Franks Stephen: Judicial Matters Bill — In Committee Procedure 
Franks Stephen: Judicial Matters Bill — In Committee Procedure 
[Volume:617;Page:12893] 
STEPHEN FRANKS (ACT) 
: 
 I am delighted to have the chance to speak following what I thought was an excellent summary by New Zealand First’s Dail Jones of the reasons for opposing this bill. Like him I am a little surprised at the apparent lack of passion on the part of National in its opposition to the bill. This bill has been very properly opposed by National at an earlier stage for most of the reasons that Mr Jones raised. I suspect that the difficulty he was facing was temporary and may be related more to the change in personnel on the National benches at the moment. 
I am concerned that this bill not be treated lightly because a constitutional change without a consensus against the considered views of the Law Society the judges and the people concerned about civil liberties is a serious issue. It is particularly serious when it occurs after New Zealanders no longer have the comfort that they can appeal outside New Zealand to a body that is patently beyond the reach of local passions and local political influences. 
Regardless of the fears that people have about potential political alignment or consideration by New Zealand courts we did have the comfort that it was not worth stacking the New Zealand courts. It was not worth loading them up with people sharing ruling ideological views so long as we had a right of appeal outside New Zealand to a court that was beyond reach of the New Zealand appointment process. 
Now we have this Judicial Matters Bill. I do not think most of us who were looking at it in the select committee realised until quite a late stage that it allows the Attorney-General to appoint a very large number—almost infinite at its extreme—of new judges and to fill up slots well in advance. That is because there is no restriction on the new power to appoint part-time judges. Strictly this debate is about the title of the bill. Of course this bill is about to be divided into 11 bills covering all the different Acts that it amends. But the part that relates to the appointment of judges which goes into each Act constituting the particular court does not indicate how significant this constitutional change is. 
Firstly each subpart simply amends the total number of judges and provides that part-timers can be appointed which is not in itself an objectionable concept but then the bill says that it is the Attorney-General who decides how much or how little time those judges will spend working. It is not the head of bench not the judges collectively not the court but the Attorney-General who will decide. Secondly the bill says that the number of part-timers will be counted as fractions for the purpose of the total limit. That provides a way to evade what has been a constitutional protection for generations—that is that the number of Her Majesty’s judges cannot be increased by a politician without going through Parliament and making his or her intentions plain and justifying them. That has been removed. 
The other concern of course is the provisions that came under the label “judicial conduct”. When the provisions were first introduced the journalists were persuaded that these were to deal with complaints against judges and to upgrade what was called the “accountability of the judiciary”. They are nothing of the kind. This bill is all about sacking judges. It should have been called the “Judicial Impeachment Bill” or it could have been called the “Judicial Removal Bill”. It has nothing to do with ordinary complaints of misconduct. They will go to the Judicial Conduct Commissioner but the commissioner is simply a postbox to pass them on to the head of bench in each area if they are not of a kind that goes as far as removal. 
What have we done with the removal power? This bill allows the Attorney-General to ensure that a judge favoured by the Attorney-General cannot be impeached. It allows the Attorney-General to appoint the Judicial Conduct Panel. If the panel decides there is not enough to justify removal it does not go any further. Even if it does decide and the Attorney-General does not like it she can decide that it does not go further. This contrasts with the current position where any member of this House can impeach a judge. 
ACT would have been quite happy to support a more disciplined process. ACT would have been very happy to support many of the provisions in this bill if it was simply about providing a better investigative process as an immediate consequence of one of those impeachment motions. If it had been a set of changes to the Standing Orders which provided for a proper dispassionate investigation and report to Parliament to precede any debate on an impeachment motion this would have been quite unobjectionable in constitutional terms. Instead this bill which was just blandly called the Judicial Matters Bill contains a constitutional bomb—that is the removal of the people’s power through their elected representatives to impeach a judge in whom they have lost confidence. 
Worse it does not even tackle the hard issues on removal. The hard issues are the issues that the Solicitor-General grappled with in relation to Judge Beattie. The hard issue is: what is the standard? Is it just conduct unbecoming in a sense that it is conduct that brings discredit to the judiciary or does it actually have to be something that is nearer to a criminal offence—a sort of fraud something that shows real moral turpitude? I hope that it is the higher standard because we need to require a high standard in this area otherwise judges could feel that their independence was threatened and be kowtowing to the executive—to Government Ministers—to avoid any prospect of their becoming the victims of a Judicial Conduct Panel witch-hunt. 
There is nothing in this bill about whether the conduct has to be proved beyond reasonable doubt. In other words is it appropriate for the commission or the panel to report that a judge should not be removed if it simply has not been proven that he or she has been guilty of a serious wrong? Is it enough for a judge that he or she can get off simply because it is not proven? Should we deem innocence? Or if the circumstances are pretty reprehensible and their very presence on the bench will bring it into disrepute should that not be something that Parliament can proceed with to protect the reputation of the judiciary? Of course it should. 
As it is at present undefined Parliament can do that. But under the system as it will be if the Judicial Conduct Panel decides that the appropriate test is “proven beyond reasonable doubt” and that it must deem someone who has not met that standard to be innocent then the whole question is beyond Parliament. In an MMP Parliament it may be only one party that wants to protect the bad judge. It need only be the party of the Attorney-General and the judge is protected. This is a significant change and an unnecessary change. It would have been easy to get the agreement of the rest of this Parliament I am certain to a much more modest and defensible change that did not enhance the powers of the Attorney-General. Instead the Attorney-General would not accept amendments that would have made that possible. 
I tell members opposite that when they thought they could get rid of the Privy Council recourse without political cost they were wrong. They scoffed at the idea that people would become interested enough in a matter that was so arcane. Yet it has become part of genuine well-founded folklore that the Government has designs on the constitution. This will be another piece of that pattern. This is an unnecessary provocation. This is quite rightly upsetting people who worry about civil liberties; of course not the Greens who only pretend to worry about civil liberties. 
This bill will draw attention however much it has slipped through without notice at the moment. It may be that that attention will not be drawn until there is an incident. But the Government will wear the responsibility for setting a precedent that a bare majority in this Committee can tinker with the constitution. The Government should remember that when it changes and the temptation is in the hands of people such as myself the National Party and New Zealand First and we have this precedent in front of us even those of us who do not want to use it will face colleagues who are saying: “Why not? They did.” Those of us who worry about the constitution will face the precedent that this Government has established of being able to tinker with judges. Our less sensitive colleagues will not worry.