Supreme Court Bill — In Committee 
Supreme Court Bill — In Committee 
[Volume:612;Page:9053] 
Supreme Court Bill 
In Committee 
Debate resumed from 8 October. 
Part 2 Amendments repeals transitional provisions and savings  
(continued) 
DAIL JONES (NZ First) 
: 
 We are discussing Part 2 of the Supreme Court Bill and as I recall there have been speeches from United Future and two speeches from the National Party and a speech from Mr Field and from the Minister. So we have a long way to go yet on Part 2 because we have barely touched on it. 
The Supreme Court Bill is being rushed through Parliament by the parties in favour of it without adequate electoral support for it. At the last election the Labour Party received 31.4 percent of the vote of those eligible to vote. The Green Party received 5.3 percent of the vote of those eligible to vote and the Progressives received 1.3 percent making a total of 38 percent. The other parties’ voting percentages were ACT 5.4 percent; National 15.9 percent; New Zealand First 7.9 percent; United Future 5.1 percent; and others 3.7 percent—also totalling 38 percent. In effect in so far as the electoral mandate in New Zealand is concerned the parties favouring this bill and the parties opposing this bill are tied. There was no mandate at the last election from those eligible to vote in favour of this legislation. 
That I think is a very important fact. We see that a vital constitutional change is taking place yet the Government the Progressives and the Greens are ramming and rushing through legislation without the support of the people of New Zealand. I am quoting from information that has been made available to me from the Parliamentary Library that I requested; it is not something I have dreamt up myself in the last half-hour. 
Part 2 has a provision dealing with the work of the Court of Appeal. One of the things that became very clear from the submissions that were put to the Justice and Electoral Committee is that the Court of Appeal is overworked—with about 400 criminal cases and about 200 civil cases. This bill purports to reduce the number of judges on the Court of Appeal. One way the Government proposes to get around the situation seems to be to reduce the number of judges who will sit at hearings of the Court of Appeal. We have a court that is overworked now yet the Government is going to reduce the number of judges who will be sitting at it. That is really Labour Party logic! This bill will make it even more difficult for the Court of Appeal and inevitably in a court that is currently overworked there will be more applications for leave to appeal to the Supreme Court as a result. That is another failing in this legislation. 
Mr Field when he spoke last night gave us the example of Canada and Australia but did not mention the fact that when Canada and Australia abolished appeals to the Privy Council they already had a two-tier appeal system in place—and that had existed for quite some time. We cannot compare Canada with New Zealand bearing in mind that North America was settled by Europeans from the late 15th century—1492. North America was being settled by the French and the British in the late 16th century and Canada was taken over by the British in 1791 finally under the Quebec Act after Wolfe defeated Montcalm in Quebec in 1759. There is no comparison between Canada and New Zealand. 
In so far as Australia is concerned the First Fleet arrived in Australia in 1788 and colonisation got under way at that stage. New Zealand of course was a colony of New South Wales. It was part of New South Wales for quite some time until action was taken in 1839. So comparing New Zealand with Australia and Canada is a clear example of this Government’s trying extremely hard to draw a long bow on its justification for this bill. But the main point is that at the last election the parties that are in favour of making this dramatic constitutional change did not get any electoral mandate to make this change. Extraordinarily enough it is a dead heat—38 percent each or 76 percent in total and with 24 percent of those eligible to vote not making up their minds to vote on the day. Usually a non-vote is an indication that the person does not support the Government. 
STEPHEN FRANKS (ACT NZ) 
: 
 I am sorry to be debating Part 2 of the Supreme Court Bill. I am sorry we are on Part 2 because on Part 1 where the issues that Part 2 now deals with in terms of transition were decided I did not get more than 5 minutes. I did not get any chance to cover in Part 1 what I now have to deal with where it arises in Part 2 on the matters that a proper transition would deal with. A proper transitional provision would have actually dealt with the method of appointment. It would have dealt with the concern that so many New Zealanders have about the political influences that this court is exposed to. A proper set of transitional provisions would have recognised that this is a one-off when one is sacking one’s entire top court and replacing it with another brand-new court of people appointed by the Attorney-General. 
The transitional provisions would have provided or should have provided for a special one-off regime at the very least for that initial set of appointments. It would not have been left to Government Ministers to leak that they thought they would get the Attorney-General’s arm up her back far enough simply to move Court of Appeal judges upstairs. We would not have had 8 months of speculation about who she might be going to appoint—that has been very damaging to this court. If right from the start there had been a proper transitional provision in Part 2 that said exactly how these judges were going to be selected or if there had been a ministerial statement along the lines that we have seen perhaps forced out or extracted in the last few days there would have been quite a good deal less damage to the judiciary in this country. As it stands we are stuck with the Part 2 that we have. 
We are up to clause 43 after the ACT party has had 5 minutes in this debate on all the substantive clauses. Let us start with clause 43A “Technical advisers” a sort of hasty cosmetic change that the select committee managed to get in. It allows technical advisers to sit in criminal cases. I asked during the select committee process what the effect of that was on the very longstanding requirement of our justice system that an accused know the nature of the material before the court on which his or her guilt or innocence would be based or on which the sentence would be founded. There was no assurance to the select committee that the advice tendered by a technical adviser appointed in a criminal case would be available to the accused. So this Attorney-General and this Government with a mere flick of the pen in what they claim is not a constitutional element get rid or potentially get rid of a fundamental provision in our criminal law. 
Clause 43A states that a court can appoint technical advisers but there is no protection there. There is no assurance that the accused or the accused’s counsel will know what kinds of representations and what influences will be brought to bear on the judge in that case. That is not a light matter. Why was it done? It was done I think because the select committee was so embarrassed at having had such overwhelming evidence that there was nothing to support this bill except primitive nationalism that the majority on the select committee were desperately keen to make some changes that would look as though they had addressed their minds to the issues. 
The select committee got through to clause 43A having dismissed its own misgivings about the appointment process and having dismissed its own misgivings about the number of judges by providing that there might be five or six—knowing full well that the Attorney-General only ever wanted five and that she could ensure that temporary judges made up the numbers whenever there was a shortfall; temporary judges of course being much more selectable and biddable than judges with secure tenure. 
So the committee got to the stage of clause 43A and wanted to show that it was actually addressing its mind to doing something and was prepared to change something in a bill that it was otherwise being whipped to pass. That I believe is why we ended up with a provision so poorly thought through that it changes the composition of the court. It is no good saying a technical adviser is not the judge. 
LINDSAY TISCH (NZ National—Piako) 
: 
 It is a great headline in the paper today is it not? It states: “Stop this stunning abuse of power” and to have the Minister’s photo there with that comment—“Stop this stunning abuse of power”—says it all. As we have heard during the Committee stage of this debate— 
Stephen Franks 
: Is that Snow White or the wicked queen? 
LINDSAY TISCH 
: Well it could be both. The member is right; it is a good question he has asked. When we look at the abuse and the changes to the constitution which I talked about during the Committee stage last night we see that not one Government Minister not one Government member has been prepared to stand up and come out and bat for this legislation. Yet this is a major change to the way the courts and the judiciary are going to operate in the future. 
I draw the Committee’s attention to clause 43 and in particular to section (2)(a). Although the bill does not contemplate changes to the Court of Appeal it does reduce the numbers. It is going to reduce the numbers of judges from eight—the Chief Justice the president and six other judges—to six or seven being the president and five or six others. We oppose that. We oppose the reduction of the numbers on the Court of Appeal. 
The creation of the Supreme Court should not be an occasion or a reason for reducing the ability of the Court of Appeal to do its work. It should not be a reason to reduce the funding. In fact as Dail Jones mentioned earlier the workload of the Court of Appeal is such that there should be an increase in the number of judges at that level. In fact when I went back through the submissions I saw that the New Zealand Law Society said that there should be eight judges on the Court of Appeal. Yet here in clause 43 we have a reduction and it is our view that this is wrong because if there is a reduction in numbers and the workload increases—and there was absolutely no evidence that there will be a reduction in the workload at the Court of Appeal level—the Supreme Court is not going to take over and simply fill the void. There will be an increase in the workload of the Court of Appeal and what this clause does is actually reduce the numbers of judges. If that goes hand in hand with the reduction of resources be they manpower or finance then of course we are very concerned about that. 
It was interesting to hear the submissions of the Bar Association which considered it a very serious error to approach the reduction of the Court of Appeal contemporaneously with the creation of the Supreme Court. This is the association’s comment: “At present the Court of Appeal is seriously overcommitted with a complement of seven permanent judges plus significant resources from High Court judges sitting on rotation in divisional courts plus the occasional availability of the Chief Justice. It is symptomatic of an unacceptable cheese-paring attitude to contemplate immediate reduction in the judicial resource in the Court of Appeal.” It goes on to say: “The extent to which it can be prudently reduced ought to be left for reassessment after a period of operation of any Supreme Court.” This is the point that we have made. 
 It is all very well bringing in a new structure but if at the same time we do not give the resources to what will be a very important part of the judicial system then we find that a major failing. That is one of the points that came through in today’s  
New Zealand Herald 
. The headline states: “Stop this stunning abuse of power” and the article goes on to state: “To assume that a wafer-thin majority is sufficient to enact fundamental changes to the legal and constitutional fabric of New Zealand is nothing short of an abuse of power.” Here we have the number of judges on the Court of Appeal being reduced to be replaced by something inferior. 
SUE KEDGLEY (Green) 
: 
 I would like to make a couple of brief points. The first is that for 99 percent of New Zealanders justice under the Privy Council is completely out of their reach. In fact the Privy Council is of no relevance to 99 percent of New Zealanders for the simple reason that they cannot afford to fly themselves to England to take their appeals to the Privy Council. In certain exceptional circumstances people can get legal aid but for the bulk of them it is simply out of their reach. People have to hire their counsel fly them business class or first class to England and put them up in an English hotel. These are huge costs that most New Zealanders are not even able to contemplate. If people lose an appeal in the Court of Appeal and have costs awarded against them those costs will probably be about $7500; but if people lose their appeal in the Privy Council the costs awarded against them could be well over $100000. 
I happen to know some small law firms in New Zealand and one in particular that dearly wished to take a case to the Privy Council. When that firm added up the costs of lawyers’ air travel hiring counsel in England and so forth it found it was quite simply beyond its reach. I am talking about a small law firm in New Zealand. Many have argued that all lawyers are in favour of the Privy Council. Virtually all the lawyers I know are passionately seeking an end to the Privy Council because they believe as I do that it is a system of justice that does not provide small law firms in New Zealand let alone average New Zealanders with access. It provides justice for those wealthy corporates that can afford the costs of flying people across to the other side of the world to put their case and that is an infinitesimal number of New Zealanders. 
The denial of access that people are talking about is actually the denial of access to all but a tiny proportion comprised largely of wealthy corporates and of course in a few cases to people on legal aid who can afford to trek to the other side of the Earth to hire legal counsel to put people up in London hotels and so forth. 
The other thing I cannot quite understand is why there should be such discrepancies in terms of access to the Privy Council. Why should people be able to appeal to the Privy Council on civil cases but not on employment cases? Why can people not appeal on environmental court cases? Why is there one set of rules for certain cases of law and not for others? Why should someone who is involved in an Environment Court case not be able to access a final court of appeal? Why should we not have one that can be accessed by whatever class of law it is whether environmental criminal employment and so forth? I cannot understand why we should have a system that seems to be quite discriminatory—that allows certain classes of law to go to the Privy Council and denies access to others. That does not seem to be fair and equitable. Mostly I would just like to say that under the present system most New Zealanders are denied access to this Privy Council because of costs. I know of cases where law firms are not able to access that court because of the costs. 
JILL PETTIS (Junior Whip—NZ Labour) 
: 
 I move  
That the question be now put 
. 
DAIL JONES (NZ First) 
: 
 There were two short points in the previous speech that will not take long to answer. The first point was why there is no leave to appeal in environment or employment cases. It is probably because the previous speaker Miss Kedgley supported legislation that prevented that from happening because of the statutes involved. 
In so far as the question of costs is concerned I would think that 99.9 percent of New Zealanders do not want to go to court. They absolutely do not want to and 99.99 percent of New Zealanders would oppose the Labour Party’s increase in High Court fees that made it even more difficult for them to go to court. Of the 12 cases or so that we have going to the Privy Council I would not be surprised if in many of them lawyers took the case for free. If people think that replacing the Privy Council with a Supreme Court will reduce costs they have another think coming. The costs of legal attendances in the Supreme Court will be much the same as in the Privy Council. The fares the hotel accommodation and the agency fees will not be there but we can be sure that the cost of legal counsel will be the same. We do not know what this Government will charge in the way of the Supreme Court filing and hearing fees. 
 What are daily hearing fees now? Are they $1500 or $2000 a day? The average New Zealander cannot afford to go to the New Zealand High Court let alone to the New Zealand Court of Appeal or any further appeal past that. The argument about costs is absolute nonsense. In fact the Privy Council made the point in the Taito case that it was really the New Zealand Court of Appeal that prevented so many people from going to the Privy Council and having their cases heard rather than the reverse. 
I want to ask the seven Maori members of the Labour Party where they are. What are they doing about this bill with specific reference to the insertion of new section 58A in clause 44 “Further appeal to Court of Appeal from Maori Appellate Court”? They have been very silent on this bill. Is their attitude a “Dopey” one? Are they “Grumpy” about this bill? Is Ms Turia the “Grumpy” party? Their lack of attendance might indicate they are “Sleepy” or perhaps they think this is not to be worried about and they are all “Sneezy”. 
Pita Paraone 
: They are “Bashful”! 
DAIL JONES 
: They could be “Bashful” or perhaps they are “Happy” about this legislation. Finally maybe they have gone for the doctor and “Doc” is in charge. Could we describe the views of the seven Labour Maori members of Parliament as “Dopey” “Grumpy” “Sneezy” “Bashful” “Happy” and “Doc”? Maybe they think this legislation is “Snow White” and they have nothing to worry about. All of them have the view that this legislation is “Snow White” and they have taken a “Dopey” or “Grumpy” attitude. Maybe they are “Sleepy” “Sneezy” “Bashful” or “Happy” and have gone for the doctor. Maybe that is the view of the seven Labour Maori members’ in respect of this legislation. It could be for all this Opposition side of the Committee knows because they have taken no part in this debate. 
John Tamihere is very good on talking about the interests of Maori but what does he have to say about further appeals to the Court of Appeal from the Maori Appellate Court in terms of the Te Ture Whenua Maori Act—that famous Act in so far as the foreshore and seabed is concerned? What is he doing to protect the interests of Maori in so far as that is concerned? Where is the Minister of Maori Affairs? Is he “Sleepy” about the whole thing? Is the attitude of Hon Parekura Horomia to this bill a “Sleepy” one? What about Nanaia Mahuta? I presume she is still a Maori member of Parliament but I am confident that with this sort of attitude she will not be a member after the next election. 
Dover Samuels is always a “Happy” chap is he not? But where is he as far as this bill is concerned? He is out there on the marae talking about the foreshore and the seabed while the rights of appeal of Maori to the Privy Council are being taken away from the Maori of New Zealand. Where is he? What about Mr Okeroa? Where does he stand on this legislation with regard to clause 44 and further appeal to the Court of Appeal from the Maori Appellate Court and the Te Ture Whenua Maori Act? The Maori members of Parliament do not have the slightest interest in this legislation. Their views are as absent as they are. 
Hon GEORGE HAWKINS (Minister of Police) 
: 
 I move  
That the question be now put 
. 
METIRIA TUREI (Green) 
: 
 I want to make a short contribution to this debate today and say first that I am very pleased that the Green Party is supporting this bill to the final stage. I do not believe that Maori gain anything from the retention of the Privy Council as the final appellate court of this country. I do believe that it is absolutely essential that there is a second-level stage of appeal and that that process is crucial to ensuring—[ 
Interruption 
] I raise a point of order Mr Chairperson. I take offence at the description of Maori as “dumb natives” as stated by Stephen Franks. I seek that you rule that he withdraw and apologise for that statement. 
Stephen Franks 
: I raise a point of order Mr Chairperson. I was characterising the member’s statement that Maori do not get any benefit from the Privy Council when in fact nearly all the Maori submitters gave evidence that they saw the Privy Council as being of great benefit. It is Metiria Turei who is characterising her own people in that way by suggesting they do not know what is good for them. If she cannot understand heavy irony she should not be in this Chamber. 
The CHAIRPERSON (Hon Clem Simich) 
: Meteria Turei has taken offence and in those circumstances we ask only for a withdrawal. 
Stephen Franks 
: What do I withdraw? It was not an accusation made at her. I was addressing her view of people outside this Chamber. I have made no imputation on her other than that I believe she is characterising her own people whom she purports to speak for in that way. I have not addressed her in the terms of which she complains. I have alleged that that is the effect of what she is saying about the many sincere Maori submitters who came before the Justice and Electoral Committee. That is precisely the effect of what she is saying. She is saying that they do not know their own minds and do not know what is good for them because they told us they valued the Privy Council. 
The CHAIRPERSON (Hon Clem Simich) 
: I thank the member. I guess almost anything one says in this Chamber could offend someone but in this case the speaker really took offence. In these circumstances just a simple withdrawal would be sufficient please. 
Stephen Franks 
: I withdraw. 
METIRIA TUREI 
: In my view I do not believe that Maori gain anything from the retention of the Privy Council as the final court of appeal. It is most essential that there is a second tier—a second level of appeal rights—as it is by that process that decisions made by the lower courts can be assessed against high principles of justice. In my view and in the view of the Green Party this bill is a small step in the process towards decolonisation. 
I have heard some argument from a number of Maori that the Privy Council provides Maori with a level of protection against the settler Government from which this Parliament is derived that the relationship with the Privy Council is a treaty-based relationship and that there is a very serious and deeply considered tie to the British Crown and to what it represents through the remaining links to the Privy Council. That is an extremely important point of view. It is a very valid point of view and not enough has been done to deal with those concerns. I absolutely understand that. But the Privy Council has not been a friend to Maori nor has it protected us from the harms caused by the thefts by successive Governments since the signing of the Treaty of Waitangi. I do completely respect the feeling in the Maori community that Maori do need a buffer—some form of independent watchdog over the actions of Parliament and the legislature. But the Privy Council is not that. It has not done that job and there is no indication to show that it will do that job in the future. 
Very few of the decisions by the Privy Council have favoured Maori. Very few decisions about Maori issues have gone to the Privy Council and very few of those have come out in our favour. I do recognise though that there have been some good decisions—for example the Maori broadcasting case. But many other Maori-focused cases do not get to go to the Privy Council. One area that has been raised is the Environment Court cases where Maori on the ground are struggling every day with their territorial local authorities to prevent issues like the discharge of sewage into waterways and are finding that they have no ability to continue those cases through the appeal system so that Maori values can be recognised as part of the process. The Supreme Court will provide some avenue for that to happen because there will be greater accessibility for Maori to that second level of appellate court. 
It has to be said that along with some good decisions—for example the Maori broadcasting case—there have been Privy Council decisions that have been very damaging to Maori. I refer to the 1941 case where the Privy Council stated that the Treaty of Waitangi was only enforceable if incorporated into municipal law. That decision has caused us enormous problems and difficulties. It eventually led to the ridiculous notion of the principles of the Treaty of Waitangi that came through in the 1970s and the 1980s. That means it is very difficult to have the articles of and direct references to the treaty considered to be part of New Zealand law. Instead we have to look to the principles of the treaty which are Crown-derived and tend to utterly water down the fundamental decision-making tino rangatiratanga that the treaty guaranteed. That Privy Council decision has invaded and infected the whole of the treaty legislation and the treaty debate in our law since the 1940s. So we must be careful to remember that the Privy Council has done damage to the Maori community as well as providing some relief in some cases. 
CLAYTON COSGROVE (NZ Labour—Waimakariri) 
: 
 I move  
That the question be now put 
. 
LINDSAY TISCH (NZ National—Piako) 
: 
 Part 2 is interesting. Stephen Franks made the point in his earlier address that it relates to the transitional provisions. Because there was not sufficient time last evening to talk at length about the very important provisions in Part 1 it is now left to us to surmise how the transitional provisions will work. 
First I draw the Committee’s attention to clause 48 which in essence provides that a case cannot go to the Privy Council unless the Privy Council appeal process is under way before the Supreme Court legislation comes into force. We have an issue with the transitional phase. It was recommended in a number of submissions that the transitional phase should be longer so that no one would be particularly disadvantaged by that. As a matter of principle one would have thought that existing rights should not be taken away by legislation except to the minimum extent necessary to achieve other interests that plainly outweigh any existing rights. We are concerned that the existing rights of appeal to the Privy Council can be defined as applying to those cases that are engaged and proceeding in New Zealand and for which the final court of appeal is the Privy Council. The transitional provision identified in Part 2 is not sufficiently long for that. 
I draw the Committee’s attention to the next point regarding the transitional arrangement for running the court in clause 51(2). Before I do that we need to ask how the judges will be appointed. Part of the transition— 
Dail Jones 
: There’s nothing in this bill. 
LINDSAY TISCH 
: That is right. 
Dail Jones 
: It should be here. 
LINDSAY TISCH 
: The point I make is that if there is to be a transitional clause we need to know how the process will work. If we go back to the provision about the constitution of the court we see that there will be five permanent judges in the Supreme Court and they will determine all appeals. There was a very strong argument that maybe there should be six judges but that has been left in limbo. How can there be a transitional provision when we do not know how many judges there will be? 
It is surprising to have a proposed constitutional enactment prescribing the number of permanent judges in the top court as no more than the number of judges required to decide the cases before the court. That will create a number of problems. The Law Society suggested that the number of judges should be seven or eight just as it did with regard to the Court of Appeal which I talked about earlier. The Court of Appeal is covered in clause 43. The society said that in relation to the Court of Appeal rather than reduce the number of judges the number should be extended to eight because the workload would not reduce. At the moment it is six or seven; it should go out to eight. 
With regard to the constitution of the Supreme Court if there are to be only five permanent judges and the Chief Justice some of those judges may be away. There will be absences for various reasons—for example one judge may be sick and another judge may be on leave or attending a conference or there could be other obligations. Also judges have their sabbaticals. Within a 5-year period most lawyers—and we have lawyers in Parliament—would be able to take up those sabbaticals. 
Simon Power 
: I wish I had. 
LINDSAY TISCH 
: That member is a young lawyer who is probably too young to know what a sabbatical is. The point I make is that there will be times when judges will not be available. We believe that the transitional period—and we argued this at the select committee and the submitters were very clear on this—needs to be much longer than it is now. 
LUAMANUVAO WINNIE LABAN (NZ Labour—Mana) 
: 
 I move  
That the question be now put 
. 
STEPHEN FRANKS (ACT NZ) 
: 
 In the debate on this part we have had some quite curiously wide comments and I will refer very briefly to a couple of them. First on the question of cost there is the notion that somehow New Zealanders will be saving something with the commencement of this legislation. Indeed the cost will come in very early because the court is to be set up and ready to run by the middle of next year. However it may well be that people will elect to run most of the appeals that could be run—a backlog a pipeline of appeals for several years—to the Privy Council. So we will incur all the set-up costs we will incur the cost of removing judges from the Court of Appeal and taking them to the Supreme Court where they will sit twiddling their thumbs for quite a long while if as we expect those New Zealanders who can still do so exercise their right to take their cases to an assuredly impartial and independent tribunal. That may be the dozen or so cases a year that we currently have. 
This legislation subjects New Zealanders to another 40 or 50 cases a year. We will have the highest ratio in the English-speaking world of final appeals at the third level. We will have around 12 appeals per million people when the court is in full force after the transitional period is over and I calculate the transitional period set out in clauses 48 and 50 will expire in around 2 years. When that is over we will have around 12 appeals per million people and that number will go up while Britain contents itself with one per million the United States with even less the Canadians with around two to three per million and the Australians with at most four to five per million. This Government thinks it is justice to have New Zealanders so engaged in dispute resolution that they carry 12 appeals per million people through at the expense of approximately $200000 to $300000 a case. 
I also want to talk about the reasons for the changes recommended by the Justice and Electoral Committee to clause 48 and the consequential changes to clause 50. Clause 48 states that a case that has been fully heard in the Court of Appeal or another New Zealand court and that could have been appealed to the Privy Council can still go ahead to the Privy Council after the Supreme Court is set up. The obvious reason for that is that the judges who are being appealed from may be the same judges one is forced to appeal to. That is elementary. But what about the cases that have been partly heard? The same problem occurs but the bill does not deal with it. Of course the Government is utterly indifferent to the problem of apparent bias or apparent partiality in a court. It just says we should leave things to it and that is not what it intends. 
The effect of the transitional provision is that if one has a partly heard application that has not been completed or for which a decision has not been rendered one may be obliged to appeal to the same judges at the next level. If a matter is partly heard and a decision is given after the commencement of this legislation then the applicant must apply and take an appeal to the same judges. That did not matter to the Minister. She did not want her court to sit twiddling its thumbs and looking idle while consuming $6.5 million a year and sitting in premises that cost $20 million to set up because New Zealanders who had a choice continued to take cases to the court they preferred. That would be a very bad look in an election year so we have this half-cocked transitional provision that does not achieve what it should have achieved. Clause 48 is an abortion to those who believe that justice should be done by courts that patently are not being judges in their own cause. 
The other element that arises as Mr Lindsay Tisch said is the appointment process. We left that open and had no time to debate it because we had one 5-minute speech on the previous part. The only way to avoid apparent bias under clause 47 I believe will be to use to the max the power to appoint temporary judges. And of course who does that? The Attorney-General can choose temporary judges who suit the Attorney-General’s ideology. There is no protection in this bill against stacking the court with the favourites who have proved by their decisions to suit the Government. The Government can go out and recall Justice Thomas. Justice Thomas made it plain in his submissions how keen he was to be able to develop an indigenous law and we can expect to see him back as a temporary judge appointed by the Minister to deal with that. 
DAVID BENSON-POPE (Senior Whip—NZ Labour) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 55 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Motion agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 151 in the name of the Hon Margaret Wilson to Part 2 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 71 
New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2. 
Noes 47 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 2 as amended be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 55 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Part 2 as amended agreed to. 
The CHAIRPERSON (Hon Clem Simich) 
: Before we go to the next part I especially thank Mr Stephen Franks for obliging the Chair during that part. 
Schedules 
RICHARD WORTH (NZ National—Epsom) 
: 
 It is often said that there is not a great deal of interest in the schedules to substantive legislation. This case perhaps proves the validity of that point by being the exception. Within the schedules there is substantial material structured in an infinite variety of ways and in many circumstances calculated to confuse. 
I start by dealing with schedule 1. I note that it amends approximately 30 pieces of legislation. When the Attorney-General would have us believe that the schedules are of little consequence she could not be more wrong. Schedule 1 makes amendments to a raft of New Zealand statutory provisions. I note changes to the Child Support Act the Children Young Persons and Their Families Act the Courts Martial Appeals Act the Guardianship Act the Harassment Act the Human Rights Act the Summary Proceedings Act and the Animal Products Act—and the list goes on and on and on—and that is only the first schedule. This bill is characterised by the fact that it has a number of schedules. Schedule 1 is what I have been reading from but in fact beyond that there are other schedules. Schedule 2 deals with consequential repeals and there follows again a long list of statutory provisions. 
Also and quite unusually schedule 3 contains as its heading states provisions containing references to the former Supreme Court. That touches a raft of what are probably private Acts—the Auckland Baptist Tabernacle Act the Church of Jesus Christ of Latter-day Saints Trust Board Empowering Act and so on. But what I need to flag for the attention of members of the Committee is that National has made a commitment when it comes to power in 2005 to abolish the Supreme Court and to repeal this legislation. That will have significant consequences of course for those judges who are foolish enough to seek and take tenure in the new Supreme Court. They should be under no illusion at all that that path will be extraordinarily rocky for them because this major constitutional change starts with no support from many members of the House. 
I recall in the context of statutory history—and relevant to these schedules—that when the Constitution Act was passed which was a major constitutional change every member of the House voted in favour of that legislation. No votes of dissent were recorded. Now in respect of this legislation there is massive dissent. I refer to the position of the judges because I believe that it should be flagged that their tenure will be wholly uncertain. Whether it appears just as a note in the schedule rather than as a substantive enacting provision reference should be made to the possibility of insecurity of tenure so that the warning is loud and crystal clear. The issue arises in constitutional terms because of the provisions of Part IV of the Constitution Act which deals with two things. Section 23 deals with “Protection of Judges against removal from office.” National would in effect with the support of the other centre-right parties be seeking to cut across that provision. Because it is an issue of substantial constitutional significance it is appropriate that the warning be clearly expressed and where better than in the schedules to this legislation. The other section of Part IV section 24 relates to the salaries of judges and the fact that those salaries should not be reduced. Well of course when judges lose their positions they lose not only their tenure but also their salaries and allowances. That should also be made clear. 
Hon MARGARET WILSON (Attorney-General) 
: 
 I talk to the schedules and small amendments as set out in the Supplementary Order Paper. I first thank the staff at the Parliamentary Counsel Office and those who assisted them and the officials in the Ministry of Justice and Crown Law who have gone through—as has been mentioned by the member preceding me—the many pieces of legislation that require me to make reference to the Supreme Court to ensure that the jurisdictions are there. I think it highlights the point that has been made that many of the measures mentioned in this schedule will now enable people to have the right of a second appeal which they do not have at the moment. That is a point that I think is emphasised by the detail that this schedule goes into. 
DAIL JONES (NZ First) 
: 
 What the Minister has said is absolutely wrong. Many of these people will not have the right of a second appeal in the sense that they can bypass the Court of Appeal and go directly to the Supreme Court. Therefore they will still only have the right of one appeal under this new legislation. The Minister has forgotten the situation with regard to the Employment Court for example where people can go directly to the Supreme Court bypassing the Court of Appeal. I am staggered that this Attorney-General should be totally unaware of what is in her own legislation and that she should come here and tell members that there will be a right of two appeals. In fact when the New Zealand Council of Trade Unions gave evidence before the select committee it was adamant that it wanted to have this right of direct appeal to the Supreme Court bypassing appeal to the Court of Appeal. 
It shows how little attention the Attorney-General has given to this legislation. It shows that she is interested only in ramrodding it through Parliament come what may. Before Parliament we have a bill that came back for the report back on Tuesday. I asked the Attorney-General during that debate for the amendments that were to be made but nothing was forthcoming on Tuesday. On Wednesday we got eight pages of amendments. We even got amendments to the schedules which we are now discussing. Even at this late stage we now have the Attorney-General indicating she is not familiar with the complete nuts and bolts of this legislation. 
The member for Epsom Richard Worth went through some of the provisions of schedule 1. We are not talking about a minor schedule as is often the case. That schedule actually has 12 substantial amendments to the legislation on top of many other smaller amendments. The 12 substantial amendments that I counted—and when I say substantial I do not mean a two-line job that just replaces “High Court” with “Supreme Court” or “Court of Appeal” with “Supreme Court” but substantial amendments—include changes to the Child Support Act and the Children Young Persons and Their Families Act. The amendment to the Courts Martial Appeals Act which we are dismissing in a matter of moments actually goes on for two and a half pages. That is the length of the amendments taking out the fact that one or two parts are struck out—perhaps I will reduce it to just under two pages to take into account the struck out bits. 
But here we have amendments to the Courts Martial Appeals Act totalling almost two pages which we are having rushed through Parliament. The Crimes Act again has a substantial amendment that is being rushed through. The next major one the Harassment Act has a reasonably small amendment. The Human Rights Act has a substantial amendment and we are going to have to rush that one through. The Summary Proceedings Act is the sixth major amendment. The amendments to this start on page 38—if it is taken into account that page 37 is totally deleted—and go through almost to the end of page 39. 
Substantial amendments to the Privy Council legislation and the Supreme Court legislation are being rushed and ramrodded through Parliament by this minority Labour Government. There is no majority support for this legislation as far as the votes at the last election were concerned even taking into account the Labour vote the Greens vote and the Progressive vote. They got 38 percent of the vote and the other votes were also at 38 percent. There is no electoral support whatsoever for this legislation. 
Clayton Cosgrove 
: What was your vote? 
DAIL JONES 
: I have had 9 years in this House as a constituency member and I can tell those members that they do not know what being a constituency member is. The soft life they lead nowadays as constituency members is just unbelievable compared with the good old days. 
The Bail Act is another piece of legislation with amendments and there are one and a half pages of amendments to that legislation. It is the seventh amendment I must mention and the amendments to the Crimes Act is the eighth major one. For all those practitioners in that area there are six pages of this schedule devoted to an amendment to the Crimes Act. We will be lucky if we get 5 minutes to speak on this schedule so that is why I am rushing through in this way. If I start to speak on the six pages of the Crimes Act amendments I will be cut short and not get another chance to speak. 
STEPHEN FRANKS (ACT NZ) 
: 
 I am very hopeful that either the Minister in the chair the Hon Rick Barker or the Hon Margaret Wilson can explain something that the Hon Margaret Wilson’s officials were unable to explain in the select committee about the schedules. There is a mystery in the schedules that as far as I can tell is explicable only with some rather sinister assumptions. The mystery in the schedules is that the ability to appeal to the new Supreme Court is extended to people going through the Family Court the Environment Court the Employment Court various courts martial appeals levels and the Maori Appellate Court. That is fair enough it is what the bill is set out to do so why should that be a sinister mystery? 
Simon Power 
: What about the Habeas Corpus Bill? 
STEPHEN FRANKS 
: Habeas Corpus? OK. The Supreme Court Bill also states that such appeals can be on both fact and law. A lot of appeal bodies hear appeals on matters of law only as a way of ensuring that the poor people tangled up in litigation do not have to spend the money that is required when they may have to readdress factual issues. An appeal on both fact and law is an absolute misery. The  
Jarndyce 
 v  
Jarndyce  
case in the Dickens novel  
Bleak House 
 is the archetypal case of misery caused by litigation irrespective of the outcome and appeals on fact and law through three levels cause that. Appeals on fact and law in the Supreme Court are the fate awaiting many New Zealand families in the Family Court many New Zealand businesses farmers and others through the Environment Court and many other New Zealanders through the other courts. 
But there is a very mysterious omission. In all of the other legislation that amends appeal rights that were previously expressed as being on matters of law only there is one omission. What might it be? Appeals from the Employment Court will not go on matters of fact and law. Why would that be? Would we not think that the Attorney-General would want Employment Court appeals on her little baby—employment law—to be dealt with on the basis of being able to get right to the bottom of the facts as every other kind of appeal will? I think there is only one explanation. Officials could not give an explanation when they were asked at the select committee. They did their duty they muttered and mumbled and tried to look as if there were some intelligent reason that perhaps was just escaping me but the reason I believe is inescapable. 
The reason must be that the Minister knows she has been rolled on the matter of whom the new court will comprise. She will not be able to go and select her own toadies to sit on the Supreme Court. She might get a chance to put some of them in waiting at the new Court of Appeal level or put them into the High Court but the Supreme Court will be made up largely of Court of Appeal judges. So she does not want the new Supreme Court playing around with her creation—our employment law—until a little way down the track when she has had a chance to stack the new Supreme Court with new judges more to her liking. 
That mysterious omission of appeals on fact and law reserved only for employment law is more telling than anything else in the schedules about what this bill is really about. There can be no other reason for making a distinction in relation to the Employment Court. It is not because there are already three levels of appeal. That in itself might have been enough to say that Employment Court matters should not be appealed through to the Supreme Court. That gives absolute misery and suffering to many New Zealand employers—when people have their unions financing them all the way through three levels of appeal employers will roll over and concede simply because they cannot face the costs. 
We have something much more telling here in that people cannot take their employment case on fact and law when every other level must. When families go through the Family Court the High Court the Court of Appeal and the Supreme Court they have to face an appeal on fact and law. When farmers or business people or developers or just people who want to build a new granny bach have to go through the Environment Court the High Court the Court of Appeal and the Supreme Court they have to deal with fact and law. But they do not have to when it is a matter of employment law. The Attorney-General does not want to have Employment Court decisions reopened and Judge Goddard’s curious findings of fact reversed. 
MURRAY SMITH (United Future) 
: 
 If there is one amendment that stands out in the schedules it is the amendment to the Legal Services Act which will provide for legal aid to be granted to people who want to apply to the Supreme Court. This is an addition that the select committee put in because we recognised that a failing of the Privy Council is the inability of people to get legal aid to take cases to the council. However they will still have to go through the same tests for legal aid applications as all other cases and in particular go through tests for prospects of success. Given the leave application that people will also have to go through it effectively means that cases will have to be pretty serious to get legal aid to go to the court. 
That people will be able to get legal aid is a welcome extension in terms of the Supreme Court but the irony is—as was pointed out by a number of submitters and in our own discussions—that it would be cheaper to give people legal aid to go to the Privy Council than to set up this court. That deficiency could have been better remedied by allowing people legal aid to go to the Privy Council and we could have had that advantage far more cheaply than the cost of setting up this court. 
One of the things the Attorney-General touted heavily with regard to the bill and is revealed in the schedules is the amendments to various pieces of legislation to allow appeals beyond the Court of Appeal to the Supreme Court—in particular employment environment and family cases and courts martial. Previous speakers have alluded to a second right of appeal and my friend Dail Jones talked about bypassing the Court of Appeal. My concern is that this measure now allows three tiers of appeal for those cases. That could lead to an unfortunate situation whereby plaintiffs and defendants could find themselves through appeals being tied up in the court process for even longer and at far greater expense—even in cases where a small amount of money is involved but perhaps a matter of significant principle. So there is a bit of a two-edged sword in allowing a third-tier appeal level. However the third tier is obviously meant for cases that have serious issues that need to be dealt with. It is the seriousness of the particular issues that the Supreme Court will be dealing with that is at the real heart of this court. It will deal with issues that are more serious on average than those before the Court of Appeal. 
That was the problem that the business community in particular but also the legal community had when it came to the whole issue of putting the Supreme Court in the place of the Privy Council. That issue could have been easily resolved and was picked up early enough with the proposal to have overseas judges which was something that United Future was trying to achieve. There was a clear lack of confidence in the business community in respect of these third-tier appeals and a lack of confidence that the Supreme Court would be capable of making the right decisions in all cases. It was not because the business community lacked confidence in the Court of Appeal judges per se but because it felt that the skills and experience it was looking for in a superior court were far better found in Privy Council judges than in New Zealand Court of Appeal judges. At the heart of it the business community felt that the Privy Council judges—whom even our current Court of Appeal judges accept as being of the highest calibre—were no longer going to be able to rule on decisions that would involve millions and millions of dollars. 
If the Attorney-General had listened and seriously considered the prospect of overseas judges the issue could have been resolved by appointing such judges to the court even on a transitional basis. As recently as the last week or so business community people have said to me that if two out of the five judges were overseas judges with commercial experience they would be far happier with this court. If United Future could have negotiated that provision then effectively it would have gone a long way to addressing their primary concerns and at least some of the business community would have changed their views. 
DAVID BENSON-POPE (Senior Whip—NZ Labour) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 68 
New Zealand Labour 52; Green Party 8; United Future 8. 
Noes 46 
New Zealand National 25; New Zealand First 13; ACT New Zealand 8. 
Motion agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 151 in the name of the Hon Margaret Wilson to the schedules be agreed to. 
A party vote was called for on the question  
That the question be agreed to. 
Ayes 70 
New Zealand Labour 52; Green Party 8; United Future 8; Progressive 2. 
Noes 46 
New Zealand National 25; New Zealand First 13; ACT New Zealand 8. 
Amendments agreed to. 
A party vote was called for on the question  
That the schedules as amended be agreed to. 
Ayes 62 
New Zealand Labour 52; Green Party 8; Progressive 2. 
Noes 54 
New Zealand National 25; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Schedules as amended agreed to. 
Bill reported with amendment.