Judicature Amendment Bill (No 3) — Third Reading 
Judicature Amendment Bill (No 3) — Third Reading 
[Volume:630;Page:2538] 
Judicature Amendment Bill (No 3) 
Third Reading 
Hon JIM SUTTON (Minister of State) 
 on behalf of the 
 Minister for Courts 
: I move  
That the Judicature Amendment Bill (No 3) be now read a third time 
. This bill amends one of the most important pieces of legislation in this country. The Judicature Act 1908 is the cornerstone legislation for New Zealand’s senior judiciary and our higher courts especially the High Court and the Court of Appeal. Court rules made under the Act govern the practice and procedure of our courts of general jurisdiction. 
The bill makes a small number of amendments principally to assist the work of the Court of Appeal. The Court of Appeal is the workhorse of the New Zealand appellate system. Its jurisdiction includes hearing appeals from judgments and orders of the High Court criminal matters on indictment in the District Courts judgments of the Employment Court and appellate decisions of the High Court on appeals from the District Court. The Court of Appeal is facing heavy workload pressures. A growing number of appeals are waiting to be heard and without additional judges that trend is predicted to continue to lead to negative impacts on timeliness and a corresponding erosion of justice. The Government recognises this problem and is addressing it in this bill by increasing the number of judges who may be appointed to the Court of Appeal. This is the first increase since 1987—goodness knows what the Government in between was doing. Because of the timing of last year’s general election the passage of this bill has taken a little longer than usual and I thank the court for its forbearance. 
The bill also amends the way in which the court may deliver judgments. A more flexible process will be set out in amendments to the court rules as is the practice for the Supreme Court and the High Court. Clauses 6 and 7 correct minor omissions arising from the legislation establishing the Supreme Court. Given the scale and complexity of the drafting for that reform it is remarkable that only minor corrections are required. Clause 6 goes further than a mere correction. Section 65 of the Act re-enacted section 14 of the Court of Appeal Act 1882. As the reference to tribunals may originally have had a different meaning and as the section is no longer necessary it has now been decided to repeal this section in its entirety. 
An effective and accessible court system is a fundamental part of any democratic society. This Government believes that court processes must adapt to new technology and that legal procedures must continue to evolve in order to ensure that our courts are as efficient as they can be and deliver a higher-quality service to the public. I welcome the House’s agreement to the inclusion of a small amendment to enable the use of videoconferencing whereby an Associate Judge of the High Court may participate remotely in certain civil proceedings. The Government is committed to providing a modern effective and accessible court system in which the public has confidence by making small but important improvements. This legislation demonstrates that commitment. 
CHRISTOPHER FINLAYSON (National) 
: 
 As the acting Minister Jim Sutton said this bill gives some belated but much-needed partial relief to the Court of Appeal. Clause 3 which has not been amended since 1987 will have the effect of amending section 57 of the Act to permit the appointment of eight permanent judges to the Court of Appeal. 
The Court of Appeal plays a major role in the justice system of this country. It has been overworked for a number of years and it reflects no credit on the Government that it has taken as long as this for something to be done about it. At the very least there should have been amendments to the Judicature Act in 2004 when the Supreme Court was established and the Privy Council appeal system was let go. 
This provision is a major improvement. It will enable the court to sit in two divisions and will allow at least two judges to be working on their written judgments. Hopefully that will go some way to improving the procedures of our intermediate appellate court. 
 As I said in the second reading debate—and I also mentioned it during the Committee stage—it is a good first step but I think the time is coming when a leave provision needs to introduced. I also think the time is coming when the Law Commission’s report has to be dusted off. We need to consider whether appeals from District Court jury trials should go to the Court of Appeal as they do now or to a full court of the High Court. So that is the first part of this legislation. 
The second part improves some court procedures not just in the Court of Appeal but also in the High Court. The Minister referred to the minor amendment instituted by clause 5 which is about the procedures when judgments of the Court of Appeal are given. He also mentioned a minor change introduced by clause 5A on Supplementary Order Paper 21 dated 21 March whereby a judge or associate judge may by video link preside at a hearing of specified matters. 
Some concern was expressed in the Committee about this procedure and whether it could be used for nefarious purposes but in my opinion it simply reflects existing practices. I have been involved in a number of cases over the years where evidence at the trial—and not just interlocutory matters—has been taken by video link. I recall on one occasion having to get up very early to go down to the Auckland University video centre so that the evidence of an expert in a case could be taken from England. So new section 26IB in clause 5A is a standard change and it causes me no distress at all. 
The third part of the legislation rectifies an embarrassing mistake that reflects rather poorly in my opinion on this Parliament. Clause 6 which is in Part 2 provides that section 65 of the Judicature Act is to be repealed. Section 65 deals with decisions of the Court of Appeal whereby a case is removed to it and it provides that the decision of the Court of Appeal is final subject to an appeal to the Privy Council. That proviso was not repealed in 2003 when the Supreme Court Bill was being debated. It should have been. Other legislation was the subject of consequential amendment on the passage of the Supreme Court Act but for some unknown reason that particular section of the Judicature Act remained unchanged until someone in the Ministry of Justice apparently spotted the error after the Court of Appeal and the Supreme Court had mentioned it and it now forms part of this amending legislation. 
That is the kind of sloppy unsatisfactory drafting that bedevils much of our legislation. The mistake should have been picked up as I said a couple of years ago and it reflects no credit on this Parliament that we have this kind of sloppy drafting. Quite frankly we need to lift our game. So that is really what the bill is about—giving belated relief improving some procedures and stitching up an embarrassing mistake. 
But I want to end my third reading speech by saying that I think the time has come for more than just piecemeal reform of this legislation. As the Minister said this is the Judicature Amendment Bill (No 3). The time has come for us to take a good look at all the statutes governing courts and tribunals in this country and have a consolidated courts and tribunals Act that deals with the High Court the Court of Appeal the Supreme Court the Maori Land Court the Maori Appellate Court and certain statutory tribunals. 
I think the time has come for a consolidated statute. The Judicature Act 1908 is hopelessly out of date. When one reads the synopsis of the Act one sees that a large number of sections have been repealed. Part 3 is a splendid example of a miscellany of sections that deal with a range of matters that are not related to the establishment and constitution of the High Court and Court of Appeal. 
So I would strongly submit to the Minister that that is a useful exercise that could be undertaken by this Parliament. I am sure the Justice and Electoral Committee would enjoy the work of bringing together the key statutory provisions dealing with all the courts including the Maori Land Court and the Maori Appellate Court within one statute. 
I go further than that. I do not know whether the Minister read an exceptionally good address given last week by the President of the Law Commission of New Zealand Sir Geoffrey Palmer to the New Zealand Centre for Public Law at Victoria University. Sir Geoffrey Palmer was reflecting on law reform and the Law Commission after 20 years and said we need to try a little harder. That could be the subtext of this legislation tonight—that Parliament needs to try a little harder. 
One of the key matters he talked about was the accessibility of statute law in New Zealand. He made the comment that the New Zealand Parliament is the fastest lawmaker in the West and that massive amounts of law are made in New Zealand every year. Indeed we have nearly 1100 statutes as part of our primary law—putting to one side our secondary legislation. He went on to say that New Zealand’s statute law is simply not accessible and I quote: “In New Zealand unless one knows the name of the principal public Act there is a good chance that relevant provisions can be overlooked. The New Zealand statute book is both massive and unmanageable. More useful is the American approach where both at state and federal level a code is produced of all statute law or federal law passed by the legislature and arranged under topic headings.” He referred for example to the code of the state of Iowa which is contained in four volumes and he said that the code allows people in both the public and the private sectors to locate and read all the relevant primary statute law that may be important to a particular concern. 
I heartily endorse what Sir Geoffrey said in his speech. I think it could be an excellent exercise for the New Zealand Parliament to codify much of its legislation and I can think of no better place to start than with the statutes that govern the courts of New Zealand. There needs to be a comprehensive code or statute bringing together all the relevant provisions and as Sir Geoffrey said we need to try a little harder. 
As I said this legislation is an improvement but it is piecemeal and bitsy and at the end of the day the Judicature Act is a mess. I described it during the Committee stage as a dog’s breakfast. The District Courts Act 1947 is not much better. There really needs to be a bit of effort made by this place to bring together all these pieces of legislation in one statute that is easily readable and easily accessed by lawyers and laypeople. 
So the National Party will support this legislation through its third reading but like so much legislation introduced by this Government I would have to give it only a C pass. It is a rather poor effort indeed. 
TAITO PHILLIP FIELD (Labour—Mangere) 
: 
 I must thank my colleagues and the junior whip for giving me the chance to speak. This is one of my first speeches this year but I am pleased to contribute to the debate on the the Judicature Amendment Bill (No 3) which is before the House. The previous speaker said that it has been quite a while since the legislation was amended but I say to him that during the intervening 19 years the National Party was in Government for a significant part of that time and there was no amendment at all from the National Government. It took a Labour Government in 1987 to improve this legislation and it is now up to another Labour Government to make amendments. So given the focus of his speech in relation to the lack of improvement over such a lengthy period of time I am quite proud of the fact that it has taken two Labour Governments in those 19 years to improve on this important legislation. 
As previous speakers have said the bill is designed to reduce the workload pressure facing the Court of Appeal and to increase access to the Supreme Court. I point out to the previous speaker that this Government was responsible for the establishment of the Supreme Court. This Judicature Amendment Bill (No 3) makes a significant move although with small amendments in terms of the extra number of judges who will be appointed. As previously mentioned there will be eight permanent judges and that will help give confidence to the judicial processes in relation to appeals to the Court of Appeal and to the Supreme Court. This bill also looks at improving the use of judges’ time as well as increasing access to the Supreme Court and improvements in the use of technology in relation to the available technology for court processes. 
The bill also amends the way in which the court may deliver judgments. A more flexible process will be set out in amendments to the court rules as is the practice for the Supreme Court and the High Court. Clauses 6 and 7 correct minor omissions arising from legislation establishing the Supreme Court. Given the scale and complexity of the drafting for that reform it is remarkable that only minor corrections are required and that gives credit to the drafting of the legislation that established our Supreme Court. 
The effectiveness of our court system is a fundamental part of our democracy and society and this Government believes that court processes must adapt to new technology as I said and legal processes must continue to evolve in order to ensure that our courts are as efficient as they can be and deliver a higher-quality service to the public. This Government is committed to providing a modern effective and accessible court system in which the public has confidence. Those changes in the legislation clearly demonstrate that commitment. 
I am in full support of what is being done here. I am pleased also that the previous speaker kept quoting Sir Geoffrey Palmer and I remind that speaker that Sir Geoffrey Palmer was a former Labour Prime Minister and very good at drafting legislation. His speech as the member said last night pointed to some of the things that we need to look at in the future. However I also give credit to the former member’s services as a Labour member of Parliament in this House and the fact that he is a former Prime Minister as well. 
I thank the Minister for bringing this bill to the House. I believe that it will significantly improve our judicial processes in the Supreme Court as well as the Court of Appeal. 
KATE WILKINSON (National) 
: 
 I rise to speak to the third reading of the Judicature Amendment Bill (No 3). When the Ministry of Justice annual report of 2004-05 states that the workload at the Court of Appeal is at a historically high level—547 hearings in 2004-05 compared with 503 in 2003-04 which includes a substantial increase in the number of criminal appeal cases with 450 in 2004-05 compared with 371 in 2003-04—it is obvious that something needs to be done about the workload and the backlog. 
The report of Sir Thomas Thorp entitled  
Miscarriages of Justice 
 makes it clear that New Zealand lags behind the United Kingdom and other countries in terms of having the procedures in place to deal with miscarriages of justice. In fact Justice Thorp suggests that as many as 20 people may be wrongly incarcerated in New Zealand and it is obvious that something has to be done. 
When we hear of examples whereby Court of Appeal judgments have taken in some cases 1 year and 1 week or in another case over 7 months to be delivered it is obvious that something needs to be done. When we hear that recent 2005 crime statistics show that violent crime is up 6.9 percent grievous assaults are up 13 percent homicides are up 27 percent intimidation and threats are up 11 percent robberies are up 12 percent serious assaults are up 7 percent sex crimes are up 6.4 percent burglaries are up and busts for new drugs like P are up 29 percent on last year and up 179 percent since 2003 then we know that something needs to be done. Dealing with such an increase in crime at that level—the court stage—is certainly the ambulance at the bottom of the cliff but it must be a very very large ambulance if it is to deal with this. This bill is but one piece of the jigsaw. Yes it is bitsy as my colleague has said. Yes it is piecemeal. It is certainly not the whole jigsaw. There are still pieces missing but at least it is a start. 
This bill increases the number of Court of Appeal judges from six to eight plus the president. It means that the Court of Appeal will be better resourced. Yes we do have to be careful that we are not appointing too many judges but so too do we have to be careful that we have enough judges to ensure that access to justice is not denied that the integrity of our legal system is maintained and that confidence in our legal system is maintained. Miscarriages of justice ideally should be eliminated but if that is not possible they should at least be minimised. By further resourcing our Court of Appeal this bill goes some way towards that objective. 
As the Minister has stated this bill also deals with how the judgments of the Court of Appeal are delivered by providing that the delivery of the judgment of the Court of Appeal may be effected in any manner provided by the rules. At present under the Court of Appeal Rules the judgment of the Court of Appeal on appeal is delivered in open court by at least two permanent judges of that court. By comparison the High Court Rules lay down requirements for the giving of judgments whether orally or in writing but the actual delivery of those judgments can be done by the registrar of the court. The New Zealand Law Society submission on that point—and it is encouraging that at least the submission was listened to—suggested that the Court of Appeal may wish to adopt the same procedure so that judgments are given by the judges but delivered through the registrar. The provision as originally drafted included the words “and by any number of Judges” which of course could have led to the unintended interpretation that a judge was required actually to be involved in the process of delivering a judgment and that at least one judge might have to be there to deliver a judgment. It is pleasing that at least the judge now does not have to be present. It is a waste of judicial time if a judge has to be in a courtroom that may be empty merely for the purposes of delivering a judgment. It makes some sense to allow written judgments to be delivered through the registrar in certain circumstances freeing up judges’ valuable time so they can clear the backlog of cases waiting to be heard. What a waste otherwise of valuable judicial time for a judge to have to deliver a judgment personally when a registrar is just as capable of doing so and when the judge as was said would be far better employed clearing the backlog. 
This bill also addresses—not perfectly—the issue of appeals so that a decision of the High Court can be appealed with leave to the Court of Appeal or in exceptional circumstances directly to the Supreme Court. It can no longer be appealed to the Privy Council because as we all know that right to avail ourselves of those wonderful legal brains was taken from us. Unfortunately however when this Government abolished the right of appeal to the Privy Council it did not seem to consider even momentarily the consequent pressures that that action might have on the Court of Appeal. The domino effect on the Court of Appeal was either ignored disregarded or not even thought about. The fact that the Court of Appeal judges of New Zealand might move on up to the newly established Supreme Court did not appear to have been given any attention whatsoever nor did the fact that when those top Court of Appeal judges moved up to sit on the Supreme Court a vacancy might occur in the Court of Appeal. Such matters as the fact that those vacancies would need to be filled and so on seemed simply to have been overlooked. So it is little wonder that the Court of Appeal found itself in the position of being overworked under-resourced and unable to deliver prompt judgments or make any dent in clearing the backlog of cases. 
I said before that this bill is part of a jigsaw and a missing piece of the jigsaw relates to District Court jury trials as my colleague Mr Finlayson has already alluded to. Currently appeals from District Court jury trials do not go to the next highest court in the land—namely the High Court—but in fact go directly to the Court of Appeal. There is merit in the suggestion that appeals in jury trials in the District Court could go directly to a full court of the High Court rather than directly to the Court of Appeal thereby alleviating some of the Court of Appeal’s workload. 
Increasing the number of judges in the Court of Appeal is not the absolute cure for all the ills of the legal system. We must also consider why there is a backlog of unheard cases in the Court of Appeal and why we have so many appeals in the first place. In this regard we must look at the number of appeals resulting from legal aid work. This Government has now increased the number of those eligible for legal aid from 700000 to 1.2 million even though there is anecdotal evidence that the supply of legal aid lawyers is dwindling. For several reasons convincingly debated in the readings of the Legal Services Amendment Bill (No 2) lawyers are walking away from legal aid work. That means that the few legal aid lawyers left will be overworked with the very real risk that their work will be rushed and not up to standard and with the consequence that miscarriages of justice may occur or more appeals may be made to higher courts including the Court of Appeal. This does not even start to consider those people on legal aid who may decide to give it a go in the Court of Appeal and that perhaps in a District Court jury trial the trial judge may have made a mistake or overlooked something. Such appeals would go directly to the Court of Appeal not the High Court and further clog up the workload of the Court of Appeal. Yet such appeals could be avoided if the issues of access to justice as raised in the debates on the Legal Services Amendment Bill (No 2) had been properly considered and addressed. 
There is definitely a sore out there. This bill is a band-aid but the sore remains. The bill may momentarily numb the pain but it will not remove it completely. Access to justice is vital. This bill does help that objective but it is just part of the jigsaw it is piecemeal and it is bitsy. It is not the panacea of all ills but at least it is an improvement. National supports this bill. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I am a little bit disappointed that some of the smaller parties who are always complaining in the House about the unfair treatment they receive are not taking a call in the debate on the third reading. 
Darren Hughes 
: When was the last time they complained about that? 
Dr WAYNE MAPP 
: The whip on the Government side makes a fair point. However the reason I make the point is that the administration of justice is one of the key roles this Parliament performs. We pass the laws in this Parliament that set up the structure of the courts. The Attorney-General appoints the judges. So therefore Parliament and the executive have a hugely important role in the administration of justice in the courts of our country. Frankly to have 20 percent of Parliament effectively absenting itself from the process serves the country poorly. If those parties wonder why they attracted only 20 percent of the vote at the last election perhaps it is because the public actually made a judgment on them saying: “They are not worth any more in truth.” Although they once had 35 percent of this Parliament today they have 20 percent and it is because they have refused to participate in developing the law on the administration of justice. They stand condemned by their inaction. 
Darren Hughes 
: They spoke on the last motion. Get on with it. 
Dr WAYNE MAPP 
: Would the junior whip stop making irrelevant and petty interjections as he is notoriously prone to do. I had thought the man had some potential. He came dangerously close to losing his seat. It was another case of the voters in his district saying: “Well maybe the member for Otaki needs a break.” Indeed I suspect that in the 2008 election the voters will say: “We need to confirm our judgment. That man needs a retirement package. Goodbye and welcome to Nathan Guy.” 
I want to talk about the bill as indeed one should. One of the important things the Government did in the last term—and I acknowledge the role of the Speaker in this—was establish the Supreme Court of New Zealand. I realise that it had a controversial birth but I also acknowledge and I want to say so publicly at this point—it would be only fair to do so—that it was something that had been spoken about a great deal by the Rt Hon Jim Bolger and the Rt Hon Sir Douglas Graham. They were committed to that development. 
When a Government is developing new judicial structures—and I recognise the Supreme Court as a very substantial development in our constitution— 
Taito Phillip Field 
: That’s not very generous. 
Dr WAYNE MAPP 
: We actually said at the time that it was significant. We said it was so significant that the New Zealand public ought to have the right to vote on it. I can imagine that Labour members will say: “Well you weren’t saying that back in 2004.” but the truth is that over time people learn about constitutions—perhaps not the Government but the wider public—and the public expect to be able to vote on major changes to the constitution. I think the Supreme Court fairly met that proposal. I suspect that the public would have voted for a Supreme Court as part and parcel of New Zealand’s development. 
Darren Hughes 
: Which is why you have never voted against it! 
Dr WAYNE MAPP 
: As I have said in this House in a proper reply to the interjector the failed member for Otaki one of the reasons we voted against it was that the public did not have a proper say. 
In developing that important initiative of the Supreme Court it really is incumbent upon the Government to consider more carefully the structure of the balance of the courts. After all there was a substantial direction by the New Zealand Law Commission report No. 85  
Delivering Justice For All: A Vision for New Zealand Courts and Tribunals 
 in which it set out a series of important proposals such as the court sitting in panels and so forth. There is no real recognition by this Government of the importance of putting in place a proper plan in a statutory way that would do that. At least half of the appeals both criminal and civil originate in New Zealand’s largest city Auckland. On an ad hoc basis the Court of Appeal sits there in panels of three. It is only on an ad hoc basis. No permanent panel is established there. The other panel tends to sit in the Wellington Court of Appeal. There are also no developments—and I think it is necessary now that we have a Supreme Court—that would mean the Court of Appeal would sit only in panels of three. Because now under the new system why would we ever have a full hearing of the Court of Appeal? In short what would be the point? Any substantial issue should be heard by the Supreme Court. 
One of the values of the Supreme Court is the “access to justice” question. For instance approximately only eight appeals were heard per year in the Privy Council. I put on record in  
Hansard 
 that Mr Christopher Finlayson appeared in the last Privy Council appeal heard in London which I suggest is an important milestone in New Zealand’s legal history. The truth is that the opportunity has been lost to properly develop the Court of Appeal. For instance—and I have noted this previously—in the Ngati Apa case the Court of Appeal sat as a full court. Indeed it should have because for all practical purposes it was sitting as a final court. Of course it was not the final court. 
That case could have been appealed to the Privy Council but it was not. The Government took the unprincipled route of simply passing legislation without testing its arguments further in the Privy Council. I am sure the Maori Party—and certainly many other Maori people in New Zealand; my wife being one of them—would say that the most important thing that had to be done was to test the legal right one way or the other. Maori have a proud record of using the courts and accepting the decisions of the courts. 
That era of New Zealand’s history has now passed. This bill which deals only with numbers of judges does not deal with all of those other questions I have spoken about such as a permanent panel of three established in Auckland a permanent panel of three established in Wellington a rule that the Court of Appeal will sit only as three and no proper statutory rules around High Court judges sitting on the Court of Appeal—again there are ad hoc processes around that. We have ended up with a detailed and comprehensive statute on the Supreme Court but it is essentially a mishmash of statutory provisions and rules of court procedure that establish the Court of Appeal. That is fundamentally unsatisfactory. Although we will support the bill to third reading because it does something useful it really is a missed opportunity. 
I suggest to the Government given the amount of legislative time it has these days that it take the opportunity to do the job thoroughly repair the legal tool kit put our legal system in a proper structure take advice from the Law Commission and then act on it. After all the Government appointed Sir Geoffrey Palmer who is a former Prime Minister which was a good appointment I have to say. The Government should let him do his job properly. Otherwise we will have a mishmash of ad hoc measures like this legislation which really do not provide the concrete foundation that I think the country is entitled to expect from the legislators and from the executive of this country. It is why taxpayers pay literally hundreds of millions of dollars to them to run the country. I say to the Government which holds the executive power that it should do its job properly. 
A party vote was called for on the question  
That the Judicature Amendment Bill (No 3) be now read a third time. 
Ayes 115 
New Zealand Labour 50; New Zealand National 48; New Zealand First 7; Green Party 6; United Future 3; Progressive 1. 
Noes 3 
Maori Party 3. 
Bill read a third time.