Parker DavidHon DAVID PARKER (Labour): Can I begin my contribution by saying that I was pleased that in the Committee stage of the House Parliament chose to reinsert in what is now the Senior Courts Bill the provision that expressly set out that we have sovereignty of Parliament. That provision was in the former Supreme Court Act and it was put in there to emphasise that courts are not meant to be writing law; they are meant to be applying and interpreting law. Obviously they have to fill a void if there is a gap in the law but they should not usurp the role of Parliament. There was a view that it did not sit naturally in courts legislation and if it was in a constitutional provision it ought to have sat in the Constitution Act. So at one stage the Government said it was going to remove that particular clause from the legislation—indeed it was not in the first reading or indeed recommended by the Justice and Electoral Committee on the report back from the select committee—and leave that issue to be dealt with in the Constitution Act at some later date which would have left a gap in the law. Retiring Supreme Court Judge Sir John McGrath as he left made the point that that was wrong. Others including myself made the point that whether or not that provision was originally necessary in the Supreme Court Act the fact that it was there but was no longer there had to have legal meaning which meant that the law was probably changing by the omission of that clause and therefore we would have been undermining the sovereignty of Parliament if we had not kept that clause and carried it forward from the Supreme Court Act to this legislation which we have now done. Can I thank Richard Cornes who is an expat Kiwi now living in the UK who also provided advice to the select committee on this issue and advocated for its inclusion in the legislation. I think it is better legislation for restoration of that clause. Can I deal also with something that my colleague Jacinda Ardern mentioned which is the compulsory age of retirement for judges. I share her concern that age is not generally a proxy for competency but there is one difference between senior judges and employees and that is that they do not have an employer. So if you get a doddery old judge who is losing his or her marbles it can be pretty hard to get rid of them because if they are stubborn and unwise enough to stay on the only way you can get rid of them is actually through this Parliament moving to get rid of them and that is a very difficult thing to do and is rarely used. So I think that was probably in the minds of those who favoured a compulsory retirement age because—Metiria Turei: Could we do that with MPs as well if they are doddery and losing their marbles?Hon DAVID PARKER: Well MPs are actually elected for only a 3-year term and if a doddery senile MP stands for election the people are generally wise enough to elect someone else.Metiria Turei: No—no.Hon DAVID PARKER: Ha ha! Oh well Metiria Turei indicates that that is not always the case and that we have got some premature senility on the other side of the House but I think that is a cruel blow. Can I turn to another issue and that relates to access to the law. Although it is good that there are some provisions in this that are improving your ability to file documents electronically so as to reduce costs and perhaps speed up processes overall we do have a serious and unresolved problem relating to access to justice in New Zealand. We have got two major spheres of jurisdiction in our courts. We have got the criminal jurisdiction and we have got the civil jurisdiction. These bills in the main deal with the civil jurisdiction which is why I am going to concentrate on the civil jurisdiction in my comments. Access to justice is largely a function of cost. If you cannot afford to use the courts to resolve your civil disputes you do not get to use the courts to resolve your civil disputes and sometimes those disputes that ought to be resolved by the judiciary are not because people cannot access them. I have got to say that I have been a lawyer now since about 1982—I think it was at the end of 1982 when I was admitted which is now more than 30 years ago. In my 30 years of legal practice I saw access to the courts deteriorate markedly. When I first was a young lawyer people were routinely resolving quite minor disputes like car crashes or disputes with their insurers or disputes on the quality of workmanship—not a house that is so faulty that it is falling down but smaller house disputes. Hire purchase transactions that were not complied with were sued upon. I can remember working for Wilson Neill Finance—or whatever their finance company was called—and it would sue for the last hundred dollars due under a contract. It was not because the last hundred dollars was going to make it broke but because enforcing the rule of law actually encouraged adherence to the rule of law and reduced all of our costs of credit because people would not just flick off and not pay the last few hundred dollars of their hire purchase contracts. Virtually none of those things are ever litigated through the courts now. We do have a disputes tribunal which in respect of the smallest of those things can resolve disputes between people. It cannot enforce debts—that is actually outside the jurisdiction of the disputes tribunal and there are many disputes that fall outside the jurisdiction of the disputes tribunal. I am not suggesting that it should be increased materially because it is pretty rough justice there sometimes but there are many disputes that are above the jurisdiction of the disputes tribunal that cannot afford to be litigated through the New Zealand courts. I am one of those people who—you know I started with environmental law but I was a civil litigation partner in one of the largest South Island law firms. One of the main reasons I gave up civil litigation quite a long time ago—although I have still got a practising certificate—was that I thought the cost of the services that I was delivering to people exceeded the value of what it was that I was delivering to them. That is even for the people who could afford it. I did not think it was fair value given the complexity and cost of legal processes. In addition to those people there were lots of people who just could not afford to access the system who can no longer get justice. This is now widely acknowledged by the judiciary. I am going to quote the last Chief High Court Judge Justice Winkelmann. She said Why is access to justice important in the civil sphere?" and her answer was: "It is because access to justice is the critical underpinning of the rule of law in our society: the notion that all the good the bad the weak the powerful exist under and are bound by the law. That condition cannot exist without access to courts." Then further on she says "Unless we have this access we will live in a society where the strong will by any means including violence always win out against the weak. This will be a society in which once binding civil obligations are recast as voluntary." She observes: "If courts dispense justice for only the few what does this mean for our concept that we are a nation that exists under the rule of law?". It is increasingly true in New Zealand that individuals cannot afford to access the courts. It is increasingly true that even our non-governmental organisations cannot afford to litigate the things that they want to—and should be able to—litigate if they are challenging a governmental decision. Not only are disputes between citizens not being properly resolved but disputes where the Government is being held to account through judicial review are rarer and rarer.When I started working in law community organisations would—not every day but quite frequently—challenge illegal acts or unreasonable acts of government. Now you see that very rarely. The Environmental Defence Society and the New Zealand Fish and Game Council had to spend many hundreds of thousands of dollars to litigate the plan in the Manawatū and even then the regional councils effectively thumbed their nose at them after they had spent all that money—perhaps partly in the knowledge that they could not afford to litigate the issues. These problems relating to access to justice will not be resolved through this legislation. I have some views that we need to simplify our civil procedure rules. We need to trust judges and expect judges to control their courts. They should be expected to dispense affordable justice. They need to avoid a lot of the pre-trial interlocutory processes that so drive up cost and that can be used by rich litigants to avoid justice at the suit of a poorer party because they can effectively outspend them and delay justice and actually avoid justice in some cases. Sadly this legislation does not fix those problems."