Third Readings — 
Text is incorporated into the Bound Volume 
Third Readings — 
[Sitting date: 27 February 2007. Volume:637;Page:7677. Text is incorporated into the Bound Volume.] 
Third Readings 
Hon RICK BARKER (Minister for Courts) 
: 
 I move  
That the District Courts Amendment Bill (No 3) the Employment Relations Amendment Bill (No 2) the Judicature Amendment Bill (No 2) Te Ture Whenua Maori Amendment Bill (No 2) / Maori Land Amendment Bill (No 2) the Coroners Act 1988 Amendment Bill and the Coroners Act 2006 Amendment Bill be now read a third time 
. This legislation raises the retirement age for all judges of all courts and for associate judges of the High Court coroners and community magistrates from 68 to 70 years. 
As mentioned in my previous speeches a compulsory retirement age for the judiciary is desirable for two main reasons. The first is judicial independence. The independence of the judiciary is a fundamental concept underlying New Zealand’s democratic system. A compulsory retirement age is key to protecting that independence. The second reason is that a compulsory retirement age means that monitoring of individual judges to guard against issues of incapacity is not required. Raising the retirement age of the judiciary to 70 years brings New Zealand into line with comparative overseas jurisdictions in particular the United Kingdom Australia and Ireland. 
The Justice and Electoral Committee were comfortable with the changes in the legislation. These changes are also supported by the judiciary itself. For these reasons I commend the bills to the House. 
CHRISTOPHER FINLAYSON (National) 
: 
 I wish to address the House only briefly on this matter in the third readings of these bills because I think that most of the arguments were adequately raised in the second reading and during the Committee of the whole House. As I explained the original age for retirement of judges certainly in the High Court was 72. It was then reduced to 68 after the report of the Royal Commission on the Courts chaired by the late Sir David Beattie in the late 1970s. So that I could say something new in the third readings a few days ago I looked up that report of the royal commission. Paragraph 685 talked about the statutory requirement age of 72 for judges being out of line with the generally accepted retirement age for most public offices the civil service and the business community. Indeed at that time magistrates—as they then were—had to retire at age 68 although there was provision for them to be removed from office in certain circumstances before that age. 
Sir David referred to the report of the Magistrates’ Executive which told the royal commission about the general pace and pressure of work in the Magistrate’s Court having increased substantially in recent years and that it was essential that a magistrate be able to give “of his best every hour of his judicial career. Concentration and standards cannot be relaxed at any time and further that the maintenance of a high standard of judicial determination until age 68 may in some cases become difficult.” So in fact the royal commission then was recommending that the normal retiring age for judges of the High Court and District Court should be reduced to 65. As it turned out the age was reduced to 68. As I said in both the second reading and Committee debates there is simply no justification for such a low retirement age now for reasons that have already been advanced. 
So National supports the third readings of these bills says that the legislation is timely and notes what the Law Society said which was that the age for retirement could really be 72. It may well come to that. It may even be higher in years to come. But 70 is an appropriate age at this time and that is why the National Party supports the third readings of these bills. 
LYNNE PILLAY (Labour—Waitakere) 
: 
 I would like to take a brief call on this legislation. It is common-sense legislation and I thank the Justice and Electoral Committee for its sensible approach of referring the matter back to the House. The legislation has been very uncontroversial. All the comments we received were in favour of it and it brings us into line with other jurisdictions. It means we can use the very good skills that we have in our judiciary for longer. I think that changing the age of retirement from 68 years to 70 years is a move in the right direction and that it will enhance the service provided by our judiciary. For that reason I commend the bills to the House. 
Dr RICHARD WORTH (National) 
: 
 I join my colleague Chris Finlayson in indicating that National supports this legislation. The original bill the Judicial Retirement Age Bill has been divided into six bills. The reason is that separate changes are being made to separate statutes. 
It is very unusual to have a retiring age in the context of modern society. The reality is that Prime Ministers can serve for as long as their luck lasts and that is so in the case of many public officials. But here we see that it is appropriate to set a specific retiring age in the context of protecting and enhancing judicial tenure. There is no magic in age 70 being selected as the age for retirement. The age might as previous speakers have said have been set higher and for one part of our judiciary it was set at 72 for a period of time. 
I simply note in my concluding comments on this legislation—the next stage of course being the Royal assent—that we do have an ability for acting judges of the Supreme Court to serve until the age of 75. I repeat the hope I have expressed that this change to the legislation will not prompt part-time judges to have a place in our system for judging is very much a full-time business. 
KATE WILKINSON (National) 
: 
 In speaking in support of the third readings of these bills which increase the retirement age from 60 to 70 years of age for judges I have often been asked throughout the passage of the legislation why we need a retirement age for judges at all. Why should there should be a mandatory retirement age and why should judges not just retire when they feel like it when they no longer feel able to do the job properly or indeed when they no longer want to do the job? A mandatory retirement age for judges is not peculiar to the New Zealand jurisdiction. It has been noted that this legislation brings the age of their retirement into line with other jurisdictions such as the United Kingdom Australia and Ireland. Canada is a bit more generous in allowing its judges to retire at 75 years of age; certainly there is no magic in 70 years of age as opposed to 75 years of age. 
A mandatory retirement age is essential for a number of reasons. These have been canvassed before but they are worth repeating. One is the vital principle of judicial independence. There must be a separation of powers between the judiciary and the legislators. That is how our democracy works and it is an important foil against any semblance of corruption. Politicians should not and must not be in a position to fire judges. Judges must be able to act independently. If they cannot act independently or are not seen to act independently then any confidence in our judicial system will be seriously eroded. 
Judges must be able to deal with the merits of any case without having to worry about whether they still have a job because they interpreted the law—which we made—contrary to how we intended it to be interpreted. That is why it is so important that we do get the law right and that we do not blame the judges for their decisions. They apply the law that we make. If the decision is not what Parliament intended then it is up to us to put it right and to make sure that the law we make is understandable or more to the point that it is not able to be misunderstood. Judges must have independence and we must conscientiously protect and maintain the separation of powers principle. 
This is straightforward and non-controversial legislation. It merely increases the retirement age of the judges in the District Court the High Court the Employment Court the Maori Land Court and the coroners’ court. It is consistent with other jurisdictions. National supports this legislation. 
RON MARK (NZ First) 
: 
 I rise to put on the record that New Zealand First will continue to support the passage of these six bills that have been separated out from the Judicial Retirement Age Bill. Right from the outset New Zealand First believed that it was sensible to raise the retiring ages for judges. I think it would be fair and appropriate to put on the record our support of the question asked by the member who just resumed her seat Kate Wilkinson from Waimakariri. We should possibly be asking that next question of why there should be a mandatory age for retirement at all.  
On reflecting on the member’s question I think there are many of us in this House who can name people who at the grand old age of 85 still have absolute and complete control of all their faculties who are able to reason articulate views analyse and read and who still have an immense knowledge of the area of professionalism they have worked in—some for 50 or 60-odd years. We in New Zealand First have long thought that and I guess we have been criticised for our support for the elderly community of New Zealand. We have often been criticised by members both in National and in Labour for our unswerving support for the elderly because we—unlike those parties—do believe that elderly people still have a major role to play in society.  
The amount of experience and knowledge that people have accrued over 50 years may not be expressed as vocally or as loudly as some of the more junior younger professional people in the field may want to express their opinions but often the contributions of older people contain a great deal more wisdom. There is far more value in the counsel that those older people in the profession have to offer. So it is timely as we pass this legislation through its third reading to not sit and smugly pat ourselves on the back and say we have done good—because we have at this point—but I think it would be right for New Zealand First to express to the House the need for us to ponder the subject a little more deeply.  
I can tell members that on my holidays over Christmas when I went up to Whangaroa—prior to my partner and I going up and spending some time at the Hon Dover Samuels’ place at Matauri Bay—I had occasion to stay at the home of Robyn and Doug Gow and I had the fortune of meeting Robyn’s mum. Let me tell members she is one totally independent lady. She is in her 80s she lives alone and she is able to sit and engage and discuss with me everything that is happening politically. She is extremely well read and well informed. I would suggest that she has a far greater knowledge of political events than many members and she is able to articulate a depth of understanding to a degree that far surpasses that of a large number of honourable members in this House.  
To suggest that a person is no longer capable of expressing a view—or indeed to suggest that a judge who has given long loyal and competent service to this nation is no longer capable of doing that—because he or she is 71 is a nonsense. People should be judged on their merits. It is interesting that when we in this House are out there on the political hustings seeking support from the public for our political parties we often express views that suggest people should be judged as to their merits. People should not be treated simply discarded or ignored simply because they have attained a certain age—or have not attained a certain age. On occasion we seem very long in the rhetoric as to what we believe and very short in the doing.  
I suggest that this is good legislation. It is a step in the right direction. New Zealand First supports it wholeheartedly but we would suggest that possibly it is time to start thinking a little more widely and to start asking questions about how retirement should be determined for the judiciary. Should it be a question of age or should it be a question of capability? I think I already know the answer to that question by looking around the House and seeing the faces of other members right now. We in New Zealand First might suggest that it should be a question of capability as opposed to a question of age. 
NANDOR TANCZOS (Green) 
: 
 Like other members before me I rise to give a fairly brief contribution to this debate because so much has already been said on it. The Judicial Retirement Age Bill was a fairly small bill and the bills into which it has been split are fairly straightforward in what they do. We have had some very good contributions through the first reading select committee second reading and Committee of the whole House stages. All of the arguments have been well canvassed. I would particularly like to acknowledge the contribution of Chris Finlayson who I think has added some quite deep historical information and perspective to the debates. I just want to acknowledge and thank him for that. 
The only thing I would add is that I was reflecting on the debate during the passage of the Supreme Court Act. One of the arguments that was put forward was about the small legal pool we have in this country and some people seemed to be of the view that our judiciary was just not up to the job. There is certainly no doubt in my mind that there is no basis in that claim. I think New Zealand has produced some exceptional jurists in our time. That is quite evident. I would also say that if one looks at the Supreme Court that we have today one can see there are a number of excellent jurists to be found there as well. But raising the retirement age a smidgen as we are doing in this bill perhaps helps to even further demolish that argument because it actually allows us to retain the services of our exceptional jurists for that bit longer. 
That was all I really wanted to cover today except just finally to reply to the point that has been made around whether we should have a retirement age at all. The only comment I would make is that although I think the idea is an interesting one it creates an enormous practical difficulty. If there is no retirement age on what basis do we then retire our judges? It becomes a case-by-case decision. Who is going to make it? And given the enormous sensitivity—and rightly so—around issues of judicial independence and the potential for interference with judges it becomes a very difficult thing if we do not have a standard condition that applies in terms of who gets retired when. I think the sensitivities around it are just too difficult for us to look at going down that way. That would be my reply to that argument. But apart from that I think the House seems to be in absolute agreement on this legislation and I look forward to its passage. 
HONE HARAWIRA (Maori Party—Te Tai Tokerau) 
: 
 Kia ora tatou te Whare. Over the weekend I and a couple of my mokopuna had the privilege of attending Te Matatini National Kapa Haka Festival 2007 in Palmerston North along with Pita Paraone and a number of other members of this House. In one word it was awesome. It was an excellent venue and it had beautiful weather friendly crowds heaps of stalls plenty of kai and the best kapahaka in the country. There was a memorable performance from the world’s most powerful distinguished long-serving competent and complete exponent of kapahaka the dangerous Dr Pita Sharples who is the nation’s sexiest politician and co-leader of the nation’s sexiest political party. 
Whangara Mai Tawhiti took out top honours in the crash-bang display of raw power on the main stage but it was Taikura that stole the hearts of the crowd. More than 300 kaumatua and kuia from different parts of the country took to the stage with their renditions of classic and treasured compositions to the delight of the thousands who saw them perform. Taikura was magic. 
It has an age limit. Performers have to be 55 to get in but many of them are actually in their 70s and 80s. A lot of them had not performed for more than 40 years and were challenged to clear the cobwebs and oil up the joints again for another stint on the world stage. They were hugely impressive—a reminder of a different time and a different style of sweet sound and gentle rhythm of dignity and grace and of long-lost musical giants like Ngoi Pewhairangi Canon Wi Huata and Sir Kingi Ihaka. 
Taikura embodies one of the messages I want to bring to this debate today which is that we limit our own potential as a society when we seek to limit the contribution of our elders. We hinder our own development when we reject the values of the past and we show immaturity by denying the experience of the mature. Taikura in fact highlights the futility of imposing arbitrary age-limits in fields where intellectual experience and firepower can never be replaced. 
The Maori Party has spoken of its support for lifting the retirement age for District Court judges Employment Court judges High Court judges Supreme Court judges Maori Land Court judges and even coroners but it seems that we may have all forgotten about the judges who live and work in our very own communities—our justices of the peace; our JPs. Apparently they are appointed by the Governor-General for life so most of them are already over 60 but the Act states they are no longer “fit and proper” for appointment after they turn 72. I raise this issue to highlight the inconsistency between the 70-year age-limit for judges and the 72-year age-limit for JPs and again to question the rationale behind the arbitrary age cut-off for roles that are actually enhanced by experience. Indeed even the Law Society suggests that the judicial retirement age should be raised from 70 to 72. 
The House knows well the Maori Party’s very strong views about the value of kaumatua and kuia—the insights vision experience and wisdom they give us as a sound foundation for our future. So when I checked the statistics I was pleasantly surprised to see that there were more than 600 kaumatua and kuia over 75 years of age in Tai Tokerau although undoubtedly not many as old as the father of our own member Mr Pita Paraone. I am sad of course that there are not a lot more but I am happy to know that we have as many as that and furthermore I would suggest that with the value we know older people can provide our society this data gives us 600 great reasons to support the lifting of the retirement age for judges. 
But it is that tinge of sadness that I need also to bring to the attention of the House because I know that increasing the retirement age for judges and coroners will not mean a hell of a lot of Maori as the statistics also tell us that Maori simply do not make old age in the same numbers per head of population as Pakeha. A history of poor health poor diet poor housing poor education and poor employment opportunities—and poor Governments as well—work against Maori reaching old age. The combination of those factors means frailty is also a major consideration. Older people are at risk of falls admission into rest homes and disability in key activities of daily life. And we know from the  
Social Policy Journal of New Zealand  
that many Maori who get into their 60s 70s and 80s have a number of problems to do with issues of frailty. Indeed the journal notes that frailty among 65 to 70-year-old Maori is the same as that for non-Maori in the 81 to 84-year-old age group—a difference of a full 10 to 15 years greater even than the 8-year difference in life expectancy between Maori and non-Maori. 
In supporting this bill the Maori Party highlights the value of our older citizens through the particular personage of a person of high calibre—in this case Judge Eddie Durie. But we also highlight the failure of policy dealing with the gaps in life expectancy quality of life and frailty because those gaps and those disparities—indeed those disadvantages—reduce the ability of Maori to be able to fully participate in society and we know from the  
Social Policy Journal 
 research that those disadvantages can be easily addressed through intelligent and innovative social policy change. 
So I close in acknowledging again the very real value we gain from our kaumatua and kuia in laying a foundation for our future. In an age where sustainability is the buzzword I think often of the inspiration and guidance that sustains me from one of my own kuia from Ngati Kuri my Auntie Saana Murray—who of course is one of the claimants in the Wai 262 claim to indigenous flora and fauna and cultural and intellectual heritage rights and obligations. Auntie Saana is an icon of the north; a woman who fought long and hard to block the mining of the silica sands in her precious Parengarenga Harbour because of the importance of the sand dunes to the surrounding ecosystem and the impact that the sea was having on Te Hapua as more and more of the sandspit was being lost to sand mining. Indeed I can even remember her giving me a thwack around the ears for not doing enough to stop the mining when I was working for Te Aupouri Maori Trust Board. Auntie Saana has been a fighter for our plants and our lands our kaimoana our harbours our beaches and our seas since way back before it was fashionable. Her commitment to that work and the knowledge that she has gained over her 80 years make her one of my most treasured mentors in all of Muriwhenua. 
When I think of Auntie Saana Judge Durie and all those kaumatua and kuia who would make spectacularly good judges through their simple but deep knowledge of life I have no problem in saying that the Maori Party supports this proposal to increase the judicial retirement age to 70. Kia ora. 
CHARLES CHAUVEL (Labour) 
: 
 It is a pleasure to follow the previous speaker in commenting briefly and taking a call on the third readings of the legislation deriving from the Judicial Age Retirement Bill. Mr Harawira referred to one Maori judge in particular—the recently retired Justice Eddie Durie—and I join in his tribute in respect of His Honour Justice Durie. His Honour performed fine service on the bench and it is a good thing to have the opportunity to reflect on that service and to reflect that under this legislation had we passed it in time we would have been able to have 2 more years’ service from that judge. I think that demonstrates in a very tangible way what good legislation this is and it is pleasing to see that it has multiparty support from the House. 
Of course we should not single out one Maori judge when we think of the service that has been rendered to the judiciary from Maori judges. In recent years there have been many more judges of Maori ancestry appointed to many different judicial positions at all levels of the judicial system and they are providing sterling service on the bench. One might also note that there have been recent appointments to quasi-judicial positions such as that of Justice Goddard to the Police Complaints Authority. Justice Goddard is from Ngati Kahungunu. It is a matter of great pride that Judge Ida Malosi and Judge Semi Epati from the Pacific communities have been appointed to the bench in recent years. Under this legislation they will have the opportunity to serve a further 2 years of their term on the bench. 
Previous speakers have raised a number of interesting questions including the issue of why we have a retirement age at all for the judiciary and with respect to them that is a good question. It is one that ought to be considered further by Parliament. As Mr Tanczos said the reason why it is a different matter to consider retirement ages on a compulsory basis for the judiciary on one hand and all other employees on the other is that judges are independent. If we do not have a fixed retirement age for the judiciary what do we do when there is genuine incapacity on the part of a judicial officer and that judicial officer does not realise that he or she is in a state of incapacity? We would have the only constitutional option left which is a humiliating address to the Governor-General from this House. 
That is no way to end what would no doubt have been a sterling judicial career simply because incapacity has been reached and the judge has not realised that that is the case. That is a very sad way to end a career. We would not want to see that become a feature of New Zealand constitutional debate I would think. So for my part although in general I do not support the idea of retirement ages in employment I do see that constitutionally there is a case for retaining a fixed retirement age in judicial service where there is constitutional independence and where a head of bench cannot simply require a judge to retire so that we do avoid that unsightly and unseemly spectacle. 
I will comment on a point that was raised by an earlier speaker Dr Worth. He expressed the hope that this legislation by extending the service of judges by 2 years would not lead to the appointment of part-time judges because he said that would be a very bad thing as judging is a full-time occupation. Well I beg to differ with the member. One of the things that I am particularly proud about in terms of recent judicial appointments is that the quality of the bench has been preserved. Anyone who attended the swearing in on Friday of Justice Bill Wilson to the Court of Appeal—as I did as the Attorney-General’s representative—would be able to attest to just how fine the serving judiciary in New Zealand is as previous speakers have mentioned. That quality has been preserved. 
Another good thing that has happened as well in recent years is we have managed to achieve some diversity in appointments to the bench. As I said earlier there are more Maori judges more Pacific judges and more women judges. It is a good thing if on the one hand the bench can retain its expertise and on the other hand it can also look like the rest of the community so that when members of the community appear in court they can have confidence that they are being judged by their peers and not simply by a group of people drawn from a profession that reflects only one demographic in society. If it is the case that moving to some form of part-time judiciary can enhance the diversity of the bench while not diluting the quality of judicial appointment then I would be very supportive of that sort of move. I think it is a shame that the member sought to rule out or condemn that possibility in his remarks to the House. 
As previous speakers have mentioned it was the case in previous years—until 1980 when the Judicature Amendment Act was passed following Sir David Beattie’s landmark report—that some judicial retirement ages for the superior courts were set at 72. The age then went back to 68. We are proposing in this legislation to put the retirement age back to 70. For my part I would be hopeful that this is just a step on the journey. If putting the age back up to 70 works well and I am sure it will—as the rest of the House also seems sure—then we should keep the matter under review. We should look at further advances to the judicial retirement age in future as and when that seems appropriate. 
Bills read a third time.