Franks Stephen: Judicial Matters Bill — Second Reading 
Franks Stephen: Judicial Matters Bill — Second Reading 
[Volume:617;Page:12801] 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party to oppose this bill. It is a constitutional measure that is being put through without even a consensus that could be described as more than the barest. Indeed I venture to suggest that on matters like this when the Labour Party has to rely on the Greens it has admitted defeat. The Greens have utterly no concern about civil liberties or constitutional convention. The Greens’ vote is for sale to anyone who looks at them and says: “We might consider at some distant time in the future acceding to your views on GM or one of the other pet topics.” and therefore they say “We will curry favour until we get into that position where we can hold you to ransom.” 
The bill is a reflection of a memorandum the Attorney-General commissioned from Sir Geoffrey Palmer of Chen and Palmer. The memorandum is dated 1 November 2002 and its subject is judicial administration issues. The reason I say it is constitutional is that Sir Geoffrey Palmer recommended and the bill implements taking the power of initiation of removal of a judge from this House. That has been there as a safeguard against judicial excess for decades—I think 120 years. 
Dail Jones 
: 1700. 
STEPHEN FRANKS 
: Since 1700. Sir Geoffrey Palmer says in the usual haughty manner that he shares with the Attorney-General that politicians as elected representatives of the people cannot be trusted to assess those things properly and therefore we should take the power away from them in case they misuse it. It has not been misused. Indeed as the Green MP just suggested he is concerned that the power of removal has not been used enough. But it has not been misused; it has not been used. We have been so respectful of the necessary independence of the courts. But what this bill does—and I believe it is sinister—is take the power to initiate the removal of a judge out of the hands of members of this House and give it essentially to someone called a “Judicial Conduct Commissioner”. 
That Judicial Conduct Commissioner and the Judicial Conduct Panel are deceptive descriptions. They do not have a role to look into the kinds of complaints that people came to the select committee to point out. They do not look into judicial conduct. If they were being properly described they would be judicial removal commissioners or judicial removal panels. 
 The only kind of complaint they can report on is a sacking offence. So none of those indiscretions those minor discourtesies those delays those things that do not merit being sacking offences in a country that respects the independence of the judiciary are within the scope of the Judicial Conduct Panel. The panel is selected by the Attorney-General and appointed. It then has a veto power over the sacking of a judge. Because the bill says that without a report of that panel there may be conduct meriting dismissal the Attorney-General cannot take it further. So we have two levels of protection for the judiciary against the very rare event where the people should expect a sacking because the Attorney-General can then decide despite a recommendation or a finding by the panel not to take it further herself. 
I say this bill is sinister because we have not been given any facts or any instance to justify it. The Attorney-General wrote to the select committee and tried to say that the case of Justice Tony Christiansen was a good example of what would be avoided by this panel. That was deception because that judge resigned rather than force any sort of process. He had enough sense of honour to do that and this bill makes it quite clear that where a judge has resigned things stop. It does not go any further. 
The kinds of circumstances that have been alleged also do not appear to fall within the description that the officials and others gave to us of circumstances that this bill is concerned about. What this bill ought to be concerned about is the experience that New Zealand had when a pusillanimous Minister of Justice the Hon Douglas Graham declined to initiate the sacking of a judge. In fact it was a District Court judge. So that failure by the Minister to initiate which left Parliament unable to do anything is precisely the kind of circumstance the Greens are now supporting to go into our law. 
In other words take it out of the hands of Parliament give it to an expert to look at—in that case the Solicitor-General. The Solicitor-General delivered an extremely conservative opinion. The Hon Douglas Graham decided that that merited not taking any steps. So we are left with a judge sitting as a District Court judge not just on a pension with $1000 I say to Mr Tanczos but sitting on his full salary on light duties despite the whole community being rightly convinced that he did not deserve to be there. 
So we should have extended the position in relation to High Court judges to District Court judges. Instead this bill is going in exactly the wrong direction. This bill is taking away from parliamentarians the ability to express the clear will of the people in that case—which was to see a judge who had dishonoured his office go. 
This bill may want to protect judges. It could be that the sinister effect of it one day might go the other way—that a witch-hunt could be mounted with a hand-picked panel to get rid of judges who have been inconvenient to a body that does not want to face up to the political issues that can be avoided by sending hard problems to judges. 
Let us take for example the so-called principles of the treaty which were sent off to the judges to deal with and which in my opinion they have made a hash of. It is perfectly proper that people in a democracy should be able to get rid of judges if they step over the mark. I am not saying they have in relation to the principles; they were required to adjudicate there. But where judges do decide that they know better than the elected representatives who go before the people every 3 years—if we do get judges such as Judge Rose Bird in California who a few years ago refused to carry out the provisions relating to capital punishment—then it would be perfectly proper for this House to have a debate and remove a judge or judges who had decided they were not only applying the law but they were going to make it. 
I believe that behind this bill is an elitist attempt to make sure that Parliament cannot do that; to try to avoid anyone moving the motion that would start the debate about whether the judges had trashed our constitutional conventions by intruding into the area of the legislature and making law instead of applying it. 
I have addressed the main constitutional issues. This bill is going to go through probably on a very fair majority without any examples of the kind of mischief it was to attack and I have mentioned only one small part of it. We would have liked to be able to support a bill that set up a proper investigatory process where there is a complaint about a judge but not a bill that then took away the powers of elected representatives to initiate such a process. We would like also to have had proper explanations for a whole lot of other things in this bill such as the potential to pack the courts with part-time judges. The Minister’s officials would not even accept a minor safeguard like putting a limit on the maximum number who could be part-time so that we did not end up with an infinite pool available for panel-packing. 
We would have liked to have a proper explanation of why it is that the Judicial Conduct Panel can suppress reporting about a judge. This panel can subpoena anyone demand documents—for example a reporter’s notes—and if it thinks it is against the “public interest” it can permanently suppress publication. We believe that this bill is a sinister constitutional change. 
Sitting suspended from 6 p.m. to 7.30 p.m.