Katene Rahui: Judicial Matters Bill — Second Reading 
Katene Rahui: Judicial Matters Bill — Second Reading 
[Volume:660;Page:8852] 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 One of the legacies of being a politician who was once a lawyer like all of those who have spoken so far is the unique perspective we bring to the debate on the separation of powers. I will not give any of my work experiences unlike Mr Bridges but I will focus on the boundaries between the executive the judiciary and the legislature and how they are an essential hallmark of our constitutional system. 
It is fundamental to this framework that the judiciary be publicly accountable for the administration of law while the sovereignty of Parliament should remain intact. In the Judicial Matters Bill we bring the two together. The aim of the bill is to amend the current legislation to enable the appointment of a Deputy Judicial Conduct Commissioner who can perform the functions of the Judicial Conduct Commissioner when the commissioner has a conflict of interest is absent from the office or is incapacitated. Due and proper judicial conduct is about maintaining judicial independence and integrity and this amendment does exactly that. So we are not surprised that the New Zealand Bar Association provided general support for the bill because it aims at maintaining and enhancing public confidence in the judiciary. 
The association was particularly supportive of the provisions that result in a more transparent process to deal with complaints about the conduct of judges. Before 2004 if anyone complained about the conduct of a judge it was referred to that judge’s Chief Judge who would take such action as the Chief Judge thought fit. It was an informal procedure without any statutory base. The old way was thought to be out of touch with the modern age so an independent investigation process was set up in 2004. Today’s amendments emerged from that process. 
I make a clear distinction between those who criticise the utterances of judges as coming from the school of judicial activism and the absolute right of judges to express an independent view. The House will be well aware that over the last decade the judiciary has come under attack from successive administrations. The first swipe came from Margaret Wilson’s description of Dame Sian Elias as the judges’ “shop steward”. The second was a challenge by the then new Attorney-General Michael Cullen against judicial activism. Indeed it has become so commonplace for politicians to criticise the judiciary that retired Maori Land Court judge Heta Hingston concluded that “attacks on the judiciary have become par for the course since the 2003 foreshore and seabed Court of Appeal.” 
The point I raise is that we must be careful to ensure that when considering complaints against the judiciary we consider them based on the genuine assessment of inadequate or inappropriate conduct rather than simply because we disagree with the things they say. Judges have been criticised for misconduct and so they should be. It is only right and proper that inappropriate behaviour should be open to scrutiny but it should not be a free-for-all. The Principal Family Court Judge Peter Boshier in a speech published in  
Butterworth’s 
Family Law Journal 
 in 1999 raised an interesting question that tests this out further. He said: “After all what would the public rather have: a statute firmly set in the social mores of the 1970s or a statute that lives and evolves within our society? Law does not exist in a vacuum but is an evolutionary process. Development of the law is dependent on counsel being prepared to push boundaries and challenge judges to find ways to flesh the bones of the Act and do justice to all parties.” 
I believe we need more judicial activism not less and that we should welcome the opportunity for the law to evolve in ways that meet the needs of our changing society. To do this we need judges who have demonstrated integrity. However it is one thing to act with independence and integrity; it is quite another to act in ways that could serve to threaten the very foundations of justice. The Maori Party believes there must be some mechanism established to identify judges whose sentences are so consistently harsh that they may be seen as criminalising youngsters without sufficient consideration for their rehabilitation. Anecdotally too we have all been told the stories of judges who treat the so-called underclass much more severely than they treat offenders from the overclass. Sometimes conduct that does not seem overtly serious in a particular case assumes the appearance of bias when it is so consistent as to demonstrate a pattern. Perhaps then there should be room for complaints about conduct based upon a judge’s overall record. 
The role then of the Judicial Conduct Commissioner is critical. The commissioner in carrying out an investigation of all complaints against judges is a vital means of upholding the dignity and the integrity of the role of the judiciary. Such a role is a critical safeguard to ensure that the principles of judicial independence are upheld and valued by all. Of course we recognise that within these amendments there is now the possibility that the Judicial Conduct Commissioner in addition to existing remedies may decide to take no further action on a complaint. 
Another feature of this bill is that it makes the necessary amendments to increase the size of the judiciary across a number of levels. The Judicature Act 1908 is amended to raise the maximum number of Associate Judges of the High Court who may hold office at any particular time from six to nine. There are other amendments that increase the number of District Court Judges from 140 to 156 and that increase the number of Court of Appeal Judges from nine to 10. 
We note too the very wise advice of the Wellington Women Lawyers Association. It has recommended that the bill be amended to provide for permanent part-time appointments with a provision that a part-time judge may be appointed on a full-time basis at a later stage on a vacancy arising. Its recommendation was that the bill should enable an opportunity for an application to work part-time on the proviso that following advice from the relevant head of bench that the approval will not unduly interfere with the ability of the court to discharge its obligations in an orderly and expeditious way there should be no impediments to introducing such an approach. I will be interested to hear back from the Attorney-General specifically about these proposals for part-time provision to enable a more flexible and supportive workplace environment. 
Due access to justice the right to impartial and equitable treatment from the law and the commitment to fairness are what drives us in taking that extra look at this legislation. We are satisfied with what we see at this reading and we are pleased to add our support. Kia ora.