Franks Stephen: Maori Purposes Bill (No 2) — Second Reading Instruction to CommitteeCWH In Committee 
Franks Stephen: Maori Purposes Bill (No 2) — Second Reading Instruction to CommitteeCWH In Committee 
[Volume:607;Page:4820] 
STEPHEN FRANKS (ACT NZ) 
: 
 I have come to this debate after it has already begun on this point. This is the question whether the chairperson of the tribunal should have a power to replace a presiding officer a member sitting on a tribunal or sitting on a matter. I am looking at this obviously as a lawyer with a very long period of practice and trying to work out why this measure has been made retrospective. It seems to me that if it were a clause merely for the avoidance of doubt or to avoid future problems one would not have subclause (4) of clause 5AC. One would simply have the clause drafted because it was thought that at some future time there might be a difficulty. Presumably this has been prompted by a difficulty of some kind in the past. But if in fact what we have here is a clause that is intended to gas an existing member or to take him or her from the tribunal on a matter then this Committee needs to know the detail. We need to know exactly what it is that has made it necessary to put an explicitly retrospective provision in a clause designed to give the chairperson of the tribunal the power to replace a member once a hearing is under way. 
The normal thing is that one would have a power for a member to resign and to be replaced. That would be perfectly straightforward. Why is that not there? It does not say here— 
Hon Member 
: Yes it does. 
STEPHEN FRANKS 
: No a power for a member to resign from a particular hearing. That is quite different from resigning from the tribunal. Of course a member would get off if he or she resigned. But the normal power here would be a power to retire from a particular matter because the member considers that it is not appropriate that he or she continues to sit. But that does not even appear to be one of the grounds. So just exactly what circumstances have prompted this? The officials must have in mind—they must be able to brief the Minister in the chair on what the circumstances are that have given rise to this. Because if they have not why craft such a tortured provision? Why craft a provision and then make it retrospective? 
Why craft it with two categories? There are the personal circumstances that make a person unable by reason of his or her physical or mental condition to continue; or there is the more broad issue which would cover the earlier one anyway: that it would be unreasonable to expect the presiding officer or member to continue to participate. Is this aimed at Dr Michael Basset? Is it aimed at a position of personal circumstances where some parties to a hearing do not like someone? Is that what we are getting at? Is this aimed at allowing the tribunal chair to start crafting or recrafting tribunal divisions halfway through a hearing when a member is unpopular with some of the claimants or perhaps it is the Crown? We do not know. We have to protect the integrity of the tribunal proceedings from overbearing behaviour by the Crown just as much as from overbearing behaviour by a claimant. 
Let us think of a circumstance where one has a tribunal chair who is very anxious to be promoted and who perhaps wants to get on a new Supreme Court or who perhaps wants to go to the Court of Appeal and therefore wants to curry favour with the Government. Should we be providing—in something that is supposed to have judicial independence and a reputation for judicial impartiality—a power for that chair to perhaps craft an awkward tribunal so as to resolve the doubts of the Government? The chair can say that it would be unreasonable to expect say Dr Bassett to continue to participate in the particular claim because his personal circumstances are such that he has appeared on Television New Zealand and said that the researchers for the tribunal are biased. Is that what this is all about? It could be that it goes the other way. Maybe it will be like Wai 262 which is one of the very very difficult conceptual claims where there are enormous political implications. Will people be replaced once it becomes clear that their inclinations are not what the Government would like them to be? Will some personal circumstance then be found for the chairperson to use to replace them? 
This is a significant matter. There is already enough doubt about the integrity of the court process. Maori claims are based on the fact that over the years the Maori Land Court was not acting in the interests of justice but in the interests of land-grabbing Pakeha or the Government.