Franks Stephen: Supreme Court Bill — In Committee 
Franks Stephen: Supreme Court Bill — In Committee 
[Volume:612;Page:9054] 
STEPHEN FRANKS (ACT NZ) 
: 
 I am sorry to be debating Part 2 of the Supreme Court Bill. I am sorry we are on Part 2 because on Part 1 where the issues that Part 2 now deals with in terms of transition were decided I did not get more than 5 minutes. I did not get any chance to cover in Part 1 what I now have to deal with where it arises in Part 2 on the matters that a proper transition would deal with. A proper transitional provision would have actually dealt with the method of appointment. It would have dealt with the concern that so many New Zealanders have about the political influences that this court is exposed to. A proper set of transitional provisions would have recognised that this is a one-off when one is sacking one’s entire top court and replacing it with another brand-new court of people appointed by the Attorney-General. 
The transitional provisions would have provided or should have provided for a special one-off regime at the very least for that initial set of appointments. It would not have been left to Government Ministers to leak that they thought they would get the Attorney-General’s arm up her back far enough simply to move Court of Appeal judges upstairs. We would not have had 8 months of speculation about who she might be going to appoint—that has been very damaging to this court. If right from the start there had been a proper transitional provision in Part 2 that said exactly how these judges were going to be selected or if there had been a ministerial statement along the lines that we have seen perhaps forced out or extracted in the last few days there would have been quite a good deal less damage to the judiciary in this country. As it stands we are stuck with the Part 2 that we have. 
We are up to clause 43 after the ACT party has had 5 minutes in this debate on all the substantive clauses. Let us start with clause 43A “Technical advisers” a sort of hasty cosmetic change that the select committee managed to get in. It allows technical advisers to sit in criminal cases. I asked during the select committee process what the effect of that was on the very longstanding requirement of our justice system that an accused know the nature of the material before the court on which his or her guilt or innocence would be based or on which the sentence would be founded. There was no assurance to the select committee that the advice tendered by a technical adviser appointed in a criminal case would be available to the accused. So this Attorney-General and this Government with a mere flick of the pen in what they claim is not a constitutional element get rid or potentially get rid of a fundamental provision in our criminal law. 
Clause 43A states that a court can appoint technical advisers but there is no protection there. There is no assurance that the accused or the accused’s counsel will know what kinds of representations and what influences will be brought to bear on the judge in that case. That is not a light matter. Why was it done? It was done I think because the select committee was so embarrassed at having had such overwhelming evidence that there was nothing to support this bill except primitive nationalism that the majority on the select committee were desperately keen to make some changes that would look as though they had addressed their minds to the issues. 
The select committee got through to clause 43A having dismissed its own misgivings about the appointment process and having dismissed its own misgivings about the number of judges by providing that there might be five or six—knowing full well that the Attorney-General only ever wanted five and that she could ensure that temporary judges made up the numbers whenever there was a shortfall; temporary judges of course being much more selectable and biddable than judges with secure tenure. 
So the committee got to the stage of clause 43A and wanted to show that it was actually addressing its mind to doing something and was prepared to change something in a bill that it was otherwise being whipped to pass. That I believe is why we ended up with a provision so poorly thought through that it changes the composition of the court. It is no good saying a technical adviser is not the judge.