Estimates Debate — Vote Attorney-General

I have been a lawyer since 1976. Essentially, that is all my working life. I cannot remember any time when the independence of the courts and the openness, or the sunlight, we expect to be the disinfectant for our courts has been more at risk. The Attorney-General, I believe, is completely uninterested in this portfolio. The Attorney-General was put into this portfolio because the Labour Government could not find anyone else it could trust, but the Attorney-General needs to look into what the useless Minister of Courts is doing to uphold justice in this country.

At the moment I have a case where I have been trying to gain access to a court file since 4 July. My office called the Auckland District Court and asked whether it could find the reasons for a judge’s sentencing. I should explain the case very briefly. A young man with four children and no criminal record caught a burglar at night. He caught the burglar after a fight. He took the burglar to a service station—he dragged him there, in fact—and the service station workers called the police. He confidently expected that the police would interview them and deal with the burglar. It turns out that the burglar has never been charged or even questioned. Instead, our man was arrested. After seven court appearances, and missing work each day he appeared, he was discharged without conviction on the condition that he pay a fine or pay an amount to the Salvation Army, I believe. This is what I understand to have happened, because I have not been able to see the file.

Our justice system once boasted that it was open and transparent, and that everyone could see that justice was being done. When I asked for the file, the court registry told me that it would have to refer the request to the Minister for Courts—political vetting of access to justice. I waited and, 5 days later, I asked the Minister for Courts when this protocol or policy had been adopted. Ten days after the first request, I was told that the question would be referred to the judge. I still do not have either the file or an answer.

I went to the District Court in Auckland to try to gain access to the file, and I was denied. I was told that the judge was considering the request. Why do I want to find out? It is because it appears to me that both the police and the judge omitted to consider one of the fundamental rights of New Zealanders: the right of self-defence. It appears to me that the judge forgot completely about the right of citizen arrest, which is clearly set out in the Crimes Act and has never been repealed. It appears to me that the judge is part of the justice establishment that this Government feeds and that thinks people cannot be trusted with the rights they once had, that believes that only the police should be allowed to stop crime, that says people are foolhardy and tells them “Don’t be a hero.”, and that urges them to allow the crime wave to go unabated.

The judge in this case still has not come back to me, so I got in touch with the—

The CHAIRPERSON (H V Ross Robertson): The member needs to deal with the proposed expenditure of this vote.

This vote is Vote Attorney-General. The Attorney-General is the chief law officer of the Crown and is responsible for making sure that politicians do not trash the rule of law. What I see is that politicians in this Parliament, including the Minister for Courts, are presiding over political censorship of access to court files. The Minister gave me no answer when I wrote to him and asked where this protocol was, and why it was being invoked. The Chief District Court Judge has tried to persuade me that it is a mistake, but I have received nothing in writing from the Chief District Court Judge. I have received nothing whatsoever to satisfy me that this is not something that is endemic throughout this Government.

Elections are exciting times, because sometimes we put an end to the meaningless drivel that passes under the guise of informed knowledge. If that man had had any legal training at all he would know that, since time immemorial, files and court decisions are the property of the judge. So one goes to the registrar, or now the court manager, and makes an application.

💬 Stephen Franks: Which is exactly what we did.

No, one makes an application to the judge—not to the registrar, not to the Minister for Courts, not to the Minister of Finance, not to Rodney Hide, not to the Truth newspaper, not to one’s wife, but to the judge—and one asks to peruse the file. One states one’s grounds, and the judge considers whether one is being a nosy parker, a political troublemaker, or someone who has a legitimate interest and concern.

Of course that man, who once claimed to have a practising certificate—and in a few months’ time he may need it again, but he may find he has trouble in having it awarded, what with the drivel that now seems to emerge from his mouth, because there are standards these days for practising in law—will learn when he goes back to the Bar that legal aid may well be the only source of income he will find. His erstwhile clients, who previously paid out large bills without having insight into the advice they were getting, will no longer cough up after having read the parliamentary debates and the contribution made to them by that man. Instead, he will have to front up. The public will hear every word he utters in open court and they will say they will not have that man on legal aid, because they can do a better job themselves. They will say that there is no merit in the defences advanced on their behalf by that man, and that he should usher himself back off to the Securities Commission.

The CHAIRPERSON (H V Ross Robertson): Order!

But this is an important debate about the estimates for the Attorney-General. It is not one that should be trivialised by the meanderings of a lost left-winger, looking for a soul on which to attach his conscience. The Attorney-General sits as the titular head of the Law Society. He is not answerable to every want and every scurrilous, prurient concern of a constituentless member of ACT; he is there to administer the law in a political sense and in a titular, legal sense. The Attorney-General takes advice, of course, from the Solicitor-General. He discusses matters of operational efficiency with the judges, but he leaves the running of the judiciary entirely alone.

The fact that the member knows nothing of the separation of powers is a reflection on him, not on the Attorney-General. The fact that the member needs an education on the role of the Attorney-General should not be a charge on the estimates of the Attorney-General. The Attorney-General should not be required to come to this Chamber to teach that member what he should have learnt 45 years ago in law school—that is, assuming he went there at the age of 30. When I read through the report on Vote Attorney-General, I note that the member was on the Justice and Electoral Committee, which considered the vote. The matters he raises now, of course, were not raised boldly by that member when the Attorney-General came to the select committee. They were not raised boldly when the staff from the Solicitor-General’s office were there to answer those penetrating questions. No, the member carefully avoided the embarrassment of being told what the law is by people who know the law. Instead he stands up in this Chamber, while some people in New Zealand are listening to these proceedings by radio, and he expounds a line of drivel that the Truth newspaper stopped printing many years ago, when its circulation dropped to below 2 percent.

I endorse Vote Attorney-General. The previous speaker, who was once a lawyer, can point to no area in this vote that is unjustified. If he were to bring himself to the issues, he would find that he would be better off to sit down and retain what seat he has left. I support the vote.

I was not going to take a call on this vote, but I listened to Mr Fairbrother, who is a lawyer. I, too, am a lawyer, and I can see that Mr Fairbrother is actually incredulous about what has occurred, so let me spell it out.

Mr Fairbrother is absolutely right. Judges in New Zealand should not take instruction from Ministers. We have a separation. We have the executive, we have a legislative branch, and we have the courts. What happened in this case is that a member of Parliament, quite properly I tell Mr Fairbrother, applied for a court record of a case. Now, that record does belong to the judge. But the tradition in this country is that we have open justice, so judges make court files available. They do not turn a request down because the person who asked for it is, as Mr Fairbrother said, a troublemaker. Because that would mean that the media, for example, should not be able to get it.

To give proof of this, Mr Franks has just handed me a paper, which is the acknowledgment of the application made quite properly by Mr Franks. What happened in this case was that it was an embarrassing one for the judiciary. It was a particular case where a person took action to protect property and as a result ended up being arrested. The villain who was stealing the property was let off by the police.

I can see that the judge might have been embarrassed about that becoming public, but that was not a reason not to make it public. But what happened in this case was that the registrar, no doubt acting on instructions from the judge, wrote to the Minister for Courts and asked: “Can I release a file to a member of Parliament?”. That was a direction. Now the question we are asking is, what has the Attorney-General done about it? What the Attorney-General, Mr Cullen, should have done—and he is not a lawyer, and perhaps he does not know this—was say to Mr Barker, who is also not a lawyer, “This letter is quite improper.” He should have asked Mr Barker whether the Minister for Courts was now directing how justice in New Zealand was being run. Because justice in New Zealand should not only be done, but it should be seen to be done.

Instead, what we had was a junior backbencher getting up and saying: “These allegations are so outrageous they couldn’t have happened.” Well, actually, I tell Mr Fairbrother—I realise he was thrown into this matter—if he comes across here he will see documentation that shows that what Mr Franks has said is absolutely correct. He asked for the file—and the registrar of the court, instead of making it available, wrote to a Labour Minister for Courts and asked: “Can I hand over a file to a member of Parliament?”. That is constitutionally an outrage.

What is even more outrageous is what happened when we raised this matter in Parliament. Mr Fairbrother gets up, and in effect defends the indefensible. Where is the Attorney-General? What is the point of an Attorney-General if he is not prepared to uphold the constitution? I think it is a sign that when one makes the Minister of Finance, who is totally overloaded—he cannot even write a decent Budget—the Attorney-General, one sees the quality of law in New Zealand, the fundamental obligation of the Government, being undermined.

I cannot imagine, or cannot think of, a former Attorney-General who would not have taken the first opportunity to get up in the House and say that this was constitutionally improper, apologise to Mr Franks, apologise to this Parliament, and then apologise to the people of New Zealand that we now have Mugabe-type justice being done in secret, and when the Opposition asks questions, they then get directions from a Minister. I say to Mr Fairbrother: “Shame on you for defending such outrageous behaviour!”

Of course what that member skilfully avoided saying was that the Minister for Courts did not reply, as Mr Franks told us in his preceding speech. So there was no interference by the Minister in the actions of the court. The fact that a clerk may be mistaken, if the allegation is correct, and write a letter that is not acted on by the Minister does not make for interference by a Minister in the judicial process. If this was, in fact, a well-intentioned inquiry by the member of Parliament, he would have then written to the head of bench. Because the member sat on the Justice and Electoral Committee when the whole issue of judicial performance was considered, he knows entirely the steps to take in order to get that which he requires. Of course, judges, after due consideration, are not obliged to make available to the public for their prurient interests, or their political interests, that which takes place in a court. The fact that the matter was dealt with in court, and was not appealed or reviewed by the prosecution, suggests that the issue that that man is now trying to build is quite out of proportion to the facts of the case known by both the prosecutor and, clearly, the defence, and by the judge. So we have once more an issue of perception and of factual reality that is quite different from that now being advanced in this Committee.

I seek leave to table the documents that Mr Fairbrother has just asked for, including a letter to the Chief District Court Judge, raising exactly the points that the member urged be raised.

Documents, by leave, laid on the Table of the House.

Vote agreed to.

Vote Finance