Judicature Modernisation Bill

Mr Chair, you will see, just as a visual aid, that the Judicature Modernisation Bill is a weighty bill—

💬 Denis O’Rourke: Door stop.

—a door stop, as my colleague has described. But despite the fact that it is so weighty there does seem to be some universal support—near-universal support, at least—for what this weighty document is attempting to do. So that theme will probably come through in the debate today.

The Judicature Act as it stands is over 100 years old. There is universal agreement that it absolutely needed to be updated, and so I do thank the Ministry of Justice and Minister Adams for the work that has been done in that regard. It has taken some time. The Law Commission did produce recommendations to consolidate this document—the Judicature Act with the District Courts Act and the Supreme Court Act—some time ago. So, as I say, it is timely that we finally come to the point of reaching the Committee stage here today.

I want to run through some of the substantive changes that this bill also introduces. Even though we will be debating this as one question, I will thematically go through and begin with some of the Part 1 changes. I think it is fair to categorise the Part 1 changes as being focused on simplification, on streamlining, and on transparency. There are a couple of opportunities that are missed here, and I will touch on them briefly as well. Part 1 repeals the Supreme Court Act 2003 and the Judicature Act 1908, and creates the new Senior Courts Bill, which will put all of the courts—the High Court, the Court of Appeal, and the Supreme Court—under one system. In doing so, it streamlines the appointment of non-permanent judges; establishes a judicial panel for hearing certain types of commercial cases; repeals the commercial list, which has set out case management approaches; and gives more power to restrict vexatious civil litigants, an area where we are seeing more self-representation, which is probably timely.

Originally, it also required the publishing of—and part of this provision remains—information relating to reserved judgments, recusal from cases, and suitability of judges holding employment or other offices, and I note a useful Supplementary Order Paper 66 from the Greens on declarations around pecuniary interests in this regard. It also talks about requiring final written judgments to be published unless a good reason exists not to do that. We have had a Supplementary Order Paper (SOP) from the Minister in that area, and I just want to touch on that SOP very, very quickly.

SOP 197 by the Minister makes, by and large, a few changes that we are generally supportive of—particularly around things like commencement dates, superannuation subsidies for acting judges, and the like—but one of the things it does is reverse the requirement for mandatory publication of decisions online. We are slightly disappointed that that has happened. We do think that there needs to be a longer-term plan to allow that to happen. Down the track we will ask officials what we are doing to make sure we have greater transparency. If you want to make a judicial complaint, for instance—I have had people come to me and say they want to do that, but the lack of transcribed rulings and judgments from hearings makes that difficult. So that, I think, ultimately would be a good place for us to head to.

I want to come, though, to some of our SOPs that cover this part. We have a couple of really substantive SOPs that on the face of it may seem simple, but that capture matters of constitutional importance and weight, which I will be seeking the Committee’s support for. In fact, one of the SOPs in my name that I want to speak to, SOP 62, was not originally raised by me but actually by members of the judiciary. In particular, I want to refer to Justice McGrath’s retirement speech, which has been referenced in the media. A retirement speech is obviously the chance to reflect on a lengthy career as a member of the judiciary and of our legal fraternity, and the fact that this retiring judge used that special opportunity to reflect on what was happening here in Parliament in respect of this particular provision to me speaks to the weight of this issue.

I want to read from that retirement speech—just for a moment, if the Committee would let me, because it relates directly to Part 1. He said: “Just bearing that in mind, I hope you will forgive me if I detour for a few minutes to raise a matter of a constitutional kind that causes me some concern. Our constitution is an informal one. It is not set out in any single document. It has been described as the product of a complex mass of forces of a political, legislative, prerogative and judicial kind. As a result the New Zealand constitution is found in some rules that have been enacted by Parliament, some rules of common law stated by the Courts and a number of conventions which are [appropriately described as] established understandings … Most New Zealanders seem happy with [these arrangements] and so am I. I do not favour replacement of them with a [formal] constitution …”.

He goes on: “But I believe there are gaps in our constitutional arrangements … And we also need to ensure that we do not [as a society,] inadvertently create new gaps [in our constitution]. The Constitution Act 1986 provides that Parliament continues to have full power to make full laws. [Now that recognises,] with clarity, that Parliament is the supreme law making power of the nation. There is no equivalent provision [in that Act] stating the role of the judicial branch, or indeed the underlying concept of the judicial function which is to uphold the rule of law. That gap was filled, to some extent, when this Court, the Supreme Court of New Zealand, was established in 2003. The legislation stipulated that nothing [in the Act] ‘affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament’. Commitment to the rule of law is a simple but important constitutional concept. It means our nation’s commitment to the principle that all persons and all bodies, whether public or private, must comply with the law and are entitled to exercise all rights that it gives them. Upholding this principle is the central role of the Courts.”

That provision, as set out in the Supreme Court Act 2003, in this act of consolidation to create the Judicature Modernisation Bill, is lost. That rule-of-law provision, once this bill is enacted—voted for in this House—will no longer exist. I want to acknowledge at this point that in the select committee I posed this question, both to the Attorney-General and to the Minister of Justice, and was met with sympathy on this issue. They acknowledge that it is an important provision. The question in debate has come down to where it is best placed. I do not dispute the argument that the Constitution Act would be the appropriate place for the rule-of-law provision. I do not dispute that. I think I would probably agree with both Ministers on that point. The issue, however, is that our opportunity here, at this point in time, is to amend only the Judicature Modernisation Bill.

We did seek advice from the Clerk of the House on whether or not it would be possible to make a subsequent amendment to the Constitution Act, and were told it was out of scope. So herein lies our one opportunity. If, in the future, the Government was to say “We would like to place it separately in the Constitution Act.”, I would have no trouble supporting that. But as a holding pattern I would absolutely seek the House’s support to have it, in the meantime, sit where it has sat for over 10 years now—in the Judicature Act, as it consolidates the Supreme Court Act of 2003.

It is an incredibly important provision. I know that it may not have registered with many New Zealanders, and I can see good cause for why—I can see good cause for why. But it has, for instance, been the subject of debate amongst the legal fraternity. We cannot look lightly on our constitutional provisions, simply because members of the public may not have engaged directly with them. It is our job to ensure that those provisions are robust where they should be, and upheld. That is why I see it as our job today, in this House, to support such provisions. Our SOP 62 is not the only SOP that speaks to that issue.

I would say, also, that entrenching some of the conventions around consultation for the appointment of Māori Land Court judges, under Supplementary Order Paper 202 in Louisa Wall’s name, fits in that space as well—as does my SOP 63, which amends clause 3 of the bill, which enables important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand’s history, conditions, and traditions. Again, it is another provision from the Supreme Court Act 2003 that has been lost in the consolidation of the Judicature Modernisation Bill—all incredibly important.

I do just want to reflect briefly that Dr Richard Cornes, who is a senior lecturer at Essex University and a visiting fellow at the Legal Issues Centre, Otago University, has also written on the need for us to retain this rule-of-law provision. I know that he has worked hard to raise the profile of this issue with members of this House as well, and I thank him for that work.

I want to continue this discussion in respect of the clause that should preserve in the Judicature Modernisation Bill the provision that comes from the Supreme Court Act 2003, which emphasises that nothing in that Act, or indeed this Act, affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament. I want to explain the background to the original decision in 2003 and take up some of the points that were raised by Jacinda Ardern.

In 2003, when the Supreme Court was brought into being, it was fresh after the Court of Appeal decision in the foreshore and seabed case. Considerable disquiet was felt within this Parliament as to that decision going too far—not in the finding that there were unexpunged or unextinguished common law interests to be argued for in the foreshore and seabed case but the finding that the Māori Land Court had jurisdiction to consider them. The Māori Land Court, being a court of statutory jurisdiction having no inherent jurisdiction, was found by the Court of Appeal in that case to have jurisdiction over the foreshore and seabed, despite the fact that nowhere in that Act, which is called Te Ture Whenua Māori Act and in its English translation is called the Māori Land Act, was there any reference to anything that was wet.

The Court of Appeal could have gone back to the Hansard at the time of the passing of that legislation and it would have found no reference to any area of foreshore or seabed.

💬 Chris Bishop: That’s not right.

It would have found only reference to dry land in the debates. Therefore, there was surprise on both sides of the House, Mr Bishop, that the New Zealand Court of Appeal had found that there was jurisdiction in the Māori Land Court to determine the claims to unextinguished interests in the foreshore and seabed. So when the Supreme Court legislation was passed at the same time, Parliament thought fit to remind the Supreme Court that was being created that this Parliament remains sovereign in respect of legislation.

💬 Chris Bishop: Ha, ha!

Mr Bishop, you might laugh, but that is the reason why this was put in. I was part of those discussions within the Labour caucus, and your colleagues would have been part of those discussions as well.

There is a proper debate to be had as to whether the courts should have the right to overrule primary legislation in New Zealand. That is a proper constitutional debate to have. I am with Justice McGrath there; I am not with the Rt Hon Sir Geoffrey Palmer. I do not think that we should hand over to the courts the power to strike down primary legislation. I think the experience in other parts of the world where that occurs, whether it is the United States or some other jurisdictions, shows that you actually get to wrong outcomes. There are essentially complex political decisions that lie under those sorts of headline issues in constitutions, like freedom of expression, where you go one step under it and you have got to consider whether it is fair to have campaign financing laws. Some jurisdictions overseas, including in Australia and the United States, have struck down laws similar to those that we have in New Zealand to control big money in elections as being an unfair incursion on the freedom of speech.

I am not one of those people who think we should confer jurisdiction on the courts to do that. I want to make sure they do not think they have got the right to take it. Having said that, I always acknowledge that there is a limit to the sovereignty of Parliament, which goes back to the Bill of Rights 1688, when there was a division of powers between the courts and Parliament. There are some things that lie in there or have their roots in the Magna Carta that are so fundamental that I do not think Parliament has the sovereignty to overrule. I think that there is this sort of grey area arising from those ancient documents, which were referred to in the Privileges Committee when we were considering the changes to defamation laws, arising out of the Erin Leigh case against the Attorney-General in respect of something that occurred in the last Government. We actually put that in our select committee report—that there is, at least in the view of some members, including me, a limit to the sovereignty of Parliament that arises from those ancient documents, not from the granting of some new jurisdiction to the courts later. That is a very important point of principle.

I like the greyness of those boundaries at one level. If we had an egregious New Zealand Government that set up concentration camps and started to torture people, I do not think you would necessarily have to rely on international conventions—you might be able to. You could also rely upon those ancient laws to strike that down, but that is where I think the limits to the sovereignty of this—

I will call the Hon Amy Adams, but I do recognise the fact that the member is mid-flight and I will recommend to my successor that we come back to you.

I apologise to the Hon David Parker. I just want to take a very quick call to—I thought it might assist the Committee if I indicate that the Government will be supporting Supplementary Order Paper 62 in the name of Jacinda Ardern. It saves the Committee time debating the point, just to make it very clear at this early stage that we accept a lot of what Ms Ardern said in her comments. We do believe the place for it is in the Constitution Act but, none the less, we are persuaded that there is certainly no harm in maintaining it in the interim—but I certainly welcome the record in Hansard showing that when the appropriate time presents itself, we would like to see it removed from this legislation and placed in its appropriate place. I thought it might assist the House just to clarify that point, and I apologise to Mr Parker.

Thank you for that indication, Minister Adams. Can I also just put on the record that in the Labour Party we were somewhat reluctant to agree to a single debate here. We wanted a part by part debate, because this is a very serious piece of legislation, governing all of our courts. But we were presented with the option from the Minister that if we agreed to a single debate, we would remove the uncertainty as to whether we would get National’s vote for Supplementary Order Paper 62. Having spoken with my colleague Jacinda Ardern and discussed the pros and cons of that, actually, this is such a fundamental provision in this bill that we thought we should bank that—that that was the most important thing that was going down at this Committee stage and we should get it through. I suspect that when the final votes come—well, actually, we already know that we have got the good support of New Zealand First and the Greens—we are going to get support from other minor parties like United Future and get it across the line anyway, which is why the Government might have rolled on it. I do not know. The Minister shakes her head; she may not know either. That might be a little bit cynical of me.

💬 Jono Naylor: What clause of the bill is that? What clause of the bill is that in?

This is Supplementary Order Paper 62 that I am talking about.

Having put that provision in there in the Supreme Court Act, you have got to consider what the effect of taking it out would be. Even if it was not necessary to put it in the Supreme Court Act—and arguably it was not; it was just stating what was the underlining position at law—its having been in there, for Parliament to withdraw it in this iteration could actually change the law. So even if the original provision was not necessary, to actually omit it from the replacement legislation for the Supreme Court and other courts below it in the hierarchy of courts would have meant that the law meant something different to what it meant before that provision was in there. That would in itself have created uncertainty that is best avoided.

I agree that this provision is best sat in the Constitution Act, but, actually, it is the same effect whether it sits in the Constitution Act or in this Act. It is of the same legal effect, and it would be of the same legal effect to not have it—sorry, that is not quite good English. The effect of not having it would have had legal effect, whether it does not sit in the Constitution Act or it does not sit in this Act. It needs to be in one of these pieces of legislation. That is the most important issue, in my opinion, in this debate that we are having, because by and large, I think, the Justice and Electoral Committee has done a very good job on the rest of the legislation and has reached agreements that I can concur with.

I will say one final thing: equity and good conscience jurisdiction is going up to $5,000 on the recommendation of the select committee, but not up to the full amount of the jurisdiction of the disputes tribunal, which has a jurisdiction of, I think, $15,000—it can be a bit more, if people agree. I agree that the select committee has got that right. There is rough justice in the disputes tribunal. It is rough at times. You have got limited rights of appeal. It has an equity and good conscience jurisdiction, which means it does not actually have to follow the law. Even its process protections are pretty thin, compared with traditional courts. The answer to people who have got serious legal problems lies in the courts, and I think we should be careful not to say: “Anything goes; we will just throw the dice up in the air and see where it lands on the basis of how someone feels on the day, on an equity and good conscience basis.” We should actually make sure that our courts are accessible so that the rule of law can be applied rather than brushed over.

With those comments, I will take my seat. I am so pleased—I really am so pleased—that Jacinda Ardern’s Supplementary Order Paper, which I have also been advocating for, is going to be passed.

New Zealand First was going to vote against this bill at this stage despite this being a very much-needed piece of legislation and a long time in development. The two reasons were the compulsory retirement of judges provision and also the failure to reaffirm the principles concerning the rule of law and the sovereignty of Parliament. Now that we hear that that latter provision will now be reinserted into the bill, it makes it possible for New Zealand First to vote in favour of the bill. So I am pleased to be able to say that, because we do think that that matter—the reaffirmation of the principles concerning the rule of law and the sovereignty of Parliament—is extremely important, and I am glad to see, therefore, that they are going to be put back into the bill.

Jacinda Ardern quoted from the speech of Sir John McGrath, and I just want to add one more quote to that, which I think sums it up very well. He said: “It means our nation’s commitment to the principle that all persons and all bodies, whether public or private, must comply with the law and are entitled to exercise all rights that it gives them. Upholding this principle is the central role of the Courts.” So that, for me, puts it in a nutshell—the central role of the courts. There is a lot more I would have said about that issue had the Government not indicated that it will support Supplementary Order Paper (SOP) 62, but now that it has, I can move on to the other issue I want to talk about, and that is that New Zealand First does not support clause 132 regarding the compulsory retirement of judges and, therefore, does support Supplementary Order Paper 61.

There are a four reasons for this, and the first is it is actually ageism—clearly and unmistakably ageism. The Government should be ensuring that people who are capable and who wish to work beyond the age of 70 are given the opportunity to do so. Secondly, under the Human Rights Act, discrimination on the grounds of age is, in fact, unlawful. It is unlawful for employers, who may not contract for a fixed age for retirement age. If that is the principle there, then it should be the principle everywhere. Thirdly, it is an unnecessary provision. Few people carry on when they are actually unable to perform adequately, and even if they did, the Chief Judge could and should advise and counsel judges in that position, and the bill could just have said that instead. Fourthly, the age of 70 is not, in fact, so late in life these days for very many very able people that they are forced to retire at that age. In fact, when you think about it, the huge experience of judges who reach the age of 70 actually makes them extremely valuable, and their expertise should not be lost if they wish to carry on.

New Zealand First believes very strongly in this. We oppose clause 132. We support SOP 61, and I call upon the Government to give that a little bit more thought, because it is actually not the right thing to do and it should agree with and adopt SOP 61. If it does not do so, that would not be sufficient in itself for us to vote against the bill as a whole, because it is a very important piece of legislation and one that has been a long time coming and is very much needed in this country. With those comments, I will leave it there, but I do hope that in addition to adopting SOP 62, the Government will reconsider and will now also adopt SOP 61.

Tēnā koe, Mr Chair. Thank you very much for this opportunity. I too want to express our gratitude and certainly our support for the acceptance of Supplementary Order Paper 62, introduced by the member Jacinda Ardern from this side. In my brief contribution at this point in time I do want to speak to some of the other Supplementary Order Papers (SOPs) that have been presented on the Judicature Modernisation Bill by our side of the House, certainly by my colleague Jacinda Ardern and, of course, Louisa Wall. I will speak to Supplementary Order Paper 202 briefly, because I know that the member here Louisa Wall will certainly elaborate a bit further, but it says: “In clause 192, after subsection (1) … insert: (1A) Before giving advice to the Governor-General under subsection (1) on the appointment of a Judge to the Māori Land Court, the Attorney-General must seek advice or recommendations from the Minister for Māori Development.”

Although some might say that is a convention that is already in place and that is what already takes place currently, we would like to see that it be put into this particular bill by way of this SOP to cement that process in place, to make sure that the person who is responsible for pushing through the current Te Ture Whenua Māori Bill, and, also, overseeing Te Ture Whenua Act, actually has a role to play in advising the Attorney-General, to make sure that, in the vein of Pūao Te Atatū, the services that are being given and those who are doing the service actually reflect the people whom they are serving.

I know, with my experience through the Māori Land Court, that for many years before my time, in the time of my grandfather and in the time of my father, many of the judges who presented, while learned gentlemen and ladies, were challenged quite often around their cultural competence, if you like, in dealing with pretty touchy subjects around Te Ture Whenua, what whenua means to people, and, I guess, the court process in general, given the nature of the claims that were presented by the many people through Te Ture Whenua and through the Māori Land Court.

So I think it is a good SOP. I think it is one that is necessary so that, like I say, that advice from the person who is on the ground, from the person who is speaking to those who are affected by legislation or by bills such as this, and, of course, Te Ture Whenua Act, are best reflected in the appointments made by the Attorney-General.

I also want to speak to Supplementary Order Paper 63 from Jacinda Ardern, which states: “After clause 3(d) … insert … (e) enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history, and traditions.” I think this is really important. Many of my constituents whom I deal with in Tāmaki Makaurau and also in my relations in Te Tai Tokerau often begrudge the fact that there are just not enough references to Te Tiriti o Waitangi throughout legislation—this particular piece, as well as many others. But this SOP looks to change that in clause 3 by “enabling important legal matters, including legal matters relating to the Treaty of Waitangi, …”.

What I also like with this is that it gives it context so that it can “be resolved with an understanding of New Zealand conditions, history, and traditions.” I think that is a very good step forward. The ongoing debate around the Treaty of Waitangi and its place in our country—some would rather see it closed, and others want to have this debate continue. As we move forward as a country I think it is important that such an SOP be included in this particular bill to make sure that those voices and that dialogue can be heard around the Treaty of Waitangi.

Tēnā koe e Te Māngai o Te Whare. Thank you for the opportunity to speak on this Committee stage debate of the Judicature Modernisation Bill. I would like to congratulate the Minister of Justice and the select committee, because this is probably the biggest bill that I have ever seen come through the House. Although I am now on the Justice and Electoral Committee, I have played no part in coming to this point in the process, but I want to acknowledge those who have been here throughout this piece of legislation.

My contribution, really, at this point in the proceedings, is to talk about my Supplementary Order Paper (SOP) 202. I am not quite sure whether or not it fits, but, hopefully, we will be able to figure out where it is best in terms of inclusion in this piece of legislation. I was motivated to write this SOP because the Judicature Modernisation Bill is about—and I will go to the purposes, set out in clause 3(a)—consolidating “in a single statute the provisions of the Judicature Act 1908 and the Supreme Court Act 2003; …”, and under clause 3(b)(iii) it is about “judicial and other officers, including their—(A) selection; and (B) appointment and conditions; …”. So I really want to focus on that, particularly in terms of the Māori Land Court, because, currently, Māori Land Court judges are appointed under section 7 of Te Ture Whenua Māori Act 1993.

The Governor-General by warrant appoints “fit and proper persons”. No reference in that piece of legislation is made as to who advises the Governor-General on the appointment. So from our perspective as a Labour Party, the “fit and proper person”—actually, that is fundamental to what my SOP is trying to address, because we believe that the person who can determine who is a fit and proper person to be a Māori Land Court judge is actually the Minister for Māori Development. I have included that in my SOP—and I will read it out: “To apply the generic provisions of appointment of Judges set out in this Bill would result in a failure to recognise the distinctive nature of the relationship between Māori land, Māori land owners, Māori Land Court and the Minister for Māori Development.” So, essentially, we are trying to preserve in statute a convention that has been operating. We all know that convention is overridden by statute, so this seemed an opportune time to deal with this particular issue. I think the other point I wanted to make is that, yes, I realise that “advises” is hugely specific because, essentially, what it does say is that the Minister for Māori Development will select the Māori Land Court judges.

I was also motivated to bring this Supplementary Order Paper to the House because I think there have been concerns from some of the submitters and some Māori Land Court judges, and I have had some feedback from one of the Māori Land Court judges. I was trying to figure out whether this SOP fits in this part of the legislation, because the heading of Part 2 is “District Court”, Subpart 2 is about judges, and then clause 192 is about the appointment of judges. So there seems to be a need for clarity about whether this is the appropriate place in this bill for the SOP to fit. It all, then, stems from whether or not Māori Land Court judges hold District Court warrants, so I went on to the Ministry of Justice website. It is interesting. Under the title “Courts” it has got “Jury Service”, “Going to court”, “Civil”, “Criminal”. Then it talks about all the different branches, I thought, of District Court warrants, which are Youth Court, Family Court, coroner’s court, Employment Court, Environment Court—and included in these is the Māori Land Court. So there does need to be a determination from the officials—and if I am wrong, I am wrong.

What I have thought is that there is another part in this legislation, which is clause 568. Clause 568 references the amendment to Te Ture Whenua Māori Act 1993. So I am looking at another SOP, then, that will amend this particular part of the clause. I have not quite figured out where we are going to put it, but the convention that we want to put into statute, in my SOP, will now fit into here. I want to thank the Minister in the chair, the Hon Amy Adams, actually, for taking the time to converse with me this morning, and to highlight that we have possibly got things wrong—yeah, after netball training—because if that is the case, then I will withdraw the SOP that is on the Table and I will put to the House another SOP.

I am really happy to do that, but what I hope is that behind my intentions people will see that what I am trying to do is actually about the mana of the role of the Minister for Māori Development and the mana of the role of our Māori Land Court judges. I did ring—well, Nanaia Mahuta did, actually, on my behalf—Judge Caren Fox this morning to ask about her warrant, but her particular warrant is for the Māori Land Court and the Environment Court. Having a convention written in statute—given the opportunity that this bill presents, because we are modernising the Judicature Modernisation Bill, to put into statute a convention that seems to be long-running and everybody is committed to—I just do not understand why there could possibly be any problem with it.

I would also like to thank my colleagues from across the Chamber, because—I did this very quickly—I talked to Denis O’Rourke in the Chamber last night, and I know New Zealand First is supporting my Supplementary Order Paper. I also emailed it to David Clendon, and I want to thank him because he indicated that the Greens are going to support my Supplementary Order Paper. At the end of the day, I think that we all agree that that principle of the Minister for Māori Development appointing the Māori Land Court judges is incredibly important. So if there is an opportunity for that convention to now be part of statute, so that everybody knows and it is transparent, then I actually think that is a positive development.

I just want to say that this is no slight upon anybody. I know that the generic aspects of this piece of legislation—again, I kind of intimated that the Attorney-General, by default, actually has a lot of power in this process, because they will be determining whom they advise that the Governor-General then gives a warrant to serve our country and our courts. It is no disrespect, so I hope that it is not taken in that vein, but what I wanted to do is to just consolidate, as I said before, the mana of the Minister for Māori Development, the mana of our Māori Land Court judges, the importance of our whenua, and the mana of our whenua and how it is administered. That was the intention behind my Supplementary Order Paper. As I said, if I have to withdraw what is currently on the Table and come back to the Committee with an amended Supplementary Order Paper, then I will do so. So the Minister might like to provide that clarity to the Committee, and then we can all move on with some, I guess, definitive direction about how we can address this particular issue. Kia ora tātou.

Tēnā koe, Mr Assistant Speaker, kia ora tātau katoa. Ka mihi rā ki te āhuatanga o tēnei rā ātāahua, he rā hōu, ā, ka mutu, kai konei tātau ki te kōrero i ngā take o te wā. Kai te rongo ake ki te āhuatanga o te kōrero o taku tuahine a Louisa Wall, koinei au i hara mai ai ki Te Whare i tēnei rā ki te āta whakautu i ētahi o āna āwangawanga mō tēnei o ngā kaupapa.

[Thank you, Mr Assistant Speaker, and greetings to us all. I acknowledge the situation indeed about this beautiful day; it is a new one, and furthermore we are here to talk about matters of the moment. I hear the tenor of my sister colleague Louisa Wall’s contribution, and that is why I came here to the House today: to make a considered response to some of her concerns to this proposal.]

I very much appreciate the sentiments provided by Louisa Wall, who got in touch with us to give us the view about this particular clause of the bill. I can tell her that this has been very much discussed with both the Minister of Justice and the Attorney-General, as we tried to line it up with Te Ture Whenua Māori legislation. So I stand here to give some responses to some of the queries that she has made. I acknowledge that they are well motivated, and that it is all about the best intentions of ensuring a part for the Minister for Māori Development, and indeed to place all of the Ministers in their right place.

So let me offer some explanations to some of the issues that the member has raised. The member’s Supplementary Order Paper 202 seeks to add a provision to clause 192 of the Judicature Modernisation Bill that is related to appointing Māori Land Court judges The first point to note is that clause 192 of this bill deals with the appointment of District Court judges; this has nothing to do with Māori Land Court judges. In the context of clause 192, the downside is that the Supplementary Order Paper (SOP) is basically meaningless.

The Māori Land Court appointments are covered under clause 568 of the Judicature Modernisation Bill. If Supplementary Order Paper 202 were amended to refer to clause 568 it would still be meaningless, for the following reasons—I will try to outline those. The appointment of Māori Land Court judges is covered by section 7 of Te Ture Whenua Maori Act 1993, which says that judges are appointed by warrant by the Governor-General. There is no mention of any Minister. The equivalent provision in Te Ture Whenua Māori Bill is in clause 427, and is exactly the same as the current Act, namely that appointments are made by the Governor-General, and there is no mention of any Minister.

Although not prescribed in legislation, the appointment of Māori Land Court judges by the Governor-General is made on the recommendation of a Minister, with the agreement of the Cabinet appointments and honours committee. The recommending Minister is always the Minister responsible for the department that administers Te Ture Whenua Maori Act. That department, now and in the future, will still be Te Puni Kōkiri. Ministerial responsibility for Te Puni Kōkiri is decided by the Prime Minister. It has always been the Minister of Māori Affairs and/or the Minister for Māori Development.

Relating that back to the member’s SOP, the SOP assumes the Judicature Modernisation Bill makes the Attorney-General the recommending Minister, and that is incorrect; it does not. If the Supplementary Order Paper—

I am sorry to interrupt the honourable Minister. The time has come for me to report progress.

House resumed.

The Chairperson reported the Smoke-free Environments (Tobacco Standardised Packaging) Amendment Bill without amendment, and progress on the Judicature Modernisation Bill.

Report adopted.

The House adjourned at 11.26 a.m. (Wednesday)