Smith Murray: Judicial Matters Bill — First Reading 
Smith Murray: Judicial Matters Bill — First Reading 
[Volume:611;Page:8308] 
MURRAY SMITH (United Future) 
: 
 I concur with the National Party’s view that this bill should really have dealt with the issue of appointments. United Future differs from the National Party in so far as we believe that the failure of this bill to deal with the appointment process is sufficient to warrant us not supporting the bill in its first reading. We believe that the Judicial Matters Bill was a golden opportunity for this Government to address the whole issue of how judges ought to be appointed and to examine the various models available from overseas in order to determine whether in particular there should be a Judicial Appointments Commission. It is United Future’s view that the availability of a Judicial Appointments Commission in order to do this is a step that we should be seriously examining in this country following what is a growing trend overseas. 
We oppose this bill not so much on what is in the bill but on what is not and the appointment process is the major item. Some of the other issues that I will deal with such as fundamental flaws in the bill as it stands are matters that could be addressed by the select committee and corrected. However the appointment process because of its substance is not a matter that could be dealt with by the select committee. This Government in its 1999 manifesto promised the people that there would be an independent decision-making body for judicial appointments. The 1999 Labour manifesto promised an independent decision-making body for judicial appointments. Where is it? 
Stephen Franks 
: We’ve got it—the Hon Margaret Wilson. 
MURRAY SMITH 
: It does not reside in the Hon Margaret Wilson. However in her press release she said that public confidence in the judiciary and judicial independence are of fundamental importance in a democracy. She said that it was important that judicial appointments and removals were more transparent. 
R Doug Woolerton 
: Who told her that? 
MURRAY SMITH 
: This is from her press release of 7 March this year. Well we do not have a more transparent process. This bill does nothing to give us a more transparent process in judicial appointments. It does nothing to take it away from one person making the decision at the end of the day as to who should be on the bench of this country. That is not transparency. That is not independence. Private consultations with the Solicitor-General and the Chief Justice do not constitute transparency and independence. 
It is too easy for there to be political influence in the appointment of the judiciary. I acknowledge that there is no evidence in New Zealand that people have been able to point to to suggest that it has happened so far but when I was at the Commonwealth Law Conference in Melbourne I was struck by just how politicised the judiciary just over the ditch has got. Seventeen out of the 35 appointments to the High Court we know are ex-politicians. I had dinner with some judges when I was there and it was a topic of conversation as to why so-and-so had not been appointed to the bench. The answer was that he was too closely aligned with the Labour Party. Another comment made was that a person was likely to be the next Governor-General depending on the outcome of the election. Australia has a very politicised system. Although that has not happened in New Zealand I think it is an influence that will grow here. It is an influence that we need to provide for at this early stage particularly when we are dealing with issues such as the Supreme Court and the appointment and removal process through this bill. This is our golden opportunity. If this bill goes through as it is we will have lost that opportunity. 
It has been suggested that maybe a cross-party support of parties in terms of judicial appointments at senior levels particularly be used. United Future is not in favour of that because we believe that politicians ought to be kept out of the process. Even though cross-party support gives a variety of views politicians do have vested interests that they all share in common—such as the supremacy of Parliament—which would influence their decisions in terms of the judges who were acceptable. I think it is better that it is kept right out of the political process. We know that Canada at provincial level has a Judicial Commission. The new Caribbean Court of Justice is going to have its appointments dealt with through a Judicial Commission. The UK is currently examining having a Judicial Commission for appointments at the lower level at this stage. A number of African Commonwealth countries are now moving to judicial commissions. It is about time we looked at that issue. So as I said I believe that that is a serious flaw. United Future does not support this bill because it does not deal with that issue. 
In terms of removal the paper presented by Sir Geoffrey Palmer upon which this Government is meant to have designed this bill states that the commissioner would inevitably become a point of contact and clearing-house for complaints regarding the judiciary and could conveniently be advertised as a proper first port of call for complaints. The commissioner would be responsible for screening complaints. In most cases this would simply require forwarding the complaint to the relevant Head of Bench for handling through the judicial complaints lay observer process. In the case of non-serious complaints the statute would require that these be referred to the relevant Head of Bench. The current judicial complaints lay observer process which does not need to be codified in statute would then take over. Well this bill does not do that. 
Clause 15 states that the commissioner must dismiss a complaint if it does not warrant consideration of removal of a judge. The only power of a commissioner to refer the matter to the Head of Bench is if the complaint is not dismissed. So we have a situation where Joe Blow citizen having been dissatisfied with the way that a judge has conducted him or herself approaches this new commissioner who is touted as being the person to whom to refer complaints. And because the commissioner decides that effectively it is not a complaint that amounts to “serious enough conduct to warrant dismissal” he then rejects the complaint—must dismiss the complaint.He then writes back to the complainant: “Sorry you don’t qualify. Get lost!”. Well I can imagine what the public image of judges will be in that sort of judicial process. 
We all have received letters from people who feel dissatisfied with the way that the court process has worked. Some of the submissions we have heard on the Supreme Court Bill have been very full submissions about people who have repeatedly felt they have been poorly served by the judicial process. For such people to write to this new commissioner with great promise then get a rejection saying: “Well it’s not serious enough. Get lost!” will do nothing to help to sustain the public view of the process. For that reason I believe that is a serious flaw in the bill. As I said that is a matter that could be corrected at the select committee but my big concern about the bill is that those sorts of things show that this bill has been rushed and was ill conceived. 
When I was a student and had an assignment due the next day once or twice—probably more—I worked through the night to get it finished so I could hand it in the next day. This bill suffers from the same sort of late rushed drafting that such a practice denotes and therefore I give it four out of 10. Four out of 10 is not a pass mark and therefore does not justify our party supporting the bill. It is important that the Government prepares legislation that is well-thought-through and is given the time to be properly thought through. I have to say that if United Future had been consulted on this bill before it entered the House we might have been able to point out some of these things and get it into better shape for select committee consideration. We are opposing the bill. We believe that an appointments process needs to be looked at—and that needs to be considered at this point; it should be in the first draft of the bill. We believe that the bill has been rushed and poorly thought through. In terms of the other recommendations most of them we believe are probably fairly innocuous. It is a pity that this bill which could have been such an important measure—it was something we were looking forward to; we expected it to be significant—has not been seen by this Government as an opportunity to look at the whole issue properly.