Worth Richard: Judicature Amendment Bill (No 3) — In Committee 
Worth Richard: Judicature Amendment Bill (No 3) — In Committee 
[Volume:630;Page:2242] 
Dr RICHARD WORTH (National) 
: 
 As the previous speaker Mr Chris Finlayson has indicated National supports the Judicature Amendment Bill (No 3). I would like to reflect for a moment on the place of the New Zealand Court of Appeal in the appellate structure and confirm National’s position that it is appropriate to increase the number of permanent Court of Appeal judges to the new number that is identified in the bill. 
The Court of Appeal which is located not too far away from this building—probably 200 metres away—is New Zealand’s principal intermediate appellate court. In practice most appeals are resolved at this intermediate appellate level rather than at the Supreme Court. The Court of Appeal has had a long history. It existed as a separate court from 1862 but until 1957 it was composed of judges of what was then called the Supreme Court—that is what the High Court was then known as—which sat periodically in panels. In 1957 the Court of Appeal was reconstituted as a permanent court that was separate from that old Supreme Court. 
The Court of Appeal generally sits in panels of five judges or sometimes three judges depending upon the nature and wider significance of the particular case. A considerable number of three-judge cases are heard by divisional courts that consist of one permanent judge and two High Court judges who are seconded for that purpose. The Court of Appeal deals with civil and criminal appeals from proceedings that are heard in the High Court and with indictable criminal proceedings in the District Courts. As well matters appealed to the High Court from a District Court can be taken to the Court of Appeal with leave if they are considered to be of sufficient significance to warrant a second appeal. The Court may if it grants leave hear appeals against pre-trial rulings in criminal cases. Finally the Court hears appeals on questions of law from the Employment Court. 
I have offered these views because it is to be instantly seen that this is a busy court. I have said on previous occasions and I repeat now that it is right to talk about the workhorses of the Court of Appeal. The judges carry very substantial workloads. It is therefore appropriate that their numbers be increased. 
I also think the Government’s response to the pressures in the courts which is simply to appoint new judges is only a small part of the processes that should be employed to deal with the problem of clogging in the courts. A topical issue at the moment with the retiring age of judges fixed at 68 is whether it would be a good plan to increase the retiring age to what it used to be—72—or perhaps to a midpoint of 70. I see a frown on the face of a member on the other side of the Chamber and I remind that particular member that in the Supreme Court our highest court acting judges can be appointed up to the age of 75. So it is not to be assumed that those who are in their 70s are less capable and less committed to the discharge of the judicial function than those who are substantially younger. 
In the context of the plan to create vacancies for more judges—of course the implication is that those vacancies will be filled—I also say that this Labour Government is unlike previous Governments in that it is incredibly reluctant to consult on judicial appointments at the higher levels. In not being prepared to undertake that consultation I believe that the Government does a disservice to the judges because it leaves open the very clear possibility that appointments will attract political flak and adverse media comment which is clearly not in the interests of the separation of powers doctrine nor in the interests of the judges. The judges are in an invidious position when they are attacked and unable for reasons primarily of convention to respond. 
We are seeing in current issues relating to the appointment of judges a continuing reluctance by this Government to consult with members of the Opposition who have some insight into the judicial system. I believe that that is drawing us into a new world that we must reflect upon. I am not suggesting that in respect of judicial appointments we should necessarily go the way of the United States’ system with its confirmation hearings but if there is not to be consultation then a middle ground must be sought out whereby the public and Parliament can have confidence in the judicial appointment processes. 
A number of models are available to us and a model that comes readily to mind is that which is followed in Canada. We are talking here about appointments to the appellate levels of court—in this case in New Zealand it would be to the Court of Appeal and the Supreme Court. In Canada the appointment is made after consultation. Following that consultation the relevant Minister—in Canada it is the Justice Minister—would come to the relevant select committee of Parliament and brief the committee as to the consultation that was involved in the events leading to the appointment and also to the merit of the particular candidate. In that way I believe we can be satisfied that there is a transparency of process and also a process that produces a merit outcome. 
This is a very small country. The pool from which judges are drawn is tiny. The reality is that most lawyers know most lawyers. Certainly most court lawyers would know those who are aspirants for the judiciary. That for me was a compelling reason to resist the plan to abolish the Privy Council and substitute in its place this indigenous court—we now have the Supreme Court as our final appellate court. If the Government will not consult with the Opposition on judicial appointments—and we have a new albeit returned Attorney-General Dr Michael Cullen who has made it clear that he is simply not prepared to consult—then we have to start thinking in the context of this bill being worked through its parliamentary process whether at the appellate level there should be some enforced consultation process that would give a confidence and integrity to the appointment of the rank of judges. 
Clause 3 deals with the constitution of the Court of Appeal. I do not wish to say anything concerning delivery of judgments or concerning the issues picked up in clause 6 that relate to the finality of decisions of the Court. But I pick up the merit of the argument in connection with the greater use of video conferencing because this issue circles back to what I said right at the outset. When we are looking at creating a legal system that we can be proud of which is efficient effective and serves our citizens well we need to look beyond the issue of judicial appointments to questions of process and efficiency in the courts. This is clearly one of those situations where there is an increasing place in terms of the timeliness of dispatch of court business to have video conferencing and the like.