CHRISTOPHER FINLAYSON (National) : It is always a pleasure to follow the person who is so happy to be the MP for Taupo. In 2004 National opposed the substantive legislation. We said that it was an unwarranted attack on judicial independence and that it would encourage ineffective and stupid complaints—in fact, that it would encourage a culture of complaints.
And colleagues of mine, like Judith Collins, who spoke against the legislation were indeed prophetic, because it has basically been a waste of time. We were right to oppose this legislation in 2004, and we are right to oppose this amendment bill, the Judicial Matters Bill.
That is not to say that complaints against members of the judiciary should be treated in a frivolous or light-hearted manner. This is, in fact, a very serious topic. Most judges conduct themselves competently and with integrity, consistent with the judicial oath they take when they are sworn in. But sometimes judges do indeed need to be disciplined.
The worst example I have come across in recent times is the 2005 case of a New York judge who jailed all 46 people in his courtroom after someone’s mobile phone went off. The judge was presiding over a domestic violence case in Niagara Falls when he was interrupted by the offending phone. He proceeded to rage: “Every single person is going to jail in this courtroom unless I get that instrument now. If anybody believes I’m kidding, ask some of the folks that have been here for a while. You are all going.” When nobody owned up, the judge was true to his word and ordered the arrest of every single person in the courtroom, with bail set at US$1,500 per person. Those who could not stump up the money were shackled and taken to prison. This judge was later removed from the bench, with the chairman of the state commission on judicial conduct describing his actions as “two hours of inexplicable madness”.
Then there is the case of Justice Peter Smith, who was the judge in the famous Da Vinci Code case. He entered into vitriolic correspondence with a law firm in England that he had hoped would employ him as a consultant. He then failed to recuse himself in a case involving that firm. The Court of Appeal was very critical of the judge’s actions, describing them as “somewhat extraordinary”. Then there was the famous case in 1983 of circuit judge Bruce Campbell in England, who was dismissed for smuggling substantial amounts of cigarettes and whisky into the country on his private yacht. Thankfully, we have never had anything like that.
In fact, the annual report of the Judicial Conduct Commissioner for 2006-07 makes very impressive reading. In that financial year 92 complaints were received, and there were 11 unfinalised complaints from the previous year. As Dr Worth said, 72 of those complaints were dismissed, and the number of unfinalised complaints at 31 July was 31. No complaints were referred to the head of bench under section 17 of the Act, and no complaints were referred to the head of bench at the outset with the consent of the complainant because of a conflict of interest. It appears from reading the report that by far the most common complaint was that a decision, ruling, or order of a judge was wrong. But that simply cannot be a ground for complaint to this type of disciplinary body; such complaints are utterly misconceived.
Other grounds of complaint included rudeness, inappropriate remarks, failure to listen, and bias. There are various ways in which these matters can be dealt with. We can take for example a judge who is always being rude or who is taking too long to write a judgment. The sensible thing to do is to have a senior member of the profession have a quiet discussion with the relevant head of bench, who can then sort it out. That is the National Party approach—do it subtly, but do it effectively.
The Labour Party approach is illustrated by this foolish legislation: set up an office, create procedures, appoint a commissioner, and then bring on the inevitable amendment bill that seeks to appoint a deputy commissioner. The next thing we will have is a registrar, a council of worthies, hundreds of bureaucrats, and, lo and behold, a culture of complaint being encouraged and nurtured. There are plenty of litigants out there who, having lost their cases, will personalise them against judges. They are encouraged by this ridiculous regime to make complaints.
Of course, judges can be rude, grumpy, or discourteous. In many cases one can hardly blame them, given the quality of submissions they have to hear from lawyers. But are we such a weak-kneed, sissy society that if a judge barks at us we have to run off to some judicial complaints body? I do not think so.
We do not see any need for a deputy commissioner. In fact, we do not see any need for a commissioner. I noted from the commissioner’s report that he said it would be helpful to have a deputy because of conflict of interest, but Dr Worth has dealt with that. This person does not need a deputy, because the prospect of conflict of interest is minimal. As I said earlier, the number of complaints referred to the head of bench because of conflict of interest was nil in 2006 and 2007, and two in 2005 and 2006, so there is no demonstrated need. There is no need to legislate the obvious, such as clauses dealing with the disposal of complaints, and we are, therefore, opposed to this stupid legislation.
The second part of the bill concerns an amendment to the Judicature Act to provide for an increase in the number of associate judges. These were created in the 1980s to assist High Court judges in a range of civil work, and that is more specifically referred to in sections 26I and 26J of the Judicature Act 1908. In the 20 years or so since the office was created, the incumbents have done great work and have made a huge contribution to civil justice. Without them the already crippling workload of High Court judges would have been made worse, and it is to be noted that associate judges these days do great work in presiding over settlement conferences. But I wonder whether simply increasing their number at this time masks the real problem with civil litigation, an area of the law that this Government has neglected throughout its term.
The President of the Bar Association, Jim Farmer QC, commented in The Independent Financial Review recently that the court system is fundamentally strong. He said, and I agree, that we have an independent judiciary, respect for the rule of law—except with the Labour Party over the Electoral Finance Act—and a lack of corruption. But that system is undermined by costs, increasingly prescriptive processes, and delay. A real problem in civil litigation is the vast amount of money being spent on needless discovery of documents. Another problem, in my opinion, is the prescriptive case management procedures, which unnecessarily delay the resolution of a case.
Earlier this year I attended a very good Bar Association conference on the topic of civil litigation in crisis. One judge said that the adversarial system was seriously flawed and had passed its use-by date. “Citizens”, he said, “no longer had meaningful access to the courts.”
I am very concerned about this issue, and indeed I have been for a number of years. I look on the work of this Government with contempt. It has failed to address any of these important issues. Fundamental reform of the civil justice system is required. I do not think we need more associate judges; we need fundamental reform. We also need to free judges from the burdens of administration, so that they can concentrate on their core job, which is to judge. This Government increasingly treats judges like civil servants, and that is wrong.
This bill will not be supported by the National Party. The material dealing with the Deputy Judicial Conduct Commissioner is as misconceived as the contents of the substantive legislation. Secondly, although National has great respect for associate judges and the work they do, simply increasing their number is not the answer. Reforming the civil justice system is the answer. Of course, this Government not only does not know the answers; it is so hopeless that it does not even know which questions to ask.
I will be very interested in what my friend from New Zealand First will say, because New Zealand First opposed this legislation in 2004. I hope that it will not backtrack on that and support this foolish legislation, because Mr Dail Jones has a lot of experience in the law. He knows what works. He knows what needs to be done. I very much look forward to his contribution to see whether New Zealand First will be staunch in the defence of judges or will backslide.
That is not to say that complaints against members of the judiciary should be treated in a frivolous or light-hearted manner. This is, in fact, a very serious topic. Most judges conduct themselves competently and with integrity, consistent with the judicial oath they take when they are sworn in. But sometimes judges do indeed need to be disciplined.
The worst example I have come across in recent times is the 2005 case of a New York judge who jailed all 46 people in his courtroom after someone’s mobile phone went off. The judge was presiding over a domestic violence case in Niagara Falls when he was interrupted by the offending phone. He proceeded to rage: “Every single person is going to jail in this courtroom unless I get that instrument now. If anybody believes I’m kidding, ask some of the folks that have been here for a while. You are all going.” When nobody owned up, the judge was true to his word and ordered the arrest of every single person in the courtroom, with bail set at US$1,500 per person. Those who could not stump up the money were shackled and taken to prison. This judge was later removed from the bench, with the chairman of the state commission on judicial conduct describing his actions as “two hours of inexplicable madness”.
Then there is the case of Justice Peter Smith, who was the judge in the famous Da Vinci Code case. He entered into vitriolic correspondence with a law firm in England that he had hoped would employ him as a consultant. He then failed to recuse himself in a case involving that firm. The Court of Appeal was very critical of the judge’s actions, describing them as “somewhat extraordinary”. Then there was the famous case in 1983 of circuit judge Bruce Campbell in England, who was dismissed for smuggling substantial amounts of cigarettes and whisky into the country on his private yacht. Thankfully, we have never had anything like that.
In fact, the annual report of the Judicial Conduct Commissioner for 2006-07 makes very impressive reading. In that financial year 92 complaints were received, and there were 11 unfinalised complaints from the previous year. As Dr Worth said, 72 of those complaints were dismissed, and the number of unfinalised complaints at 31 July was 31. No complaints were referred to the head of bench under section 17 of the Act, and no complaints were referred to the head of bench at the outset with the consent of the complainant because of a conflict of interest. It appears from reading the report that by far the most common complaint was that a decision, ruling, or order of a judge was wrong. But that simply cannot be a ground for complaint to this type of disciplinary body; such complaints are utterly misconceived.
Other grounds of complaint included rudeness, inappropriate remarks, failure to listen, and bias. There are various ways in which these matters can be dealt with. We can take for example a judge who is always being rude or who is taking too long to write a judgment. The sensible thing to do is to have a senior member of the profession have a quiet discussion with the relevant head of bench, who can then sort it out. That is the National Party approach—do it subtly, but do it effectively.
The Labour Party approach is illustrated by this foolish legislation: set up an office, create procedures, appoint a commissioner, and then bring on the inevitable amendment bill that seeks to appoint a deputy commissioner. The next thing we will have is a registrar, a council of worthies, hundreds of bureaucrats, and, lo and behold, a culture of complaint being encouraged and nurtured. There are plenty of litigants out there who, having lost their cases, will personalise them against judges. They are encouraged by this ridiculous regime to make complaints.
Of course, judges can be rude, grumpy, or discourteous. In many cases one can hardly blame them, given the quality of submissions they have to hear from lawyers. But are we such a weak-kneed, sissy society that if a judge barks at us we have to run off to some judicial complaints body? I do not think so.
We do not see any need for a deputy commissioner. In fact, we do not see any need for a commissioner. I noted from the commissioner’s report that he said it would be helpful to have a deputy because of conflict of interest, but Dr Worth has dealt with that. This person does not need a deputy, because the prospect of conflict of interest is minimal. As I said earlier, the number of complaints referred to the head of bench because of conflict of interest was nil in 2006 and 2007, and two in 2005 and 2006, so there is no demonstrated need. There is no need to legislate the obvious, such as clauses dealing with the disposal of complaints, and we are, therefore, opposed to this stupid legislation.
The second part of the bill concerns an amendment to the Judicature Act to provide for an increase in the number of associate judges. These were created in the 1980s to assist High Court judges in a range of civil work, and that is more specifically referred to in sections 26I and 26J of the Judicature Act 1908. In the 20 years or so since the office was created, the incumbents have done great work and have made a huge contribution to civil justice. Without them the already crippling workload of High Court judges would have been made worse, and it is to be noted that associate judges these days do great work in presiding over settlement conferences. But I wonder whether simply increasing their number at this time masks the real problem with civil litigation, an area of the law that this Government has neglected throughout its term.
The President of the Bar Association, Jim Farmer QC, commented in The Independent Financial Review recently that the court system is fundamentally strong. He said, and I agree, that we have an independent judiciary, respect for the rule of law—except with the Labour Party over the Electoral Finance Act—and a lack of corruption. But that system is undermined by costs, increasingly prescriptive processes, and delay. A real problem in civil litigation is the vast amount of money being spent on needless discovery of documents. Another problem, in my opinion, is the prescriptive case management procedures, which unnecessarily delay the resolution of a case.
Earlier this year I attended a very good Bar Association conference on the topic of civil litigation in crisis. One judge said that the adversarial system was seriously flawed and had passed its use-by date. “Citizens”, he said, “no longer had meaningful access to the courts.”
I am very concerned about this issue, and indeed I have been for a number of years. I look on the work of this Government with contempt. It has failed to address any of these important issues. Fundamental reform of the civil justice system is required. I do not think we need more associate judges; we need fundamental reform. We also need to free judges from the burdens of administration, so that they can concentrate on their core job, which is to judge. This Government increasingly treats judges like civil servants, and that is wrong.
This bill will not be supported by the National Party. The material dealing with the Deputy Judicial Conduct Commissioner is as misconceived as the contents of the substantive legislation. Secondly, although National has great respect for associate judges and the work they do, simply increasing their number is not the answer. Reforming the civil justice system is the answer. Of course, this Government not only does not know the answers; it is so hopeless that it does not even know which questions to ask.
I will be very interested in what my friend from New Zealand First will say, because New Zealand First opposed this legislation in 2004. I hope that it will not backtrack on that and support this foolish legislation, because Mr Dail Jones has a lot of experience in the law. He knows what works. He knows what needs to be done. I very much look forward to his contribution to see whether New Zealand First will be staunch in the defence of judges or will backslide.
