Mapp Wayne: New Zealand Council of Law Reporting Amendment Bill — Second Reading 
Mapp Wayne: New Zealand Council of Law Reporting Amendment Bill — Second Reading 
[Volume:629;Page:1769] 
Dr WAYNE MAPP (National—North Shore) 
: 
 When I reflect on that informative although somewhat cryptic address given by the Minister Rick Barker one has to reflect on the nature of the Order Paper that we have today. I think it very much reflects the flavour of this Government. It really does not have a big agenda. I do not think we could seriously say that those items are of great moment to the land. 
Hon Mark Burton 
: Show me your policy. 
Dr WAYNE MAPP 
: By that I mean for the benefit of the Minister of Justice the totality of the legislation on the Order Paper. We might say that what the Government has decided to spend the next 3 years doing—and I concede it is a necessary thing to do—is using the opportunity of its lack of majority to repair the legal toolkit and legislation of New Zealand. Some people might well say that that is what Parliament should be doing and that Parliament should be making sure that our law is complete up to date and with surplusages removed and that the law is corrected. At a fundamental level I do not think that that is why people send us to Parliament. This legislation is a necessary thing to do certainly but in many respects it is adjunctive work. 
In Britain and in Australia they have different mechanisms to deal with this kind of legislation. I do not believe that any party in Parliament will be opposing this bill—maybe I am wrong but I would be surprised. In Britain they would deal with this sort of bill by referring it to what is known as the Main Committee which is essentially an adjunctive body of the main House of Commons. The bill would be progressed through there because it is simply a non-controversial repair of the legal toolkit. 
I know that the issue has been considered in New Zealand. It was considered by the Standing Orders Committee and it was suggested that we do a similar procedure to that of Britain as well. So for instance the Government would work out what legislation would essentially be adopted by consensus in Parliament and refer that legislation to a situation where there would be a much lower quorum than exists in the House at the moment to be dealt with in essence on Thursday evenings outside normal hours. That would be the way we could repair the legal toolkit and I can think of all sorts of Law Commission reports—indeed some of them are on this Order Paper—that would fit into that case. 
But this Order Paper actually says that this Government has essentially run out of ideas. It has no big bold initiatives. Government members are now reduced to being the repair and maintenance people of the New Zealand statutes. It is worthy work but I suggest to the Minister that perhaps it is not really what the voters expect of us in this House. 
I want to refer directly to aspects of the bill itself. It is certainly technical. Obviously Supreme Courts judgments have to be reported. Of course some of them have already been reported. I noted that the Minister said that the volumes of the  
New Zealand Law Reports 
 have expanded. Initially there was one volume a year but it is now four volumes. I make this point which perhaps the council could consider as the volume grows. Clearly with a Supreme Court relative to the Privy Council there will be a larger volume of reports. I would expect all those decisions to be reported because of their significance and I think there may well come a time when the  
New Zealand Law Reports 
 will have to be split into two sections. One section would deal with the court of originating jurisdiction—in essence the High Court. So we would have a High Court series of reports then we would have another series that would essentially be appellate reports from the Court of Appeal and the Supreme Court. The current system would be broken into its two component parts: the originating jurisdiction of the High Court; then a separate series of reports from the appellate courts. That is the practice in a number of other jurisdictions where the volume has sufficiently increased and I suggest that that should be the case when there are four or five volumes a year. There are four now and there will be an increased level from the Supreme Court with about 30 decisions a year realistically. 
Quite a number of those decisions are merely right of appeal or leave to appeal decisions but they are important in their own right. Lawyers the public and the ministry need to understand in what circumstances leave to appeal will be granted. I note there is a very interesting article in the  
New Zealand Law Journal 
 this month which analyses precisely how the Supreme Court is dealing with issues around leave to appeal. 
In the few minutes I have remaining I want to turn to some important constitutional issues because they deal with the origins of the Supreme Court. [ 
Interruption 
] The member can read the  
Mapp Report 
 for important constitutional issues in relation to the Whangamata decision which my colleague Sandra Goudie did me the favour of putting into  
Hansard 
 as to the way Ministers should exercise discretions when courts have made decisions. 
The Supreme Court was established essentially by the Government forcing it through using its majority. Certainly there was consultation through the select committee process but there was no super majority. There was no real intent to gain the consensus of the House. Crucially there was no sense of putting it to the public by way of referenda. I appreciate that I am reciting historical facts here but I want to lead to the next point and I know that the Attorney-General will be interested in it. 
I believe that we have to develop better practices and by that I mean formalised practices around issues of appointments to various important constitutional positions. For instance the Ombudsman who is an officer of Parliament is always appointed by a consensual process of all parties. That is a good thing. Similarly that is the case with the Parliamentary Commissioner for the Environment with the Controller and Auditor-General and now also with the Inspector-General of Intelligence and Security. The Inspector-General of Intelligence and Security must be by law a retired High Court judge. So we have by convention said that certain important positions which are constitutional in nature and important checks should have a consensual approach to their appointments. 
I suggest there are other important constitutional appointments. Justices of the Supreme Court are clearly in that category. They are final judges and in the words of a famous American jurist they are infallible because they are final. That is very different I suggest from the position of High Court judges who are always subject to review. So in the case of Supreme Court justices—and I would say in the case of appointments to all the superior courts—there ought to be a more formal consultative process so that those appointments are made with some degree of consensus rather than just by the exercise of the Attorney-General’s Crown prerogative as currently exists. 
I suggest that the position of Governor-General is also in the same model. I am aware that there is the quiet convention of a certain level of consultation. However it is time for the appointment of a new Governor-General—I know that various colleagues of mine have been running polls one might say on that—and I think a more formal process is needed in those kinds of things. 
A bill of this nature although technical gives one the opportunity to consider and deliberate on how our constitution is evolving because it is evolving in a significant and fast-paced way which frankly has been done unilaterally to a very large extent. I say to the Government that in the environment of MMP it should think again and develop more consultative and publicly open processes. I am not talking about the US approach to appointing Supreme Court judges. Clearly that would not suit our system. But I am saying that we can do better than we are at the moment and that maybe in an MMP Parliament as finely balanced as this one is this is the time to develop new procedures.