Worth Richard: Debate on Prime Minister’s Statement 
Worth Richard: Debate on Prime Minister’s Statement 
[Volume:606;Page:3402] 
RICHARD WORTH (NZ National—Epsom) 
: 
 About 2 hours ago I had the privilege of being appointed Opposition spokesman on justice which in the context of my experience as a lawyer is both a challenge and an opportunity. I was the chairman of Simpson Grierson I am a member of the Council of Legal Education and I have been on the board of the New Zealand Law Society so I have lived the law and lawyers.  
I thought what I would do in the short time you have afforded me Madam Speaker is talk about the differences between National and Labour on justice issues because we stand starkly divided on a range of points. As the starting points are different it is really not surprising that the outcomes are similarly so. I plan to talk about four things—access to justice equality before the law judicial activism and political correctness. I will start with access to justice. National has waged a battle to seek that the Government reverse its decision on court fees. Members of the House will recall that the Government imposed swingeing increases in the order of 600 percent in some cases in filing fees and hearing fees. The result is predictable. Anecdotally and to some extent supported by imperfect statistics from the ministry the court load is significantly decreasing in respect of civil litigation. That is because the costs are too great for some litigants. There is an oppressive flip side reflected in the legal maxim that costs follow the event. It works this way. When a plaintiff succeeds he or she is entitled to costs. Those costs include the heavy filing fees of which I have spoken. So the hapless defendant perhaps of modest means is saddled with a very significant additional burden. That surely is unsatisfactory. It reinforces the cynical observation that the courts are open to everyone like the Ritz Hotel. That surely cannot be right. If we are committed to access to justice we should be dealing with that issue.  
The second issue I would like to deal with is equality before the law. That issue obviously looms large at present. Bill English calls it one standard of citizenship. But of course equality before the law is an old legal principle and it goes way back before the Treaty of Waitangi although it is reflected in article 3 of the treaty. This idea of equality before the law has been abrogated constitutionally in a number of jurisdictions. Canada for example has a charter of rights and freedoms with provision for affirmative action programmes. In the United States Supreme Court there is a significant constitutional case challenging university admission affirmative action policies. I certainly view with concern the failure by Parliament to legislate with precision in Treaty of Waitangi areas. The unvarnished references in legislation to the principles of the Treaty of Waitangi have encouraged I would argue misguided judicial activism. 
 That leads me to the third area and that is judicial activism. I would argue presumably contrary to the position of my noisy clamorous Labour friends opposite that the legislature should actively avoid the encouragement of judicial activism. It is timely to recall a comment by Justice Dyson Heydon. He was a New South Wales Court of Appeal judge. This month he has been appointed to the High Court of Australia. He said: “The more the courts freely change the law the more the public will come to view their function as political; the more they would be rightly open to vigorous and direct public attack on political grounds; and the greater will be the demand for public hearings into the politics of judicial candidates before appointment and greater control over judicial behaviour after appointment. So far as these demands were met judicial independence would decline. None of these outcomes would be desirable.” The issue of judicial activism has a particular relevance at the moment as we look at the passage of the Supreme Court Bill through this Parliament. If that bill is enacted then very directly will this issue arise in the context of the appointments that are made by the Attorney-General.  
The last question that I would like to deal with relates to political correctness. I say it is the last issue but there is always the possibility that my friends opposite will seek leave for me to speak for some greater period. 
Clayton Cosgrove 
: We did that once. It was very exciting! 
RICHARD WORTH 
: The member did and he got a great outcome as I recall. I would just like to start on the issue of political correctness with a comment made by Justice Louis Brandeis 70 years ago. He said: “Experience teaches us to be most on our guard when the Government’s purpose is beneficent. The greatest dangers to liberty lurk in insidious encroachments by men of zeal well meaning but without understanding.” 
I have the misfortune to be on a select committee with one of the noisy members opposite who is currently sitting in the Chamber. Today we heard some comment on the Criminal Records (Clean Slate) Bill and on offer to us was the opinion that that legislation reeks of political correctness because the free flow of information and ideas is the lifeblood of participatory democracy. When people stray from the straight and narrow and as a result a criminal conviction is entered against them that information which shapes that person’s life and the lives of those who deal with that person should be public knowledge.  
Those are the four points I offer to the House tonight in response to the Prime Minister’s statement: access to justice where the Government in my view has lamentably failed; equality before the law where there is unfinished business; judicial activism and the risks that arise there; and political correctness.