Smith Murray: Judicial Matters Bill — Second Reading 
Smith Murray: Judicial Matters Bill — Second Reading 
[Volume:617;Page:12803] 
MURRAY SMITH (United Future) 
: 
 United Future is opposed to the Judicial Matters Bill and we will oppose its second reading tonight. United Future was the only party to oppose this bill at the first reading. I am pleased to say that most parties in the House now oppose the bill having seen the detail and heard the Justice and Electoral Committee submissions. United Future is opposing the bill largely because of the absence of a judicial appointments commission. However we also agree with ACT that the fettering of the right of Parliament to remove a judge is a serious constitutional step that has ramifications beyond even what ACT has addressed tonight which I will deal with. 
We disagree with National however that the Judicial Conduct Commissioner is not needed. We also disagree with National that there should have been sanctions in the bill including censure public apology or requirement for counselling for judges and I will also deal with that. 
In terms of this bill the Greens have been somewhat of a pushover for the Government and in fact they have had the backbone of a jellyfish. Page 11 of the commentary to the bill states: “The United Future National and Green members consider that the bill should provide for a more transparent judicial appointments process. Significantly concerns regarding the judicial appointments process were raised by submitters during our consideration of both this bill and the Supreme Court Bill.” 
So the Greens like United Future felt that a judicial appointments commission was the bottom line in this bill. It was part of the condition of the Greens’ support of the Supreme Court Bill that a judicial appointments commission would at least be investigated if not implemented. The Greens came to United Future and suggested we both oppose the bill unless there was a judicial appointments commission or at least substantial progress towards one but I note the Government has now convinced the Greens that the issuing of a discussion paper is sufficient in order to meet their objection. Although submissions are due to close on 30 July 2004 there is no commitment by the Government to go any further than simply receiving those submissions. There is no time line beyond that and no commitment and the Greens in this respect have been pretty naive. The Government is not interested in pushing this issue along because if it had been it would have included it in the bill. In fact the Greens say that the issuing of the discussion paper would not have happened without the Greens pushing for it. 
Dr Wayne Mapp 
: Oh really! 
MURRAY SMITH 
: Exactly. This demonstrates that Labour has no interest in going any further in this matter. Effectively the issuing of the discussion paper is a fob simply to get the Greens’ support in order to pass this bill and then I suspect that it will be forgotten. 
United Future was open to Part 2 of the bill going through but there is certainly no urgency for Part 1. That could have waited until the discussion paper had run its course—30 July is only 10 weeks away—and then we could have reached an agreement with the Government on the process from there. We might then have been able to reach some sort of accord in terms of where things are going. 
This is not just a question of the fact that a judicial appointments committee was included in the bill simply as something United Future wanted to happen by itself as an independent step. We think it is important that a judicial appointments commission is part of this whole process of dealing with the judiciary. The absence of a commission to deal with appointments as well as discipline will undermine the role of the commissioner provided for in this bill because he or she becomes a negative agent. In terms of members of the judiciary’s approach to the commissioner they will simply see him or her as a judicial police officer and I think that will impede the commissioner’s ability to voice any judicial concerns he or she has. Select committee members heard about the process in New South Wales and I notice that the Attorney-General was claiming that this bill did everything New South Wales thought was a good idea and did nothing that it did not think was a good idea. But one of the things the people from the New South Wales commission told us was that they believed the education functions as well as the discipline functions were an important balance. The fact that they could provide positive education was an important part of their role so that they were not seen just as a negative agency. 
However what is proposed in this legislation is simply a negative agency. The judiciary was opposed to this bill and the commissioner is not welcomed by them. In terms of getting the judiciary’s cooperation the Government has really started off on the wrong foot. It is far less likely to get it and the judiciary will have a negative attitude to the commissioner whose job is to investigate complaints against them. 
The ACT party talked about the fettering of the right to remove; the ability of this Parliament to remove a judge. Clause 33(2) provides that: “A Judge must not be removed from office unless a Judicial Conduct Panel has reported to the Attorney-General that it is of the opinion that consideration of the removal of the Judge is justified.” ACT members have correctly pointed to the power that this gives in terms of the Judicial Conduct Panel and that Parliament is fettered by that provision in not being able to remove a judge unless the conduct panel has come to that conclusion. 
The argument is that Parliament should not remove a judge unless there has been a proper investigation and that natural justice issues provide that effectively there should be some sort of mechanism like this before Parliament entertains the removal. But what this bill fails to address is the situation of a reluctant Attorney-General. There could well be a situation where the Attorney-General fails to move. If the Attorney-General does not appoint a panel under clause 20 which the Attorney-General must do then the matter will not procede and Parliament cannot consider it. There is no obligation on the Attorney-General to appoint a panel. Furthermore the Attorney-General will decide who is on the panel. If the Attorney-General does not want the judge removed it is pretty simple for him or her to appoint a conservative panel which the Attorney-General feels confident will not reach the conclusion that removal is necessary. 
So it is not just a question of the fact that it is in the hands of a panel rather than Parliament but it is in the hands of the Attorney-General and he or she will totally govern the issue as to whether a judge ought to be removed. That move is taking away a power of Parliament which is entirely inappropriate. 
I disagree with National however about whether there needs to be provision for sanctions. The separation of powers means that there is a real problem if there is a legislative provision that provides an obligation on the judiciary to do something even if it is discretionary. The judicial review process would mean that there could be the undesirable situation of a head of bench potentially being taken to court for failure to discipline or failure to consider the discipline of a judge. I think that is an unseemly situation which ought to be avoided as much as possible. It may be that if there were a situation where the judiciary was simply turning a blind eye to things there may have to be a greater requirement to do that but I think one ought to be very reluctant to move down to that step and get into a situation where the judiciary themselves are being judged. 
However as I said in the United Future minority comment in the bill this places a strong obligation on the heads of benches and on judges generally to be and to be seen to be transparent and accountable for their actions when it comes to matters of discipline and more could be done to achieve this. The judiciary like every other public institution is dependent on maintaining public confidence to operate relatively unfettered by statutory restrictions. At a time when the actions of judges are coming under increased scrutiny maintaining public credibility is vital and I think it is important that the judiciary take careful note of that. Indeed the judiciary may well consider that the decision of the Government to enact this bill is sending a message to it concerning its handling of complaints. 
As to the formal process of removal which National and New Zealand First consider is not needed we also disagree with them. The example that National gave as to why it was not needed in fact showed the opposite. Justice Edwards in 1913 was declared to have been behaving intolerably yet it was not until 1921 that he finally resigned—a period of 8 years. Under this bill in that situation any member of the public could have instigated the complaints process that could have led to a much quicker consideration of his activities. So I think that the provision in terms of judicial conduct is something that the Government should provide for. However what is left in this bill is a Judicial Conduct Commissioner to investigate complaints as a judicial police officer in a negative role. 
Dr Wayne Mapp 
: And that’s exactly the problem. 
MURRAY SMITH 
: That will be exactly the problem as my colleague has said. 
 The Judicial Conduct Panel will be seldom used—but at the whim of the Attorney-General. Then there is a miscellaneous provision in Part 2 that deals with increasing the number of part-time judges which could have been dealt with independently of Parts 1 and 2. United Future will not hold its breath that the Government will implement the Judicial Appointments Commission. We suspect that for the commission to become a reality United Future will have to make it a condition of our support for the next Government.