Franks Stephen: Third Readings 
Franks Stephen: Third Readings 
[Volume:617;Page:12942] 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party in the final stage of this legislation. It has been touted as increasing accountability of the judiciary and providing a complaints process. Indeed we just heard the member from the Green Party Mr Nandor Tanczos urging what he called the Opposition—it is quite interesting that we are all collectively called the Opposition now; of course they are the Government. 
Dail Jones 
: They are the Government. 
STEPHEN FRANKS 
: Yes the member is there too. United Future is in the Opposition with us and we welcome it. We are a broad church. We welcome it. The Opposition pointed out that legislation that has been touted as a complaints process is in fact simply a complaints funnel. In fact almost all the complaints will simply drop out of that funnel back to exactly where they are now—that is with absolutely no change. They go to the head of bench and the head of bench will deal with them or not as the head of bench decides which is precisely what happens now with nearly every complaint. The only difference is that we have set up a mechanism that will be sitting there as a very attractive opportunity for someone with no respect for judicial independence and for people who think that there are simple solutions to the question: “Who watches the watchdog?”. This law will now sit there as a standing invitation to make what people will call the simple step of accountability meaningful—in other words putting someone else in there to decide when a judge’s conduct is unacceptable. 
We know that this Government will find a lot of things unacceptable that in a country that respects judicial independence and liberty has previously been seen as a matter of etiquette and judgment—in fact as a matter that we just endure because we know that once we give people the power to interfere with judges ultimately it will be misused. 
The legislation pretended to be comprehensive. The name of the original bill looks comprehensive but as far as judicial discipline goes all it is is legislation around sacking judges—hanging offences impeachment or removal. It has nothing to do with the broad run of complaints. 
ACT would have been able to support a straightforward reform of the kind that Mr Tanczos urged. If this had been legislation that stated that when an MP moves a motion to remove a judge—something that has never happened in our history—it then gets sent to a process of independent examination and a report back to Parliament so that whatever debate occurs is well informed we would have supported it boots and all. That is what we thought was desired. That is what we thought the Minister was talking about when she first started parroting the phrase “judicial independence”. What in fact she has done is to secure a power for her to stop an inquiry into judges and to stop any motion to remove a judge if she does not want it. 
She might be in a minority party as it is now and every other party in the House might want to remove a judge who has disgraced his or her office but the Attorney-General can now make sure that she can block that. She has three ways. She appoints the Judicial Conduct Commissioner. She appoints the Judicial Conduct Panel. She can disregard the panel even if it says that removal might be warranted. She can simply decline to initiate and this legislation takes away the power of any other member to cleanse the stables or at least to ensure that there is a debate. 
That Attorney-General’s power to block the removal of a judge could have had a very simple solution. It could have simply provided for example that following the report of a Judicial Conduct Panel there were proper grounds to consider the matter. Any member could move that motion. A very simple safeguard would have meant this was unexceptionable in constitutional terms; possibly only less unexceptionable because the panel then becomes the gatekeeper but still the Minister could have made efforts to secure a consensus around this legislation. This is a constitutional matter and with her high-handedness she simply ignored the fact that she had only a bare majority cobbled together by telling the Green members no doubt that some nice deal will await them further on for their own political advantage. 
This could have been a process that restored the reputation she trashed of the Attorney-General being the highest law officer the office of the representative of the rule of law in Cabinet. She could have gone some way to restoring that. She lost it over the Supreme Court Act. She could have gone some way to restoring it if she had made even the slightest effort to recognise the concerns of the opposition as we are now termed—that is the National Party New Zealand First ACT and United Future all concerned. 
This is not a matter that immediately attracts political attention. We were not grandstanding on this. We were concerned about the precedent. When we are in power we do not want our own colleagues coming to us and saying: “Why not tinker with your judiciary? They did. There’s the precedent. They got away with it.” They will not get away with it. Just as the Government thought that it could with the abolition of the Privy Council get rid of a patently independent international umpire and replace it with its own appointees within reach of New Zealand politicians’ appointment powers and just as that in the end came to cause the Government loss—and it is cited every time people want to refer to the high-handedness of this Government—so too this legislation will form part of that pattern. 
It does not stop at the Attorney-General’s grasp for the control of power to impeach judges. She has also given herself power to appoint a nearly infinite number of judges. She can stack the judiciary in a way that no Attorney-General has ever been able to do before. She can now appoint part-time judges. There is no lower limit on the extent to which it is part-time. They might be appointed to do a day a week. They are then counted as fractional judges so that when we get one new vacancy this Attorney-General could appoint 10 new judges. Again she could have reassured us that that was not her intention. 
We suggested a very reasonable safeguard. For example we suggested that there be a rule that no more than 25 percent of judges be part-timers. No not for this Attorney-General! This Attorney-General seems to want to be sure that when she gets one vacancy she can appoint 10 judges and up to an infinite number. 
That power to stack might seem a far-fetched risk. Why should New Zealanders be any different from the many other countries that have had politicians frustrated with the independence of the bench? Why would we be any different from Australia where 17 of the first 31 High Court of Australia judges were appointed from the ranks of serving politicians? Why should we be any different from the United States where Franklin Roosevelt got a bit frustrated with what he saw as the pedantic objections of judges in the 1930s who wanted to protect property rights and state rights and simply said he would appoint a whole lot of new judges? 
 That was the reason. Because there is a limit to the number of judges in statute and it requires an Act of Parliament to change it so that an Attorney-General cannot simply stack the judiciary. Well this Attorney-General has found a cute way through it—supported by the Greens. If she gets say five vacancies she would be able to produce up to 50 judges. She could create a situation where no new judge could be appointed for generations. I do not think she will do it and I hope she will not do it. However she made no attempt to reassure anyone—not the Law Society the High Court judges who submitted the Court of Appeal judges who submitted the civil liberties organisations or any other party in this House—that that was not her covert intention. The solution would have been so simple. This is an Attorney-General who rightly deserves the suspicion. She is sinister. She is the least-capable and most-sinister Attorney-General this Parliament has seen for many years.