Judicature Amendment Bill (No 3)

I move, That the Judicature Amendment Bill (No 3) be now read a second time. I thank the Government Administration Committee for its careful consideration of this bill. The bill amends the Judicature Act 1908. The committee recommends some amendments in the light of public submissions, and I agree with those recommendations. The changes improve the clarity of the provisions to ensure that Parliament’s intent will be clearly understood. It is essential in a democratic society that courts have the confidence of the public. For this confidence to be encouraged the courts need to be responsive, timely, effective, and accessible. Combined, these conditions will help ensure access to justice for all.

This bill will particularly assist the responsiveness of the Court of Appeal. In recent years the Court of Appeal has faced an escalating workload. The bill increases the statutory limit on the number of judges who may be appointed as permanent members of the court. This is the first increase since 1987. The increase will be achieved within the overall statutory limit of the number of judges who can be appointed to our higher courts: the High Court, the Court of Appeal, and the Supreme Court. As well, this bill introduces greater flexibility in the court processes, which will provide for more efficient use of judicial time and resources. These changes will assist the Court of Appeal to carry out its important role.

This bill ensures that the courts are effective and accessible by increasing access to New Zealand’s final appellate court, the Supreme Court. One of the goals of the Supreme Court Act is to increase access from our inferior courts to our highest appellate court through an orderly appellate pathway. This was largely achieved by the removal of the existing statutory bars to take an appeal beyond a certain level and replacing them with the ability to apply for leave to appeal to the Supreme Court. The proposed amendments in this bill are in keeping with this approach. The bill will remove the residual barrier precluding the opportunity to seek leave to access the Supreme Court.

I now turn to the committee’s recommendations. The committee was satisfied that increasing the maximum number of permanent members of the Court of Appeal, together with the continued use of High Court judges in the criminal and civil appeals division, is sufficient for the foreseeable future. When considering whether an increase of up to two judges was sufficient, the committee carefully considered the suggestion of double-dipping in the use of acting judges in the High Court, which had been raised in submissions. The committee was satisfied that judicial independence was not being compromised. I agree with the committee’s conclusions.

I take this opportunity to add my own comment that New Zealand is well served by its judges. The use of acting judges in the High Court provides a degree of flexibility to supplement the permanent judicial resources of the High Court. An acting judge is used when there is an unexpected variation in the High Court’s workload or when there is a temporary absence of a permanent judge. In recent years the use of acting judges has declined due to the significant increase made in 2004 to the statutory cap on the number of permanent High Court judges. At present there is only one acting judge in the High Court. An acting judge is paid at the same rate as a High Court judge for the period during which he or she acts as a judge, and not otherwise. As a former judge, an acting judge will also be in receipt of his or her judicial superannuation entitlement. Contrary to criticism this is not double-dipping.

I return to the committee’s recommendations. The committee recommended a technical amendment to clause 5. In considering clause 5 the committee spent some time addressing a submitter’s concerns that the judge or judges involved in decisions may not always be identified in the court minutes, interlocutory judgments, and other court directions. The then President of the Court of Appeal, the Hon Justice Anderson, advised the Ministry of Justice that he had formally reminded all judges and registry staff of the need for judges involved to be identified in every judgment, minute, and direction of the court. This action was welcomed by both the committee and me. However, to ensure the continuity of the practice the committee recommends that the Rules Committee consider amending the Court of Appeal Rules that regulate the court’s practice and procedure. I agree with that recommendation.

Clause 6 removes the ability to appeal to the Privy Council in section 65. It is a consequential amendment arising from the establishment of the Supreme Court. There was some concern that the clause may be interpreted in a manner that would preclude an affected party from being able to seek leave to appeal the Court of Appeal’s decision to the Supreme Court. The committee’s recommendation to repeal section 65 clarifies that this is not the case. Parties affected by section 64 will not be excluded from the opportunity to seek leave to appeal to the Supreme Court. This clarification is welcomed.

The committee also recommended that clause 7 be amended. This clause amends section 67, which outlines how a party may seek leave to appeal a High Court decision on an appeal from an inferior court such as a District Court. The committee’s recommendation clarifies a party’s ability to seek leave to appeal to the Supreme Court following a decision of the Court of Appeal.

I will be circulating a Supplementary Order Paper proposing several minor amendments for consideration at the Committee stage of the bill. The Supplementary Order Paper will change the commencement date of clauses 4 and 5 to allow time for the Rules Committee to amend the Court of Appeal Rules to establish new processes for delivering judgments.

Again I thank the members of the Government Administration Committee for their valuable contribution to improving the bill. The bill will encourage public confidence in the court system by ensuring continued timely access to justice and more efficient use of judicial resources. I commend the bill to the House.

National supports the Judicature Amendment Bill (No 3), and I would just like to follow a comment that the earlier speaker made that New Zealand is well served by its judges. It is a curiosity, I believe, that this bill has been reported from the Government Administration Committee. Members will know, of course, that bills are referred to subject select committees. Those so-called subject select committees are chosen on the basis of the knowledge that they have. One of those committees is the Justice and Electoral Committee, which deals with issues relating to the very questions that have been reported back to this Parliament by the Government Administration Committee.

The Standing Orders of the House of Representatives are quite clear as to what the scope of activity of the Government Administration Committee is, and that is to be found in Standing Order 189 in these terms. The Government Administration Committee is tasked with looking at “civil defence, cultural affairs, fitness, sport and leisure, internal affairs, Pacific Island affairs, Prime Minister and Cabinet, racing, services to Parliament, State services, statistics, tourism, women’s affairs and youth affairs”.

I start by asking: why it is that this bill went to the Government Administration Committee when there was a subject select committee more knowledgeable about these issues. A huge opportunity has been lost with this legislation to improve, in a more general way, the court processes, and to bring benefits to a creaky legal system. I would say that much more could have been done than the Government Administration Committee felt appropriate. I say that because what we are looking at here are three quite small substantive changes.

We are, for example, increasing the maximum number of permanent Court of Appeal judges from seven to nine, including the president. Well and good; I agree. I have said in the past that the Court of Appeal is a workhorse that is significantly overloaded. That is to be contrasted in substantial measure with the Supreme Court, which sits idle for most of the year waiting for cases to come to it. Since the time that the Supreme Court has been in operation we have not seen, I would say, any significant increase in workflow to that court. There were other alternatives, I would suggest, that might have been considered rather than increasing the number of judges. One of the hot issues in the judiciary at the moment is what the retiring age for judges might be. It is currently set at 68. It used to be 72. There may well be a case for increasing the age of judges to 72. Strangely enough, acting judges in the Supreme Court can be appointed up to the age of 75. That issue could have been considered in the context of whether it was truly necessary to increase the maximum number of permanent Court of Appeal judges. Maybe it is necessary to do both.

But I express cynicism, because of the experience that those tasked with judicial issues on the other side of the House have, that these issues are not contemplated in a sufficiently broad and robust way. The reality is that we may well have, right through the system, too many judges. We should be looking at process improvements that would bring greater gains rather than simply trying to deal with the issue, as speakers opposite often boast, by increasing the number of judges in the various courts. Here was an opportunity to improve court processes in the way that I have just described—an opportunity not taken advantage of. One looks at current issues of workload across the judicial system and sees the Government strangely disinclined to act.

Let me give a simple example, which is High Court - related, but the impact spreads quite quickly into the Court of Appeal in the context of the appellate pathway. At the moment the High Court is bogged down with methamphetamine cases. The reality is that where an offender faces a number of charges, one of which involves methamphetamine, those cases wind up in the first instance in the High Court. I have urged the Minister, who has indicated that he may look at this issue in due time, to give the matter some urgent consideration. If it were possible to move that block of work down, into the District Court, it would substantially free up the pressures that the High Court faces. Has anything been done on that? It may be that some preliminary consideration has been given to the issue but there the matter seemingly rests, to the frustration and vexation of the judges. It is just another illustration where some minor changes would produce some significant gains.

The previous speaker commented on issues of double-dipping, and I will not deal with that. But I did make the comment when this bill was sent to the Government Administration Committee that the issue of delivery of judgments was surely not, in the scheme of things, a top-ranking issue. Surely that must be right, although for myself I have no problem with what is proposed in clauses 4 and 5 relating to the delivery of judgments.

I say to the Minister, and I hope he listens, that we see in this legislation again a simple response to court administration that simply fails to deal with the issues. Judges are appointed to try and decide cases. They are not there to be sucked into the minutiae of court administration. Where there is an opportunity to make change that will bring substantial gains, we should surely be behind that. We have missed that opportunity here. We support this legislation, but we support it with the reservation that much more could have been done. We are looking at simple clauses increasing the number of judges, dealing with delivery of judgments, dealing with a non-issue in many respects relating to the finality of decisions of the Court of Appeal, and provisions for leave to appeal.

The time of the Government Administration Committee was probably wasted in dealing with this legislation. The bill might have better occupied time before the Justice and Electoral Committee, where some more innovative approaches could have been adopted on issues that are critical to judicial administration and the legal system.

What Dr Worth failed to discuss, concerning this important legislation, is that it enhances the appeal process to the Supreme Court. When the Supreme Court Bill finally was passed into law—a great day for New Zealand—it was envisaged that there would be a right of appellate passage to the Supreme Court from all tribunals. It clearly was an oversight of the Justice and Electoral Committee, I have to say, that it did not foresee the blockage on appeals from the High Court on a determination to the Court of Appeal. This bill opens the way back to the Supreme Court. It is amendments such as this that are ideal for a Judicature Amendment Bill and ideal for a committee such as the Government Administration Committee.

I have to say that the National members on that committee were done a disservice by Dr Worth. Clearly there are some troubles in the National Party caucus if he criticises the great Shane Ardern, “Chairman Mao” of the Government Administration Committee. He runs that committee like a martinet. We get through the work, and we come to a consensus on what is right. The chairperson of that committee, of course, felt that this Judicature Amendment Bill (No 3) was one worth supporting. Then, no less an identity is the man who is starting from way behind the starting block, Brian Connell. He never wants to put a foot wrong as he heads on to the main straight—long after the horse has bolted, of course—chasing his party. He would not want to put a foot wrong. Brian Connell on that committee joined in to say that the Judicature Amendment Bill (No 3) is important legislation and it had his support. Then, of course, there is Sandra Goudie—“Miss Mangrove Chopper” herself, who would take an axe to any stray bit of growth. She is a woman who will gobble up that which stands before her. Did she have a criticism of this bill? Not on your life! So the National members on the Government Administration Committee were delighted to be able to nurse this bill through the committee, and support the committee in the recommendations that effectively tidy up the Supreme Court appellate process, increase the number of Court of Appeal judges from seven to nine, and, most important—and a matter not touched on by Dr Worth—bring some regularity to the way in which the judgments of the Court of Appeal are delivered.

This appears to be a minor provision but it has quite serious implications. It was raised before the select committee by Tony Ellis and other civil liberties lawyers, who were concerned at some of the trouble we have had in the last 10 years with anonymous decisions from the Court of Appeal, which led to the fiasco of the Taito case, which eventually had to go to the Privy Council. On the way there were several review hearings of judges being asked to stand aside because of conflict of interests because of notes they had been a party to signing but had not needed to declare their involvement. The select committee was assured that the Rules Committee would look at a process whereby the judges would be identified every time they made a decision—whether it be by way of minutes, by way of notes, or by way of more formal judgments.

This bill touches on three important aspects, which are really housekeeping matters. First is increasing the number of Court of Appeal judges so the workload is more manageable. A nine-member Court of Appeal is not an overstaffed Court of Appeal. There is still a considerable workload for those judges. We will have an improved number of judges, we can expect better decisions and more thoughtful decisions, and that should decrease the workload of the Supreme Court. Then, of course, there is the delivery of judgments. This is an important change, which is more important in reality than on the face of it. Finally, there is the tidying up of the right of appeal to the Supreme Court.

This is a simple little bill. The people on the Government Administration Committee are perhaps more used to handling complex matters that come before it, and they delighted in tidying up the bill. It is a straightforward bill. It is a service to the legal profession. It recognises the important work of the judiciary, and I certainly endorse its passing.

I start by thanking the previous speaker for his strong endorsement of my contribution on the Government Administration Committee. I have to say that I am living proof that rehabilitation programmes do work, and I am on the road to recovery. As has been noted, the Government Administration Committee considered the bill, and, as a member of that committee I want to acknowledge the intelligent and constructive contribution its members made in helping to draft this legislation. It gives rise to some hope that members of Parliament from different political persuasions can work together constructively when they have a common purpose.

I would also like to acknowledge the expert contribution from the advisers to the committee. As a layperson I found some of the issues a little complex, and I thought that the advisers were very constructive in the advice they provided. I also acknowledge the excellent contribution from the committee clerk and her team. A number of quality submissions were presented to the select committee as part of its deliberations, and they were extremely constructive.

As has been noted, the bill has three major components. I would like to touch on two of them. The first is the constitution of the Court of Appeal. As has already been noted, the intention is to lift the number of permanent judges from seven to nine, including the president. Of course, this increase in personnel is being recommended in order to alleviate workload pressures. National members on the committee were satisfied that those changes were necessary and justified, but we were not convinced easily—and I assure my colleagues that we actually did dot the i’s and cross the t’s on that issue. We had to be convinced that we were not appointing too many judges, because, as has been pointed out, that would impact on lower courts. At the same time, we did not want to appoint too few and thus frustrate the process of the Court of Appeal, which, in some ways, is happening now.

I thought I would provide the House with some information that was provided to the committee through its advisers. We sent the advisers away to gather information so they could forecast what the probable workload of the Court of Appeal might be. On reflection, that was a difficult task. They came back and said that information on caseloads that is based on forecasts of key drivers—for example, weekly crime levels and economic activity—is very difficult to provide and that, really, the best indicator of what the workload will be is to look at what has happened in the past. On reflection I think that is fair enough. Over the past decade, from 1995 to 2004, the number of criminal prosecutions has varied, reaching a peak in 2004. The information provided goes on to state that the number of convictions also reached a peak in 2004.

But the part I was most convinced by, and what led me to believe that we did need to increase the number of permanent judges by two, was the advice from our advisers that the number of criminal appeals is also likely to be influenced by changes in criminal justice legislation, and they named three pieces that have been passed in recent years: the Sentencing Act 2002, the Parole Act 2002, and the Parole (Extended Supervision) Amendment Act 2004. It makes good common sense to extrapolate that and say that if the sentences in the law are to be executed more rigorously, then we can expect there will be more appeals and more work for the appeal court.

The second issue I want to address very briefly is the delivery of judgments, and this provides for greater flexibility in the delivery of Court of Appeal judgments. Currently, under section 58(2)(a) of the Judicature Act, any two judges of the Court of Appeal may deliver judgments to the court. Section 58(2)(a) has been interpreted as requiring judgments to be delivered in open court, and, as neither party, including counsel, is required to be present, those decisions can in fact be delivered to a vacant court. That, to me, does not make for good use of judicial resources. So, quite correctly in my view, the Government Administration Committee has worked to allow greater flexibility to be introduced to cover off this issue. If this amendment is passed, the Rules Committee will amend the rules to enable judgments to be delivered either in an open court or through the registrar, as is the practice in both the Supreme Court and the High Court. To me, that makes sense.

Notwithstanding that issue, one concern raised by a submitter attracted my attention—that is, that some decisions were not being noted by the judge who had made them. That was the allegation. The concern was about interlocutory judgments and court minutes not identifying the judges involved in the decisions. This means that, potentially, the judge in the Court of Appeal may be the same judge who had reached a decision in the High Court, without the appellant and his or her counsel being aware of it. I was concerned about that issue, and I think rightfully so. Again, the advisers were asked to provide some advice around that issue, and on our instructions they wrote to the President of the Court of Appeal conveying that concern.

The president, in his response, noted that if there had been occasions when interlocutory judgments and court minutes had not identified the judges making them, then that would have arisen through inadvertence. That is all well and good, and on the face of it I tended to accept that. But then I reflected on it a bit further. I asked the submitter, who was a leading member of the judiciary, whether this was actually common practice, and he answered that it was not common practice but that it happened all too often. So, despite the assurances of the President of the Court of Appeal that this was inadvertence, it seemed that it was happening. When the advisers first went to the present President of the Court of Appeal, the president said that it was happening by inadvertence but that he had been instructing judges to make sure they identified themselves when passing down their decisions. Again, I was somewhat comforted by that, but the concern still nagged me. With the best intent in the world, I thought that with personnel change this could still happen, and if it happened in one case and a Court of Appeal judge was sitting essentially in judgment of his own decision, then that was wrong and it was a bad, unsafe decision.

Initially my position was—and I took the lead on this—that I wanted it written into statute. On reflection and with the support of members on the select committee on this issue—and I understand that the Minister also provided some support on it—we sought to have a note in the commentary. If members turn to page 3 of the commentary on the bill, they will find that the last sentence of the third paragraph sums up our position very well. It reads: “However, given that problems can arise where deciding Judges are not named, we recommend that the Rules Committee consider amending the Rules accordingly.” So we have not written it into statute, but we have given the judges concerned a clear steer of the intent of the Government Administration Committee, because this issue was of concern, and I think that concern was mirrored across most members of the committee.

I conclude on that point and give a quick summary of my position: increasing the number of judges from seven to nine carries National’s support, the commentary on the bill covers our concerns, and I again thank the select committee members for their constructive contribution to the bill.

As my two colleagues have said, National supports this legislation, although I would observe that the Government, in its restructuring of the court system in 2003, forgot about the Court of Appeal. The Court of Appeal plays an incredibly important role in the justice system of this country. It is an intermediate appellate court, but it has been under too much pressure for too long. The Court of Appeal report for 2004—I do not have the 2005 one—states that the number of cases dealt with by the court in its criminal jurisdiction in 2004 rose slightly for the third year in a row, though there was a decline in civil cases dealt with that year. The court dealt with 506 criminal cases and 113 civil cases. In 2003 the court dealt with 482 criminal and 148 civil cases. That is a very large workload, and the reality is that the Court of Appeal—and I am not being critical of the court for I have the greatest respect for it—has taken far too long to deliver judgments.

I mention two examples. First, I mention a case called Lai v Chamberlains on the issue of whether barristers should have immunity for what they do in court. That was heard in March 2003 and judgment in that case was given 1 year and 1 week later. Of greater practical commercial importance is a case called ANZCO Foods Waitara Ltd and others v AFFCO New Zealand Ltd, which, as the member for New Plymouth would know, was a very important case for Waitara because it concerned whether ANZCO could establish a meat-processing plant on the site of the old Waitara freezing works. After ANZCO lost in the High Court it sought and was granted urgency in the Court of Appeal. But it took 7 months for the Court of Appeal to deliver its judgment, and that was a great concern to all parties and, indeed, to the people of Waitara. Those are the sorts of delays that have been occurring in the Court of Appeal, simply because the judges have been overworked. I criticise the Government because, at the time, there was a move to establish the Supreme Court and stop appeals to the Privy Council. The issues of the pressure on the Court of Appeal should have been addressed.

Let us look at the bill. Part 1 deals with the procedures and the constitution of the Court of Appeal. I too support the expansion of the court and the increase in the number of permanent judges, but I do not believe that it is the whole answer to the problem. One of the real problems confronting the Court of Appeal is appeals in jury trials in the District Court that go not to the High Court but to the Court of Appeal. I think something needs to be done about a provision for appeals in jury trials to go to a full court of the High Court. I also think that there is a case to be made for introducing a leave provision, along the lines of the leave provision in the Supreme Court Act, that could act as a first filter to deal with the number of cases that go from the High Court to the Court of Appeal that are meritless, and there are plenty of those. On that issue, I am in total agreement that there needs to be an expansion in the permanent number of judges on the Court of Appeal.

The second point concerns the way in which judgments are released. Clause 5 is a very sensible clause. It simply provides that the manner of the delivery of judgments and the number of judges who may need to be present, if any, can be dealt with by the Rules Committee, making rules as it does for Court of Appeal practice and procedure. The old rationale for the fact that judgments had to be given in open court was to provide counsel who received the judgments with an opportunity to seek leave to appeal to the Privy Council orally rather than have to wait for the 21 days within which to lodge a motion on appeal. So, given the fact that all applications to the Supreme Court require the leave of the Supreme Court before they can go any further, this proposed change makes a lot of sense.

The Minister glossed over clause 6, which provides that section 65 of the principal Act is to be repealed. He did not really say what section 65 was all about. It states that the decision of the Court of Appeal is final as regards tribunals of New Zealand, and then there is a proviso: “Provided that the Court of Appeal may give leave to either party to appeal to the Privy Council”. That is an extraordinary section. It should have been repealed when the Supreme Court Act 2003 was passed. It is an example of sloppy drafting and inadequate work, which bedevils much of the legislative work of this House. Frankly, it is an embarrassment to the House. Indeed, the Supreme Court, very charitably, commented in the case Henry John Esdaile Nation v Nicola Mary Nation: “We would observe that the purpose of the Supreme Court Act might be thought to have not yet been fully and clearly carried through in amendments to particular provisions. Consider for instance s65 of the Judicature Act and its curious proviso.” This is a very coded way of asking why the section was not repealed in 2003. It really is sloppy drafting and is totally unacceptable. The section goes now; it should have gone 2 years ago.

The final point deals with appeals against decisions of the High Court on appeal. Again, I welcome this change that the decision of the High Court on appeal from an inferior—not in a pejorative sense—court, like the District Court, will be final unless a party obtains leave to appeal against that decision to either the Court of Appeal, although it would be granted only in very special circumstances, or, in even rarer circumstances, directly to the Supreme Court. That is a change that, again, could have been made 2 years ago when the Supreme Court was being established.

On the face of it, these changes may appear to the lay person to be relatively minor, but they are very important. As an intermediate appellate court, the Court of Appeal plays a very important role in the justice system of this country. It has been overworked, which is why there needs to be an increase in judges. As I said, it is not the end of the story. I hope that the Government will look at a leave provision and also do something about the District Court jury appeals that go to the Court of Appeal. That is the first point. The second point is that the bill tidies up some lamentable errors that were made when the Supreme Court was established. They should have been dealt with then, and it is an embarrassment that it has taken 2 years to tidy them up.

I stand on behalf of New Zealand First to make our contribution to the debate. First off, I say that the previous speakers have all contributed to the very points we must agree on. We also agree with some of the concerns that have been expressed.

This bill amends the Judicature Act of 1908. One of its major intentions is to alleviate the workload pressure put on the Court of Appeal. In so saying, I acknowledge the good work this country receives from its judges. I think that New Zealand, for its size and for the amount of legislation that emanates from this House, is well served by our judges. This bill will ease the pressure on the present number of judges by extending that number. As a result of the many laws we have, we will, of course, need more people to sit in judgment, in terms of interpreting those laws, and that must lead to timely decisions. As was alluded to by the previous speaker from National, having to wait for 12 months and 1 week for a decision is certainly not something that we should condone. In fact, I think the delay in making such decisions is denying democracy to the parties that are affected.

Provisions of the bill include the repeal section 65 of the principal Act, which will remove the right of the Court of Appeal to grant leave to appeal to the Privy Council. Clause 7, which covers the leave to appeal, inserts new section 67, which will allow a party to a civil proceeding originating in an inferior court and initially appealed to the High Court, to apply to the Supreme Court for leave to appeal. Given that that is the case, and I suspect that the workload for the Court of Appeal will not be eased, the need for extra judges will be a prerequisite.

I want to conclude New Zealand First’s contribution to the debate by making reference to a bill that will come before the House tomorrow. The Judicature Amendment Bill (No 3) talks about increasing the number of judges, and the bill that will come before the House tomorrow, the Electoral (Reduction in Number of Members of Parliament) Amendment Bill, will talk about decreasing the number of members in the House. Perhaps I can tie the two bills up by suggesting that with less legislation there will be a need for fewer judges. If we have fewer lawmakers, then perhaps we may be contributing to an easing of the workload that the courts have to deal with. However, having said that, I know that that will not happen. Perhaps the support for the Judicature Amendment Bill (No 3) from a number of parties in the House will be an indication of their opposition to the bill that my colleague Barbara Stewart has introduced. In conclusion, I reaffirm New Zealand First’s support for the bill.

At Waitangi this year, a Samoan friend of mine defined our current political process as “demo-crazy”. With criminal and civil appeals increasing, a growing queue of appeal cases, and an increasing risk that people’s access to justice is being denied, my friend is not far off the mark. The Judicature Amendment Bill (No 3) aims to ease workload pressures on the Court of Appeal, increase the number of Court of Appeal judges, make the delivery of judgments easier, allow appeals all the way to the Supreme Court, and increase access to the Supreme Court. The Māori Party supports increased access to justice and the better use of existing resources, but we note that community involvement in the judicial process and greater access to restorative justice are not addressed in the bill. The denial of justice is what brought the Māori Party to Parliament, and that same quest for justice helps to guide our thinking on this bill.

The Māori Party will work towards the elimination of poverty and injustice, and the promotion of a fair and just society. We sincerely hope we can call on everyone else in the House to assist us in those efforts. Everyone in Aotearoa has the potential to be a positive contributor to our wider society, but we destroy that potential by continually arresting, charging, convicting, and jailing people, and then rearresting them and continuing the cycle without taking steps to break it. The need to broaden access to our Court of Appeal is a direct result of the lunatic “lock ‘em up and throw away the key” policy that the Government has forced upon us.

We should not even have to consider the bill. But because we choose to put people in jail, we open the door for more appeals, we create the extra workload, and then we have to pass even more laws to deal with an already overloaded judicial process. I have to ask when this will stop. When do we say enough? Our jails are already full, and our budget has already blown out due to the building of new prisons, so when do we stop this “lock ‘em up” lunacy?

Easing workload pressure on the Court of Appeal deals only with the symptom of a bigger problem. But neither this bill nor others currently before the House address the reasons for the increase in convictions that create the extra workload. Instead of just throwing more rules into the mix in a sad and wasted attempt to stop growing crime and to prop up an overloaded judiciary, we should be bold enough to say that we have got it wrong and that we should try something new. Maybe it is time we had a good hard look at our justice system and admitted that it is causing our whole society more grief than resolution. Maybe it is time we looked elsewhere for answers.

Real justice is all about taking responsibility for each other. If any of our mokopuna play up on the marae, we sort it out. We do not ring Child, Youth and Family Services or the Ministry of Social Development, or anybody else. It is about collective ownership and responsibility. It is about whānau, and it is about justice.

The bill says that it will deal with the growing list of appeals that is causing workload pressure on all staff, judges, lawyers, and clients. But the bill does not deal with the underlying issues that create the workload pressure in the Court of Appeal. Also, the bill does not deal with our responsibility to create, to build, and to improve a society based on fairness and justice. All the bill does is put a patch on a sore that is quickly turning into a festering wound, and that threatens to spread into a full mutilation of our society.

The bill also gives us a chance to see where Māori fit in the judiciary, and I have to say that two recent examples give us cause for concern about the Government’s lack of respect for Māori in the judiciary. Funnily enough, both of those examples arose out of the Foreshore and Seabed Act. In March 2004 the Government stepped over the line of political neutrality, when the then Attorney-General and the Prime Minister both accused Judge Caren Wickliffe of bias for allowing East Coast Māori to have their foreshore and seabed claims heard by the Māori Land Court. They accused Wickliffe of a conflict of interest simply because she was of Ngāti Porou and Rongo Whakaata descent. Six months later they dropped those accusations, but the damage had already been done. Given the extensive nature of whakapapa, that would make it impossible for any Māori judge to hear a case in which another Māori was involved. Then, just last year, former Attorney-General, Michael Cullen, accused Joe Williams, Chief Judge of the Māori Land Court, of passing documents to the media about a foreshore and seabed claim. Ironically, his claim came just a week after Dr Cullen had insisted he would defend judges against criticism from MPs. Obviously, he was referring only to non-Māori judges. As it turned out, the documents Dr Cullen was referring to were obtained by a journalist who simply rang the court registrar and asked for them.

It seems that the bill, while calling for an increase in the number of judges for the Court of Appeal, should probably preface its advertisements with the words: “Māori need not apply.” In the face of such hostility, Māori judges do us all proud by continuing to deliver judgments of insight and political courage. Hopefully, their judgments will have changed thinking and helped to move our nation forward.

In 1990, during the Treaty’s 150th anniversary, Eddie Durie, the then Chief Judge of the Māori Land Court, gave the nation a new term, when he said: “We must remember that if Māori are the tangata whenua—the original people—then Pākehā are the tangata tiriti—those who belong to the land by right of the Treaty.” In 2005, former Māori Land Court Judge Heta Hingston caused major waves when he described the Government’s actions regarding the Foreshore and Seabed Act as “the tyranny of the minority by the majority”. He also said: “Their position that public access would be jeopardised is complete ignorance. Essentially, what the Government has done is take away from Māori. Quite simply, it is another case of raupatu—it is confiscation.”

Such forthright statements are not new. Indeed, Howard Carr, of Ngāti Kahungunu, who was the first Māori judge of the Native Land Court, became a very forceful advocate for Māori rights to the Waikaremoana block in Tūhoi. He called the Crown’s actions “appalling”, and called for better treatment for Māori. It is that expert opinion and guidance from Māori judges who sit on the highest benches that helps to shape contemporary views of Māori issues, and that is the type of thinking this nation needs if we are to respect the right of the judiciary to be separate from the executive. That is also the courage and the free expression that this nation needs to help guide its future.

The Māori Party does not support this bill because, like the Legal Services Amendment Bill (No 2), it accepts the burgeoning arrest, conviction, and imprisonment problems that riddle our society as being part of the natural order of things. The Māori Party does not support this bill because it does not deal with those elements that will see Māori become the most imprisoned people in the world in less than 5 years. The Māori Party does not support this bill because it does not reflect the fact that for many thousands of Māori and Pasifika citizens, more judges will not mean more justice—neither will easing workload pressure on the Court of Appeal, allowing appeals to the Supreme Court, or increased access to the Supreme Court—for the very simple reason that Polynesians simply do not have the financial capability to engage experienced, high-cost lawyers to ensure that they can actually get justice. Changing our nation at a more fundamental level is required if we are to get ourselves off this horrendous carousel of pain and accusation, and that is a responsibility we all face. Tēnā koutou katoa.

Bill read a second time.