Ardern JacindaParts 1 to 6 schedules 1 to 11 and clauses 1 and 2JACINDA ARDERN (Labour): Mr Chair you will see just as a visual aid that the Judicature Modernisation Bill is a weighty bill—Denis O'Rourke: Door stop.JACINDA ARDERN: —a door stop as my colleague has described. But despite the fact that it is so weighty there does seem to be some universal support—near-universal support at least—for what this weighty document is attempting to do. So that theme will probably come through in the debate today. The Judicature Act as it stands is over 100 years old. There is universal agreement that it absolutely needed to be updated and so I do thank the Ministry of Justice and Minister Adams for the work that has been done in that regard. It has taken some time. The Law Commission did produce recommendations to consolidate this document—the Judicature Act with the District Courts Act and the Supreme Court Act—some time ago. So as I say it is timely that we finally come to the point of reaching the Committee stage here today. I want to run through some of the substantive changes that this bill also introduces. Even though we will be debating this as one question I will thematically go through and begin with some of the Part 1 changes. I think it is fair to categorise the Part 1 changes as being focused on simplification on streamlining and on transparency. There are a couple of opportunities that are missed here and I will touch on them briefly as well. Part 1 repeals the Supreme Court Act 2003 and the Judicature Act 1908 and creates the new Senior Courts Bill which will put all of the courts—the High Court the Court of Appeal and the Supreme Court—under one system. In doing so it streamlines the appointment of non-permanent judges; establishes a judicial panel for hearing certain types of commercial cases; repeals the commercial list which has set out case management approaches; and gives more power to restrict vexatious civil litigants an area where we are seeing more self-representation which is probably timely. Originally it also required the publishing of—and part of this provision remains—information relating to reserved judgments recusal from cases and suitability of judges holding employment or other offices and I note a useful Supplementary Order Paper 66 from the Greens on declarations around pecuniary interests in this regard. It also talks about requiring final written judgments to be published unless a good reason exists not to do that. We have had a Supplementary Order Paper (SOP) from the Minister in that area and I just want to touch on that SOP very very quickly. SOP 197 by the Minister makes by and large a few changes that we are generally supportive of—particularly around things like commencement dates superannuation subsidies for acting judges and the like—but one of the things it does is reverse the requirement for mandatory publication of decisions online. We are slightly disappointed that that has happened. We do think that there needs to be a longer-term plan to allow that to happen. Down the track we will ask officials what we are doing to make sure we have greater transparency. If you want to make a judicial complaint for instance—I have had people come to me and say they want to do that but the lack of transcribed rulings and judgments from hearings makes that difficult. So that I think ultimately would be a good place for us to head to. I want to come though to some of our SOPs that cover this part. We have a couple of really substantive SOPs that on the face of it may seem simple but that capture matters of constitutional importance and weight which I will be seeking the Committee's support for. In fact one of the SOPs in my name that I want to speak to SOP 62 was not originally raised by me but actually by members of the judiciary. In particular I want to refer to Justice McGrath's retirement speech which has been referenced in the media. A retirement speech is obviously the chance to reflect on a lengthy career as a member of the judiciary and of our legal fraternity and the fact that this retiring judge used that special opportunity to reflect on what was happening here in Parliament in respect of this particular provision to me speaks to the weight of this issue. I want to read from that retirement speech—just for a moment if the Committee would let me because it relates directly to Part 1. He said: Just bearing that in mind I hope you will forgive me if I detour for a few minutes to raise a matter of a constitutional kind that causes me some concern. Our constitution is an informal one. It is not set out in any single document. It has been described as the product of a complex mass of forces of a political legislative prerogative and judicial kind. As a result the New Zealand constitution is found in some rules that have been enacted by Parliament some rules of common law stated by the Courts and a number of conventions which are [appropriately described as] established understandings … Most New Zealanders seem happy with [these arrangements] and so am I. I do not favour replacement of them with a [formal] constitution …".He goes on: "But I believe there are gaps in our constitutional arrangements … And we also need to ensure that we do not [as a society] inadvertently create new gaps [in our constitution]. The Constitution Act 1986 provides that Parliament continues to have full power to make full laws. [Now that recognises] with clarity that Parliament is the supreme law making power of the nation. There is no equivalent provision [in that Act] stating the role of the judicial branch or indeed the underlying concept of the judicial function which is to uphold the rule of law. That gap was filled to some extent when this Court the Supreme Court of New Zealand was established in 2003. The legislation stipulated that nothing [in the Act] 'affects New Zealand's continuing commitment to the rule of law and the sovereignty of Parliament'. Commitment to the rule of law is a simple but important constitutional concept. It means our nation's commitment to the principle that all persons and all bodies whether public or private must comply with the law and are entitled to exercise all rights that it gives them. Upholding this principle is the central role of the Courts." That provision as set out in the Supreme Court Act 2003 in this act of consolidation to create the Judicature Modernisation Bill is lost. That rule-of-law provision once this bill is enacted—voted for in this House—will no longer exist. I want to acknowledge at this point that in the select committee I posed this question both to the Attorney-General and to the Minister of Justice and was met with sympathy on this issue. They acknowledge that it is an important provision. The question in debate has come down to where it is best placed. I do not dispute the argument that the Constitution Act would be the appropriate place for the rule-of-law provision. I do not dispute that. I think I would probably agree with both Ministers on that point. The issue however is that our opportunity here at this point in time is to amend only the Judicature Modernisation Bill. We did seek advice from the Clerk of the House on whether or not it would be possible to make a subsequent amendment to the Constitution Act and were told it was out of scope. So herein lies our one opportunity. If in the future the Government was to say "We would like to place it separately in the Constitution Act." I would have no trouble supporting that. But as a holding pattern I would absolutely seek the House's support to have it in the meantime sit where it has sat for over 10 years now—in the Judicature Act as it consolidates the Supreme Court Act of 2003.It is an incredibly important provision. I know that it may not have registered with many New Zealanders and I can see good cause for why—I can see good cause for why. But it has for instance been the subject of debate amongst the legal fraternity. We cannot look lightly on our constitutional provisions simply because members of the public may not have engaged directly with them. It is our job to ensure that those provisions are robust where they should be and upheld. That is why I see it as our job today in this House to support such provisions. Our SOP 62 is not the only SOP that speaks to that issue. I would say also that entrenching some of the conventions around consultation for the appointment of Māori Land Court judges under Supplementary Order Paper 202 in Louisa Wall's name fits in that space as well—as does my SOP 63 which amends clause 3 of the bill which enables important legal matters including legal matters relating to the Treaty of Waitangi to be resolved with an understanding of New Zealand's history conditions and traditions. Again it is another provision from the Supreme Court Act 2003 that has been lost in the consolidation of the Judicature Modernisation Bill—all incredibly important. I do just want to reflect briefly that Dr Richard Cornes who is a senior lecturer at Essex University and a visiting fellow at the Legal Issues Centre Otago University has also written on the need for us to retain this rule-of-law provision. I know that he has worked hard to raise the profile of this issue with members of this House as well and I thank him for that work."