Franks Stephen: Judicature Amendment Bill (No 3) — First Reading 
Franks Stephen: Judicature Amendment Bill (No 3) — First Reading 
[Volume:625;Page:20734] 
STEPHEN FRANKS (ACT) 
: 
 I hope that by getting in before United Future members I might be able to give them a lead towards a policy that would enable them to distinguish themselves from their masters before it is too late; before the election is upon them and they have not done a thing to show people why they exist. 
Hon Member 
: They’ll be gone! 
STEPHEN FRANKS 
: Yes. The polls will tell in the end. The Judicature Amendment Bill (No 3) is another strange bill. There is a whole raft of these curious little bills involving matters that—in this case—are not entirely trivial. But it is certainly mysterious that they have come up at this time when they have been talked about for so long. In fact I think we were lobbied 3 or 4 years ago to increase the number of the judges for this purpose. 
We said that we were not necessarily opposed to it but that we did not want it to slide through either in a provision that simply allowed the Minister to increase the number of judges—that was the first request from the Attorney-General; I think while the Hon Margaret Wilson was still Attorney-General—or in a Statutes Amendment Bill as a matter of no importance which was the second proposal. 
In fact the number of judges is very important. It is constitutionally important that Parliament decides whether to increase the number of judges. Rulers may want to exert executive influence—they may want to put pressure on judges or to decide court decisions—without an open usurping of the judicial role. If too many judges are appointed and if it is made sure that the chief judge is a mate then the chief judge can have a very heavy influence on what happens by deciding which judge gets to decide a case. This “picking horses for courses” is one of the reasons why Parliament should keep control of the number of judges. Parliament gave that up in the legislation that created the Supreme Court or in the legislation at that time because they gave the Attorney-General the power to create a whole lot of part-time judges. Those part-time judges are subject to the very influence that our constitution tried to protect our judges from—that is the need to please a boss the need to make sure that whoever is calling the shots on the allocation of cases or work is favourable to them. The problem with part-time judges is that if they want to live off their part-time employment or if it is important to them they need to be called upon. The problem with the situation that this Parliament allowed to be created at the request of the Labour Government and supported by United Future is that we now have the possibility of having a large number of part-time judges beholden to whoever is allocating cases because of their income needs. ACT said that this was a constitutional issue; the Government and United Future did not. 
Now we have an increase in the number of Court of Appeal judges. I do not believe that this is necessary and I am very glad to have an opportunity to debate the issue in this Parliament. The reason I think it is quite unnecessary is that the judges have not looked at the end point of what has been happening for the last 40 years. In my working lifetime the number of judges has increased at nine times the rate of the increase in population. This country is consuming itself in lawyers. This country is turning decisions that used to be matters of courtesy or morality and matters of common-sense decisions by authorities into decisions that allow lawyers and judges to second-guess endlessly. 
Judges have been a big part of that. If we read a modern judgment we see that judges go through pages and pages of facts hoping that some result will flop out without their having simply to adhere to or lay down the law. When I started in practice a very long case would have taken a week. These days a week is the length of time taken for a trivial—or near-trivial—case. I should not exaggerate. Although I know that judges are working very hard very honestly and very diligently I believe that they should be looking at themselves. My concerns about perversion of the courts are concerns about what could happen not what I believe is happening with our courts at the moment. But I believe that judges should be looking at this issue of overload and asking themselves whether the huge increase in the legalisation of New Zealand society is not something to do with us as well as something to do with the triumph of the nanny State “we know best” arrogance of the left. 
I think that judges are partly responsible. I think for example of the Court of Appeal’s workload and it is the Court of Appeal we are looking at in this legislation. The Court of Appeal’s workload I think comprises nearly two-thirds criminal appeals. Well of course there will be criminal appeals when the Court of Appeal tinkers with sentences. When the Court of Appeal alters an 8-year sentence by 1 year to 7 years instead of changing the sentence only when there is a manifestly major fault by the lower court every lawyer who has a criminal defendant is going to say in good faith: “We’d better give it a go.” 
They will tinker and say: “Let’s have a crack at it.” 
Secondly the Court of Appeal never uses the obvious remedy for overwork which is to make itself a bit more unattractive. When the judges of the Court of Appeal in Britain or the German Supreme Court get a meritless appeal they let the person who brought the meritless appeal know by increasing the sentence. They do not necessarily impose a direct increase. They simply hold that the period spent on appeal does not count off the sentence. Now there is an incentive for every lawyer to stop wasting time. There is an incentive for every appellant not to waste the time of the court. If an appellant fails his or her case and therefore the sentence will include the period spent on appeal he or she will not waste the court’s time. Has the New Zealand Court of Appeal tried anything like that? It has the power to do so. No. In fact it goes the opposite way. If the judges think a case is so bad they might increase the sentence of someone who has brought an appeal on spurious grounds they warn counsel that they might be thinking of increasing it and invite counsel to withdraw the appeal. I believe that that is pathetic. 
I do not have any confidence that anyone on the Government Administration Committee is capable of sending this bill back to the Government and saying: “Think about it.” With all due respect it needs brainstorming. It needs half a dozen lawyers. Although the public may be suspicious of lawyers that is what it needs. This bill should be sent to a committee that can say to the Government and to the Court of Appeal: “Hey think about why there’s an overload. Then come back and tell us whether you think more judges are needed.” I suspect that the committee will come back and say that more judges are needed. 
The Supreme Court I believe has had 18 cases so far. Judging by what it costs—and I am not talking about the set-up costs—the annual cost of the Court of Appeal means it costs $350000 per case and that is before any lawyers’ charges. When we did the work on the Supreme Court we were told it would be a cheap option and that it would make it easier for New Zealanders. It has not been. Also the Supreme Court took the best clerks and the staff and then sat there for at least half a year leaving the Court of Appeal working their butts off without the staff who were sitting twiddling their thumbs at the Supreme Court. 
There has been a whole lot of bad management here and this Government is responsible for it just as it is responsible for bad management throughout. Now that we are coming up to an election what does the Government do? It throws resources at it. Here we are throwing extra judges at the court without looking at why we are overloaded with lawyers and legalism. We need to look at the law and at the responsibility this House has for cumbersome unwieldy sentences that do not make sense and words that no one knows the meaning of that force people into lodging appeals. We need to look at the way the judges have been using their powers and not using their powers in order to cut down on their workload. The 450-odd criminal appeals could easily have been cut probably to a fifth of that number if judges had simply used their power to say that when some meritless appeal is fostered whether by the offender or by the lawyer there will be a cost.