Financial Review Debate — Ministry of Justice

As the newest member of the Justice and Electoral Committee, it is a pleasure for me to rise to take a call on the 2005-06 financial review of the Ministry of Justice. I have read through the committee’s report, and I endorse what the committee said about the fine work of the coroners who have served New Zealand so well in the period until the consolidation of the legislation and the reappointment of coroners under their reconstituted role as full-time judicial officers. Those part-time officers of the court provided New Zealand with excellent service, and it is a wonderful thing to see that they were recently honoured at a dinner at Government House. It is appropriate to have honoured their work in that way, and I hope the Committee will endorse the Justice and Electoral Committee’s endorsement of their fine service.

In passing I also mention and endorse the praise delivered to justices of the peace. Along with Clayton Cosgrove, Rick Barker, Lynne Pillay, and Martin Gallagher, I had the honour of attending the Royal Federation of New Zealand Justices Associations conference in Napier over the weekend. It was great to see the fine work that those judicial officers give on a part-time and honorary basis to the nation.

I will also comment on the material appearing in the committee’s report relating to electronic filing. As the Attorney-General’s delegate on the Rules Committee, I can say that this matter was mentioned at a recent meeting of that committee. It is clear that electronic filing is a notion whose time has come. It is good to see that the Supreme Court and the Court of Appeal have adopted the method, and it is good to see the foreshadowing of electronic filing in the Court of Appeal. Clearly, it needs to be extended fully by the ministry to the High Court, the District Courts, and tribunals. It will be good to see that happen.

I will also comment on the material in the review relating to the building programme that has been embarked upon on behalf of the Government by the Ministry of Justice, which now incorporates responsibility for the Department for Courts. Clearly, the programme that is under way is the most ambitious since that undertaken by Sir Geoffrey Palmer between 1984 and 1989. In my view, the programme is to be praised and recognised, and it is a good thing that the disinvestment that occurred in the 1990s is now being remedied, with new courthouses in Queenstown and Greymouth and, of course, the construction that has occurred in the Auckland High Court, which obviously is a building at capacity. It would be remiss to fail to mention the construction of the Supreme Court, which will finally give us permanent housing in Wellington for our highest court, in a building that hopefully will be fitted to the role.

I conclude by touching on the committee’s review of electoral law. The committee called for this to occur on a prompt basis, following the 2005 general election inquiry. Clearly, it is necessary to review electoral law promptly, and to ensure that there is an adequate regime in place for the next election. It is necessary to ensure that there is proper transparency as to donations, that the affairs of third parties involving themselves in politics are above board and clear, and that there is an appropriate definition of election expenses in the legislation that is modern and conforms with the times—the Internet age in which we now live. In my view, there also needs to be a proper formula for the public funding of political parties, as recommended in the report of the Royal Commission on the Electoral System, which led to our current electoral system but has not yet been introduced. These are essential mechanisms to put in place if we are to see an election conducted without the risk of a plutocracy seeking to buy its way into Government. It is appropriate that there be a thoroughgoing review of legislation that is applicable in this area, so that the rules applying to elections are fully fair, and seen as such by the public. Thank you, Mr Chairperson.

I wish to touch briefly on three issues tonight. The first issue is electronic filing, the second is the strengthening of the Crown-Māori relationship, and the third is keeping the law up to date—all of which are referred to in the report of the Ministry of Justice, and all of which are illustrations of this typical third-term Government. It has no idealism, no vision, no energy, and no enthusiasm. Nowhere is that more obvious that in the justice area and in the three areas I want to touch on.

I could not believe my ears when I heard Mr Chauvel talk about electronic filing as though something had been done about it. It was real Sir Humphrey Appleby stuff from Yes, Minister. The reality of the matter is that the Rules Committee, which I have served on for many years, has been trying to advance the issue of electronic filing, and the Ministry of Justice, time and time again, wants to write reports on it and do scoping exercises—do everything but introduce it. I would be very interested to hear from the Minister in the chair, David Parker, just what he is going to do about the issue of electronic filing over the next few years. At the present time the situation is totally unsatisfactory and we are not getting any movement on that issue, at all. That is why the Justice and Electoral Committee raised the issue in its report.

The second point I will touch on is the whole issue of Treaty of Waitangi negotiations, and the vomit-inducing statements in the report of the Ministry of Justice that additional resources have been provided for research and report writing in the Waitangi Tribunal, and for increasing the negotiating capacity of the Office of Treaty Settlements. We all know that the Office of Treaty Settlements is not working, and the disaster for the Government over the Whenuakite Station a few weeks ago shows that. A letter went from Landcorp to the Office of Treaty Settlements, someone in that office simply rejected the need for the Crown to purchase Whenuakite Station, then we had a backtrack on the part of the Minister in charge of Landcorp. The situation was totally unsatisfactory. The Office of Treaty Settlements is not performing well.

The Waitangi Tribunal is hampered by lack of resources. I would like the Minister to answer these questions: who has replaced Professor Keith Sorrenson on the Waitangi Tribunal? Who are the historians appointed to the tribunal over the last 12 months? What steps have been taken by the ministry to provide additional resources to the tribunal, so that reports like the report of Wai 785 can be written? As I said in this place a couple of weeks ago, the final submissions on Wai 785 were heard in Wellington at the beginning of 2004, and we still do not have a report. So we have these weasel words in the report of the Ministry of Justice, but we do not have performance.

Nowhere is this hopeless situation of underperformance more manifest than in the responsibility of the Ministry of Justice to ensure that the law is responsive to changing needs. There are many illustrations where the law has not kept up to date. The law of limitation is one. The Government cannot even get technical things right. Study Paper 10, presented by the Law Commission in 2001, had a draft bill appended, yet the Government still cannot work on that to get draft legislation into this Parliament. It is no wonder the Order Paper is so shocking. It is no wonder there is nothing to discuss in this Chamber—except the protection of trout as a commercial species. This Government has not even got the energy to open Study Paper 10—which deals with mandatory orders against the Crown and tidies up judicial review—and to print the Judicature Amendment Bill and get it into the House for debate. It is a highly technical matter; it should not take very much effort at all.

But that is an illustration of this hopeless, third-term, uncertain, un-idealistic Government. It has run out of ideas. Even when the ideas are presented to it on a silver platter, as the Law Commission regularly does, its members simply cannot get off their backsides and do the sort of work that any self-respecting Government members would do. One of the great tragedies of being in Opposition is having to look across at the other side of the Chamber and see people who are so devoid of energy and idealism—I exempt the member for New Plymouth from this—

💬 Hon Member: Oi!

Oh no, I include him—sorry, I have to follow the party line. What I find so disappointing is that there is a heap of work this Parliament could be engaged in. There is non-party political, but none the less very important, legislation that could be worked on, and this Government does not care.

The appropriations debate is a prime opportunity to remind the House of the constitutional role prescribed in Westminster-based parliamentary systems by which the Crown may tax, borrow, or spend only as authorised by Parliament. And what could possibly be more constitutionally important than the administration of due justice? We turn today to the Ministry of Justice and, in particular, the review of the Waitangi Tribunal.

Twenty years ago, in 1987, history was made in the Court of Appeal when in the case of the New Zealand Maori Council v Attorney-General it found that “The duty of the Crown is not merely passive but extends to the active protection of Maori people in the use of their lands and waters to the fullest extent practicable.” In reviewing the progress towards the duty of active protection, the Justice and Electoral Committee looked critically at the Ministry of Justice’s key objectives for 2005-06 in order to strengthen the relationship between the Crown and Māori. And so it should.

To get a sense of how well the ministry has done, one had only to turn last week to the 5-yearly report of the Human Rights Commission that reviewed progress in race relations. And what does the report state that the key challenge for future years should be? It is to strengthen the relationship between the Crown and Māori, as stated by Mr Finlayson. That is exactly what the Ministry of Justice intended to do but it failed abysmally.

We in the Māori Party know that ever since the settlement process began, claimants and lawyers have been expressing grave concerns about the process itself, the terms of settlement, the amount set aside for settlement, and the agency charged with managing the settlements. Those concerns have come from nearly all claimants and their lawyers from all parts of the country. Indeed, even the Justice and Electoral Committee pointed out, and Mr Finalyson mentioned this, that it was concerned that a number of reports were still taking a long time to complete, including the report of Te Tau Ihu—Wai 785—the hearings of which took 4 years to complete. There has been no report. The committee went further and declared that some Waitangi Tribunal hearings and reports were still taking too long to complete.

Tribunal hearings are often long and costly affairs. Iwi have also told us that because of the lengthy nature of the tribunal hearings and the fact that their rulings have no value, claimant groups are being pressured into direct negotiations with the Crown.

But it gets worse. Last Monday Cabinet, in its infinite wisdom, noted that “there is not currently a process for ensuring relevant Ministers are advised when Landcorp properties are being considered for sale”. Then, to make matters worse, by the end of the week Labour had announced that everything was going into the mix—that land banking, section 27B memorials, and protection mechanisms were all going to be put up for scrutiny. In other words, everything is a mess, and it is not just a case of the policy wheels falling off. For we know that all is not well in the Labour camp, with the Māori caucus referring issues to the “Minister Who Knows Everything”, and a great yawning chasm opening between the Māori caucus and the Ministers in the know. If this Government cannot even brief its own Māori members, what chance do whānau, hapū, and iwi have?

The select committee report rather weakly recommended that the ministry will improve on its satisfactory ratings in the near future. Well, the Māori Party is not satisfied with that. We cannot sit by and idly watch the Crown settle claims at about 2 percent of the real value of the claims, thereby forcing Māori to accept far less than their claims are worth. Yet we do not see the same standards being applied to the high country farm leases when those settlements occur. One law for all? Yeah, right! We also know that signing off on unfair settlements means that we sabotage the futures of our up and coming generations by getting them to finish what we could not do.

Under these circumstances, then, we believe it is time for us all to reflect on the settlement process and to urgently review the terms, the quantum, and the agency managing Treaty settlements. The Government’s crisis call to put a halt to the sale of all properties owned by Government departments and agencies has made this financial review an urgency.

If the hearings and reports take too long and are too costly, if one branch of Government does not advise the other, and if one faction of Government will not consult its own members, then how can anyone have any confidence in the Minister Mark Burton or in the Ministry of Justice? In the light of all these fatal flaws, the Māori Party is calling for a total review of the Treaty settlement process.

We have just listened to a stinging rebuke of the Government by Dr Pita Sharples. He has described it as an evil Government. He said that all was not well in the Labour camp. So, in the short comments that I make, I will invite this Government to fold its tents, clean its campsite, and depart.

This Government is hugely committed to tag lines. I would like to pick up on two of those tag lines that have a jurisprudential base and relate them to what is going wrong in the system—to what the Justice and Electoral Committee, with concern, has found. The first tag line is that “justice delayed is justice denied”. I would like to pick up the phrase and the theme that Dr Pita Sharples offered in a comment that he made so eloquently about the Waitangi Tribunal, because I am very concerned—and he is very concerned—that a number of reports are still taking far too long to complete. And there are many illustrations. I just take the example he offered of the northern South Island, or Te Tau Ihu, inquiry—Wai 785, as it is ineloquently named—the hearings for which took 4 years to complete. Four years! That took as long as would a major matter running to the heights of the judicial empire, from start to finish. That is wholly unsatisfactory. I join with Dr Sharples in his condemnation of processes that have produced that perverse illustration.

I am a member of the Justice and Electoral Committee—or was at the time—that was told that that case was particularly complicated. I doubt that. These are straightforward issues of injustice requiring swift and speedy remedy. And is that remedy granted? Not at all. So it is right to join with others in condemning this Government for its process that led to both an abuse of the legal system and a clear disparity in the fruits of judicial distribution. But that is just one example of the tag line that justice delayed is justice denied.

I look at what is going on in the High Court in Auckland, where the Minister for Courts will not listen to the pleas of judges and lawyers to remove from that court setting those methamphetamine cases that clog the court. There is no reason at all why those cases should be dealt with at that level. It is wholly appropriate for them to be dealt with at a lower level in the system, so that judges can get on and process important and compelling work. But, no, for some reason—perhaps perversity—the Minister for Courts will not yield to those arguments. Instead, he is absolutely determined, it seems to me, to perpetuate the tag line that justice delayed is justice denied.

I would like to speak at length on these matters but time, sadly, does not permit that outcome. So I will address another tag line. The tag line is that “the courts are open to everyone, like the Ritz Hotel”. What is the sophistry in that tag line? It is simply that these days, because of the ways the Government has structured the legal aid system, deserving cases are waiting to be resolved. But those cases cannot be resolved, because of the strictures around the legal aid system. Of course, we have seen the Government extend eligibility for legal aid. That is fine, many may say. That is fine, I would say, but what the Government has not done is provide appropriate remuneration for those who are tasked to take on the often very challenging task of tricky legal aid cases. So what have we seen? As the young whip on the Government side would know, we have seen a large number of lawyers no longer able or willing to take on legal aid cases. That is why I say that the courts are open to everyone, like the Ritz Hotel.

With the benefit of hindsight, and no longer being on the Justice and Electoral Committee—

💬 Darren Hughes: Why not?

Dr RICHARD WORTH:—because I have moved to higher pastures—I would just say, in looking at this report, that I may have felt that some other matters deserved to be brought to the attention of the Committee. But time does not permit the opportunity to identify those issues. Indeed, there are headings in this report relating to review of electoral law, relating to the Waitangi Tribunal, relating to capital building, relating to the High Court of Auckland—of which I have briefly spoken—and relating to issues of environmental performance that in themselves are worth significant 5-minute blocks of time. But I will stop there and say that this report brings no credit to Government members.

It is a pleasure to follow my learned colleague Dr Worth. This is a ministry, under the watch of a couple of Ministers, that has not exactly covered itself in glory in terms of performance. There have, admittedly, been some improvements, but there have also been some glowing deficiencies. I have to admit to being somewhat perplexed when the Minister recently stated that he did not agree that justice delayed was justice denied. We have constantly, for months and months, questioned the Minister on court delays, and what has happened? Absolutely nothing! In fact, in today’s Christchurch Press there is the headline: “Delays clear defendants”. A drug importer has gone free, because this case was part of a Blenheim court’s backlog. Blenheim for some time has dominated the numbers of criminal prosecutions that have been halted because of excessive delays. In fact, of the seven cases of justice delayed and justice denied in the 7 months since July last year, five have been from Blenheim.

The article in the Press states that the court was told that the defendant had gone through a depositions hearing, at which it was found there was sufficient evidence to put him on trial, but at five subsequent court hearings to set a date for his 3-day trial, no space was available. At the fifth hearing a trial was scheduled for 3 months’ time, but a week before it was due to begin, the trial date was vacated.

We asked in August last year how the Minister could justify his statement then of what he called “a steady improvement” in the court system over the last 6 years, when median waiting lists for a hearing date in the last 2 years in District Courts have ballooned, from 161 days to 372 days in Blenheim—which is the worst in the country. It is no wonder that Blenheim courts are again hitting the headlines for delayed justice and denied justice. Justice delayed in the Blenheim court, for a drug dealer, was undoubtedly justice denied. A 22-month wait between being arrested and having a trial date was deemed excessive and a breach of the defendant’s right to be tried without undue delay. This case was simple, and quite simply should have been tried within a year, the High Court ruled.

Then we are asked to believe that this Government is delivering speedy and effective, efficient justice for all New Zealanders. So what does this Government do to deliver such justice? It increases by 435,000 the number of New Zealanders eligible for legal aid. Yet women in Blenheim—again, in Blenheim—seeking a protection order have to represent themselves; they cannot get a lawyer to represent them. They often withdraw from the process because it is simply just too hard. Increasing eligibility does not help these women get access to justice, and the headlines have said it all—justice for all, except battered women. This Minister has sought to increase the demand for justice, but he blindly ignores the fact that justice cannot be supplied because there are no lawyers there to supply it. He denies that the number of family legal aid lawyers has dwindled from about 2,000 to 1,000 in a mere 12 months. The Minister has steadily received correspondence about lawyers withdrawing from legal aid work. He has constantly received letters from battered women who are representing themselves because they are unable to get legal representation, and giving up, yet he still insists that we have speedy, inexpensive access to justice for New Zealanders.

We have issues regarding court delays and waiting times that have been totally ignored by this Minister, and we have pointed them out to him on many, many occasions. We have issues regarding battered women who are unable to obtain legal representation and access to justice, and we have pointed that out to the Minister on many occasions. I ask the Minister what he is going to do about justice delayed, under our system.

The answer to the member’s obvious question is that nothing will be done; we will not get an answer in the Chamber tonight. But I want to continue on the theme, which is a core responsibility of the Ministry of Justice, of ensuring that the law is responsive to changing needs. In my earlier speech I spoke about Study Paper 10, a technical matter involving mandatory orders against the Crown and tidying up judicial review, yet Government members do not even have the wit let alone the energy to open appendix A and introduce a Judicature Amendment Bill when it is all there for them. It has all been provided by the Law Commission, but nothing has been done—and that is in the technical area.

If we read through the annual report of the Law Commission for 2005-06, we see an appendix setting out the various streams of work that have been undertaken by the commission in the 20 years since it has been formed. Let me just touch on a couple of areas where nothing has been done by this Government. The first is a report that was produced by the Law Commission in May 1998, entitled Apportionment of Civil Liability. Like the judicial review issue, it is a technical issue that should be able to be dealt with in a reasonably efficacious way. It is non-party political stuff but it is nonetheless important to the civil justice system. What is the comment that we receive from the Law Commission in its annual report? It is that the “Ministry of Justice does not currently have the resource capacity available to assess this.” It has not even got the ability to assess it, let alone introduce amending legislation to deal with the question of apportionment of civil liability.

Let us look at another issue that arose—costs in criminal cases. This is an important issue. The report was released by the Law Commission in May 2000 and what is the response of the Government? It says: “The Ministry of Justice officials will progress this work as other priorities allow.” So for 7 years nothing has happened in this area. Perhaps the worst example of this Government’s lack of energy and enthusiasm for law reform is the Limitation Act. In July 2000 the Law Commission published a report tidying up the Limitation Act. What was the response of the Minister of Justice? It was: “The Minister has considered a report from officials on the issues raised. Further work will proceed as other priorities allow.” This is classic “third term-itis”. The ministry and its Minister simply do not have the energy to implement even technical reports, yet they have the gall to publish in the Ministry of Justice annual report a chapter entitled “Ensuring the Law is Responsive to Changing Needs”. Instead of dealing with the real issues, they trumpet as some kind of huge legislative success utter trivia like the New Zealand Council of Law Reporting Amendment Act 2006 or the Judicature Amendment Act 2006. These are not even third-tier issues but very minor issues, indeed.

Under this Government and under the cohort of Ministers of Justice—none of whom seem to be up with the play—we do not have modernising legal frameworks. Law reform should be an essential role undertaken by any Government and it needs to be done in a regular manner with the support of the Opposition—and there would be support from Opposition parties in the areas that I have mentioned—but instead, nothing is happening and it reflects very, very poorly indeed on this washed-out administration.

The second point I wish to touch on—and it was also referred to by my friend Kate Wilkinson—is strengthening court processes and managing court workloads. The reality of the matter is, as I showed with the issue of electronic filing, that this has been a hardy annual that has come before the Justice and Electoral Committee on a number of occasions. It has been raised within the Rules Committee on many occasions and, indeed, things are so dire in this area that the Rules Committee has decided to proceed to introduce rules in the hope that at some stage in the next decade, something may be done on the issue of introducing electronic filing. Practitioners are using electronic methods for communicating with one another and serving documents, including affidavits, on one another, but this Government has such a bewildered approach to the management of the justice system that it cannot get on to this fundamental task.

The reality of the matter is that while this Government does nothing but commission reviews and reports, the situation in our High Court in Auckland just gets worse and worse. My understanding is that there is absolutely no space for any further judges. The judges’ chambers are all full, the courts are all full, and the situation in the High Court in Auckland is very unsatisfactory.

Report noted.

Department of Child, Youth and Family Services