Source: New Zealand Parliament – Hansard
CHRIS PENK (National—Kaipara ki Mahurangi): Thank you, Madam Speaker. The Minister has ended by thanking the Justice Committee and I’ll pick up where he’s left off; adding my thanks to that august body. It’s known as the second-best select committee in Parliament, like every other select committee than the Regulations Review Committee, of course! But the Minister is right to acknowledge that, and I do acknowledge that he has also pointed out that there was bipartisan support for the bill at select committee, as, indeed, there had been at first reading, and from National’s perspective, nothing has changed in that regard.
We’ve heard about some of the particular changes that are being made. We’ve heard about some of the reasons behind them. Those are the reasons that we share, essentially, so I’ll just touch on a couple of those as we go through and just add a couple of other comments about how we see this fitting into the broader context of our court system and its relationship to Government and so on.
I mean, it’s worth noting, I suppose, at the risk of sounding churlish, it’s a relatively minor matter and it’s not going to change the world in any great way, in any major way, but as far as it goes, it’s a worthwhile exercise for the Government to conduct, and, as I said, we support it for various reasons.
To separate the branches of Government, the executive branch, which is of course, roughly speaking, the Cabinet, and I’m just gesturing vaguely in that direction, and I’ll return to the role of Cabinet in setting fees and salaries in a moment.
But it’s appropriate to separate that from, of course, the judicial branch of Government, which we often think of as “the Courts” with a capital C. Of course, there are court-like bodies—or judicial-type bodies staffed by judicial-type officers who perform a similar role and for similar reasons should be kept separate from the executive branch of Government. One is just that theoretical separation, which every law student knows from Law 101 onwards. But also in a practical sense because, as the Minister has referred to, we don’t want a scenario whereby Government Ministers could use their ability to reduce the salaries of judges or judicial officers in retaliation or by way of threat and the chilling effect for decisions that are made reviewing Government decisions. So it’s appropriate for both those reasons, in terms of the branches’ relationship; sort of, theoretical but also practical reasons that this move be made.
There are a number of different groups of officers that are affected and, again, the Minister has mentioned those. I won’t spell them out in detail, but I think it’s worth noting, as the legislative statement has done, that they actually have three different categories, I think it’s probably fair to say.
The first of those is the group of community magistrates, disputes tribunal referees, and environmental and deputy environment commissioners. Those are judicial decision makers, says the legislative statement. Judicial decision makers is a bit of a tautology, of course, because a judge is one who makes decisions for a living. But the point is made that they should be remunerated in a way that’s independent of the Government. And for the reasons we’ve discussed, that seems appropriate.
In passing I will note, at the risk of straying too far from the scope of this bill, that National has proposed previously that community magistrates be given more responsibility, more of a caseload in terms of the types of cases that they can hear; we think that would be appropriate, certainly as a way of reducing the backlog and processing time for court cases. Similarly, with the disputes tribunal, we think that its jurisdiction could be expanded to take some of the pressure off the rest of district court jurisdiction. That’s another story for another day, but it’s consistent at least with what the Government is looking to do here, in terms of treating them in the same way as district court judges, for example, that additional responsibility should be given to them.
The next category—well, it’s a category of one, but—the Human Rights Review Tribunal. I suppose it’s a bit of a special case. The legislative statement notes that it’s appropriate for those deciding matters in front of the Human Rights Review Tribunal to be regarded in a way equivalent to judges because they, like our senior courts, have the ability to declare that rules are inconsistent with the New Zealand Bill of Rights Act.
That’s been the subject of quite a lot of the discussion already, of course, this week within this House in relation to the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill, which relates to those courts rather than this tribunal. But again, it all just fits together and I think it’s a matter of consistency, as the legislative statement points out, that those who are making decisions at that level and in that way should have the status of judges and the protections that go along with it.
The final category is where we say in relation to a couple of particular tribunals that the Immigration and Protection Tribunal and the Tenancy Tribunal also need to operate independently of Government. I think that this is sensible because these two bodies not only decide matters, as does any tribunal or court by definition, but these are quite political and often politicised areas of public policy. Immigration, of course, is hugely important to the way that a country operates, and a Tenancy Tribunal—often, you know, these matters are characterised in a way that’s quite political. So in making those decisions and setting precedents and interpreting the law, and to the extent that they’re filling in gaps, even making law, it’s appropriate for these tribunals to, again, enjoy that separate status, they’re independent, and that acknowledgment of their role in our constitutional set-up and its separateness, again, from the Government of the day.
The mechanism by which this is to be achieved, if it’s not to be the Government and it’s not to be the Cabinet fees framework that’s employed to make these determinations, we have a Remuneration Authority—that’s also used for setting the salaries of members of Parliament, a subject dear to the heart of everyone in here who’s listening to it. Probably not anyone outside here who’s listening to it, but I think it’s probably a reasonably small issue at this time of the week. Anyway, but, of course, MPs don’t set their own salaries for reasons of what would be otherwise a conflict of interest. So for slightly different reasons, it’s appropriate that the Remuneration Authority operates in that space, and they do a bit of other work as well but we need not go into that for now.
So there is the authority, but there are also what are called PLAs, which is not the People’s Liberation Army in this context, but the permanent legislative authority. That’s created as a mechanism or as a vehicle for making these payments. That will apply to all these bodies that are going to be determining funding, with the exception only of community magistrates, because, I have learnt from reading the legislative statement and I did not know before, it’s not required in relation to these magistrates because they’re already funded through a PLA, a permanent legislative authority, in the District Court Act 2016. So there we go; we’ve learnt something, haven’t we, all of us today and we’re all much the better for it.
So the Cabinet fees framework: obviously “Cabinet” being synonymous with Government, and in these troubled MMP times—I say “troubled” because we’re not currently the Government, but, you know, in these MMP days, Cabinet isn’t exactly a synonym for Government but, roughly speaking, it’s controlled by the Government of the day. So whereas that has been used, but now more appropriately determined to be in the remit of the Remuneration Authority, again we say that’s appropriate.
I don’t know if there’s much more that I need to say; I’ll just check my notes. Actually, one other point I did want to make, and I might not use all my time unusually—[Interruption] But I think I’m being encouraged—I think I’m being encouraged.
Hon Member: No you’re not!
CHRIS PENK: I’m not.
Hon Member: We were listening!
CHRIS PENK: Oh, you are listening, thank you. Thank you very much. And now I don’t have anything to say—no, just kidding. I didn’t have anything to say nine minutes ago either; it didn’t stop me.
No, the other point I did want to make was one that the Minister sort of touched on in passing, and he said that the officers who have been named need to have, and be seen to have, independence from the executive in performing their function. I think that’s an echo of that notion that justice must not only be done but also be seen to be done. It’s that idea that we need transparency, we need confidence, we need open justice for the system to work overall; not only a lack of corruption, but an apparent lack of corruption. And it is, I suppose, again a similar distinction to perceived versus actual problems, for example, in relation to conflicts of interest. But that really is a bit further out. So I won’t dwell on that point any further, but I thought it was worth making, at least to that extent.
So, with that, on this side of the House, I emphasise that we do continue to support the bill for these reasons and look forward to its further passage through the House.
