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:4826] 
STEPHEN FRANKS (ACT NZ) 
: 
 I appreciate the fact that the Hon Dr Michael Cullen has taken this issue seriously. It is indeed a serious matter. When a person exercises a judicial function whether a Waitangi Tribunal member a disputes tribunal hearing officer or anyone else the appearance and reality of independence is vital and that person should not be subject to improper influence. Our concern about the wording of the proposed removal and replacement power is that it is simply inconsistent with principle. 
We can appreciate the concern that if a person who is hearing a tribunal claim appears to have a conflict of interest there should be a way of making sure that that does not continue. As I understood Mr Smith of United Future he told us that there is a process for the removal of people by the Governor-General which of course gives it the right degree of procedural seriousness. To consider that a person with a semi-judicial or judicial function has a conflict of interest is a matter that should be taken very seriously indeed. It should not be open to the presiding officer or to the chair of the tribunal to exercise a power on that basis without that level of process. The alternative is that the chairman of the tribunal in effect could hold over the head of all members at any time their potential removal from a matter. 
I am particularly concerned that the Government and the Hon Dr Michael Cullen thought that it would be sufficient to turn this into an objective test by simply taking out the words “in the opinion of the Chairperson”. Firstly the problem is that it cannot be anyone else’s opinion. With or without those words it cannot be anyone other than the chairperson’s opinion unless the issue is taken to an external court that applies an independent judgment. So Dr Cullen’s amendment does not achieve the objective. Secondly I am worried by Dr Cullen’s amendment because in effect he acknowledged our worst fears. He acknowledged that the words “because of his or her personal circumstances” were intended for more than just illness family pressure or competing demands on a member’s time. That very amendment itself acknowledges that this provision is really intended to get rid of people who are sitting on a matter that the chair of the tribunal thinks it is inappropriate for them to sit on and that they should not be there because they are not in a position to do a proper judicial job. If that is the concern then we have a really serious issue that ought to be dealt with seriously. It should not be left as a matter of discretion. 
The amendment I have moved would make it plain that another clause of that schedule would have to be used. The amendment I have moved simply means that the power is exercisable where members have the sort of circumstances that mean they cannot apply their mind to an issue. They may have family pressures or other pressures and they agree that they should come off the panel. It does no more and no less than that. 
Dr Michael Cullen suggested that we have a more serious problem: a standing problem of potential conflicts of interest that the tribunal members will not recognise or acknowledge. If that is a standing problem then it needs a proper procedure to deal with it. If that is a standing problem it needs an amendment. I am sure the Committee will be quite happy to see this bill reported back without concluding the Committee stage so that we actually have a proper process for dealing with that. At the moment all that the Minister has said confirms the original concern that the words “his or her personal circumstances” were code words for dealing with potential outcomes or influences on the decision that the chair considers improper or does not want to see advanced. 
When I add to that the fact that I am afraid that clause 5AC(4) in clause 5 makes the measure retrospective I am even more concerned. That retrospectivity tells us that the chairman of the tribunal perhaps has concerns right now that there are people who should not be sitting on matters because of problems that this power is needed urgently to get rid of them and that that is intended to happen without their consent. If that is our concern and if those people cannot recognise a conflict of interest when it stares them in the face—and indeed there has been concern that the chairman of the tribunal himself has been a bit slow to recognise such conflicts—then that should be dealt with by something more than simply making this measure more objective.