Register of Pecuniary Interests of Judges Bill

I move, That the Register of Pecuniary Interests of Judges Bill be now read a second time. The bill has experienced a meaningful life, even if it may prove to be short. It was conceived with good intent. The idea is to provide some protection to members of the judiciary through a register of pecuniary interests. It is to ensure the avoidance of misunderstandings that could result in the resignation of capable judges. It would relieve a judge of the continuous obligation to make a call on the need to recuse themselves from a case if there may be a conflict of interest involved. It would enable the judiciary to avail itself of the same mechanism that members of the legislature and the executive utilise as an instrument of public confidence in Government. The judiciary, as the third branch of Government, might perhaps be seen as no exception to the political imperative of public trust.

The bill has attracted considerable comment in New Zealand and, indeed, beyond, attracting interest from as far afield as the Parliament of Scotland. The bill was given unanimous, if contingent, support by the House and referred to the Justice and Electoral Committee. It prompted the first report ever on a member’s bill by the Law Commission. To cite the commission: “The judiciary does not exist in isolation. It is an institution in a particular society. Judges must have the respect and faith of the communities they serve to be effective. This is because in a democracy, the enforcement of judicial decrees and orders depends ultimately on public co-operation.”

The bill received a number of thoughtful submissions, including from the Chief Justice and the president of the Law Society. It occasioned considerable discussion in the select committee itself. The select committee recognised that the bill had the constructive aim of assisting the judiciary in the execution of its duties. For its part, the Government adopted a view that it should not proceed with the bill, and its reasons are threefold: it would risk the privacy of judges, it lacks the focus on important non-pecuniary interests, and the administrative burden of operating such a register would outweigh any potential benefit. These arguments are all, with respect, contestable.

Regarding the first argument, more ways can be found to ensure the privacy of judges than to ensure the privacy of members of Parliament. The second and third reasons are not in themselves germane to the central thrust of the bill, but, rather, arguments for amending it. An underlying issue is whether in making a judgment of this kind, New Zealand should confine its considerations of relevance to common law countries alone; for this is what the Government and the select committee have done. The Law Commission argued that the present substantive law is satisfactory and in line with other common law jurisdictions, and so no new legislative correction is warranted, but the present law of recusal is unsatisfactory and needs attention.

Down here we assure ourselves that common law countries are different in our jurisprudential foundations, and so different principles and best practice apply. That self-assurance should be taken only so far. There is a commonality of underlying precepts on which all legal foundations rest. The United States, for example, maintains a register for judges. The fact that common law countries do not is not in itself a compelling argument for us not to do so in the future. Were it so, we would never have adopted from Scandinavian countries the institution of the Ombudsman, and, as I say, the Scottish Parliament has shown some interest as well.

Since receiving the Register of Pecuniary Interests of Judges Bill, the Justice and Electoral Committee has also received the omnibus Judicature Modernisation Bill, running to 1,182 pages. That bill is to be divided into six parts, of which Part 1 is to be the Senior Courts Bill. In that bill, clause 168 addresses the issue of recusal of judges. The Government had always made it clear that refining the law of recusal was preferable to introducing a register of interests. The question, therefore, is whether the Judicature Modernisation Bill contains provisions that adequately address the stated objectives of the Register of Pecuniary Interests of Judges Bill.

The referral of the bill to the select committee reflected a spirit of cooperation between the National Party and the Green Party, and I wish to acknowledge the Attorney-General for his constructive approach to this issue. It remains my intent to maintain that spirit of cooperation, and so I wish to address the question of whether the principal objective of the bill is adequately taken into account in clause 168 of the Judicature Modernisation Bill as currently drafted. That clause requires the Chief Justice to develop and publish guidelines to assist Supreme Court judges when deciding whether or not they should recuse themselves from a proceeding. Separately, the Chief High Court Judge and the President of the Court of Appeal will, in consultation with the Chief Justice, develop guidelines for all other judges. This would certainly be a step forward, but is it sufficient to ensure, on a professional basis, that a judge is adequately protected from a conflict of interest, and is it sufficient, on a political basis, to assure the public that this is the case?

There may be some merit in an amendment to clause 168 concerning recusal guidelines. The shortcoming, as I see it, is twofold. First, the action is one of self-recusal, which accepts a degree of personal subjectivity and reduces objective and public engagement in the decision. Second, the precise guidelines are left for the judiciary itself to determine. Judges are highly trained and are acknowledged to have integrity, but they are human. It is often simply too difficult for an individual to make that call for themselves. As the International Foundation for Election Systems, the well-respected US expert body, observed: “Although judges often [baulk] at the invasion of privacy that disclosure of their private finances entails, it is almost uniformly considered to be an effective means of discouraging corruption, conflicts of interest, and misuse of public funds.”

What is it about the New Zealand judiciary that makes it so different? It has been argued by the Law Commission that members of Parliament have the opportunity to defend themselves through the media. Some defence! It is suggested that judges might be more vulnerable to aggrieved litigants or convicted persons. I suggest that we are all equally exposed in our various ways, or should be.

I am grateful to the House for allowing this bill to be considered and to the Law Commission for giving it such serious consideration. I know that the bill will not, in its specific form, be passed into law. It is a fate I can accept with near total equanimity. But I do genuinely believe that the aims of the bill are not adequately covered in clause 168 of the Judicature Modernisation Bill as currently drafted.

If the route that is clause 168 is to be followed, then I suggest that the bill be more specific as to what these guidelines might be. I plan to move an amendment, when the time comes in the Committee stage, in respect of the Judicature Modernisation Bill, to ensure that this is the case. I hope members will view that amendment in the constructive spirit in which it will be advanced and was shown by the Attorney-General and the Government to this bill.

National does not support this bill. The member Dr Kennedy Graham has given a pretty full account of his rationale for promoting the bill. The information I was given was that the member had intended to withdraw the bill when it was at the Law and Order Committee, so why he has chosen to continue with it I do not know. But as the member was talking it occurred to me that the recusal provisions actually prove the point that the current provisions are working.

If we go back to, I think, around 2004—I am not quite sure of the time, but it was around that time—there was a Court of Appeal case from which Justice Bill Wilson failed to recuse himself. It was Saxmere Company Ltd and others v Wool Board Disestablishment Company Ltd, as some members will remember. It was found that Justice Wilson had a business relationship with one of the counsel and should have recused himself because he clearly had a conflict of interest, but he did not recuse himself. So in terms of the law—and the member probably thinks I am agreeing with him—it was determined by the justice that, yes, in fact, he should have recused himself. He then went on to resign his position, and I think the accountability is there in the existing legislation. So maybe the issue here is not so much around having a register of pecuniary interests, but around the provisions that deal with recusal and whether or not they are effective, and I would contend that they are.

So I will just move on to the Law Commission report of 2011, where the Law Commission released an issues paper that, indeed, examined the potential for having a register of pecuniary interests for judges. That report set out the current law as it relates to New Zealand, England, and Wales, and it described the key features of financial registers in the United States of America, India, and South Africa. The Law Commission determined and recommended in its report that a register of judges’ pecuniary interests not be established in New Zealand, and the member did not address that point in his speech. But we do have a Committee stage to come, so I would expect and hope that the sponsoring member would address the recommendation of the Law Commission that a register of judges’ pecuniary interests not be established in New Zealand. I mean, the member may care to disagree with the Law Commission over this point, but I think the House would be interested to hear the reasons why.

There are also concerns—I absolutely understand those concerns—that a public register of assets and of financial information could, and I would say “would”, compromise judges’ privacy, and in some cases their safety, and would expose them to pressures that they otherwise do not face. When I think of a District Court judge who does a circuit around provincial New Zealand, they are in small towns. With regard to the nature of small towns, let us talk about Whanganui, for example. The District Court judge comes and does a circuit and appears in the town and sits in the court weekly, fortnightly, or however often the round is. The same defendants tend to come up against the District Court time after time after time. They are known to that judge. They develop a history. They are known clearly to the local police. So it is a pretty small environment, and it is a pretty small pond.

Imagine that some character gets his hands on the register of pecuniary interests of the District Court judge who is doing the circuit, and reads that the District Court judge has a residence here, has a residence here, has a residence here, holds a mortgage with some bank, and other items. As members of Parliament we are very familiar with those, but that information in the hands of an offender who is clearly holding a grudge against a judge has the potential to place that judge under some unwelcome pressure. I am not talking about an offender in the dock being less than respectful—there are remedies for that—but I do worry, and I genuinely worry, because judges tend to be quite isolated folk anyway due to the very nature of their job. I would not like to think that they were needlessly being placed under threat by some members of society who did not bear them the best of good wishes.

It is believed that the current ethical codes and the common law around recusal are satisfactory in New Zealand. Our codes and our law are substantially the same as Australia, England, Wales, and Canada. So New Zealand is far from being an outlier, as the member sponsoring the bill would have us believe; that is not true. It is believed that we are very much in line with some pretty solid practices.

I want to talk about the separation of the judiciary from Government. It was an issue that came very much to our attention at the Law and Order Committee in the previous Parliament, when we were considering the Bail Amendment Bill. That was a bill affecting families of members of the public who had had an experience with the judiciary. It was around the circumstances of bail being granted to offenders who then went on to offend, grievously in some cases, against young people, family members, etc. Those family members who were badly, badly hurt and grieving, and will be for the rest of their lives, were turning around looking for someone to blame. Of course they were. The decision maker in that instance—that is, the person who was to grant bail—was the judge. Those families often laid blame for the decision to grant bail—and I am keeping within scope of this present bill I hope—

The ASSISTANT SPEAKER (Hon Trevor Mallard): Well, I hope you are going to get back there soon.

I am. I surely am.

💬 Jacinda Ardern: He’s very strict, this Assistant Speaker.

No, it is good. That member was not on the select committee at the time, and perhaps if she had been she might have been as affected by the circumstances as we were. The point—

💬 Ian McKelvie: Faafoi was, though.

Yes, Kris Faafoi was. So I am rather hoping that he will pick up the theme. The point I am making is that there needs to be a separation of the judiciary so that they can make some sound decisions. That is the point—that we need our judiciary to remain absolutely separate so that judges make the best decisions they can.

Just turning to the select committee process, there were a number of submissions on this bill, very few of whom supported the bill itself for the reasons that I have canvassed in this speech. So although I am sure this is a bill that is absolutely well meaning, I do not think it achieves the purpose that it was intended to achieve, because there are other provisions that provide protection for the public against the perception of bias in judges. I also think we need to protect judges because they need to be free, as I was alluding to in our discussion on the Bail Amendment Bill, to make good, independent determinations. Clearly, those determinations are not going to be popular, but it is not a game about being popular. Thank you.

It is my pleasure to take a call—my first call—on the Register of Pecuniary Interests of Judges Bill. I think it is important that we have the opportunity to debate this proposal by Dr Kennedy Graham, because I think the principle behind it is extremely sound. It is a timely debate to be having, given that today, for instance, Transparency International has released its international rankings of countries and the work that they do to prevent corruption in their domestic field, whether it be the way that public servants hold themselves, whether it be their laws around official information, and so on. All of those things contribute to a well-functioning democracy, and perception is incredibly important in that regard. New Zealand, unfortunately, today slipped in its ranking. We were ranked No. 1—we were ranked No. 1.

💬 Hon Todd McClay: Did our points go down?

I acknowledge we may have maintained our points ranking, but we have slipped into second position. I think when you look at where we have tracked—[Interruption] Apparently, second does not matter to National members. Apparently, they do not seem to mind that we are no longer top of the field. A little bit defensive, they sound, over there.

I just want to track back through a little bit of history. In 1999 when Labour took office from National, we were ranked No. 3. We had been No. 4 under National, actually—that is where they had let it get to. We were ranked No. 3 at the time, though, that Labour took over. In 2004 we got us to No. 2. By 2006 we got us to No. 1. That is the work that we did to ensure that we had a better placing. We are disappointed. Obviously, the bar to which National holds itself means that No. 2 does not matter. They have always been happy to be fast followers. But my point is, and Dr Kennedy Graham is right to make this point, that we can never afford to be complacent—we can never afford to be complacent. I do not think it is good enough to simply say: “Well, the intent is in the legislation and therefore we should be satisfied by that.” It is what happens in practice that we should be concerned about. I think that that point is well made in this bill.

We should encourage transparency at all levels. We already have a pecuniary interests register, which was applied to Cabinet in 1990. It was extended to members of Parliament in 2006, and I think all of us would agree that there is benefit in having that regime. It gives us protections. It tries to enhance the faith that members of the public should have in us. That faith is not always present, but it tries to enhance that faith. So I think the principle of extending the register to the judiciary was one that was worth exploring.

The origin of the bill itself is also a good indication of the issue that the member was trying to resolve. It was briefly talked about by the previous speaker, Jacqui Dean. That case was Saxmere Company Ltd and others v Wool Board Disestablishment Company Ltd. In that case, Justice Bill Wilson was part of a bench of three Court of Appeal judges—I believe he was a fresh Court of Appeal judge at that time—that overturned a High Court decision. It was found, though, that counsel for Saxmere was Alan Galbraith QC. He was found to have a business relationship with Justice Bill Wilson—a relationship that you get the sense was casually referred to but not fully disclosed in the way that it should have been. That is the point. It should never have happened. It seems to be the view on that side of the House that because it should never have happened and, actually, there were some rules in place that suggest that it should not have happened, actually, we should just be satisfied with that. I think it is fair that we look at taking things one step further, and why?

Well, actually, I read an article written by an Australian journalist who was looking at the Saxmere case here in New Zealand, who said: “The solemn edifice of justice depends on the public having some sort of respect for and confidence in judges. … When judges misjudge there is hell to pay. In a single bound the thin silk can easily be torn from the alabaster bosom of that blind statue holding aloft the wobbly … scales. It’s delicate and it’s a lot to do with appearances … ”. That was a direct reference from an overseas journalist to the Saxmere case, and was pointing out what we were going through as a country in terms of ensuring that we did not chip away at the perception of our judiciary as being beyond reproach.

In this case, however, the conflict should never have happened, as I have already stated. The commentary from the Justice and Electoral Committee is quite clear on that. In fact, it states: “In terms of the law on when a judge should not sit on a case due to apparent bias, the Supreme Court confirmed”—in the Saxmere case—“that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not be able to bring an impartial mind to the resolution of the question the judge is required to decide.” I am sure that anyone, from the brief description I have just given of the Saxmere case, would agree that that would seem to be the case. It goes on to say: “Because of the state of the financial arrangements in the business venture between the judge and the counsel, the Supreme Court found that the case on apparent bias was made.”

The previous speaker, Jacqui Dean, suggested that the recusal processes should be sufficient. Again, as the select committee reported: “We heard that if a judge has a pecuniary interest in the outcome of a case, he or she is automatically disqualified from hearing it. Where there is doubt, the judge has a duty to disclose this to counsel and the parties to the proceedings, to invite comments, and then to make a judicial decision. Failure to disclose a conflict may amount to misconduct and complaint to the Judicial Conduct Commissioner. The Court of Appeal has an internal protocol for managing potential conflicts.” If you listen to that side of the House, you almost get the sense that that should be the end of it. I do not think that is fair, not least because, actually, the Law Commission has already said that in its view the procedures around judicial recusals remain unsatisfactory and “less transparent than they should be”.

Reference has already been made to the fact that as part of the Judicature Modernisation Bill the Law Commission did a piece of work before the bill will come to this House. The Law Commission explicitly recommended—and I have taken this straight from its recommendations—that “ … there be a statutory requirement [in new courts legislation] for the Heads of Bench, in consultation with the Chief Justice, to develop clear rules and processes for recusal in their courts, based on a common set of principles developed by the judges.” So, clearly, the view from the Law Commission is that, yes, there are guidelines around recusal, and yes, in the Saxmere case, it was clear that the justice did not apply the standard that was anticipated, but that, actually, there is clearly some murkiness in this area, and guidelines are required.

The Judicature Modernisation Bill provides an opportunity to address this. But if the Law Commission is so clear that these guidelines need to exist in primary legislation, surely Parliament should take some interest in the nature of the guidelines themselves. I think that was the point that Kennedy Graham, I think, fairly made. My understanding from listening to the member was that his expectation was that perhaps there may have been some discussion as to what those guidelines may look like. Should Parliament not take an interest—if we are to take the Law Commission’s view, and the firmness that it has applied in saying that we have not got the transparency we need and that guidelines are definitely required—in what those guidelines look like, as other jurisdictions have? Is it sufficient to simply say that we require them to be set in primary legislation but that we leave our responsibility at the door at that point?

I think that the member has made a fair point. It seems to be his intention to perhaps make amendments as part of the Judicature Modernisation Bill to embed in primary legislation, perhaps, some expectations around what those guidelines should look like. I think those would be worthy of consideration, and I look forward to seeing what he intends to draft in the future as the House comes to consider that significant bill further down the track. Thank you.

Actually, I thought that Ms Ardern’s speech, when she got away from the vituperative comments and concentrated on the bill, was actually a very good contribution. She raised a number of questions, and I will come back to her last point in the course of my speech. I think she is right—this is a very important issue, and I have more than a passing interest in it, because I, as Attorney-General, am the link between the judiciary and the executive.

We have to accept as a starting point that the judiciary is a separate branch of government; it is not an extension of the Ministry of Justice, and from time to time there will be tensions that arise between the various branches of government. This legislation, if it is passed, will, I believe, cross that very important boundary. As between the various branches of government, there will always be tensions. In the last session of Parliament the Privileges Committee, of which I was a member, looked at tensions that arose, actually, between the legislature and the executive. One would not expect those tensions to arise but they did. So there need to be some bright lines there as well.

The member Jacinda Ardern raises a very important point about the importance of transparency. When someone is sworn in as a judge, one expects that they will do justice and that they will be seen to do justice. If there are allegations about conflict of interest or lack of transparency, people will walk away from the court feeling that they have not had a fair go. So that is a very important consideration. But I do believe, with the greatest of respect to Dr Kennedy Graham, who introduced this bill with the best of intentions, that it is faulty. It would, if enacted, breach that important bright line between the judiciary and the executive, or the judiciary and the legislature, and should not be passed.

A little bit of the legislative history is perhaps instructive for the House tonight. When the bill was introduced I suggested to the former Minister of Justice that it raised very important questions about transparency and the need to address issues of conflict of interest, and I thought it would be appropriate for there to be a reference to the Law Commission to look at the issue. The Law Commission, under the chairmanship of Sir Grant Hammond, a former judge of the Court of Appeal, produced a document that gave rise to a lot of discussion not only in the profession but in the general community. The consensus was that the better approach was to have guidelines on recusal. So when the former Minister of Justice again asked the Law Commission to look at reforming the Judicature Act 1908 and, at the same time, to have a look at the Supreme Court Act 2003 and the District Courts Act of 1947 with a view to a rewrite of those pieces of legislation, the Law Commission produced a very good report, and that has formed the basis of what now sits on the Order Paper awaiting its second reading as the Judicature Modernisation Bill.

One of the recommendations of the Law Commission was that it be incumbent on the heads of bench to provide guidelines on the issue of recusal. That applies to the Supreme Court—i.e., the Chief Justice, the President of the Court of Appeal, the Chief High Court Judge, and the Chief District Court Judge. Very clear guidelines are required, because according to Sir Grant Hammond—and I know he will not mind my saying this; he has actually done a lot of work over the years on, if you like, the law of recusal—during his time as a judge he would always be getting questions from judges about whether or not they should recuse themselves, because it is one thing to set down the principles, but it is the application of those principles that can sometimes be very difficult.

So that legislation, which I hope we will be able to debate in the reasonably near future, deals with precisely that issue. It is not lightly touched over, nor is it done in a slapdash way, but it is responding very carefully to what the Law Commission recommended and to what submissions made to the select committee have suggested. Although I did not sit on the select committee, I do not think I am wrong when I say that the submissions that were made to the committee were almost overwhelmingly opposed to the concept of a register of pecuniary interests for judges. I refer in particular to the very helpful submissions by the New Zealand Law Society and the New Zealand Bar Association. I understand that the judges also made a submission, but they did not wish to be heard on it.

The important submission that was made by the Law Society traversed a number of areas, but it particularly mentioned, as indeed did the Bar Association’s submission, the difficulties that there could be with the recruitment of judges. I believe that is a very important matter. As the Attorney-General, I am responsible for recommending to the Governor-General the appointment of judges, and there are protocols that are set out and published on the Ministry of Justice website as to the way in which I do it. I have to consult with the Hon David Parker, the shadow Attorney-General, on senior court appointments and often have discussions with him on these issues, as he did with me when I was the shadow Attorney-General. These things are very important. We have to make sure that all sides of the House accept that an appointment is an appropriate one. We cannot possibly have what happened in Queensland a couple of months ago when someone was appointed who did not meet the favour of the judges. When he came to be sworn in, none of the judges turned up, so it was a pretty lonely swearing-in.

The appointment of judges is incredibly important, and we need to go out and get the very best people who are available to enter public life and serve their country in the judiciary, and it is no easy task. On Friday I am going to speak at the swearing-in of a person who has been appointed to the High Court after 20 years at the Bar and, before that, a number of years in a commercial law firm. Getting high-quality people on the bench, as Mr Parker would agree, were he here, is an incredibly important issue. So what we do not want is anything that could act as a chilling effect on the appointment of judges. I strongly believe that if there were to be a register of pecuniary interests, it would act as a very, very chilling effect on the appointment of judges. I know how judges come under attack all the time. There are cases in the system at the moment where a person appears before a judge, they are dissatisfied with the result, they complain to the Judicial Conduct Authority, and they make the most dreadful allegations against the judges. When they do not get what they want from the Judicial Conduct Authority, they go back to court and seek a judicial review of that person.

Judges are under attack more than ever, and it is incumbent on us to recognise the separate branch of government that is the judiciary and protect it from unwanted criticism. That is not to say that judges do not have obligations—obligations to uphold our great traditions of justice and uphold the principle that justice should not only be done but be seen to be done. That is why I am so in favour of guidelines dealing with recusal.

So I, frankly, congratulate the honourable member on bringing this bill to the House. I think it does raise, as Ms Ardern said, very important constitutional questions. That is the great benefit of members’ days—that sometimes we get an opportunity to discuss these matters. But I say to him, with respect, I think he has got the wrong end of the stick. I think that this is the wrong approach. Rather than dealing with a register of pecuniary interests, we should be making sure that the judicature modernisation legislation puts that obligation on the heads of bench to introduce guidelines on recusal.

New Zealand First originally supported the Register of Pecuniary Interests of Judges Bill because some cases in recent years appeared to indicate that legislation would be necessary to ensure transparency in respect of judges’ interests and to provide a solid means to ensure avoidance of conflicts of interest.

I think it is important that we note the principle that people involved in decision making—whether that be in the judiciary or in politics or in business—and who make decisions in the public interest, need to be prepared to give up a degree of personal privacy so that the public can have confidence in conflict of interest situations that might arise.

In my first reading speech I said that we needed to show an effective means of avoiding conflicts of interest for judges and that I could not see how that really could be achieved without legislation. However, having participated in the select committee process and having heard the submissions, including written submissions from the judges themselves and submissions from several others, especially the Law Society and the Bar Association, I now think differently, and New Zealand First will now not support the bill. Nevertheless, I do wish to commend Kennedy Graham for promoting the bill, because his concerns about the situation were certainly justified.

The process of considering the bill has led to greater understanding amongst not just MPs but many others in the community as well. Most particularly, the judiciary has moved to beef up its procedures in respect of the recusal of judges since Justice Wilson failed to recuse himself in the Saxmere case. In those ways, the bill has already been a considerable success. The fact that it is now unlikely to pass does not detract from that.

The current law on whether a judge should sit or not on a case due to apparent bias has now been clearly stated in the Court of Appeal in respect of the Saxmere case, and I quote as follows: “ … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not be able to bring an impartial mind to the resolution of the question the judge is required to decide.” The law, at least now, is clear, but Parliament still needs to be satisfied that the processes for recusal are robust and that, in fact, a register of judges’ interests is not now needed. As other speakers have said, the Law Commission issued a paper back in 2011 on this. It recommended that such a register not be legislated for because it felt that it was not the best solution to deal with conflict of interest issues.

The central issue is that the public must be satisfied that the judges are deciding cases in a way that is fair and impartial. If a judge does in fact have a pecuniary interest in the outcome of a case, he or she must be automatically disqualified from hearing it. Where there is doubt, there is a duty on the judge to disclose that to the parties present, to invite their comments, and then to make a reasoned judicial decision. Failure to disclose a conflict of interest will, of course, amount to misconduct and no doubt a complaint to the Judicial Conduct Commissioner. The Court of Appeal has itself adopted an internal protocol for managing potential conflicts.

I think that when you look at all of that, we can conclude that there are indeed very robust requirements, which the public can have full confidence in. The existing law, the appeal processes, the guidelines for judicial conduct, the bench protocols, as well as the judicial complaints process, in my view, are clearly sufficient to address any conflicts that may arise. Therefore, a register of pecuniary interests of judges is now not necessary to achieve the object of fair and impartial judges not tainted by personal conflicts of interest.

But there are several other good reasons as well for not having such a register, and the submitters listed several of those. Some of them are these: first of all, that there would be a serious risk to judges’ privacy; that there would be scope for abuse of information disclosed by judges; and that a register could result in intrusion into the personal affairs not just of the judge but of the judge’s families and could create opportunities for harassment for disgruntled litigants. I agree with the Attorney-General on that issue that there are many who are disgruntled and will find ways of expressing that. I am sure that if there was a register they would use it for that purpose without any hesitation. In addition to that, there would be a significant administrative burden that would accompany a register and its maintenance, and it might also cause delays in hearings that would otherwise be avoidable.

Most particularly, I think there was a real risk that the ability to recruit and retain judges of a high calibre could be compromised if they saw that they had to enter into a register of pecuniary interests in the way suggested.

In the end, although the idea of a register of pecuniary interests for judges was well worth investigating, that having been done it is clear that such a register is now not necessary and that it, in fact, does have some significant downsides. On balance, New Zealand First will not be supporting the bill because we do not think it should be passed. We feel that those provisions that are already in place for recusal, which have been upgraded and improved in recent times since the Saxmere case, are actually sufficient and nothing further is needed.

It is a great pleasure to rise to speak to this bill and to speak against it, as many of my colleagues on this side of the House—and, in fact, on the other side of the House—already have. Members’ bills are a really important part of the legislative process because they do give the opportunity to bring fresh ideas forward and to, I guess, look at some issues that perhaps otherwise would not have been looked at. When bringing forward a member’s bill, I think it is really important that it does serve some sort of purpose. We had a New Zealand First member today who brought a little bit of multi-choice to question time. I thought to myself that there was a little bit of multi-choice when relating to member’s bills. I think they need to (a) fix a problem, (b) prevent some sort of problem, (c) take New Zealand forward, (d) all of the above, or (e), as is the case I think perhaps with this one, achieve none of the above.

We are not going to be fixing a particular problem because the case that keeps being referred to around this issue involving Justice Wilson would not have been fixed by a register of pecuniary interests and the issues surrounded by that. It is not going to prevent any particular problems because I believe we have got the right kind of judicial system within our country to prevent them already. As has been highlighted by the Attorney-General already, there is legislation in the pipeline to add some strength to that. It is not going to take New Zealand forward. This, I guess, has been reinforced by the various submitters to the Justice and Electoral Committee, including some of those referred to a moment ago by the Attorney-General, who have some real expertise in this area. It has been deemed not to be necessary to pass such a bill at this time.

I say this because it is quite clear that we have a judiciary that has been appointed because of its expertise, because of its ability to carry out the tasks that we have assigned to it to do. It is already clear that if a judge has a pecuniary interest in the outcome of a case, they are automatically disqualified from hearing it, and should in fact recuse themselves. If there is any doubt, the judge has a duty to disclose this, and failure to disclose a conflict can amount to misconduct and a complaint to the Judicial Conduct Commissioner.

It was really interesting to hear the previous speaker, Denis O’Rourke. He talked, in one breath—for some reason I could not understand—about the importance of protecting the judiciary’s privacy, and that it is why we would not have this register of pecuniary interests, but then, just prior to talking about the importance of privacy, he talked about how he thought the appropriate response for a judge would be to have looked at the case and identified that perhaps they had a conflict, and then discuss it with parties. I could not understand that. Why, if you are trying to protect privacy issues, would you then discuss it with parties? There has clearly been some misunderstanding around some of those things.

But I think if we are going to trust our judiciary with an ability to be able to disclose a conflict where necessary, it is perhaps beholden on us to have a look at what sorts of people we have occupying our judicial benches around New Zealand. I took the liberty of looking through the process—as the Attorney-General said, it is available on the Ministry of Justice website—to find out exactly what somebody needs to do to find themselves in a position whereby they are sitting on a judge’s bench. I can tell you that it is not something that just happens lightly. It is something that takes a bit of process and some expertise to ensure that we have the right people there. The appointment process goes something like this, with one exception, which is community magistrates. Appointments to judicial positions are made by the Governor-General on the recommendation of the Attorney-General. It is not just down to those two people either. In fact, there are other things that come into it. The constitutional importance of the judicial role and the fact that judges have to make decisions that significantly affect the liberties and rights of our citizens make it vital that those who become judges are suitable to hold the office. We need to make sure that they are in fact suitable. There are some criteria that they need to exhibit. They need to have legal ability, which means that they need to have sound knowledge of the law and experience of its application.

The ASSISTANT SPEAKER (Hon Trevor Mallard): Can I just ask the member now to come back to the bill, which relates to the pecuniary interests of judges rather than their appointment. I think a passing reference is OK, but reading the list of requirements is not.

Thank you, Mr Assistant Speaker. I guess my reason for using those initial things, and I will not necessarily read through the whole list, is that it is very clear to me that, actually, we are appointing people because they have personal honesty and integrity, because they have got all the traits that they need to have in order to—

💬 Kris Faafoi: Carry out.

—carry out the job. Thank you very much. I am not sure who said that, but that was very helpful. Thank you very much. At this time of the night I am happy to get any help I can to find the right words, particularly when half of one’s speech has just been disqualified by the Assistant Speaker.

💬 Stuart Nash: Sit down, then.

I could do that, but where would the fun in that be? Anyway, I promised to bore my colleagues to tears so that they can have a good night’s sleep tonight, and I intend to carry out what I said I would do for them.

💬 Hon Member: The member has done that already.

Ha, ha! There is possibly that case.

Anyway, we do go actually through a process. As I said, I am not going to highlight the entire process, but what I will say is this: if we have the right judges, if they are of good character, and if they have been vetted appropriately, why saddle them with another pecuniary interest register in this case? Pecuniary interest registers do make sense for people like us who are publicly elected—those of us who have to be accountable to the public in a very open way for everything that we do. It makes sense for politicians to have pecuniary interest registers. It actually makes sense, as the promoter of this bill has said, that in the US judges do have pecuniary interests, because in the US judges, like us, are elected by the people at large and so, therefore, it does make a whole lot more sense in those situations.

I think ultimately the important thing, though, in this case, as we move forward, is that we have had some clear steering from the Attorney-General—although there is not necessarily a specific problem—to give people more surety about the times and places where judges will recuse themselves. That is going to be incorporated into the legislation that he is bringing forward.

So I would like to say again that we will not be supporting this bill. Although I understand the sentiment behind it, we think that the mechanism is flawed, and we believe that there are other ways that this can this dealt with.

Helpful as ever you are, Mr Assistant Speaker Mallard, I, like the previous speaker, Jono Naylor, have just gone through my notes and disqualified a few of them. So rather than being the last speaker tonight there may be one or two people who follow me. But thank you very much for assisting me in learning how to take a call in the House.

We are speaking on the Register of Pecuniary Interests of Judges Bill and I do acknowledge the work that you have done, Dr Kennedy Graham, on this bill. It is important when members’ bills come before the House because they come with the hard work and all the emotional attachment that goes along with wanting to have a specific piece of legislation in your name passed by the House. For reasons that I will go into shortly we are not supporting the bill. There are many reasons that we did support it through to the first reading, but through the submissions made to the select committee it has become apparent that there are many things that are problematic with the bill that require us not to be in a position to support it.

The purpose of the bill is to establish for the judiciary a register of pecuniary interests requiring them to make returns, just as Cabinet Ministers and members of Parliament currently do. There are some key principles that underpin this bill and they are principles that I want to speak to. One of the principles is the confidence that is required in the judiciary, through the transparency under which they operate. My colleague Jacinda Ardern talked about transparency when she spoke a little earlier. It is interesting to note that we have slipped in the world ratings around transparency. It is something that we had first place in, and now we are second.

It is an important issue, I think, because it speaks to the heart of what has been a lot of the discussion in this House in recent months around how we conduct ourselves around the ability of the public of New Zealand to have confidence in its executive and its members of Parliament and, through this particular bill, its judiciary.

One of the other principles that I want to talk about is the reduction of the possible conflicts of interest or the perception of those conflicts of interest. Thirdly, one of the key principles, I think, that supports the development of this bill is about the accountability to the New Zealand public.

Just getting back to the principle of transparency, in this respect it pertains in particular to the issues of financial or pecuniary interest. Nothing undermines public confidence in a nation’s institutions and procedures more than the suspicion—and especially proof—that a public servant has suffered a conflict of interest arising from the pecuniary interest in a particular dealing in which he or she has been professionally involved. So it is where the public loses confidence in a member of the Public Service or where there is a perception that this has occurred. It is a principle of conflict of interest or the perception of such—and I just have to go through my notes here where I have had to put the marker pen through.

💬 Kris Faafoi: Can I have a go?

You should try to have a go.

The other principle I allude to is about accountability to the New Zealand public. When someone who is employed and paid from the public purse uses resources paid for by taxpayers, the New Zealand public have a right to know how their taxes are being spent and if it is to the benefit of New Zealanders.

I just want to refer to some of the issues that the submitters raised during the select committee process. They were concerned that this bill may limit the ability to recruit and retain judges, and we have heard a little bit of discussion about that in the House tonight. They were also concerned about the impact on the privacy of the judiciary and their families. I believe that the member from the other side of the House, Jacqui Dean, made a really valid point, that often people come to court and appear in front of the same judge on several occasions, and that familiarity—when people have a judgment against them that they are not entirely happy with, some people do tend to take matters into their own hands. When people have the knowledge of where someone lives and of their assets, it does put them at some risk and it does put their families at some risk.

The submitters talked about there being a potential for the misuse of that information and the harassment of the judiciary by disgruntled litigants. They also made the point that the automatic disclosure of conflicts of interest could lead to delays in the court process. Delays and the workload of judges in the court system are things I have some experience of. I am aware of District Court judges, for example, who were concerned over the volume of cases that were presenting before them in a specific family violence court in west Auckland and the amount of work they were having to deal with in the case that I know of—up to 65 cases in a day, which is an extraordinary workload.

Those Family Court judges and those District Court judges had applied pressure to the ministry and to the court process to allow for changes to the prosecution guidelines that the Solicitor-General put in place to raise the level of evidence that was required to get a prosecution in the first place, so that—I will get to the point, Mr Assistant Speaker—the level of evidence that was required meant that a prosecution had to be fairly certain of being secured before an arrest could be made. What that did was it reduced the number of arrests, thereby reducing the number of people going through the courts. I am drawing a fairly long bow here, but what I am saying is that District Court judges—

💬 Brett Hudson: It’s a very interesting bow. It could be expanded upon, this bow.

Thank you. There are only a couple of minutes left to go, so I will see us through to the end here. What I am suggesting is that we have already got District Court judges who are under some pressure in terms of workload. The possibility is that this process of requiring judges to state potential conflicts of interest could add potential delays to the court process.

Considering that we are getting close to the end of the evening I shall take the opportunity to just summarise some of the key matters concerned with this bill. The Law Commission did not recommend changes to this particular process. The potential impact on the privacy of judges and their families has got to be taken into consideration. There is the potential to add time and delay and therefore costs to the court. It is not a process that is known throughout similar jurisdictions around the world, and, really, there is not a widespread concern that this process should be adopted. So with very few cases where this has been an issue—Saxmere Company Ltd and others v Wool Board Disestablishment Company Ltd seems to be the one that is cited—there is little evidence that this is a widespread or even a minor concern, and it does appear to be inconsequential. In that regard I just reaffirm that we are not supporting this bill. Thank you very much.

Debate interrupted.

The House adjourned at 10 p.m.