Judicature Modernisation Bill

on behalf of the Minister of Justice: I move, That the Judicature Modernisation Bill be now read a second time. This omnibus bill creates five new Acts. It amends 17 existing Acts. The five new Acts will be the Senior Courts Act, which sets out arrangements relating to the High Court, the Court of Appeal, and the Supreme Court; the District Court Act, which does the same in respect of the District Court; the Judicial Review Procedure Act, which restates the existing process for seeking judicial review but in contemporary language; the Interest on Money Claims Act, which puts the process for courts awarding interest on claims involving monetary amounts on a more defined and comprehensive legislative footing; and, finally, the Electronic Courts and Tribunals Act, which paves the way for the use of electronic documents in New Zealand’s courts and tribunals. Part 6 of the bill sets out amendments to 17 other Acts, principally by relocating existing provisions of the Judicature Act or by extending certain provisions applying to the senior courts and the District Court to our specialist courts.

The Judicature Act 1908, which this bill repeals, is one of New Zealand’s oldest statutes still in force. It is also one of the most important, forming the cornerstone of a set of statutes that provide for New Zealand’s courts. In 2010 the Government asked the Law Commission to review that Act. In December 2012 the Law Commission’s report was tabled, and 12 months later the Government introduced this bill. We advance this work because society and technology are changing rapidly and it is increasingly clear that our justice system must be modernised to keep up with the demands of the 21st century.

The bill modernises the legislation and arrangements relating to New Zealand’s court system, and provides scope for a more efficient system. The changes increase transparency, certainty, and clarity. This will lead to greater public confidence in New Zealand’s court system. Although this is a very large bill, many of its provisions are not new. The bill does continue many existing provisions, albeit with more modern language and style where necessary.

I wish to acknowledge the efforts of the Justice and Electoral Committee for its examination of the bill, and commend the committee for its work on this significant piece of legislation. The committee received 25 written submissions on the bill and heard 15 oral submissions. The submissions came from the judiciary, professional organisations, and interested groups and individuals. The submissions were thorough, and I understand they provided the committee with considerable focus in its deliberations.

I will highlight a handful of the changes recommended by the committee. Along with other changes made, they collectively improve the bill’s clarity and effectiveness. The reported-back bill retains provisions establishing specialist panels in the High Court. It does, however, clarify that parties may request that a case be heard by a judge from a panel unless the Chief High Court Judge determines otherwise. Also, Part 1’s general rule-making power is now relied upon for setting court rules needed for a panel’s operation.

The committee amended provisions giving courts the power to make graduated orders, which limit people who have initiated previous meritless civil proceedings from continuing or commencing more proceedings. The amended bill allows a court to make an order of its own volition. This will be useful in cases where the court has the best knowledge of a person’s litigation history. The bill also clarifies the definition of meritless proceedings required before an order can be considered by the court. Courts will also have greater flexibility as to how long orders last. The orders may be imposed for any period up to 3 years, rather than exactly 3 years. The 5-year time limit remains for cases involving exceptional circumstances.

The committee has incorporated a Government proposal to improve information sharing between Government departments and other agencies. This will enable elements of court information, such as the existence of protection or restraining orders relating to a person, to be shared between these organisations. Sharing will be possible only through approved information-sharing agreements permitted under the Privacy Act. The new provision will help deliver better public services.

On a related note, the bill also adds certainty to the obligations of court registrars and the court in respect of disclosing certain court information, particularly convictions, to registration authorities. As a result of the bill, registrars must notify registration authorities unless the court specifically orders otherwise. This change will remedy instances where information has not been shared and so has prevented a registration authority from taking appropriate action. The committee has made a number of recommendations specifically relating to the District Court. The bill as reported back confirms the unification of the District Court and the increase in the court’s civil jurisdiction up to $350,000.

Many other changes are of a minor yet necessary nature. I would emphasise the increase to the financial value of tools of trade and necessary household furniture and effects that may not be seized from a judgment debtor. This increase matches the High Court’s threshold and so better protects debtors from unfair seizure of basic assets. It removes an anomalous difference, given that the purpose of the two thresholds is identical in each case.

There are several changes made in Part 4 of the bill, relating to interest on money claims. Of note is an amendment widening the jurisdiction of the new Act to include amounts under $5,000. This reflects that modern technology now enables ready calculation of interest on small amounts. Not so long ago the cost required to confirm this calculation would have very likely offset the value of the interest awarded.

Part 5 allows our courts and tribunals to become electronic. The revised Part 5 makes a further nod to modern technology, with a new regulation-making power enabling classes of court users designated by regulation to be required to use electronic documents. This change recognises that some categories of court users, such as lawyers, are and should be able to deal electronically in order to achieve the full benefits of electronic courts and tribunals.

As part of wider consultation on the bill, questions have arisen about including reference to commitment to the rule of law, principles of the Treaty of Waitangi, and parliamentary sovereignty in the purpose clause of this bill. After close consideration, I do not consider that such statements sit properly in this bill. These are commitments of a constitutional nature that best belong in the Constitution Act rather than in this bill, which governs only the architecture of certain courts.

I conclude by saying that this bill is notable not only for its considerable length but also for the significant contribution it makes to modernised aspects of New Zealand’s court system. I commend this bill to the House.

Thank you for the opportunity to speak on the second reading of the Judicature Modernisation Bill. Just for the many viewers out there who are no doubt keenly watching the debate, as the Minister for the Community and Voluntary Sector rightly pointed out, the modernisation of one of our oldest Acts of Parliament—this is what it looks like when you take on such a significant omnibus bill. There is a significant amount of detailed work that has gone into this bill. The Minister has touched on as much as she is able to in 10 minutes of what has been reformed.

I want to speak in some general terms, if I may, in my first opportunity to speak on this bill. As has been said, the Judicature Act is over 100 years old. I believe that amendments to this Act have been made up to 40 times over the years. It follows on from recommendations from the Law Commission as to what we should be amending. We as a party, in the first instance, did raise—and one has been touched on by the Minister—two areas of concern. I just want to cover them off very quickly before I make some more general points.

The first was the omission from the purpose clause of any reference to a commitment to parliamentary sovereignty, the rule of law, judicial independence, and the Treaty of Waitangi. We believed that in a piece of legislation that consolidates legislation that guides the governance of our judiciary it would make sense to have that purpose clause. We were bringing into the legislation bills that relate to our various courts, and the Supreme Court Act 2003 already includes these terms. So why were they not carried over, given that that was in one of our more modern pieces of legislation, guiding the governance of our Supreme Court? Why was it not brought into this particular bill? So that remains a concern for the Labour Party. I did not feel that the Minister’s response adequately covered off that concern.

The second area of concern was around the fact that the bill includes an age of retirement for judges. That is a very specific element of the bill, where it is setting up guidelines for who should and should not serve on our judiciary. At various points in this debate the point has been raised as to whether or not we should limit based on age. The issue I want to raise—and perhaps I am best to do it after the dinner break, seeing as I am going to be cut off and I would not want to lose my substantive—

💬 Kris Faafoi: Make a start.

—point. Perhaps I could make a start. My concern is that the general diversity within—

The ASSISTANT SPEAKER (Lindsay Tisch): I am sorry to interrupt the honourable member. The time has come for me to leave the Chair for the dinner break.

Sitting suspended from 6 p.m. to 7.30 p.m.

I have brought all the members to the yard because they all wanted to hear about my views on the diversity within the judiciary, or perhaps what should be our aspiration for greater diversity within the judiciary because the Judicature Modernisation Bill, amongst many, many other things, does set out an age of retirement for judges. The question that I was raising was this concern, which was very eloquently summarised in a piece by Catriona MacLennan at the beginning of 2013, where she pointed out that at present 72 percent of New Zealand’s judges are male—72 percent—and 28 percent are female. In the Court of Appeal, for instance, 80 percent of judges are male. In the District Court 69 percent of judges are male. Before anyone makes the argument around meritocracy and availability of female lawyers, the New Zealand Law Society magazine calculates that 3,463 women are eligible for appointment as judges. So I just thought I would put out that challenge.

Gender, of course, is not the only diversity we should be ensuring we have on our judiciary. There are no statistics on ethnic diversity in the judiciary. I have even asked for that. I am keen to ask again because the experiences, the life experiences, and the cultural competencies that we bring to the judiciary are incredibly important—incredibly important. Of course there is training that tries to teach all of those things, but I think ensuring that our judiciary has a wide range of experience as well as legal expertise, of course, is something that we should be constantly mindful of. I wanted to raise that.

Coming back to the Judicature Modernisation Bill, the Law Commission was very clear in its key recommendations in the report it issued in November 2012 that the primary purpose of the review it was conducting was a simplification and modernisation exercise. In fact it has even stated that “The primary purpose of this review was to clarify and modernise the laws under which New Zealand’s primary trial and appellate courts are constituted. These laws determine how the courts are set up, how judges are appointed, their jurisdiction, rule-making powers and the procedures by which they administer justice. Given the fundamental role of the courts in society, it is imperative that this legislation be clear, accessible and intelligible.” It then sets out the ways in which it has consolidated the Acts in order to achieve those goals.

“Accessible” is the one word that stood out to me when I read that. Yes, simplifying the language by which our judiciary is governed and structured is incredibly important, but accessibility can be measured in many, many ways. I recently read, as I would hope other members in the House would have, the Ethel Benjamin Address by Her Honour Justice Helen Winkelmann, the Chief High Court Judge, which was given in only November 2014. When she talked about the accessibility of our justice system she quoted Lord Neuberger, and said that accessibility “has a number of components. First, a competent and impartial judiciary; secondly, accessible courts; thirdly, properly administered courts; fourthly, a competent and honest legal profession; fifthly, an effective procedure for getting a case before the courts; sixthly, an effective legal process; seventhly, effective execution; eighthly, affordable justice.”

There are many elements within that that we could discuss and pick apart, but I think the element that Justice Winkelmann rightly raised within her address is the affordability element. She went on to state that “there are indications that far from being viewed as a democratic institution, civil courts are, for policy purposes at least, regarded as a luxury service for which users should pay. There is a new language that is used in connection with courts; people who come before the courts are called customers, judges and lawyers are referred to as stakeholders, District Court centres are referred to as franchises. We are now to understand that we are part of a market for justice services and our product is being ‘marketised’.” I know that there was some discussion in the first reading of this bill around that concern, and it was shared. The Hon David Parker raised it, and there was then some discussion by the Attorney-General acknowledging that concern. The reason I raise it now is that if we are to maintain that very important principle of access we must be constantly mindful of simple things like court filing fees and whether or not someone is able to access a lawyer. That is something that we have considerable concern about.

Part 4 of this bill, for instance, responds to the Law Commission’s report Aspects of Damages: The Award of Interest on Money Claims, and creates a single statutory system for the awarding of judgments. It ensures that interest placed on awards is compounded rather than simple interest. It raises an interesting point: currently the interest rates that apply to the Judicature Act are much lower than the rates that apply to legal aid debt, which sits at 8 percent. Anyone who accesses it is told that they may have a debt collector who may recover legal aid debt. I raise this because any attempt to modernise the rules that govern our judiciary are to be applauded and welcomed because of the principle of accessibility, but we should make sure that we never lose sight of how well in real terms that is playing out for citizens in civil society. When the judiciary starts to raise that an increase in self-representation is perhaps demonstrating an issue within our court system and that the court costs are becoming prohibitive to the accessing of justice, particularly within the civil courts, we should listen—we should listen. I wish to use this opportunity in the second reading to raise that.

In the third reading I would also like to come back to some of the other elements of the bill like, for instance, electronic technology, which there is greater movement towards in the justice system generally, but there have been examples where centralisation of the registry courts, for instance, in Auckland has not lead to efficiency or cost savings but actually to mistakes, errors, lost files, and greater inefficiency. We should not just simply move rapidly towards gains without ensuring that they are rolled out in a way that does not hamper an already extraordinarily busy court system and a heavily burdened justice system. There is much more that could be said and I look forward to the opportunity to do that at the third reading. Thank you.

I want to commence my contribution to the second reading of the Judicature Modernisation Bill by congratulating the former Justice and Electoral Committee, chaired very ably by Scott Simpson, on producing what is by any measure a weighty tome. I have promised to share it around my colleagues because it is quite a big document and there is often a cry across the House of: “Have you read the bill?”. Hand on heart, in the time that I have had today I have not had time to read this bill. However, I hope I do have enough of an insight into and understanding of the issues it has canvassed through its passage through the select committee, to begin to make a contribution.

The first comment I would like to make is that one of the overarching principles of the Judicature Modernisation Bill is to make access to the court system and to justice more streamlined and more in line with what is increasingly becoming common practice in the Public Service but also amongst the judiciary and the law fraternity. If one were to go into any law office around New Zealand there would be a flat screen set up in the library with the ability to do videoconferencing so that the legal profession can have good dialogue with their clients or with other counsel, which would have the great benefit of their clients not having to travel, at some expense and time, to be connected.

It is interesting that our court system remains the one last bastion of the paper-based system. I also acknowledge that there is a lot of tradition around that. The sight of a judge stamping things on the bench is something that they probably enjoy. It is part of the chatter of the courtroom, and has been so for a hundred and however many years that we have had court sittings in New Zealand—I have failed; I should have known that off by heart. It is a proud tradition and one that is upheld by those who work in the court—the court registrars, the bench, of course, and also by judges in New Zealand.

However, time has moved on and we now have, for example, a police service that has made the transition from waiting behind the desk in its little outpost in the suburb, waiting for trouble to come to it. The police have got out from behind that desk and they are now out in the community, armed with an iPhone and a laptop and an attitude that says: “We will get out in front of trouble.” That is called Prevention First, in terms of the police. That is what we are moving through the officers of this bill, with the judiciary. So the focus is going away from a paper-based system, beloved by many, into a more modern approach that ensures a more streamlined process through the court system for all those involved. But it also has the added benefit of cutting down on cost.

If I perhaps think about my own patch—perhaps in Alexandra, where there is a court—if someone were to be called to the court on a court sitting day for perhaps a traffic offence or some charge like assault, or it could be anything, and that person happens to live 100 kilometres away, it is a lot of time and it is a lot of expense for somebody to go for perhaps a 5-minute court sitting that might even be adjourned. They have taken the day off work, if they are in work, and they have paid for a round trip plus lunch. Gosh! For 100 kilometres, you are looking at $40 or $50 to do that.

I would like to think we are moving to a system—and we are well on the way; I have seen it already in some courts throughout New Zealand—where appearances can be made via videoconferencing. And just as that is a quantum leap forward, so it is for prisoners in custody and perhaps on remand, where there are a number of brief but necessary court appearances to be made. Due to some of the legislative changes that this Government has brought through, we have tightened up laws around strip-searching in order to keep prisons a safer place for everybody involved in prisons. We now have a very clear regime of strip-searching. So whenever a remand prisoner was called from Milton prison or any other prison around New Zealand to go to court for a 5-minute court sitting, that involved a whole day. It involved a strip-search on coming back into the facility. There would be a lengthy drive in a van with an escort, and there would be police at the court. And then the trip would be reversed, on the way back.

That is expensive and it is time-consuming. There is danger there that contraband or weapons or drugs can be reintroduced into the prison environment, notwithstanding the strengthened regime of strip-searching. So the modernisation—and I have just touched on one aspect of it here—of the court system, embodied in this Judicature Modernisation Bill, is bringing benefits not only to the public at large but also to those who work within the court system and the prison system and to those who come into touch with the reality of interface with the court system. Fundamentally, this bill implements reforms that are in response to the Law Commission’s report Review of the Judicature Act 1908: Towards a New Courts Act. It is a pretty old Act, so it is well overdue.

I started my contribution by acknowledging the work of the select committee, and I want to do that again because I understand that the Justice and Electoral Committee considered this bill for months. As you can see with the bill that sits before us today, it was a big piece of work, covering many aspects. In the due course of this bill going through the House, the bill will be divided at the Committee stage, which is still to come, so that Part 1 becomes the Senior Courts Bill, Part 2 becomes the District Court Bill, Part 3 the Judicial Review Procedure Bill, Part 4 the Interest on Money Claims Bill, Part 5 the Electronic Courts and Tribunals Bill, and Part 6 goes into 17 separate bills as a result of amendments to their own respective Acts.

On top of that there are three statutes to be repealed as a result of this work, and they are the Supreme Court Act of 2003, the Judicature Act of 1908, and the Unconsolidated Judicature Amendment Act. I hope David Parker is speaking, because he can probably make more sense of some of these pieces of legislation, but none the less—

💬 Simon O’Connor: Are you saying he was around in 1908?

No, David Parker was not around in 1908. That is unfair—that is unfair. But I do acknowledge David Parker over the other side of the House and his far more in-depth knowledge—

💬 Hon David Parker: Old enough to have trained with your husband.

Yes. I must tell my husband that David Parker wishes to go tramping with him; he will be thrilled. He would rather go fishing, but that is just by the by.

This is a second reading speech. I really have not delved too much into the substance of the bill. I have merely picked up one or two aspects of this bill as a member who was not overly familiar with the select committee consideration, but I think if we want to consider what benefit this bill brings—and what a temptation it would be to thump it on the way through, but I will not do that—the overriding message I think we should take out of this bill is that the judicial system is working well and has served us well for many, many years. However, the Act is due for review. It has been reviewed. It is coming into line with other aspects of the Public Service in New Zealand, particularly in the justice area with courts modernisation, with modernisation of the Department of Corrections, and also with the police modernisation. It is a good bill. Once again, it shows this Government’s focus on good public service, and I commend it to the House.

One of the great mysteries of the House today has been why the computer system keeps going down. Well, if you see the length of this bill that people might have printed off—1,226 pages long—maybe this is the reason.

Just before I commence my comments on the Judicature Modernisation Bill, can I just refer to one of the matters that arise from Jacqui Dean’s contribution. I agree with what Jacqui Dean was saying in respect of remand appearances and things being made simpler through electronic means. I will not traverse some of the civil liberties that were just about infringed by the Government’s attempt to extend that to hearings of fact, where people could potentially lose their right to appear in defence of their own trial, because we did resolve that in this House—but her comments did remind me that I think we have an aberrant corrections system when you create enormous prisons and site them in rural areas so that you have got many hundreds, if not a thousand, prisoners dislocated from the towns and cities whence they come and put into a little rural area like Milton, for example. As a consequence, the likely outcome, when it comes to reintegration of them into the community, is worse because their families have had less contact with them while they are in prison, their friends and support networks have not been there, and it is harder to integrate them into work because there is not much work in those rural areas. I think it is one of the unresolved issues that we have got in New Zealand—this idea that we should have these enormous prisons sited in rural areas rather than smaller institutions closer to the places where prisoners come from.

Anyway, if I turn to this bill, the Judicature Modernisation Bill is a good thing. It is housekeeping legislation bringing the laws up to date and standardising some of the rules between some of the senior courts, and promulgating appropriate legislation for the District Court as well. But it does absolutely nothing to improve access to justice. Unless you have access to justice that is practical, then the courts do not meet their social function, which is to avoid violence but allow for the just settlement of disputes. Disputes sometimes arise between well-meaning people on each side who cannot agree. Those disputes need to be settled. Also, you have disputes where you have powerful or overbearing people on one side and weak and vulnerable people on the other side, and our courts need to be accessible to the weak and the vulnerable in order to protect their positions. If you do not have that, then you actually lose respect for the rule of law as well as encourage inappropriate, uncivil action in society. We call them civil procedures because they are meant to be civil and they are meant to avoid uncivil behaviour.

We have got problems right across the Western World with access to justice, but New Zealand is no different, and it is getting worse in New Zealand. The period that people stand on remand before they get into a criminal process is far too long in New Zealand. People who are not guilty but are on remand are held in custody longer than they should. People who are guilty should be brought to justice and convicted earlier. Witnesses should not have to suffer the loss of memory that happens with time through long processes.

In the criminal justice system now, because of changes to the way in which the prosecutorial services through Crown prosecutors’ offices are being funded, we have got plea bargaining in a way that we never used to have in New Zealand a decade ago, and it is wrong. We now have lawyers who know that they will get a better deal the longer they wait in the process in respect of guilty defendants whom they are representing, because the prosecutors have not got enough money to prosecute them. We have now got serious assaults in New Zealand being categorised as minor assaults because they can get away with that in the plea bargain, and that is wrong.

So I would like to see the Government spending a bit more money on the courts. I think it is one of the duties of Government to make sure our courts are effective. That is not to say that money is the cure to all of these things, but it is relevant.

The civil arena is even worse. Did you know that the maximum income you can have to get legal aid in the civil courts is $22,366 gross income for a single person and $34,420 of family income for a family with one child? There is virtually no one in New Zealand who is employed who is entitled to legal aid, but there are lots of people who are employed who cannot afford to fund a lawyer upfront. As a consequence, there are lots of things that are unjust in New Zealand that are not litigated, and that is wrong too—that is wrong too. That is the case not just in the Family Court—and there are some innovations in the Family Court that I do not have time to go into that I disagree with as well—but in the civil courts. It is wrong.

We now have the rule of law being broken down because contracts cannot be enforced. If you cannot rely upon your contract being enforceable for quite significant sums, well, again, you are undermining the rule of law. These points were made by Her Honour Justice Helen Winkelmann in a speech that my colleague Jacinda Ardern mentioned, which she gave at the Ethel Benjamin Address on 7 November last year, which was about access to justice. She also made the point that court fees have become excessive, and this is the legislation that provides, effectively, for the setting of those fees. Did you know that in the simplest of cases that go to the High Court, by the time you have a straightforward proceeding involving a hearing of 1 day, the court fees alone—this is not the solicitor’s fees—paid to the Crown total $6,700? It is amongst the highest rates in the world—amongst the highest rates in the world. Again, this is a block to access to justice, and I do not think we have got the balance right here. This is, I am told, about 50 percent higher than the comparable fees in the United Kingdom, and that is a country that I think has a fine record of upholding justice.

One of the other consequences, when you do not have accessible cost-effective access to judges, is you get a lot of people actually not even pursuing their rights, but other people do pursue their rights and defend themselves personally in court. There has been an incredible rise in the number of people who represent themselves in court. Justice Winkelmann says of the 228 active civil files in the Court of Appeal, 56—that is about a quarter—involve unrepresented litigants. In the Auckland High Court, 40 percent of all judicial review cases have one or more unrepresented litigants. What happens as a consequence of this is it is incredibly inefficient in the courts. It is incredibly inefficient because unrepresented litigants do not know how to prosecute their rights. It takes a lot longer for the judge. The judges sometimes have to conflict themselves. We have an adversarial system. The judge is not meant to be helping either of the parties, and yet the judge is either having to help one of the parties or asking counsel for the other side to help the party. If you are the other side, you do not think you should have to pay for your own lawyer as well as paying your own lawyer to help the other side.

So all of these problems relating to access to justice are coming home to roost in New Zealand. As a consequence, I think most people in New Zealand do not think our courts are something that they can afford to use. That is wrong. For me, the courts are not serving their social purpose.

Where does the answer lie? The answer lies a wee bit in a little bit more money from the Government. It also lies in improved lawyer behaviour, judges taking control of their courts and stopping them from wasting too much time, and some shorter judgments. There are too many judgments that read like academic treatises at the moment, despite appeal rights. Rely on appeal rights for things that go wrong rather than academic treatises, at first instance. I am sad to say that this bill does absolutely nothing—nothing—in respect of those problems that I have categorised in respect of access to justice in New Zealand.

It is with great pleasure that I rise to take a call on this bill. It is interesting, actually—I was just talking to one of the members opposite in the lift on the way here. I thought I was bound to get the name of the bill wrong, this Judicature Modernisation Bill. We had a little debate in the lift chamber as to how to pronounce it. Thankfully, the member was able to set me straight as I got my tongue twisted around it.

It is certainly a substantive bill. There is a lot of reading in this thing—1,226 pages. It is a little slow to start off with, but I found that by about page 473 it really had you hooked.

💬 Jacqui Dean: Oh, stop it.

Well, I guess I was fibbing perhaps just a little bit. It is certainly very weighty. As the chair of the Justice and Electoral Committee said, it takes a little while to get through it. Although I have not read all of it, I have certainly paid very close attention to some aspects of it.

I think it is very aptly named as the Judicature Modernisation Bill, because when we have an Act that has been around since 1908—despite the fact that it has had a few amendments along the way—it seems most appropriate that we have something like this to modernise it. The existing Act has stood the test of time for some 107 years, but now it is time to just, I guess, joosh things up a little bit, and for us to move on and have a look at what is happening.

It has been great for me to see this Government’s reforms in the justice area. We have been working very hard at putting victims first in the legislation that we have been drafting. I think this is incredibly appropriate because, although it is not necessarily directly related to this, I know, certainly, that whenever we have things that make things better for victims, to me that it is incredibly important. Some 6 or 7 years ago, my brother-in-law was killed in a motorcycle accident. The driver there was up on charges. It meant that we had to travel to the court hearings from time to time. I know that my wife went and supported her sister a number of times, travelling up to Taupō and Rotorua from Palmerston North only to find when they got there that the lawyer was not going to be available and the case was not going to be proceeding that day. At that time I could not help but think, actually, that we really need to ensure that our justice system becomes more victim-focused and takes into account the needs of those people. And that is exactly what this Government is working on doing with the justice legislation that we have been working on for the past 6 or so years.

So I guess, really, that what we are looking for and what this bill is aiming to do is ensure that our justice system is more flexible, more responsive, and more transparent, be it in the criminal field or in the civil field. It is not just the victims who will benefit from that; our society will most certainly benefit when our justice system is more flexible, is more responsive, and is more transparent. That is exactly what these 1,226 pages are aiming to do—to modernise our justice system and bring it in to the 21st century, and to ensure that those principles are adhered to.

I want to focus initially on the technological advances that are being taken throughout this bill. I think it is really great to see things moving along and getting into something that is more appropriate to this day and age. We do live in a world of Facebook and Twitter and people living online. So I think the provision that says that there is a presumption that all written judgments will be published online unless there is a good reason not to is a very good provision for us to have in the bill. Of course there need to be limits on this. I think it might, perhaps, be inappropriate if every judge had a Twitter account, and just after making a judgment they fired it up on Twitter and said: “Just locked that guy up for 5 years. That was awesome.” I do not know that that would necessarily be quite appropriate in terms of technological advances. I guess we do not necessarily want judges sitting in their chair with selfie sticks and posting photos up on Facebook either. So I think there are clearly some boundaries that we would want to have in terms of technology and how it is moving forward. But there are some very good provisions in the bill. As I said, publishing written judgments online unless there is a good reason not to is a very good place to start.

The other technological advance that I really do support is the idea of there being audiovisual links, in particular, at certain types of hearings. The member opposite said that we should not necessarily be having them for the full hearing part of it, but I think, when we are talking about remand court appearances, that this is going to make a significant saving in terms of time, effort, and money. Someone said to me—and I have not verified this amount but it would not surprise me if this were the case—that every time we transfer a prisoner from remand to court and back to prison again, it costs the taxpayer about $5,000. I guess that seems really ridiculous, but if you think of the fact that you have to take two prison guards and a vehicle, and their time associated with that, and then perhaps you have to have somebody providing cover, to fulfil the duties they would otherwise have been doing—even if it is only half that amount, it is significant. What we know is that there are approximately 40,000 remand court appearances made each year.

💬 Brett Hudson: How many remand court appearances?

40,000. So if that was, in fact, $5,000, that is a $200 million saving for taxpayers right there if we can have those—

💬 Brett Hudson: How much was the saving?

$200 million, Mr Hudson—listen up and I will help you out. Listen the first time and we will get it right. But there are significant savings to be made. If we are going to have 40,000—

💬 Carmel Sepuloni: He can’t hear.

Well, it is hard because he cannot read my lips. He is behind me, you see, so he cannot read my lips. I may have eyes in the back of my head; I just do not have lips in the back of my head for him to read.

Anyway, we have got, as I say, 40,000 remand court appearances being made. If we can start to introduce those audiovisual links for more and more of those, there are significant savings to be made. There will be significant benefits to our whole system when we do that.

There are so many things to say—I could go on for hours if I went through this page by page. Although I know the members opposite would just love me to climb into it and take them through the bill page by page, clause by clause, I do not want to do that to you because it would just not be fair. But I do want to touch on Part 4 of the bill a little bit, which provides for interest to be paid as compensation for delays to repayments of debts. I think we would all agree that there is nothing more frustrating than when somebody owes you money and has not paid you that money—in fact, it is actually fair and reasonable to be able to start incurring interest on that money. At the moment, thankfully, we are in a low-inflation environment, and that is exceptionally good, but if things were to change at some point in the future and inflation were to run through the roof, then, of course, the amount of money that people might be owed in terms of a monetary claim would diminish at a great rate of knots.

So I think it is incredibly important, again, to protect through the court system victims or people who are owed money, whether it be through reparation, damages, or other moneys, and to enable them to reclaim that cost of interest. I think it is a really fair and reasonable thing to expect. As I said, there is nothing worse than when you are owed money by somebody and they have not got around to repaying it, for whatever reason, and you are worse off because there is no interest accruing against it.

I just want to conclude by talking about the provision to reconstitute all District Courts as one. At the end of the day, I think there is no need for us, going forward, to have completely separate entities as District Courts right around New Zealand. It might have made sense, I guess, back in 1908, when to transfer documents between one court and the other would have taken however long by horseback—or whatever the mode was for delivering information back in 1908—and there certainly was not the possibility of audiovisual links, that is for sure. But I think it is incredibly important that we actually get some joined-up thinking right across the country, and that we take advantage of the ability of those District Courts to be able to work together more closely. Of course we will have branches in different places because work will obviously need to be done—we are not just going to have one centralised court—but I think it is incredibly important that as we bring these things together we will be able to work in a far more efficient and effective manner.

So there has been a great deal of work for the Justice and Electoral Committee to work its way through. There has been a lot of work for the people who have worked on drafting this legislation. But it seems that there is agreement on both sides of the House that it was certainly timely for us to do this. With that, I would like to endorse this bill to the House. Thank you.

Could I begin just by acknowledging the contribution from Mr David Parker. I think it was an interesting speech in that he talked mostly about what is not in the bill, but I think one of his key points was that we are coming perilously close to being a country where people get the best justice they can afford. I think that is something we need to attend to, be alert to, and seek to wind back. In returning to this bill, the key number is 1908. It is over 100 years since there was a sort of clean sheet, a substantive approach to reconfiguring our justice system. It is a good piece of work that has been done. It has followed on from a number of key inquiries and some substantive drafting work, obviously, by the Minister of Justice and, indeed, by the Justice and Electoral Committee. But I still think there is a bit of work that can be done, and I dare say that indeed at the Committee of the whole House stage I think we can tweak this bill further to make it an even better bill than it is.

The Greens, of course, are supporting this bill. I sat in on some of the select committee process. I sort of played a tag team with my then colleague Holly Walker. I enjoyed getting some insight into some of the challenges confronting this overhaul of the legislation. It has been done, I think, in a spirit of considerable good will, and I would hope that continues. It does some practical things that have been mentioned like the establishment of a Senior Courts Act bringing together the High Court, the Court of Appeal, and the Supreme Court. As the point was just made, it brings together the district courts. I think it is not well known that in a sense each district court is currently its own fiefdom with its own legislation and the like, and that is neither desirable nor sensible in a modern age.

It establishes panels of judges—of High Court judges, for example, to deal with commercial cases—and, indeed, other panels. The world has become more complex. The law is complex. The legal challenges and situations are complex. I think the idea of getting specialist panels of judges to build experience and familiarity with particular areas of law is a very positive one, and I think that will pay off to our mutual advantage. A provision in the legislation that caused considerable concern to a number of submitters and that I think was responded to reasonably positively by the committee was in clause 401. This was this business of the proposition that written judgments ought to be published on the internet. In the original drafting it said simply: “Every final written judgment of the court must be published on the Internet unless there is good reason not to publish.” That sat there, and the point was made that that was completely inadequate. It did not adequately define what is actually meant by a “final written judgment”. It gave no guidance as to what might or might not constitute good reason to publish. There was significant and well-justified concern about that. The committee has now put some definition around it and some more substance around the clause.

The key proposition that, unless there is a reason otherwise, the judgment should be published on the face of it is not a bad idea, but we do have a concern in the Greens—and I recall that we did express this—that there is a possibility that it runs up against the Criminal Records (Clean Slate) Act, which is 2004 legislation, for which we owe some—

💬 Hon Phil Goff: Very good legislation.

—yes, thank you—acknowledgment to my former colleague Nandor Tanczos, who helped shepherd that through the House. The proposition of it is that people who commit crimes and are convicted early in life or at some point in their life and then come out the other side can go on to lead good, honest, decent lives and they should be able to leave that criminal record behind them. That was the intention and the effect of the clean slate Act. So the notion of publication on the internet is problematic. The conversation of the committee did acknowledge that that, of course, goes beyond the provisions of any one piece of legislation. The reality of anything that is reported in the news these days is that if something is put online it is incredibly difficult to remove it. I think that is a challenge we are going to have to confront and try to work around and just find some solutions to that that are not immediately obvious to us, perhaps.

It raises the whole question of justice in the age of the internet, in fact, and that although the digital regime obviously does offer some significant advantages, it also creates new challenges and new difficulties for us. I did accompany the select committee on a tour of the District Court just across the road here. In the course of the tour they took us down into the basement and showed us some of the store of paper. I forget what period of time it had taken that paper to accumulate but it was not very long, and it is quite daunting when one considers the sheer volume of paper that is of necessity stored now to meet the requirements of legislation. It is a very significant problem and the move towards electronic storage clearly is one solution to the question of volume.

Perhaps I am showing my age a bit, but I do have some residual concern, as do others, about the nature of the storage medium that we choose. Even in the last 20 years we have moved from floppy disks to 3¼ inch disks, to external hard drives, to data sticks of ever-increasing capacity, and now to the cloud. Where does it end and how secure is that information? What are its vulnerabilities? It has been mentioned today that for the last 24 hours or so the work of Parliament has been impeded in some important ways because of a hiccup in the IT system. We do not want a situation where our justice system becomes so reliant on electronics and technology that the progress of that justice system could be impeded for shorter or longer periods. I do think that is something we are going to have to confront, manage, and be alert to. Again, I offer no solutions, I am afraid to say, but I do think we must not simply allow any complacency to sneak in—the idea that “OK, yeah, we’ll let the technical people sort that one out.” We do have to think of the social, cultural, and, of course, judicial consequences of some of the decisions that are made around this stuff.

As an aside to that, I would mention that I do have some continuing concerns about the media reporting of court processes. Cameras are allowed in our courts—that is a relatively new phenomenon—and I am aware that there is a review process in train as we speak to measure the success and the appropriateness of the existing regime, and about the use of recording devices in our courts. Although I absolutely support the notion of our courts being public domain and that people should and must be able to see what is happening in our courts—that is entirely appropriate with the obvious exceptions—I do think we need to be aware that the presence of cameras and of media in the courts can have a negative effect on the outcome of the courts and, critically, on the public perception of crime, of offending, and of punishment. That is a bundle of issues I think we need to more overtly and quite swiftly address. I do think that the administration of justice is somewhat impeded by the sensationalisation of the court processes and crime and offending issues generally. Although that does not appear specifically in this legislation, I do think that we run the danger of turning our courts into a circus, quite frankly. One small example is this tendency to identify people by nicknames—the “Beast of Blenheim” and the “Black Widow”. I think this is degrading and utterly unacceptable and it is, unfortunately, commonplace in the media.

Just to close on a few points, I would just like to acknowledge the Labour minority review where it highlights quite correctly that what is missing from this legislation is reference to a commitment to parliamentary sovereignty, the rule of law, judicial independence, and Te Tiriti o Waitangi. It would seem entirely appropriate that such a fundamental and—we hope—long-lasting piece of legislation does embed those commitments into statute, into the documents. I did sit in on this particular day on the select committee when there was mention of the rather fraught issue of the retirement age of judges. It went round and round. There are arguments on all sides that there should be a limit, an age restriction. The point was also very soundly made that people can be in full charge of their faculties and very acute into their 80s and 90s, and some people lack that capacity, shall we say, at much younger ages. So to be age-prescriptive actually is a problem and I think it is something we need to attend to a little more.

We have a couple more stages. We have got the Committee stage and the third reading ahead of us. I think, as I said at the beginning, that there is still some work to be done on this bill and we look forward to being part of that. Thank you.

New Zealand First will continue to support the Judicature Modernisation Bill. It has been a long, long time coming and it is high time for the courts legislation to be updated to allow for 21st century technology to be used effectively, to allow better use of resources, to improve administration, and to make the courts more people-friendly, more accessible, more understandable, and, most of all, more transparent.

The only part that New Zealand First does not support is clause 132 regarding the compulsory retirement of judges. Our reasons are, firstly, that this is ageism. This is a common problem in many parts of New Zealand business, the Public Service, and society. Government should be ensuring that people capable of working, and who wish to do so, are not legally precluded. Under the Human Rights Act discrimination on the grounds of age is unlawful and employers may not contract for a fixed age of retirement. And the provision is unnecessary. Few people carry on when they are unable to perform adequately, so there is no real problem. The Chief Judge could and should advise and counsel judges in that position and this bill should have said just that.

The age of 70 is not so late in life these days for very many able people that they cannot perform well. Indeed, their huge experience makes them extremely valuable and that expertise should not be lost. I remember the late Justice Wilson when I was a young lawyer and he was still “judgifying” well into his 70s. He looked his age but, my goodness, his mind was very sharp and his judgments were very sound. So although New Zealand First opposes this clause and although it is an important matter, we will still vote for the bill as a whole.

I now want to commend the Justice and Electoral Committee, as it was then, for work well done. It worked really hard on this and it is a very difficult and technical bill. It has made many amendments that I support and I want to mention just a few of those. Clause 18 provides for the establishment of a panel of High Court judges to hear commercial cases and other panels to hear other proceedings. The committee inserted new subclause (6) in clause 18 so that any party to a case could request that their case be heard by a panel judge subject to the Chief High Court Judge’s power to determine otherwise. I endorse that. In commercial cases a party will be aware of the particular issues it will be arguing—and there are so many that can arise in commercial cases—therefore, it should be able to suggest a judge whom it believes is experienced in those particular matters. That, of course, is still subject to the Chief High Court Judge’s discretion, so there is a bit of a safeguard there.

Another important change relates to orders limiting commencement or continuation of civil proceedings under clause 162. These are aimed at the serious problem of vexatious or unnecessary litigation. This can cause distress and financial loss to other parties and, of course, it can waste a lot of court time. It must, of course, be balanced by the need to ensure that people have access to the courts for cases having sufficient merit to justify a hearing. Clause 162 provides for the High Court to make limited orders, extended orders, and general orders restricting, to varying degrees, a person from commencing or continuing legal proceedings. But that clause might not always be enough, so the committee added new clause 162(6) to clarify that powers limiting civil proceedings would not derogate from a court’s inherent powers to control its own proceedings, and I also endorse that change. So the court could still control its processes, as it sees fit, for proceedings without merit in situations where clauses 162 to 165 do not apply.

Clause 163(1) is also amended so that the test for the number of proceedings considered by a judge before making an order would be at least two proceedings, rather than “more than 1”. This means that a small number of substantive proceedings can lead to an order on the grounds of a substantial amount of related litigation that is without merit, and an order can now be made for up to 3 years, providing more flexibility than specifying a 3-year period. Clause 165(3A) will refuse a person appealing a decision leave to file a new proceeding. There is simply no need for that right of appeal.

Another important new provision would require every final written judgment of a senior court to be published online unless there is good reason not to do so. Clause 167(3) includes as good reasons not to publish all or part of a judgment the existence of a relevant suppression order or a statutory requirement. Also, judgments of limited public interest—and there are bound to be quite a few of those—need not be published. And there is an omnium gatherum clause so that a judge can decide against publication in the interests of justice, having considered the general presumption in favour of publication. New clause 167(1) requires publication “as soon as practicable”, which I am sure will please many parties and other observers, although exactly what “practicable” means is not entirely clear.

The maximum number of District Court judges caused some discussion in the select committee, understandably. Clause 193 sets the maximum permitted number of permanent District Court judges at 156, with adjustments for part-time judges incorporated. The committee majority thought the existing mechanisms for assessing and delivering judicial resources, including the appointment of acting judges and a semi-regular review of judicial capacity, works well. Although I agree with those who would like regular reviews of judicial capacity, this is not a major issue and would not cause New Zealand First to vote against the bill.

Part 4 is important. It covers interest as compensation for delay in the payment of debts, damages, and other money claims in civil proceedings. I am very glad to see this. It is something that needed to be there for a very long time. The absence of that provision did lead to some injustice.

The committee has amended clause 452 to insert a worked example to clarify the calculation of interest to be awarded under clause 450. That will assist in making the workings of the provision clear, and it is very necessary to do that. Also in the original bill, interest was to apply only to judgment amounts exceeding $5,000. As the internet site calculator can calculate interest on smaller judgment amounts, it is appropriate that it should be possible to calculate and award interest on judgments for $5,000 or less, and, in fact, that now must be done. So this is another very good provision.

There are many, many such provisions in the bill. It is a very good piece of legislation, apart from the provision for the compulsory retirement of judges, of course, but, generally it is one that has been well-developed. The committee did a good job. The officials who produced it—and no doubt they took some years to do so—have done a superb job and we should all be proud of this particular piece of legislation being enacted. So, overall, New Zealand First welcomes the bill, and it deserves our full support.

I am very pleased to speak in the second reading of the Judicature Modernisation Bill. As I begin I need to give a shout-out, if you will, to Ethan up in my electorate. I like to think of myself as a responsive MP, and although I do not want everyone starting to message and tweet me for a shout-out, to young Ethan, who I know is a very keen follower of Parliament—hello to him.

💬 Metiria Turei: Hi, Ethan.

Indeed, look, we have got cross-party support going on here, Ethan, even from the Greens.

So I am very pleased to hear of New Zealand First’s support for the bill. I note that, from a number of speakers from other Opposition parties, there are elements of concern and I think that it is right, proper, and appropriate that they are being voiced here in the second reading and, of course, through this rather weighty document in front of me.

I must admit that I have not sat on the Justice and Electoral Committee. It is something that I have been interested in following, though. This bill is quite a tome, and a number of people have spoken about it in different ways. I think what it does, at least symbolically by its sheer size and weight—other than removing the need to go to the gym by just lifting it—is show how serious our judiciary and the systems within it are. What is being discussed here today is serious and has some rather profound impacts on how we as a country move forward.

The bill is reviewing a previous Act from 1908—107 years ago. I do not think that anyone from this House can claim to have been around then, but 1908 was when the Act first came about, and this omnibus bill seeks to review it. Out of interest I note that in 1908, I believe, Shackleton headed to the Antarctic. I think either it was called the Nimrod Expedition or his ship was called Nimrod, but that is something that happened in 1908. Butch Cassidy and the Sundance Kid were killed in 1908. For the feminists amongst us, Simone de Beauvoir was born in that year and, for some reason that I still have not worked out, the King of Portugal was killed in that year. I do not know why I have that in my head, but it just begins to show you the context of why this bill was needed and has reached us here today.

This sits within a Government commitment to modernise the Act. A previous Minister for Courts began a lot of work in this space, updating and modernising—particularly through the use of audiovisual technology—and this bill plays into that. In some ways, it could be inspired by that. I know that then Minister Collins was a big proponent of bringing this bill before the House, and it now sits within the very capable hands of Amy Adams.

The bill itself has gone through several iterations in terms of the select committee. Scott Simpson, the very fine member for Coromandel, was the chair when he started to bring this bill through the House in his capacity as chair, and more recently it has moved on to Jacqui Dean. I was very pleased to hear her speak soon after the first speech from the Opposition earlier.

The bill, as I was saying, is about modernising our courts. This is not something we should rush into quickly or, in fact, even often. Some of us, myself included, have noted that it is 107 years since the Act that we are looking to amend and modernise first came about. In some ways I think that illustrates how the structure of law in the realm of New Zealand has worked, and worked rather well. It has served us well, but Parliament has, rightly, decided that now is the time to look and to modernise. But, as I just said a bit earlier, this is not something we need to race or rush into. I think we move, excuse the pun, judiciously.

💬 Hon Louise Upston: Oh, very good.

I have been waiting for that all night.

This is an omnibus bill. It was noted earlier, but I think it is helpful that we are going to break down this rather large tome into a series of parts and individual bills. Part 1 is going to be the Senior Courts Bill, and is going to include schedule 1, I see here, which is about the High Court Rules.

Part 2 is about the District Courts and will be called the District Court Bill, which is rather self-explanatory. Part 3 of this bill will become the Judicial Review Procedure Bill. Part 4—again, as you can understand, this is a substantial bill; an omnibus bill—becomes the Interest on Money Claims Bill. We heard from the previous speaker from New Zealand First some thoughts and concerns. I think about $5,000 has been the de minimus that has been set. Obviously, the committee has widely discussed this, and batted it back and forth, but it is still obviously an issue that has been raised here in the House on the second reading.

Part 5 will be called the Electronic Courts and Tribunals Bill, with Part 6 basically becoming, on top of this, 17 separate bills because they are amending those 17 respective Acts. Three statutes are to be repealed: the more recent Supreme Court Act 2003; obviously, the Judicature Act 1908; the unconsolidated Judicature Amendment Act 1972; and, finally, the District Courts Act 1947.

This is an enormous piece of work, and I think it is right to commend not only the MPs who have worked on this in the select committee but the Ministers and their officials. This is a lengthy and substantial piece of work, and kudos to whoever has read from page 1 through, I think, to page 1,200- and -something. It is a substantial piece of work.

Several members, particularly from the Labour Party, have raised the issue of the purpose clause, and this has been articulated quite well and succinctly in Labour’s minority report. If I can just go to page 7, the Labour Party was very concerned that concepts that it believes comprise the fundamental values of the New Zealand justice system, such as the rule of law, judicial independence, the Treaty of Waitangi, and parliamentary sovereignty, were not put in the purpose clause. I must say I agree that they are not in the purpose clause, for a number of reasons. I think the Minister, in her opening address, noted that this is an application, if you will, of those principles, all of them incredibly important. I do not think—well, I hope that no one in the House would disagree that elements such as parliamentary sovereignty, the rule of law, the Treaty of Waitangi, and judicial independence are important, but the bill itself is not there to express those purposes by defining them; it is there to do it through its actions.

The other side, if I was to put on a philosophical hat, is that you cannot really have a purpose “to commit”. I do not think it makes very much sense. In the minority report, the first omission that the Labour Opposition sees is that the purpose clause, clause 3, should have a reference to a commitment to parliamentary sovereignty. Again, you cannot quite have a purpose “to commit”. You can have a purpose to bring about, a purpose to express a duty, but I think we do a disservice, actually, to the elements of the Treaty and principles of the rule of law by just simply throwing them in as a purpose.

The other element that comes in is always around clarity with these things. They are wonderful notions and, many of us, depending on what we have studied, through law or philosophy or whatever—some of them can be rather well-debated elements. People’s perceptions of some of these purposes or intended purposes are still open to debate, and I think that we as a House do ourselves a disservice if we try to almost poetically throw them in because it sounds good and has high moral tones without fully understanding what they mean and being able to clearly articulate them. Ultimately, when you are dealing with a bill such as this one, it is vitally important that we get the minutiae right, and the best way to start getting things right is to be precise with one’s language and precise with one’s understanding. So I just want to, I suppose, push back on that notion. I can understand, I think, where it might come from, but it is not right, appropriate, or even good lawmaking that we would insert those four elements into this bill. In fact, this bill, when it becomes an Act and is rightly and justly applied, will bring about those purposes coincidently, but it does not need an explicit note.

I am conscious that the bell has been rung, which means there is only a short time to go. I do want to just draw attention to the whole use of the audiovisual links. Again, a former Minister for Courts in particular championed a lot of this work, as well as the whole use of electronic paperwork. This bill draws that right across the judicial system. I think it is fantastic that those other courts will be able to submit electronically. We heard today from the Minister of Corrections, Peseta Sam Lotu-Iiga, about, I think, a $10.6 million spend that the Government has put out across 12 prisons to increase the audiovisual capacity. Again, if memory serves me right, something like 40,000 remand hearings have been heard. I think it is important for us to understand that certain hearings will always require, I think, that a citizen who has been accused can stand face to face, in actuality, with their accuser, but things like bail hearings and remand hearings can easily be done audiovisually. So that is my not so short contribution, but do commend the bill to the House.

This is a shared call between the Greens and Labour. I call Dr Kennedy Graham.

I do not plan to take up too much of the time of the House with my input on this bill. I will just pick up on one or two comments from the previous speaker in his critique of the Labour Party minority view.

This, perhaps, is not the most auspicious day for the Green Party to be defending the Labour Party corner, and perhaps I will leave it Phil Goff who is splitting the call with me. But, no, let me rush in and assist. The critique of Labour here was, I think, a little bit over the top from the Government. It was hugely unfair and churlish. It was effectively a criticism that Labour, in its minority view, is looking to have as a purpose, a commitment, and that this was judiciously injudicious. If, in fact, one reads the minority view, it says that the first omission from the purposes clause is any reference to a commitment to parliamentary sovereignty. So, as I understand it, the intent would be to express a commitment to parliamentary sovereignty and other values, which are exactly the same terms that seem to appear in the Supreme Court Act 2003. So, from our viewpoint, it seems entirely valid and proper that one of the purposes of the bill would be to have such an expression of a commitment to certain values. But, hey, we can argue the toss, or Labour can. I will leave it to the Hon Phil Goff.

I just reaffirm what my colleague David Clendon said. It is our intent to support the bill. It is a massive piece of work and I think that especially officials should be commended for this work. It is 1,226 pages—arguably the biggest piece of work in my time in this House. The previous speaker, Simon O’Connor, wondered whether anybody had read the bill. I tend to agree that that is probably the case. I doubt that anybody has, thereby proving that there is such a thing as the group mind. These things, these products, become the product of a group mind. We got to the moon that way. Neil Armstrong had sufficient faith in the group mind to step out on to the moon’s surface and back, and I would enjoin all of us to have equal faith in the group mind to produce something useful here.

My one serious comment tonight on this is that when it comes to one particular clause it is our view that that clause could still stand some improvement, and that is clause 168, pertaining to recusal. It refers back to some interest the Green Party had in developing a register of pecuniary interests for judges. That bill, which was a member’s bill in my name, ran its natural course of life in the 50th and 51st Parliaments and rests in the heavens in the sublime belief that it may yet have some constructive, if not to say angelic, influence on the current incarnation in the form of 1,226 pages of the Judicature Modernisation Bill.

Clause 168 does refer to recusal, and it imposes an obligation on judges to develop, through the Chief Justice and the President of the Court of Appeal, I think, ways in which they can recuse themselves from judging a trial. We, of course, endorse that. We think it could go a little further. We think there could be assistance in terms of using the guidelines that come from the Guidelines for Judicial Conduct in making the statements a little more specific. There could be a register of pecuniary interests; it does not have to be made public, which was in our own member’s bill. It could simply be confined to the judiciary, to avoid the critique that it becomes public and judges might become vulnerable. It could also contain statements to the chief judges, reflecting those guidelines: no close relationship to litigants; any public statement of firm opinion, if it had been made; and a close relative. There are three criteria, and when the time comes we will consider putting forward a Supplementary Order Paper on that subject, in a constructive spirit.

Labour supports the Judicature Modernisation Bill. I have got to say that it is a little hard to do justice to this bill here tonight in a 5-minute speech. I have got 50 seconds per 200 pages, so I will have to rush it a little. [Interruption] My colleague Kris Faafoi will move an extension of time, I am sure, and it will be endorsed by everybody in the House.

This is a good piece of legislation. It is very worthy, which is sometimes another word for dull. It is based on the Law Commission report, the Review of the Judicature Act 1908: Towards a New Courts Act. I think you would have to say that after 107 years’ time, it is about time that we rewrote it. The current Act is outdated, it is inconsistent, and it is quite difficult to follow. We have modernised it, but it is fair to say that the terms of reference for the drafters did not include the words “concise” or “succinct”. In fact, I think, at 1,226 pages long, this is longer than the concise English dictionary. When they called it an omnibus bill, I was not sure whether it was because it covered a whole lot of bills or because it was the size of a bus; I think probably a little bit of both. What it does, however, does make sense. Part 1 brings all of the senior courts together into one Act. Part 2 makes a unitary District Court, so that the other courts become specialist divisions of that court—the Family Court, the Youth Court, and the disputes tribunal. Part 3 deals with a quite modern piece of legislation, only 43 years old—the Judicature Amendment Act 1972—and it updates that. Part 4 is the Government response to a specific Law Commission report, which is Aspects of Damages: The Award of Interests on Money Claims. And Part 5 is quite important because it enables the use of electronic technology in court proceedings.

But I want to associate myself with David Parker’s comments on this bill. When I read the commentary, it says that the bill is intended to “make the justice system more people-centred, modern, and accessible”. By accessible, I guess the drafters meant it is easy to find where the legislation is, because if they were saying accessible in terms of people’s access to justice, that would be quite wrong. Obviously, access to justice is a lot more important. If you really believed that the justice system was equal and we were all equal under the law, you would have to argue that the person who can afford to employ a Queen’s Counsel has the same standing as the person on legal aid, or, worse still, the person who is not eligible for legal aid. The changes made in this House in the last 5 years to legal aid say that if you are on the minimum wage—the minimum wage—you are not eligible for legal aid, for God’s sake. You have to be on a benefit in order to get legal aid. Who in this House could say that that is justice? And I have to say that last year, when we passed the Family Courts Act—with our opposition—that made the law less accessible to those who are most vulnerable, particularly our children. So accessibility is not what this bill actually achieves.

I want to in my last couple of minutes refer to the minority report of the Labour Party and its particular reference to the Speaker in the Chair, Trevor Mallard. It says that there is a retirement age of 72. Well, that is actually against the Human Rights Act, in terms of the Human Rights Act saying that we should not discriminate on the basis of age. I am sure that there are judges aged 72 who are just as capable as you, Mr Assistant Speaker, despite their advanced age, and it should not be based on the nominal age; it should be based on ability to do the job.

The second and most important point is that this bill explicitly excludes what is in the Supreme Court Act, which talks about the independence of the judiciary. The independence of the judiciary, in a country that does not have a formal, written constitution, should be written into the law. Jack Hodder and other people who are eminent in the law have said that this is a mistake, and not one National member of Parliament has stood up to justify why we have taken out reference to judicial independence, which is a fundamental foundation stone of the democratic system.

It gives me great pleasure to rise in regard to the second reading of the Judicature Modernisation Bill. I would like to thank Phil Goff for his most passionate speech in regard to this bill. I do not know how anyone could get up there and shout over a bill of this length, but he managed to do it and go totally offline, but that is all part of it.

💬 Stuart Nash: Enthusiasm.

Enthusiasm. That is what we like to see from the Labour Party.

This is a very substantial bill. All members of Parliament have referred to its scope and size and the impact it will have, and it does not give it justice to do a 10-minute speech on it really. Even members of this Parliament will not be able to do that. So to cut it down to something that is probably more interesting than going through the whole bill—as everybody would like, no doubt, for us to do—it is important, as members have focused on our judicature system and especially on our court system, and the ability for New Zealanders to have good representation, to have fair representation, to actually have a system that is fair and open, and the ability to have faith in the rule of law in our country. That is a defining thing that makes our country one of the great countries of the world and one where we can have a Parliament like this, which is successful and enables people to share their views in an open and constructive way. It enables us to have a system where if people feel there are disputes and they feel that they have not been treated properly, they have a fair and open process that they can go through to rectify that situation. It enables New Zealanders to have comfort that if they ever do get in a position where they are on the wrong side of the law, they will actually have a genuine, open, and independent process that will enable them to have the full rights that you would expect in such situations.

We need to contrast that with many other countries around the world that do not have such open and fair systems. I think New Zealanders are very proud of what this system enables us to do as a country. But at the same time, a failure to have a strong judiciary, a failure to have a strong police force, a failure to have an independent judiciary, and a failure to have an independent police force can lead to corruption. It can lead to the inability of a country to grow and prosper and, ultimately, it can dictate that there is less democracy in the actual country. That is something that all people in the world, regardless of their State, want: a fair deal and the right to be heard and to make their views known.

This bill, as members have said, is divided into a number of parts, and those parts cover off some of the major parts of our legal system. Although it is a substantial bill in size and scope at this stage, it actually is a reflection of many bills and many parts of our legal system that in themselves are quite substantial anyway.

To look at some of the main parts of the bill, Part 1 has regard to the senior courts. It replaces the Supreme Court Act and the Judicature Act. It improves the transparency and flexibility of senior courts, and provides for the establishment of a panel of judges. That is Part 1, which relates to senior courts.

Part 2 relates to the District Court. It constitutes District Courts as a unitary court, rather than the many separate District Courts that we have now throughout New Zealand. That is similarly done with the Family Court, the Youth Court, and the disputes tribunal. Effectively, when you go to one court it could be the District Court in Te Awamutu or the District Court in Whakatāne. It is all part of the District Court, rather than each individual court. That is something that I think New Zealanders would probably have assumed already, but now actually see in reality.

Part 3 looks at the judicial review procedure. That sets up a stand-alone statute that continues the process and procedure for judicial review applications. Many people will be aware that judicial review is one of the back-up abilities of constituents in a case where they feel the justice system has let them down. Judicial review is often used as a form of perhaps opening the ambit of what the justice system may have considered, in order to enable those involved in those cases to be fully reflected in their judgment.

Part 4 is on the interest on money claims. That was covered off very nicely by Jono Naylor in his speech. He went through that, and discussed the importance of it and the interest that would be charged in such situations.

Part 5 is on electronic courts and tribunals. That is part of the growth you are seeing in the technology that will be used in any Government department, but our courts system, especially, needs to make sure that it has the best technology and the ability to use that technology. In question time today we heard how that can assist in the process of ensuring fairness of trial, but also can assist in ensuring the saving of money through the system.

Part 6, “Amendments to other enactments”, covers off a variety of court-related changes to existing Acts.

The legislation has a series of parts to it, and to do it justice is really quite difficult in this situation. But the context of it, for all New Zealanders to understand, is really that we have an excellent legal system in this country. It underpins our ability to have democracy. It underpins our ability to be treated with fairness and equity, should something go wrong or in time of dispute with another person or corporate. The strength of that legal system is built upon rules that have been developed over many years, and those rules will continue to develop. They will require and dictate that you will have large pieces of legislation like this. But this legislation will be broken down into those series of parts, which are essentially laws that you will find around each of those areas, such as the senior courts, the District Courts, the judicial review procedure, interest on money claims, and electronic tribunals. Effectively, we are dealing with something that is really a summary and also a proactive attempt to devise the best judicial system that we can in our country.

It is very pleasing to see that the parties in this House, especially the Labour Party and the Green Party, are supportive of this bill. It is one of those pieces of legislation that all New Zealanders can be proud of in the sense that the parties of this Parliament come together and see its practical implications. It is not a policy issue; it is something that makes a better difference practically to the way that our systems are run, and therefore is something that would encourage people to have faith in our judiciary and our legal system.

This is a strong bill. It is a substantial bill as well. It will achieve its purpose. We appreciate the support that other political parties have given in this House. I think, as mentioned before, a thankyou needs to go out to all those involved in writing the legislation, and to the officials who have been involved, for their great work on this. Thank you.

This is my first speech in the House as the associate justice spokesperson for the Labour Party. In that light I would like to first make reference to my father, James Bertrand Kinney Curran, otherwise known as JBK or Kinney, who began his career in 1945 in Invercargill, where he joined the courts division of the Department of Justice as an office boy. His first key appointment was in Lower Hutt as a deputy court registrar, and then in Christchurch as the Official Assignee in the 1970s. He ended up in Dunedin as the High Court registrar, and ended his career back in Wellington as a courts manager.

I suppose the point of this is that I grew up in the courts system, and in fact I used to spend time down at the courts, waiting for the jury to come out in murder trials, when he was the—

💬 Kris Faafoi: That’s healthy.

Ha, ha! It was an interesting childhood. One of the things, though, that he did do—and this is the relevance—is that he co-edited the fourth edition of Dobbie’s Probate and Administration Practice, which is a weighty tome and still resides on the shelves of most practising solicitors. In that vein, in that spirit, I hope that I can do him justice tonight.

The first point I would like to make on this bill—and I will not reiterate what everyone has said about its size and its weight—is that I want to respond to something that was said by the other side of the House during this debate. It was basically a brush-off around the importance of purpose clauses in legislation. On this side of the House, Labour believes that purpose clauses are a very important part in legislation, in writing legislation, because—and it is pretty blindingly obvious why—they give you a very clear idea of what flows from that legislation.

Labour put forward two main concerns about this legislation in our minority report. The first concern is the omission from the purpose clause of any reference to a commitment to parliamentary sovereignty, the rule of law, judicial independence, and the Treaty of Waitangi. Unfortunately, this Government has been messing around with purpose clauses in a number of pieces of legislation. We have got a big argument coming around the purpose of the Resource Management Act. We have had changes to the purpose clauses of telecommunications Acts. There is probably a whole list of them that I could name. But the point is that when you remove things or when you change the purpose clauses, then the interpretation of the legislation, when an issue comes to court, is very important. We say that those purpose clauses are critically important and should be noted.

Our approach to legislation generally is values-based. We are pragmatic, but we are also very thoughtful. We stand for an independent and fair judicial system as being the cornerstone of an important part of our society. Therefore, the purpose in legislation, even if it is relatively uncontroversial legislation—it is rather large legislation, but relatively uncontroversial—is extremely important. So I do want reiterate that point.

Another point is that access to justice is critically important. My colleague Phil Goff referenced the issues around access to justice for people on low wages, on the minimum wage, and how critical it is that we ensure that. If you are on the minimum wage or even a bit above the minimum wage, accessing justice in this day and age is actually quite difficult. We must remain, as a Parliament, committed across the board to removing the obstacles to justice for people in the community.

The other part of this legislation that I want to touch on—it is blindingly, obviously important—is around the role of modernisation. I actually, curiously, want to agree with Judith Collins, who made some comments when the legislation was first being introduced to Parliament about the importance of changes to ensure that all written judgments are published online unless there is a good reason not to. Again, I think that in this day and age we have to ensure—and this is in regards to access to justice; it is also an access to information issue—that the outcomes of complex issues that are going through our courts are made available to the public at large. Access to the internet and having those judgments published on the internet are very important in order for people to access them; it can be quite difficult otherwise.

This legislation places a requirement on the judiciary to publish information on the numbers of outstanding judgments beyond a reasonable time, and it also lays out how people can get access. I know, myself, when I have been trying to access judgments that are of interest to me and my portfolios, that sometimes it is not always that easy to get them immediately, and this can actually have an impact on how there can be a response. It can have an immediate impact on the public discourse and the dynamics that go on around the public discourse. So I think this is a very important part of the modernisation of any of our procedures in the public arena—that we are making judgments, we are making decisions, we are putting policy and we are putting all of this information into the public arena, and we are doing that in the online environment. We are not just doing it in the online environment; we are making it very obvious about where we are doing it in the online environment.

Judith Collins also said that New Zealanders are paying for this justice; they should also be able to access it. The higher courts already publish decisions of interest, but the biggest gap is in the District Courts, where the bulk of cases are heard. We must work with the judiciary to close this gap, and this new bill is a key part of that dialogue. This is an important part of the purpose of this legislation.

Actually, looking at the size of this bill, you would not think that it was that modern. It could maybe have been written in plain English and maybe made a little bit shorter. I hate to think that, if anyone would actually need to get hold of a copy of it, they would try to print it off from an online environment at home in order to try to come to grips with it. I certainly advise that nobody should attempt to do that.

I guess the main other point—and also to reiterate what Phil Goff said around the second concern that Labour has—is around the age of retirement of judges. I am hoping that we are going to have a further discussion about that in the Committee stage. Under the existing Human Rights Act, discrimination on the grounds of age is declared to be unlawful, and employers may not contract for, or otherwise insist on, a fixed age of retirement. I think this is an important issue that we should debate.

The independence of the judiciary—the importance of not having too much influence on the judiciary—is a critical part of the division of powers within our society. I think this is one issue that we do need to debate during the Committee of the whole House stage.

I rise to take the final call in the second reading of the Judicature Modernisation Bill. It almost seems like a badge of honour that everyone is putting this thing here—all 1,226 pages. I want to say that in the 50th Parliament I was on the Justice and Electoral Committee, and we had this bill before us from 2013 to 2014. I think it was fulfilling work. It was tiring. We heard a number of submissions. On that, I do want to acknowledge the Minister of Justice at that time, the Hon Judith Collins, and her leadership on this. I want also to acknowledge our fine chair at that point in time in the 50th Parliament, Scott Simpson, who was ably supported by his deputy chair—myself—and all the other committee members.

I suppose the thing about this bill is that we have had many speeches about parts of the bill and the importance of it. Having been privileged to be in the committee when we had the submissions, I want to sort of humanise a part of the process to bring to light some of the submissions that were actually part of the process of hearing and forming the bill as we have it now in the House. One of the comments that I took away with me from that submission, as a takeaway point, was when one of the submitters said that justice delayed is justice denied—justice delayed is justice denied. I think that speaks to the heart of what this bill is intending to do. From 1908 to where we are today, this bill is purely about being people-centred, being modern, and being more accessible. That is the heart of this bill—all 1,226 pages.

I want to touch on a few things. One of the things is, I suppose, that the intent and the timing becomes really important for this bill. We know that at the moment we have the lowest crime rate in New Zealand in 35 years. That is something to be celebrated—the work that this Government has done to ensure that we are in a place where we are able to make sure that our communities are as safe as possible. There are still issues around harm and welfare that we need to be attentive to, but I think that what can actually be celebrated is the work of our police and also of our judiciary. Hence the reason the timing of this bill and the modernisation of it have become critically important as well—knowing that we have got time to be able to look at what some of the drivers of crime are, but at the same time too at the ways we can ensure that there is a greater customer focus, especially for victims, lower costs, more efficiency, and a more accessible justice system. I believe that the work of the Justice and Electoral Committee and also of this Judicature Modernisation Bill will contribute to that as well.

I just want to draw on and highlight, I suppose, some of the submissions in regard to the comments that were made. If I can beg your indulgence and read just the parts of the submission that highlight what I think is important for, I suppose, the House and also the listeners out there to give them an understanding about the whole of the sector—the whole of the sector.

💬 Pita Paraone: Who made the submissions?

Yes, it is coming, Mr Paraone. This is from the submission of the Supreme Appeal Court of New Zealand and the High Court. This was their submission on the Judicature Modernisation Bill. In the introduction this is what they say, and if I can beg your indulgence to read just this part here: “The Judicature Modernisation Bill 2013 bears upon the balances struck by the New Zealand constitution in relation to the functions of the judiciary in a society based upon law. The matters covered are of importance to all New Zealanders. Being central to the exercise of judicial responsibilities, they are also matters upon which judges have particular perspective and interest, which we have thought it to be in the public interest to express. In the context of New Zealand’s largely unwritten constitution, constitutional values and balances can be easily overlooked. The Judicature Act 1908 is constitutional legislation”—constitutional legislation—“because it is concerned with the jurisdiction and administration of the judicial branch of government. Changes to it therefore require particular care to ensure that they do not disrupt fundamental balances. Indeed, our preference is that the title ‘Judicature Act’ is appropriately retained as a more accurate representation of the foundational nature of the principal act constituting the superior courts of record.”

I know that was a little bit technical, but the intent that I get from it is the fact that this is about making sure that we have the balances and that we do not have unintended consequences by changing a number of the laws. I take what Mrs Curran is saying—she is absolutely right—in regard to the purpose statements that we do not unintentionally create consequences that could impact on our system and our judicial system as well.

One of the things that was also part of our submissions and that I think was important was that although we heard from some of the judges, we also heard from those who have experienced the court system, who have found for themselves that this system has at times not responded to their needs, and who have at times felt—as I recall that statement—that justice delayed is justice denied.

I want to read from the Red Raincoat NZ Trust—and again it is just a brief statement from its submission, which I think highlights the need that we have to ensure that we have a modern judicial system that meets people’s needs, particularly the needs of the victims who experience this court system. This is from the Red Raincoat NZ Trust, and it says this: “I was disappointed when reading parts of this lengthy bill”—a bit of an honest critique—“that there seems to be very little consideration and provisions given for the victim and their family. The court process is one of the most significant and lengthy parts of the process for them and I would have liked to have thought that they would be a crucial consideration to this bill. The victim and their needs are therefore the basis of my submission. I will cover four important areas I believe need to be considered …”.

We took these comments, along with many others that talked about those who experienced the court system, to ensure that it is a system that does take care of the needs of victims when they are experiencing it.

In the light of that, then, what are some of the changes that we are making in this bill in regard to the needs of the victims? It makes it more efficient, and there has been some comment about that. I suppose with modernisation it means changes to increase information about court judgments. I know that a number of submitters talked about how, when they were waiting as a family—waiting for the decisions of the judges, and not really knowing what was actually happening—they would like to have received information in a timely manner to actually relieve some of the stress and some of the burden that they were carrying upon themselves when they entered into the court system.

We are introducing a legislative assumption for the online publication of all written judgments. I know that many members have talked about it in their speeches, but I wanted to give the context: this actually becomes very important to the victims and to the families. This will give the public greater access to what happens in courts and to the outcomes of cases. This work is an important part of raising the level of public trust and confidence in the courts, as well as of providing access to information.

What was also important to this, which came through the Justice and Electoral Committee, was when the Ministry of Justice came and presented to us some of the development that was actually happening down in Christchurch and to the Christchurch courts. Although there was capital expenditure in regard to the development of the courts, along with this piece of legislation—so although the inside operations were important—we also know that the outside operation was important, ensuring that the courts themselves physically responded to the need to be accessible and responded to the needs of those who were partaking in the judicial system and its administration side. We saw some of the changes, and although I have not actually been there myself, I know the new Christchurch court is one that has achieved that as well.

Just in summarising some of my contribution, just in this second reading of the Judicature Modernisation Bill, I think that what has become the highlight of this is that this Government is ensuring that it is modernising the legislation to overhaul our courts. It is following the Government’s response to the Law Commission’s review. I believe the work that we have done has made a difference. I look forward to the Committee stage and third reading. I commend this bill in its second reading to the House.

Bill read a second time.