Clendon David: Judicature Modernisation Bill — First ReadingText is subject to correctionClendon David: Judicature Modernisation Bill — First Reading[Sitting date: 05 December 2013. Volume:695;Page:15309. Text is subject to correction.]DAVID CLENDON (Green): Tēnā koe Mr Assistant Speaker. We begin the rather significant task of working our way through this document the JudicatureModernisation Bill—a mammoth document I think. In fact my Labour colleague Raymond Huo is somewhat mistaken in his count. If one actually looks at the total number of pages they number 1238 including the preamble. So it is a little bit of homework for us over the holiday break I suspect.This significant document—significant not only in size but in scope and indeed in what it sets out to do—began its journey and is an output of a process that began around 3 years ago. The Law Commission was given the task of looking at our court system and reviewing that system and out of that came an excellent document in November 2012 which was the review of the Judicature Act. That has clearly provided the basis to a large extent for the development of this bill that we are looking at today. The task essentially that the Law Commission was given was to consider the consolidation amendment and modernisation of the various pieces of legislation and processes that have found their way into this bill. Clearly there was a need for that. The point has been made that the Judicature Act itself is well over 100 years old. That almost pre-dates radio and definitely pre-dates television. The world has moved on and of course the legislation needs to catch up.It is interesting that in the terms of reference the task that was given to the commission specifically directed it not to consider major matters of policy and the structure and character of existing trial and appellant courts. I think that is interesting. I do not suggest that it ought to have had that included in this task. I think it had a sufficient task. But to me that is shorthand for suggesting that it was not required—in fact were required not—to consider for example whether our courts should move from an adversarial basis through to a more inquisitorial model recognising that you seldom get pure models of either. But I think it is a conversation that is happening abroad. Increasingly we are starting to hear the discussion evolve—that perhaps it is time to consider whether we ought to make a transition from what is predominantly adversarial through to a more inquisitorial structure or process for our courts. Putting that aside there is some comfort I think in the fact that this bill is clearly focused and all of the documents have contributed to its preparation.The one word that consistently jumps out is “accessibility”. I think everybody sees value in increasing the accessibility of our courts and accessibility to the law and to legal processes. That has got to be a primary objective and a driver of all that we do from here on in. The point is also made that clarity is a necessary precursor to achieving that level of accessibility—clarity about such things as jurisdiction the operating characteristics of the court and the processes. Clarity is an important subset of accessibility and to the extent that that is also addressed I think it will help deliver a very good outcome and a better overall model for us to operate within.To speak briefly to a number of the specifics of the bill it of course creates a single statute that will cover arrangements to all senior courts and similarly a single statute to look after the District Courts and within that the tribunals. One of the interesting things it proposes to do is that it will impose a duty on judges—a requirement—to do things such as publish information relating to the delivery of reserved judgments and recusal from cases and the suitability of judges holding employment or other office while operating as judges and that all final written judgments unless there is good reason not to will be published. That is a point I will return to.There is also a requirement for the Attorney-General to publish the processes followed when making judicial appointments and I think that is a very healthy contribution to transparency. The extra obligations placed on the judiciary do inevitably raise the perennial question of where the line is between requiring accountability from our judges but also protecting the independence of the judiciary. We know there is a very bright line between the role of this Parliament and the role of the judiciary and weneed to preserve and maintain that bright line. I am aware that in the review document there was a proposition that perhaps judges should present annual reports in a sense of their various actions and the push-back from the judges—I think quite fairly—was to suggest that given that those reports would be to Parliament that might be perhaps compromising the bright line between the relative jurisdictions of the courts and Parliament. So I do foresee some rather interesting conversations. In fact the Law and Order Committee has recently had some useful dialogue around the issue of judicial independence compared with parliamentary jurisdictions and I think that will contribute to that indeed.We are particularly interested in the move towards enabling the use of technology—the proposition of electronic courts and tribunals. I made the point earlier that yes 1908 is a very long time ago and it is time that we caught up with the 21st century. Like all technologies we agree in principle obviously with moving to an electronic-based—e-based—system. It is simply inconceivable that one would not make some moves in that direction. But the adoption of any technology or making any technology more pervasive always carries with it a level of risk—the risk of unintended outcomes unintended consequences some of which could be negative. I think we do have to be aware of that and I have no doubt that the Justice and Electoral Committee will think that one through very carefully.It is interesting that in the bill itself it suggests that the following principles need to apply in terms of the use of electronic technology generally. It states: “(a) all persons should be able to deal with courts and tribunals in a technology-neutral way:”. I think that is quite an interesting phrase and one that we will no doubt unpick at the select committee. The principle is that “(b) electronic technology should be used”—and “should” is quite a strong word clearly—“where it—(i) reduces costs: (ii) speeds up the delivery of services: (iii) makes information more accessible:”. Those are all good things but I would also say that I think reducing costs at any cost would not be desirable. The final point made in that part of the bill goes on to say that “(c) access to justice should be preserved for all persons including those without access to electronic technology.” I think that is a necessary protection to put in there because all of us on a day-to-day basis probably have more electronic toys and tools than we can comfortably use on some days but that is not necessarily the norm. As we shift to enabling more use of technology the electronic filing of documents and all the rest of it—I think those are positive things—we do need to be aware that they could come with some fish-hooks.One of the potential fish-hooks that the Greens will be particularly interested in given that we will be requiring judges to post all judgments online is that we just wonder how that will rest with the provisions of the Criminal Records (Clean Slate) Act which was one of the legacies of former Green MP Nandor Tanczos who is unfortunately often best remembered for his appearance but who made some significant contributions to this place. The Criminal Records (Clean Slate) Act is legislation that enables people to leave their pasts behind them. If people make a mistake and fall foul of the justice system but then go on to lead good and positive lives it is appropriate that they should be able to leave that past in the past and that they should be able to just let it sit there. As soon as one puts anything online of course you know there will be serious difficulties about erasing that electronic trace. So we will be looking very hard at requiring that the legislation ensures that posting judicial decisions online does not compromise the intent or the letter of the clean slate legislation as it now stands.I would like to say that I look forward to the select committee wholeheartedly working on this bill. Perhaps it is because of this time of year when we are all feeling rather tired that the task is looking larger than it will be. But it will be interesting it isnecessary it is a good time for it to happen and we look forward to that ongoing work. We will be supporting this legislation. Kia ora.