Urgent Debates Declined — Resignation of Supreme Court Judge—Justice Wilson

I have received a letter from the Hon David Parker seeking to debate under Standing Order 380 the announcement by the acting Attorney-General on 21 October 2010 that Justice Wilson will resign. In ruling on an application for an urgent debate, the Speaker has to determine not when an announcement was made but when a particular case of recent occurrence occurs. The particular case must have arisen before the House meets, to qualify for a debate. Justice Wilson’s resignation does not take effect until 5 p.m. on 5 November 2010. Furthermore, it is a well-established rule that the House does not interfere with any question relating to the administration of justice or the conduct of a judge unless the matter is brought before the House by motion, and I refer members to Speakers’ ruling 32/3. Otherwise, it is unconstitutional to reflect on, or speak disrespectfully of, a judge, and I refer members to Speakers’ ruling 32/4. This rule cannot be circumvented by allowing an urgent debate to be held. The application is therefore declined.

I raise a point of order, Mr Speaker. I raise two points. First, are you suggesting that this application would have been more properly made on 5 November, rather than now? I think that if we had made it on 5 November you would not have seen it as a case of recent occurrence, because the announcement had been made earlier. That is my first point of order.

Second, I think that it is quite within the powers of this House to try to protect the integrity of our institutions. When a judge of our highest court retires or resigns under a cloud, I think that is a matter of public interest that ought to be able to be discussed, because we are protecting the institution of the courts and their reputation.

I think there are two other issues that this Parliament should properly debate without getting into the substance of the debate or reflecting on the judiciary. In fact, there are probably three points. The first is the role of the Acting Attorney-General in making a decision to spend nearly $1 million of taxpayers’ funds—

💬 Mr SPEAKER: The member now is getting into detail of the debate and not the issue of order.

No, not at all. I am saying there is a Government decision to do this, which has been announced. The Government decision to fund a retirement package was the subject of the announcement by the Hon Judith Collins. So my question is about whether it is a Government responsibility, which I think you have mentioned. It clearly has been. It is in the letter that was given to you earlier this morning.

There are two other matters. One matter—it is fair—concerns, not in a general way but in a pretty specific way, the integrity of our court system, with the indications that were given over the weekend by the current but soon to be former Supreme Court Justice Mr Wilson—the honourable Mr Wilson, I presume—that he had given all details to the Chief Justice. There is—

💬 Mr SPEAKER: The member is straying—[Interruption]—no, the member is straying dangerously now into saying under a point of order what he may wish to say in a debate. We cannot do that. I believe that the member’s points are raised in good faith; I have no problem with that. I fully accept the way the member has raised them.

I will deal with the first point of order raised by the Hon David Parker about a case of recent occurrence. I understand why the member posed the question, but I have to give him an assurance that this does not set such a precedent. It would be totally unacceptable were the Speaker to rule that an urgent debate could not be held in the House because a matter of recent occurrence had not actually occurred, and then to turn round later and say “No, it was announced several days ago, and therefore it is no longer a recent matter.” That would be totally intolerable. I give the member an assurance that I will not try to rule in favour of that kind of inconsistency for any member, because I think that would be totally unacceptable.

The advice to me, though, regarding cases of recent occurrence, is that this matter does refer to the proposed resignation of a judge, and that has not actually occurred. Certainly, the reason why I gave the second part to my ruling was to give the member some assurance that applying again would not change the substance of my ruling, because it is section 23 of the Constitution Act 1986 that sets out that a judge can be removed from office only by the Sovereign, or the Governor-General acting on behalf of the Sovereign acting on an address from this House. There is a proper procedure involving the Attorney-General for this House to resolve to make such an address. It is my view that it would not be appropriate for us to try to circumvent in any way those proper procedures for dealing with the concern about judicial conduct. To suggest that this House have a debate on the conduct of a judge just through the Standing Orders providing for an urgent debate puts under grave threat, I think, the very important constitutional principle that separates the judiciary from this House. I am conscious that the Hon Trevor Mallard has raised the point of the importance of having confidence in the judiciary and the importance of transparency. But, of course, this matter is not one that will fester on. This matter is one that is to be resolved, because the justice has announced his intention to resign on 5 November, so it is a matter that will be dealt with when he resigns.

It is my considered view—and I looked at this very seriously, because I do not consider the issue to be a minor one; I consider the matter a matter of significance, and I wanted to make sure I gave it very careful thought—that it would not be appropriate for us to use the mechanism of an urgent debate to try to circumvent the procedures laid out in the Constitution Act and in our Standing Orders for dealing with issues of judicial conduct.

I raise a point of order, Mr Speaker. There are two or three points that I would like to make, the first going to your specific point. It is my understanding that Mr Justice Wilson has resigned effective from a date in the future. If there is a question about whether he has resigned, it is my understanding that he did resign as part of an agreement—and I see some nodding from members on the other side of the House. I think, going by the Acting Attorney-General’s statement, it was following an agreement that she was party to. The question therefore is that, having resigned, he can take no further part in our system as a judge, from the bench. And he has made it clear that it is his feeling that he cannot appear in court. But this decision of his to resign was taken after an agreement with the Acting Attorney-General as to a sum of money of roughly a million dollars, which she announced. The question then is what rights Parliament has with regard to someone who is no longer a judge but about whom the Acting Attorney-General in her wisdom has made orders that are effectively a payout. People can debate about whether it was—

💬 Mr SPEAKER: The member is—

💬 Hon Simon Power: He’s still a member of the Supreme Court.

💬 Mr SPEAKER: No, a point of order is being considered. The member is now starting, by way of a point of order, to get into debating material. The Constitution Act and our Speakers’ rulings are pretty clear on the only proper way to bring forward such an issue. This House unquestionably has a role under the Constitution Act, but the only proper way to bring such an issue before this House is by way of a notice of motion, following certain other procedures being conducted. This particular case does not reach that point, because the judge has announced his intention to resign as from 5 p.m. on 5 November.

I would be deeply concerned, as Speaker, if my decision today hinged just on this timing issue. I would not wish to deprive members of the House of a debate on a serious issue just on the matter of timing. I think that would be a technical issue that would be somewhat unfortunate, although I do not want to breach the conventions in that regard. Still, I do not think that would be sufficient to turn down a debate at the appropriate point. The greater concern is this House, by way of just an urgent debate, debating an issue of judicial conduct. I am troubled that that would seriously threaten the proper relationship between this House and the judiciary. There is a proper way for matters in respect of the conduct of the judiciary to be brought before this House, because this House has a definite role in ensuring the accountability of our judicial system. But I think we would be wise to protect that proper procedure and process, rather than put the proper separations of power under our constitution at risk through seeking to depart from that tradition and process as laid out in the Constitution Act. That is why I have ruled in that way.

I raise a point of order, Mr Speaker.

💬 Mr SPEAKER: I do not see there is a lot more I can really add.

Mr Speaker, I think you have gone to something that is important. I think most of us agree that getting this relationship right is important. I ask you, though, to reflect on one of the reasons underneath it, and that is Parliament staying out of cases, especially cases that are live. The other question I have is whether an Opposition ever has a role in these matters. As you are aware, the motion to which you refer is a motion that is moved by the Attorney-General. The question then is whether the Opposition has any method at all of indicating dissatisfaction with the actions of the court, the running of the court, and the relationship of the Attorney-General—in this case, the Acting Attorney-General—with the court. It is my opinion that the Opposition should be allowed to criticise the Attorney-General, the Minister of Justice, or the Minister for Courts in relation to their running of the courts and their relationship with the judiciary. I am afraid that your ruling might have taken us one step further away from the right of the Opposition, which is very seldom used but which I think should be jealously guarded, to say to Attorneys-General either that we agree with them—because most often we will—but also, on the rare occasion when we think things have been handled badly, to say that we do not. People should have the right to say that, even if it does go close. In the end, Mr Speaker, other than those things done by way of the Constitution Act, which is the way of sacking a judge, you do go to the Governor-General to ask for our rights to free expression. It is my view that those rights to free expression do go to the right to criticise the administration of the court system.

💬 Mr SPEAKER: I will hear the Hon Gerry Brownlee, but then I want to move on.

Mr Speaker, I think you have outlined very well why this debate should not proceed. The strongest point, I think, that you have touched on is that the Hon Justice Wilson remains exactly that, until 5 November. So if we were to engage in this debate at the moment, we would be talking about a person who is sitting on the Supreme Court bench, and therefore it would be inappropriate.

When it comes to the actions of the Attorney-General, those actions of course are open to question any day that the Parliament sits. There is no restriction on asking questions about the activities of the Minister. I do not want to stray into the territory of getting into the debate, but I reiterate that while the person concerned sits on the Supreme Court bench, it is appropriate for you to take the course of action that you have.

Presumably if there was some discomfort about that person’s sitting on the bench, then Opposition parties are free to pursue the motion option by way of notice on the Order Paper of the House. The Hon Trevor Mallard is right to say that such a thing would be used very sparingly. In the interim, a Minister who has been involved in an activity is of course subject to question in this House, without, I would think, the prejudice that might fall upon the individual concerned in this case, should that be directed at him as a debate of this nature would be.

💬 Mr SPEAKER: I will hear the Hon David Parker, finally.

There is one further point. It seems to me that if the judge concerned had gone through the full process, had been found to have erred, and then had been subject to the motion, this matter would be discussed by the House. Can a judge avoid that scrutiny in Parliament in the face of those allegations by resigning? If that is the case, then that would suggest that we should be able to debate these things in the face of a resignation. You might be right as to the timing—5 November—but I would suggest that you reserve your position until 5 November in respect of the underlying issue.

💬 Mr SPEAKER: I appreciate the contributions of the honourable members. I have found all of them to be particularly helpful. This is an important matter, and that is why I have been prepared to listen to points of order on it. I appreciate the point raised by the Hon Gerry Brownlee that this convention should not prevent a Minister making decisions from facing scrutiny around those decisions. I think the Hon Trevor Mallard mentioned having a proper process for this House, especially the Opposition, perhaps, to raise issues of concern. It may be a matter that the Standing Orders Committee could look at and contemplate further, because the Speakers’ rulings that I referred to are very old; they go back to the turn of the century. There has been an issue of a notice of motion raised in this House, if I recollect correctly, but, again, that was a long time ago. That shows the infrequency of these issues and it shows the respect that this House holds for the separation of powers under our constitution.

Members have all made perfectly valid points. To me, as Speaker, what I would feel more comfortable with is a notice of motion procedure rather than simply an application for an urgent debate, although I accept that that is somewhat different from this situation, because it may be that a notice of motion procedure that was not initiated by the Attorney-General could arise where nothing was being done about a situation that a member of this House was very, very deeply concerned about.

So in terms of the transparency of the judiciary there are mechanisms for this House to deal with that, via the proper process of the judicial complaints authority—by the process of a panel, and then by the Attorney-General putting a motion to this House. There is that possibility of a notice of motion being raised in the House, but I do not think that an urgent debate is the way to deal with these issues.

That is why I have raised this matter—because I do not want my decision to turn purely on the date of resignation. I do not think that that would be very appropriate. I think there are deeper issues here. The fact that a judge is resigning on 5 November means that that issue has been dealt with. The issues involving the Acting Minister, who is open to scrutiny on those issues as Minister, as the Leader of the House has pointed out, can be dealt with.

So I remain comfortable with my ruling today. I accept that it is an important issue. I do not want to deny the rights of this House on the rare occasion to address these issues, but I believe that proper procedures should be followed for doing that, and I do not believe that an urgent debate is the proper procedure for doing that.

I raise a point of order, Mr Speaker. I have a final point of order and it does not relate to this ruling. Now that this matter has been dealt with—I presume the delegation will, within days, be finished, because it was to deal with this matter only—is there a Minister who is now responsible in the House? I am looking at the Leader of the House, as far as questioning is concerned, and I ask whether it reverts to Mr Brownlee or whether Ms Collins continues to hold any responsibility.

💬 Mr SPEAKER: If the Leader of the House wishes to respond, he may. It is not strictly a matter of order, but if the member can assist, he may.

It may be helpful. In the general scheme of things, quite apart from this issue, a new delegation for Associate Ministers has been tabled in the House today. On this issue, quite clearly, matters relating to this particular appointment would continue to be the responsibility of the Minister concerned, regardless of the moving-on situation that may or may not arise in the future.

💬 Mr SPEAKER: I thank honourable members.

I raise a point of order, Mr Speaker. I will speak briefly, and I am sorry to delay you on this point. I think we have made the distinction between judicial conduct and executive conduct, and you have accepted the point that we can question them on executive conduct. I totally accept what you are saying.

Urgent debates are also about matters that the executive can be questioned about. We have one way of holding the executive to account—through questions in the House—but the other way is the urgent debate. An urgent debate around executive conduct related to this issue seems to me entirely within order, and the decision that was made was actually one made of recent occurrence. So I would ask you to look at that part of the issue again, separate from the judicial conduct issue.

💬 Mr SPEAKER: I hear what the honourable member is saying and I appreciate that point. Of course, that can be very effectively addressed through questions; they are one of the most effective ways to hold the executive to account. Obviously, I would have to consider any application for an urgent debate on its merits. I appreciate the member’s consideration of this issue. I personally found it quite difficult, and I sought quite a lot of advice on it prior to ruling on it. Not being a lawyer myself I wanted to make sure that I did not overstep the mark here. Members have raised important issues that can be reflected upon further in readiness should any event like this ever arise again.