Judicial Retirement Age Bill

Congratulations, Mr Chairman, on your promotion. I think it befits you very well. I am just sorry that the Minister in the chair, Rick Barker, had to turn up, because Winnie Laban was far more attractive and far more pleasant. But there we go.

I will briefly address Part 1—and I place emphasis on the adverb “briefly”, because Part 1 simply deals with the machinery aspects of the bill. We do not yet know when the Act will come into force, but the purpose clause succinctly states exactly what this bill is all about. As I said in my speech the other night, in 1980 the retiring age for judges was reduced from 72 to 68. That reduction in the retirement age was consequent upon the Beattie commission on the courts, which reported in 1979. As I observed in my speech, there was no discussion of the rationale for reducing the age. That is why I think that the other night all speakers, from both sides of the House, tried to explain the rationale for at least increasing it. The bill brings the age of retirement for High Court judges and the other judges mentioned into line with other jurisdictions.

Perhaps I should observe that every judge of the High Court, Court of Appeal, and Supreme Court is sworn in as a High Court judge, even though certain of them—nine in the Court of Appeal, and five in the Supreme Court—sit as appellate court judges. So when we see the term “judges” in relation to High Court judges, we know that it also includes Court of Appeal judges and Supreme Court judges.

I think that other speakers apart from myself also mentioned the fact that in many states of the United States the retirement age is around 70. In the United Kingdom, Australia, and Canada the retirement age is about 70. Some jurisdictions have no retirement age. Indeed, that issue was touched on by my friend Dr Worth in his speech when he sought to explain the rationale for why there is a retirement age. If there is no retirement age, there is the risk that judges can stay on for far too long and can, in fact, become an impediment to justice. I can think of a number of foreign judges who come into that category. They simply sat on the United States Supreme Court or the English Court of Appeal for too long. I recall very clearly the case of Lord Denning, a former Master of the Rolls. He was an outstanding judge—probably one of the greatest judges in Anglo - New Zealand - Australian history—but he left his high office in a very tragic way. He had stayed on too long and made some silly remark about a jury, which hastened his pretty well immediate retirement. I think that when he retired he was about 88.

So there are very good reasons for having a retirement age, but there are extremely good reasons for the age of retirement to be increased from 68 to 70 years. This reflects increasing longevity on the part of all of us and the fact that judging is an art that requires much reflection. It is a job that is naturally suited to people in their 60s and into their early 70s—I say into their early 70s because, on occasion, judges will be asked to come back as temporary judges. In the case of judges of the Supreme Court, after their retirement they can come back and sit until the age of 75. From time to time in the High Court there are judges who come back and sit after their retirement in order to assist with workloads and so on. That principle applies not only to judges of the superior courts and the appellate court but also to associate judges of the High Court and, quite sensibly, to coroners and community magistrates.

As I said a few days ago, National supports this legislation. It is a sensible provision that we are dealing with here. I do not think I need to detain the Committee any longer.

As the previous speaker, Chris Finlayson, said, this important legislation—the Judicial Retirement Age Bill, which National supports—raises the statutory retirement age for all judges, associate judges of the High Court, coroners, and community magistrates in New Zealand, from the age of 68 to the more magic age of 70.

But it is not in this part of the debate that I want to focus on clause 3—that all-important purpose clause. Instead, I want to take a moment to deal with the commencement provision, which is contained in clause 2. It is simply stated: “This Act comes into force on the day after the date on which it receives the Royal Assent.” As those who follow the parliamentary process know only too well, a bill must set out precisely when it is proposed to come into force. This rule reflects the legal rule that an Act comes into force on the date stated or provided for in the Act. That rule is contained in the Interpretation Act 1999.

In principle, the commencement provision should fix a precise date, but the commencement of legislation can be deferred for it to be brought into force by Order in Council, where there are considered to be good reasons for doing so. In this case, of course, the Act will come into force on the day after the date on which it receives the Royal assent. But if that were not so, in the circumstances that I have spoken about that relate to Acts coming into force by Order in Council, the reasons for deferring the commencement of the legislation to an unspecified date are set out in the bill’s explanatory note. As the Regulations Review Committee commented in an earlier Parliament, any use of the power to defer the commencement of a bill’s provision, other than for reasons given in the explanatory note, is very likely to attract criticism.

I note that until 1999 the commencement of a bill was invariably dealt with in the first clause, along with the title. But that is not so in the case of this bill. Here we find the title in clause 1, and the commencement date in clause 2, which reflects the requirement that the commencement provision must now be in a distinct clause devoted solely to that matter. I see that the Minister in charge of the bill, Rick Barker, is watching me in a rapt way and doubtless learning much that he has never known of before.

So that is the second clause of the bill. That clause forms, along with the title clause, a bill’s preliminary clause, which precedes the first distinct part of the bill—if the bill is drafted in parts. There may, of course, be different provisions in the bill that come into force at different times. As the Minister will know, this must be indicated in the commencement clause, with cross-references to those other clauses where the precise commencement details are set out. I need to refer in that regard only to Standing Order 257(2). That said, I think National is pleased that in this particular case the Act comes into force on the nominated date in clause 2. Certainly, we do not have any misgivings about that planned course of action. So I commend those who, with care, have drafted clause 2 in the neat and precise way they have.

I stand to take a call on Part 1 of the Judicial Retirement Age Bill. My colleagues have already commented that only two clauses are provided in Part 1: one is the commencement clause and the other is the purpose clause. Just to reiterate the purpose, I say that the bill is a fairly straightforward bill to increase the statutory retiring age of judges, associate judges of the High Court, coroners, and community magistrates, from 68 years of age to 70 years of age.

I would like to mention in this part of the call perhaps not what Part 1 provides for, but what it does not provide for—that is, justices of the peace. There is no mention in the Judicial Retirement Age Bill of the Justices of the Peace Act. There is absolute silence as to that Act, and there is no mention of the retirement age of justices of the peace. Justices of the Peace are appointed as justices. They hold judicial office and, at the moment, the retirement age for JPs is 72 years of age. So that situation is incongruous with the proposed retirement age of 70 years in the Judicial Retirement Age Bill. We are aware, of course, that the Justices of the Peace Amendment Bill is currently before a select committee. I just remind the Committee that we need to ensure that the retirement age of JPs is consistent with the proposed retirement age of 70 years in the Judicial Retirement Age Bill. If we do not, we could have the incongruous situation of one class of judicial officer having a completely different compulsory retirement age from another class. JPs would retire at 72 and judges would retire at 70.

Perhaps in this vein I will refer to the comments of my colleague Dr Worth in relation to the commencement date of this bill. It may be conceivable that the commencement date of this Act could occur prior to any amendment to the Justices of the Peace Act. So there may be an interval of time—assuming that the justices of the peace legislation will make those age limits consistent—when we have inconsistencies and differences in retirement age. It seems that it is certainly preferable to have the retirement age of both justices of the peace and judges—indeed, of judicial officers—consistent and at 70 years.

In earlier speeches I referred to the arbitrary nature of age—whether it was the arbitrary nature of a young age-limit, as in the age-limits for holding a firearm or purchasing a beer, or whether it was the age-limit at the other end of the scale, that of a compulsory age-limit. It is quite interesting to look at the age of our current judges, and if we look at the ones aged between 65 and 68, we see that 11 of them are currently sitting in New Zealand. Nine of them are District Court judges and two are High Court judges. To extend that retirement age would certainly help to retain that intellectual capital. In my speech on the second reading, I think I said that 68 years did not appear to be a particularly old age—neither does 70, for that matter—but the nearer one approaches that age, the younger the age seems.

I would like to take a call on Part 2 later on. National supports the bill. It is straightforward and merely increases the retirement age of judges and other justices to 70 years of age, which is consistent with many other jurisdictions such as those of the United Kingdom, Australia, and Ireland. It is an arbitrary age-limit. It is not an indication of a judge’s competence, or otherwise. It is merely a mandatory retirement age. It is important to have a mandatory retirement age for judicial officers for the security of tenure and also, as has previously been mentioned by the Minister, for judicial independence.

I feel compelled to take the opportunity to speak on this Judicial Retirement Age Bill. As previous speakers have said, the National Party is supporting the bill. We are supporting it for a number of very good legal reasons and for reasons that are important to this Parliament and the country. But one of the things that is most important for this country, which we need to recognise today in the House, is that we need to keep institutional knowledge in areas such as the judiciary or within any other capacity.

One of the sad things that has happened too often in this country is that people have been retired early and we have lost a whole lot of experience. The judiciary is no different from any other group in that regard. Those people are well skilled, they are well versed, and they have huge knowledge, but then often as they are reaching the stage when they can make a very good contribution to our society—

💬 Ron Mark: Like MPs!

—I will come to that in a minute—we suddenly say to them that it is time they sat down and retired.

I am pleased to say that the National Party values institutional knowledge. We respect it and we expect it of our members—although the same could not be said to apply to the Labour Party. It does not develop institutional knowledge. In fact, one of the things Helen Clark has said is that she is expecting early retirement. I think she is now looking to have people come into Parliament at the Young Labour stage and retire before they get out of Young Labour.

💬 Christopher Finlayson: Like Darren Hughes.

Darren is a classic example. It is important that we—

💬 Ron Mark: Like Brian Neeson.

There is another example of a guy who made a great contribution, and who stood aside for somebody who is now leading the National Party. We are pleased because that man will be the next Prime Minister. What is wrong with that? That is making way for people, and it is a good decision.

Today this bill is a very good decision. The institution of our judiciary is important. It is important that we retain the experience and the knowledge that these people have. I am pleased to make a contribution to support the bill, and to pay my respects to the judiciary and to the many people who serve our country in that capacity.

The question was put that the amendment set out on Supplementary Order Paper 87 in the name of the Hon Rick Barker to Part 1 be agreed to.

Amendment agreed to.

Part 1 as amended agreed to.

Part 2 Retirement age increased