Finlayson Christopher: Judicial Retirement Age Bill — Second Reading 
Finlayson Christopher: Judicial Retirement Age Bill — Second Reading 
[Volume:637;Page:7510] 
CHRISTOPHER FINLAYSON (National) 
: 
 National supports the second reading of the Judicial Retirement Age Bill. I thank the Minister for Courts the Hon Rick Barker for his generous comments about the work of the Justice and Electoral Committee. For reasons that I will develop later perhaps it could be said that we in the committee moved too quickly. Certainly that is what the Law Society thought. It submitted a letter to us after the bill had been reported back to the House in which it raised a number of points. Out of deference to the Law Society I will mention in the course of my speech some of the arguments it advanced. 
As the Minister said we resolved not to call for public submissions on the bill as we considered that it was straightforward and uncontroversial. We certainly did invite comments from the Chief Justice and the Chief District Court Judge on the bill and both endorsed its intention and supported its progression. 
Because this is the first time the issue has been before Parliament for over a quarter of a century I thought it would be useful simply to trace by reference to the Judicature Act how the question of the age of retirement has developed over the years. Section 13 of the Judicature Act 1908 was amended as from 24 December 1980 to substitute the expression “68” for the expression “72”. So for a number of years there were judges who could retire at 72 but the age was reduced to 68 from 1980. I took the liberty of looking up the  
Hansard 
 of the debate in 1980—Volume 434 at page 4172. In fact the only reference to the provision—it was part of a Courts Amendment Bill—stated that clause 86 reduced the age of retirement to 68 years and that it was based on the recommendations of the Royal Commission on the Courts which had been chaired by the late Sir David Beattie. There was no discussion on the rationale for the provision. 
 So it may be helpful today to set out some of the thinking behind this current legislation to increase the retirement age from 68 to 70. The first point that can be made is that as the Minister said the age of 70 is in line with other jurisdictions. The Minister mentioned the United Kingdom Ireland and Australia and reference could also be made to 24 states in the United States. Apparently there is no mandatory retirement age at the federal level in the United States. For example Justice Stevens of the United States Supreme Court is aged about 85 and over the years a number of judges have served in that great court who have been even older than that. 
For many years there was no specified retirement age for certain classes of judge in the United Kingdom. Lord Denning for example a former Master of the Rolls was still going in his 80s. Apparently he was on record as saying he had all Christian virtues except resignation. I think he finally retired when he was about the age of 90. That probably is far too old to be sitting as a judge—although apparently the age of 90 for retirement is still the law of the state of Vermont. [ 
Interruption 
] Jonathan Hunt will be long gone before he is 90. 
The Law Society made the point that perhaps the age could be increased back to 72 but when one looks at the international comparison one sees that the age of 70 seems to be consistent with those of other jurisdictions and I support 70. It could well be that within a reasonably short period of time we revisit this issue and decide to bump it up to 72. 
Another point the Law Society made in its belated submission was to express concern that if the age was kept at 70 it would not be possible for some judges in the course of their careers to have a decent period of time on the Court of Appeal then a decent period of time on the Supreme Court if they were promoted. For myself I do not think that is sufficient justification to move the retirement age to 72 for Supreme Court judges. I think it is best to keep the age at 70 for all judges as the bill indeed provides. 
Another matter the Law Society raised was the possible impact on judicial superannuation. It expressed a concern that if the age was moved the subsidy rates for judicial superannuation could be decreased. Nothing of that sort has been referred to in the bill let alone discussed. I really think that is an argument that need not detain the House at all. 
The Law Society makes a very important point that from a constitutional point of view it is important that we not have too many temporary judges or judges who are appointed on a short-term basis. I certainly endorse that view but I do not really think it is a problem at the moment notwithstanding the relatively short careers of Justice Gault and Sir Kenneth Keith for example on the Supreme Court. Indeed increasing the age to 70 will mean that people are able to go on to the bench at the age of 55 and expect to have at least 15 years on the bench during which time they can make a huge contribution to the law in New Zealand. 
The final point that the Law Society raised was that if a judge is appointed then retires he or she can still be an acting judge until the age of 72. The society suggested that that age could be altered so that judges could sit as temporary judges until aged 75. For myself I do not agree with that. I think that if a judge serves as a full-time judge up to the age of 70 there may be special reasons why that person could stay on for an extra couple of years but I do not think it is a good thing from a policy point of view for judges to be able to come back and sit for as much as 5 further years. 
The Law Society was concerned that we had not considered these arguments. I can assure the House that I read very carefully what the society said and reflected on it even though the submission was received a little late. But on balance I think this bill strikes a very good balance. Seventy years seems to be the right age and as I said at some later stage we can always revisit that question. 
I do not know that there is too much more that one can say about this legislation. It should be able to move through its remaining stages reasonably quickly. I think it is a good move and for that reason the National Party supports the second reading of this bill.