Judicature Amendment Bill (No 3) — First Reading 
Judicature Amendment Bill (No 3) — First Reading 
[Volume:626;Page:21117] 
Judicature Amendment Bill (No 3) 
First Reading 
Debate resumed from 18 May. 
MURRAY SMITH (United Future) 
: 
 I am delighted to speak on United Future’s behalf in support of the Judicature Amendment Bill (No 3). It seems a long time ago that I commenced my speech but this is a reasonably straightforward bill and it has been interesting to see the way that the Opposition has tried to make a meal out of a relatively straightforward but important measure. Apart from the deletion of a clause that is no longer applicable the bill really has only three provisions to it: the first increases the number of judges in the Court of Appeal the second provides that the rules in regard to the delivery of judgments that apply in the High Court and the Supreme Court will also apply in the Court of Appeal for the purpose of consistency and the third provides for additional rights of appeal to the Supreme Court from certain judgments. I will deal with each of those matters. 
We have had the need to provide for extra judges in the Court of Appeal for a considerable time. The huge pressure currently on the Court of Appeal is such that the court is literally nearly at breaking point in terms of its workload and its ability to cope. The last time that the number of judges was increased was in 1987. The number of cases before all our courts and the amount of work for the courts have certainly increased dramatically over the period since that time. This bill would increase the number of judges from seven to nine. Although that seems a modest increase in terms of being only two judges it would be sufficient in the view of the judiciary to provide greatly needed relief of pressure. 
Of course it is notable that with the passing of the Supreme Court Act and the hearings in that court more cases are coming on appeal and particularly people are taking themselves to the Court of Appeal in the knowledge that they will have a further step in terms of appealing to the Supreme Court. That I think contributes to some of the increase. So we see that the increase in cases comes from right across the board. A maxim says that justice delayed is justice denied and one of the real concerns in our judicial system is the amount of time that our courts currently take to deal with matters. It is not just the Court of Appeal that is at fault in that regard but it is right through our court system. The delivery of additional judges in the Court of Appeal will at least provide some resolution there but it seems to me that we need to look at far more fundamental reforms if we want to provide a judicial system that operates more efficiently so that people are not in the position of having to wait months and months and even years to have their cases resolved. 
The second thing that this bill does is to allow the flexibility to deliver judgments of the Court of Appeal in accordance with rules that are to be developed. The expectation is that those rules will be consistent with those that currently apply in the High Court and the Supreme Court. It seems to be a waste of judicial time that two judges must currently be present in the Court of Appeal. They must both sit there while one of them delivers a judgment yet often in this day and age counsel are not present when the judge delivers the judgment verbally to an empty court. That seems to be rather an anachronistic expectation when in this day and age judgments are written up and can be transmitted very quickly to the parties so that they are aware of the judicial decision. 
Certainly it is hard to see why counsel need to be present in court to hear an oral judgment when they can get the written document in their hands virtually simultaneously. So I think it is a very good move to allow judges to deliver judgments in accordance with the rules and to have flexibility in that regard as long it continues to be a minimum requirement that judgments be delivered in writing and be readily available to the parties to the media and publicly available immediately after the judgment has been written and delivered. As long as that is the case it seems to me that this provision fits the bill very well and that we lose nothing by it. 
The provision for High Court appeals from district courts and other lower-level courts to be appealed in the Supreme Court is also I think a positive development. One could criticise the fact that that will mean effectively that there are four tiers of hearings—the District Court High Court Court of Appeal and Supreme Court—and that the situation could arise where there are three different levels of appeal. One could say that that is over the top. With regard to the Supreme Court we do have the protection that one needs permission to go to the Supreme Court—one has to seek leave—and that it is reserved for matters of important principle. The Supreme Court unlike the courts below it has an obligation to look at broader principles that are needed in the development of New Zealand law. It and it alone has that real obligation. Therefore it is quite conceivable that the lower-level courts might have dealt with the facts and with some of the minor points of evidence and legal principle in a case but that even by the time it gets to the Court of Appeal an important point of law has arisen that needs the guidance of the Supreme Court because it is a point that will affect many other cases. The case would therefore go to the Supreme Court so that its judges could rule on that point of law. Any case that goes to a fourth tier and a third appeal—that goes to the Supreme Court—is likely to have a very narrow basis in terms of the questions of law that it raises. I do not see that as an impediment to the system. It will I think be a positive development in our jurisprudence. 
The major criticism I have heard from Opposition parties on this bill is the fact that it is being referred to the Government Administration Committee instead of to the Justice and Electoral Committee on which I sit. Certainly at first glance one would think that this bill which changes matters relating to the operation of our courts would go to the Justice and Electoral Committee. But the realities of the situation are firstly that these are very straightforward measures as I have outlined and secondly that these measures particularly with regard to the increase in the number of Court of Appeal judges need to be dealt with urgently. I am informed that the Government Administration Committee has very little work on but the Justice and Electoral Committee is overburdened. I have noted that we are dealing with nine different matters at the moment: an inquiry into the 2004 local body elections a petition on the Christchurch civic creche the Sex Offenders Registry Bill which we have just got back the New Zealand Sign Language Bill the Coroners Bill the Evidence Bill the New Zealand Day Bill the New Zealand Bill of Rights (Private Property Rights) Amendment Bill of my colleague Gordon Copeland and a petition of Larry Baldock and Gordon Copeland supported by 203000 signatures to abolish the Prostitution Reform Act and review that law. 
We have simply reached a position on the Justice and Electoral Committee where we will not even be able to embark on the hearings on those matters prior to the election. We certainly do not have time to deal with a bill such as this which addresses the need to increase the number of Court of Appeal judges urgently. Therefore in this instance I and United Future support this bill going to the Government Administration Committee. 
NANDOR TANCZOS (Green) 
: 
 I begin by thanking Mr Murray Smith for his intelligent and helpful contribution to the debate and for his comments around the referral of this bill to the Government Administration Committee. I think that that explanation will be quite helpful to members of the public who are listening to the debate. 
The Greens support this bill and we will vote for it. The main aim of the bill is to amend the Judicature Act 1908 in order to alleviate the workload pressures on the Court of Appeal and to increase access to the final appellate court the Supreme Court of New Zealand. The Greens are very pleased to support that straightforward aim. Access to justice or at least to the courts—of course they are not always the same thing—is critical to the implementation of justice. Delay in getting hearing dates increases costs and adds considerably to the stress experienced by the litigants. I am sure that many members of the House will have heard numerous complaints about the effects of delays in terms of judicial proceedings and I am sure that most members will support this bill in order to help address some of those issues. 
Obviously increasing the number of judges on the Court of Appeal will enable that court at least to hear appeals in a timely manner. We consider that that change is long overdue which again echoes comments made by previous speakers. We also support the changes to how judgments in the Court of Appeal may be delivered. It seems straightforward it adds flexibility and it reduces unnecessary delay and we think that those factors are all for the better administration of justice. 
The other matter to address is access to the Supreme Court. We are pleased to see that access to the Supreme Court will be improved by this bill. We believe that current arrangements are a barrier to some people who seek to appear before the Supreme Court where cases originate in the lower courts. We believe that freeing up those appeal rights is beneficial for people and for our nation. 
As Mr Smith has said there are safeguards in that as people need to seek leave to appeal to the Supreme Court only the pertinent cases will go before the Supreme Court. Typically cases include criminal environmental and employment cases and when this Parliament set up the Supreme Court one of the arguments for doing so was that unlike the Privy Council it would be able to hear the full range of cases. Those sorts of cases where the fundamental rights of individuals are often most radically affected by law have the greatest effect on the greatest number of people and that is one of the real advantages of our Supreme Court. It is a final appellate court that is based in our own country and that is accessible to a broad range of people and cases. 
As I have said environmental law employment law and criminal law have huge effects on people in our country arguably more so than the civil cases that made up the vast bulk of cases that previously went to the Privy Council. We believe that those areas of law deserve to be tested at the highest level of our courts. By enabling access to the Supreme Court legal views and interpretations are subject to a series of critical assessments for validity. All relevant issues are raised and tested and we have an outcome that can at least be said to be a rigorous testing of the law available today. This will mostly make for better law. Of course judges will not always get it right but we must at least let it be our most senior judges who have the final say. So the Greens are pleased that the bill will allow for a more fully functioning Supreme Court and Court of Appeal. 
During the debate on the Supreme Court legislation in this House I said that access to the Privy Council was so restricted and the number of cases that got there were so few that the Privy Council was just not able to fulfil the traditional functions of a final court of appeal. On the other hand our own Court of Appeal had so many cases before it that it was also unable to fulfil that function. The Greens noted that right-wing support for the Privy Council arose because it served the rich well but it did not serve the interests of ordinary New Zealanders. The question the Green Party had to address in dealing with that bill was whether we support justice for all New Zealanders or justice for the rich alone and we unashamedly support justice for all New Zealanders. 
The Greens believe that the development of the Supreme Court was an important step towards the decolonisation of this country and the development of the forging of a national identity. That does not make it a step towards becoming a republic and of course many other countries have ended their appeals to the Privy Council and remain part of the Commonwealth with the Queen as their head of State. 
We think it is important that we have this bill which is about increasing access to the Supreme Court. That is why we support it. Many people objected to the Supreme Court in principle when we passed that legislation and will not support this bill on that basis. Many Maori had deep-seated concerns about cutting the tie to the Privy Council. They wanted to see a written constitution developed and the status of Te Tiriti o Waitangi clarified before the Supreme Court legislation was passed. That is a legitimate point of view. 
The Greens will continue to push for treaty-based constitutional change while asserting our continued support for the Supreme Court. In that sense we are supporting this bill which is about increasing access to that court. Suffice it to say that we feel the decisions of the Supreme Court have to date validated our stance and proved wrong those who feared that we would see a bench that had a compliant and submissive attitude towards the Government of the day. If anything the repatriation of our final court has added impetus to the debate on the relative powers of the executive and the bench. [ 
Interruption 
] But as I think Mr Jones is commenting behind me those debates are already behind us. 
This bill is pretty straightforward in its intent and effect and the Green Party supports it. 
Hon CHRIS CARTER (Minister of Conservation) 
: 
 I rise to support this bill which to me is a very sensible bill. It is designed to alleviate the workload pressures facing the Court of Appeal and to increase access to the new Supreme Court in New Zealand. It aims to achieve that by increasing judicial resources by ensuring more efficient use of those resources and by removing a residual barrier to accessing the Supreme Court. I think it is a very sensible bill and I commend it to the House. 
Hon TONY RYALL (National—Bay Of Plenty) 
: 
 I am pleased to be able to take a call on the Judicature Amendment Bill (No 3). This bill has previously been spoken about by my colleague Richard Worth who is the National Party’s justice spokesman and also the MP for Epsom. The central premise of this bill is I think a contradiction. On the one hand the Government is saying that it wants more efficient use of judicial resource but on the other hand it is seeking to complicate and expand the number of cases that can on appeal be considered by the Supreme Court. Members of this House are being told that this bill is about providing more speedy justice yet the Government is also talking about providing more opportunities for people to appeal to the courts. Mr Worth made a very useful point. It related to the removal of the requirement for Court of Appeal decisions to be given in open court. [ 
Interruption 
] This is absolutely correct I would observe for the member for Christchurch Central. She can rely on my word on that. 
Darren Hughes 
: Christchurch East. 
Hon TONY RYALL 
: She is from Christchurch East. It was very helpful to be corrected on that. 
As Mr Worth pointed out this bill provides that Court of Appeal judges will no longer be required to give a short summary of their reasons in open court. The Government’s policy statement in the explanatory note of the bill states that this might in fact mean that judges give their decisions to an empty courtroom. Well I would like to know how many cases there have been when that has actually ever happened. When the Court of Appeal judges read a decision how often has there been no one in the courtroom? It is my understanding that counsel representing the appellant—the person appealing—would be before the court when a judgment was given. Similarly the Crown would be there as well. So although the Government may say in its note that that could lead to the judgment being delivered to an empty courtroom in actual fact that is probably more imagined than real. The point is that sunlight is the best disinfectant in the country and I would have thought that such matters relating to justice would be openly decided and that decisions would be given in an open way. I do not know whether judges wanted this change to be made but I certainly doubt it. Although the Government is arguing that judges will no longer give their decisions in open court at the Court of Appeal level and that that will somehow provide more efficient and timely justice in the next part of the bill the Government makes justice and the finality of justice even further away. 
In most parts of the world there are two rights of appeal. Yet the Government is providing—for no reason that any Minister has given an explanation for—a point whereby a third right of appeal should be given and what the reason for that should be. No member of the Government has given an explanation for that reason—no explanation whatsoever. So the Government’s response to this issue is one that is very wanting. There is a real crisis in our nation’s courts and that is the time it is taking for all cases to be heard. 
Despite what the Government may say defendants and victims are still waiting longer and longer for their cases to be heard. Why should people be worried about that? People should be worried about the delays in the nation’s courts for a number of reasons. The first of course is how genuine victims get any closure when the person who may have assaulted them or who has certainly impinged on their rights and freedoms still has not come before the courts. Secondly what about the effect on the defendants? If they are guilty there is a delay in respect of when they can begin their sentences and if they are innocent there is a delay in respect of when they can clear their names. That is of great concern. 
New Zealanders should be further worried about delays in the court system by the case that came to light in Whangarei only a few months ago. A man was charged in the court at Whangarei with the very very serious offence of drink-driving. In fact he was a repeat drink-driver; someone with a long list of drink-driving offences. The defendant drove up from Auckland to appear in the court and because of delays he was told to go home and come back again another time. He was then given a new date. He had to drive from Auckland to Whangarei yet again and yet again the Crown was unable to argue its case before the judge. This happened I think a third time. Finally because of one of these never-ending series of delays in the justice system the judge dismissed the case. A recidivist drink-driver was up on another set of serious drink-driving charges and the case was dismissed because of delays in the justice system. 
Information we produced last year showed that the number of cases being dismissed under the New Zealand Bill of Rights Act because of delays was increasing dramatically. What was the Government’s response? Nothing. So it is important that the House seeks to improve the speedy delivery of justice. It is important for the defendants it is important for the victims and it is very important for the justice system in general to be seen to be providing that swift justice. The point was made quite clearly by my colleague that this bill fails in all those tests. It fails to deliver speedy justice because it simply expands the number of appeal options and it does not provide the openness that we would expect from the justice system. 
Debate interrupted.