Franks Stephen: State Sector Amendment Bill — In Committee 
Franks Stephen: State Sector Amendment Bill — In Committee 
[Volume:610;Page:7328] 
STEPHEN FRANKS (ACT NZ) 
: 
 Madam Chair I appreciate your allowing us to express our concern. I had almost completed asking the Minister of State Services in general terms to explain just what is behind Supplementary Order Paper 107 or the merger of the Department for Courts and the Ministry of Justice. I realise that he may not have been prepared for that but he does have officials with him. It may well be that the merger is something that he has not been directly on top of and that the reasons for it are not his responsibility but this Committee is entitled to know just what arrangements are going to be made given that the Ministry of Justice now also includes functions that were previously with the Department of the Prime Minister and Cabinet. 
The Ministry of Justice now has operational functions that some people might have thought were policing functions. There are crime minimisation or crime reduction functions. There is coordination work that involves the Youth Courts the Department of Child Youth and Family Services and caseworkers. According to what we have been told it involves pilot programmes in a number of places that involve the police and those are at the very least constitutionally awkward if they fit within the same administration without any kind of Chinese wall or any kind of information barrier as the courts. When our courts are administered as an undivided part of a Ministry of Justice that has functions that come very close to policing we have the sorts of concerns that at this very time have led the British to go to all the trouble of abolishing the role of Lord Chancellor and moving the House of Lords out of the legislature. 
These are not light issues. Countries that take human rights seriously that worry about the risk of well-meant structures being abused in times of stress do not simply abolish a department of courts and merge it with a ministry of justice at the same time as they are dumping their top court sacking their top judges and replacing them with a new set of judges with at the moment unknown characteristics and conventions. This Supplementary Order Paper treats this merger as though it were a simple matter of substituting some words for others; substituting references to the Department for Courts with references to the Ministry of Justice. I say to the Minister that that may be easy to draft and it may be that it is administratively convenient but at the very least there should have been a paper that told us just how the Government will go about preserving not only the substance of independence of the judiciary but also the appearance of it. 
I say to the Minister that we need to know that someone has given that some thought. There is no evidence in any document available to New Zealanders that it has even been thought material. For example will the judges be able to have enough authority to discipline or to appoint and change court registrars? Will the judges have any control over court records and the integrity with which they are kept? Will the judges be able to dictate as they should the systems that will maintain confidentiality of papers and records that they believe ought to be maintained in confidence? Will the judges be able to ensure that the treatment of witnesses is consistent with respect for justice that is unbiased and not influenced in the direction of the executive and the wishes of the Government of the time? None of this has been addressed in anything that this Government has stated or explained about this merger. 
Under the theory that set up the Ministry of Justice as a policy ministry separated out the operational arms and set up the Department for Courts the courts were recognised as having a particular constitutional sensitivity. All of that sensitivity at the time that the department was set up has just been ignored and as far as I can tell the Supplementary Order Paper is seen as the only thing that the Government needs to do to set this off—a Supplementary Order Paper that simply adds the merger of the Department for Courts to provisions that previously referred to a merger of two departments of social work.