Graham Kennedy: Register of Pecuniary Interests of Judges Bill — Second ReadingText is incorporated into the Bound VolumeGraham Kennedy: Register of Pecuniary Interests of Judges Bill — Second Reading[Sitting date: 03 December 2014. Volume:702;Page:1127. Text is incorporated into the Bound Volume.]Dr KENNEDY GRAHAM (Green):I move That the Register of Pecuniary Interests of Judges Bill be now read a second time. The bill has experienced a meaningful life even if it may prove to be short. It was conceived with good intent. The idea is to provide some protection to members of the judiciary through a register of pecuniary interests. It is to ensure the avoidance of misunderstandings that could result in the resignation of capable judges. It would relieve a judge of the continuous obligation to make a call on the need to recuse themselves from a case if there may be a conflict of interest involved. It would enable the judiciary to avail itself of the same mechanism that members of the legislature and the executive utilise as an instrument of public confidence in Government. The judiciary as the third branch of Government might perhaps be seen as no exception to the political imperative of public trust.The bill has attracted considerable comment in New Zealand and indeed beyond attracting interest from as far afield as the Parliament of Scotland. The bill was given unanimous if contingent support by the House and referred to the Justice and Electoral Committee. It prompted the first report ever on a member’s bill by the Law Commission. To cite the commission: “The judiciary does not exist in isolation. It is an institution in a particular society. Judges must have the respect and faith of the communities they serve to be effective. This is because in a democracy the enforcement of judicial decrees and orders depends ultimately on public co-operation.”The bill received a number of thoughtful submissions including from the Chief Justice and the president of the Law Society. It occasioned considerable discussion in the select committee itself. The select committee recognised that the bill had the constructive aim of assisting the judiciary in the execution of its duties. For its part the Government adopted a view that it should not proceed with the bill and its reasons are threefold: it would risk the privacy of judges it lacks the focus on important non-pecuniary interests and the administrative burden of operating such a register would outweigh any potential benefit. These arguments are all with respect contestable.Regarding the first argument more ways can be found to ensure the privacy of judges than to ensure the privacy of members of Parliament. The second and third reasons are not in themselves germane to the central thrust of the bill but rather arguments for amending it. An underlying issue is whether in making a judgment of this kind New Zealand should confine its considerations of relevance to common law countries alone; for this is what the Government and the select committee have done. The Law Commission argued that the present substantive law is satisfactory and in line with other common law jurisdictions and so no new legislative correction is warranted but the present law of recusal is unsatisfactory and needs attention.Down here we assure ourselves that common law countries are different in our jurisprudential foundations and so different principles and best practice apply. That self-assurance should be taken only so far. There is a commonality of underlying precepts on which all legal foundations rest. The United States for example maintains a register for judges. The fact that common law countries do not is not in itself a compelling argument for us not to do so in the future. Were it so we would never have adopted from Scandinavian countries the institution of the Ombudsman and as I say the Scottish Parliament has shown some interest as well.Since receiving the Register of Pecuniary Interests of Judges Bill the Justice and Electoral Committee has also received the omnibus Judicature Modernisation Bill running to 1182 pages. That bill is to be divided into six parts of which Part 1 is to be the Senior Courts Bill. In that bill clause 168 addresses the issue of recusal of judges. The Government had always made it clear that refining the law of recusal was preferable to introducing a register of interests. The question therefore is whether the Judicature Modernisation Bill contains provisions that adequately address the stated objectives of the Register of Pecuniary Interests of Judges Bill.The referral of the bill to the select committee reflected a spirit of cooperation between the National Party and the Green Party and I wish to acknowledge the Attorney-General for his constructive approach to this issue. It remains my intent to maintain that spirit of cooperation and so I wish to address the question of whether the principal objective of the bill is adequately taken into account in clause 168 of the Judicature Modernisation Bill as currently drafted. That clause requires the Chief Justice to develop and publish guidelines to assist Supreme Court judges when deciding whether or not they should recuse themselves from a proceeding. Separately the Chief High Court Judge and the President of the Court of Appeal will in consultation with the Chief Justice develop guidelines for all other judges. This would certainly be a step forward but is it sufficient to ensure on a professional basis that a judge is adequately protected from a conflict of interest and is it sufficient on a political basis to assure the public that this is the case?There may be some merit in an amendment to clause 168 concerning recusal guidelines. The shortcoming as I see it is twofold. First the action is one of self-recusal which accepts a degree of personal subjectivity and reduces objective and public engagement in the decision. Second the precise guidelines are left for the judiciary itself to determine. Judges are highly trained and are acknowledged to have integrity but they are human. It is often simply too difficult for an individual to make that call for themselves. As the International Foundation for Election Systems the well-respected US expert body observed: “Although judges often [baulk] at the invasion of privacy that disclosure of their private finances entails it is almost uniformly considered to be an effective means of discouraging corruption conflicts of interest and misuse of public funds.”What is it about the New Zealand judiciary that makes it so different? It has been argued by the Law Commission that members of Parliament have the opportunity to defend themselves through the media. Some defence! It is suggested that judges might be more vulnerable to aggrieved litigants or convicted persons. I suggest that we are all equally exposed in our various ways or should be.I am grateful to the House for allowing this bill to be considered and to the Law Commission for giving it such serious consideration. I know that the bill will not in its specific form be passed into law. It is a fate I can accept with near total equanimity. But I do genuinely believe that the aims of the bill are not adequately covered in clause 168 of the Judicature Modernisation Bill as currently drafted.If the route that is clause 168 is to be followed then I suggest that the bill be more specific as to what these guidelines might be. I plan to move an amendment when the time comes in the Committee stage in respect of the Judicature Modernisation Bill to ensure that this is the case. I hope members will view that amendment in the constructive spirit in which it will be advanced and was shown by the Attorney-General and the Government to this bill.