Remuneration Authority Legislation Bill

Members, we turn now to consideration of the Remuneration Authority Legislation Bill. Members, we come now to Part 1.

Point of order. I seek leave for all provisions to be taken as one debate.

CHAIRPERSON (Hon Jenny Salesa): Leave is sought for that purpose. Is there any joint objection? There is none. I call on the Minister the Hon Aupito William Sio.

Madam Chair—

CHAIRPERSON (Hon Jenny Salesa): My apologies, Minister. We’re in committee, would you please care to join me at this Table.

The Remuneration Authority Legislation Bill is an omnibus bill in two parts that amend seven Acts: the Remuneration Authority Act and the six Acts governing two courts and four tribunals. It will transfer responsibility for determining the remuneration of six groups of judicial and quasi-judicial officers from the Cabinet Fees Framework to the Remuneration Authority. These amendments will strengthen judicial independence and enhance public confidence in these courts and tribunals.

This bill has received cross-party support at the Justice Committee and during the two previous debates. I want to thank members for their constructive consideration of this bill.

Just briefly on Part 1, it amends the Remuneration Authority Act to authorise the Remuneration Authority to set the remuneration for environment commissioners and deputy environment commissioners at the Environment Court, community magistrates of the District Court, disputes tribunal referees, Tenancy Tribunal adjudicators, the chairperson and deputy chairpersons of the Human Rights Review Tribunal, and, lastly, the deputy chairperson and members of the Immigration and Protection Tribunal. As members will be well aware, the Remuneration Authority is the independent body that determines our remuneration. It also determines the remuneration of judges, coroners, and quasi-judicial officers that need to have, and to be seen to have, independence from the Government. This amendment will provide security of remuneration for these six groups of officers and it will ensure they continue to discharge their responsibilities without fear, favour, or undue influence.

I trust this outline will assist members in their examination of Part 1 of the Remuneration Authority Legislation Bill. I’m happy to go quickly into Part 2, but I’ll give time—go to Part 2?

💬 Chris Penk: Happy, Minister, if you are, yep.

Then, maybe I’ll just do that as well. So in Part 2, I think, I want to point out that the Government Supplementary Order Paper 148 corrects cross-referencing errors in Part 2 and replaces the six schedules. However, the policy intent in the schedules has not changed; these schedules still require the remuneration of the affected officers to remain the same from the commencement date until the Remuneration Authority makes the first determination.

Part 2 of the bill comprises of six subparts—one subpart for each of the Acts governing the six groups of judicial and quasi-judicial officers that I mentioned earlier. These Acts require the remuneration of these officers to be determined under the Cabinet Fees Framework, which is administered by the Public Service Commission, on behalf of the Government. The bill amends these six parts to make the Remuneration Authority responsible for determining the remuneration of these officers.

The principal difference between the Remuneration Authority and the Cabinet Fees Framework is the degree of independence from the Government of remuneration decisions. Both take account of a similar range of factors, such as the requirement of the decision; the conditions of service; and fairness to the person whose remuneration is being set, and to the taxpayer. These six groups of officers require a greater degree of independence from the executive than the quasi-judicial officers whose remuneration will continue to be determined under the Cabinet Fees Framework.

I think I’ll just briefly outline that the environment commissioners and deputy commissioners sit in the Environment Court, either with an environment judge or alone to hear appeals about the contents of regional and district plans, and appeals rising out of applications for resource consent.

Community magistrates, disputes tribunal referees, and Tenancy Tribunal adjudicators hear cases that would otherwise have to come before a District Court judge. Community magistrates hear low-level criminal matters in the District Court.

Disputes Tribunal referees hear property disputes of up to $30,000. The Disputes Tribunal is a division of the District Court and hears most of the substantive cases in the District Court civil jurisdiction.

Tenancy Tribunal adjudicators hear disputes between landlords, including Kāinga Ora, and tenants of residential properties of up to $100,000, and disputes relating to unit title developments such as apartment builds of up to $50,000. The Tenancy Tribunal enforces the healthy homes standards and can impose pecuniary penalties of up to $50,000 on non-compliant landlords.

Next, the Human Rights Review Tribunal hears claims relating to breaches of the Human Rights Act, the Privacy Act, and the Health and Disability Commissioner Act. It has the authority to declare an Act of Parliament inconsistent with the New Zealand Bill of Rights Act, a matter which would otherwise come before a senior court.

Lastly, the Immigration and Protection Tribunal hears appeals against decisions of the Minister of Immigration and Immigration New Zealand relating to residency, deportation, and refugee protected persons status.

I simply conclude by saying that I consider the transfer of responsibility for determining the remuneration of these six groups of judicial and quasi-judicial officers to the Remuneration Authority as necessary to reinforce their independence from the Government and to maintain public confidence in these courts. I trust this outline will assist members in the examination of these parts. Thank you.

Thank you, Minister. The question is that Parts 1 and 2, Schedules 1 to 6, and clauses 1 and 2 stand part.

Madam Chair, thank you very much. I thank the Minister for his opening remarks, I think it’s helpful that he’s given us an overall sense of what the legislation’s intended to achieve. I also thank him for the explanation of the Government’s amendment, the Supplementary Order Paper (SOP), no doubt in his name, which will make some necessary but small amendments. It’s helpful that he set out that these aren’t policy changes per se. So I can say, as the National spokesperson in the area, we will support that SOP, as well as continuing to support the legislation as a whole. There’s no policy change that’s bypassing the select committee process. It seems as though that’s a genuine good-faith effort to make sure that all the ducks are in a row to achieve the policy aim, which, as the Minister said is mostly in the space of allowing independent parts of the Government to be independent.

So I’ll just take a step back and make a sort of general comment about the legislation, if I may, as a prelude to a couple of specific questions about provisions within these various parts. We’re doing the debate as one whole question, so, for anyone following along at home, we’re not going to necessarily constrain ourselves to specific sections in a chronological way. I don’t have a lot that I really want to interrogate by way of detail for the Minister he’ll be relieved to know, as will the advisers, no doubt; it’s really just a matter of teasing out a couple of explanations about how it all fits together in our tribunal system.

So the first thing is just to acknowledge the Remuneration Authority is a creature of Parliament—that is to say it’s been created by Parliament under a statute; it’s got its own Act. And so, you know, in this place, we needed to set that up—I say “we”, it was long before my time, actually before my time was even born, the Remuneration Authority Act 1977. So there we go. Not showing off, just saying—no actually, I’m sitting near to Simeon Brown who was born even more recently. So anyway. And Nicola Gregg’s laughing, but we won’t go any further.

It’s been a long-standing convention and indeed the law of the land that the judiciary—people who are making decisions in our courts as opposed to the Government with a capital “G”—get to do that without fear or favour of politicians reducing their pay as punishment for a decision that we don’t like or threatening that that might be the case. The Minister has rightly talked about judicial officers and quasi-judicial officers. So there are some who are not judges by name but do judge-like functions, and it’s appropriate for the same reasons that we protect judges from us and from the perception of any threats that there might be, theoretically, from this place. It’s appropriate to treat them in the same way. So that’s really the overall gist of it, and that’s why we’ve been happy to support this legislation from the start. It’s a relatively minor thing, but it’s got an important basis in the context of the court system overall, which is creaking at the seams, to put it mildly—one might say it’s fiddling while Rome burns, but it’s a nice tune so we’re going to play along with it.

In Part 1, we’ve got a list of the different tribunals and also the magistrates who operate within the court system, and also the Environment Court—also within the court system, as the name suggests. I’m just wondering from the Minister whether there were any other tribunals, authorities, or bodies that he or his officials considered might also be brought within the ambit of this legislation. I’m not asking the question to try and flush out an answer that I think is going to be any kind of “gotcha”. I can’t think of any particularly myself, off the top of my head, but just genuinely throwing it out there. Are there others who make decisions that we would want to keep free from the influence, again, of any threatened punishment by politicians in the same way? So I’ll just pause for breath in case the Minister wanted to respond on that point, and if he does, then I’ll allow him to do so. Otherwise I’ll move on.

It’s been a while since the initial discussions about this to try and get this piece of work here. There was a range of areas we discussed, but by and large we’re basing this—look, as a politician, I’m clear that we do need to protect that line of independence well—the judicial and the quasi-judicial. So the advice I got was really these groups and I’m pleased to say that Cabinet colleagues ooh-ed and aah-ed but essentially agreed to maintain the protection of that line of demarcation between the executive as well as those. So there could be more in the future, but I don’t know.

Sure. Thank you very much, Madam Chair. And also thank you to the Minister, that’s a helpful answer. I suppose if I were to put in a pitch for anyone specifically, and I’m not saying this is National Party policy; it’s a discussion that’s out there in the community and the quasi-judicial community, as the Minister is probably already aware, and that’s the role of judicial JPs. As he knows, and he’s nodding, they perform a very similar function at a level to community magistrates, or CMs as they are commonly known. This legislation does deal with the remuneration of community magistrates and it says that they are to be protected.

Of course, the elephant in the room is that judicial JPs don’t get paid. So, actually, of course it’s not that they would be in this bill, because there’s no pay that they are getting to be protected in this way. But I wonder, as a more general policy point, if the Minister would contemplate or is contemplating potentially using judicial JPs in a way that is equivalent to community magistrates, such as they would also get paid for undertaking similar work, often on a weekend and a public holiday as well. And if the Minister would like more time, I’m happy to take to my feet.

My recollection is we did discuss JPs and there was a reason why we didn’t include it in this regard. But I can’t recall exactly its—but I think that it also has to do with the way that JPs are structured. It is an independent organisation, it sits under the Governor-General, and therefore there were some complications that the officials still needed to work through before we can make a final decision on this.

Thank you, Madam Chair. That’s helpful from the Minister; again, appreciate the engagement.

I suppose it’s worth noting that if they were to be paid in the future for doing the work that they are already doing, that’s equivalent to community magistrates, then it would be probably appropriate at that point to bring them into this regime. But for now that’s probably as far as we can go.

In relation to the acting Chief Community Magistrate and acting community magistrate roles, I refer to section 61 as it will be within the District Court Act, so within the bill it’s clause 11. So this is where, if someone is acting as a Chief Community Magistrate or community magistrate but not in that chief role—that top gig—then they also have the protections afforded to the community magistrate proper under this legislation. That seems appropriate. They’re doing the job, and again, we don’t want them to be subject to influence by way of threat that their salaries and allowances and so forth could be reduced in an unfair, arbitrary way that would amount to political interference.

But I do note, actually, just comparing that situation of the community magistrates community with others in the legislation—I don’t know if there’s often an acting role of chairperson or deputy chairperson of the Human Rights Review Tribunal, for example. But, if so, would the Minister think that someone who was acting in that role would also be entitled to the same protection as the permanent chairperson or deputy chairperson of such a tribunal?

My recollection was: absolutely depending on the role and the function and responsibilities that they are performing. My understanding was, an acting community magistrate is carrying out the full functions of that of a community magistrate. So I don’t really see the difference in that.

Again, I think at some stage—and this is one of the reasons why I think it’s important to have this remuneration authority, is so that politicians aren’t tinkering with the salaries of people who are performing a judicial or quasi-judicial role that should remain independent from politicians.

Thank you, Madam Chair. Again, we remain on the same page. This is going extremely well, actually, if I may say—if I can be accused of liking the sound of my own voice, and actually by now I don’t, but I can assure you that I’m having a great time. I hope everyone else is, too, and feel free to join in, he said while desperately looking around—all around him and behind him. Harete Hipango has spent a fair proportion of her life in and around courts in her professional capacity, and if she wants to rescue us all, then that would not be unwelcome, but I also won’t put pressure on her. There’s plenty more I can say and plenty more the Minister can say, too, for that matter. Simeon Brown is hiding, by the way. He’s also got a law degree but he’s keeping very quiet right now, keeping his head down, probably tweeting!

Anyway, just a little further bit on this—well it happens to be Part 2, but we’re doing it all together so I can recklessly flit about between the different provisions. I did have a question to do with the fact that we’ve got a system where the setting of the fees, allowances, and salaries is set by a body other than Parliament, and yet it is Parliament that appropriates money—that is, passes in an annual Budget—to the Government of the day for the running of the country, let’s just say. Of course, we can all agree or disagree about how the Government is spending money, but that’s how the system works. Of course, it’s outside of their remit to set the salaries for judicial officers, and yet it will be the Government who has to provide the money to be spent by the taxpayer, through them, on this purpose.

So I just wonder if the Minister can explain, because it’s actually an interesting question that arises even before this bill came to us, how it is that the Government knows how much money’s going to need to be spent on these salaries, allowances, and fees, given that it could be set at some very high level by the Remuneration Authority and the Government will be bound simply to follow along.

We’re really delving into detail that I don’t have before me at the moment, but they are good questions.

My understanding is that the Ministry of Justice is the ministry that is responsible for ensuring that it provides the Budget bids on behalf of all areas and functions. That includes the courts and it includes salaries. I know that they are solely responsible for that.

Obviously, of course, I would imagine that if the Remuneration Authority provided advice that the Ministry of Justice had not budgeted for, then they would be compelled to find it within internal resources. It’s the same function that I’ve observed as a Minister with oversight on this, where often judges will make the call on certain things, and the ministry would just have to find the money within their internal budget. That’s something that is not within my responsibility at all, and it should stay that way so that we politicians aren’t tinkering and interfering with decisions that ought to remain independent as part of the administration and as part of the judicial.

Thank you, Madam Chair. I’ll just take a very quick call on this. I was admiring the valiant efforts of our chief whip in speaking to the bill; here by himself, as much as he is looking around for support and help—

💬 Harete Hipango: I was going to take the call but you beat me.

Oh, you were getting ready to take a call. But anyway, I’m very pleased to take a call on this, the Remuneration Authority Legislation Bill. Look, I think that it is really important. I want to acknowledge the work that the Minister has done on this, and we can certainly see the sense in it. The only question that I would have for the Minister is with the formation of the new permanent legislative authorities there’s always a concern that these bodies can grow. That’s one of the issues that we have raised, and that I want to raise again in the Chamber today; we’ve seen many, many times when legislation comes through the House that it can be full of best intentions, but the intent of the Minister, or the legislation, is not necessarily interpreted in a way that it was intended and you end up with unforeseen outcomes. I think that one of the points that we’ve raised through the process is whether or not there’s the chance that these bodies could grow dramatically in numbers, and whether or not the Minister feels like there’s any checks and balances in the legislation or that there’s any way of actually being able to make sure that that doesn’t become an unintended consequence of this legislation. Thank you, Madam Chair.

I want to underscore that this bill has had cross-party support from the committee, and the Justice Committee did not amend the bill. But the point to this question about, you know, what it will look like in the future; look, I say to myself that the Remuneration Authority has already been set up, that these are critical roles within our judiciary system and they are entitled to be paid for the roles and responsibilities they conduct. And the question is, should a politician be making that call or should an independent body be making that call? In this bill, here, it’s an independent committee that should make that call. As to the future, well, I think Parliament will always have the role and responsibility to review any of this. So I’d say to my friend, when he is Prime Minister in 18 years’ time, he can then lead the review of this if he has any suspicion that it may not be going in the right direction.

Thank you, Madam Chair. I’ve enjoyed that exchange between the Hon Mark Mitchell and the Hon William Sio.

Just to return to the point that the Minister had made before my colleague took to his feet, I think that’s right what the Minister has said about emphasising that the courts sit within the Ministry of Justice and need to find money to ensure that the payments are made, notwithstanding that Parliament and even the Government of the day aren’t in control of those. I suppose I should say for the sake of the record that there’s no suggestion from National that the salaries and fees and so forth would be set in an unreasonable way that would leave the court system or the Ministry of Justice administering it out of pocket, but it’s an interesting theoretical question just to make sure that things line up, and there’s at least some kind of answer to how the system is going to manage where there’s a bit of tension. On the one hand there’s responsibility, ultimately, for the running of the country by this place, but, of course, the independence of the courts for their operation and, of course, their specific decisions must be respected and maintained for reasons that we all understand.

One of my final questions, or it might even be my final question, but we’ll see—

💬 Hon Kieran McAnulty: Yay!

A popular call—I said “maybe”, Mr McAnulty; don’t encourage me. It’s just actually question that comes up when you look at the way that this legislation is shaped. There are quite a few different parts making quite a few different amendments in quite a few different primary bits of legislation, and the reason for that, of course, is there are lots of different tribunals, authorities, and other bodies that exist separately from each other. They’ve all got their own Act of Parliament. It’s quite a fragmented system. I suppose you could almost call it an ecosystem of tribunals and lower-level courts.

They don’t particularly relate to each other; in fact, it can be quite confusing for someone who is a layperson to know which tribunal or authority to go to. They might have a dispute and they go, “Well, it’s a relatively small amount of money.”—and I’m self-conscious using that phrase “relatively little” because $10,000, for example, is a lot of money to most people in this country—#CostOfLivingCrisis. But, actually, if you think about the fact that going to court would quickly absorb $10,000 worth of fees, legal fees, and so on, then that person might naturally go, “Well, I’ve got a dispute with my builder.”—for example—“I’m just going to go the Disputes Tribunal.”, or what was previously known as the small claims tribunal or court.

We have a mechanism where someone takes something that’s not going to cost so much, given the amount at stake—let’s say $10,000. I don’t know what you’d get for that building-wise these days but that’s another story for another day. They might say “We’ll go to the Disputes Tribunal.’, without knowing that there’s actually a separate authority that’s the building practitioners tribunal. Or, similarly, there might be a dispute between a landlord and a tenant. Let’s say the amount at stake is five grand. Again, it sounds a Disputes Tribunal case, but actually there’s a specific Tenancy Tribunal for hearing those matters.

So these are quite separately carved out, and it’s appropriate, of course, that this legislation, which is amending a whole heap of Acts, does deal with them separately. It couldn’t be otherwise because, of course, we’re amending legislation that’s on the books. This is an omnibus bill, as the Minister started off by explaining to the committee, but I wonder, therefore, if the Minister has given any thought to combining some of the functions of the tribunal so that we don’t have a system where all their pay is administered separately, they’ve got different websites, they’ve got different IT systems, and they’ve got different administration. It occurs to me that you could have a system where the specialist expertise is maintained by the tenancy bit, by the Environment Court bit, by the Human Rights Review Tribunal bit, and so forth, but, actually, just make it a bit more of an efficient system whereby we don’t have all these separate structures strewn across the landscape, which are confusing to people and probably aren’t terribly efficient.

It might be, for example, that the Government takes inspiration from its own health sector restructuring where it said, “We’ll do away with the DHBs because some functions can be combined.” I’m not going to get into that and relitigate that, obviously, but if there is value in centralising or combining—and we say that in some areas it doesn’t make sense because you remove the local voice. But these aren’t really local concerns so much as a demarcation of different subject areas in the law.

If the Minister has given any thought to that, I’d be remiss not to take this opportunity now while we’re speaking with him, and it’s vaguely related to the bill. So I’d be grateful for any thoughts he might have on that.

It’s a very good question that my learned member asks, but I do want to underscore that this came about in order to maintain the integrity and independence of our judiciary services and ensure those who carry out those judicial or quasi-judicial roles have the confidence and independence to carry out those functions on behalf of all of us and to respond to the needs of our community, as he articulated earlier.

Before I get to what I think might be the answer that might resolve some concerns in his question, it is an omnibus bill because there’s so much other legislation in which some of these roles and functions sits, and I’m thankful that the Parliamentary Counsel Office has prepared a technical Supplementary Order Paper that corrects three cross-referencing errors and replaces the transitional provisions in the six schedules to better align with the policy intent of the bill—this is just to give you some examples before I give my final words—by replacing “terms and conditions” with “remuneration”, specifically including acting appointments; simplifying the wording of the commencement provisions; updating the part and clause numbering in schedules.

It did arise at one time as to how do you streamline all of these functions, but here’s the issue. I’m a politician, and if I’m going to uphold the integrity of our judiciary, I believe it’s the judiciary that ought to lead in that, and I believe that the work that is currently happening, led by the Chief District Court Judge, the Hon Heemi Taumaunu, Te Ao Mārama, will encompass all of that.

Our judiciary system seems to sit in the archaic years of the past in that we’re still using a paper system, sadly. The work that has now begun, led by our judiciary and supported by the ministry, will include a range of things updating and bringing—Te Ao Mārama is described as bringing us out of the darkness and into the light, and the case flow management system that’s also being carried out also means updating our system.

I suspect at some stage that the judiciary may then be prepared to provide their views to the executive of the future about how to combine some of these roles and functions, because I think the driver from a policy perspective is how do you respond to the needs of the community? How do you make sure that they have access to justice and how do you make sure that they’re not going to pay an arm and a leg just simply to put up a minor litigation around a traffic fine or something like that?

So I think it’s an important question that the member has raised. But I think we have to come back and remember that this policy is about making sure that the judiciary—those in those judicial and quasi-judicial roles—can be independent and that their salaries can be decided upon by an independent body, away from the prying eyes of present and future politicians.

I move, That the question be now put.

Thank you.

💬 Barbara Edmonds: You said you had one more question.

I said I had one more question, maybe, and, in fact, I do now have one question.

💬 Barbara Edmonds: That’s all right. Take it!

Thank you, Ms Edmonds. It’s been good, hasn’t it? Come on, don’t be like that! No, just kidding.

So thank you, Madam Chair, for your indulgence to ask one final question. I’ve found in my notes the final thing that I wanted to ask, and it’s actually reasonably brief. I’ve asked and probably answered two, but that’s up to the Minister, of course.

Within Subpart 6 of Part 2 is clause 26, which contains Section 263, “Remuneration of Environment Commissioners, Deputy Environment Commissioners, and special advisors”. We’ve heard from various speakers—well, really just the Minister and me, let’s be honest—about why we’re having the separation.

It doesn’t take a lot of imagination to say, “Well, of course, the Environment Commissioners and the Deputy Environment Commissioner should be included within that regime. They are making substantive decisions. They are qualified judicial.” But the special advisers to them—and I don’t cast any doubt on the value of the work that they do. But it seems to me that it’s interesting for this particular body that operates under the Resource Management Act (RMA)—soon to be RIP RMA! Actually, I shouldn’t say that—should I?—lest anyone think that we’re fond of the current operation of the RMA. But, you know, let’s not make it worse, either.

Anyway, so we’ve got a regime where the special advisers, as well the commissioners and deputy commissioners themselves, would be included in that. I note that advisers to other chairpersons, deputy chairpersons, and so on aren’t included in this. Was that a conscious decision, Minister? Should others feel ripped off? Or is it a windfall for the special advisers to the Environment Commissioners and so forth, that they have been included in this?

You asked, “Was that a conscious decision?” The answer is yes.

I move, That the question be now put.

Motion agreed to.

The question is that Minister’s amendments set out on Supplementary Order Paper 148 be agreed to.

Amendments agreed to.

Parts 1 and 2, Schedules 1 to 6, and clauses 1 and 2 as amended agreed to.

Bill to be reported with amendment.