Franks Stephen: Questions for Oral Answer — Questions to Ministers 
Franks Stephen: Questions for Oral Answer — Questions to Ministers 
[Volume:616;Page:11632] 
5.  
STEPHEN FRANKS (ACT) 
 to the  
Attorney-General 
: Has she advised Cabinet or the Prime Minister about commenting on a Maori Land Court ruling authorising certain foreshore and seabed claims to proceed; if so what was her advice? 
Hon MARGARET WILSON (Attorney-General) 
: 
 No. 
Stephen Franks 
: How come it was wrong and unconstitutional for me to ask in this House last year whether the Chief Justice’s personal commitment to treaty cases should have disqualified her from the seabed and foreshore case but it was OK for the Prime Minister to directly question the motives of Judge Caren Wickliffe? 
Hon MARGARET WILSON 
: It is a convention that Ministers and members of Parliament do not adversely comment on matters relating to the courts; and like most conventions it is mostly observed but in unusual cases members have been known to comment. In this case the judge made a decision and then recused herself. This could be classified as unusual. 
Russell Fairbrother 
: Is the Minister aware of any other examples of the convention on not criticising the judiciary not being observed? 
Hon MARGARET WILSON 
: Unfortunately there have been previous instances of that—including that of Mr Franks’ reported comments that the Chief Justice is obviously biased and activist and he would sack all activist judges. 
Richard Worth 
: Why does the Attorney-General not advise her colleagues and the Prime Minister that the principled process to follow is for the Crown to actively participate in the pending Privy Council appeal on the foreshore and seabed for which a fixture is to be allocated this year and in which the Crown is a party rather than pursuing the present strategies of reversals of position and posturing which do little more than inflame public opinion and unsettle the community? 
Hon MARGARET WILSON 
: In the interests of certainty and also to prevent further litigation the Government decided that it would address the issue through clarifying the law in this House. 
Metiria Turei 
: Does the Attorney-General uphold the constitutional principle of the independence of the judiciary and does she agree that the Prime Minister’s unjust and unwarranted criticisms of Judge Caren Wickliffe and the Maori Land Court are in breach of that fundamental principle? 
Hon MARGARET WILSON 
: Of course this House as a whole upholds the principle of the independence of the judiciary. As I said from time to time members of this House have been moved in unusual cases to express themselves freely and have judged in those cases that in the interests of free speech that overrode the convention. 
Hon Richard Prebble 
: I raise a point of order Mr Speaker. It is very nice of the Attorney-General to decide to answer on behalf of the House but she has no responsibility for this House. She is actually answering in her own capacity as Attorney-General as a first law officer of the nation and possibly as she is a member of Cabinet. I suggest that the answer she gave the House was completely irrelevant. She was actually asked what she as Attorney-General personally thought about the matter and not what the House thinks. 
Mr SPEAKER 
: It was a relevant answer. However the member is correct. It should have been given in her capacity as Attorney-General. 
Hon MARGARET WILSON 
: I am happy to give the assurance that personally I do uphold the independence of the judiciary. 
Hon Ken Shirley 
: Has she remonstrated with the Prime Minister for her egregious breach of paragraph 2.117 on page 31 of the  
Cabinet Manual 
 which states: “Ministers should not express any views that are likely to be published where they could be regarded as reflecting adversely on the impartiality personal views or ability of any judge.”; and if she has not checked the Prime Minister does she not think that as Attorney-General it is her duty to do so? 
Hon MARGARET WILSON 
: No. I know that the Prime Minister is quite capable of reading the  
Cabinet Manual 
 and has done so. 
Gerrard Eckhoff 
: What is her view of the opinion of former Australian Commonwealth Attorney-General Sir Anthony Mason that the first duty of an Attorney-General is to uphold the integrity of the judicial system judicial institutions and that such responsibility should not be subordinated to party political considerations? 
Hon MARGARET WILSON 
: Of course I uphold the independence of the judiciary. I uphold the convention and I wish that every member in this House did so as well all the time. 
Stephen Franks 
: In light of the answer to the last question why did the Attorney-General not do what any other Westminster parliamentary system Attorney-General would have done—that is put aside party loyalties uphold what she told me last year was an essential component of the rule of law and defend the judge for simply refusing to delay justice and instead allowing the court to apply existing law in spite of her Government’s threats for more than 6 months of retrospective changes? 
Hon MARGARET WILSON 
: As I said of course we respect the independence of the judiciary and I released a statement at that time. I also pointed out at the time that the judge had recused herself which was of course the cause of the comment.