Graham Kennedy: Judicial Matters Bill — In Committee 
Graham Kennedy: Judicial Matters Bill — In Committee 
[Volume:661;Page:9517] 
Dr KENNEDY GRAHAM (Green) 
: 
 I pick up where I was before. My comments are essentially very much concurrent with those expressed by Mr Chauvel but I must say that they were arrived at independently in terms even of our initial approach to Supplementary Order Paper 108. I take on board all the points made by the honourable Attorney-General and in light of his explanations the Green Party has resolved to support Supplementary Order Paper 108. 
But for the reason that was just cited—namely that this issue will not go before a select committee but will be dealt with here in the Committee of the whole House—I think it is very important given the fundamental nature of what we are about here that we explore it a little. I draw to the Committee’s attention the fact that the Supplementary Order Paper would in effect specify that a higher duties allowance is payable only to a judge who—and this is a drafting point—“is or was not a Judge of the Court of Appeal holding office” under the Act. The purpose of this provision is that such allowances will be payable only to judges from the High Court who are serving temporarily on the Court of Appeal. 
I make two points. One is essentially a drafting point I guess and one is of substance. On the first I may stand corrected but if I am right the Government can convey its appreciation later. It is just a point of syntax. A strict reading of the Supplementary Order Paper would have the allowance paid only to judges who either are currently judges of the Court of Appeal or who never were. That surely is not the intention. I repeat the phrase: a judge who “is or was not a Judge of the Court of Appeal”. Surely that is not the intention. Surely it is better to have it read: “payable only to a judge who is not or was not a Judge of the Court of Appeal.” But enough of that; I will leave that to the drafters. 
The point of substance concerns the reason for the amendment; it is because of an administrative error that was recently uncovered as has been noted. At present the relevant Act refers only to permanent judges and High Court judges who are temporarily seconded to the Court of Appeal do not qualify as permanent judges of that court. They are therefore under the current legislation not eligible for any higher salary when they serve in that court. For the past 11 years from 1998 to this day they have been paid what is called a higher duties allowance. The problem is that under existing legislation what they are being paid is not strictly an allowance either. The Ministry of Justice largely unfazed by the constitutional niceties got around the vexing problem back in 1998 by bureaucratic decree. To quote the Ministry: “Although the difference between the two salaries is labelled an ‘allowance’ it is not actually an allowance in the sense that term is used in the Judicature Act. The payment of seconded Judges’ salaries in this manner (ie using the administrative tool of a ‘higher duties allowance’) is done for administrative convenience as it enables seconded High Court Judges to be paid the salary of a Judge of the Court of Appeal while sitting as a Judge of the Court of Appeal without having to alter the payroll system. The term ‘allowance’ is used because it is one that is recognised by the automated payroll system.” 
Fantastic: this is just an administrative sleight of hand to solve a day-to-day problem. But is it? Well no it is not. In fact the payment of this allowance has become an issue in the courts where it has been argued it has constituted an unlawful payment by the executive branch of Government directly to the judge in breach of the ancient constitutional principle of non-interference in judicial salaries. The High Court as the Attorney-General noted ruled on this matter in July 2008. In that ruling the judge held that “The constitutional importance of arrangements concerning judicial salaries is such that there must be a clear statutory basis for all amounts paid to Judges by way of salary and allowances.” Given the constitutional importance of judicial salaries he considered that payment of an allowance to a High Court judge sitting on the Court of Appeal should rest on a more secure constitutional foundation than was apparent in the evidence before him. The Attorney-General has essentially explained that to all our satisfaction. The issue said the judge was the effect that the making of the payment if it were unconstitutional might have on the independence and impartiality of the courts. Such concern related to the constitutional position of the judiciary as a whole. 
So we are not dealing with administrative trivia here; we are talking about fundamental issues of our constitution as Mr Chauvel has pointed out—namely the independence of the judiciary from the executive. It seems that for the past decade New Zealand’s constitutional stability has basically been held hostage to the whims of a computer programmer or to put it another way the payroll system of the Ministry of Justice was unable to accommodate our constitution. The effect of all this is that the legislature is asked to retrospectively validate financial payments to the judiciary which the executive through administrative convenience has made if not unlawfully then certainly on an insecure constitutional foundation. That is the judgment of the Supreme Court. Clearly the Government concurs because if it did not it would not be submitting the Supplementary Order Paper to make payments rest on a secure foundation. 
The outcome is that this Committee is being asked to retrospectively validate payments over the last 11 years. I have to say that I do not enjoy being asked to retrospectively validate anything certainly not financial payments to the judiciary and certainly not when I am being assured that those payments have rested on a shaky constitutional foundation. Given that concern the Green Party gave consideration to opposing Supplementary Order Paper 108 not because we oppose the payment to judges and not because we seek to keep the constitutional foundations or the separation of powers insecure but because of a reluctance to endorse retrospective legislation. 
The Attorney-General has recently been good enough to provide us with the authoritative work on retrospective legislation: Burrows and Carter’s work  
Statute Law in New Zealand 
. The essential point in that work is that in essence retrospective legislation is objectionable only in three situations: if it takes away existing rights or defences if it makes things unlawful that were lawful when they were done or if it attaches a tax or liability to something done in the past. It seems that the higher duties provision in this Supplementary Order Paper does none of those things. In deference to the authoritative judgment we shall therefore support the Supplementary Order Paper. 
This is not intended as a rebuke of this Government or of the previous Government for that matter; it is more a call for greater acuity on the part of the executive essentially which was where the problem arose. Let us simply hope that we are not frequently asked to undertake this kind of retrospective wave of the legislative hand to cast a veil over the accumulated shortcomings of a harassed executive for the sake of a resource-constrained judiciary. It is an unedifying action for all three branches of Government and the less we have to resort to this kind of thing the better off we all are.