Third Readings

I move, That the Arbitration Amendment Bill, the Senior Courts Bill, the District Court Bill, the Judicial Review Procedure Bill, the Interest on Money Claims Bill, the Electronic Courts and Tribunals Bill, the Bills of Exchange Amendment Bill, the Building Societies Amendment Bill, the Children, Young Persons, and Their Families Amendment Bill, the Companies Amendment Bill (No 2), the Contractual Remedies Amendment Bill, the Copyright Amendment Bill (No 2), the Courts (Remote Participation) Amendment Bill, the Criminal Procedure Amendment Bill, the Employment Relations Amendment Bill (No 4), the Family Courts Amendment Bill, the Insolvency Amendment Bill, the Local Government (Rating) Amendment Bill, the Property Law Amendment Bill, the Remuneration Authority Amendment Bill (No 2), the Resource Management Amendment Bill, Te Ture Whenua Maori Amendment Bill, and the Trans-Tasman Proceedings Amendment Bill be now read a third time. New Zealand has a strong and independent justice system that serves New Zealanders well, but its legislation needs to be more accessible and better supported by modern technology. The changes we are making in this legislation will make our courts more transparent and allow them to be modernised while preserving their traditions and upholding the rule of law.

At 23 separate bills across more than 1,000 pages, this is one of the largest pieces of legislation Parliament has ever dealt with in one go. It replaces one of New Zealand’s oldest statutes still in force, the 108-year-old Judicature Act, and modernises the principal statute that governs our courts. This overhaul is made necessary by rapid changes in both society and technology, and a need to ensure that our justice system keeps up with the demands of the 21st century.

This legislation forms part of the Government’s commitment to making sure our justice system can be more flexible and modern, and that it better meets the needs of New Zealanders. It will increase flexibility for court users, enhance the clarity and transparency of the court system, bring about more modern ways of working, and allow courts to transact electronically in the future.

The legislation we are considering today includes five new bills and 18 amendment bills. The key provisions follow the Government’s consideration of the 2012 Law Commission report on its review of the Judicature Act. The legislation retains much of the existing provisions of our court statutes, but in more modern language and in a rearranged format. The legislation also introduces important new provisions.

I would like to turn first to the bills that will become the five new Acts. Firstly, the Senior Courts Bill brings together, in a single bill, the statutory provisions for the High Court, the Court of Appeal, and the Supreme Court that were formerly set out in the Judicature Act 1908 and the Supreme Court Act 2003. These provisions will be expressed in modern language and be made more accessible. The High Court Rules, which regulate the practice and procedure for civil proceedings in that court, remain part of the new Senior Courts Act, but will be published separately, under the Legislation Act 2012, as the High Court Rules 2016 and as if they were a separate statutory instrument. This will make them more accessible to all court users. The process for amending or replacing them will not change.

The District Court Bill continues the District Courts as a single District Court, while retaining its specialist divisions of the Family Court, the Youth Court, and the disputes tribunal. The District Court of New Zealand will be Australasia’s largest court, hearing more than 200,000 matters every year. The general civil jurisdiction of the District Court increases from $200,000 to $350,000. This is the first revision of this limit since 1992. As a result, more parties will be able to choose to litigate in the District Court instead of the High Court.

The Judicial Review Procedure Bill relocates the Judicature Amendment Act 1972 into a stand-alone Act. This new Act continues the important constitutional statutory provisions under which an affected person may check the legality of the exercise of power by the executive and other public bodies.

The Interest on Money Claims Bill replaces the existing statutory provisions for the award of interest-on-money claims with a more comprehensive scheme. This new scheme will both deter prolonged disputes and ensure creditors are more fairly compensated. The proposed Interest on Money Claims Bill is based on the recommendations of a 1994 Law Commission report, and its implementation is long overdue.

The Electronic Courts and Tribunals Bill enables greater use of electronic documents in proceedings, allowing people who use and work in New Zealand’s courts and tribunals to benefit from modern technology by being able to create, submit, and receive court documents electronically instead of on paper.

The 18 amendment bills will amend other statutes by relocating the existing provisions from the Judicature Act and the District Courts Act to where they will be more accessible, by extending the new accountability provisions included in the Senior Courts Bill and the District Court Bill to the specialist courts to ensure consistency across the judiciary, and by consequentially amending a number of related statutes.

This major revision of our courts statutes ensures a greater degree of consistency for common provisions. This is particularly important as a number of new provisions have been introduced to improve the transparency and accountability of our courts system. These provisions include the requirement for the Attorney-General to publish information on the judicial appointment process, even when the Attorney-General does not have responsibility for nominating appointments to a particular bench. For each court, the head of bench will be required, in consultation with the Chief Justice, to develop and publish certain information on reserved judgments, as well as guidelines to assist judges to decide whether they should recuse themselves from hearing a proceeding.

The legislation distinguishes three categories of information generated by the courts and the Ministry of Justice and clarifies the access conditions for each of those categories. The legislation also enables the sharing of certain court record information between agencies, through approved information-sharing agreements prescribed by the Privacy Act. This sharing of information will help Government agencies to provide better services to New Zealanders by being able to identify risk, to spot patterns, and to tailor services to suit. The legislation also clarifies contempt of court provisions, and the restrictions on commencing or continuing proceedings deemed to be without merit.

The passing of this legislation marks a significant step in enabling New Zealand’s courts to provide modern, accessible, people-centred justice services. I believe we are well served by our independent courts. Our courts, and the judges and the judicial officers who work in them, ensure that the rule of law prevails in our society. They are a vital part of our democracy.

Many people have contributed to developing this important legislation. I want to thank those members of the community, the legal profession, and the judiciary who made submissions, and, of course, the members of the Justice and Electoral Committee, who worked diligently to examine the legislation. I would also like to acknowledge the work of the Parliamentary Counsel Office, which has done an extraordinary job with such a large piece of legislation, and my own officials in the Ministry of Justice who have put countless hours into this important piece of work.

It is with great pleasure that I commend these 23 bills to the House.

Mr Assistant Speaker, thank you for the call and for the Minister’s contribution to the discussion. Of course, the Judicature Modernisation Bill, which is now split into 23 separate bills, has been a long time coming. In fact, the Minister of Justice took over this bill from her predecessor, and some elements of it have certainly changed along the way, some as recently as in the last stage of the bill’s debate. I will touch on that a little further on. But I do think it is important to add to the Minister’s vote of thanks, because particularly for officials within the ministry, but also for Parliamentary Counsel Office, this has been a significant drafting exercise, and regardless of the various positions we all may have taken on elements of the bill, they need to be congratulated on, and thanked for the intense work that would have gone on for the Judicature Act.

Some of the legislation that we are amending here today is 100 years old, so there is no doubt that the work needed to be done. In fact, the Law Commission’s work was several years ago when it recommended that we consolidate the District Courts Act with the Supreme Court Act. So we absolutely agree that it is long overdue. But there were elements of that merger that meant that we lost some really critical parts, some critical principles, which I want to touch on. We also lost a few opportunities.

We started this debate several years ago, but, actually, as we have gone along there have been additional questions of legal reform that have come up—for instance, the work by the Law Commission on alternative trial processes for sexual violence. That has recently produced a number of recommendations that could have been picked up in various pieces of work that were already before the House. This bill happened to be one of them; there was also the Evidence Act—there were various vehicles that could have allowed us to expedite some of the work that needs to happen within the justice reform area, which still waits this Parliament’s consideration. So there was a little bit of a lost opportunity there, but perhaps more so for the Evidence Act.

We do know, for instance, that this bill repeals the District Courts Act and makes a unitary District Court, where the specialist courts will become divisions of it, so then the Family Court, the Youth Court, and the disputes tribunal will sit under it. Part 3 of the Judicature Modernisation Bill—originally, as it was set out—enacts the Judicature Amendment Act with updated language. We have then got the incorporation of the Law Commission’s work on aspects of damages. This obviously was an omnibus bill, so we did have some opportunities that were not taken up.

But, as I mentioned earlier, I want to speak to the elements that were lost in the merger, as it were. I mentioned that the Supreme Court Act 2003 was one of the Acts that were brought in under this piece of work. Some of those principles—like, for instance, the original principle around the Treaty of Waitangi—have been amended. Originally, it was lost altogether in this work. I want to commend the Māori Party, because, actually, I think it was its lobbying that saw that provision go back in—but not all of it.

So let me just clarify here that, originally, within the Supreme Court Act, one of the sections included: “to 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;”. That was dropped. What was put back into the bill, through the work of other parties, was simply: “enable important legal matters, including legal matters relating to the Treaty of Waitangi”. So we did lose half of what would have been, I am sure, a really robustly debated clause from the time that the Supreme Court Act was passed. That is obviously disappointing and strikes me as an unnecessary omission from this legislation.

Secondly, as was canvassed in the newspaper yesterday—the New Zealand Herald covered off the fact—we have, in the legislation, basically created compulsory retirement for judges. There are very few areas where you could justifiably have compulsory retirement and most are usually based around careers where there are certain levels of physicality. But it does strike me that we have used an age as the arbitrary guide to whether or not someone still has the competency for their role. Age is a very arbitrary measure for that. There will be a range of professions where people, regardless of their age, may need to be moved on for competency reasons.

I do not want to comment on Parliament as an example of that, but my view would have been that if we in this House were debating how to ensure that we always have the robust instruments to ensure competency, we would not pick one measure and use that as a way of dealing with it. So for the judiciary, it strikes me that if we need to remove people because there are competency issues, we need to make sure that we have got the powers to do that and to make sure that we are able to have that flexibility as required—and age is not the best marker and determinant of that. So we saw that as being arbitrary. Secondary to that, of course, it is discriminatory as well, and we sought to have that removed. It is such a danger zone to move into examples, so I am not going to, despite the Assistant Speaker trying to entice me down that dangerous track. I will not be doing that, and so I will just leave that as that.

One of the other elements—and I have to really reflect on this—of the bill that was removed in the last stages was the provision that said, basically, that we would be publishing all final written judgments. That was removed at the eleventh hour, basically. We asked the Minister for some rationale. Basically, the rationale that the ministry came back with was that the scale of producing all written judgments in that manner was just massive, it would be costly, and it would require immediately for new staff to be hired, and basically, courts were not ready for that. So our view was “OK, well, let’s give you time”—let us put in a time frame for the Supplementary Order Paper to come into force that is longer than the enactment clauses for the bill itself. Unfortunately, that was defeated, although I think it had quite wide support in the House.

I just went back and had a look at the statement that was put out by the then Minister of Justice at the time this bill was brought before the House. It was 27 November 2013—almost 3 years ago—and one of the primary reasons the then Minister—it was Judith Collins—said she was introducing this bill was to build a more customer-focused, lower cost, more accessible justice system. Let me reflect on this statement. She said: “The Bill includes changes to ensure all written judgments are published online, unless there is a good reason not to. It also places a requirement on the Judiciary to publish information on the number of outstanding judgments … . New Zealanders are paying for this justice; they should be able to access it. The higher courts already publish decisions of interests, but the biggest gap is the district courts, where the bulk of cases are heard. We must work with the judiciary to close the gap, and this bill is a key part of that dialogue … . People … have the right to know”.

Most of this press statement was about the online publishing of judgments. Most of the rationale that the then Minister of Justice gave for this massive bill was something that was removed by this Government at the very final stages of the bill. Again, I just wanted to highlight that that seems a massive loss. We understood the timing issue, but we absolutely believed it would have been possible to deal with that.

One final word: in making the justice system more accessible, the use of electronic filing was a theme in the bill. I have heard recently of changes that have, for instance, been used in the Family Court around electronic filing, and that the time frames within which lawyers must have documents filed with the court have become so explicit. They have lengthened the time frames, of course, that things must be filed by because there have been issues with judges not receiving them in time—that is fine. If you are a minute late on that long lead time, those documents will not be passed on to the judge hearing your case and you will find yourself, when you are before the court, having your hearing postponed—or you will frequently see documents lost in court and cases postponed because of that, as well.

I urge the officials from the ministry to sit at the back of a court for a day, and they will see the inefficiencies we have at the moment because of the way our filing is working, and the frustration from officials and registrars. It is cramming up our system to an unbelievable degree, and there is no documentation of it, so it is hard for this House to scrutinise, but it is a massive problem and I really ask ministry officials to engage with the legal fraternity on this issue. It is denying people timely access to justice, and this presumably was what this bill was meant to be all about.

I am very pleased to speak for the final time on the Senior Courts Bill, which was formerly part of the Judicature Modernisation Bill, in its third reading, and I am very pleased that I do not have to go through the 17 existing statutes that are going to be amended by this bill.

What this bill does is it encapsulates this Government’s approach to justice and criminal matters, which understands and responds to the need to update, modernise, make more accessible, more reliable, less costly, and more victim friendly—all of those court processes. Was it only 2 weeks ago that we were standing in this House debating another excellent bill that puts victims at the very centre of the court process in terms of young and vulnerable witnesses giving evidence: the Evidence Amendment Bill?

This is a weighty piece of legislation that came through the Justice and Electoral Committee before I was involved. I have had the opportunity to have a look at what is now the bill—I had the bill with me but I do not any more—since it has been worked on by parliamentarians across the House. This bill does change the legislation governing how New Zealand’s courts are arranged and how they operate, and that can only be a good thing, in my view.

If I go back to my electorate, as I am often fond of doing in this House when I am making a speech, the Ōāmaru courthouse—as with a number of other courthouses—is undergoing substantial change. We almost lost the Ōāmaru courthouse, and I am grateful to the current Minister of Justice and the previous Minister for Courts, who, in their advocacy for the people of North Otago, understood and accepted that access to justice is in fact very important to all of us New Zealanders.

It is interesting that New Zealand is experiencing the lowest crime rate in over 33 years. So now, arguably, not only is the time to focus more on the underlying causes of crime and crime prevention but also it is timely indeed to modernise and improve our operating model for justice and to work towards a more customer-focused model, a victim-focused model that is at lower cost, efficiency in the Public Service, and, indeed, a more accessible justice system. A number of speeches have already canvassed the provisions in this bill, and I now commend it to the House.

Can I begin my contribution by saying that I was pleased that, in the Committee stage of the House, Parliament chose to reinsert, in what is now the Senior Courts Bill, the provision that expressly set out that we have sovereignty of Parliament. That provision was in the former Supreme Court Act and it was put in there to emphasise that courts are not meant to be writing law; they are meant to be applying and interpreting law. Obviously, they have to fill a void if there is a gap in the law, but they should not usurp the role of Parliament. There was a view that it did not sit naturally in courts legislation and if it was in a constitutional provision it ought to have sat in the Constitution Act. So, at one stage, the Government said it was going to remove that particular clause from the legislation—indeed, it was not in the first reading or, indeed, recommended by the Justice and Electoral Committee on the report back from the select committee—and leave that issue to be dealt with in the Constitution Act at some later date, which would have left a gap in the law.

Retiring Supreme Court Judge Sir John McGrath, as he left, made the point that that was wrong. Others, including myself, made the point that, whether or not that provision was originally necessary in the Supreme Court Act, the fact that it was there but was no longer there had to have legal meaning, which meant that the law was probably changing by the omission of that clause and, therefore, we would have been undermining the sovereignty of Parliament if we had not kept that clause and carried it forward from the Supreme Court Act to this legislation, which we have now done. Can I thank Richard Cornes, who is an expat Kiwi now living in the UK, who also provided advice to the select committee on this issue and advocated for its inclusion in the legislation. I think it is better legislation for restoration of that clause.

Can I deal also with something that my colleague Jacinda Ardern mentioned, which is the compulsory age of retirement for judges. I share her concern that age is not generally a proxy for competency, but there is one difference between senior judges and employees, and that is that they do not have an employer. So if you get a doddery old judge who is losing his or her marbles, it can be pretty hard to get rid of them, because if they are stubborn and unwise enough to stay on, the only way you can get rid of them is actually through this Parliament moving to get rid of them, and that is a very difficult thing to do and is rarely used. So I think that was probably in the minds of those who favoured a compulsory retirement age, because—

💬 Metiria Turei: Could we do that with MPs as well, if they are doddery and losing their marbles?

Well, MPs are, actually, elected for only a 3-year term, and if a doddery, senile MP stands for election, the people are generally wise enough to elect someone else.

💬 Metiria Turei: No—no.

Ha, ha! Oh well, Metiria Turei indicates that that is not always the case and that we have got some premature senility on the other side of the House, but I think that is a cruel blow. Can I turn to another issue, and that relates to access to the law. Although it is good that there are some provisions in this that are improving your ability to file documents electronically so as to reduce costs and perhaps speed up processes, overall, we do have a serious and unresolved problem relating to access to justice in New Zealand. We have got two major spheres of jurisdiction in our courts. We have got the criminal jurisdiction and we have got the civil jurisdiction. These bills, in the main, deal with the civil jurisdiction, which is why I am going to concentrate on the civil jurisdiction in my comments.

Access to justice is largely a function of cost. If you cannot afford to use the courts to resolve your civil disputes, you do not get to use the courts to resolve your civil disputes, and sometimes those disputes that ought to be resolved by the judiciary are not, because people cannot access them. I have got to say that I have been a lawyer now since about 1982—I think it was at the end of 1982 when I was admitted, which is now more than 30 years ago. In my 30 years of legal practice I saw access to the courts deteriorate markedly. When I first was a young lawyer, people were routinely resolving quite minor disputes like car crashes or disputes with their insurers or disputes on the quality of workmanship—not a house that is so faulty that it is falling down but smaller house disputes. Hire purchase transactions that were not complied with were sued upon. I can remember working for Wilson Neill Finance—or whatever their finance company was called—and it would sue for the last hundred dollars due under a contract. It was not because the last hundred dollars was going to make it broke, but because enforcing the rule of law actually encouraged adherence to the rule of law and reduced all of our costs of credit, because people would not just flick off and not pay the last few hundred dollars of their hire purchase contracts. Virtually none of those things are ever litigated through the courts now.

We do have a disputes tribunal, which, in respect of the smallest of those things, can resolve disputes between people. It cannot enforce debts—that is actually outside the jurisdiction of the disputes tribunal, and there are many disputes that fall outside the jurisdiction of the disputes tribunal. I am not suggesting that it should be increased materially, because it is pretty rough justice there sometimes, but there are many disputes that are above the jurisdiction of the disputes tribunal that cannot afford to be litigated through the New Zealand courts.

I am one of those people who—you know, I started with environmental law but I was a civil litigation partner in one of the largest South Island law firms. One of the main reasons I gave up civil litigation quite a long time ago—although I have still got a practising certificate—was that I thought the cost of the services that I was delivering to people exceeded the value of what it was that I was delivering to them. That is even for the people who could afford it. I did not think it was fair value given the complexity and cost of legal processes. In addition to those people, there were lots of people who just could not afford to access the system, who can no longer get justice. This is now widely acknowledged by the judiciary. I am going to quote the last Chief High Court Judge Justice Winkelmann. She said “Why is access to justice important in the civil sphere?”, and her answer was: “It is because access to justice is the critical underpinning of the rule of law in our society: the notion that all, the good, the bad, the weak, the powerful, exist under and are bound by the law. That condition cannot exist without access to courts.” Then, further on, she says “Unless we have this access, we will live in a society where the strong will by any means, including violence, always win out against the weak. This will be a society in which, once binding civil obligations, are recast as voluntary.” She observes: “If courts dispense justice for only the few, what does this mean for our concept that we are a nation that exists under the rule of law?”.

It is increasingly true in New Zealand that individuals cannot afford to access the courts. It is increasingly true that even our non-governmental organisations cannot afford to litigate the things that they want to—and should be able to—litigate if they are challenging a governmental decision. Not only are disputes between citizens not being properly resolved but disputes where the Government is being held to account through judicial review are rarer and rarer.

When I started working in law, community organisations would—not every day, but quite frequently—challenge illegal acts or unreasonable acts of government. Now you see that very rarely. The Environmental Defence Society and the New Zealand Fish and Game Council had to spend many hundreds of thousands of dollars to litigate the plan in the Manawatū, and, even then, the regional councils effectively thumbed their nose at them after they had spent all that money—perhaps partly in the knowledge that they could not afford to litigate the issues.

These problems relating to access to justice will not be resolved through this legislation. I have some views that we need to simplify our civil procedure rules. We need to trust judges, and expect judges to control their courts. They should be expected to dispense affordable justice. They need to avoid a lot of the pre-trial interlocutory processes that so drive up cost, and that can be used by rich litigants to avoid justice at the suit of a poorer party, because they can effectively outspend them and delay justice, and actually avoid justice in some cases. Sadly, this legislation does not fix those problems.

As tempting as it is to rattle through the names of the statutes that are going to be repealed, the new Acts that are going to come into place, the 17 that are going to be amended in this legislation, and then to go into all of the details that are contained within the 1,200 pages of the Judicature Modernisation Bill, I want to limit my contribution to, I guess, what that as-seen-on-TV famous lawyer Dennis Denuto would refer to as “the vibe”.

This piece of legislation is, I guess, really one that has been well overdue. Obviously, the big Act that is being repealed is the Judicature Act 1908. It has been in place for a considerable length of time, and it is obviously very much time for us to overhaul it and to look at the way that the judiciary is conducted within New Zealand.

I want to just acknowledge and thank the former Justice and Electoral Committee for the work that was done in the 50th Parliament. When I arrived here we were up to the second reading stage, and I know it has been a really long and involved process getting to this point. I believe that what is most important with legislation like this is that we do, in fact, get it right. You do not want to have to keep reviewing large tracts of legislation like this too often, so I think it has been good that an appropriate length of time has been taken, and that a lot of thought has gone into it. As has been referred to, late changes have even been made during the Committee stage of this bill.

I think we have landed it in the right place. It is ensuring that we will have a better judicial system in New Zealand when this process is running smoothly—one that is fairer and one that is in line with many of the other changes that we have been bringing in over the last number of years to make the judicial system better for victims and better for everybody else. I commend this bill to the House.

I want to just acknowledge the contribution made by my colleague David Parker about the concern for the lack of access to justice, and how this legislation has not dealt with any of that. It is, in fact, a policy of this Government to restrict access to justice.

I was at the 2014 Ethel Benjamin Address at the Otago Women Lawyers’ Society in Dunedin when Justice Winkelmann was giving an address there, and she was highly critical of the policy that she described as a marketisation of justice and justice services. She said that, increasingly, lawyers and judges are being described as stakeholders, and that there was an increasing policy approach that would provide a market for justice services, as opposed to the rights of citizens to have access to justice across the board. I would recommend members who have an interest in the justice area to look at her address from 2014, where she applies a very critical and very analytical assessment of the current Government policy that is excluding thousands and thousands of New Zealanders from access to justice when they so desperately need it.

To the legislation—the Green Party supports this legislation. I am standing, actually, on behalf of my colleague Dave Clendon, who saw this legislation through the Justice and Electoral Committee on our behalf, so I was not directly involved in the ushering of it through the process. I will just make a few comments. There are a number of good things about the legislation. We were strongly in support of the Human Rights Commission’s submission, which raised concerns about the outdated language of that legislation, and some of that language has been improved. There is a general increase in the transparency around some of these legal services, which is a good thing. The increase in the level of damages that can be awarded by the District Court and by the Human Rights Review Tribunal to $350,000—we fully agree with that increase in the level of damages, particularly for the Human Rights Review Tribunal, which is one of our core watchdogs for this. We have seen, actually, a recent case exposed, where damages were awarded in favour of a person. It is really good to see that they have greater powers to award greater amounts in terms of damages.

There were some concerns that we had with the final shape of the legislation, and concerns that National had voted down a number of Supplementary Order Papers (SOPs), which, as I understand it, are not reflected in the divided legislation. I will just acknowledge that Jacinda Ardern did talk about her SOP in relation to the Treaty of Waitangi. We supported that SOP; it is disappointing that National did not, and excluded that broader concept of not just dealing with the legal matters relating to the Treaty but resolving them in the context of both our history and our current need. That is really important because the Treaty of Waitangi, Te Tiriti o Waitangi, is a document that evolves over time and meets our needs as our needs change over time. It cannot be constrained to just one point in time and to one interpretation; that is not how that document works, and neither should it. The issues of colonisation that arose after the Treaty was signed, contrary to the Treaty wording, mean that there will be ongoing issues with colonisation that need to be reflected back in terms of Treaty justice.

Thirdly, we were very disappointed that our SOP to establish a register for pecuniary interests of judges was also denied by National. My colleague Kennedy Graham made an attempt to put this in place last year, too, as I understand it. This is just about making sure that there is transparency for the financial affairs of people in those core constitutional positions. We now have a system, available for the public, to show transparency of MPs’ pecuniary interests, and we think that that should be the same for judges as well.

We were disappointed that the SOP from Louisa Wall to enshrine in statute the long-established practice of judges of the Māori Land Court being appointed on the advice and recommendation of the Minister for Māori Development was not supported, but now we know why: at the same time that this issue was being dealt with through this debate on the Judicature Modernisation Bill, National was planning to decimate the Māori Land Court, without telling the Minister for Māori Development about it. So of course National then said: “Well, we don’t want to have a clause in this bill that requires the Minister for Māori Development to know anything about the appointment of judges.”, or, actually, anything else to do with the Māori Land Court, it appears, because National has decided that it knows much more about it and will simply go around firing very large numbers of staff from this court, which has been a—

💬 Louisa Wall: They voted for it—crazy.

It is crazy. So the Māori Party voted—

💬 Louisa Wall: They voted against the SOP.

Yes—against the SOP. Well, there you go. The Māori Land Court does have a chequered history for Māori over its lifetime, and in the early years it was a real tool of the State to take land from Māori, but as times have changed and circumstances change there has been a greater reclamation of both the Treaty concepts and also the rights of iwi Māori to have some control over that process, and the Māori Land Court has oftentimes been a really important line of defence and protection for whānau and hapū who are trying to protect their land.

The fact that not only was Louisa Wall’s SOP denied by National but that National is now trying to, basically, destroy the court through significant job loss just goes to show that these few remaining defences of Māori land are being taken by National—I mean, it opposed the Green Party’s Public Works Act legislation that would have stopped Māori land from being taken under the Public Works Act as well. It is now decimating the Māori Land Court. It is not supporting greater involvement of the Minister for Māori Development in the appointment of judges to the Māori Land Court. It all smells like, looks like, and is walking like National is wanting to crack open the few defences that remain to enable Māori to protect their land in customary and communal ownership. So all of those things together spell very bad news for Māori, and I am very surprised that the Māori Party has supported those provisions. Hei aha. [Never mind.]

I also would say that we were very disappointed that another of Louisa Wall’s SOPs, which was to take into account the desirability of the judiciary to reflect the broader cultural and gender picture, if you like, of Aotearoa, was also denied. If we are to remove the systemic racism that still pervades the courts and the legal system—despite many attempts to actually try to fix that, there is still, none the less, systemic racism; there is still a significant unconscious bias in the legal system—then one of the core means to deal with that is to have representatives from across the gender and ethnic spectrum represented in the judiciary. It helps to raise awareness, it is a natural check on some of those unconscious biases, and it often provides support for a systemic change inside these organisations to support judges and the legal system to move on and do better. So not having any kind of commitment to diversity undermines the need for the judiciary and for the legal system to be less biased in the ways that we know it is. So that was a real shame.

But, overall, we accept that there is more good than bad in this legislation. We have supported it so far, and we will support it at the third reading as well. Thank you.

New Zealand First supports the work of the Law Commission and of the officials who worked for so long to modernise and improve New Zealand’s system of judicature. It is legislation that has been a long time coming, and I think that, overall, New Zealand First has no difficulty with anything that it provides, except for one thing that I will come to later.

I do want to pause just at this time to say, as others have, that there is one major, glaring issue that the legislation does not cover and is outside its scope, but nevertheless I think I will take just a few seconds to reiterate that a really big issue for the justice system in New Zealand is the cost of it and, therefore, access to the system by ordinary people who simply, so often, cannot afford to pay for justice. We have all had people in our offices talking to us about that, and most of us have tried to help people through the system, only to realise that the cost is the real barrier. Therefore, what I have often asked this Government to do—and I ask it once again—is to have another look at the legal aid legislation and improve the thresholds so that a far wider section of the New Zealand community can have access to legal aid, because, in the end, that is the only way that we are going to tackle that major problem of the cost of justice and, therefore, access to it.

New Zealand First will not be voting in favour of this legislation, not because we do not support most of what it says at all but for only one reason, and that is the requirement for the compulsory retirement of judges at the age of 70. That, for us, is a deal-breaker. That means we cannot vote for the legislation even though we support 99 percent of the rest of it. The reasons why we think this is so important are, firstly, that this is just plain, simple ageism. The Government should be ensuring that people capable of working beyond the age of 70 are given, as of right, the opportunity to do so.

The Human Rights Act itself is very clear that age as a means of discrimination is unlawful. Employers cannot do it. Why should the State be doing it when it comes to judges? Thirdly, it is utterly unnecessary for there to be a requirement for retirement at age 70. Few people who find themselves unable to perform their duties after that age—or even before it, for that matter—would wish to continue to do so, and there is no reason why the Chief Justice should not intervene and talk to people who are in a position where they should be retiring. But the real reason is that age 70 is not so late in life these days that very able people should not be able to continue to carry on, and I have appeared before judges well over the age of 70 who were very, very astute indeed. In fact, their experience should not be taken lightly, because that experience is of huge value for the judicial commission and the community.

And if there really are issues about the competency of judges, then they arise at all ages. There is nothing magic about the age of 70 to determine whether or not somebody suddenly becomes not competent. So if there really is an issue about competency, then why are judges not on a 7-year appointment basis, renewable for those whose appointments should be renewed and not renewed for those whose appointments should not be? That would be a far better and fairer and more effective system than this arbitrary choice of the age of 70. We are voting against the legislation for that reason alone.

But I also want to place on record New Zealand First’s strong objection to the failure of the Government to legislate now for the publication of all District Court judgments. We do not mean those minor pronouncements that are made orally, but, fundamentally, all District Court judgments. We were told that the reason why the legislation no longer requires that publication is resourcing issues, and yet we were told this by the officials: “The Chief District Court Judge is advancing work to enable significant District Court decisions to be published, and the ministry is working closely with her to establish this publishing capacity from next year.” So this is imminent—obviously, there are resources being made available—so I do not see why the legislation should not now provide for the publication of those judgments even if there is to be a delay before it is actually done.

As far as I am concerned, this Government is simply reneging on its responsibility—and its undertaking, in fact, originally—to see that the District Court judgments were going to be published. The original bill itself sets out to say that one of its most important purposes is the transparency of the judicial system. That comes right down to the publication of judgments through all of the court system. So it is very strange that a bill that sets out to be transparent is actually now not providing full transparency as far as District Court judgments are concerned. Remember, the District Court now has jurisdiction of up to $300,000 so that by itself is one good reason why those judgments need to be published.

What we saw in the original legislation was this, in clause 167, and I think it should have been retained: “(1) Every final written judgement of a senior court”—excluding the Family Court, the Youth Court and the disputes tribunal—“must be published on the Internet as soon as practicable unless there is good reason not to publish the complete judgment.” Then it goes on to say: “(4) …final written judgment means a written decision that determines or substantially determines the outcome of any proceedings and is either—(a) a written reserved judgment; or (b) an oral judgement transcribed by an official transcription service.” Why on earth are we not seeing that preserved in this bill? Of course it should be.

The argument for resourcing is a vacuous one. We can see from the officials’ own advice that resources are being made available and that it will be possible to publish District Court judgments next year—at least the significant ones. It is a small step further for the legislation to provide for the publication of all such judgments, with the exception of those that it is simply unnecessary to provide for.

New Zealand First members would not have voted against the legislation because of the failure to require publication of District Court judgments, but we cannot vote for legislation with such an objectionable provision in it as to require the compulsory retirement of judges at the age of 70 years. That is a disappointment to us because we think that this is otherwise a very good piece of legislation that we would have preferred to support. But that provision is so objectionable that it means we have no choice but to vote against it. For that reason only you will hear our vote against the bills.

Otherwise, I do want to make it clear that New Zealand First does support the work that has been done by the Law Commission and by the officials to bring forward legislation that will update and improve New Zealand’s judicial system in the way that is proposed in the bills. So I am sorry to those who would be looking forward to our vote for the bill. Unfortunately, because of the provision for compulsory retirement of judges at age 70, our vote has to be against.

It is my pleasure to stand in support of the Senior Courts Bill, which was formerly part of the Judicature Modernisation Bill, and we are here today to hear it in its third reading.

As we have heard in today’s debate, this legislation has been quite some time in getting to this final stage of the process. However, like a great Wangapeka cheese, good things take time. This Government is committed to improving public services, and this legislation, in the name of the Hon Amy Adams, is yet another example of delivering on our priorities.

The Law Commission reviewed the Judicature Act 1908, and this legislation is largely in response to that review. It includes a huge amount of input from officials and it also has nine recommendations that came out of the work of the Justice and Electoral Committee. The end result is legislation that improves the flexibility, the responsiveness, and the transparency of New Zealand’s court system and brings it into alignment with a 21st century system.

I was surprised to learn that our court system is one of the last areas of the public sector that still operates a paper-based model. So the time is right to modernise it and, therefore, I commend this legislation to the House.

Tēnā koe e Te Māngai o Te Whare. It is my pleasure as a member of the Justice and Electoral Committee to speak on this the Judicature Modernisation Bill that has been split into 23 bills, and I will speak primarily to one soon. I want to just acknowledge the work of the Law Commission and its report Review of the Judicature Act 1908: Towards a New Courts Act. We really should acknowledge that that piece of work that it undertook actually has helped result in this legislation before the House. I would also like to thank the officials and also the select committee and previous select committees. I actually have had no active involvement in submissions and the process that the select committee went through to get to this point, but now as a member of that select committee I get to speak on this the third reading.

I just want to note a few things in terms of what this legislation will enable. It will provide, for example, the District Courts to deal with civil cases up to $350,000, from $200,000, so we are expanding the jurisdiction and, I guess, the cases that the District Court can hear. It is also improving flexibility for the court to limit vexatious proceedings, and I am sure there will be members of the court system who will be happy to hear that. It also enables specialist panels of judges to be assigned to hear particular types of cases in the High Court. It was really interesting finding out where that came from, and it was Issues Paper 29 that the Law Commission put out and it was actually replicating a system that currently operates in Australian courts. When I was looking at what types of specialist skills or specialist panels we are looking at, the example that is given a lot in the literature that I have read is about commercial specialisation, and maybe my colleague Clare Curran will talk about that. The rationale was actually about providing access to justice for the commercial community, so I found that really an interesting rationale.

I really want to spend most of my contribution on Te Ture Whenua Maori Amendment Bill, and that is because during the Committee stage debate I did move a Supplementary Order Paper—it was Supplementary Order Paper 216—to ensure that that reform of section 7 of Te Ture Whenua Maori Act was really clear that the Minister for Māori Development appoints the Māori Land Court judges, and that was really to acknowledge the taonga that our whenua is. Māori land is so special, and Māori and the connection and relationship between the whenua, the landowners, the Māori Land Court, and the Minister for Māori Development, from my perspective—and I think the perspective of many of us across the House—was that we should actually make it explicit in the legislation.

What is made explicit in the legislation, actually, is that that is the responsibility of the Attorney-General. So we amended the legislation to now empower the Attorney-General to seek expressions of interest, to appoint judges for the Māori Land Court, but there is a really interesting clause in this Te Ture Whenua Maori Amendment Bill, in new section 7(7), which says “If the Attorney-General is not for the time being responsible for recommending the appointment of Judges of the court, he or she must publish information explaining the responsible Minister’s process for doing the things referred to in subsection (6).”, which is his responsibility and autonomy in appointing and going out to the public to enable people who are suitably qualified to nominate for any vacancies.

I do want to highlight, as my colleague Metiria Turei did, the fact that the Māori Party MPs did not support that the Minister for Māori Development appoints the Māori Land Court judges. So people out there will think that that is really strange and bizarre, and why did the Māori Party and the Minister himself not support the fact that he should be the one as the Minister for Māori Development to appoint the Māori Land Court judges. I have got no idea why they did not think it was an important thing to do. What we do know, and I would like to acknowledge my colleague Meka Whaitiri for highlighting the fact, is that there are a lot of changes in the Māori Land Court and there are a lot of redundancies happening. I presume that, for example, that means that the Minister for Māori Development has had or will have no responsibilities in that area. Obviously, the staff who are employed by the Māori Land Court are there to support the Māori Land Court judges. So it is just an incredibly curious thing for the Māori Party to vote against.

One of the other areas that I was particularly passionate about was about the diversity and inclusion of the judiciary, and the Law Commission, in fact, said to the Justice and Electoral Committee in its submission—and made it really clear—that it thought judges should be appointed based on gender, cultural, and ethnic diversity. It was really clear that having a representative judiciary was going to make access to justice a lot easier. So for the Law Commission, having social awareness and sensitivities to diverse communities and tikanga Māori was a way of providing criteria that would enable the judiciary to reflect society.

I think there are a lot of discussions happening at the moment about issues such as structural bias. The old-fashioned term is institutional racism, and maybe one of the best ways to address institutional racism would actually be to ensure that the people who are making the decisions when people come before the courts actually have the social awareness and sensitivity to be able to understand some of the circumstances, some of the life history, of people coming before the courts to hopefully make it—if it is their first time and their first offence—the last time that the court has to deal with any issues. That particular Supplementary Order Paper was not supported by the Government, but it also was not supported by New Zealand First, so I do acknowledge that, that my colleague Denis O’Rourke did not think that was a good strategy, I suppose, in making sure that there was diversity and inclusion within the judiciary.

But I did highlight in the Committee stage debate that the police have committed to diversity and inclusion, and actually have a fifty-fifty aspiration for women in the police force. Some would have thought that that was a lot harder to achieve, but I think putting it on the table and continuing to have the discussion about it means that it is out there, we have to think about it, and we actually have to make an active decision about whether we support initiatives such as that. So I was really pleased to be able to put that to the House, and in spite of it not going through, I do know that judges now do receive tikanga Māori training, for example, which is reflective of the skill set that is required in the undertaking of their particular duties.

I am not going to prolong the debate any longer. We are supporting this piece of legislation. I want to congratulate Minister Adams. She has had a few successes lately, and I think she is incredibly diligent in the work that she does. I commend the bills to the House. Thank you.

It is a pleasure to rise in support of the Senior Courts Bill, which was previously the Judicature Modernisation Bill, in support of this piece of legislation that looks to improve the flexibility, responsiveness, and transparency of New Zealand’s court system.

This is going to be a very brief call. We have already heard members opposite and members from this side of the House traversing the different intricacies of this legislation, but the one thing that I think I will touch on is the clarification around the use of audiovisual links with regard to sentencing.

Last week, during the adjournment, I was honoured to go and visit staff at Invercargill Prison. It was an exceptional visit, and they were quite passionate about the use of audiovisual links with regard to sentencing. Not only is it beneficial to offenders—they do not, obviously, have to be physically moved to court. They were showing me the facilities that they have to facilitate the audiovisual link with the judge for sentencing. Notwithstanding the safety plans and safety procedures that the staff has for transporting offenders to court, it obviously means that staff resourcing is lessened when we do use audiovisual links. That remains at the discretion of the judiciary, and I think that it is a good thing that this legislation seeks to enable the justice system to be more easily accessed along with technology advances. This evolution should be celebrated. It fits in nicely with this Government’s reform of Better Public Services, and it means that justice is delivered more effectively.

With that, I commend this legislation to the House.

I am pleased to take a call in the third reading of what was the Judicature Modernisation Bill, which has now been divided into 23 bills. This legislation, I think we all agree, is very out of date. It is 100 years old—long overdue for an overhaul and for modernisation. I do not want to cover the ground that has been dealt with by others. I will confine my comments and my contribution to some concerns that I have about what we have ended up with and, also, with some pointers, really, to the way forward if we are really serious about modernisation of the courts system, modernisation of our justice system, and some of the work that is being done in that area, for which, unfortunately, this legislation did not go nearly as far as it could have. That being said, there is a lot of important work that is being put into this legislation, as, no doubt, it has been held up in the House. It is a huge piece of legislation. It has been through an extensive select committee process.

The main point of concern is around the late deletion of those clauses 167, 401, 544, 565, and 571, which would have required online publishing of all final written judgments. The fact that this was included in the bill as it originally went to the Justice and Electoral Committee was important. It was actually quite radical and really did show that there were steps being made towards true modernisation. Unfortunately, the Minister of Justice was spooked during the process of the bill going through the House and, unfortunately, also would not support the Supplementary Order Paper by my colleague Jacinda Ardern at the Committee stage, which would have phased this in over time and would have, perhaps, addressed those issues around the enormity of the publishing of online decisions and the cost that that would involve. Instead, the Minister was guided by the advice that the 15,300 final decisions that would fall within the scope of the requirement of this legislation would require around a million dollars and 10 fulltime-equivalent publication staff. I think that was at the point where, probably, there were words had with the Minister—you know: “There’s no way that this could be afforded. You’ll have to back away from this.”

Unfortunately, it was backed away from. The impact of this, though, is that this is, therefore, not a true modernisation piece of legislation if we are not moving towards a system where there is accessibility of judgments for the public and for people who are doing research in different areas and who do not have access to the legal systems where you can access judgments. If they are not online, if they are not accessible, then we are not truly modernising our system and we are not making it more accessible to the public and more accessible as a system using the technology that we have available. I think that is a great shame, and I am hoping that we can revisit and redress this at some point in the near future.

I would also like to remind the Government of its obligations under the Open Government Partnership, which it is a signatory to, for easy digital interaction with Government. Access to the justice system, and access to the decisions made through the justice system, is part of that easy digital interaction with Government, and I say that this Government should not be paying lip service to these treaties, to these weighty documents that it signs up to that give commitments to being true open government. It is a multilateral initiative between dozens of Governments and civil society to create a more transparent Government regime. This is one of the things that it could be doing more work on. It also, as my colleague Jacinda Ardern said, runs counter to the quite strong comments made by the former Minister of Justice Judith Collins on this, where we must be able to access it. She said that New Zealanders are paying for this justice; they should be able to access it—unfortunately, that has been wound back.

I also want to touch on, in thinking about the way forward, the fact that there is new thinking in this area. I would like to hear from the Minister of Justice at some point soon, given that we are moving into modernisation of the justice system, that we could be looking at the concept of online courts—an online court system. There is work being done at the moment in New Zealand by our only true cyber law expert, former District Court justice Judge David Harvey, who has just set up the institute of cyber law in Auckland into the means for more people to get justice faster and cheaper, which would help to narrow a civil justice gap and fulfil the State’s democratic duty to ensure citizens can have their disputes resolved fairly. This is true modernisation. It is a move looking at how we could move to an online court system where more people can access justice faster and quicker. He points to the fact that, currently, civil claims of up to $15,000 can be dealt with cheaply in a disputes tribunal, but delays and costs of taking a case to the higher courts are prohibitive for a dispute over less than $75,000. He also believes that the judiciary is unlikely to propel us towards an online court system; it is a revolution that only politicians can make happen.

There is a considerable amount of work going on at the moment around this. There have been some reports of the Civil Justice Council, chaired by Professor Richard Susskind, about an online dispute resolution for low-value civil claims. A second report has recently been released by an organisation called JUSTICE entitled Delivering Justice in an Age of Austerity, and these are processes that are about the resolution of low-value civil disputes up to £25,000—this came from the UK. These are ideas that are really worth thinking about and are worth pursuing, and I hope that following on from the judicature modernisation legislation, when it passes, this will be one of the next steps that, as a country, we can take towards truly accessible justice.

I do want to, finally, just raise some caution around another part of this legislation, which is around moving to an electronic system for the registry of courts, which, of course, is a sensible idea, but where there are precedents—particularly in Auckland, in the Family Court, where this was attempted a few years ago and where it has created more problems than it has actually solved. There have been serious delays and huge backlogs within the Family Court by moving to an electronic system, the point here being that whenever these moves are made, they have to be done well and they have to be done properly. Taking Novopay as an example, where you turn off one system that has been working in order to bring in a new one, and you do not keep the old system going for a while just in case the new one falls over—this is one of the lessons that we really have to learn within the justice system as well. If we are moving to an electronic system, then we do have to make sure that we are doing it carefully, that we are doing it properly, that we are doing our due diligence, and that we do not turn it into another Novopay.

I stand to take the last call on the Senior Courts Bill—which arises from the Judicature Modernisation Bill—in the third reading. I must say, I was on the Justice and Electoral Committee in the 50th Parliament, when I first came here, and the Judicature Modernisation Bill was the very first bill that they put in front of me as we started going through it. I am pleased that I get to actually have a little bit of a say in a speech on the legislation just before it receives the Royal assent.

Essentially, this legislation—as everybody has said—is modernising how our courts are administered. It is modernising how our services are delivered to the public and the expectations of the public as to what they expect from the court system, and it is taking the focus off the papers and the building and putting the focus back on to victims and the customers who use the court system. The select committee has done a wonderful job.

The Minister of Justice, Amy Adams, has carried this legislation right through to its fruition and she too has done an excellent job on the legislation. It only leaves me to commend the legislation to the House. Thank you very much.