Finlayson Christopher: Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill — First Reading 
Finlayson Christopher: Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill — First Reading 
[Volume:640;Page:10290] 
CHRISTOPHER FINLAYSON (National) 
: 
 National will support the first reading of the Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill and its reference to the Justice and Electoral Committee. 
The explanatory note of the bill states that clause 4 addresses what is alleged to be the inherent conflict of interest that permits “serving Judges of the High Court or Maori Land Court (including the Chief Judge”—Joe Williams—“of the Maori Land Court) to serve as members of the Waitangi Tribunal.” I wonder whether this is in fact an inherent conflict of interest. That is what the select committee will need to examine. 
Conflicts of interest can arise in a number of ways and people in private and public life who are in certain positions need to take care lest they find themselves in one. For example lawyers can find themselves in a conflict of interest when they act against a former client when they act for more than one party in a transaction or when they place their own business interests above their professional responsibilities. Indeed the law reports are replete with cases where courts have found against lawyers in those sorts of situations. 
The most recent report of the Auditor-General on the subject provides very good guidance for public officials and their need always to avoid a conflict of interest. But I am not sure that there is necessarily a conflict of interest as articulated by Mr Paraone in his speech. After all it is not uncommon for a judge of one court to sit in another court. For example judges of the High Court sometimes sit in the Court of Appeal on the criminal appeal or civil appeal divisions and District Court judges sometimes serve on other courts like the Environment Court. Sometimes they may even obtain a warrant to sit as a temporary judge of the High Court. 
So I do not know that there is an inherent conflict of interest in a judge of either the Maori Land Court or the High Court sitting on the tribunal. But because of the serious issues the bill raises I think it can do no harm to have a good look at the issue given the hugely important work of the tribunal whose workload I am sure will increase when National gains office and treats the Treaty negotiations process as something into which energy and practical idealism should be injected after 8 years of negligence from this Labour Government. 
When the New Zealand First member replies I will be very grateful if he could address a rather sweeping proposition that judges of the High Court or Maori Land Court preside over matters on the tribunal when they may have presided over matters in the High Court or Maori Land Court because I would venture to suggest that such a situation would never occur for a number of reasons. 
First the jurisdiction of the courts in question and the tribunal are completely different. The tribunal’s jurisdiction is conferred by the Treaty of Waitangi Act 1975. As we know the tribunal has all the powers of a commission of inquiry and is set up to investigate breaches of the principles of the Treaty of Waitangi. Given that that issue is before the Justice and Electoral Committee tomorrow I would note that if the member’s Principles of the Treaty Deletion Bill is passed I cannot see what work the tribunal would have to do because it is set up to examine breaches of the principles of the Treaty. 
The jurisdiction of the Maori Land Court is derived mainly from section 18 of Te Ture Whenua Maori Act 1993. The High Court was reconstituted by section 3 of the Judicature Act 1908 as a court of record for the administration of justice throughout New Zealand and by virtue of section 16 continues to have all the jurisdiction that it had on the coming into operation of the Judicature Act 1908. It also has all judicial jurisdiction that may be necessary to administer the laws of New Zealand. In practical terms its workload is completely different from the work of the tribunal. 
The only time the work of the tribunal may be raised in the High Court would be if someone sought judicial review of a decision of the tribunal by applying under the Judicature Amendment Act of 1972 and that has happened on a number of occasions over the years. In jurisdictional terms I cannot see how the different jurisdictions of the tribunal and the courts can intersect. If however there was an application for judicial review of the tribunal then it would be unthinkable for a judge presiding over the Waitangi Tribunal that made the decision under review also to preside in the High Court. He or she would automatically recuse himself or herself. The example provided for in the explanatory note of the bill in my opinion does not have any merit. 
From time to time some people have raised the concern expressed by Pita Paraone in his bill but for reasons other than those advanced tonight. It has been said for example that judges deal with legal questions whereas tribunal members by virtue of the jurisdiction of the tribunal are actually advising Governments and are dealing with contemporary and also historical issues and some say that this is not necessarily an ideal position for a judge. 
For myself I have a few difficulties with this argument. As I said earlier a tribunal has all the powers of a commission of inquiry under the Commissions of Inquiry Act 1908. It is a semi-judicial body although its procedures are not the same as those of a High Court. It is more inquisitorial than adjudicative and the rules of evidence and procedure are somewhat more relaxed than those that apply in the High Court. In other words it is not a court of record which issues judgments. Its findings are recommendatory only save in a few respects. But examination of this issue could be a useful one for the select committee to undertake. 
The most meritorious argument in favour of preventing judges from sitting on the tribunal is that tribunal members could then be full-time with tribunals almost sitting full-time. I know from my own experience at the Bar that nothing is more taxing than a hearing week in the tribunal. I well recall a hearing of the Wai 785 tribunal at Omaka Marae near Blenheim in late 2003. The tribunal had money to enable a week of hearings to take place and Judge Isaac’s diary had a free week. Accordingly the tribunal sat for 5 days but because of the time pressures the tribunal started at around 8.30 a.m. and went through until 6 p.m. That meant that the poor lawyers had to work late into the night having discussions with their clients and then either briefing evidence or preparing for the next day’s cross-examination. 
If tribunals could be resourced so that they could sit more regular hours without that kind of pressure I think the interests of justice would be served and the work of the tribunals would be that much more effective. This is a very important issue that needs to be discussed for that reason more than the reasons that Mr Paraone has mentioned but none the less I think it is an important issue justifying the bill’s reference to the Justice and Electoral Committee. I feel confident that the select committee should be able to consider these issues receive submissions and determine whether the concerns raised by the bill are realistic or not worthy of further consideration. 
For these reasons because of the importance of the issues and because of the hugely important role that the Waitangi Tribunal plays in the justice system of our nation National will support the first reading of the bill. I hear what the member says about its reference to the Justice and Electoral Committee. Perhaps—and it is for the member to decide because it is none of my business—it could go to the Maori Affairs Committee. As my friend knows that committee is not exactly overwhelmed with work at the moment so perhaps it could be in a position to give the matter more careful and detailed consideration than the very busy Justice and Electoral Committee. Given that I serve on both committees I am indifferent but as I say it is none of my business. Ultimately it is a question for the member whose bill this is. 
In conclusion National supports the first reading of the bill and its reference to the select committee so that these important issues can be properly canvassed.