Flavell Te Ururoa: Judicial Retirement Age Bill — First Reading 
Flavell Te Ururoa: Judicial Retirement Age Bill — First Reading 
[Volume:635;Page:6568] 
TE URUROA FLAVELL (Maori Party—Waiariki) 
: 
 Kia ora tatou. The Maori Party comes to the Judicial Retirement Age Bill tonight understanding the very unique status of judges as repositories of learning and wisdom. We are particularly influenced by the high calibre of a number of judges who have spoken in support of the human rights of tangata whenua. 
Tangata whenua have long been aware of and have greatly respected the questioning of the colonial policy that the first Chief Justice Sir Charles Martin is remembered for. We respect the views of Sian Elias the Court of Appeal judge and her comments on the foreshore and seabed ruling. We appreciate the expertise of Judge Caren Fox in relation to the foreshore and seabed legislation. We are also eternally grateful for the insights and leadership provided by Judge Heta Hingston. We are grateful for his involvement in reforming the Maori Affairs Act of 1953 and the Te Ture Whenua Maori Act 1993 and of course for his work in relation to the foreshore and seabed legislation. 
This House and this nation have long paid their respects to Lord Cooke of Thorndon who recently passed away. In the 1987 Court of Appeal case  
New Zealand Maori Council v Attorney-General 
 Lord Cooke described Te Tiriti o Waitangi as still being a “valid compact” that imposes “fiduciary” duties of “mutual obligation” between the Crown and Maori tribes. Such a commentary is part of our history as a nation. Lord Cooke left this nation significant statements which include: “the Treaty signified a partnership between races”. Such statements have contributed to the growing maturity of our land. 
Those names and those judges are but a few of a strong cast of potential leaders who are taking this nation forward with their deliberations and their findings. As a party that absolutely values the capacity of being able to speak out the Maori Party says it is vital that the ability of judges to speak frankly on issues is preserved. 
Not long ago I spoke in the context of the Evidence Bill on the values of democracy as a “form of Government in which the people have a voice in the exercise of power.” We remember a couple of years back when Maori Land Court judge Caren Wickliffe now known as Judge Fox reminded the Prime Minister Helen Clark that there were proper routes to take if she disagreed with judges’ decisions. If the House cares to cast its collective mind back that reminder came at a time when the current Speaker the current Leader of the House and the current Prime Minister were frequently criticising the status of some members of the judiciary. The clear distinguishing line between the executive and the judiciary is an essential element of our democracy. At that time Judge Wickliffe stated that the executive should not tell the court what to do especially if it was still involved in the case. Indeed the Crown or any other party could appeal or seek a judicial review of a decision they did not agree with. Judge Wickliffe had rejected the Crown’s attempts to prevent East Coast foreshore and seabed claimants from proceeding to the substantive hearing. The Crown wanted a stay on the proceedings because of planned legislation affecting the seabed and foreshore ownership. 
This was a murky period of our history but through it all the virtues of judicial independence remained unscathed. These same democratic principles lead the Maori Party to look favourably at the Judicial Retirement Age Bill. The bill promotes the notion that security of tenure and a compulsory retirement age are “key protections for judicial independence” thus enabling the judiciary’s “fearless performance of judicial functions” by keeping its members free of concerns about job security. That fearless frank and fierce critique we have associated with the judiciary must be protected at all times. 
When we consider “fearless frank and fierce” we could do no better than to recall the advice of former Maori Land Court judge Heta Hingston who famously described the Government’s public domain title as being nothing more than a smokescreen to its true motives. In mid-2004 he said: “The foreshore and seabed has never been in public domain. Their position that public access would be jeopardised is complete ignorance. Essentially what the Government has done is take away from Maori. Quite simply it is another case of raupatu; it’s confiscation.” Judge Hingston concluded that the Government’s actions were best interpreted as the “tyranny of the minority by the majority”. He urged Maori to continue to seek justification on all options that were available to them and he spoke of the value of international forums. 
In the context of such brilliant advice from Heta we welcome this bill which increases the statutory retirement age for judges and associate judges of the High Court coroners and community magistrates from 68 years to 70 years. The Maori Party will support the proposals to amend the District Courts Act 1947 the Employment Relations Act 2000 the Judicature Act 1908 Te Ture Whenua Maori Act 1993 the Coroners Act 1988 and the Coroners Act 2006. We believe that in all of these areas age should not present a barrier to the provision of expert advice. 
It is of course fitting to be speaking to this bill on a night when we have all been considering better opportunities to provide for the ongoing contributions of our elders. The current retirement age runs the risk of the nation missing out on the valuable knowledge and experience that the judiciary offers. We know that the restrictions around retirement age are also perceived as being a barrier to attracting senior practitioners and lawyers to the judicial office. 
We cannot leave this important bill however without also raising the critical issue of judicial impartiality. In  
Maori and the Criminal Justice System: a new perspective—he whaipainga hou 
 
the Kahungunu lawyer Moana Jackson discussed the concept of the potential for judicial bias to be realised as the end result of a process that is itself culturally biased. His report noted that when all necessary variables of previous offending legislative guidelines and the gravity of the offence have been considered Maori believe that the differential notion of the sentence can be attributed only to judicial insensitivity and prejudice. I quote directly from that report: “I have noticed that judges while most of them try their hardest to show themselves to be free of prejudice and some of them may be … a subconscious form of prejudice shows itself in the judge’s attitudes sometimes when talking to sometimes when looking at Maori defendants. … Maori people know that look and they know what it means”. 
These are grave issues of State. I hope that in subsequent discussion on the Judicial Retirement Age Bill barriers other than age such as those of institutional racism may also be considered. Kia ora tatou. 
Bill read a first time. 
Bill referred to the Justice and Electoral Committee.referred to Justice and Electoral Committee