Register of Pecuniary Interests of Judges Bill

I would like to take a relatively short call on this Register of Pecuniary Interests of Judges Bill, not that it is a subject that does not excite interest but it is just that we have already heard from speakers who are well versed in the justice system, and I think they have covered an awful lot of good points. I enjoyed listening to Charles Chauvel speaking about his earlier occupation, and it is one that does stir a lot of interest.

The bill, which has been introduced by Dr Kennedy Graham, seeks to deal with what is assuredly a most important issue: ensuring we have confidence in the judges who hear public cases, and that they are free from any conflict of interest that could lead, consciously or unconsciously, to incorrect decisions being made. The Law Commission acknowledged the serious nature of the issue raised by Dr Graham’s bill, and I think it is a credit to him that it attracted the attention of the Law Commission. That being said, it still leaves a number of questions. Is there a legitimate issue, whether a practice or perception, that needs to be addressed; if so, is this bill the right way to do that? Do we have a problem in New Zealand that requires a pecuniary interests register for judges, with the issues that such a register requires? The Law Commission gives this matter careful treatment in its issues paper.

It is important to note there have in fact been very few cases where pecuniary interests have been the basis for a challenge to a judge sitting on a case in New Zealand. The commission’s paper outlines the positions of other common law countries. New Zealand is substantially the same as England and Wales, and Australia and Canada have no plans to introduce registers for judges’ pecuniary interests. The Law Commission concludes that the law relating to when judges must recuse themselves from trials is both well settled and consistent with comparable jurisdictions.

This bill would not clarify the issues surrounding the process by which a judge is removed from presiding on a case. The bill is directed towards a substantive identification of conflicts, but not the process surrounding the conflicts in general. The commission’s view, and my view as well, is that there is no need for a legislative intervention. Instead, any deficiencies in the way judges apply the process for recusal decisions are, I think, better made by the judiciary itself, through the rules of the court or similar procedural measures. I support, however, the proposal to forward the bill to a select committee. Thank you.

Kia ora, Mr Speaker. Ngā mihi nui ki a koutou. Kia ora. First, I would like to acknowledge the respectful, thoughtful, intellectual debate we have heard here today. Just for the members’ interest, this is what you get when you get a Green bill in this House—a respectful debate.

💬 Chris Auchinvole: You’ve just spoilt it, Gareth—you’ve just spoilt it!

Ha, ha! We would like to thank the other parties in this House for their comments. I would like to acknowledge Dr Kennedy Graham, who is possibly one of our most thoughtful, intellectual, and respectful MPs. It is good that the other parties are supporting this Register of Pecuniary Interests of Judges Bill. It is good that it is going to get another hearing at the Justice and Electoral Committee. It is good we will get to hear from the judges and the public, because it is an important issue. Obviously, conflict of interest is a reality in our modern world. Kiwis have got to have confidence in our judiciary. We need to have as a goal, I think, the most open Government and judiciary that is possible within practical means. We pride ourselves on being one of the least corrupt nations on earth, and, as the old cliche goes, sunlight is the best disinfectant. Public transparency and openness is the best way to have confidence in a vital sector in our country.

As we heard from the member Julie Anne Genter, the executive in New Zealand had a register of pecuniary interests back in 1990, MPs followed in 2006, and now 2012 is the year when we need to have the Register of Pecuniary Interests of Judges. I think we could also widen the debate to look at local government, which has a register but it is still not made public. What we want to have is across the judiciary and democratically elected positions in New Zealand those principles of openness and transparency enshrined.

We acknowledge that this law will not be onerous for judges. It is going to be easy, fast, and transparent. As Julie Anne Genter outlined, the bill is relatively simple. It outlines how the judges can make the register of pecuniary interests, and explains how to do their returns, how interests must be listed, the fact that the value is not disclosed, and that the register must be made public, which is crucial, given the example we have of the Register of Pecuniary Interests of Local Government Members. Judges have to do it. The important clause, which is the part that Charles Chauvel picked up on, is whether we do want this legislation to be enforcing a provision on the judiciary. We hear what the member is saying about the judiciary doing it themselves, but we have made that crystal clear with clause 4, which is trying to protect that very important constitutional principle.

We note National’s reservations. Will it achieve its stated aims? We think it will. We think it works. The register works for us in Parliament. But this is why it is good that the bill will be going to a select committee so that we can have that in-depth discussion. The bill can be amended and made better. As to Labour’s question about who is going to be policing it, I think the member Charles Chauvel answered it himself. It is the judges. Ultimately we have to limit the legislature’s influence or engagement with the judiciary in that sense. So it is up to the judges, but again we will see that detail come out at the select committee.

In summary, we would like to thank the other parties for their support. We would like to invite the public and interested parties to make a submission to the select committee. We have had a great track record with members’ bills over the years, from forming the Energy Efficiency and Conservation Authority, through to the groundbreaking waste legislation, section 59, mothers with babies, and flexible working hours, and we look forward to having another Green member’s bill joining that list. Kia ora.

New Zealand First supports the Register of Pecuniary Interests of Judges Bill. Some events in recent years have shown that legislation to ensure transparency in respect of judges’ interests and to provide a means to avoid conflicts of interest for judges is now appropriate.

There has been something of a hands-off attitude for judges as public servants, when standards relating to conflicts of interest and transparency measures in respect of conflicts of interest have been long accepted by members of the executive since 1990, members of Parliament since 2006, and also on a voluntary basis by local government members, who often volunteer to do this. So there is no reason I can see why these standards and such measures should not also be applied to the judiciary. I do not mean at all that judges are generally remiss in avoiding conflicts of interest. The opposite is in fact the case. Almost always they behave well in this respect. They stand down when there is any hint of a conflict of interest, but some recent events have shown that there can be exceptions, rare though they may be. This bill does not remove the responsibility of judges to assess for themselves if they have a conflict of interest. It actually adds to transparency, however, by the use of a register and it enhances the principle of avoidance of conflicts of interest, and provides judges with an opportunity to be transparent, in line with now accepted practice. So it should be welcomed by them.

One concern I would have, though, is in clause 5, which provides the definition of a judge. I believe it should include disputes tribunal referees, since they make decisions in a wide area, especially in the area of consumer law, and they decide significant-sized claims now. They are no longer anything like the old small claims tribunals. So they should be included as well.

It is important, however, in principle that all people with significant decision-making powers who hold public office, whether elected or appointed, need to give up a degree of privacy in return for the means to ensure public confidence in respect of avoidance of conflicts of interest. It is to achieve the objective of transparency that it is necessary for that to be legally required for judges as well as for others, such as those I have mentioned. So there does need to be, I think, a properly structured register, as provided for in this bill. So I would disagree with Simon Bridges in what he said. I believe we need to show an effective means of avoiding conflicts of interest for judges, and most particularly for the reason of public perception. I do not see how that could be achieved without legislation of this kind for a register, despite the report of the Law Commission in its paper.

When looking at the bill in detail, it seems to me to be well drafted. Clause 9 sets out a comprehensive list of interests, and I note also clause 10 in respect of the interests of judges in relation to personal relationships being exempted. That seems to me to be a good balance. Finally, as to enforcement, I note the provisions of clause 22 and the use of the Judicial Conduct Commissioner as a means of enforcing the provisions of the bill, and that seems to me—

Like my colleagues I will be voting that this bill, the Register of Pecuniary Interests of Judges Bill, be referred to the select committee so that it can be examined and considered more fully. However, I share their concerns at what the possible consequences of bringing in a register of judges’ pecuniary interests could be. For that reason, this House and the Justice and Electoral Committee must exercise great care in considering this bill. The Law Commission’s issues paper details some of the fears about what such a scheme may lead to. The Law Commission concedes that the judiciary cannot live in a fortress above concerns about transparency. But it is none the less true that great care must be taken to protect the judiciary’s independence from other branches of Government, and also to respect the same kinds of principles of good decision-making we would expect from the judiciary itself.

The member’s bill proposes that the Judicial Conduct Commissioner will maintain and monitor compliance with the register. However, as the commission states, the Judicial Conduct Commissioner also exercises a quasi-judicial function in relation to the judiciary. Any complaints about conduct will be referred to his or her office. The commission says that conflating this role with the role of policing the register is unusual and in general undesirable.

Another concern is the effect a register would have on judges’ privacy and, related closely to that, their security. One fear is that publishing the personal financial details of judges could lead to what an American court described as possible pressure or importuning by family members, public and political interest groups, and others. The publication of detailed holdings—in particular, items such as a judge’s residential address—could also lead to an increased risk of either physical or economic harm at the hands of criminals or disgruntled litigants. These are not imaginary concerns. The Law Commission notes that in New Zealand judges have been subject to threats to their safety. Provision, therefore, must be made as to how sensitive information could be redacted, although the commission also notes that experience in the United States has shown this is more easily said than done.

Another issue is exposing judges to vexatious litigants. Already we see a flood of complaints to the statutory Judicial Conduct Commissioner each year, and the number of outstanding complaints is steadily rising. Most of these complaints are dismissed. Some are clearly vexatious. Making available a detailed register of judges’ interests may perversely empower vexatious litigants to pursue personal vendettas through new litigation raised about issues at bizarre tangents to the original case. This would serve only to further clog up the court system, and it does nothing to serve justice.

These factors impact on not only those we rely on to coolly interpret and apply the law without fear or favour. Anything that affects sitting judges also has an effect on the ability to attract and retain existing judges of high calibre. Many top advocates and lawyers already accept substantial cuts in income in order to sit as judges. If they are confronted with requirements to give up their privacy and possibly expose themselves to more serious problems, it will be that much harder to entice first-class candidates on to the bench. With these reservations in mind, we will be supporting the bill going to the select committee, where these important and timely issues can be more fully examined. Thank you.

Labour intends to support the Register of Pecuniary Interests of Judges Bill going to the Justice and Electoral Committee. It is a serious bill. Its purpose is a very proper purpose, and that is, to quote the bill: “… by requiring judges to make returns of pecuniary interests to provide greater transparency within the judicial system and to avoid any conflict of interest in the judicial role.”

I think we are generally very well served by the judiciary, and there have been very few accusations, allegations, or even suspicions of corruption, in so far as it affects the judiciary. But as my colleague Charles Chauvel pointed out earlier, conflicts of interest or perceived conflicts of interest can occur and in the Saxmere case that led, rightly or wrongly, to the resignation of Justice Wilson. I think one concern that you would need to have is that whatever is done in this legislation preserves judicial independence. I am a huge believer in judicial independence, not in so far as my former role as Minister of Justice but my former role as Minister of Foreign Affairs and Trade. You could judge the quality of the rule of law in a country by the independence of the judiciary, and nothing ought to be done that would substantially, or in any way, undermine the principle of judicial independence. But I do not think that that is automatically the consequence of legislation of this nature. I await with interest the final report of the Law Commission, and I think it is going to be a real benefit to the Justice and Electoral Committee to have that final report alongside the legislation when it looks at it.

It is not really a hugely radical move. I remember back in 1990 it was a Labour Government that first applied the principle of having a register of pecuniary interests to the executive. There are all sorts of things said about that and how undesirable it might be, but actually that has turned out to be, I think, a strong move in the right direction, helping New Zealand preserve the very proud record that we have, through Transparency International, as being regarded as first equal in the countries that have the least corrupt systems in the world. In fact, the pecuniary register for the executive has worked so well that, again under a Labour Government, since 2006 that has applied to all members of Parliament, and I do not think there are any members of Parliament here who think that we have been hard-done-by because we have to register our pecuniary interests. I think it is a protection for members of Parliament, and it is a protection and a guarantee for the integrity of the system, and I could see it having a similar impact in so far as it relates to the judiciary. It is important to note that although judges would have to set out areas where they have pecuniary interests, it does not extend to the actual value or the amount, so that privacy interests are protected in that way.

When the Law Commission looked at this issue, its preliminary view was that the existing law relating to recusal for financial interests by a judge was adequate rather than any new law being needed. However, the commission also noted: “there is a value in transparency because it increases public confidence in the integrity of public officials, deters conflicts of interest from arising, ensures standards of conduct and integrity remain high, and enhances accountability.” I think that that, in a sentence, sets out the justification and the arguments for a register of pecuniary interests. I am aware also that comparable regimes such as the United Kingdom, Australia, and Canada do not have it, but the United States does have it, and it has had it since 1978.

I will finish with this quote from a very conservative Chief Justice William Rehnquist, who was actually appointed under the Nixon administration. He said this of the American system in 2000: “There are legitimate purposes served by the Act.” Among them is “exposing the judges’ financial holdings to public scrutiny which assists judges in avoiding conflicts of interest.” Then he goes on a little later to say that few would argue that there is no need to publicise a list of judges’ holdings for conflicts purposes. To end on another justice of the Supreme Court—

The ASSISTANT SPEAKER (Lindsay Tisch): I am sorry to interrupt the honourable member.

The Register of Pecuniary Interests of Judges Bill clearly raises important issues. However, it seems from the Law Commission’s report published in February and the submissions that the commission has received on that document to date that there is some doubt about whether this is an effective response to these natural and legitimate concerns, or, indeed, as others who have spoken tonight have indicated, an appropriate one.

I understand that the legal community is not broadly in favour of a register. One matter identified by members of the legal profession is that the bill does not address what they see as the more relevant issue of the actual process for applying the very well-settled laws relating to recusal in practice. This bill would not overcome the issue identified by both the profession and the bench, which is the absence of guidance on how to apply the recusal rules consistently. Those rules determine whether a judge should remove him or herself from a case. The bill instead is directed toward identifying the possible conflicts in advance by listing them publicly.

It is worth noting that there are a number of very difficult technical issues around the construction of such a register if it is to achieve the goal of pre-emptively identifying possible conflicts. This is especially the case where the nature of the financial relationship between parties is not entirely straightforward or apparent on the face of ownership records. That was the situation in the Saxmere case, which most recently brought this issue into the public eye, as Mr Goff has just mentioned.

This Government, in this matter led by the Minister of Justice, has been taking a close look at the justice sector as a whole. That process includes a very substantial rewriting of the Judicature Act, which is the statute that governs the courts. This is a significant piece of work that involves looking at the whole variety of issues relating to the courts. That will include the law of contempt of court, and the issue of vexatious litigants, which my colleague the member for New Plymouth mentioned a moment ago. It also includes the structure of the courts and examining whether there should be greater specialisation of judges in order to deal with specific areas such as commercial cases. These reforms represent a rational and systematic approach to reviewing the way our courts operate. The last thing the judiciary or the public needs is a continuation of the piecemeal reform and legislative field surgery that has sometimes prevented careful and constructive consideration of these issues.

No one would argue that this bill’s aim of ensuring public confidence in the judiciary is not admirable. The bill has been offered up to the House by a very thoughtful member, Dr Kennedy Graham, and it deserves consideration by us and by a select committee. These issues are important, and a full airing of them can only assist in whatever steps this House takes towards ensuring public confidence in the justice system in general. Therefore, National is supporting this bill going to the Justice and Electoral Committee so that we may carefully consider the issue. However, we expect that any further progress will be part of the ongoing review of the courts that is currently in progress.

I am very happy to take a call in support of the Register of Pecuniary Interests of Judges Bill, brought to this House by the honourable member Dr Kennedy Graham. As members will know, Labour is supporting this bill to go to the Justice and Electoral Committee. It is hard to argue against a bill that seeks to extend the principle of transparency to any branch of government, and the record of this party in Government is one of supporting the advance of open government and transparency. On the face of it, we see no reason why this bill, which seeks to extend transparency to the judiciary, should not at least receive serious consideration at the select committee. The executive branch of Government, as my colleague Phil Goff noted, has been subject to the disclosure of pecuniary interests since 1990, and it was the fifth Labour Government in 2006 that extended the same requirement to all members of Parliament. Now we can see that was undoubtedly a good thing.

As previous speakers have observed, the primary benefit that this bill seeks to achieve is the strengthening of confidence in the judiciary through transparency. This will ensure that where there might be a conflict of interest in a case due to the particular interests of a member of the judiciary, it can be resolved earlier rather than on a case by case basis.

The purpose of the Register of Pecuniary Interests of Judges Bill is to promote the due administration of justice by requiring judges to make returns of pecuniary interests, just as Cabinet Ministers and members of Parliament currently do, and in doing so that will reduce the potential for perceived or real conflicts of interest. The Law Commission, as has been noted, is working on these matters now and will bring a report to Parliament. That will undoubtedly be of great assistance to the select committee as it weighs up these issues. The commission has already released an issues paper on this matter, as part of efforts to modernise the Judicature Act, and I want to quote one or two passages from that issues paper. The commission noted that there are more than 50 tribunals in New Zealand—many of which require a legally qualified tribunal chairperson—dealing with a wide range of legal issues. It asked: “Why should people exercising at least quasi-judicial powers not also be covered?” by these kinds of provisions.

The Law Commission also said that the primary question is whether a register of judges’ pecuniary interests is necessary or appropriate. If the answer to this question is yes, then there are a number of other questions that the select committee will have to consider about the scope and requirements of such a register, whom it will apply to, what level of detail is required, and how widely available the resulting information should be. Those are all, I think, useful issues that the commission poses. Previous speakers have noted the importance of maintaining privacy for those who are covered by such a register, and, as is the case with MPs’ pecuniary interests declarations, there will be a need to ensure that the information is presented in a way that does protect the privacy of individuals.

The Law Commission’s preliminary view was that no legislative intervention is required to the substantive law relating to recusal for financial interests by a judge, but “the process by which recusal applications are entertained in the … courts could usefully stand refinement and publication.” The question is how much detail, what kind of scope is required, and what the cost of those provisions would be in relation to the benefits. I think the really useful observation made by the commission was that the value of transparency is that it increases public confidence in our institutions of government. Labour is supporting this bill’s referral to the Justice and Electoral Committee.

I have listened with great interest to the debate. I would like to thank all members here for the very respectful and thoughtful nature of the debate, and for their support at the first reading of the Register of Pecuniary Interests of Judges Bill. We are, of course, well aware of the work that has already gone into the question of pecuniary interests by the Law Commission, some of which was in response to Dr Graham’s member’s bill. I am grateful that the commission should take this issue with the seriousness that it warrants and devote priority to the matter.

We acknowledge the intent of the Government, explained by the Attorney-General and also members here in the House today, that the select committee consider approaching the bill within the broader context of the reform of the Judicature Act. We assure all members that we will work in a positive spirit with the Government and other members of the Justice and Electoral Committee to advance the general aims of the bill and the judicial reform package that the Government is intending to bring in. We look forward to working with it to those ends. Thank you.

Bill read a first time.

Bill referred to the Justice and Electoral Committee.