Smith Murray: Third Readings 
Smith Murray: Third Readings 
[Volume:617;Page:12944] 
MURRAY SMITH (United Future) 
: 
 United Future opposes the Judicial Conduct Commissioner and Judicial Conduct Panel Bill and the other bills into which the Judicial Matters Bill has been divided. However we support the Government’s decision to set up the office of Judicial Complaints Commissioner which will operate outside the judiciary. It offers a number of positive features. Firstly it centralises the complaints process. At the moment complaints are directed to the heads of bench from various courts the Department for Courts the Ministry of Justice and the Attorney-General. As the public gets used to the system complaints will be centralised in one place. That will result in more reliable statistics on the number of complaints made against judges. The statistics will be able to be objectively appraised and we will quickly learn of any problems arising within the judiciary. Those matters no doubt will be raised with the various heads of bench. 
The legislation also makes dealing with complaints the key function of the commissioner instead of it simply being an ancillary function of the various heads of bench. We will therefore be able to gauge any loss of confidence in the judicial system and hopefully can nip it in the bud. I have no doubt that although the legislation does not have any legislative provisions for the sanctioning of judges—and I will refer to that again shortly—the commissioner will have the ability informally to have quiet words with heads of bench if the commissioner sees some trend occurring either in a particular judge or among judges and therefore pass the message on. 
But United Future cannot support this legislation because the Judicial Conduct Commissioner is a stand-alone function and we believe that that will cause a huge amount of problems for the way that the commissioner starts life. The judiciary does not want this Judicial Conduct Commissioner and therefore the commissioner will start life behind the eight ball. Winning the confidence of the judiciary and proving its worth will be a task that the commissioner finds hard to do when starting from behind. 
That could have been avoided with a wider review of judicial processes especially the appointment process for judges but also judicial training and education and the amalgamation particularly of the complaints function and the appointments function into one body. The implementation of a Supreme Court for New Zealand was a development that screamed out for a review of appointment procedures. For the first time the Attorney-General has almost total control over the appointment of the judiciary in all levels of our system. The Government I note reluctantly has issued a discussion paper on judicial appointments commissions but with no commitment whatsoever beyond simply issuing the discussion paper and receiving the responses. It has done that simply to get the Greens’ vote on this legislation and see it passed. The lack of backbone of the Greens in this respect is very clear. 
In turn National’s approach is nonsensical constitutionally naive and visionless. National says that there is no need for the legislation—that it has never been used and therefore is not needed. However by way of an example National refers to the case of Justice Worley Bassett Edwards who in 1913 started getting into serious difficulty in the eyes of the profession because his courtroom behaviour had become intolerable. There are reports even at that stage in 1913 of his bias towards a female respondent in a particular case but also of his attacks on the legal profession. The Auckland law society—a conservative body I am sure at that time—was moved to pass a resolution stating “with deep regret” its conviction “that the administration of justice had been imperilled and public confidence in the Supreme Court shaken by Mr Justice Edwards’ failure in recent years to maintain that judicial and impartial attitude in civil cases which had distinguished the holder of such an office”. An overwhelming majority of Auckland lawyers signed it. What did the Government do? Of course it sent him to Wellington thinking that Wellington was a softer touch. But even the then Wellington law society complained about it. This matter was taken to the Attorney-General and Minister of Justice who of course was in a position to move the removal of the judge but he simply said the Government would not take any steps. Therefore nothing was done about the judge until he was retired early in 1921 on a full pension with £1000 in compensation. 
So for National to say that effectively this legislation is not needed is nonsensical. Clearly if Justice Edwards had been facing this legislation a public complaint or lawyers complaining to the commissioner would have resulted in an inquiry by an independent body and quite likely a conduct panel would have been formed and the matter would have proceeded. 
National also says that the legislation should provide for heads of bench to discipline judges and that there should be an outline of some of the abilities they have in order to sanction judges—such as censure counselling and public apology. However to do that goes against the separation of powers and I believe that it is constitutionally naive for National to think that effectively putting statutory obligations on judges to censure will do anything but try to fuse the separated powers instead of keeping them separate. For heads of bench then to be subject to court action because they have not sanctioned or have not taken or considered taking steps would be intolerable. It would open up a situation where people sued heads of bench for that and also where criticism was encouraged within the legislative branch of Government of the fact that judges were or were not upholding certain provisions. It seems to me that that is a step we ought to be extremely reluctant to take. I think that the leaving aside of the things that judges can do—the sanctions that they can take as a statutory function—is the proper course. 
The National Party’s approach is also visionless. It says that it thinks there should be a review of appointments but states nothing in terms of what its alternative policy is. Does National support a judicial appointments commission or has it not even thought about it? What would it do? I challenge National to come up with some sort of policy on this rather than simply saying that appointments should have been considered. That smacks of the same visionless statements that we see from National throughout where it is very quick to criticise but very slow to provide any constructive alternative. 
Judicial appointments commissions exist in a number of countries—Canada New South Wales the Caribbean and Britain. This legislation was an opportunity to have a commission that would cover appointments complaints and an educative function. The opportunity has been lost. Even as notable a figure as the Hon Sir Anthony Mason has recommended independent commissions and has pointed out that if there is a complaints commission it is important that it is not simply a commission that does that solely. He said: “If the system of accountability for less serious complaints is sufficiently open and transparent it will go a far way to satisfying the demand for judicial accountability as long as it is coupled with (1) a mechanism for handling serious complaints on grounds justifying consideration of removal and (2) the provision of education research and other assistance to judges. From the perspective of accountability the principal emphasis should be placed on processing serious complaints and the accountability complaints function should be seen as part of a total function which has as its object the enhancement of judicial performance and judicial services. The fact that a body is intended to enhance judicial performance and services will create a much more positive impression.” 
That is what should have happened here. The warnings are there that a complaints process by itself will cause far less acceptance by the judiciary. There was no urgency to put this legislation through before the whole area of judicial appointments was considered. The Government should have got the discussion paper out sooner it should have waited till it had run its course before going ahead with the Judicial Conduct Commissioner and it should have issued the statutes in conjunction with the creation of a judicial appointments commission. The way that the Government has gone about it seriously undermines and will seriously undermine the effectiveness of the Judicial Conduct Commissioner because of its rashness.