Judicial Matters Bill

on behalf of the Attorney-General: I move, That the Judicial Matters Bill be now read a first time. It is my intention that this bill be referred to the Justice and Electoral Committee. The Judicial Matters Bill is an omnibus bill. It makes some important technical amendments to two statutes relating to the judiciary. These amendments will enhance public confidence in the judicial complaints process and ensure that adequate resources are available to meet the growing workload of the judiciary.

Part 1 of the bill amends the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. The Office of the Judicial Conduct Commissioner was established by the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, with effect from 1 August 2005. The office provides the public with a transparent and accessible judicial complaints process. It allows for a proper investigation of matters that may lead to the removal of a judge, while adhering to the principle of judicial independence. Mr Ian Haynes was appointed as the first Judicial Conduct Commissioner for a 5-year term in 2005.

The Judicial Conduct Commissioner’s office receives approximately 100 complaints a year. Of those, approximately 80 percent are dismissed. In his annual report to Parliament, the commissioner has noted that the most common reason for dismissing a complaint has been that the complaint stems from a complainant’s disagreement with the judge’s decision, rather than the judge’s conduct. In the first 2 years, four complaints have been referred to the relevant head of bench and resolved through the voluntary internal judicial complaints process. So far, the commissioner has not made any recommendation for the appointment of a judicial conduct panel.

The amendments contained in Part 1 of the bill aim to strengthen the Act’s primary objective of ensuring the prompt handling of judicial complaints. They are based on the commissioner’s recommendations in his 2005-06 and 2006-07 annual reports to Parliament. Currently, the Act does not permit the commissioner to delegate the power to conduct a preliminary examination of a complaint. That has caused difficulty where the commissioner has had a conflict of interest regarding a complaint or has been unavailable. The bill enables the appointment of a permanent deputy commissioner, to whom the commissioner can delegate his functions in such situations. Where the deputy commissioner has a conflict of interest, he or she will be able to refer the complaint to the relevant head of bench or the commissioner, as and when appropriate. The bill also allows the commissioner to dispose of a complaint if, in all the circumstances, further consideration of the complaint is not justified. That is appropriate where the complainant is satisfied following an explanation or an apology from the judge.

However, the bill clarifies that the resolution of a complaint following an apology by the judge will not of itself justify disposal of the complaint. In such cases there may still be a question of conduct that the commissioner may want to refer to the relevant head of bench, even if the complainant is satisfied with the outcome. Those provisions will ensure that judicial complaints continue to be handled efficiently and independently.

Part 2 amends the Judicature Act 1908 by increasing the current statutory cap on the number of associate judge appointments from six to nine. This is the first increase since 1991. The 1986 amendments to the Judicature Act provided for the appointment of Masters of the High Court to provide a more effective and efficient service by clearing the court lists of the smaller miscellaneous matters. Since their inception, the jurisdiction of masters has steadily increased from hearing matters, such as summary judgment applications, to hearing more complex commercial matters, such as insolvency proceedings. In 2004 Masters of the High Court were renamed associate judges and secured permanent tenure. Associate judges have a specialist civil jurisdiction and are invaluable in alleviating the workload pressures of judges by undertaking a range of companies and insolvency work. They have extensive jurisdiction in interlocutory matters, including summary judgment applications. They also have jurisdiction to assess damages. The increase in the statutory cap will enable future associate judge appointments if and when required, without unnecessary legislative delay. This in turn will ensure adequate resources are available for the growing workload of associate judges, especially since the commencement of the Insolvency Act 2006.

The proposed amendments are important improvements that will enhance public confidence in the judicial complaints process and will ensure that adequate resources are available to the judiciary. I commend the bill to the House.

I have listened with interest to the comments that the previous speaker, Mr Cosgrove, has made on this legislation. I think he is very competent in his field, but certainly this is not his field. I think it reflects a tragedy in the present Labour-led Government that those who have been put in positions of responsibility in respect of judicial roles do not have any legal training or any sense of what is appropriate or what is not appropriate. It is not a particular criticism of the member—he has just been put into a position that is unenviable—but, sadly, it also applies to the Attorney-General. As others may well know, we have not had a situation in the history of New Zealand where an Attorney-General without legal qualification has occupied that particular responsibility for so long.

National is strongly opposed to this bill for what I suggest are really good reasons. There are two essential elements to the bill. The first relates to changes to the Judicial Conduct Commissioner and Judicial Conduct Panel Act. That legislation was recently enacted to deal with what was perceived to be a mischief—instances where judicial conduct fell below an acceptable threshold. Under the Act the commissioner’s role was to receive and assess complaints about the conduct of judges. What basically happens is that the commissioner, following the receipt of a complaint about the conduct of a judge, notifies the judge of the complaint, and seeks any comment that the judge may wish to make. He can obtain court documents, transcripts of hearings, listen to any sound recordings, and make whatever inquiries he considers appropriate. Once he has completed his preliminary examination he dismisses the complaint on one or more of nine specified grounds. If the commissioner does not dismiss the complaint, then he must either refer the complaint to the head of bench or recommend that a judicial conduct panel be appointed.

This particular Judicial Conduct Commissioner has made two reports: one for the year ended 31 July 2006, and the more recent one for the year ended 31 July 2007. There would be some who would cynically observe that this process is very much akin to a whitewash. If I look at that second report and the outcomes of the work he carried out in that year, which ended 31 July 2007, I see that he dismissed 72 complaints, he did not refer any complaints to a head of bench, under section 17 of the Act, and that a reasonable number of complaints are not finalised. It seems impossible to credit that there can have been in that complaint history not one complaint that was justified. I would say that beggars belief. We have here a system that I strongly believe is not sufficiently robust. Of course, the justice system is a man-made system. It suffers from imperfection, but I cannot accept that of 72 complaints received, 72 should have been dismissed.

In both these reports, as the previous speaker has said, the commissioner criticises the structure of the legislation and considers the desirability of having a deputy appointed. I think the argument he advances is interesting. It is presumably an argument that the Parliament is being asked to accept here tonight—that there are circumstances where the commissioner has a conflict of interest. This particular commissioner is associated with a major law firm in the city of Auckland. I find it incredible that conflicts of interest should be of real concern to him. He is not a court lawyer. The background of this man is that he is skilled in commercial law. He is not involved in situations of conflict with the judges. There are no such conflicts. So in this argument we are being asked to accept what Mr Cosgrove has told us, which is that there is a situation of real difficulty here, to use the commissioner’s words, when these conflicts of interest—which I think are completely unreal—arise.

💬 Hon Clayton Cosgrove: So you’re opposed to it.

The Act provides that the commission is to act independently. Mr Cosgrove is calling across the House that National is opposed to this legislation. Well, I said that right at the outset, and we are. But that is only one part of the legislation that I think is of concern.

The second part of the legislation, proposed by the Government to be enacted in this death rush to the election date of 8 November, is a series of changes to the Judicature Act to increase the maximum number of associate judges of the High Court from six to nine. I would like to say something about that in the context of what it is that these associate judges do. As at January 2008 the High Court consisted of 34 judges, and seven of those were associate judges. That is an interesting circumstance, because the proposition here for the Judicature Act is to increase from six to nine the maximum number of associate judges of the High Court. So an inference is that there is a current breach of that legislation. But members should leave that aside. Associate judges have a specialist civil jurisdiction; they undertake a range of companies and insolvency work; they have extensive jurisdiction in interlocutory matters, including summary judgment applications; and they have a jurisdiction to assess damages.

I would suggest that what this issue seems to be more primarily about is that there needs to be a sharp focus on the productivity of our judges and the processes in the courts today. The reality is that the commercial community is bailing out of civil litigation for two main reasons: the continuing long-running unhappiness with the Chief Justice’s refusal to let judges specialise in either commercial or criminal matters, and also the vast amounts of money being spent on the needless discovery of documents. These associate judges are not involved in criminal work; they are simply involved in the civil jurisdiction. So why are we proposing to appoint more associate judges who are confined to the civil jurisdiction, when the reality is that the commercial community is bailing out of such litigation?

There are some very interesting figures on judicial productivity. My understanding of the position is that each High Court judge with support staff costs taxpayers more than $630,000 a year, plus superannuation. I would say that with that sort of money the public is entitled to expect fast, inexpensive, fair, and just resolution of criminal and civil matters. Maybe the judges work harder than they did 40 years ago. But if we look at the statistics, we find that although the population of New Zealand has grown by 73 percent since 1960, the number of High Court judges has risen by 200 percent. In 1960, 12 High Court judges dealt with 2,610 cases a year, which is 218 cases each, but in 2005, 36 High Court judges handled 2,500 cases, which is 69 cases each. So to look at the issue of productivity per judge—I accept in a somewhat crude way—the judges of the past were doing 218 cases each a year, and now they are doing only 69. What is desperately and urgently needed are solutions that will see less complicated and shorter trials, and greater productivity from the judges. That is why National is opposed to this legislation—it makes no sense.

Debate interrupted.