Select Committee on Constitutional Affairs Minutes of Evidence


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.





 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2005
Prepared 28 January 2005