Register of Pecuniary Interests of Judges Bill

on behalf of Dr Kennedy Graham: I move, That the Register of Pecuniary Interests of Judges Bill be now read a first time. I nominate the Justice and Electoral Committee to consider the bill. Before I speak to the substance of this bill, I would like to just quickly pay homage to the hard work put in by my colleague Dr Kennedy Graham on this bill. It is a fine piece of draft legislation, and deserves careful consideration. Unfortunately, his global affairs portfolio responsibilities meant that he could not be here this week to speak on this bill.

The ASSISTANT SPEAKER (Lindsay Tisch): Just a point for the future. You cannot refer to the absence of a member. In the context of this, we understand, but just think about it in the future. You cannot talk about the absence of a member.

Thank you, Mr Speaker. Given that the bill was introduced in November 2010 one would have hoped it could reach this stage before now, but we are glad that it is finally here, and we acknowledge and appreciate that the Government has agreed to work with us on this bill.

We in the Green Party and, I believe, pretty much the whole of the country were saddened by the set of circumstances that led, ultimately, to the resignation of one of our most talented judges not very long ago. It is always a personal tragedy when unexpected events put to an abrupt end the work of talented individuals who have contributed much to the future of New Zealand. The circumstances surrounding that episode do not warrant detailed investigation here in this debate. Suffice it to say that it exposes a number of characteristics of the judiciary of a small country such as New Zealand—and perhaps even of countries that are not so small—and of the limited and, to some extent, intimate circle of acquaintances that goes to make up the higher echelons of the judiciary.

In such circumstances there exists an even greater than usual responsibility on the part of all individuals involved to ensure that the integrity of the system is not in any way compromised, through a strict respect for the principles of openness and transparency. It is a time-honoured principle of Western democracy that public servants of every kind must be beyond reproach. Public confidence in the standard of behaviour and conduct observed by leading servants of the people is a cornerstone of social harmony and political stability. A threshold of confidence should, ideally, be enshrined in constitutional and legislative form. Little scope should be available for individual discretion or subjective perception.

The principles of transparency in this respect pertain in particular to issues of financial interest. Nothing undermines public confidence in a nation’s institutions and procedures more than a suspicion that a public servant may have suffered a conflict of interest arising from a financial engagement in a particular dealing in which one was professionally involved.

In New Zealand members of the executive have been required under statute since 1990 to provide statements of pecuniary interests pertaining to their personal financial affairs. Such statements are submitted to the Speaker, and these are made available for public consumption. In 2006 this practice was extended to all members of Parliament. Since then MPs have been required to submit annual statements of pecuniary interests to a registrar, who makes the information publicly available.

The legislature’s version of pecuniary interest statements was modelled along the lines of that of the executive. In both cases a careful balance has been struck between transparent public knowledge of an individual’s financial affairs and the preservation of personal privacy. The correct balance in this respect appears to have been achieved over the years. The public interest in such annual statements is significant without appearing inappropriate, and few complaints have been voiced by those on whom the obligations are placed. There seems to be general acceptance that such exercises are in the public interest and are neither unduly onerous nor revealing.

No such practice, however, has been observed in the case of the judiciary. Recent developments within New Zealand’s judicial conduct processes suggest that application of the same practice observed by the other two branches of government might assist in the protection of the judiciary in the future. Being obliged under law to declare pecuniary interests that might be relevant to the conduct of a future case in which one is involved would relieve a judge from a repetitive weight of responsibility to make discretionary judgments about his or her personal affairs as each case arises.

Having declared one’s pecuniary interests once in a generic manner, independent of any particular trial, a judge may freely proceed in the knowledge that if one is appointed to adjudicate, public confidence for participation has already been met. Yet care is to be exercised to ensure that the final decision as to whether to accept a case is left to the individual judge.

There should be no intention of external interference in the self-regulation of the judiciary by the judiciary. This is the reasoning behind the draft legislation before us. It takes as its purpose the promotion of due administration of justice by requiring judges to make returns of pecuniary interests, in order to provide greater transparency within the judicial system and to avoid any conflict of interest in the judicial role.

Let me review the main provisions of the bill. Clause 4 provides that “Nothing in this Act is to be interpreted as compromising the constitutional principle of judicial independence guaranteed by the Constitution Act 1986 and respected by constitutional convention.” Clause 6 describes the two key components of the bill, which are to require returns of pecuniary interests from judges and to establish a register of such returns.

Clauses 5, 7, and 8 impose a duty on judges to make an initial return of pecuniary interests following appointment as a judge. Clause 9 lists the contents of returns of pecuniary interests. Clause 14 provides that disclosure of the actual value, amount, or extent is not required in relation to any matter that is required to be disclosed. Clause 19 provides that the registrar must publish the information contained in both initial and annual returns of pecuniary interests.

Clause 20 provides that the registrar must publish the name of any judge who fails to submit any return. Clause 21 provides that it is the responsibility of each judge to ensure that his or her obligations under the Act are fulfilled, and places limits on the responsibilities of the registrar. Clause 22 provides that a complaint that a judge has failed to make a return of pecuniary interests is a matter that has bearing on the judicial functions or judicial duties of the purpose of section 16(1)(b) of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

This bill is not designed to imply any right of the legislature to intervene in the affairs of the judiciary. As I said before, nothing in the draft will be interpreted as compromising the constitutional principle of judicial independence guaranteed in our constitution. The intention of this bill is simply to facilitate the promotion of due administration of justice by requiring a similar financial return by judges to what is already required by both the legislature and executive of this country. We submit that our constitutional integrity as a nation will be enhanced with the passage and adoption of this bill. Thank you.

This is a bill to establish a register of pecuniary interests for judges. The Register of Pecuniary Interests of Judges Bill was introduced to the House on 11 November 2010. Following its introduction the Law Commission took urgent steps to prepare an issues paper on the subject, which was made publicly available in March 2011. The National Party will be supporting this bill through to the select committee stage. It deals with a serious subject—namely, confidence in the courts that interpret this Parliament’s laws. However, we do have reservations about whether a register of judges’ pecuniary interests is an appropriate mechanism to safeguard that confidence, and, in particular, whether this bill would achieve its stated aims.

My colleagues will elaborate on these concerns, but first I would like to give some background to this matter. The issues paper by the Law Commission helpfully sets out the background to this issue. It describes the position of other jurisdictions. For reference, it outlines the features of judicial financial registers that have been established in the US, India, and South Africa. The Law Commission notes that currently New Zealand judges are subject to ethical codes developed within the judiciary and through the evolution of the common law. This ethical code has recently been confirmed in the Supreme Court judgment in the Saxmere case. The commission goes on to say in its paper that any judge in breach of this ethical code can be subject to a formal complaint under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. It is the Law Commission’s view that the substantive law surrounding judicial recusals is well settled and that no legislative intervention is necessary. However, it does suggest that the process by which recusal applications are processed could be usefully refined. Since the issues paper on the subject was published, the Law Commission has also begun work on a wider review of the court structure. It is its opinion that if a register like the one being considered now should be found to be necessary, the proper manner for its implementation would be as a considered component of a new Courts Act. The Law Commission’s final report will be delivered very shortly.

This bill, as I have said, raises what are serious matters in a serious fashion that avoids glibness or politicisation. I acknowledge that the bill’s sponsor is Dr Kennedy Graham, who is a thoughtful and respected member of Parliament. He has waited a long time for his bill to be brought before the House, and it is appropriate that the issues raised in it be explored at the select committee. The National Party will support this bill to the select committee for its consideration. However, National also accepts the Law Commission’s opinion that this is an issue that needs to be considered as part of a wider courts review. We would not support the progress of this bill any further unless it was as part of the Law Commission’s recommendation for a wider courts review.

I want to begin my contribution by congratulating Kennedy Graham on bringing forward this measure, the Register of Pecuniary Interests of Judges Bill, and by indicating that the New Zealand Labour Party will support sending the bill to a select committee for further consideration. I think this is probably the first occasion on which a member’s bill has triggered a Law Commission report, and that is probably another indication that this is a bill that has significance attached to it.

The reason that my colleagues and I have decided to support the bill’s referral to a select committee is that we do believe very strongly in the importance of the principle of the open administration of justice. This is especially the case since New Zealand took responsibility for our own final appeals, repatriating that jurisdiction from the Privy Council and reposing it in the Supreme Court, the court that sits opposite Bowen House today. But having said that we will support the bill’s referral to a select committee, it is important to recognise that the bill raises some very serious constitutional and other legal issues. Those issues are going to need to be very carefully canvassed in the select committee, and the commitment from the Labour Party to support the bill is to ensure that the discussion can occur in the appropriate forum.

The Law Commission report set out some of those concerns, and I might just mention one or two of them now. First of all, there are real problems in conducting a comparative analysis, as we would normally do, with the jurisdictions that we like to compare ourselves with. There is no comparable register in the United Kingdom, in Australia, or in Canada, and that applies in respect of the federal and state or provincial jurisdictions where that is a relevant factor in those jurisdictions. So there is really nowhere that we can look to in terms of those jurisdictions that we normally like to consider when we think about whether or not a particular intervention would work in New Zealand.

I think the previous speaker mentioned the United States. There has been an attempt to codify judicial obligations as to disclosure of potential conflicts at the federal level there, but that has raised some real problems, which we will have to confront when the select committee discussion that I mentioned earlier occurs. Chiefly, who polices? “Quis custodiet ipsos custodes?”, I think, is the maxim. The judges are going to have to, themselves, take responsibility in the end for the accuracy of any register that might come into being, and there have been real problems around the timeliness, accuracy, and completeness of disclosures under the American system. So that is a warning, I think, as to the potential fate of a register in a jurisdiction such as ours.

There are other issues that will need to be considered, and they are referred to in the Law Commission report. What should the scope of a register of judicial interests be? Should it apply to full-time judges only or to all the quasi-judicial tribunals that sit part-time across the country? What sort of detail should be required in the register? Should it be as for our Standing Orders or should it be a more scant provision? How often should the register be updated? Should it be on the acquisition of any new assets, or should an annual or even a less frequent updating be required? Should it apply to spouses, children, and related parties, or simply to the judicial officer him or herself?

Finally, and most important, should we as a Parliament be seeking to impose upon the judiciary these sorts of requirements? My own view is that it would be much better if the courts were to perform this exercise themselves, voluntarily. It would be my hope that we could come to a position where this debate encouraged that to occur. To me, that would be the ideal position. Meanwhile, we look forward to the select committee debate.

Debate interrupted.