Mr Speaker, the parts of this legislation reforming the judicial complaints procedure and allowing for an increase in the number of Associate Judges of the High Court were introduced by my friend and colleague Hon Clayton Cosgrove on 25 June 2008, and read by the House a first time on 22 July of that year.  Clayton Cosgrove, as Associate Minister of Justice, said at the time that the amendments would enhance public confidence in the judicial complaints process and ensure that adequate resources are available to meet the growing workload of the judiciary.

He explained that the amendments relating to judicial complaints are based on the Judicial Conduct Commissioner’s recommendations in his 2005-06 and 2006-07 annual reports to Parliament.  Despite some minor changes recommended by the Justice and Electoral Committee, and some further amendments introduced by Supplementary Order Paper, in essence the legislation that will become the Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints) Amendment Act will do just that.  David Gascoigne, a friend and former colleague of mine, now holds office as Judicial Complaints Commissioner.  As I have said on previous occasions, the House can have every confidence that he will do a very good job in that role, and the amendments we are about to make law will assist him to do so.

As to raising the cap on the number of associate judges from six to nine, Clayton Cosgrove pointed out in the first reading of this legislation that this is the first increase since 1991.  He set out in his speech the history of this class of judicial officer.  In 1989, Parliament amended the Judicature Act to provide for the appointment of Masters of the High Court to provide a more effective and efficient service by clearing the court lists of the smaller miscellaneous matters.  Since their inception, the jurisdiction of masters has steadily increased from hearing matters, such as summary judgment applications, to hearing more complex commercial matters, such as insolvency proceedings.  In 2004 Masters of the High Court were renamed associate judges and secured permanent tenure.  Associate judges have a specialist civil jurisdiction and are invaluable in alleviating the workload pressures of judges by undertaking a range of companies and insolvency work.  They have extensive jurisdiction in interlocutory matters, including summary judgment applications.  They also have jurisdiction to assess damages.  The increase in the statutory cap will enable future associate judge appointments if and when required, without unnecessary legislative delay.  This in turn will ensure adequate resources are available for the growing workload of associate judges, especially since the commencement of the Insolvency Act 2006.

As Christopher Finlayson admitted during the second reading debate on this legislation, National opposed its introduction and first reading.  He used strong language to express that opposition.  On the judicial complaints issue, Mr Finlayson said 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…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.  We do not see any need for a deputy commissioner. In fact, we do not see any need for a commissioner… This person does not need a deputy, because the prospect of conflict of interest is minimal.  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”.

In respect of the proposal to raise the maximum number of associate judges, Mr Finlayson wondered “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.”  Mr Finlayson referred to a crisis in civil litigation, and a system “undermined by costs, increasingly prescriptive processes, and delay”.  He said that a “real problem in civil litigation is the vast amount of money being spent on needless discovery of documents”.  He said “Another problem, in my opinion, is the prescriptive case management procedure, which unnecessarily delay the resolution of a case.  He went on to suggest that “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.”

Mr Speaker, as I said, Mr Finlayson acknowledged the change in his position during earlier debate on this legislation – he could hardly do less since he had by then decided to sponsor the legislation.  He didn’t apologise for the intemperate language he used in his original speeches, but perhaps that would be too much to hope for.  But he went further.  He tabled further amendments during the course of the committee stages that provide for another permanent member of the Court of Appeal, 16 new District Court Judges and the regularisation of a higher duties allowance to members of the High Court sitting temporarily on the Court of Appeal.  None of these amendments went before a select committee, and Mr Finlayson even sought at one stage to have the House deal with them under urgency. 

Labour decided to support the changes sought by the Government, although not to have them dealt with under urgency.  But I want to tell Christopher Finlayson in closing that I have sympathy with many of his original sentiments.  We do have real issues with the administration of our justice system, and with the ability of ordinary New Zealanders to have meaningful access to justice.  Many of these matters were ameliorated by Labour in office, but I do agree that more thorough reform is needed.  I hope Mr Finlayson is equal to the challenge and does not lose his passion for reform, now that he sits on the Treasury benches.  If he is to have a place in history as a significant reformer, he needs to rise to the challenge of the need for thorough reform of the courts system, along the lines of that recommended by the excellent work of the Law Commission, for example, in its report on the structure of the courts.  If he does not, the next Labour Government certainly will do so, sir.