Finlayson Christopher: Register of Pecuniary Interests of Judges Bill — Second ReadingText is incorporated into the Bound VolumeFinlayson Christopher: Register of Pecuniary Interests of Judges Bill — Second Reading[Sitting date: 03 December 2014. Volume:702;Page:1132. Text is incorporated into the Bound Volume.]Hon CHRISTOPHER FINLAYSON (Attorney-General):Actually I thought that Ms Ardern’s speech when she got away from the vituperative comments and concentrated on the bill was actually a very good contribution. She raised a number of questions and I will come back to her last point in the course of my speech. I think she is right—this is a very important issue and I have more than a passing interest in it because I as Attorney-General am the link between the judiciary and the executive.We have to accept as a starting point that the judiciary is a separate branch of government; it is not an extension of the Ministry of Justice and from time to time there will be tensions that arise between the various branches of government. This legislation if it is passed will I believe cross that very important boundary. As between the various branches of government there will always be tensions. In the last session of Parliament the Privileges Committee of which I was a member looked at tensions that arose actually between the legislature and the executive. One would not expect those tensions to arise but they did. So there need to be some bright lines there as well.The member Jacinda Ardern raises a very important point about the importance of transparency. When someone is sworn in as a judge one expects that they will do justice and that they will be seen to do justice. If there are allegations about conflict of interest or lack of transparency people will walk away from the court feeling that they have not had a fair go. So that is a very important consideration. But I do believe with the greatest of respect to Dr Kennedy Graham who introduced this bill with the best of intentions that it is faulty. It would if enacted breach that important bright line between the judiciary and the executive or the judiciary and the legislature and should not be passed.A little bit of the legislative history is perhaps instructive for the House tonight. When the bill was introduced I suggested to the former Minister of Justice that it raised very important questions about transparency and the need to address issues of conflict of interest and I thought it would be appropriate for there to be a reference to the Law Commission to look at the issue. The Law Commission under the chairmanship of Sir Grant Hammond a former judge of the Court of Appeal produced a document that gave rise to a lot of discussion not only in the profession but in the general community. The consensus was that the better approach was to have guidelines on recusal. So when the former Minister of Justice again asked the Law Commission to look at reforming the Judicature Act 1908 and at the same time to have a look at the Supreme Court Act 2003 and the District Courts Act of 1947 with a view to a rewrite of those pieces of legislation the Law Commission produced a very good report and that has formed the basis of what now sits on the Order Paper awaiting its second reading as the Judicature Modernisation Bill.One of the recommendations of the Law Commission was that it be incumbent on the heads of bench to provide guidelines on the issue of recusal. That applies to the Supreme Court—i.e. the Chief Justice the President of the Court of Appeal the Chief High Court Judge and the Chief District Court Judge. Very clear guidelines are required because according to Sir Grant Hammond—and I know he will not mind my saying this; he has actually done a lot of work over the years on if you like the law of recusal—during his time as a judge he would always be getting questions from judges about whether or not they should recuse themselves because it is one thing to set down the principles but it is the application of those principles that can sometimes be very difficult.So that legislation which I hope we will be able to debate in the reasonably near future deals with precisely that issue. It is not lightly touched over nor is it done in a slapdash way but it is responding very carefully to what the Law Commission recommended and to what submissions made to the select committee have suggested. Although I did not sit on the select committee I do not think I am wrong when I say that the submissions that were made to the committee were almost overwhelmingly opposed to the concept of a register of pecuniary interests for judges. I refer in particular to the very helpful submissions by the New Zealand Law Society and the New Zealand Bar Association. I understand that the judges also made a submission but they did not wish to be heard on it.The important submission that was made by the Law Society traversed a number of areas but it particularly mentioned as indeed did the Bar Association’s submission the difficulties that there could be with the recruitment of judges. I believe that is a very important matter. As the Attorney-General I am responsible for recommending to the Governor-General the appointment of judges and there are protocols that are set out and published on the Ministry of Justice website as to the way in which I do it. I have to consult with the Hon David Parker the shadow Attorney-General on senior court appointments and often have discussions with him on these issues as he did with me when I was the shadow Attorney-General. These things are very important. We have to make sure that all sides of the House accept that an appointment is an appropriate one. We cannot possibly have what happened in Queensland a couple of months ago when someone was appointed who did not meet the favour of the judges. When he came to be sworn in none of the judges turned up so it was a pretty lonely swearing-in.The appointment of judges is incredibly important and we need to go out and get the very best people who are available to enter public life and serve their country in the judiciary and it is no easy task. On Friday I am going to speak at the swearing-in of a person who has been appointed to the High Court after 20 years at the Bar and before that a number of years in a commercial law firm. Getting high-quality people on the bench as Mr Parker would agree were he here is an incredibly important issue. So what we do not want is anything that could act as a chilling effect on the appointment of judges. I strongly believe that if there were to be a register of pecuniary interests it would act as a very very chilling effect on the appointment of judges. I know how judges come under attack all the time. There are cases in the system at the moment where a person appears before a judge they are dissatisfied with the result they complain to the Judicial Conduct Authority and they make the most dreadful allegations against the judges. When they do not get what they want from the Judicial Conduct Authority they go back to court and seek a judicial review of that person.Judges are under attack more than ever and it is incumbent on us to recognise the separate branch of government that is the judiciary and protect it from unwanted criticism. That is not to say that judges do not have obligations—obligations to uphold our great traditions of justice and uphold the principle that justice should not only be done but be seen to be done. That is why I am so in favour of guidelines dealing with recusal.So I frankly congratulate the honourable member on bringing this bill to the House. I think it does raise as Ms Ardern said very important constitutional questions. That is the great benefit of members’ days—that sometimes we get an opportunity to discuss these matters. But I say to him with respect I think he has got the wrong end of the stick. I think that this is the wrong approach. Rather than dealing with a register of pecuniary interests we should be making sure that the judicature modernisation legislation puts that obligation on the heads of bench to introduce guidelines on recusal.