate support for the appointment of Ian Leslie Haynes, an appointment made under the Judicial Conduct Commissioner and Judicial Conduct Panel Act of 2004.

This legislation has been generally in place for almost a year, but—and this has been made clear—National members judged that legislation to be a complete mishit, and strongly opposed it. There were a number of good reasons for that. The key reason was that the primary focus of the Act was, and is, a more formal structure for the removal of judges, yet we have never ever removed a judge, and there is already an established pathway for the removal of judges. That is contained in the Constitution Act, in section 23, “Protection of Judges against removal from office”, which provides that no judge shall be removed from office except by “the Governor-General, acting upon an address of the House of Representatives …”. So there was no need for this legislation, and, of course, if this legislation had not been passed, there would be no need for the appointment of the first Judicial Conduct Commissioner.

Legislation should be remedial in nature. It should seek to deal with a mischief, and the short point is that there is no current mischief relating to judicial conduct justifying removal from office. It is interesting to reflect that the Justice and Electoral Committee received advice that it would be within the scope of the bill to provide a range of sanctions falling short of removal from office, such as censure, public apology, or required counselling. But the Labour Government was not prepared to make such changes. Many complaints about judges would not seek the sanction of removal from office; they are complaints that fall well short of that threshold. But the role of this Judicial Conduct Commissioner is to investigate complaints with a view to a process being followed that might result in the removal of such errant judges. Small wonder, then, that the judges expressed real concern that this was a threat to their judicial independence.

I do not doubt that there are cases where judicial conduct causes concern to parties, to witnesses, to lawyers, and to the public. But the Act, despite its name, is not about that at all; it is about setting up a process to remove judges from office. As I have said, the Act contains glib references in section 4 to protecting the requirements of judicial independence, when, in fact, it does completely the opposite.

Who is Mr Haynes? He was the second employer of Simon Power, who is the ever-competent senior Opposition whip seated alongside me. But Mr Haynes can probably point to a track record that is even better than that, because for a long time he has been a commercial partner with Kensington Swan, specialising in commercial property and commercial matters. He is well known throughout New Zealand courts as an expert witness; he gives evidence in property-related litigation matters, for instance. I certainly know of his commercial acumen and expertise in drafting and interpreting contracts. He is well known and respected in Law Society circles both in New Zealand and internationally. He is a past president of the New Zealand Law Society and of the Auckland District Law Society. He is, it is fair to say, the architect of a model for the governance of the legal profession, which is contained in the Lawyers and Conveyancers Bill—a piece of legislation that will probably bite the dust today. So here we have a man with formal legal qualifications matched by substantial legal experience, a former president of the Auckland District Law Society, a former president of the New Zealand Law Society, a fellow of the college of law practice management of the University of Denver, a council member of Lawasia, and a member of the executive committee of the New Zealand Law Society’s property law section.

It is possible that on assuming office as the next Government in September 2005 National will look to review this legislation—will look to take a more principled position in respect of judicial complaints and judicial appointments. That might bring Mr Haynes’ short career in this particular office to a close. It would be a happy outcome, though, to have had the opportunity to judge his performance in this role.

So it is that National supports the appointment of Ian Leslie Haynes, Officer of the New Zealand Order of Merit, to this high, exalted, but completely unnecessary station.

New Zealand First opposed the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, and we still do not support its principles. We have made it clear that, on a change of Government involving New Zealand First, this Act ought to be reviewed. However, the Act is the law and it must be given effect to in one way or another. The appointment of Ian Leslie Haynes as the Judicial Conduct Commissioner has the support of New Zealand First, although whether the appointment will be for a term of 5 years remains to be decided after the outcome of the next election. Mr Ian Leslie Haynes is highly regarded amongst all members of the legal profession, and, I would say, in the wider community as well, and he has the support of New Zealand First in this position.

I want to make just a few comments on behalf of the ACT party. We will not oppose this provision, but we do have some reservations with regard to it. Although I do not say that the judiciary cannot be subject to checking, it seems to me that these sorts of measures have a measure of political correctness.

I raise this point as well. I am sure that Mr Haynes is an excellent person, but it appears to me that his CV lacks court experience.

💬 Dr Richard Worth: That’s so.

Mr Worth tells me that that is so. Well, it does seem a bit odd that the person we are appointing to comment about the conduct of judges will do so from the point of view of a lack of knowledge. I assure the House that within the legal profession there is a split between those who operate in the courts—and they are very few; I used to be one of them—and those who do not. Frankly, those who do not do not realise what it is like—any more, I think, than it would be a good idea for many barristers to be doing conveyancing.

I am a bit concerned. It makes me wonder about this position. If the Government started looking—as no doubt it did—for someone with court experience and could not find someone with court experience who was prepared to fill the position, surely that is sending it a bit of a signal that perhaps this is not the right way to go about it. I have some concerns.

I will express just one more, which is more a personal concern than one of the ACT party, and fits in with an earlier comment. I think the whole country has too many commissioners, and here we are appointing yet another one.

Motion agreed to.