Examination of Witnesses (Questions 80-95)
RT HON
DAME SIAN
ELIAS GNZM, RT
HON THOMAS
GAULT DCNZM AND
RT HON
SIR KENNETH
KEITH KBE
25 MAY 2004
Q80 Peter Bottomley: Is there any parliamentary
oversight in judicial appointments and, if so, at what levels?
Dame Sian Elias: No.
Q81 Peter Bottomley: Turning to the mechanics,
what administrative arrangements are made for the funding of your
Supreme Court?
Dame Sian Elias: This may have
been a feature of the controversy surrounding the primary decision
which was whether or not to set up a new court. There was no judicial
input into that; it was assumed I think that the budget for the
Court of Appeal could just be replicated for the Supreme Court.
As a result there are some omissions and there are some public
expectations which will not be able to be met out of that, so
I see this as a work in progress and not a final position. Things
like institutional independence I am getting concerned about because
I think we are now getting out of step with countries that we
would benchmark ourselves against. As the Attorney said, we did
have a department for courts. Last year government decided, probably
for very sound government reasons, to collapse it back into the
Ministry of Justice, the department which has major law reform
responsibilities, including for criminal justice. I do not think
it is satisfactory that our immediate judicial support is provided
by that ministry which has to prioritise across the board, and
I do not see that the Supreme Court should be treated distinctly
from the rest of the judiciary. I think it is time for matters
of direct judicial support to be under judicial control with a
one-line budget for that, so that is libraries, secretaries, clerks,
who should be, I think, employees of the judiciary acting through
a chief executive as they have in Australia, rather than being
employees of the ministry. The security of our IT communications
and so on is a matter of real concern to me. The Ministry does
not really have any incentive to respond to our concerns there
and I feel that amount of independence really is required. I would
not like to see us assume responsibility for running the courts
which seems to me to be a core government function, and I am worried
about co-opting the judiciary into some of the rationing decisions
that have to be made in those sort of cases, because cases will
come before the judiciary on stay applications, for example. If
the judiciary has made some of the decisions which create the
delays or has assorted priorities, I think you compromise. Personally,
therefore, I would not like to see us go quite to the stage of
some of the Australian jurisdictions; there is a halfway house
but I think it is time you moved to it.
Q82 Peter Bottomley: I do not want to
get into how to run the lower courts because it may logically
follow from the question I am going to ask. In some jurisdictions,
when a Supreme Court is established and written into the Act which
establishes the Supreme Court, which is not a title I like but
I am using it for working purposes, there is provision in the
legislation for the court to appoint a chief executive and for
the court to appoint a registrar, and in other places it is left
to the kind Minister to offer up someone who will come through
the Permanent Secretary's club, which works very well despite
that but has a different kind of function and culture and corporate
responsibility. What sort of view would you and your colleagues
have which is the preferable way forward?
Dame Sian Elias: The former, I
would say.
Q83 Peter Bottomley: The key officers
of the Supreme Court should be appointed by the Supreme Court?
Dame Sian Elias: Yes. Personally
I would not extend that to the registrar function because, again,
I think that is the provision of the courts, that is a responsibility
of government, but there are different perspectives there. Certainly,
however, I think it is intolerable that our immediate judicial
support staff are not answerable to the judiciary but are employees
of the ministry, and all our communications are arguably subject
to the Official Information Act. We are judges, and that is it,
really.
Justice Gault: I have a slightly
different view on that for a number of reasons but, particularly
having regard to the debate leading up to the establishment of
the court and the anxiety expressed quite widely of political
influence in appointments and political influence in the courts'
work, I believe it is important that we establish a new court
with as much autonomy and apparent independence as possible. Establishing
public confidence after this rather bruising debate will be very
important, and for that reason I favour perhaps a greater degree
of autonomy. I also have some difficulty in separating quite as
clearly the, let us say, administrative, registry type of support
from the judicial support in a small court with only five judges,
all of whom sit on every case, but that is rather a detail of
the practical operation of the court. I am concerned at the perception
of independence being very clear.
Q84 Peter Bottomley: Do you or will you
produce an annual report or some equivalent, and will you have
some control over making sure that your own staff do not get held
back on some general service pay restraint, so that you use competent
people?
Dame Sian Elias: There are two
questions there. We have had an annual report; it has been a very
pedestrian, not terrifically illuminating, document and also it
has been very expensive to produce. We just do not have the resources
to do a good job on it. I have wanted to have that published on
a website because it will save us $60,000 in terms of producing
the hard copy and it is going to be available. Getting that on
a website has proved almost impossible. It has taken months and
it is not a ministerial priority. They have lots of other things
and I am not blaming them, but it is like pulling hen's teeth.
On pay for key staff, my Chief Justice support staff consists
of three key people I suppose, including the person who is probably
head of my little department, and I have been trying for the last
six months to have their wages reassessed. We have no power at
all. I cannot commission a review of our IT security, and I have
been asking the Ministry to do that ever since we have had some
very bad leaks, and real anxiety being expressed by the judges.
That is why I say I think the situation is really intolerable.
We do have parallels with, for example, the Governor of the Reserve
Bank where it is thought that it is important enough to set up
some institutional independence with a budget which is administered
and which is a one-line budget like the Australian High Court,
for example, has. It is not regarded as a matter of priority at
home, and I am hoping that some of your deliberations will assist
us in continuing the dialogue on this topic.
Q85 Chairman: Is it your idea that that
one-line budget should be confined to a limited area of judicial
support, rather than being the budget of either the Supreme Court
as a whole or the court system as a whole?
Dame Sian Elias: That is one option
and, as you have heard, probably Justice Gault and I are on slightly
different ends there. I do not have a problem with the Supreme
Court having a one-line budget because it is quite an easy exercise.
I worry a little about the smugness and the separateness of totally
stand-alone courts, which is why I would prefer to see the same
sort of arrangement put in place for the High Court, the Court
of Appeal, and the Supreme Court, the higher judiciary, where
you really do need to maintain your judicial independence. If
you are going into that it is a much bigger operation, and I would
prefer to see that personally as just the immediate judicial support.
Q86 Chairman: Has your Lord Chief Justice
now changed, because you are on the Supreme Court, are you not?
Dame Sian Elias: Yes. The Chief
Justice has always been said in the legislation to be leader of
the judiciary and a member of both the Court of Appeal and the
High Court. Effectively because we are a court of five and a quorum
of five I do not think I will be able to sit in the High Court
and I am now not a member of the Court of Appeal. But the Chief
Justice can really only lead the judiciary, I think, by being
a sitting judge, so I would hate to see the administrative responsibilities
of the Chief Justice swamping the judicial responsibilities of
a Chief Justice.
Q87 Chairman: So every case that the
Supreme Court deals with must be dealt with throughout by all
five justices?
Dame Sian Elias: Yes.
Q88 Peter Bottomley: Five plus one, or
four plus one?
Dame Sian Elias: Five. I am one
of the five.
Q89 Chairman: And therefore you preside
over every sitting that takes place?
Dame Sian Elias: Yes, except where
there is a conflict when we have the ability to bring in retired
judges from the Court of Appeal.
Q90 Chairman: The quorum is met by bringing
in a retired judge?
Dame Sian Elias: Yes.
Q91 Ross Cranston: What about leave applications?
Dame Sian Elias: For leave we
sit two or three. We could sit any number really but we can sit
two. The Supreme Court of Canada has the ability to bring in retired
judges and the Chief Justice of Canada has told me that they have
never used it, that they have deliberately done what they could
to avoid that. We do have provision for an additional appointment,
a sixth appointment, and if it looked as though we were going
to have to pull on retired judges frequently, I think it would
be better to activate that sixth appointment.
Q92 Chairman: Is there not a risk that
an expensive case would have to restart because of this quorum
requirement?
Dame Sian Elias: No, it would
not be embarked upon.
Ross Cranston: It probably would be always
at the outset that—
Q93 Peter Bottomley: And can four of
you carry on if one of you kicks the bucket?
Dame Sian Elias: Yes.
Q94 Chairman: Well, let's not dwell upon
that!
Dame Sian Elias: Not yet anyway,
but we may look forward to some peace at some stage.
Q95 Chairman: Let us instead express
our warm thanks for all the useful advice you have given us and
the shared experience and repeat our good wishes to the Supreme
Court of New Zealand.
Dame Sian Elias: Thank you very
much.
Chairman: Thank you very much.
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