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Te Ururoa Flavell Speech: Judicial Retirement Age

'Judicial Retirement Age Bill'

First Reading

Wednesday 15 November 2006; 9.45pm

Te Ururoa Flavell; Member of Parliament for Waiariki

Mr Speaker, we come tonight to the Judicial Retirement Age Bill understanding the unique status of Judges as repositories of learning and wisdom.

And we, the Maori Party are particularly influenced by the high calibre of a number of Judges who have spoken in support of the human rights of tangata whenua.

Tangata whenua have long been aware of, and have greatly respected the questioning of colonial policy that the first Chief Justice Sir Charles Martin is remembered for.

We respected the views of Sian Elias, Court of Appeal Judge in her comments on the ‘foreshore and seabed ruling’.

We appreciated the expertise of Judge Caren Fox in relation to the foreshore and seabed.

We are eternally grateful for the insights and leadership provided by Judge Heta Hingston - for his involvement in reforming the Maori Affairs Act 1953 into the Te Ture Whenua Maori Act 1993 and of course in relation to the foreshore and seabed.

And this House, this nation, has long paid respects to Lord Cooke of Thorndon.

In the 1987 case of the Court of Appeal in New Zealand Māori Council v Attorney-General, Lord Cooke described Te Tiriti o Waitangi as still a "valid compact" which imposes "fiduciary" duties of "mutual obligation" between the Crown and Maori tribes.

Such commentary is etched in the histories of nationhood for Aotearoa. The significant statements that Lord Cooke left our nation, including that "the Treaty signified a partnership between races”; have all contributed to the growing maturity of our land.

These names, these Judges, are but a few of a strong cast of potential leaders, who are taking this nation forward with their deliberations, with their findings.

And as a party that absolutely values the capacity of being able to speak our truths, it is vital that the ability of Judges to speak frankly on issues, is preserved.

I spoke not long ago, in the context of the Evidence Bill, of the values of democracy, as ‘a form of government in which the people have a voice in the exercise of power’.

We remember a couple of years back when Maori Land Court judge Caren Wickliffe (now known as Judge Fox) reminded the Prime Minister Helen Clark that there are proper routes to take if she disagreed with a judge's decisions.

If the House cares to cast their collective memory back, this was at a time when the current Speaker, the Current leader of the House and the current Prime Minister were criticising the status of some members of the Judiciary.

This is an essential element of our democracy – the clear distinguishing line between the Executive and the Judiciary.

At that time, Judge Wickliffe said the Executive should not tell the court what to do, especially if it was still involved in a case.

Indeed, the Crown "or any other party" could appeal or seek a judicial review of a decision they did not agree.

Judge Wickliffe had rejected Crown attempts to prevent East Coast foreshore and seabed claimants from proceeding to a substantive hearing. The Crown had wanted a stay on the proceedings because of planned legislation affecting seabed and foreshore ownership.

Mr Speaker, this was a murky period of our history – but through it all the virtues of judicial independence remained unscathed.

It is these same democratic principles that lead the Maori Party to look favourably at the Judicial Retirement Act Bill.

The Bill promotes the notions that security of tenure and a compulsory retirement age are “key protections for judicial independence” enabling “fearless performance of judicial functions” by being free of concern about job security.

That fearless, frank and fierce critique we have associated with the Judiciary, must be protected for all time.

And when we consider fearless, frank and fierce, we could do no better than to recall the advice of former Maori Land Court Judge Heta Hingston, who famously described the Government’s “public domain title” as nothing more than a smokescreen to their true motives. He said in mid 2004, and I quote:

“The foreshore and seabed has never been in public domain. Their position that public access would be jeopardized is complete ignorance. Essentially what the Government has done is take away from Maori. Quite simply, it is another case of raupatu; it’s confiscation.”

Judge Hingston concluded that the Government’s actions were best interpreted as the “tyranny of the minority by the majority”. He urged Maori to continue to seek justification on all options that are available to them, including the value of international forums.

And so in the context of such brilliant advice, we welcome this Bill which increases the statutory retiring age of Judges, Associate Judges of the High Court, coroners, and Community Magistrates from 68 years to 70 years.

The Maori Party will support the proposals to amend the

District Courts Act 1947;

Employment Relations Act 2000;

Judicature Act 1908;

Te Ture Whenua Maori Act 1993;

Coroners Act 1988;

Coroners Act 2006 – believing that in all of these areas, age should not present a barrier to the provision of expert advice.

It is of course fitting to be speaking to this Bill on a night when we have also been considering better opportunities to provide for the ongoing contribution of our elders.

The current retirement age runs the risk of the nation missing out on the valuable knowledge and experience that the judiciary offer. We know that the restrictions around retirement age are also perceived as a barrier for attracting senior practitioners and lawyers to judicial office.

Mr Speaker, we cannot leave this important Bill, without, however, also raising the critical issue of judicial impartiality.

In Maori and the Criminal Justice System, He Whaipaanga Hou: Kahungunu lawyer, Moana Jackson, discussed the concept of the potential for judicial bias as being realized as the end result of a process that is itself culturally biased.

His report noted that when all the necessary variables of previous offending, legislative guidelines and gravity of the offence have been considered, Maori believe that the differential outcome of the sentence can only be attributed to judicial insensitivity and prejudice.

And I quote directly from that report:

“I have noticed that judges, while most of them try their hardest to show themselves to be free of prejudice and some of them may be….a sub-conscious form of prejudice shows itself in the judge's attitudes, sometimes when talking to, sometimes when looking at Maori defendants….Maori people know that look and they know what it means".

Mr Speaker, these are grave issues of state, and I hope that in subsequent iterations of this Bill, the Judicial Retirement Act Bill, that barriers other than age, barriers such as institutional racism, may also be considered.


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