Hon Christopher Finlayson

CHRISTOPHER FINLAYSON (National) : I listened closely to that caring, sharing speech from the member for Palmerston North. I have to say that I agree with him about the principle of cooperation at the Social Services Committee, especially when one is dealing with extremely sensitive issues such as this, where there is a balancing act, which I will talk about in a few minutes.

But I was less than impressed to hear towards the end of the Minister’s speech that some Supplementary Order Papers are proposed, including a Supplementary Order Paper to deal with the role of senior Family Court registrars. I cannot understand it—and this is the second time I have said it this week: why is it beyond the wit of the Government and this Minister in particular to make sure that Opposition spokespeople get hold of the Supplementary Order Papers at the first available opportunity so they can be closely studied and so that there can be a sensible discussion? Earlier this week, in the context of the copyright legislation—again, very technical and important legislation—I received the Supplementary Order Paper on the morning of the debate. Quite frankly, it is hopeless. If the Government wants cooperation not just in the select committees but also when bills come back to the House for debate, particularly in the Committee stage, then I suggest that it has to cooperate with the Opposition a little bit more and make sure that the Supplementary Order Papers are provided earlier than they are being provided at the moment.

After I gave that little homily earlier in the week, I heard that the Hon Paul Swain, MP for Rimutaka, said that that was simply the way it was done, that it happened to them in the 1990s, that we would have to simply get on with it and live with it, and that if I am ever a Minister—and he hopes it will not happen during his lifetime—he would challenge me to make sure that this sort of thing does not happen again. I am happy to rise to that challenge. I give an undertaking to Mr Swain that if I am ever a Minister, particularly dealing with matters such as this, I will regard it as a very important undertaking to ensure that my Opposition number did have the Supplementary Order Papers at the earliest possible stage.

On the face of it, the idea of giving registrars greater responsibility is a very sensible measure. I for one have always believed that registrars, not only in the Family Court but in other courts, should have additional responsibilities in order to free up judges, so that judges can concentrate, as the Minister said, on case management and hearing cases. So a little bit of cooperation on these matters would go a long way, and I hope that I shall be able to see that Supplementary Order Paper very quickly.

The second thing Mr Maharey said—and it is a very sensible point—concerns mediation. The concept of compulsory mediation is, frankly, oxymoronic. People cannot be compelled to mediate. I tried it in the context of settling a fisheries dispute that followed the settlement of the Māori fisheries matter in the early 1990s. I tried to get some people on the Chathams to a compulsory mediation; it did not work. The essence of mediation is that it is consensual, and I completely agree with him that if people cannot be brought to the table to mediate by agreement, then it is best forgotten.

This is a very important bill and, as Dr Hutchison said, the National Party supports it. This legislation tries to address a very difficult balancing act, because it is a fundamental principle of our courts that they must be open to all—not only to the participants but also open to the public. There are very few exceptions to that fundamental principle in the context of civil litigation. On occasion, cases are heard in chambers, as Mr Dail Jones would know. They are normally routine matters involving matters of law only, so they can be brought before the judge without the need for members of the public to be present. On very, very rare occasions there will be an in-camera hearing—for example, if someone is giving evidence on a complex commercial matter, a patent matter, or something like that, and the evidence, if given in public, would cause major harm.

So that is the general principle and, as I said, it relates to civil litigation. It is much more difficult when one is dealing with family litigation, because of the kinds of factors that Mr Maharey mentioned, so a complex balancing act is undertaken. I think that this bill is a valiant effort to open the Family Courts to a little more sunlight while retaining the very real need to ensure that the welfare of children in particular is preserved. In many respects this is the most difficult sort of litigation. It is very sensitive stuff, and one has to tread very warily.

I am very much looking forward to the Committee stage, because a number of matters are going to arise where I think we as legislators will have to spend a little bit of time and descend to the detail. Let me give members one illustration. New section 46D, inserted by clause 9, talks about the “Duty of lawyers to promote reconciliation and conciliation”. Actually, that heading could be slightly misleading, because subsection (1) does not exactly address that. But I will be interested to learn from the Minister whether this creates a new duty on lawyers. I will be interested to know what will happen, for example—and Mr Jones, as a lawyer, may be interested in this—if someone decides that a lawyer has not promoted reconciliation or mediation. Could there be an action against that lawyer for breach of some kind of statutory duty? The general rule is that I do not owe any obligations to the other side; I owe my duties to the court and to my client. I think that that provision will give rise to some interesting questions, and I think that we as legislators owe it to the profession to give that a little more thought during the Committee stage.

As we know, the bill breaks up the various Family Court provisions and puts them in particular Acts. I think there is quite a lot of over-prescriptive legislation in this particular bill. Let me give members some examples. The first example is clause 44. It can be found in Part 6, which amends the Family Courts Act 1980. Clause 44 deals with the avoidance of unnecessary formality. It amends the Act so that a judge sitting in the Family Court may wear a gown but must not wear a wig, and so that a lawyer appearing in a Family Court must not wear a gown or a wig. To me, that is just an example of typical, overly prescriptive Labour legislation.

Why does one need that provision in the legislation? As a matter of practice, as far as I am aware, ever since the Family Courts were created, judges have never worn wigs. Wigs, indeed, have been out of date in the general jurisdiction since 1996 when they were abolished in the superior courts, the rationale being that to wear a headpiece made of horse hair in the style of some 18th century fop did not necessarily increase one’s mental acuity, and I tend to agree with that. I do not think that a lot of this stuff is needed. It is overly prescriptive and overly wordy, which is the style of legislation these days, and I do not approve of it.

None the less, this bill does raise, as I said, some very sensitive and important matters. I think a good effort has been made by the Social Services Committee to weigh up the various considerations, which are often competing—on the one hand, the desire for privacy when one is dealing with this very difficult litigation and, on the other hand, that general principle I referred to that the courts of the land must be open to all. I very much look forward to the Committee stage, but I do say there are some matters that we should not lightly gloss over, because there are some important consequences we will have to talk about.