O'Rourke Denis: Register of Pecuniary Interests of Judges Bill — Second ReadingText is incorporated into the Bound VolumeO'Rourke Denis: Register of Pecuniary Interests of Judges Bill — Second Reading[Sitting date: 03 December 2014. Volume:702;Page:1134. Text is incorporated into the Bound Volume.]DENIS O’ROURKE (NZ First):New Zealand First originally supported the Register of Pecuniary Interests of Judges Bill because some cases in recent years appeared to indicate that legislation would be necessary to ensure transparency in respect of judges’ interests and to provide a solid means to ensure avoidance of conflicts of interest.I think it is important that we note the principle that people involved in decision making—whether that be in the judiciary or in politics or in business—and who make decisions in the public interest need to be prepared to give up a degree of personal privacy so that the public can have confidence in conflict of interest situations that might arise.In my first reading speech I said that we needed to show an effective means of avoiding conflicts of interest for judges and that I could not see how that really could be achieved without legislation. However having participated in the select committee process and having heard the submissions including written submissions from the judges themselves and submissions from several others especially the Law Society and the Bar Association I now think differently and New Zealand First will now not support the bill. Nevertheless I do wish to commend Kennedy Graham for promoting the bill because his concerns about the situation were certainly justified.The process of considering the bill has led to greater understanding amongst not just MPs but many others in the community as well. Most particularly the judiciary has moved to beef up its procedures in respect of the recusal of judges since Justice Wilson failed to recuse himself in the Saxmere case. In those ways the bill has already been a considerable success. The fact that it is now unlikely to pass does not detract from that.The current law on whether a judge should sit or not on a case due to apparent bias has now been clearly stated in the Court of Appeal in respect of the Saxmere case and I quote as follows: “ … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not be able to bring an impartial mind to the resolution of the question the judge is required to decide.” The law at least now is clear but Parliament still needs to be satisfied that the processes for recusal are robust and that in fact a register of judges’ interests is not now needed. As other speakers have said the Law Commission issued a paper back in 2011 on this. It recommended that such a register not be legislated for because it felt that it was not the best solution to deal with conflict of interest issues.The central issue is that the public must be satisfied that the judges are deciding cases in a way that is fair and impartial. If a judge does in fact have a pecuniary interest in the outcome of a case he or she must be automatically disqualified from hearing it. Where there is doubt there is a duty on the judge to disclose that to the parties present to invite their comments and then to make a reasoned judicial decision. Failure to disclose a conflict of interest will of course amount to misconduct and no doubt a complaint to the Judicial Conduct Commissioner. The Court of Appeal has itself adopted an internal protocol for managing potential conflicts.I think that when you look at all of that we can conclude that there are indeed very robust requirements which the public can have full confidence in. The existing law the appeal processes the guidelines for judicial conduct the bench protocols as well as the judicial complaints process in my view are clearly sufficient to address any conflicts that may arise. Therefore a register of pecuniary interests of judges is now not necessary to achieve the object of fair and impartial judges not tainted by personal conflicts of interest.But there are several other good reasons as well for not having such a register and the submitters listed several of those. Some of them are these: first of all that there would be a serious risk to judges’ privacy; that there would be scope for abuse of information disclosed by judges; and that a register could result in intrusion into the personal affairs not just of the judge but of the judge’s families and could create opportunities for harassment for disgruntled litigants. I agree with the Attorney-General on that issue that there are many who are disgruntled and will find ways of expressing that. I am sure that if there was a register they would use it for that purpose without any hesitation. In addition to that there would be a significant administrative burden that would accompany a register and its maintenance and it might also cause delays in hearings that would otherwise be avoidable.Most particularly I think there was a real risk that the ability to recruit and retain judges of a high calibre could be compromised if they saw that they had to enter into a register of pecuniary interests in the way suggested.In the end although the idea of a register of pecuniary interests for judges was well worth investigating that having been done it is clear that such a register is now not necessary and that it in fact does have some significant downsides. On balance New Zealand First will not be supporting the bill because we do not think it should be passed. We feel that those provisions that are already in place for recusal which have been upgraded and improved in recent times since the Saxmere case are actually sufficient and nothing further is needed.