Justices of the Peace Amendment Bill

I will speak for the 7 minutes that Te Ururoa Flavell had remaining.

💬 Mr DEPUTY SPEAKER: The member is welcome to have a new call.

I raise a point of order, Mr Speaker. Can you just explain to the House, so that we are clear, that if the Māori Party takes a second call, which this shall be adjudged to be, does that impact adversely on other parties that have not yet had a call?

💬 Mr DEPUTY SPEAKER: Of course it will, unless leave is sought.

Through you, Mr Deputy Speaker, would it be timely for me to suggest to the Māori Party that it seeks leave to continue Te Ururoa Flavell’s speech, using that time?

💬 Mr DEPUTY SPEAKER: No, Te Ururoa Flavell has already spoken. That is a speech. We have 12 speakers on this one. I have asked for a member to call. It may upset the proportionality if everyone takes their call and Dr Sharples has already had a go. Who wants the call?

I seek leave to take a 6-minute call on this bill.

💬 Mr DEPUTY SPEAKER: This is in addition to the 12 speakers. Leave has been sought for that course to be followed. Is there any objection? There is.

I will take a line from Lindsay Tisch’s quote from Henry VIII and assure members that I will not keep them long.

I rise on behalf of New Zealand First to indicate that we will support this bill. I know, from all the discussions that have been had around the House amongst all parties on this Justices of the Peace Amendment Bill, that there is unanimity on it and everybody is looking forward to progressing it.

One of the things I found a little challenging when I became a fresh new MP was the number of people who came to my office asking—

💬 Christopher Finlayson: A long time ago!

A little while ago. I still consider myself to be a new MP, actually. I was often approached by people who wanted to become justices of the peace. I have often found myself in the situation of trying to determine whether people wanted to be justices of the peace because they wanted to do good in the community, or because they simply liked the idea of having the initials JP after their name. It also became apparent when I had discussions with other members of Parliament who had been here longer than me and who had wrestled with this problem, that not only was it a question of who should be nominated, the number, their age, and their suitability in terms of their background that gave MPs some angst when they deliberated on these questions. The other question was how we encourage justices of the peace to leave the job when their time is clearly done. I guess, to be fair, that is a question that is often asked of MPs in this House: is it not time one considered another career; is it possible one has contributed all one can in this House and is it time for fresh, young blood to come through? I see that within the National Party there is now a whole line up of fresh, young, highly qualified blood. We will probably see a moving of the old guard very, very soon as they seek to adjust themselves from the back cross-benches forward into the front two rows. Maybe Mr Carter will go back to farming and Tony Ryall will find solace in his new relationships in life and find life more comfortable in another part of the world—I do not know. But renewal and rejuvenation is a question we all face, whether here or in our professions outside of Parliament, and that, too, is a question asked amongst those who serve the community as justices of the peace.

I think the proposal in the bill that people who complete their term as a justice of the peace, who step down and assume the position of a retired JP, be allowed to keep that title is a very good proposal. It is an enlightened proposal that lends some dignity to those people in terms of the service they have given to the community. It recognises that service, allowing them to move out of the field and allowing new people to come through.

I refer now to the matter of training. I think we have all sat in Christchurch—I think I have seen David Carter there, I have definitely seen Ruth Dyson there, and I have seen Lianne Dalziel and Gerry Brownlee there—and had discussions with justices of the peace on numerous occasions. They have often expressed their desire to see formalised training put in place and have expressed concerns that the issues they deal with nowadays are far more complex than those they were asked to deal with when they first took up their appointments some 20 to 25 years earlier. The final recognition that training needs to be formalised and that a formalised career path needs to be established is, I think, something that needs to be discussed and dealt with in the select committee. A number of members from across the parties were talking about this bill only today, and it was pretty well agreed that we saw nothing controversial in it. We saw agreement right across the floor, and there was general agreement that we need to progress the bill as quickly as possible through the select committee and back to the House. We need to get it enacted and get the work completed. That said, I thank you.

Like the previous speaker, I am rising to outline my support for the Justices of the Peace Amendment Bill. I think it is a good bill and that it does some things that are well overdue, as Mr Mark indicated.

First of all, it requires all newly appointed justices of the peace to undertake training before taking the oath, and that is important. Secondly, it introduces a new disciplinary regime to enable a justice of the peace to be removed or suspended from office on serious grounds. It also provides for disciplinary action, other than removal or suspension, to be taken against justices of the peace. That is appropriate, because for some behavioural issues some kind of action is needed other than removing a justice of the peace from office. Thirdly, the bill enables justices of the peace who have served the community but who wish to withdraw their services and retire to use the designation “JP (retired)”.

Moving to some of the specifics of that, the section that empowers the Governor-General, on the recommendation of the Minister, to remove a justice of the peace from office, gives the criteria that the person is unable to perform his or her functions, has neglected his or her duties, has been convicted of an offence punishable by imprisonment, has become bankrupt, or has failed to comply with a requirement under section5D(1) in clause 5. But it states that the Minister must not recommend the removal unless the Chief District Court Judge has been consulted and has recommended the removal or suspension. That is quite a strong safeguard, I think. It assures JPs that those powers will not be misused, and I think that is appropriate.

The Governor-General may also direct the Minister to give the justice of the peace an official written rebuke, or to require the justice of the peace to apologise to a particular person or people for behaviour, to undertake training in an aspect of the performance of his or her functions, or to receive counselling where disciplinary action is to be taken but where the behaviour does not warrant suspension or removal. As I said, it is good that those lesser sanctions are available. Again, the Governor-General acts only on the recommendation of the Minister, and the Minister has to believe that the justice of the peace has behaved in a way that is inappropriate, undesirable, or otherwise, in relation to the exercise or performance of his or her judicial powers or functions. So it does not have that necessary sign-off by the Chief District Court Judge.

I understand why it is necessary to apply this provision so that it relates to behaviour other than in relation to the exercise or performance of judicial powers or functions. The provision is similar to what we have for judges, of course. But it does leave me wondering, because one issue that is still to be resolved is the accountability in relation to behaviour by justices of the peace that is undesirable but relates to the exercise of their powers or functions. Let me say really clearly that I think justices of the peace by and large do a very good job; I think they play a very important role in the community and in the justice system. I know many JPs, and I think they all deserve the thanks of both the House and the country for the very significant work they do. But I am also aware of some justices of the peace—and I think they are a minority—who essentially are nothing more than a rubber stamp for the police when it comes to things like the issuing of search warrants.

It is partly the fault of the law that it allows hearsay to be the basis of a search warrant. There is generally no possibility for people who have had such a warrant being used against them to really examine or challenge the grounds under which the warrant was made. Of course, this bill in no way addresses that, and I really do wonder how we can hold JPs to account in those circumstances, because we see essentially the police having what is almost like a pet JP to whom they go to get a search warrant when they want to execute one. They will get it very quickly and on the basis of, I think, inadequate evidence—and I have seen that happen. So I think that is an issue, but this bill clearly will not address it.

That is one of the issues the House has to turn its mind to, and it is one of the reasons I think the Health Committee actually requested the Justice and Electoral Committee to hold an inquiry into the use of search powers by the police. It is an area that has very little oversight. Section 3B, inserted by clause 4, does not address that, but it does require newly appointed justices of the peace to undertake training provided by the Secretary for Justice before they take their oaths—and I am aware that justices of the peace who exercise those kinds of judicial functions already have to do training. I think it is good that justices of the peace across the board have access to better training. Their own request for that was highlighted by Ron Mark, who spoke previously in the debate. I think that the judicial functions that are being exercised have become more complex, as well. Of course, it raises some issues in relation to the Criminal Procedure Bill and what the House intends to do in relation to deposition hearings, where justices of the peace play a significant part.

The last thing I will touch on is just to repeat that section3C in clause 4 empowers the Secretary for Justice to authorise retired justices of the peace who have served for 10 years or more to use the designation “JP (retired)”. They have to apply to the Secretary for Justice for the authority, and the secretary must give that authority unless satisfied that before retiring and without reasonable excuse the justice of the peace abandoned or failed to perform the functions of the office, retired while suspended, or retired in order to avoid being removed, suspended, or otherwise disciplined. I think those are obvious safeguards.

So by and large, I think the Justices of the Peace Amendment Bill deserves the support of the House. It brings in some things that—as has been said—JPs themselves have been asking for that will help to improve the way JPs function across the board, even though it may leave untouched some things that this House, I think, needs to address.

I want to speak in favour of the Justices of the Peace Amendment Bill from a couple of points of view. Firstly, I speak as someone who over a reasonable period of time in this House has nominated a number of people to be justices of the peace, and who has seen some rather—as I am sure other members have too—extraordinary stories presented as to why someone should be appointed. Secondly, I speak as someone who has actually had the privilege, as a Minister, of appointing justices of the peace and who has therefore had a little to do with what they actually do.

If I can take the first point first, it has always struck me that in the absence of legislation of this type, there has been a certain uncertainty and ambiguity about the role of justices of the peace. Many of them have been putting themselves forward for good and noble reasons, but many have also put themselves forward on the basis of some self-flattery and determination to gain a status in the community that requires them to do very little. I recall one individual who came to see me once. I asked him whether he was interested in doing any court work and he said yes, that was his great passion. I asked him what his experience was, and he said he watched a lot of television and was familiar with courtroom procedure from having watched Boston Legal and that type of show. The sad thing was that he was deadly serious.

💬 Hon Tau Henare: There’s nothing wrong with Denny Crane.

No, that is not a qualification for a justice of the peace in New Zealand.

I also recall one—probably unlamented—former Labour MP who, on the day before the 1990 election, when I was the Associate Minister of Justice looking after JP appointments, came into my office with a list of that person’s campaign committee and all their filled-out JP nominations. The MP expected me to appoint them then and there, on the spot. That person’s parliamentary career ended 24 hours later, and those nominations never proceeded beyond that. I think that is the downside of this issue. There is an important role for justices of the peace, but for too long they have been seen as either elderly, semi-muddled people or do-gooder enthusiasts who rush around and preside over deposition hearings and do not do much else.

In my electorate we have a very large number of JPs. One of the constant battles I face in nominating people is that I am always told I have far more JPs than is the accepted norm. The problem that I constantly encounter is one of people wanting to get access to one of that large number of justices of the peace, and finding the justices of the peace are too busy, on holiday, or do not do that sort of thing any more. I am delighted, in fact, that an active group of local JPs has now, through my electorate office, set up a regular clinic where we can provide for the needs of people who require the services of a JP.

All of that brings me to say that the provisions in this bill regarding the retirement of JPs—both the ways in which they can be retired and the status to be accorded to them once they retire—are long overdue. I can think of many, many justices of the peace who vigorously cling to their title, but who have no desire to do anything associated with the role. In some cases, that is because they are too old or too infirm, or do not live in the area any more. Those people would welcome the opportunity to style themselves “JP (retired)”. That would, hopefully, then free up a slot for others who are more active and who would take a greater role in terms of the traditional witnessing of documents, some of the services associated with the police—nominated witnesses, and those types of things—and the increasing use of justices of the peace in the early stage of court hearings. This bill is a rather elegant way of addressing what has been a longstanding problem.

I think the bill also provides a level of status for justices of the peace that indicates their role has some point in the justice system. For a long time they have felt they were the proverbial spare part used from time to time in a very junior or menial role, and then readily discarded when others came along who had greater expertise. I recall the proposals some years ago to do away with justices of the peace and bring in what I think were to be called community magistrates, to get around the whole issue of the role that justices of the peace perform. The proposal did not go very far, because a number of JPs felt very strongly about the fact that they would be disenfranchised, but it did put some focus on what they actually did. I am pleased to see that over subsequent years, successive Ministers have had a focus on appointing younger and more active JPs than had been the case previously.

I think the provisions contained in the bill regarding the JP (retired) title are a neat step forward. I do have a mild concern, however, about some of the conditions under which that title may be taken up. It concerns me a little that, for instance, JPs may be able to use the title if they have left the office in somewhat less than appropriate circumstances. I would have thought that we need to be very clear about that, but some of the provisions in new section 3C, inserted by clause 4, are not entirely clear in that respect. I think the select committee may need to pay some attention to that.

But on the whole, this is a good bill. It is one the JPs themselves have lobbied for, for some years. I think it squares the circle, in the sense that it shows that Parliament recognises there is an appropriate role for justices of the peace. It puts them on a more professional footing, through the requirement for training and through establishing legitimate exit procedures. It also means that we are able to get people to serve as justices of the peace who are active, committed, concerned for their communities, and not just there for the honour and glory of the position. Hopefully, that may mean the people who present themselves at our electorate offices will be people who are, on the whole, dedicated to achieving that objective.

I welcome this bill, and I wish it Godspeed as it begins its path through the legislative process.

As a JP who has used his role in various ways in the past, I join with the Māori Party in supporting the Justices of the Peace Amendment Bill. The Māori Party approaches every piece of legislation that comes before this House with the basic question: “How will it defend the rights and advance the outcomes for tangata whenua?”. We do this for every bill. Central to the posing of this question is the particular focus for our constituencies.

Before we left for the adjournment break, my colleague Te Ururoa Flavell brought to the House the example of Claude Ānaru and his wife Hanahira Riripōtaka—renowned justices of the peace in the Wairākeirohe. He described them as individuals of high integrity, of considerable standing amongst our community; the types of upstanding members of the community we look for in justices of the peace. We note with some irony that such accountability and safety has not always been associated with the role of justice of the peace. Remember the West Coast Settlement (North Island)Act 1880? This was the Act that created a number of new offences, such as endangering the public peace by removing survey pegs or preventing lawful occupation by ploughing the surface of the earth or erecting a fence. For these activities, an offender could be arrested without warrant by any member of the armed constabulary, tried before a justice of the peace, imprisoned for up to 2 years, and then detained in prison for an indefinite period to keep the peace. There is also the West Coast Peace Preservation Act 1882 that enabled a justice of the peace to direct the dispersal of an assembly of 50 or more Māori, and provided for penalties of up to 12 months’ imprisonment. The concept of peace is thus somewhat ironic when we consider the obvious injustice and racist assault on tangata whenua enshrined in these two Acts. Māori were treated as alien prisoners of war, to be held at will, and with the justice of the peace in a key role of perpetuating the crimes of the State.

So when we trace back over the history and background of the justice of the peace role within Aotearoa, we must recognise the impact of legislation such as this, which throws up into question the wider issues of justice and how it applies to this nation. This history is highly relevant to the ability of today’s justices of the peace to practise safety. Before the adjournment break we talked of the value of cultural safety to provoke people to think about their own biases and assumptions, and about the way in which the world works. Cultural safety would require prospective JPs to take the role seriously, and to try to understand how to support people who might well have different ways of being than their own. Cultural safety and cultural competency are vital to ensuring that the diverse population serviced by justices of the peace have their needs met.

Treating everyone the same might seem a fair and ethical approach for any JP to take, but sometimes it is entirely the wrong thing to do. We would suggest instead that the notion of different treatment to achieve equitable outcomes is a stronger and more inclusive approach. The political link between the Treaty and its guarantees of equity, including the possibility of equal status with other New Zealanders, in article 3, is as relevant to the training of justices of the peace as it is to any other sector of policy. And it is there that we believe the inclusion of an allegiance—albeit a voluntary one—to Te Tiriti o Waitangi would be very helpful in strengthening the capacity of justices of the peace to be responsive to the unique constitutional context of Aotearoa.

The Māori Party is introducing a Supplementary Order Paper to be discussed along with the Oaths Modernisation Bill when that bill next comes before this House. Amendments will be introduced to include Te Tiriti o Waitangi in all oaths and affirmations. The Māori Party considers that being committed towards true service for the community, which is integral to the role of a justice of the peace, will require that a clear understanding of the implications of Te Tiriti o Waitangi will be as essential as being a person of good sense, character, and integrity.

If we trace the whakapapa of the JP in history, back to the early days of 1361, we will learn that the Acts of that time envisaged that peace should be kept and justice administered in each country by a leader assisted by being learned in the law. To be learned in the law of our founding partnership in the nation requires prospective justices of the peace to understand the status of Te Tiriti o Waitangi and, indeed, its subsequent implementation across legislation.

The Māori Party is happy to support this bill in the way in which it supports the Justices of the Peace Association and individual justices of the peace in enhancing their capacity to be upstanding members of the community. But we would still like to see further information, including specific data on the number of Māori JPs across electorates and across regions in Aotearoa. Here we have reason again to return to the report of the United Nations special rapporteur, who reported that the lack of significant, disaggregated statistical data identifying ethnicity was a key barrier to reducing disparities. If we do not have the right data, we cannot really target our social policy. We hope that the accomplishment of the aims of this new bill will indeed achieve peace, will work to enhance justice, and will provide a much-needed framework for community credibility. Thank you.

National will be supporting this bill, which has been long in gestation. The genesis of this bill goes back to the 1980s, and at last it has come before the House. I know that the Royal Federation of New Zealand Justices Associations has been very proactive over the years to make sure that the Justices of the Peace Act of 1957, which is long outdated now, gets the attention it deserves in this amendment bill. So National will be supporting this bill.

It is also interesting, for those who do not know, to note that the role of a justice of the peace is an ancient and honourable one, tracing back to the unpaid posts of wardens, conservators, and keepers of the peace in the 14th century.

💬 Hon Judith Tizard: Why do you like reading circuitous notes?

Well, I say for that member, it happens that I take this quite seriously, as a justice of the peace myself. It is an honour and a privilege to be a justice, and I have been one for many years and have been actively involved in the local area. I think that as this party is supporting the bill—and most parties are, I am sure—interjections of that nature are uncalled for.

There is a tradition over the last 600 years of justices being unpaid, and we find that the role is probably the last bastion whereby a member of Parliament can use his or her local political patronage to be able to bring somebody forward, to nominate that person, and, in so doing, to make sure that those people who are put up for appointment by the Minister meet the criteria that one would expect. As previous speakers Ron Mark and Peter Dunne have identified, there have been people who have come to them, as they have come to me, who have expected that we would sign them on as justices, because it was the thing to do. They just wanted to have that title without knowing what was involved in being part of a very important tradition and also playing a very important part in our communities.

So the area we are looking at, in terms of the retired justice, I think is an important one. There are a number of justices who are now of an age where they do not wish to participate, or they are out of step with changing legislation and do not fully appreciate the requirements. So after a 10-year period a justice would be able to move to that retired status, and I think that is a very important step that this bill now allows for.

I am also in favour of the much stricter vetting requirements that the bill allows for. We find that some people have sneaked through. I think that in order to protect not only the interest of justices but also of the public whom they serve, a much stricter vetting of applications is very appropriate. If we were to look at the number of justices we have and the work they do, we would see for example that as at February 2004 there were over 284 sections of 92 separate Acts of Parliament that they needed to be familiar with, and that need is increasing all the time. When we take into account ministerial jurisdictions, the number of Acts increases significantly. The work includes deposition hearings, bail applications, remands, summary offences, minor offences, local authority infringements, and the swearing of search warrants. So the role is becoming complex, it is becoming very intense, and we need to make sure that the justices who are performing those functions are well trained.

One of the duties I was involved with as president of the Matamata branch of the Justices Associations was to make sure that justices in our community were involved in training sessions. Training was not compulsory, but we certainly made it attractive for justices to attend and get up to speed with skills, and we held regular training sessions for members. If we look at the commitment that justices have made—and the figures I have here have been mentioned before but I think they are worth repeating; they have not been mentioned tonight but they were mentioned the other night—there were 12,731 deposition or preliminary hearings, 35,603 minor and summary offence hearings, including traffic offence hearings, and 21,046 bail and remand hearings, making a total of 69,380 charges heard. If we were to look at the voluntary commitment made by these people, we would see that it is significant—about 26,000 voluntary hours.

So, as a consequence, National is supporting this amendment bill. We believe that the federation has been asking for a long time for these changes to be made and for Parliament to take this seriously. The bill has been a long time in coming, but National has great pleasure in being able to support it. All justices, including future appointments, will benefit from it.

Bill read a first time.

Bill referred to the Law and Order Committee.