Franks Stephen: Judicial Matters Bill — In Committee Procedure 
Franks Stephen: Judicial Matters Bill — In Committee Procedure 
[Volume:617;Page:12886] 
STEPHEN FRANKS (ACT) 
: 
 Part 2 of the Judicial Matters Bill will become a whole series of changes to the Acts under which our judges are appointed—judges of the Environment Court the Family Court the Employment Court and the High Court and even coroners. 
Very significantly the bill allows the Attorney-General to appoint part-time judges. This was justified to us on the basis that it would make more people willing to offer themselves for appointment and that it would enable women who for example have family responsibilities to hold judgeships and contribute to some extent. It was also justified to us on the grounds that there are judges from time to time who have commitments arise that have not been anticipated and they should be allowed to continue part-time. ACT was not opposed to that kind of flexibility but we find after a bit of probing in the bill that simply allowing flexibility might have been the last thing on the Attorney-General’s mind. The Justice and Electoral Committee was properly concerned about the potential for panel packing. There may not be an actual intention to panel pack—that is to ensure there is a big enough pool of judges for the Chief Judge to allocate a matter to a judge known to have the right predisposition. The problem is the appearance of panel packing and the possibility of subverting what has been a part of our law for generations—namely a limit on the number of judges so that the politicians cannot do what has been done in many countries when they have not liked what the judges are doing and that is to appoint judges more to their taste. 
In short this bill allows the Attorney-General to appoint an almost infinite number of judges. Although the number of High Court judges is fixed at 55 and the number of district court judges at 140 the bill says that a part-time judge is counted as a fraction of a full-time judge. For example by appointing 20 judges who each work 1 day a week the Attorney-General would have a chance to stack the judiciary using the equivalent of only five judge spaces. One judicial space one vacancy could be taken up by up to 10 extra judges if she chose to appoint them on the basis that they do half a day each. That may be an extreme but I offer it to the Committee to consider the constitutional implications of this change. 
Why is it sinister? Because it would have been very easy for the Minister to have instructed her officials not to oppose a really simple reassurance to us all that that was not her motive. We discussed in the select committee putting in a limit that no more than say 25 percent of the judges could be part-timers. We were told that this power would be exercised rarely. We were told not to worry because the Chief Judge was in a position to approve or not approve someone going on part-time work. But of course the Chief Judge might have her arm up her back. The Chief Judge might be desperate to have some extra capacity and would not have a choice if the Attorney-General—an Attorney-General who is not trusted in this country—decided that she wanted some of her mates on the bench to fill up all the vacant slots. That might be the best that the Chief Judge could get. 
Worse still the Labour majority on the select committee would not allow this bill to remove the power of the Attorney-General to decide who gets to be a part-timer when and for how long. Each court which should be governed by its own judges through the Chief Judge should at least have been allowed the power to decide which judges will be part-time and when. Instead the Act expressly states that it is the Attorney-General who decides when a judge can go on light duties and when a judge comes off them. 
This is not just point-scoring; this is a serious constitutional matter. For generations we have had in our law that when the number of judges has to be increased it must be done by Parliament. That gives Parliament a chance to debate whether the reason for the extra judges is because our legal system is going wrong. For example it is quite proper that we have a chance to debate the number of Family Court judges because 2 years ago we passed a bill that effectively married 200000 couples and that measure inevitably increased the load on the Family Court. That is a proper matter for political debate. The Attorney-General can now sidestep that by making a series of part-time appointments thereby filling up the slots. The moment she changes them from part-time to full-time there is no vacancy. In other words—and I do not know whether the National Party or New Zealand First have realised this; I must say it had not occurred to me—there is a strategy here open to the Attorney-General to fill up the available slots in the judiciary for the foreseeable future. All that she needs to do is appoint judges as part-timers and then it is in her gift to convert them to full-timers as and when a vacancy occurs so that there are no more vacancies for some time. 
This is not a light issue. I am astonished that the Greens have allowed this to happen. I can see why Labour might want to do this. It has an agenda. It wants to change our constitution and it does not want to have to go to the people on it. Labour does not want referenda. It does not even like having this issue debated in Parliament. It will quite happily push these things through on a bare majority. In this case Labour is pushing it through without even the judiciary or the profession approving of it. 
It is also astonishing that this issue has not been noticed by our media. We have here a power to stack our courts with political mates of the politicians in rule from time to time and their decisions are now out of reach of reversal by a patently independent court in London. When we are in power I would not want to have the temptation offered by this bill. I would much prefer that it was locked away. With the best will in the world I will be quite convinced that people I know will be better judges than the ones whom Margaret Wilson mixes with. I would love to be able to reduce the flexibility for a succeeding Government to appoint a judiciary to its taste but this bill now makes it possible to sidestep the provisions that we have had in our law for so long to try to prevent that. 
This issue is not something that should be pushed through with disinterest. I am glad that United Future is voting against it and that New Zealand First agrees with us. I have appreciated the historical survey that Mr Richard Worth has given us and Dail Jones’ reference to the submitters. Yet at the moment it does not seem to have a political cost. I think the Labour Party members should reflect on the fact that it will. When the collective impact of this kind of change this kind of high-handedness with the constitution is recognised it might explain to them why they have had such a shocking and unexpected reversal in the polls. It might explain why what Labour thought was an innocuous or simply scurrilous speech from Dr Brash touched a nerve with people who have lost trust in the Government. It is because of this kind of change this kind of sneakiness this view that propriety does not matter and that the Government does not need to get consensus before it imposes its social views to engineer New Zealand. 
So we get all these provisions in Part 2 applying to the Youth Court the Family Court the Environment Court the Employment Court and worst of all the High Court where the Attorney-General gets the power to appoint a nearly unconstrained number of judges—to decide what hours they will work. It is an odd provision anyway. From the language all that it says is that part-time judges are treated as the appropriate fraction of a full-time judge and that they are paid a pro rata proportion. What is the fraction? If the Attorney-General says that judges are working 1 day a week what happens when they are thinking about their judgment in the shower if they take it home at night or if they work on it on other days—trying to catch up with a backlog—when they are not supposed to be working? Does the judge potentially come back and say that the pro rata proportion should be more? Will the Chief Judge back them in a claim that what they are expected to do in their 1 day is not possible?