Ardern Jacinda: Register of Pecuniary Interests of Judges Bill — Second ReadingText is incorporated into the Bound VolumeArdern Jacinda: Register of Pecuniary Interests of Judges Bill — Second Reading[Sitting date: 03 December 2014. Volume:702;Page:1130. Text is incorporated into the Bound Volume.]JACINDA ARDERN (Labour):It is my pleasure to take a call—my first call—on the Register of Pecuniary Interests of Judges Bill. I think it is important that we have the opportunity to debate this proposal by Dr Kennedy Graham because I think the principle behind it is extremely sound. It is a timely debate to be having given that today for instance Transparency International has released its international rankings of countries and the work that they do to prevent corruption in their domestic field whether it be the way that public servants hold themselves whether it be their laws around official information and so on. All of those things contribute to a well-functioning democracy and perception is incredibly important in that regard. New Zealand unfortunately today slipped in its ranking. We were ranked No. 1—we were ranked No. 1.Hon Todd McClay: Did our points go down?JACINDA ARDERN: I acknowledge we may have maintained our points ranking but we have slipped into second position. I think when you look at where we have tracked—[Interruption] Apparently second does not matter to National members. Apparently they do not seem to mind that we are no longer top of the field. A little bit defensive they sound over there.I just want to track back through a little bit of history. In 1999 when Labour took office from National we were ranked No. 3. We had been No. 4 under National actually—that is where they had let it get to. We were ranked No. 3 at the time though that Labour took over. In 2004 we got us to No. 2. By 2006 we got us to No. 1. That is the work that we did to ensure that we had a better placing. We are disappointed. Obviously the bar to which National holds itself means that No. 2 does not matter. They have always been happy to be fast followers. But my point is and Dr Kennedy Graham is right to make this point that we can never afford to be complacent—we can never afford to be complacent. I do not think it is good enough to simply say: “Well the intent is in the legislation and therefore we should be satisfied by that.” It is what happens in practice that we should be concerned about. I think that that point is well made in this bill.We should encourage transparency at all levels. We already have a pecuniary interests register which was applied to Cabinet in 1990. It was extended to members of Parliament in 2006 and I think all of us would agree that there is benefit in having that regime. It gives us protections. It tries to enhance the faith that members of the public should have in us. That faith is not always present but it tries to enhance that faith. So I think the principle of extending the register to the judiciary was one that was worth exploring.The origin of the bill itself is also a good indication of the issue that the member was trying to resolve. It was briefly talked about by the previous speaker Jacqui Dean. That case was Saxmere Company Ltd and others v Wool Board Disestablishment Company Ltd. In that case Justice Bill Wilson was part of a bench of three Court of Appeal judges—I believe he was a fresh Court of Appeal judge at that time—that overturned a High Court decision. It was found though that counsel for Saxmere was Alan Galbraith QC. He was found to have a business relationship with Justice Bill Wilson—a relationship that you get the sense was casually referred to but not fully disclosed in the way that it should have been. That is the point. It should never have happened. It seems to be the view on that side of the House that because it should never have happened and actually there were some rules in place that suggest that it should not have happened actually we should just be satisfied with that. I think it is fair that we look at taking things one step further and why?Well actually I read an article written by an Australian journalist who was looking at the Saxmere case here in New Zealand who said: “The solemn edifice of justice depends on the public having some sort of respect for and confidence in judges. … When judges misjudge there is hell to pay. In a single bound the thin silk can easily be torn from the alabaster bosom of that blind statue holding aloft the wobbly … scales. It’s delicate and it’s a lot to do with appearances … ”. That was a direct reference from an overseas journalist to the Saxmere case and was pointing out what we were going through as a country in terms of ensuring that we did not chip away at the perception of our judiciary as being beyond reproach.In this case however the conflict should never have happened as I have already stated. The commentary from the Justice and Electoral Committee is quite clear on that. In fact it states: “In terms of the law on when a judge should not sit on a case due to apparent bias the Supreme Court confirmed”—in the Saxmere case—“that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not be able to bring an impartial mind to the resolution of the question the judge is required to decide.” I am sure that anyone from the brief description I have just given of theSaxmere case would agree that that would seem to be the case. It goes on to say: “Because of the state of the financial arrangements in the business venture between the judge and the counsel the Supreme Court found that the case on apparent bias was made.”The previous speaker Jacqui Dean suggested that the recusal processes should be sufficient. Again as the select committee reported: “We heard that if a judge has a pecuniary interest in the outcome of a case he or she is automatically disqualified from hearing it. Where there is doubt the judge has a duty to disclose this to counsel and the parties to the proceedings to invite comments and then to make a judicial decision. Failure to disclose a conflict may amount to misconduct and complaint to the Judicial Conduct Commissioner. The Court of Appeal has an internal protocol for managing potential conflicts.” If you listen to that side of the House you almost get the sense that that should be the end of it. I do not think that is fair not least because actually the Law Commission has already said that in its view the procedures around judicial recusals remain unsatisfactory and “less transparent than they should be”.Reference has already been made to the fact that as part of the Judicature Modernisation Bill the Law Commission did a piece of work before the bill will come to this House. The Law Commission explicitly recommended—and I have taken this straight from its recommendations—that “ … there be a statutory requirement [in new courts legislation] for the Heads of Bench in consultation with the Chief Justice to develop clear rules and processes for recusal in their courts based on a common set of principles developed by the judges.” So clearly the view from the Law Commission is that yes there are guidelines around recusal and yes in the Saxmere case it was clear that the justice did not apply the standard that was anticipated but that actually there is clearly some murkiness in this area and guidelines are required.The Judicature Modernisation Bill provides an opportunity to address this. But if the Law Commission is so clear that these guidelines need to exist in primary legislation surely Parliament should take some interest in the nature of the guidelines themselves. I think that was the point that Kennedy Graham I think fairly made. My understanding from listening to the member was that his expectation was that perhaps there may have been some discussion as to what those guidelines may look like. Should Parliament not take an interest—if we are to take the Law Commission’s view and the firmness that it has applied in saying that we have not got the transparency we need and that guidelines are definitely required—in what those guidelines look like as other jurisdictions have? Is it sufficient to simply say that we require them to be set in primary legislation but that we leave our responsibility at the door at that point?I think that the member has made a fair point. It seems to be his intention to perhaps make amendments as part of the Judicature Modernisation Bill to embed in primary legislation perhaps some expectations around what those guidelines should look like. I think those would be worthy of consideration and I look forward to seeing what he intends to draft in the future as the House comes to consider that significant bill further down the track. Thank you.