Judicature Amendment Bill (No 3)

I move, That the Judicature Amendment Bill (No 3) be now read a first time. I propose that this bill be referred to the Government Administration Committee for consideration. An effective and accessible court system is a fundamental part of any democratic society. It provides citizens with the confidence of knowing that justice is being delivered and that the rule of law is being applied by the courts. In order to achieve public confidence, it is the Government’s responsibility to ensure that the courts remain effective and accessible to the people of New Zealand.

Achieving a court system that encourages public confidence requires a number of conditions to be present. Those conditions include timely and fair court procedures. The courts need to be responsive to the needs and expectations of the public. However, to be responsive and timely the courts need sufficient court resources to deal with the mounting workload they face. This bill is aimed at helping the court system, in particular the Court of Appeal, to remain responsive and timely by alleviating the increasing workload pressures of the Court of Appeal, as well as effective and accessible by increasing access to New Zealand’s final appellate court, the Supreme Court.

This bill is in two parts. The first part deals with issues relating to the Court of Appeal and its workload. The second part covers issues arising from the establishment of the Supreme Court, and some technical amendments. The Court of Appeal is, and will continue to be, New Zealand’s principal appellate court. In practice, most appeals are resolved at this intermediate appellate level, rather than at the Supreme Court. Its role of error correction and development of the law will continue, especially in those cases that do not raise any significant public issue and thus do not warrant a further appeal to the Supreme Court.

The Court of Appeal is facing heavy workload pressures. These pressures exist in criminal appeals due to recent legislative changes and in civil appeals, which are becoming more complex. The result is that a growing number of appeals are waiting to be heard. Without additional judges this trend is predicted to continue, leading to negative impacts on timeliness and a corresponding erosion of justice. The last increase in the number of permanent Court of Appeal judges occurred in 1987. The bill will provide for up to two additional judges to be appointed to the Court of Appeal, increasing the maximum number of permanent Court of Appeal judges from seven to nine, including the President of the Court of Appeal. The increase will help ease the escalating workload of the Court of Appeal, ensuring continued timely access to justice. This relief will give the Court of Appeal sufficient time and opportunity to give adequate consideration to the complex issues before it.

The bill also provides for a more efficient use of judicial resources to further aid the Court of Appeal in facing its demanding workload. Some flexibility will be introduced into the way in which the Court of Appeal judgments can be delivered. The relevant provision in the Act is currently interpreted by the courts as requiring judgments to be delivered by any two judges of the Court of Appeal in an open court. This requirement takes up the valuable time of the judges, especially when a judgment is delivered to an empty courtroom. Currently, both the Supreme Court and the High Court are able to deliver their judgments in open court or through the registrar. The Court of Appeal does not have this flexibility. The bill will bring the practice of the Court of Appeal into line with the Supreme Court and the High Court, enabling the manner in which judgments can be delivered to be determined by the court rules.

Increased access to the Supreme Court is achieved under Part 2. The path to the Supreme Court from decisions of inferior courts has been limited by the decision of the High Court being considered final, unless leave to appeal to the Court of Appeal is granted. If the Court of Appeal allows an appeal, the Court of Appeal’s decision is substituted for the High Court’s decision and is final. This finality means that there is no opportunity for a further appeal beyond the Court of Appeal. The bill will remove this limitation, enabling parties to seek leave to appeal a High Court decision on appeal from an inferior court either to the Court of Appeal or, in exceptional circumstances, to the Supreme Court directly—and I am sure that Mr Worth will see this as a very, very worthy amendment.

Part 2 also contains two amendments of a technical nature. A reference to the Privy Council in section 65 is removed, and section 68, which refers to “inferior courts of extended jurisdiction”, is repealed as such courts have not existed in New Zealand since 1913—which is about the time Mr Worth entered law school. The amendments in the bill will help to ensure that the New Zealand court system remains effective and accessible to all New Zealanders. I commend this bill to the House.

I am grateful for the flattering comments that the previous speaker made about me, but I would just like to say, in a measured, quiet way, that this bill is a gross abuse of parliamentary process. Why do I say that? The reason is that this bill is to be referred to the Government Administration Committee. As you know, Mr Assistant Speaker, as other members of Parliament know, and as the people in the crowded public gallery know, Parliament has subject select committees.

Bills are referred to these so-called subject select committees based on the knowledge they have. We have, as one of those committees, the Justice and Electoral Committee, which deals with issues relating to the very questions in this bill. But what is the Government going to do? The Government is to refer this bill to the Government Administration Committee. I do not know who outside this House knows what the Government Administration Committee does. But let me just say what it does do. The green book I am holding up at the moment, the Standing Orders of the House of Representatives, states, under Standing Order 188, that the Government Administration Committee is responsible for “civil defence, cultural affairs, fitness, sport and leisure, internal affairs, Pacific Island Affairs, Prime Minister and Cabinet, racing, services to Parliament, State services, statistics, tourism, women’s affairs and youth affairs”.

So how come this bill, which is all about judges and judicial administration, is being referred to a committee that knows nothing about this area—a committee that has no skill and is not interested in the very issues this bill is about?

Behind me is Lindsay Tisch, who is a hard-working and very conscientious member of Parliament.

💬 Lindsay Tisch: But not a lawyer.

As he said, sadly, he is not a lawyer. Yet he is to be burdened with looking at the merits of this legislation—legislation that I would say is completely without merit.

Do members know why all of this has come about? The reason is that at the moment, in this most curious set-up that characterises the Labour Government, three people are responsible for the delivery of the justice portfolio. The first, obviously, is Rick Barker, a trade unionist from the East Coast. He knows nothing about justice. We have Philip Goff, who is a political scientist, and we have Michael Cullen, who is an economic history teacher. In a way, that says it all. Something that is really important, that is all about judicial administration and access to justice, is to go to a select committee that knows absolutely nothing about those issues.

So what is the Judicature Amendment Bill (No 3) about? Why does National oppose this bill so strongly? It is not a big bill. It is only a few pages long—in fact, it has only eight sections—yet it is seen as somehow really important. Is that not bizarre, when there is a whole lot of material that is really important for Parliament to get through before this sick and dying Government is finally disposed of? Why are we bothering with this at the moment?

This bill is about three things. First, it is about increasing the number of judges in the Court of Appeal. I have said, and I have been oft quoted on this issue, that the judges of the Court of Appeal are workhorses. I am in no doubt at all that they are under incredible pressure. I have said that the workhorses of the Court of Appeal can be contrasted with the show ponies of the Supreme Court. Those in the Supreme Court sit indolently, waiting for cases to come to them. Those in the Court of Appeal work determinedly in a setting of confraternity. The first thing this bill does is increase the number of judges in the Court of Appeal. I suppose one would say that the second thing is a minor point, if one did not really reflect on what justice is all about.

The second thing is that the requirement for Court of Appeal decisions to be given in open court has been removed. At the moment the judges of the Court of Appeal give a short summary of their reasons in open court. They do not want to do that. I find that a bit odd. These are full-time justice employees. There is no reason, where their place of business is the Court of Appeal, that they cannot front up when they have worked hard and determinedly on their decisions, to give their decisions in summary form in the Court of Appeal. The Government has decided that privilege should be taken away from them. That is a sadness. I have always believed, as Justice Brandeis said many years ago in the United States Supreme Court, that sunlight is the best disinfectant, that there is an overwhelming need in matters relating to justice that issues should be openly decided and decisions given in an open way. This Government is running away from that. It is unnecessary. It is wrong in principle.

The third issue relates to allowing District Court decisions to be appealed to the Supreme Court. That is a bit of a change. We have a hierarchy of courts in New Zealand. We have the District Court, the High Court, the Court of Appeal, and the Supreme Court. This plan is to allow decisions of the District Court to go through all of those tiers. The received wisdom around the world in Western democracies is that there should be two rights of appeal only. Yet this Government, for no good reason, and with the significant added burden of cost, is planning that these additional rights of appeal be given. Why would it do that? What does Russell Fairbrother think? He is a competent criminal lawyer who has been overlooked in the present Parliament—a man who has something to offer, but has been muzzled in an utterly unfair way, and who has been made the lackey of the Attorney-General; an Attorney-General who has no legal qualifications at all.

Only once in our whole history have we ever had an Attorney-General who was not legally qualified. That was from 1932 to 1933. The then Prime Minister temporarily assumed that particular position. Dr Cullen has apparently decided that he wants to be the Attorney-General. Without any legal training at all, he wants to be the chief legal officer. I have a real problem with that stance. [Interruption] We are about to lose a Minister from the House, and we are about to lose a quorum. No, we are not. The Minister has glided from one position to another, to be with his close friends in United Future.

I say to the Minister, and I hope he listens, that the Government’s response to issues of court administration, and problems with court administration, has been simply to appoint new judges. We should resist that, because judges are there to try to decide cases. They are not there to be sucked into the minutiae of court administration. Mr Barker does not know that. Why would he? Why would a trade union official from the East Coast have any sense of these issues at all? I am watching the Minister as I address these words to him. I see the glint in his eyes as he tries to respond to what I am saying. Why would the Minister not see the inherent truth in this argument? What has happened over the years, over a period of successive Governments, is that the civil service career of court administration in the ministry has been made unattractive. The answer, I say to Mr Barker, the East Coast trade union official, is not to create more judges. Instead, it is to improve the system; to create pathways and a career for court officials that is worthwhile.

Debate interrupted.