Judicial Matters Bill — In Committee Procedure 
Judicial Matters Bill — In Committee Procedure 
[Volume:617;Page:12874] 
Judicial Matters Bill 
In Committee 
Part 1 Judicial Conduct Commissioner and Judicial Conduct Panel 
RICHARD WORTH (National—Epsom) 
: 
 National has already indicated its concern about the Judicial Matters Bill and that concern is deep-seated for a number of reasons. In connection with this particular call I would like to start on Part 1 which deals with the Judicial Conduct Commissioner and the Judicial Conduct Panel. There are three subparts one concerned with preliminary provisions one concerned with the Judicial Conduct Commissioner and one concerned with the Judicial Conduct Panel. 
Just from those headings one might think that what we are looking at in Part 1 is judicial conduct that had varying degrees of lapse seriousness. But we are not. We are talking about only the circumstances in which it is appropriate to remove a judge and that is a judge of the District Court a judge of the High Court a judge of the Court of Appeal and a judge of the Supreme Court. It is obviously intended that this power be rarely used. The reality is that it has never been used in New Zealand at all. So the first question is why are we debating a proposal that it would seem on past history there is no need to advance at all? I said yesterday that legislation should be remedial in nature. That means that it should have a positive purpose and it should be designed to remedy an ill or an evil. Here we have the Government spending a considerable amount of time and energy in advancing a cause that is meritless in that there is no mischief. 
I am not saying on any basis that the public is wholly satisfied with the judges. Quite clearly the level of complaint indicates there is room for improved performance a greater understanding by the judiciary of its role and a greater understanding by the public of the judges’ role. But that is not what we are about in looking at Part 1. Part 1 is all about removing a judge from office—a very significant constitutional step. If there is concern about judicial conduct it is here in Part 1 that it should be addressed. The Government did not have the fortitude to do that. It did not have the fortitude to look at conduct that falls below the standard of proven misconduct. 
I think that is a pity because the Justice and Electoral Committee heard evidence and submissions from a number of people who wished to see a tighter code of conduct. They wished the circumstance of the intemperate judge dealing perhaps unfairly in their perspective with counsel or a witness to be dealt with. They wished something to be done—as it has been done for example in Australia—with the judge who fails to get on with his judgments. It is fair to say and it is an old saying that “Justice delayed is justice denied”. There have been instances in Australia where judges have been brought to account for their failure to get on and deal with cases on a timely basis and to get on and write judgments that represent the closing part of the judicial process. 
I also resent the fact that a right I have as a member of Parliament to move an address seeking the removal of a judge is to be taken away from me and other members of the House. Instead this whole process is to be entrusted to a complex bureaucracy that is explained by a line diagram which is included in the bill so that we can follow through the various process pathways. Why should not we all as members of Parliament continue to have the right we have had for many years to move an address for the removal of a judge if the circumstances are so serious? But no a bureaucracy is to be set up. 
A significant element of costs is to be associated with both the Judicial Conduct Commissioner and his panel. I think it is wrong that heads of bench who are given specific statutory status are not being given associated power and responsibility. 
DAIL JONES (NZ First) 
: 
 Part 1 of this bill which we are now considering is a lengthy part with some very important provisions dealing with the Judicial Conduct Commissioner which is a debate in itself and a Judicial Conduct Panel. There have been a good number of submissions on this bill and a good amount of objection to it and that relates especially to Part 1. I turn for example to the submission from the New Zealand Council for Civil Liberties. Usually one would expect a Labour Party to be concerned about anything the New Zealand Council for Civil Liberties might say but times have changed— 
Jill Pettis 
: Times have changed! 
DAIL JONES 
: As Jill Pettis indicates times have changed. The Labour Party’s regard for the New Zealand Council for Civil Liberties has decreased the longer it stays in office— 
Jill Pettis 
: It depends on the issue. 
DAIL JONES 
: It depends on the viewpoint of the New Zealand Council for Civil Liberties. In this case the council says: “This part of the bill is nothing more than an elaborate piece of window dressing and does not give effect to the comments of the United Nations High Commissioner for Human Rights of 15 March 2000.” 
Once upon a time the Labour Party would bow down and genuflect forever in front of a United Nations High Commissioner for Human Rights but those days have long gone. Those comments were made in the context of a complaint regarding a New Zealand judge through a United Nations special rapporteur on judicial independence. The witness said: “It would also appear to be nothing more than an unnecessary complication to the current unencumbered right of Parliament to impeach a judge.”—as the previous speaker was saying. “The right of Parliament rather than the executive to exercise that power is one that I hope any parliamentarian would be loath to surrender without full and adequate reasons of which none are evident here.” 
I think the Law Society submission indicated that this right goes back at least as far as the 1700 Act of Settlement. This Labour Party has no regard for history and no regard for the rights of this Parliament or parliamentarians. If one links this system back to the English Westminster system and the Houses of Parliament we as parliamentarians have had an unencumbered right for at least 304 years it would seem to impeach a judge. This Labour Party is wiping it away in one piece of legislation which gets very little support in this Committee. I think there is support only from the Labour Party and the Greens. 
Dare I say it again the Labour Party and the Greens are again supporting legislation that gives New Zealand lengthy and long-term rights. They got together on the Supreme Court Bill and passed legislation to abolish the Privy Council without any regard for the rights of the Maori people of New Zealand all of whom opposed that bill despite everything the Greens said. The Greens said they would not support the Supreme Court Bill if the Maori people opposed it but of course they changed their minds in some sort of deal they did with the Labour Party. Here they are again the Labour Party and the Greens taking steps to remove this Parliament’s long-held constitutional right in terms of Part 1 of this bill to impeach a judge. The Greens are taking that right away. 
The civil liberties people said: “This bill does not conform to international norms. New Zealand entered into the first optional protocol to the International Covenant on Civil and Political Rights on 26 October 1989. According to the fourth report of the New Zealand Government itself on its compliance at paragraph 47: ‘Use of international human rights norms is not confined to the courts.’ ” It pointed out how Cabinet should be involved with them as well. 
 The New Zealand Law Society which rarely if ever issues views on policy opposes this bill. It opposes the proposals in Part 1 to establish the office of the Judicial Conduct Commissioner. In this call I am unlikely to have enough time to speak about that but I hope to get a second call to do so. However the Law Society’s reasons are that the proposals are constitutionally unacceptable because they will undermine the independence of the judiciary and most important there is no evidence of a problem that requires this legislation. 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party to speak in this stage of the Judicial Matters Bill—a bill with a title so bland that anybody who is listening to the debate and is not involved in this process will not know what it is about. We are addressing Part 1 which really embodies the recommendations of a friend of the Attorney-General Margaret Wilson. The Attorney-General asked Sir Geoffrey Palmer to give her a report on how she should go about disciplining judges—a matter of high constitutionality. 
Who judges the judges who guards the guardians who watches the watchdogs is one of the hardest issues for any constitution to deal with. In our system it has been dealt with by a mixture of convention law and care in appointment. New Zealand has never had a judge sacked by Parliament although we may have had one or two who ought to have been. Such matters have been managed very discreetly—usually by getting the judges to resign before they become an embarrassment to the judiciary and themselves. Mr Richard Worth gave us a useful historical survey of the only occasion when people asked or wanted Parliament to use the power. Eventually there too the judge was retired. 
This part sets out a complicated complaints system that takes all kinds of complaints about the judiciary. It will funnel in the many complaints that it is absolutely inevitable come from people disappointed with the outcome of their litigation. A judge in the judicial system will always get complaints. Nearly always one side will be upset and convinced that its case was not understood or that the judge was curt or rude. So in this situation to have some law that sets out a comprehensive complaints mechanism is foolish. The judges in an unusual step under our conventions made submissions that showed they were clearly unhappy with what is proposed yet the Minister has pushed the bill through to this stage with very little amendment. 
We have someone called a Judicial Conduct Commissioner and a panel called the Judicial Conduct Panel. They become the gateway the roadblock or the keepers of the sword for sacking judges. Instead of it being the right of any member of the House—which could be a very important right in an MMP Parliament—to initiate the sacking of a judge from now on it will happen only if the Attorney-General wants it to happen. The Attorney-General can prevent the appointment of a Judicial Conduct Panel. The Attorney-General can get a report from the Judicial Conduct Panel and ignore it and not move a motion in this House. The Attorney-General cannot actually sack a judge if the Judicial Conduct Panel does not make a recommendation or a report along the lines that that should happen. So instead of increasing the likelihood that an unsuitable judge might be ejected by the House this bill which has been portrayed by the Labour Party Government as being an enhanced protection for the people goes in the opposite direction. This bill means that the Attorney-General could protect her mates come what may even if the majority of Parliament thought they should go. This bill means that Judge Martin Beattie—who of course was not subject to the ability of the House to turf out a judge—had he been a High Court judge could not have been tossed out by the House if the Attorney-General decided it was not warranted. 
This matter comes at a time when the constitutional position of our judiciary should be under far more careful consideration and when we should be getting a broad consensus of Parliament around it. The Attorney-General should not be ramming through a constitutional change with the bare majority she will get by persuading the Greens that if they are nice enough to her she might one day support something they want—some political deal. This part which deals with judges goes to the heart of judicial independence. It is being passed through the House with hardly anyone even knowing it is happening. There has been virtually no media discussion of a significant change. Worse still the media do not even seem to have woken up to the fact that it gives the Judicial Conduct Panel the power to suppress complaints about a judge. It can subpoena for example a reporter who was reporting dissatisfaction about a judge. That judge can be protected by the Judicial Conduct Panel. 
JUDITH COLLINS (National—Clevedon) 
: 
 I rise to speak against this bill. I have been listening with interest again to the very good speeches that have been made from this side of the Committee. I have to say I am very surprised that the Greens are voting for this bill because I have thought that over the last few years they have shown they are somewhat concerned about what might be happening with a Government that can be out of control. Unfortunately something has happened and they have decided to go in with the Government on this bill. 
I would like to take up the point made by Mr Dail Jones previously and that is that the New Zealand Law Society in an almost unprecedented move—as Mr Jones indicated—has come out against this bill full stop. This is a bill that the society says it opposes. It opposes the bill’s proposals to establish the office of Judicial Conduct Commissioner. It says that the bill will undermine the independence of the judiciary and that there is no need for this legislation. There is no need for it because we have already seen—and it is in the papers with the bill—that hardly any complaints are made against the judges in this country. The number of complaints is minuscule and most of those complaints have very little in them. 
We on this side of the Chamber do not want to see judges reduced to being people who tick boxes make innocuous comments and cannot be straight up with the people who appear before them. We do not want judges emasculated by a politically correct Government that is incapable of understanding that occasionally people need to be told the truth whether or not they like it. But that is what this bill will ensure. 
When we look at the other submissions on the bill from responsible people then goodness gracious we see that the judges of the High Court and the Court of Appeal have come out against this bill! That has to be unprecedented. Those judges have come out and said they believe there is an unintentional—and it was very nice of them to say that to the Government—dilution of the protection of judges against removal from office that is provided in section 23 of the Constitution Act 1986. This bill is a change to our constitution and it will pass because unfortunately the Greens I believe have been misinformed. I do not think they would want to vote for it. 
The judges of the court oppose it but not because they cannot be subject to scrutiny. The judges of our courts are subject to tremendous scrutiny. In fact Family Court judges are now seeking to have more public scrutiny. They are subject to the scrutiny of the media of the parties and of this Parliament. They are not frightened of scrutiny. They are concerned that when they are sitting in judgment they will be thinking: “Oh no is this going to end up in a complaint? Because I am going to have to tell this offender the truth.” As the complaint would then go on to this commissioner bureaucracy would take over. The judges have to get their lawyers involved and the cost of the whole thing escalates. In fact I see that the bill calls for judges to have representation and provides that the taxpayer will fund it. The taxpayer will fund the reasonable costs of judges’ representation. 
 None of that would be necessary if only we stuck with the Constitution Act and the ability that Parliament has to end the tenure of a judge who is performing so badly that his or her tenure should be ended. In the past that has not been necessary because the judges know that that power is there and know that it will not be used unless it is absolutely necessary. In fact the Chief Justice has been able to talk to judges who have got to the stage where they should no longer be sitting. That has happened all the way through. But all that is needed for this Parliament to bring to an end the career of a judge is for one MP at the moment to come to Parliament and say that something has to be done about that judge and if that is fair we can do something about it. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I listened with a great deal of interest to the contribution from my learned colleague Judith Collins who I should inform the House is the former president of the Auckland District Law Society. She has a huge array of contacts in the profession and the judiciary. I make the point to the Minister in the chair that when judges use terms like “unintended dilution” it is expected that the more astute members of the ministry such as I assume Mr Tamihere is will read it for what it is. I think that we on this side of the House would all know that it is actually “intended dilution”. 
This legislation is a constitutional measure. To have legislation that seriously affects the Constitution Act which is something of a little prized gem of Sir Geoffrey Palmer and greatly treasured by him as part of the constitution framework and for this Government to dilute that one would think that at the very least it would wish to have the consent of Parliament as a whole but it does not. 
As I indicated in my second reading speech last night this kind of legislation does smack of arrogance. In the past it has always been the practice of Governments—both Labour and National—to consult with the other side on constitutional issues and to try to get a consensus. We are not supposed to do violence to our constitution by narrow majorities. That has always been the practice in New Zealand in the past. Take the MMP legislation that was passed by the consent of the vast majority of Parliament; and indeed the Constitution Act itself and the New Zealand Bill of Rights Act. However this legislation which does affect the independence of the judiciary is being forced through by a narrow majority. 
It reminds one also of the Supreme Court Bill which is now an Act which had precisely the same result of major changes to the constitution forced through on the narrowest of majorities with Mr Locke providing the majority as one would expect. That party purports to be the protector of the constitution. One hears Mr Locke always going on about the New Zealand Bill of Rights Act and the rights of citizens. But obviously he is not overly worried about the independence of the judiciary because I suspect that he will vote to help the Government pass this bill which will damage the constitution. 
These are important issues to state and I note that when the Law Society opposes legislation because it is not needed and will affect the independence of the judiciary one would think that the Government would take that on board; but it has not. It is passing this legislation. 
My final point is that this bill is part of a total package. The Government is intending to change fundamentally the role of the judiciary in both the appointment process and judicial conduct issues where people may have concerns about the judiciary. It is all being removed to politically appointed non-accountable people. 
The Government will say that that is advantageous. I suggest that it is not. At least the value of the Attorney-General is that she or he whoever the person might be from time to time is answerable directly in this House and accountable to the people of New Zealand through the parliamentary process. An independent panel appointed by the Government of the day—almost certainly from its preferred friends—will not be accountable and that is not the way we should treat the judiciary. It has the effect of reducing their role. 
RICHARD WORTH (National—Epsom) 
: 
 We are dealing with Part 1 of the Judicial Matters Bill that National and other parties strongly oppose. I made the point in my first call on Part 1 that this bill takes away from members of Parliament a significant constitutional right that they have enjoyed from the earliest days of the New Zealand Parliament. That is a shame as we come to celebrate 150 years of parliamentary democracy. 
I shall make two points in this call. The first point centres on clause 11 “Who may complain”. The clause in its unaltered form represents a failure by National to persuade other members of the Justice and Electoral Committee that there was a case to change that particular clause. Clause 11 is headed “Who may complain” and states that any person may make a complaint under section 10 about the conduct of a judge. That means any person. I suggest that the only person who should be able to complain about a judge is a person who is aggrieved. It should not be the media or a person in Northland in respect of a case heard in the Christchurch District Court. It should be someone who is clearly impacted by what he or she asserts to have been less than satisfactory treatment at the hands of a judge. 
My second point is to trace through this new process. We know the process at the moment. It is simply that an MP puts a motion to the House for the removal of a judge. What will happen now? Here it is. Step 1 the Judicial Conduct Commissioner receives a written complaint about a judge. Step 2 the commissioner acknowledges receipt of the complaint and notifies the judge. Step 3 the commissioner undertakes a preliminary examination of the complaint. Step 4 the commissioner concludes that an inquiry is necessary and recommends to the Attorney-General that a Judicial Conduct Panel be appointed. Step 5 the Judicial Conduct Panel conducts a hearing to examine the matter. The contemplation is that the hearing will usually be in public. Step 6 the Judicial Conduct Panel reports to the Attorney-General first its findings of fact; second its opinion as to whether the conduct justifies consideration of removal; and third the reasons for its conclusion. Step 7 the Attorney-General decides whether to initiate a complaint. Step 8 there is a motion in Parliament for an address to the Governor-General seeking removal of judges in the High Court Court of Appeal Supreme Court and Employment Court. Step 9 the Governor-General removes the judge from office. That is why I said in my first call that we have established a costly and unnecessary bureaucracy to deal with a problem which in fact is not a problem at all. 
DAIL JONES (NZ First) 
: 
 During my first call on this matter I drew to the attention of the House on behalf of New Zealand First the concern of the New Zealand Council for Civil Liberties and I also mentioned the New Zealand Law Society’s opposition to the bill. I wish now to turn to just one point in addition to the comments made by the National Party speaker Mr Worth and that is to point out that the commissioner must receive and deal with every complaint made under the bill about the conduct of a judge regardless of whether the subject matter of the complaint arises in the exercise of the judge’s judicial duties or otherwise. Or otherwise! So the point I was making during the second reading debate—for example on the types of speeches judges can make and the types of activities they can do—is that a judge may have a bit of fun at a racing club or polo club or something like that and if someone does not like it—well it becomes a complaint to this commission. 
It is very hard to get High Court judges today. The income is not all that great from the point of view of a High Court judge. Judges have a great deal of restriction placed on them already through convention and now this bill says that if they do something that somebody thinks is out of the ordinary they can be up before this Judicial Conduct Commissioner and this panel for misbehaviour. Let us take for example a judge of the Maori Land Court. 
Hon Dover Samuels 
: Who? 
DAIL JONES 
: Mr Samuels says: “Who?”. Well “Who who who?” I can tell you that “who who” is a judge of the Maori Land Court and that judge of the Maori Land Court comes within the control of the Judicial Conduct Commissioner. 
What is going to happen next? The judge is on the marae he does something that someone says is contrary to tikanga Maori and bang the judge is up on a complaint. I am surprised that this bill has no reference to tikanga Maori. This is one of the first bills involving Maori Land Court judges that does not have something about tikanga Maori in it. 
It may sound amusing and I see that Mr John Tamihere is the Minister in the chair but this is a matter that clearly the Government has not given any consideration to. Maori Land Court judges are affected by this bill. So a person goes along to the Maori Land Court and lodges an application for separation and for a share in the farm or whatever it might be and someone objects to the way in which the order is made. What next? A complaint to the judicial conduct commissioner perhaps? Someone thinks: “I don’t like the way in which the Maori Land Court judge made that order. He didn’t take tikanga properly into account.” 
This bill is opening itself up to all sorts of problems. I can see that the Labour Maori members have not given any thought to it. I can assure them that Mr Pita Paraone of New Zealand First drew this point about the Maori Land Court judges to my attention. In New Zealand First we are very concerned about the way in which Maori Land Court judges will be dealt with in terms of this bill. It seems to me that the Labour Party has not given it any thought whatsoever. But whether we are talking about a Maori Land Court judge or a District Court judge or whatever they will all have the same problem. A judge may go along to a marae to a function—a private function—and perhaps enjoy himself or herself a bit too much and partake of the hospitality a bit too much and then he or she is on a charge—virtually on a charge. 
Brian Connell 
: Don’t drink on the marae. 
DAIL JONES 
: Well some marae are more urbane than others perhaps. One may enjoy oneself too much and one may come up on a charge. 
This bill is a dreadful piece of legislation. It makes it almost impossible for people to consider becoming members of the judiciary. It makes it very very difficult for people to continue to become High Court judges. It will make it even harder still for people of the highest calibre to accept the position of High Court judge. New Zealand First thinks that this matter is one of great constitutional importance just as the Supreme Court Bill was and what will we have again in this House? I think it will be a vote of about 62 to 58 if that to push this bill through. 
Dr Wayne Mapp 
: What about the Greens? 
DAIL JONES 
: The Greens are supporting this bill—it is ridiculous. 
The CHAIRPERSON (H V Ross Robertson) 
: I am sorry to interrupt the member but it is getting a bit too noisy. Tatou tatou—together together honourable members. Courtesy is contagious and we will all prosper if we keep within the spirit of the Standing Orders. 
DAIL JONES 
: Thank you Mr Chairman. As I was saying we should have at least a 75 percent majority of this House amending the constitution on this issue and we are not going to get it. 
DARREN HUGHES (Junior Whip—Labour) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question that the question be now put. 
DAIL JONES (Junior Whip—NZ First) 
: 
 I raise a point of order Mr Chairperson. I assume this means that Mrs Tariana Turia has given a proxy to the Labour Party for this bill. 
The CHAIRPERSON (H V Ross Robertson) 
: I am not aware of what the situation is regarding that. 
DAIL JONES 
: I think we are entitled to know because she is supposed to be an Independent now. 
Darren Hughes 
: The situation is the same as last Tuesday. The Labour Party has 52 votes. 
DAIL JONES 
: I am on a point of order Mr Chairperson. I have not finished yet. I was asking you to perhaps consider getting a formal statement from the Labour Party that it has the proxy of Mrs Turia. 
The CHAIRPERSON (H V Ross Robertson) 
: Can I just say to the member that voting lists are available at the Table if members wish to see them. That is the normal convention in the Chamber. [ 
Interruption 
] The Committee is becoming a little bit too noisy. I refer members to Speakers’ rulings 61/2 and 61/5. There is to be no comment at all when votes are being taken. 
A party vote was called for on the question  
That the question be now put 
. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 55 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Motion agreed to. 
JOHN CARTER (Senior Whip—National) 
: 
 I raise a point of order Mr Chairperson. I waited until the vote was finished before I raised this point of order. I wonder whether you could help the Committee and it would be helpful to me as far as planning the rest of the night is concerned. On the debate we have just had there were seven calls plus the closure call I think which is quite a short time. I wonder whether you can give me an indication. That is not normally the convention. Normally the debate goes for three-quarters of an hour or more. Could you indicate whether it is likely that the closure motions will be accepted after a shorter time than has been the norm so that I can plan my speaking list please. 
DAIL JONES (Junior Whip—NZ First) 
: 
 This section of the bill has 34 clauses. The next Part 2 goes from clause 36 to clause 75 so I would expect that we would have twice as many calls on Part 2 in that sort of situation. 
Hon MARK BURTON (Deputy Leader of the House) 
: 
 I just make the observation that of course this is always a matter for the judgment of the chairperson and the quality of members’ contributions would normally determine how long the debate goes on. 
The CHAIRPERSON (H V Ross Robertson) 
: Can I just say to members that I am sure whoever might be in the Chair at the recommencement of the Committee after the dinner break will take all those things into consideration and will I am sure be liberal with the interpretation. 
JOHN CARTER (Senior Whip—National) 
: 
 I raise a point of order Mr Chairperson. I am sure of that too but I asked a genuine question and I have not had a response from the Chair. Are you able to indicate the length of time that is now likely to be taken over the next parts in Committee so that we can plan? As I said the norm has been about 45 minutes. This debate was shortened down a little and I wonder whether that is what we can expect. Do you know whether for some reason the debate will be shorter tonight or are we going back to the norm of about three-quarters of an hour so we can plan around that? I accept all those other points—that is why I did not raise them myself. I do well know what matters are your prerogative and all those sorts of things. I just wondered whether we could get an indication of whether there has been some change with regard to the norm. 
The CHAIRPERSON (H V Ross Robertson) 
: No there has been no change Mr Carter. I can say that generally the manner in which the House is run is under custom and practice and if it is custom and practice I am sure that the debates will continue as they have and that the interpretation will be liberal. 
The question was put that the amendments set out on Supplementary Order Paper 205 in the name of the Hon Margaret Wilson to Part 1 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 55 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 1 as amended be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 55 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Part 1 as amended agreed to. 
Part 2 Judicial immunity number of Judges principal Judges part-time Judges and other matters relating to judicial officers 
RICHARD WORTH (National—Epsom) 
: 
 I am glad that in respect of the preceding part the Minister noted the importance of the quality of a member’s contribution to a debate because day in and day out members see that the contribution of the junior Government whip is limited to moving closure motions. What a sadness it would be if he were to reflect on his political career and realise it had been simply the moving of interminable closure motions without any comments of substance in the context of parliamentary business. But so it seems he will be judged. 
I would like to talk about Part 2 “Judicial immunity number of Judges principal Judges part-time Judges and other matters relating to judicial officers” which is as a previous speaker has said a significant part because it deals not only with judicial immunity and alters the law there but also with the number of judges the number of part-time judges and a raft of other matters relating to judicial officers. If one reviews the contents of the bill one finds there are amendments being made to the Children Young Persons and Their Families Act the Coroners Act the Courts Martial Appeals Act the District Courts Act the Employment Relations Act and so on. Part 2 is an incredibly significant part of the bill. Members have been saying that there are aspects of constitutional significance in Part 1 regarding the removal of members’ rights from that part but the constitutional significance of Part 2 is even more profound.  
I would just like to pick up a couple of points in this first call relating to the part and I shall start by dealing with the issue of part-time judges. That is an issue that divided the Justice and Electoral Committee and is able to produce strongly competing views but it is fair to say it is an issue on which the Government’s mind was utterly closed. A really good starting point to look at that issue is to reflect on whether it is right that judging should be a full-time business and I would say it should be. Those who commit to a life and a career at the Bar in order to argue cases before judges and those who go on from that position to become judges know very well how significant the burden of judging is. The pay is not flash the stress is high and the hours are long. There are some activities that may well lend themselves to part-time work. Knitting may be an example of such activities; judging is assuredly not. In the way that the courts are structured—with the fixed hours that the courts generally sit—the part-timer not only has a hard row to hoe but also creates significant problems for the administration of the system.  
I gave two examples the other day both of which I think bear repeating because they reflect the reality of life in the courts. The reality of life in the courts is that because there is a requirement to schedule cases counsel are asked to make estimates of how long a case will last. Now if we are to deal with what the Government apparently contemplates which is a part-time judge or judges we will find there will be occasions when such a part-time judge is simply unable to sit on all days of the week. So a 4-day case is ruled out for the part-time judge and a 3-day case may also be ruled out. Those who have knowledge of the criminal and civil courts in particular will know that many cases run for those sorts of periods. What is the outcome? It is that the burden will be transferred on to the full-time judges in a way that is neither fair nor equitable. But that comment applies in the circumstance of scheduling where an accurate estimate is made of how long a case will last. It is often the case—and I instanced this to members the other day—that a case trickles on. It not only runs a day over the estimated time but it may run 2 days over. In fact there have been instances in recent times where the hearing duration of significant commercial cases has been hugely underestimated. So there will be the situation where a case runs on and the part-time judge says he or she cannot continue to sit on the case. 
DAIL JONES (NZ First) 
: 
 In speaking to Part 2 “Judicial immunity number of Judges principal Judges part-time Judges and other matters relating to judicial officers” of the Judicial Matters Bill I would like to commend the Justice and Electoral Committee for disregarding the attempts of the Attorney-General the Hon Margaret Wilson to set the number of the judiciary by way of Order in Council. That matter should always come before and be considered by Parliament and the attempted sleight of hand by this Government in terms of clause 41(2) which would have set the number of judges by way of Order in Council in the future was absolutely rejected by the select committee. I am pleased that the provision was struck out by a majority and the provision put in by a majority that that matter should not be done by way of Order in Council but by way of an amendment to the appropriate legislation. That is a victory for common sense and the constitution and is an effort to make sure this Labour Government’s unconstitutional way of doing things if I may say so without a proper 75 percent majority of Parliament is set back in one instance at least. 
I am particularly concerned that in terms of clauses 72 73 and suchlike the Maori Land Court should now become subject to this legislation which no one has really requested. Where is the demand for this legislation? Have the Maori members gone to Margaret Wilson and said some legislation is needed to cover that issue? Have they asked her to please set out the amendments to Te Ture Whenua Maori Act? When I look at the unconstitutional nature of this matter I wonder whether the hikoi was 1 week too early. I wonder whether the hikoi should have been this week rather than last week because this is a real change to our constitution. I think if the people on the hikoi knew what was happening in this legislation they would have been here this week as well as last week because this week is much more important than last week. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
DAIL JONES 
: After enjoying the hospitality of Mr Speaker reference to the Judicial Matters Bill can be something of a tongue-twister at 7.30 p.m. We are back to talk about the constitutional outrage before us. We have had a situation since the Act of Settlement in 1701. I think William and Mary were King and Queen in those days. That was before the Act of Union of 1707—before the United Kingdom even and well before Great Britain. This minority Labour Government supported by the Greens is trying to rush this legislation through the Chamber at this time of the night. At least we are on the air—that is something we can say about the present situation. 
Who asked for this legislation? Who asked for this bill? Nobody has asked for this bill. About the only people who want it are Margaret Wilson and the Labour Party supported by the Greens. [ 
Interruption 
] The Green member knew exactly what I was going to say. A conscience exists in this Chamber on the part of the Greens. He knew that I was going to mention him and he sang in unison with my phrase. This bill alters for example the Te Ture Whenua Maori Act. I ask the Maori members—the Maori Labour members in particular—what they have to say about that constitutional outrage. They have been quiet up until now. I would have expected them to get up speak to Part 2 and ask what the problem is that requires the amendment in Part 2. 
I would have expected other members to ask why we now need to increase the number of District Court judges from 123 to 140. It is absolutely disgraceful. This Government does not have control of the judicial system in our country—that is very very clear. More and more money is being spent on the judiciary because this Government is passing more and more unusual laws. That causes all sorts of unusual problems for the judiciary especially I suspect in the Family Court area with regard to some of the same-sex legislation and suchlike. I suspect the reason why we are seeing the increase in judges is that they are trying to interpret very unusual legislation. 
This Government should ensure that the judiciary in this country operates efficiently. I know that when I was in Parliament way back in 1979 and we introduced provisions arising from the findings of the royal commission on the judiciary the idea was to reduce the number of judges. 
RICHARD WORTH (National—Epsom) 
: 
 I have made a number of points about the Judicial Matters Bill in the course of this Committee stage to indicate on behalf of National how strongly we feel against this legislation. We see this bill as being very significant in constitutional terms and as being an incredible erosion of the rights that Parliament has had for a long time in respect of the removal of judges. The plans for the removal of judges have been replaced by a bureaucratic process that is clearly capable of manipulation and politicisation. I do not want to cover those issues again. Instead I would like to deal with a very specific provision in Part 2 relating to the number of judges. That issue caused debate in the Justice and Electoral Committee and I think the debate was wholly warranted. I was reminded of that today and I will burden the Committee with an observation. 
At the Regulations Review Committee Sir Geoffrey Palmer and the Clerk of the House talked to us about issues relating to processes in the House that could be substantially altered to improve democracy in the Chamber. The issue that taxed us related to the so-called affirmative resolution procedure. That is a shortcut procedure that falls short of the normal parliamentary process and it was proposed in this bill in order to ramp up the number of judges. Sir Geoffrey Palmer whose politics are not my politics but whose intellect I assuredly admire— 
Hon Ruth Dyson 
: It’s not yours either. 
RICHARD WORTH 
:—drew attention to the dangers of the affirmative resolution procedure. I cannot really let that intervention from the Minister in the chair go unanswered. I hope that she will make a substantive contribution to this debate but I doubt whether she will. An interesting aspect of this debate—which involves I think high constitutional principle—is that the Government has been strangely silent and I would say un-strangely ashamed. It did the Minister in the chair no credit to interject in the way she did but it was not unexpected. 
I want to go on to the issue of judicial numbers. Sir Geoffrey Palmer—whom this Minister may not respect but I assuredly do—said that the use of the affirmative resolution procedure posed the possibility of judicial packing. Through the delegated procedures of legislation the Attorney-General would have the ability to effectively stack the court in a way that reflects judges with a particular bias right through the whole court structure. It is really important that judges show no favour and no bias. In fact they take that oath. Clauses 41 and 51 increase the number of judges by providing for a really huge hike in the number of District Court judges—they are to go from 123 to 140—and for the number of High Court judges to be increased from 37 to 55. 
I raise for serious debate and consideration the issue that we have too many judges. We should look at better methods of judicial resourcing and at improved case management strategies. Simply increasing the number of judges is not the way to achieve the desired outcome in any event. The desired outcome is obviously access to justice for all. It has been truly said that the courts are open to everyone like the Ritz Hotel. We need to be utterly committed to fair process which is absent. 
STEPHEN FRANKS (ACT) 
: 
 Part 2 of the Judicial Matters Bill will become a whole series of changes to the Acts under which our judges are appointed—judges of the Environment Court the Family Court the Employment Court and the High Court and even coroners. 
Very significantly the bill allows the Attorney-General to appoint part-time judges. This was justified to us on the basis that it would make more people willing to offer themselves for appointment and that it would enable women who for example have family responsibilities to hold judgeships and contribute to some extent. It was also justified to us on the grounds that there are judges from time to time who have commitments arise that have not been anticipated and they should be allowed to continue part-time. ACT was not opposed to that kind of flexibility but we find after a bit of probing in the bill that simply allowing flexibility might have been the last thing on the Attorney-General’s mind. The Justice and Electoral Committee was properly concerned about the potential for panel packing. There may not be an actual intention to panel pack—that is to ensure there is a big enough pool of judges for the Chief Judge to allocate a matter to a judge known to have the right predisposition. The problem is the appearance of panel packing and the possibility of subverting what has been a part of our law for generations—namely a limit on the number of judges so that the politicians cannot do what has been done in many countries when they have not liked what the judges are doing and that is to appoint judges more to their taste. 
In short this bill allows the Attorney-General to appoint an almost infinite number of judges. Although the number of High Court judges is fixed at 55 and the number of district court judges at 140 the bill says that a part-time judge is counted as a fraction of a full-time judge. For example by appointing 20 judges who each work 1 day a week the Attorney-General would have a chance to stack the judiciary using the equivalent of only five judge spaces. One judicial space one vacancy could be taken up by up to 10 extra judges if she chose to appoint them on the basis that they do half a day each. That may be an extreme but I offer it to the Committee to consider the constitutional implications of this change. 
Why is it sinister? Because it would have been very easy for the Minister to have instructed her officials not to oppose a really simple reassurance to us all that that was not her motive. We discussed in the select committee putting in a limit that no more than say 25 percent of the judges could be part-timers. We were told that this power would be exercised rarely. We were told not to worry because the Chief Judge was in a position to approve or not approve someone going on part-time work. But of course the Chief Judge might have her arm up her back. The Chief Judge might be desperate to have some extra capacity and would not have a choice if the Attorney-General—an Attorney-General who is not trusted in this country—decided that she wanted some of her mates on the bench to fill up all the vacant slots. That might be the best that the Chief Judge could get. 
Worse still the Labour majority on the select committee would not allow this bill to remove the power of the Attorney-General to decide who gets to be a part-timer when and for how long. Each court which should be governed by its own judges through the Chief Judge should at least have been allowed the power to decide which judges will be part-time and when. Instead the Act expressly states that it is the Attorney-General who decides when a judge can go on light duties and when a judge comes off them. 
This is not just point-scoring; this is a serious constitutional matter. For generations we have had in our law that when the number of judges has to be increased it must be done by Parliament. That gives Parliament a chance to debate whether the reason for the extra judges is because our legal system is going wrong. For example it is quite proper that we have a chance to debate the number of Family Court judges because 2 years ago we passed a bill that effectively married 200000 couples and that measure inevitably increased the load on the Family Court. That is a proper matter for political debate. The Attorney-General can now sidestep that by making a series of part-time appointments thereby filling up the slots. The moment she changes them from part-time to full-time there is no vacancy. In other words—and I do not know whether the National Party or New Zealand First have realised this; I must say it had not occurred to me—there is a strategy here open to the Attorney-General to fill up the available slots in the judiciary for the foreseeable future. All that she needs to do is appoint judges as part-timers and then it is in her gift to convert them to full-timers as and when a vacancy occurs so that there are no more vacancies for some time. 
This is not a light issue. I am astonished that the Greens have allowed this to happen. I can see why Labour might want to do this. It has an agenda. It wants to change our constitution and it does not want to have to go to the people on it. Labour does not want referenda. It does not even like having this issue debated in Parliament. It will quite happily push these things through on a bare majority. In this case Labour is pushing it through without even the judiciary or the profession approving of it. 
It is also astonishing that this issue has not been noticed by our media. We have here a power to stack our courts with political mates of the politicians in rule from time to time and their decisions are now out of reach of reversal by a patently independent court in London. When we are in power I would not want to have the temptation offered by this bill. I would much prefer that it was locked away. With the best will in the world I will be quite convinced that people I know will be better judges than the ones whom Margaret Wilson mixes with. I would love to be able to reduce the flexibility for a succeeding Government to appoint a judiciary to its taste but this bill now makes it possible to sidestep the provisions that we have had in our law for so long to try to prevent that. 
This issue is not something that should be pushed through with disinterest. I am glad that United Future is voting against it and that New Zealand First agrees with us. I have appreciated the historical survey that Mr Richard Worth has given us and Dail Jones’ reference to the submitters. Yet at the moment it does not seem to have a political cost. I think the Labour Party members should reflect on the fact that it will. When the collective impact of this kind of change this kind of high-handedness with the constitution is recognised it might explain to them why they have had such a shocking and unexpected reversal in the polls. It might explain why what Labour thought was an innocuous or simply scurrilous speech from Dr Brash touched a nerve with people who have lost trust in the Government. It is because of this kind of change this kind of sneakiness this view that propriety does not matter and that the Government does not need to get consensus before it imposes its social views to engineer New Zealand. 
So we get all these provisions in Part 2 applying to the Youth Court the Family Court the Environment Court the Employment Court and worst of all the High Court where the Attorney-General gets the power to appoint a nearly unconstrained number of judges—to decide what hours they will work. It is an odd provision anyway. From the language all that it says is that part-time judges are treated as the appropriate fraction of a full-time judge and that they are paid a pro rata proportion. What is the fraction? If the Attorney-General says that judges are working 1 day a week what happens when they are thinking about their judgment in the shower if they take it home at night or if they work on it on other days—trying to catch up with a backlog—when they are not supposed to be working? Does the judge potentially come back and say that the pro rata proportion should be more? Will the Chief Judge back them in a claim that what they are expected to do in their 1 day is not possible? 
DAIL JONES (NZ First) 
: 
 The next issue that I wished to discuss was the question of part-time judges which are referred to in clauses 42 47 52 55 60 and 73. I refrain from endorsing the previous speaker Stephen Franks because I am told that endorsements are out of order in the present circumstances but as a member of the Justice and Electoral Committee he makes some very good points. 
I am in support of the concept of part-time work for the judicial officers—and I gained the impression that generally speaking Mr Franks would be—but there needs to be more safeguards than currently appear in the legislation. There are any number of women—and part-timers are usually women—who have very good experience in the law who have considerable ability who are very clever people who go on to even greater duties as mothers. Later they decide they want to go back into the workforce and have to consider how they will do that. Some of them today decide they will not leave the workforce and will try to stay in the workforce on a part-time basis and bring up their children at the same time. Such people are a wonderful resource that is available to New Zealand and New Zealand First supports the possibility of women—part-timers are usually women—being able to continue their legal careers. My own wife was able to come back into the teaching profession on a part-time basis job-sharing with another person so I have first-hand experience of the matter. 
The Law Society supports the provision that will enable judges to be authorised to act for a defined period on a part-time basis. I am encouraged that the Law Society is moving well and truly into the 21st century on that basis. Other forms of part-time judicial work are mentioned by the Law Society and its submission refers to the office of recorder in England and Wales. I am sure I mentioned in my speech on the first reading that the office of recorder is available part-time in England and Wales. recorders being barristers as a rule get the chance to work out whether they want to be judges or whether being barristers is a more acceptable form of profession. 
I think the concept of part-time judges is a good one. I have criticised the Government very severely on what is really a constitutional outrage in this bill generally speaking; it is regrettable that the bill was not introduced solely from the point of view of part-time judicial work being made available to qualified people. So I will give credit where credit is due. However I take the point that perhaps there needs to be more clarity and I suspect there may be amendments in the Committee stage on just what is available in the way of part-time work for the District Court. I see there is provision for up to six associate judges in the High Court but when I went through the bill I could not find any sort of limitation on the number of part-time judges in the District Court and wonder whether it is possible to set that out. 
There are problems with part-time judges male or female. As Richard Worth properly pointed out one often starts out on a case that should last a day but it goes into 2 days or on a 2-day case that ends up as a 4-day case. I am sure that the people who manage the courts in the present system can provide that a 1-day case means a 1-day case and that such a case if it does go into 2 days has the same judge—it could only be the same judge—deciding it on the second day. There is nothing worse even today—and I have experienced it—than the judge saying at around about 4.20 in a midweek afternoon: “Look I’ve got to go now. I’ve got a meeting.” Being a humble lawyer one cannot ask the judge what the meeting is but one does suspect that it has something to do with uplifting someone from somewhere because the other partner cannot do it. That happens today. I would have thought that in a part-time situation there would be greater safeguards to make sure that cases are not abruptly left partly heard. 
This is very important legislation. The next area I am concerned about is the situation of the other judges. I am concerned about clause 72 “Appointment of Judges” and the following clauses which relate to the Maori Land Court. I would have thought that any member of this House who represented a Maori constituency—the seven Labour Party Maori members of Parliament—would give us his or her view on the amendment to the Te Ture Whenua Maori Act which I was discussing before the break. Those members are indeed strangely silent. What is their view on Maori Land Court judges being appointed on a full-time basis but being authorised to act part-time? What would they say about some Maori Land Court judges being appointed part-time? How part-time is part-time? When does the time begin and when does the time end and how do the people involved in a case know whether the judge is part-time or full-time? That same query applies to every other judge as well but just before the break a significant number of members who represent Maori seats were taking an interest in the issue and I would have thought that on behalf of their constituents they would be here in the Chamber taking calls. I would have thought that there would be Labour members in the Chamber taking calls on this very important issue and trying to answer the questions that have been raised by members of the Opposition parties. But strangely enough despite the fact that we have a constitutional outrage and an amendment to the Te Ture Whenua Maori Act there seems to be no Labour Maori member of Parliament taking any interest in this matter. Of course I include Tariana Turia who I would have thought might take an interest in the issue seeing that there is an amendment to the Te Ture Whenua Maori Act. 
The question was put that the amendments set out on Supplementary Order Paper 205 in the name of the Hon Margaret Wilson to Part 2 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 55 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Amendments agreed to. 
A party vote was called for on the question  
That Part 2 as amended be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 55 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Part 2 as amended agreed to. 
Schedule 1AA Overview of process for Judicial Conduct Commissioner and Judicial Conduct Panel 
A party vote was called for on the question  
That schedule 1AA be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 55 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Schedule 1AA agreed to. 
Schedule 1 Provisions relating to Judicial Conduct Commissioner and members of Judicial Conduct Panel 
The question was put that the amendment set out on Supplementary Order Paper 205 in the name of the Hon Margaret Wilson to schedule 1 be agreed to. 
STEPHEN FRANKS (ACT) 
: 
 I raise a point of order Madam Chairperson. What are you asking for? 
The CHAIRPERSON (Ann Hartley) 
: The Minister’s amendment set out on Supplementary Order Paper 205 to schedule 1. 
STEPHEN FRANKS 
: So have we passed the possibility of debate on the schedules entirely then? 
The CHAIRPERSON (Ann Hartley) 
: There is no debate on the schedules. It is part of each part. 
STEPHEN FRANKS 
: Thank you. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 55 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Amendment agreed to. 
A party vote was called for on the question  
That schedule 1 as amended be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 55 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Schedule 1 as amended agreed to. 
Schedule 2 Amendments consequential upon change of title of Master of the High Court 
The question was put that the amendment set out on Supplementary Order Paper 205 in the name of the Hon Margaret Wilson to schedule 2 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 55 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Amendment agreed to. 
A party vote was called for on the question  
That schedule 2 as amended be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 55 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8. 
Schedule 2 as amended agreed to. 
Clauses 1 and 2 
DAIL JONES (NZ First) 
: 
 This legislation is a disgrace to the New Zealand Parliament especially in the year in which we are celebrating 150 years of our democratic system of government in New Zealand. One of the fundamental aspects of proper democratic constitutional government is the independence of its judiciary. Any means of changing the independence of the judiciary itself should surely be conducted by way of a substantial majority vote of this Parliament—that is at least a 75 percent majority vote of this Parliament. Instead what do we see here today? We see a substantial change in the way the judiciary will operate in New Zealand. The judiciary is losing its independence. I say that not because of what New Zealand First has to say about this bill but because of the views of the New Zealand Law Society for example. The Law Society rarely—I cannot use the word unique—ever indicates a view on legislation yet it says it opposes this legislation. It says the basic reason for its opposition is the fact that this bill shows that we are losing the independence of the judiciary in New Zealand. 
Again we have the view of the New Zealand Council for Civil Liberties as expressed by Tony Ellis Barrister LLB LLM and a whole host of other qualifications. He takes the view that this part of the bill and the bill generally is nothing more than an elaborate piece of window dressing and does not give effect to the comments of the United Nations High Commissioner for Human Rights of 15 March 2000. He said it would also appear to be nothing more than an unnecessary complication to the current unencumbered right of Parliament to impeach a judge. 
Until the passing of this legislation in its final form this House would have been able to say that Judge X or Y of the High Court was not doing his or her job properly and that that judge should no longer be performing his or her role as a judge. That right has never been exercised by this Parliament but today we say that there needs to be a change to that role. What is the reason for it? There is no reason for it. It is the politically correct whim of Margaret Wilson and Helen Clark to try to set up a system by which any member of the public can come up with some possibly fictitious complaint about a member of the High Court and put him or her to a considerable degree of trouble as a result of that complaint. 
The complaint itself might not be just because of the way that judge is performing on the bench; it can also be related to the judge’s behaviour elsewhere. That is totally intolerable. Can our judges not have a good time and relax—as we saw with those barristers coming back from Pitcairn Island? They were possibly behaving slightly outrageously but having fun as they crossed the equator. This bill prevents High Court and District Court judges from having a good time in their private lives and other judges including Maori Land Court judges. 
If one is a Maori Land Court judge and at a hangi and having a damn good time does one have to constantly comply with tikanga Maori? There is no provision in this bill for the description of tikanga Maori and just how a Maori Land Court judge should behave in his or her free time. Yet this bill states that if a judge is having a good time at a hangi a marae or somewhere like that and if he or she perhaps commits a breach of tikanga Maori someone can say to this complaints body that “Judge so and so” should be the subject of a complaint and lose his or her job. What a terrible piece of legislation to pass by a majority of about 63 to 55! 
Brian Connell 
: I thought the member supported the Government. 
DAIL JONES 
: Brian Connell has not been listening. He is so out of touch. Once again I advise a National Party member of Parliament to listen to me and take notice of what I am saying. I say to Brian Connell the National Party member of Parliament for somewhere in the South Island that he should have been here all the time during this debate as I have been. 
We have been opposing this legislation. In fact we oppose this Labour Party Government more than the National Party does. We do not support the Government on votes of confidence as Mr Connell has done. Our record on votes of confidence against this Labour Party is twice as good as that of the National Party. Mr Brian Connell should stop chipping in because he has really put his foot in it once again. For example we will oppose the Government on the Forests Amendment Bill. As I understand it the National Party will be cuddling up with the Government. 
 Mr Connell should wake up and take notice of the way New Zealand First uses its brains as much as its mouth in coming to a decision. I appreciate that that would be a difficulty for Mr Connell but not for New Zealand First members. I hope Mr Connell will desist from his totally baseless interjection. 
As I was saying before Mr Connell’s totally baseless interjection this legislation is a constitutional outrage. It should not be passed in this way. I am surprised and amazed that the Maori members of this House especially Tariana Turia have not taken a call in this debate. Maori members are closely linked with the Crown and the way in which New Zealand has been established. Our right in this Parliament to impeach a judge goes back to 1700 not just 1852. 
If we look at the overall history of the New Zealand Parliament and New Zealand generally our rights in 1852 under the Westminster system can be traced back at least to 1700 and William and Mary—well before we could say that there was a United Kingdom under the Act of Union of 1707. I would have thought that the Maori members of this House especially Tariana Turia would be up here supporting New Zealand First—even supporting the National Party United Future and the ACT party—in ensuring that this constitutional outrage did not take place. 
During the course of the earlier part of this Committee stage we found the Greens once again supporting the Labour Party on constitutional matters. The Greens say they listen to what the Maori people of New Zealand have to say. That was not the case with the Supreme Court Bill that is for sure and it is not the case with this particular legislation. As I said during the Committee stage it is sad that the hikoi took place last Wednesday. It should have taken place this Wednesday because something more important has taken place in the House this Wednesday than took place last Wednesday—the constitutional outrage we are seeing in this legislation. It is regrettable that Mr Richard Worth is not here to fill in Mr Connell but perhaps he might fill him in later on with regard to the attitude Mr Connell is taking at the present time. 
I did express my support for the fact that this bill allows the appointment of part-time judges. Let us give some credit where it is due. I think that is a good move but it is very very sad that it is part of this particular legislation. It is in total contrast to the thinking behind the legislation. This legislation generally is the type of PC stuff we would expect from Margaret Wilson and the Rt Hon Helen Clark. It is legislation that does away with the well-established rights of New Zealanders and especially the rights of this Parliament. As I said at the beginning of this speech the New Zealand Parliament has been going for 150 years. For 150 years we have had the right to impeach judges. We have never done it once during that time yet this particular Government has decided in this legislation that some judicial commissioner or judicial conduct officer can do it. 
The National Party does not seem to be interested in opposing this legislation but New Zealand First is determined to oppose it. 
Brian Connell 
: Take another call. 
DAIL JONES 
: I will take another call if I can get it. I assure the member that New Zealand First opposes this constitutional outrage. If we have to show the National Party how it is done then we will. 
Between 1975 and 1984 I had pretty good experience of knowing how long to speak in a debate. In those days members could speak for 20 minutes and sometimes for 30 minutes so in speaking for a mere 10 minutes I will be just warming up. It will be like a good old Morris Minor just getting under way for a long haul. If Brian Connell does not want to take a call and the National Party is not interested in opposing this bill that is their problem. New Zealand First opposes it. I am here on behalf of New Zealand First to oppose it. That is what I will do and that is what I am doing now. 
We have seen problems with this legislation as I have said. 
STEPHEN FRANKS (ACT) 
: 
 I am delighted to have the chance to speak following what I thought was an excellent summary by New Zealand First’s Dail Jones of the reasons for opposing this bill. Like him I am a little surprised at the apparent lack of passion on the part of National in its opposition to the bill. This bill has been very properly opposed by National at an earlier stage for most of the reasons that Mr Jones raised. I suspect that the difficulty he was facing was temporary and may be related more to the change in personnel on the National benches at the moment. 
I am concerned that this bill not be treated lightly because a constitutional change without a consensus against the considered views of the Law Society the judges and the people concerned about civil liberties is a serious issue. It is particularly serious when it occurs after New Zealanders no longer have the comfort that they can appeal outside New Zealand to a body that is patently beyond the reach of local passions and local political influences. 
Regardless of the fears that people have about potential political alignment or consideration by New Zealand courts we did have the comfort that it was not worth stacking the New Zealand courts. It was not worth loading them up with people sharing ruling ideological views so long as we had a right of appeal outside New Zealand to a court that was beyond reach of the New Zealand appointment process. 
Now we have this Judicial Matters Bill. I do not think most of us who were looking at it in the select committee realised until quite a late stage that it allows the Attorney-General to appoint a very large number—almost infinite at its extreme—of new judges and to fill up slots well in advance. That is because there is no restriction on the new power to appoint part-time judges. Strictly this debate is about the title of the bill. Of course this bill is about to be divided into 11 bills covering all the different Acts that it amends. But the part that relates to the appointment of judges which goes into each Act constituting the particular court does not indicate how significant this constitutional change is. 
Firstly each subpart simply amends the total number of judges and provides that part-timers can be appointed which is not in itself an objectionable concept but then the bill says that it is the Attorney-General who decides how much or how little time those judges will spend working. It is not the head of bench not the judges collectively not the court but the Attorney-General who will decide. Secondly the bill says that the number of part-timers will be counted as fractions for the purpose of the total limit. That provides a way to evade what has been a constitutional protection for generations—that is that the number of Her Majesty’s judges cannot be increased by a politician without going through Parliament and making his or her intentions plain and justifying them. That has been removed. 
The other concern of course is the provisions that came under the label “judicial conduct”. When the provisions were first introduced the journalists were persuaded that these were to deal with complaints against judges and to upgrade what was called the “accountability of the judiciary”. They are nothing of the kind. This bill is all about sacking judges. It should have been called the “Judicial Impeachment Bill” or it could have been called the “Judicial Removal Bill”. It has nothing to do with ordinary complaints of misconduct. They will go to the Judicial Conduct Commissioner but the commissioner is simply a postbox to pass them on to the head of bench in each area if they are not of a kind that goes as far as removal. 
What have we done with the removal power? This bill allows the Attorney-General to ensure that a judge favoured by the Attorney-General cannot be impeached. It allows the Attorney-General to appoint the Judicial Conduct Panel. If the panel decides there is not enough to justify removal it does not go any further. Even if it does decide and the Attorney-General does not like it she can decide that it does not go further. This contrasts with the current position where any member of this House can impeach a judge. 
ACT would have been quite happy to support a more disciplined process. ACT would have been very happy to support many of the provisions in this bill if it was simply about providing a better investigative process as an immediate consequence of one of those impeachment motions. If it had been a set of changes to the Standing Orders which provided for a proper dispassionate investigation and report to Parliament to precede any debate on an impeachment motion this would have been quite unobjectionable in constitutional terms. Instead this bill which was just blandly called the Judicial Matters Bill contains a constitutional bomb—that is the removal of the people’s power through their elected representatives to impeach a judge in whom they have lost confidence. 
Worse it does not even tackle the hard issues on removal. The hard issues are the issues that the Solicitor-General grappled with in relation to Judge Beattie. The hard issue is: what is the standard? Is it just conduct unbecoming in a sense that it is conduct that brings discredit to the judiciary or does it actually have to be something that is nearer to a criminal offence—a sort of fraud something that shows real moral turpitude? I hope that it is the higher standard because we need to require a high standard in this area otherwise judges could feel that their independence was threatened and be kowtowing to the executive—to Government Ministers—to avoid any prospect of their becoming the victims of a Judicial Conduct Panel witch-hunt. 
There is nothing in this bill about whether the conduct has to be proved beyond reasonable doubt. In other words is it appropriate for the commission or the panel to report that a judge should not be removed if it simply has not been proven that he or she has been guilty of a serious wrong? Is it enough for a judge that he or she can get off simply because it is not proven? Should we deem innocence? Or if the circumstances are pretty reprehensible and their very presence on the bench will bring it into disrepute should that not be something that Parliament can proceed with to protect the reputation of the judiciary? Of course it should. 
As it is at present undefined Parliament can do that. But under the system as it will be if the Judicial Conduct Panel decides that the appropriate test is “proven beyond reasonable doubt” and that it must deem someone who has not met that standard to be innocent then the whole question is beyond Parliament. In an MMP Parliament it may be only one party that wants to protect the bad judge. It need only be the party of the Attorney-General and the judge is protected. This is a significant change and an unnecessary change. It would have been easy to get the agreement of the rest of this Parliament I am certain to a much more modest and defensible change that did not enhance the powers of the Attorney-General. Instead the Attorney-General would not accept amendments that would have made that possible. 
I tell members opposite that when they thought they could get rid of the Privy Council recourse without political cost they were wrong. They scoffed at the idea that people would become interested enough in a matter that was so arcane. Yet it has become part of genuine well-founded folklore that the Government has designs on the constitution. This will be another piece of that pattern. This is an unnecessary provocation. This is quite rightly upsetting people who worry about civil liberties; of course not the Greens who only pretend to worry about civil liberties. 
This bill will draw attention however much it has slipped through without notice at the moment. It may be that that attention will not be drawn until there is an incident. But the Government will wear the responsibility for setting a precedent that a bare majority in this Committee can tinker with the constitution. The Government should remember that when it changes and the temptation is in the hands of people such as myself the National Party and New Zealand First and we have this precedent in front of us even those of us who do not want to use it will face colleagues who are saying: “Why not? They did.” Those of us who worry about the constitution will face the precedent that this Government has established of being able to tinker with judges. Our less sensitive colleagues will not worry. 
DAIL JONES (NZ First) 
: 
 This is just a very brief call. It highlights as much as anything the failure of the National Party to make any contribution opposing this particular part of the legislation. This part of course summarises what took place at the Justice and Electoral Committee and the National Party is not interested. I take the point raised by Stephen Franks at the end of his speech and pass on an anecdote. As a lawyer one does come under pressure from one’s caucus colleagues who ask: “Why are you being so pedantic and so legalistic on an issue? Don’t worry about it. We the rest of this caucus know better than you and you shouldn’t be too concerned.” 
Well when I came into this House we had a vote for the first time on electricity legislation which was harmless enough. We had quite a number of legal members of Parliament in 1975 and we warned the caucus that there would be a debate from the Opposition on the right of entry into properties that electricity inspectors had—the absolute right for a meter reader to go on to a property and do the necessary inspection without any authority or proof whatsoever. We warned the caucus that that was what the Labour Party would take up. We were pooh-poohed by the rest of our National Party caucus. We were 55 they were 32 and it did not really matter. 
Well would members believe it that is all the Labour Party ran on during that first reading in those days. The debate went on and on about the entry into property by those inspectors and the fact that the rights of a person to free occupation of his or her own home was being undermined. 
Well I think there are fewer practising lawyer members of Parliament today than there were in 1975. When I was on that select committee in 1975—the Statutes Revision Committee—we had about five members of Parliament who were fully practising lawyers and as well there were some others who were not on the committee. But times change and I think Stephen Franks’ view that he expressed at the end of his speech is a very important one. 
This bill will see pressure put on subsequent Ministers of Justice and subsequent Attorneys-General to make changes. We have seen it already and I think the Attorney-General who is now in the chair has made some appointments of people who perhaps have not supported her in the way in which she might have supported them and she has had to take the appropriate action in so far as they are concerned. That is the type of pressure that is put on a person. That is the type of pressure that will ensure that this legislation which the Labour Government wants to see go through the Committee today will come back to haunt this House in the future. 
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 56 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8; Independent: Awatere Huata. 
Clause 1 agreed to. 
A party vote was called for on the question  
That clause 2 be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 56 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8; Independent: Awatere Huata. 
Clause 2 agreed to. 
Hon MARGARET WILSON (Attorney-General) 
: 
 I move  
That the Committee divide the bill into the Judicial Conduct Commissioner and Judicial Conduct Panel Bill the Children Young Persons and Their Families Amendment Bill (No 3) the Coroners Amendment Bill (No 2) the Courts Martial Appeals Amendment Bill (No 2) the District Courts Amendment Bill (No 3) the Employment Relations Amendment Bill the Family Courts Amendment Bill the Judicature Amendment Bill (No 2) the Resource Management Amendment Bill (No 3) the Summary Proceedings Amendment Bill (No 2) and the Te Ture Whenua Maori Amendment Bill pursuant to Supplementary Order Paper 206. 
A party vote was called for on the question  
That the motion be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 56 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8; Independent: Awatere Huata. 
Motion agreed to. 
House resumed. 
Procedure 
The bill was reported with amendment. 
A party vote was called for on the question  
That the report be adopted. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 56 
New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8; Independent: Awatere Huata. 
Report adopted.