Worth Richard: Judicial Retirement Age Bill — Second Reading 
Worth Richard: Judicial Retirement Age Bill — Second Reading 
[Volume:637;Page:7511] 
Dr RICHARD WORTH (National) 
: 
 This is a short bill with a planned speedy passage. Its history is that having been introduced on 8 November last year it was read a first time on 15 November. Then as Mr Finlayson has said it went off to the Justice and Electoral Committee where it was robustly dealt with. It returned on 8 December last year to this House and now it faces a second reading which National supports—as I understand do other parties in Parliament tonight. 
It is an interesting point that most people the world over want to retire generally in their early 60s but there are dramatic exceptions including popes United States Supreme Court justices and dictators. I would say that the exceptions are becoming increasingly problematic with the extension of life brought about by modern medicine. If the only effect of medicine were to postpone incapacity so that instead of becoming incapable of work at 70 one became incapable of work at 80 increased longevity would not pose a social problem—or at least a problem that concerns us here. The problem arises from the fact that medicine increases the average period in which a person remains alive despite physical or mental incapacity. Medicine does not merely increase the length of life; it also increases the length of “sick” life. 
If one looks around the world one sees that the entire trend is against fixed retirement ages. That seems a mistake. It is premised on the correct observation that people decay at different ages so setting any age of mandatory retirement designed to make sure that people incapacitated by age are removed will remove some people who are not incapacitated. But I guess that observation merely identifies one cost of mandatory retirement and the benefits must also be considered. And they are in fact quite great because of the cost of removing people on the basis of individualised determinations of incapacity. Not only are such determinations often very difficult to make unless the individual has deteriorated to an extremely low level but there is a justified concern that they may be used selectively to remove political enemies or professional rivals. 
The crunch issue in the New Zealand Parliament that relates to fixing a mandatory retirement age revolves around two pieces of legislation. The first is the New Zealand Bill of Rights Act and the second is the Human Rights Act. In terms of those two pieces of legislation fixing a mandatory retirement age necessarily gives rise to a case of discrimination on the grounds of age which is contrary to those two Acts. So it becomes necessary to consider whether that prima facie—as the lawyers would say—discrimination is justifiable and that involves considering section 5 of the New Zealand Bill of Rights Act. Without wading into legal swamps I tell members that that provision states that subject to another provision of the Bill of Rights Act “the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” 
 This is not a local or domestic New Zealand issue; this same issue is before the United Nations as is indicated in comments made by the United Nations Human Rights Committee. The committee in one of its statements on the issue of non-discrimination stated “… not every differentiation of treatment will constitute discrimination if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.” That is the examination I would like to speak about in the short time I have. 
The New Zealand Court of Appeal has discussed the question of justification on several occasions. Very broadly the court has stated that one has to look at three issues in seeing whether discrimination is justified. First what objective is Parliament endeavouring to achieve by the provision? Second what is being done rationally connected to that objective? Third is the means chosen to achieve the objective “proportionate” given the nature of the right being limited? 
Just looking briefly at those issues we see quite clearly that the independence of the judiciary is an objective of fundamental importance and other provisions in the New Zealand Bill of Rights Act spell that out. It is fair to say that mandatory judicial retirement is rationally connected and proportionate to that objective. As Mr Finlayson has said in his review of what the case is in other jurisdictions the appropriateness of mandatory retirement ages has been recognised in a number of them. Some jurisdictions as Mr Finlayson has said—notably United States federal courts—have lifetime tenure so without a retirement age one can be there literally till one drops although others such as transnational courts and the Constitutional Court of South Africa have term appointments with or without a mandatory retirement age. That is another way this issue could have been addressed. Instead of having a mandatory retirement age the New Zealand Parliament could have said that judges would have security of tenure could discharge their obligations in a fearless manner and would have 20 years to do that in if they lasted that period. So there are some real issues around lifetime tenure. 
In completing my comments on this legislation I will just pick up on two points. The first one is that this legislation is not a significant change in any real way. We are lifting the age of retirement from 68 to 70 years and as others have said the age used to be 72 years. But I am aware that there is a wish by some members of the judiciary to be part-time judges. I express the hope that as a result of making this change and lifting the retirement age to 70 the system will not yield for the possibility of judges to become part-time judges because I would say to the members of this House that judging is a full-time profession. There is not and should not be created an opportunity for judges to come and go as they fit their judicial obligations around perhaps a score of other activities. I say firmly that there is no place in New Zealand—despite judicial requests to the contrary—for having part-time judges. 
The other point which I just note in passing is that those of us who were in Parliament when we looked at the abolition of the Privy Council and the establishment of the Supreme Court thought that it was appropriate to provide the possibility for acting judges of the Supreme Court—our highest court—to remain in office until the age of 75. I am talking about only acting judges. 
So we have come to the view that it is appropriate to lift the age of retirement for judges associate judges of the High Court coroners and community magistrates from 68 to 70. There is no necessary magic in that 70-year age barrier but let us see how that works and whether it has the intended consequences for which the Government hopes. National supports the bill.