Franks Stephen: Supreme Court Bill — Third Reading 
Franks Stephen: Supreme Court Bill — Third Reading 
[Volume:612;Page:9103] 
STEPHEN FRANKS (ACT) 
: 
 It is a defining moment when a court is born in these circumstances. Every decision it makes for the next few years will be scrutinised to see whether indeed we have ended up with hero judges. I shall read a description from a paper in Australia that is very influential: “Hero judging signals the reversal of time-honoured beliefs about the role of judges—transforming them from guardians of liberty with a healthy suspicion of Governments into partners of the politicians working to strengthen rather than limit the role of Government. It asks judges to participate in economic social and political governance and sets tasks for which they are ill-suited. Hero judging is profoundly antidemocratic because it allows unelected and politically unaccountable judges to participate in Government. It allows elected politicians to avoid dealing with politically sensitive issues by transforming political issues best decided through the give and take of the political process into legal questions of right and wrong.” 
That is what this is about. That is why 80 percent of people want a say. There may be many who think that hero judging is a good idea. Others are starting to sense that there can be no other reason for the false arguments and claptrap that has surrounded this debate. The only argument that remains after the select committee consideration and the Committee stage in this House is one of national pride—the so-called “maturing as a nation” argument. The other two were clearly falsified by the evidence and no one now tries to sustain them—that is the argument of cost and access to justice. 
On the argument of cost this legislation will cost New Zealand at least $27 million more than we spend at the moment on appeals to the highest level. This Government—on the argument of access—will put families who have been through the Family Court farmers and business people and someone who wants to build a granny flat who have been through the Environment Court and workers and employers who have been through the Employment Court through three stages of proceedings. 
That is not justice. That is litigation savagery. To have people required to go through three stages instead of two is not something suffered by the Australians or the British. In Britain the number that go through two stages of appeal to a third court is one per million in Australia it is about four per million and in Canada it is about three per million. Under the heading of “Access” this Government is planning to put 12 per million through our Supreme Court. 
That of course does not add to justice. It simply adds to uncertainty especially when we see what lies behind the Attorney-General’s promotion of this bill. All those extra appeals that will go not just two stages but three—except one special area—will be on law and fact. Typically appeal courts do not go through the facts again because that is torture. That is exposing people to enormous expense. The Attorney-General has carefully changed perhaps 10 different Acts to make it plain that there can be appeals to the Supreme Court on both law and fact. However there is one very telling exception. That exception is in employment law. Employment law appeals can go only on the law. 
I wonder why that would be. I believe that it is very clear. As time went on the Attorney-General still would not state a simple process for appointing judges to the Supreme Court. She will still not unequivocally acknowledge that it will be the senior judges from the Court of Appeal. She still will not accept any process or mechanism to ensure that it is not politically stacked. She can see that she will not get away with more than one or at most two odd appointments. She does not want this new court to be dealing with her baby the employment law. She does not want them re-examining Judge Goddard’s findings until a year or two down the track we find that that Supreme Court is starting to get on it the people that she is appointing at the lower level. 
That is a postponement because she knows she will get to stack the court through the appointments at the lower level. A court that starts off like that is not a celebration of nationhood. It does not give us pride. It will make our law process a nonsense. As the Leader of the Opposition Mr English said this is a day for shame. As Mr Peters said this is the worst kind of start or birth for a new court. 
 Labour members and their proxies in the Greens in their arguments also talked frequently about a court for the fat cats. Did the patient in the Bottrill case think she was a fat cat when she got the Privy Council to overturn the establishment view in New Zealand and allow her to challenge the decision that she could not sue for the negligent cancer diagnosis? Is she one of the Labour Government’s fat cats? What about the more recent case concerning the man who cannot be named who took on theChildren Young Persons and Their Families Service because the New Zealand Court of Appeal said that negligent investigation of an abuse case cannot be a matter for litigation in the New Zealand courts? 
Antonia Fisher came before the select committee because of the experience she had had acting for the women in the Bottrill case. Mr Chris Sygrove told me it took only $60000—and every dollar of it well spent—for the man who had been so badly treated in the child abuse investigation by Children Young Persons and Their Families Service. 
And there is more. In the Taito case Mr Tony Ellis and Mr Shaw went to the Privy Council to get the legal aid appeals decision reversed and it took $25000. They considered that every dollar of that was well spent. Of course because they won it was reimbursed by legal aid. If this Government were really interested in access to justice it could send every person who goes near the Privy Council to London and back in a private jet. The amount the Government is spending for this new court works out at $150000 per extra appeal. Appellants could go backwards and forwards in a private jet two or three times—unless they were Mr Tamihere who wrote in the newspapers that it had cost his folk more than a million dollars for their appeal and they failed. Of course they failed; the rich are Mr Tamihere’s urban Maori. 
Ron Mark 
: Mr Tamihere is one of them. 
STEPHEN FRANKS 
: That is right the fat cats! The venom of Mr Tamihere is probably because the real fat cats lost. 
What is the outcome? What will happen? We will have a court born in this state because the Attorney-General made absolutely no attempt to get consensus. She never approached any member on this side of the House as far as I am aware or even the Government’s friends in United Future to discuss a way of appointing judges that might reassure people it was not part of an agenda to stack the court. As Mr English suggested she did not even bother to deal with the first appointments as a separate matter. She did not bother to get the retired judges who were making silly observations about there never having been political appointments to consider the situation across the Tasman. 
I asked the Parliamentary Library to look at the appointments to the High Court of Australia and when I stopped at Lionel Murphy’s name which must be the high point of appointments to the highest court 17 of the first 33 Australian High Court judges had served as politicians. Why would New Zealand be different? It has not been a stacked court in our appointments to date because it simply has not been worth incurring the political cost. What Government would bother to stack a New Zealand court when we can appeal to a patently impartial independent set of international referees? Of course it would not. But the past is no guide to the future. Because the Minister rejects our past rejects tradition and wants the future to be different we are going into this with absolutely no protection against a stacked court other than the assurance that the Solicitor-General—the Attorney-General’s chief employee—and Sir Paul Reeves will be giving her advice.