Rahui Katene

Judicial Conduct Commissioner and Judicial Conduct Panel (Deputy Commissioner and Disposal of Complaints Amendment Bill, District Courts (District Court Judges) Amendment Bill, Judicature (Judicial Matters) Amendment Bill,

Rahui Katene; Justice Spokesperson for the Maori Party

Thursday 18 March 2010; 3.40pm

These three Bills emerge from two simple issues.

The first is the opportunity to look afresh at the role of the Judicial Conduct Commissioner and Judicial Conduct Panel and to understand how to best improve upon their performance.

Specially, the Bills introduce the means by which a Deputy Commissioner can be appointed when the Commissioner has a conflict of interest, is absent from the office, or is incapacitated.

The second initiative amends the Judicature Act 1908 to increase the maximum number of Associate Judges of the High Court from six to nine.

But of course this is more than bumping up the numbers on the bench, or findings substitutes to fill in for the Commissioner.

The wider purpose behind these initiatives is to enhance public confidence in and protect impartiality and integrity of judicial system.

It would seem a most opportune time to be doing so.

Just three months ago, a report was released, based on research published during the last forty years, to bring together findings on bias against ethnic minority and indigenous peoples at key stages of the criminal justice system.

That report entitled "Identifying and responding to bias in criminal justice system" represents the most comprehensive review on the literature around ethnicity and the criminal justice system undertaken in New Zealand to date, and is clearly of key interest in this Bill.

Probably the most significant finding from the review is the conclusion that further research is required to remedy the gaps in current knowledge about ethnic disparities in the New Zealand criminal justice system.

But importantly, it also notes that while further research is always useful it is unlikely to provide definitive conclusions about the location, nature and extent of bias in the system. The report cautions against placing any policy development onhold pending the outcome of the review.

The report does identify, however, that research undertaken by the Law Commission in New Zealand found substantial variations in practice between different court districts in sentences imposed, which were unlikely to be accounted for by offence or offender variables.

We need to understand how such significant differences can occur between different court regions, between different judges.

But, as the review itself states, we do not have the luxury of time to wait and wonder; we must do what we can to maintain and enhance public confidence in the judiciary.

A common response to situations of criminal justice bias has been the introduction of cultural awareness training programmes. Cultural awareness-raising initiatives are found in the United Kingdom, United States, Australia, Canada and New Zealand.

Specific examples in our land include the cultural awareness training undertaken by police recruits and probation officers, as well as cultural awareness programmes for judges.

The Maori Party is a strong advocate of cultural competency; that is competence in our beliefs, practices, expectations and behaviours to be able to operate in different cultural contexts.

While cultural awareness is critical; by what we mean the sensitivity and understanding towards other cultures; the more proactive step is to be able to act in ways that acknowledge, respect and build upon ethnic, socio-cultural and linguistic diversity.

One would hope that as a result of this review, the Judicial Conduct Commissioner and those involved in assisted the Judicial conduct panel will be supported by specific professional development in both cultural awareness and cultural competency.

And for all those who have to ask why; I would simply point to the outcomes which reveal that when our identities are valued and our cultural integrity is intact, the difference in productivity, in positivity and in perception is measurable.

These three Bills then, does a number of things.

It sets in place the expectation of a fair investigation process to enable informed decisions to be made about the removal of judges from office.

It establishes an office of the Judicial Conduct Commissioner for receipt and assessment of complaints about the conduct of Judges.

It includes provisions resulting in a more transparent process to deal with complaints about the conduct of judges.

It introduces greater flexibility in the manner of determining the maximum number of judges.

All of these initiatives enhance the transparency and accountability of the Judiciary to public scrutiny and that in itself is helpful.

And I think while these developments are in progress, it is absolutely appropriate to be looking at the issues associated with bias in the criminal justice system.

This is the right time for a comprehensive look at the big picture.

We all know that sometimes, individual conduct which may not seem overtly serious in a particular case, assumes the appearance of bias when it is so consistent as to demonstrate a pattern.

Perhaps then there should be room for complaints about conduct based upon a judges' overall record.

I go back to something that Ngati Kahungunu lawyer, Moana Jackson, once said in his report on The Maori and the Criminal Justice System: He Whaipaanga Hou - a New Perspective.

I quote :

The ethnocentric and unquestioning acceptance of the ideas of judicial impartiality essentially means that the possibility of such views affecting sentencing is rarely raised or even less frequently researched.

Thus studies indicating that Maori are more likely than Pakeha to receive custodial sentences is explained purely in terms of more frequent and more serious offending;

The report produced for the Ministry of Justice last November, and these three bills proceeding through the House today, provide us with all the opportunity we need to respond to Jackson's concerns around judicial impartiality.

It would inevitably be useful if we were able to develop a robust process by which complaints against judges' conduct based on their overall sentencing record could be investigated.

We support greater flexibility in the manner of determining the maximum number of judges.

But most of all, we welcome these Bills to initiate a more transparent process to deal with any nature of complaints about the conduct of judges.

Such initiatives do much to maintain and enhance public confidence in the judiciary; and for these reasons the Maori Party will be supporting these Bills at the third reading.