Hon Christopher Finlayson

I move, That the Judicial Matters Bill be now read a second time. This is an omnibus bill that amends the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, and also amends the Judicature Act 1908.

The Justice and Electoral Committee has examined the bill and in May last year unanimously recommended that the bill be passed with one amendment.

During the first reading National expressed its opposition to the bill, and following the 2008 election we indicated that we would carefully scrutinise all reinstated legislation. I reviewed the need for the Judicial Matters Bill and was able to inform the select committee that the Government was prepared to support the legislation. Part 1 amends the Judicial Conduct Commissioner and Judicial Conduct Panel Act. Last year, before confirming our support for the bill, I met with the inaugural commissioner, Mr Ian Haynes, and he confirmed the need for these amendments. His successor, Sir David Gascoigne—like Mr Chauvel, a former partner of Minter Ellison—was appointed on 3 August 2009 on the recommendation of this House, and he, too, supports these amendments. I also met with members of the judiciary, who recognise that the office fulfils a valuable role, and in fact they are prepared to go so far as to say it enhances judicial independence. The Chief Justice, in association and in consultation with the President of the Court of Appeal and the Chief High Court Judge, provided a written submission to the select committee and that was generally supportive of the bill.

The Office of the Judicial Conduct Commissioner was established on 1 August 2005. The office provides the public with a transparent and accessible judicial complaints process. It allows a proper investigation of all complaints alleging judicial misconduct, while adhering to the principle of judicial independence. The complaints process compliments the principal forms of judicial accountability, such as conducting proceedings in public, giving reasons for judicial decisions, and allowing certain decisions to be subjected to appellate review.

In the 4½ years to 31 January 2010 the office received 530 complaints and has determined 400 of them. Some complaints that have yet to be determined await the finalisation of court proceedings. Ninety-four percent, or 374, of complaints have been dismissed. These were the sorts of complaints that were made because the complainant disagreed with the judge’s decision. In such circumstances the appropriate course of action is to appeal that decision. Fourteen complaints were withdrawn. Ten complaints were formally referred to the relevant head of bench and were resolved through the voluntary internal judicial complaints process. In 2005-06 a further two complaints were also referred to the head of bench, with the consent of the complainant, because the commissioner had a conflict of interest—the subject of the complaint would have been either a partner or a friend of the judge. To date there has been no recommendation for the appointment of a judicial conduct panel.

The amendments proposed by this part strengthen the Act’s primary objective of the prompt handling of judicial complaints. They are based on the previous commissioner’s recommendations in his annual reports to Parliament. Clauses 4 to 9 create the position of a Deputy Judicial Conduct Commissioner. Currently, the Act does not permit the commissioner to delegate the power to conduct a preliminary examination of a complaint, and this can cause difficulty where the commissioner has a conflict of interest, as I said a few minutes ago, or is unavailable.

The bill enables the appointment of a deputy commissioner to whom the commissioner can delegate his or her functions concerning a particular complaint. Where the deputy commissioner has a conflict of interest, he or she will be able to refer the complaint to the commissioner or the relevant head of bench. The Chief Justice’s submission expressed a preference for an ad hoc commissioner to be appointed to deal with a specific complaint where both the commissioner and the deputy commissioner had a conflict of interest. Although I acknowledge the concern that all complaints should be independently assessed, certainly experience to date suggests that the provision is unnecessary, but the Minister of Justice will monitor future developments to ensure that both the integrity of the complaints process and the independence of the judiciary will not be compromised. The deputy commissioner will be appointed in the same manner as the commissioner—that is, by the Governor-General on the recommendation of this House.

Clauses 10 to 13 clarify the commissioner’s powers to dispose of complaints. They enable the commissioner to dispose of a complaint if in all the circumstances further consideration of the complaint is simply not justified. This is appropriate where, for example, the complainant is satisfied following an explanation or apology from the judge. However, the bill clarifies that resolution of a complaint following an apology from the judge will not of itself justify disposal of the complaint. In such cases, there may still be a question of conduct that the commissioner may want to refer to the relevant head of bench, even if the complainant is satisfied with the particular outcome.

The Justice and Electoral Committee has recommended that an additional clause—clause 12A—be inserted to amend section 17(1) of the principal Act. This amendment will clarify that where the commissioner has exercised his or her power to take no further action on a complaint, the commissioner is not required to refer the complaint to the head of bench. Currently, the Act does not allow the commissioner to dismiss a complaint on the ground that further consideration of it would be unjustified.

Clauses 14 and 15 make necessary consequential amendments to the Coroners Act 2006 and the Official Information Act 1982, to recognise the new position of deputy commissioner. The schedules of the bill set out the necessary amendments to the schedules of the principal Act, and that includes updating a diagram that provides an overview for the Judicial Conduct Commissioner and the panel itself.

Part 2 amends the Judicature Act 1908 to increase the statutory limit on the number of Associate Judges of the High Court from six to nine, and that is the first increase since 1991. Since the office was established in 1989, associate judges have made a huge contribution to civil proceedings in the High Court. Their work has relieved pressure on the work of judges. Their jurisdiction includes dealing with applications for summary judgment, dealing with insolvency proceedings, and dealing with other types of civil proceedings. In the first reading debate, I asked whether simply increasing the number of associate judges was sufficient to address the court’s growing workload, and thanks, if I may say so, to your efforts, Mr Assistant Speaker Barker, many of those questions were addressed when the Judicature Amendment Act was passed in 2008 and the High Court Rules were amended. That has played a really great role in speeding up the conduct of civil proceedings.

Since then I have also met with the Associate Judges of the High Court in Auckland, and I have learnt that they are spending a great deal of their time on judicial settlement conferences and with pre-trial matters. I spoke to my colleagues about that, and in July 2009 the Minister of Justice and the Minister for Courts announced the introduction of a court-assisted mediation pilot in Auckland. That will go a long way towards helping the associate judges to deal with judicial settlement conferences.

I intend to put forward a Supplementary Order Paper in the Committee of the whole House stage to make a couple of other amendments. These amendments are designed to enhance public confidence in the administration of justice, just as the bill that we are dealing with this afternoon is designed to do, and to ensure that people have confidence that if they are dissatisfied with the way a case has been dealt with by a judge, there is an avenue that they can take to complain about that judge’s behaviour. I commend the bill to the House.