Cunliffe David: Judicial Matters Bill — In Committee 
Cunliffe David: Judicial Matters Bill — In Committee 
[Volume:660;Page:9349] 
Hon DAVID CUNLIFFE (Labour—New Lynn) 
: 
 I rise to take a short call on the Judicial Matters Bill. I record Labour’s support for the bill and its opposition to the Supplementary Order Papers. As the previous two speakers have noted this bill affects matters of a constitutional nature. It is largely above politics and is about the conduct of judicial behaviour. The important place of the Judicial Conduct Commissioner in our system is recorded as is the need for judicial conduct panels. 
The main provisions of the bill include establishing the new office of the Deputy Judicial Conduct Commissioner appointed by the Governor-General on the recommendation of the House of Representatives after the House has been advised by the Attorney-General. The Attorney-General has to consult the Chief Justice on that recommendation. The function of the deputy commissioner is to carry out the duties of the commissioner in relation to complaints during his or her absence from office or incapacity. Of course on occasion the commissioner can face potential conflicts of interest and if those arise the deputy commissioner will be able to step in. That is all in the name of ensuring that the conduct review process is quite clearly beyond reproach as is appropriate and I am sure that the Attorney-General who is sitting in the chair would agree. 
The bill gives to the commissioner a power to take no further action in respect of a complaint if he or she is satisfied that further consideration of that complaint would in all the circumstances be unjustified. That is a magnificent legal truism; none the less it speaks to a point which is that there needs to be discretion on the part of the commissioner to decline to deal further with complaints that might be for example of a vexatious or frivolous nature or complaints that in the commissioner’s view are outside the powers or role of the office of the commissioner. That power is in addition to the three current powers to dismiss the complaint if it is vexatious to pass the complaint on to a judge who is a superior to the one subject to complaint or to set up a special judicial conduct panel. 
I guess it goes to the point that my colleague the Hon Lianne Dalziel made which is that we should not ignore the possibility that judges themselves can come under pressure. It is a difficult job. They receive variable submissions and they have to deal with a large number of clients who find themselves in all sorts of different circumstances. Judges come under some enormous time pressures and from time to time they can show that pressure. I think it is also important for us to note that judges are human. Judges themselves bring to the courtroom their own perspectives and they reflect their own backgrounds and from time to time unusual as it is those factors may cause a judge to demonstrate behaviours that might not in other circumstances be appropriate. It is also fair to say that a large number of our judges are male a large number of them are relatively senior in years and most of them are Caucasian. Those factors all bring a certain inherent perspective and it is important that we have processes that provide assurance to the public that no matter what the background or constitution of the judge they will be entitled to a fair legal hearing before the courts. 
I think members across this Chamber would be of the view that one of the great treasures of living in New Zealand is that we have a legal system that by and large functions pretty well and accords to New Zealanders the opportunity to have their business heard should they need to in a fair and just manner. That is why of course we have things like legal aid. It is important that justice is available for all; that cases are decided primarily on the merit of the case not on the size of the wallet; and that access to justice reflects the constitutional rights of every citizen. This bill is one small way of enhancing the process of further buttressing the review mechanisms within the process to ensure that unfortunate biases or errors of behaviour can be dealt with. As such in general the Labour Party supports it. 
Labour will be voting against Supplementary Order Papers 108 and 109 and I will take just a moment to explain why. According to the explanatory note Supplementary Order Paper 108 will give the commissioner an added option after the preliminary examination to refer the complaint if substantiated to the head of bench under section 17 of the Judicial Conduct Commissioner and Judicial Conduct Panel Act. Of course a number of consequential amendments flow from that amendment. It will increase from 140 to 156 the maximum number of District Court judges. It will authorise the payment of higher duties allowances to High Court judges serving in the Court of Appeal so that they rest on a more secure constitutional foundation—what a lovely turn of phrase. 
The CHAIRPERSON (Lindsay Tisch) 
: The substance of the member’s speech is now relating to new Part 1A. We are on Part 1. 
Hon DAVID CUNLIFFE 
: Thank you Mr Chairman for that clarification. I thought it appropriate to mention the overall position that the Labour Party is taking but I take the guidance of the Chair that it is not appropriate in this part of the debate to go into the detail of those Supplementary Order Papers. I merely record the fact that the Labour Party will be opposing both Supplementary Order Paper 108 and Supplementary Order Paper 109. 
In continuing I note that the current Attorney-General raised a number of objections when in Opposition during the first reading. He said: “That is the National Party approach—do it subtly but do it effectively.” I think that comment bears remarking upon perhaps more in its general context. A very active debate is going on in this country about whether the hallmark of the current Government is subtlety or effectiveness in the words of the Attorney-General. Those of the “subtlety” view including many in the business community are of the view that the Government is so subtle that it is almost impossible to discern its direction of travel. That has been one of the main responses of the commentariat to the Prime Minister’s opening speech to the House. Certainly in the economic policy area which is for a debate different from today’s there is a great deal of concern in the business community about whether the Government’s intentions are clear enough and whether there is a coherent strategy that would allow the economy to expand and create jobs. Labour members would welcome further elucidation of the Government’s intentions in that sphere because try as we might we are not quite sure how the so-called pillars of change add up to a substantial positive impact on the economy. That is the “subtlety” school of thought. 
The “effectiveness” school of thought which gives some members of the business community comfort is that the Government really does have a significant plan for change up its sleeve but it does not yet wish to tell New Zealanders what it is because they might not like it. The “effectiveness” school tends to the view that many of these things will be revealed in the Government’s second term if it is fortunate enough to have one and that in the second term we might see the Government showing a more—what would be a good judicial phrase? It could be “a more flagrant”—perhaps not. It could be “a more unmasked determination to deliver to core stakeholders” as they might put it. 
I am admittedly drawing a bit of a tangential bow from the as always perspicacious semantic approach of the Attorney-General. He has nailed National’s approach: “do it subtlety but do it effectively.” In so doing I think the Committee would congratulate this one office holder on unifying these two strands of thought about the nature of this Government. He has unified them in one sentence and he has said they are both right. 
Charles Chauvel 
: He’s their philosophical oracle. 
Hon DAVID CUNLIFFE 
: As my colleague has pointed out he is their philosophical icon—was that the word? 
Charles Chauvel 
: Their oracle. 
Hon DAVID CUNLIFFE 
: He is their oracle. He has gone beyond icon to oracle. No doubt we will be addressing him as Sir Christopher Finlayson before long. 
Hon Christopher Finlayson 
: No. 
Hon DAVID CUNLIFFE 
: The Attorney-General I am told is a republican and for that reason would not accept the title of Sir were it proffered. I see he is not rising to his feet. I wonder whether he wishes to clarify for the record whether he is a republican—my understanding is that he is—and whether he would turn down the title of Sir if offered but presumably not during the first term of office. Automatic knighthoods for all members of Cabinet are one of those second-term things. 
We look forward to the day when the true nature of this Government comes to full blossom.