Franks Stephen: Judicial Matters Bill — In Committee Procedure 
Franks Stephen: Judicial Matters Bill — In Committee Procedure 
[Volume:617;Page:12876] 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party to speak in this stage of the Judicial Matters Bill—a bill with a title so bland that anybody who is listening to the debate and is not involved in this process will not know what it is about. We are addressing Part 1 which really embodies the recommendations of a friend of the Attorney-General Margaret Wilson. The Attorney-General asked Sir Geoffrey Palmer to give her a report on how she should go about disciplining judges—a matter of high constitutionality. 
Who judges the judges who guards the guardians who watches the watchdogs is one of the hardest issues for any constitution to deal with. In our system it has been dealt with by a mixture of convention law and care in appointment. New Zealand has never had a judge sacked by Parliament although we may have had one or two who ought to have been. Such matters have been managed very discreetly—usually by getting the judges to resign before they become an embarrassment to the judiciary and themselves. Mr Richard Worth gave us a useful historical survey of the only occasion when people asked or wanted Parliament to use the power. Eventually there too the judge was retired. 
This part sets out a complicated complaints system that takes all kinds of complaints about the judiciary. It will funnel in the many complaints that it is absolutely inevitable come from people disappointed with the outcome of their litigation. A judge in the judicial system will always get complaints. Nearly always one side will be upset and convinced that its case was not understood or that the judge was curt or rude. So in this situation to have some law that sets out a comprehensive complaints mechanism is foolish. The judges in an unusual step under our conventions made submissions that showed they were clearly unhappy with what is proposed yet the Minister has pushed the bill through to this stage with very little amendment. 
We have someone called a Judicial Conduct Commissioner and a panel called the Judicial Conduct Panel. They become the gateway the roadblock or the keepers of the sword for sacking judges. Instead of it being the right of any member of the House—which could be a very important right in an MMP Parliament—to initiate the sacking of a judge from now on it will happen only if the Attorney-General wants it to happen. The Attorney-General can prevent the appointment of a Judicial Conduct Panel. The Attorney-General can get a report from the Judicial Conduct Panel and ignore it and not move a motion in this House. The Attorney-General cannot actually sack a judge if the Judicial Conduct Panel does not make a recommendation or a report along the lines that that should happen. So instead of increasing the likelihood that an unsuitable judge might be ejected by the House this bill which has been portrayed by the Labour Party Government as being an enhanced protection for the people goes in the opposite direction. This bill means that the Attorney-General could protect her mates come what may even if the majority of Parliament thought they should go. This bill means that Judge Martin Beattie—who of course was not subject to the ability of the House to turf out a judge—had he been a High Court judge could not have been tossed out by the House if the Attorney-General decided it was not warranted. 
This matter comes at a time when the constitutional position of our judiciary should be under far more careful consideration and when we should be getting a broad consensus of Parliament around it. The Attorney-General should not be ramming through a constitutional change with the bare majority she will get by persuading the Greens that if they are nice enough to her she might one day support something they want—some political deal. This part which deals with judges goes to the heart of judicial independence. It is being passed through the House with hardly anyone even knowing it is happening. There has been virtually no media discussion of a significant change. Worse still the media do not even seem to have woken up to the fact that it gives the Judicial Conduct Panel the power to suppress complaints about a judge. It can subpoena for example a reporter who was reporting dissatisfaction about a judge. That judge can be protected by the Judicial Conduct Panel.