Hon Christopher Finlayson

CHRISTOPHER FINLAYSON (National) : Conflict of interest is a very serious matter for any professional, and certainly for any judge. In the legal profession, for example, it can arise in a number of ways: lawyers acting against former clients, lawyers acting on both sides of a transaction, or, indeed, lawyers who become involved in the commercial dealings of their clients. It is certainly not something that one regards lightly. So the issue raised by the Treaty of Waitangi (Removal of Conflict of Interest) Amendment Bill required very careful consideration by the Justice and Electoral Committee. I can tell the House that having closely studied the issue, having listened to the submissions, and having had the benefit of the views of retired High Court Judge Peter Salmon, the select committee was satisfied there was no real issue that needed to be considered by the bill.

The House referred this bill to the select committee on or about 27 June last year, and we are dealing with it only now. Regrettably, the bill took somewhat longer than usual to deal with at the select committee, as we could not get on to it because of the need for the committee to deal with the odious Electoral Finance Bill. As we all know, that legislation was aimed at the National Party, although as today’s judgment of Justice MacKenzie on the application of the New Zealand Amalgamated Engineering, Printing and Manufacturing Union shows, it was really a cunning plan by Lynne Pillay to aim it at the foot of the Labour Party. Indeed, that is what happened in the High Court today to her very own union, which appeared before the select committee and argued strenuously for the new regime but which is the first victim of it. But I digress, and it is important that at this late hour we come back to the bill.

Lynne Pillay: It’s not about being the victim, it’s about justice.

CHRISTOPHER FINLAYSON: What does the Labour Party know about justice?

I come back to the structure of the Waitangi Tribunal. We looked at the structure of the Waitangi Tribunal and of the Māori Land Court, and I was very interested in the New Zealand First minority comment, which correctly described the tribunal as a commission of inquiry but questioned why it was necessary to have a judge as head of the tribunal. The New Zealand First member failed to understand that although the tribunal is a commission of inquiry, it fulfils many of the functions of a court. It gathers facts; it applies the law to the facts. Those are obviously tasks that belong to a judge, and New Zealand First never really came out and said what sort of person it would prefer to head the tribunal. Should it be an accountant or a teacher? Everyone knows that lawyers do those sorts of things better than anyone else.

Then we got on to the important question of conflict of interest. Although the New Zealand First members were yelling and screaming from the pulpit at the first reading, alleging an inherent conflict of interest, it seems to be the case that New Zealand First does not understand the distinction to be made between an inherent conflict of interest and a potential conflict of interest, or a conflict of interest that arises on the particular facts. It was the issue of an inherent conflict of interest that concerned me, which is why I was pleased that the bill went to a select committee, and I paid very careful attention to it in the select committee deliberations.

But the fact of the matter is there is no inherent conflict of interest. It is not unusual for judges in New Zealand to sit on a number of different courts. From time to time a judge of the High Court will sit on the civil appeal division of the Court of Appeal, or on the criminal appeal division of the Court of Appeal. But it would be unheard-of for a High Court judge to sit as an appellate court judge on his or her appeals, because on the facts there would be a conflict of interest. There is no inherent conflict of interest here. The New Zealand First comment in the select committee report almost concedes that, because it states that judges can have potential conflicts of interest. Well, we acknowledge that, but one is never going to be able to do away with potential conflicts of interest. They will arise on the particular facts. What we are satisfied with is that there is no inherent conflict of interest such as would prevent judges of the Māori Land Court from also sitting on the tribunal.

The third issue that was looked at was knowledge of the issues. The majority of the select committee agreed with Mr Salmon’s conclusion that the best qualified people should be appointed to sit on the tribunal, and that such people should have a good understanding of tribal structures, Māori land history, and Māori customs and tradition. Those competencies are very important in the chairperson of the Waitangi Tribunal, just as they are in the Chief Judge of the Māori Land Court. Given the relatively small size of the New Zealand jurisdiction, sometimes there could be practical difficulties in finding the right people to sit on the tribunal, and sometimes there will necessarily have to be an overlap. I do not really think that the New Zealand First minority report addressed that issue, at all. There seemed to be quite a lot of waffle about judges in the tribunal having to deal with highly charged atmospheres because of some of the issues that arise, but the minority report did not really address the issue of knowledge of the issues at all.

So all in all, it was a very interesting exercise. I satisfied myself that there is no inherent conflict of interest, and that the tribunal is particularly well served by the judges of the Māori Land Court who also preside on the tribunal. I might say that New Zealand is extremely lucky to have as Chief Judge of the Māori Land Court and chairperson of the tribunal a man of the stature of Judge Joe Williams. He is a great New Zealander. He is an inspirational New Zealander, who has achieved a great deal for his country in a very short period of time.

Hon Trevor Mallard: This man should have been a QC.

CHRISTOPHER FINLAYSON: Well put, and that man should have been Attorney-General! At least I can say that if they came from many lawyers these words would appear to be weasel words, laying the foundation for appointment as a silk. But, of course, I am never going to be one, so I can make these comments from the heart and say that Judge Joe Williams is a very fine fellow.

This bill, well intentioned though it may have been, was fundamentally misconceived, and I come back and remind the New Zealand First members that they were the ones who made the allegations about an inherent conflict of interest. There is no inherent conflict of interest. Admittedly from time to time there can be a potential conflict of interest arising on the facts, and then any judges worth their salt will recuse themselves from sitting on the particular cases, as one would expect.

Dail Jones: But do they?

CHRISTOPHER FINLAYSON: That happens all the time, I say to the New Zealand First member who questions me. It is right that judges do that. It happens not only in the tribunal but in the High Court, the District Court, and other courts as well. We are satisfied that the issue, though interesting and very important, has been satisfactorily resolved; and that is why National will not be supporting the second reading of this bill.

• Debate interrupted.

CHRISTOPHER FINLAYSON (National) : The Copyright (Artists’ Resale Right) Amendment Bill proposes yet another piecemeal amendment to the Copyright Act 1994. As the Minister said, it proposes to establish a scheme that entitles visual artists to receive a royalty payment each time an original artwork is sold commercially through an auction house, gallery, dealer, or other professional involved in the business of dealing in works of art.