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Date:
22 July 2008
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Judicial Matters Bill — First Reading

[Volume:648;Page:17305]

Judicial Matters Bill

First Reading

  • Debate resumed.

Hon MARK BURTON (Labour—Taupo) : It is always a very positive thing to follow His Excellency the chairperson of the Regulations Review Committee and the honorary consul for Monaco, Dr Richard Worth. He made a fine contribution.

As the Minister noted, the Judicial Matters Bill before us implements some important but minor amendments relating to the judiciary by amending the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 and the Judicature Act 1908. The office of the Judicial Conduct Commissioner provides an important and, I think, generally accepted service that enables the lodgment and examination of complaints from the public about the conduct of judges—that is the point of the bill that we should not lose track of—while, of course, upholding the all-important independence of the judiciary. To date the commissioner has not found it necessary to refer any complaint to a head of bench, nor to recommend that the Attorney-General appoint a judicial conduct panel, but the inaugural commissioner, Mr Haynes, has identified some desirable and beneficial technical amendments to the Act in his 2005-06 and 2006-07 annual reports to Parliament. This bill effectively implements those recommendations.

It is my pleasure to support this bill. It is a useful and important measure for Parliament to advance, and it reflects this Labour Government’s commitment to a robust, transparent, and fair justice system, which we recognise as being essential to a well-functioning society.

CHRISTOPHER FINLAYSON (National) : It is always a pleasure to follow the person who is so happy to be the MP for Taupo. In 2004 National opposed the substantive legislation. We said that it was an unwarranted attack on judicial independence and that it would encourage ineffective and stupid complaints—in fact, that it would encourage a culture of complaints. And colleagues of mine, like Judith Collins, who spoke against the legislation were indeed prophetic, because it has basically been a waste of time. We were right to oppose this legislation in 2004, and we are right to oppose this amendment bill, the Judicial Matters Bill.

That is not to say that complaints against members of the judiciary should be treated in a frivolous or light-hearted manner. This is, in fact, a very serious topic. Most judges conduct themselves competently and with integrity, consistent with the judicial oath they take when they are sworn in. But sometimes judges do indeed need to be disciplined.

The worst example I have come across in recent times is the 2005 case of a New York judge who jailed all 46 people in his courtroom after someone’s mobile phone went off. The judge was presiding over a domestic violence case in Niagara Falls when he was interrupted by the offending phone. He proceeded to rage: “Every single person is going to jail in this courtroom unless I get that instrument now. If anybody believes I’m kidding, ask some of the folks that have been here for a while. You are all going.” When nobody owned up, the judge was true to his word and ordered the arrest of every single person in the courtroom, with bail set at US$1,500 per person. Those who could not stump up the money were shackled and taken to prison. This judge was later removed from the bench, with the chairman of the state commission on judicial conduct describing his actions as “two hours of inexplicable madness”.

Then there is the case of Justice Peter Smith, who was the judge in the famous Da Vinci Code case. He entered into vitriolic correspondence with a law firm in England that he had hoped would employ him as a consultant. He then failed to recuse himself in a case involving that firm. The Court of Appeal was very critical of the judge’s actions, describing them as “somewhat extraordinary”. Then there was the famous case in 1983 of circuit judge Bruce Campbell in England, who was dismissed for smuggling substantial amounts of cigarettes and whisky into the country on his private yacht. Thankfully, we have never had anything like that.

In fact, the annual report of the Judicial Conduct Commissioner for 2006-07 makes very impressive reading. In that financial year 92 complaints were received, and there were 11 unfinalised complaints from the previous year. As Dr Worth said, 72 of those complaints were dismissed, and the number of unfinalised complaints at 31 July was 31. No complaints were referred to the head of bench under section 17 of the Act, and no complaints were referred to the head of bench at the outset with the consent of the complainant because of a conflict of interest. It appears from reading the report that by far the most common complaint was that a decision, ruling, or order of a judge was wrong. But that simply cannot be a ground for complaint to this type of disciplinary body; such complaints are utterly misconceived.

Other grounds of complaint included rudeness, inappropriate remarks, failure to listen, and bias. There are various ways in which these matters can be dealt with. We can take for example a judge who is always being rude or who is taking too long to write a judgment. The sensible thing to do is to have a senior member of the profession have a quiet discussion with the relevant head of bench, who can then sort it out. That is the National Party approach—do it subtly, but do it effectively.

The Labour Party approach is illustrated by this foolish legislation: set up an office, create procedures, appoint a commissioner, and then bring on the inevitable amendment bill that seeks to appoint a deputy commissioner. The next thing we will have is a registrar, a council of worthies, hundreds of bureaucrats, and, lo and behold, a culture of complaint being encouraged and nurtured. There are plenty of litigants out there who, having lost their cases, will personalise them against judges. They are encouraged by this ridiculous regime to make complaints.

Of course, judges can be rude, grumpy, or discourteous. In many cases one can hardly blame them, given the quality of submissions they have to hear from lawyers. But are we such a weak-kneed, sissy society that if a judge barks at us we have to run off to some judicial complaints body? I do not think so.

We do not see any need for a deputy commissioner. In fact, we do not see any need for a commissioner. I noted from the commissioner’s report that he said it would be helpful to have a deputy because of conflict of interest, but Dr Worth has dealt with that. This person does not need a deputy, because the prospect of conflict of interest is minimal. As I said earlier, the number of complaints referred to the head of bench because of conflict of interest was nil in 2006 and 2007, and two in 2005 and 2006, so there is no demonstrated need. There is no need to legislate the obvious, such as clauses dealing with the disposal of complaints, and we are, therefore, opposed to this stupid legislation.

The second part of the bill concerns an amendment to the Judicature Act to provide for an increase in the number of associate judges. These were created in the 1980s to assist High Court judges in a range of civil work, and that is more specifically referred to in sections 26I and 26J of the Judicature Act 1908. In the 20 years or so since the office was created, the incumbents have done great work and have made a huge contribution to civil justice. Without them the already crippling workload of High Court judges would have been made worse, and it is to be noted that associate judges these days do great work in presiding over settlement conferences. But I wonder whether simply increasing their number at this time masks the real problem with civil litigation, an area of the law that this Government has neglected throughout its term.

The President of the Bar Association, Jim Farmer QC, commented in The Independent Financial Review recently that the court system is fundamentally strong. He said, and I agree, that we have an independent judiciary, respect for the rule of law—except with the Labour Party over the Electoral Finance Act—and a lack of corruption. But that system is undermined by costs, increasingly prescriptive processes, and delay. A real problem in civil litigation is the vast amount of money being spent on needless discovery of documents. Another problem, in my opinion, is the prescriptive case management procedures, which unnecessarily delay the resolution of a case.

Earlier this year I attended a very good Bar Association conference on the topic of civil litigation in crisis. One judge said that the adversarial system was seriously flawed and had passed its use-by date. “Citizens”, he said, “no longer had meaningful access to the courts.”

I am very concerned about this issue, and indeed I have been for a number of years. I look on the work of this Government with contempt. It has failed to address any of these important issues. Fundamental reform of the civil justice system is required. I do not think we need more associate judges; we need fundamental reform. We also need to free judges from the burdens of administration, so that they can concentrate on their core job, which is to judge. This Government increasingly treats judges like civil servants, and that is wrong.

This bill will not be supported by the National Party. The material dealing with the Deputy Judicial Conduct Commissioner is as misconceived as the contents of the substantive legislation. Secondly, although National has great respect for associate judges and the work they do, simply increasing their number is not the answer. Reforming the civil justice system is the answer. Of course, this Government not only does not know the answers; it is so hopeless that it does not even know which questions to ask.

I will be very interested in what my friend from New Zealand First will say, because New Zealand First opposed this legislation in 2004. I hope that it will not backtrack on that and support this foolish legislation, because Mr Dail Jones has a lot of experience in the law. He knows what works. He knows what needs to be done. I very much look forward to his contribution to see whether New Zealand First will be staunch in the defence of judges or will backslide.

DAIL JONES (NZ First) : Although I really appreciate praise like that from any sector of the House, and especially from Mr Finlayson in the National Party, I regret to say I will have to disappoint him on this occasion. That is probably not for the first time or the last time, but I can see that he will go home terribly disappointed—his handkerchief is out already—and he may not be able to make it back tomorrow morning because he will be so upset. The Judicial Matters Bill is really just a technical, minor bill—that is all it is. The bill allows the Judicial Conduct Commissioner to have a deputy, and it increases the number of associate judges. That is all it does.

I am disappointed that the old tradition we used to have in the National Party in this House from 1975-84, where one sat and listened to the next speaker, is not continued by current National Party members of Parliament. I raise the point that Mr Finlayson’s speech was in direct opposition to the speech made by Mr Worth, in so far as associate judges are concerned, and regarding judges. On the one hand we heard from Mr Worth that judges are not working hard enough—and he came up with some statistics on that—but on the other hand we heard from Mr Finlayson that High Court judges have a crippling workload. The National Party is hopelessly confused in so far as its approach to this legislation is concerned. I wonder what the next National Party speaker will say. We have had a sort of flip-flop already—we have had only two National Party speakers, and they have contradicted themselves in the space of two speeches. Out of respect I listened to what they had to say, and I think perhaps the next speaker from the National Party will clarify its actual view of the workload of High Court judges.

Mr Finlayson is in fact more accurate than Mr Worth. Mr Worth was referring to practice in 1960 and comparing it with that today. Well, strangely enough I did appear in the High Court in 1969, so I can say I practised in the 1960s—doing a jury trial or two and other High Court matters at the time; usually that divorce court stuff that we used to do, hoping we would get Justice Woodhouse rather than Justice Moller to do the decree nisi. But the workload of a judge in the 1960s was quite different from the current workload, and Mr Finlayson hit the nail on the head. In those days we did not have the needless discovery of documents; today that can go on forever. We did not have methamphetamine cases that go on forever, and all those new types of issues that arise. We did not really need masters—or associate judges, as they are now called—in those days to any extent, and we used to just deal with those issues in front of a judge in chambers, and usually in the High Court library. I am speaking about what used to be the Supreme Court in those days; we changed the name to the High Court in the late 1970s or early 1980s.

So I can see the need for an increase in associate judges absolutely immediately. Of course, the cap is a maximum. One does not necessarily have to appoint the additional associate judges immediately. It will all depend upon the circumstances and whether the Minister and the appropriate authorities decide that they are required. I was disappointed in the disagreement on the part of the National Party on that particular issue.

Of course, the most useful role of the Judicial Conduct Commissioner turns out to be that members of Parliament do not have their time wasted by people who say the judge got it wrong, and ask what they are going to do about it. I am sure any number of members of Parliament, especially those of us who have been constituency members of Parliament—I am not one now, but for 9 years I was a constituency member of Parliament—would invariably get at least one or two cases bundled around various members of Parliament. One might have been the first or the fifth member to be contacted by the particular litigant, who would be very upset about the outcome. Now, of course, that type of issue is referred to the Judicial Conduct Commissioner, who must have a handle on how to deal with those types of issues and deal with them as gently and as wisely as possible. Really, they are examples of upset litigants who are not happy with the outcome of a case.

The other issue, of course, and again I was very disappointed in Mr Worth when he seemed to attack the Judicial Conduct Commissioner—

  • Debate interrupted.