Worth Richard: Judicial Matters Bill — First Reading 
Worth Richard: Judicial Matters Bill — First Reading 
[Volume:611;Page:8302] 
RICHARD WORTH (NZ National—Epsom) 
: 
 Would it not be great if we had a confidence that the Attorney-General believed in the merits of this bill? We have been treated to a gabbled speech read at high speed from closely written typescript. I would like to start if I may—and against the background of the interruptions from the Minister of Defence; we all know about his legal experience do we not?—with the overview provisions in the explanatory note of the bill. The Government asserts that collectively the measures are aimed at maintaining and enhancing public confidence in the judiciary and recognising the fundamental importance in a democracy of ensuring an independent judiciary and addressing judicial resources. 
I have to say with a measure of sadness that National supports this bill going to a select committee. We do so with significant reservations. For my part those reservations centre on two things: first of all the absence of provisions relating to judicial appointments; and second the provisions relating to the appointment of part-time judges. I do not take any heart from the fact that in material produced by the New Zealand Law Society  
Law Talk 610 
 dated 1 September 2003 this comment appears: “Margaret Wilson said work on proposals for such an office”—that is relating to the appointments process—“was continuing with final decisions expected by the end of the year.” So here we have an incomplete imperfect bill that fails to deal with what is really the critical issue confronting the judiciary today which is that related to judicial appointments. 
There is a growing apprehension in the community and I speak of the legal community and the non-legal community about the ability of the Attorney-General to make merit-based recommendations on judicial appointments. There are two reasons for that I suggest. The first is related to the innate limitations of the Attorney-General’s decision-making process and the second is a bias that she has against merit selection. There are multiple illustrations of mal-appointment and they range through the judicial ranks. So on a quasi-judicial level they touch people like Susan Bathgate Ella Henry and Joris de Bres. In the District Court unfortunately there are also some recent examples. 
The Attorney-General may think that these affirmative action programmes are justified—that political correctness is in some way justified. But I suggest that all parties lose from the process. Who are those parties? Well the public lose because they lose confidence in the judiciary and the system of judicial administration. The second group of people who lose out are the litigants appearing before the courts. And of course not to be forgotten another person who loses out is the judge who is out of his or her depth with the role entrusted to him or her. We have seen in the last 2 years I would say a number of judges appointed who are literally out of their depth. Why is that? It is because they have not been appointed on a merit basis. They have been appointed on a basis that reflects political correctness or affirmative action. I am interested to see the Minister of Defence—the so-called know-all on matters relating to all things—shaking his head and intervening in the incautious way that he so often does. I pose the question: what would he know about these issues? What is the answer to that? Absolutely nothing. But confidence characterises this Minister of Defence with flawed procurement policies in defence. He is nevertheless prepared to offer a view on anything and everything. 
Parliament had been led to believe that legislation would shortly be forthcoming to deal with judicial appointments. I see opposite the hard-working chairman of the Justice and Electoral Committee—a committee on which I too am privileged to sit. He has laboured under the same delusion as I have; that there would be shortly coming to the House—particularly in the context of the Supreme Court Bill which abolishes the Privy Council—material of substance relating to judicial appointments. Well he has been disappointed I have been disappointed and the other members of the select committee have been similarly disappointed. 
It is a very curious position that in the context of the bill that plans to abolish the Privy Council an informal process is to be embarked on for the appointment of the judges of our highest court. It is clearly a recognition that what is occurring at the moment under the aegis of the Attorney-General’s power is unsatisfactory because what she has proposed to establish is an informal advisory committee. And who are the players on that? Well herself—and I am sure she will be consulting herself—the Chief Justice the Solicitor-General and a former Governor-General. I do not wish to criticise the former Governor-General who has been placed on the advisory committee but I venture to suggest that he will find it very difficult to make a contribution to the sorts of issues that will be importantly before him. 
I would like if I may to turn to a second issue which judging by the statements that the Attorney-General has made tonight is clearly an important one. These are her plans in respect of part-time judges. Who would like a part-time non-committed judge to sit in judgement on a particular case if one were a litigant? The explanatory note states: “Provisions in the Bill allow for Judges to sit on a part-time basis in appropriate circumstances. The proposal will ensure that Judges have good work conditions consistent with EEO policies.” What might that mean? “In the modern workplace flexible working arrangements are increasingly desirable and achievable. The proposal may also assist with recruitment and retention of high calibre members of the judiciary.” The explanatory note continues: “Part-time work will be authorised by the Attorney-General with the concurrence of the relevant Head of Bench. Part-time work will usually be sought for defined periods for reasons of health family commitments or approaching retirement.” I would like to underscore those criteria relating to health or approaching retirement. If I were a litigant I would not want a sick judge sitting on my case. If I were a litigant I would not like an ageing and decrepit judge sitting on my case where the amounts at issue might be significant. 
Where is the Attorney-General taking us in respect of the Judicial Matters Bill? Nowhere good I would say. A number of commentators have already offered insights into the merit of this legislation. I would like to ask some questions of the Attorney-General noting her seated opposite and listening with rapt attention to the comments I now make. Here are two of the questions. Is it appropriate for the Attorney-General to become so directly involved in the management of the judiciary? How are the Attorney-General and Chief District Court Judge to choose between applicants for part-time positions where it is likely there is competition for such positions?