The Judicature Modernisation Bill had its second reading last week. Somehow it has not led the news. I am not surprised. The significance of this bill, the most comprehensive revision of legislation covering the courts since 1908, is not immediately apparent.
It is, though, legislation of constitutional significance. The courts this bill will reform trace their existence back to one of the colony's first parliamentary acts in 1841, and beyond that to the sovereign's courts in England.
Without an independent and impartial judiciary we could not call ourselves a democracy. The continued existence of such a judiciary is at the heart of this bill. Commerce could not operate without trustworthy courts. Without an independent judiciary citizens would find themselves at the whim of the executive.
Many measures in the bill, which is based on a Law Commission report (then further major work by the Ministry of Justice and the justice and electoral select committee), achieve welcome rationalisation and will improve the operation of courts. But concerns remain.
The last major reform of our court structure was the creation of a Supreme Court by the Supreme Court Act 2003. Consistent with that act's constitutional significance Parliament included explicit commitments to the rule of law and parliamentary sovereignty. Those commitments were added by the then justice and electoral committee after extensive consultation and deliberation.
Those commitments, and a reference to the Treaty of Waitangi, were dropped in the first draft of the current bill. Submitters queried this odd omission at the select committee stage, but the committee did not re-insert the 2003 act's provisions, and in its seven-page report provided no explanation for not doing so.
This is mystifying. Why is New Zealand in 2015 shy of restating in legislative form a commitment to these constitutional fundamentals? Minister of Justice Amy Adams' curious explanation given in the second reading debate was that such provisions are constitutional in nature and therefore do not belong in this legislation.
She is right, they are constitutional in nature, but then this is a constitutional bill. The idea that the laws setting up a nation's courts are not constitutional would raise eyebrows in any other democratic country. In fact New Zealand is alone with the United Kingdom in not having the courts listed in an entrenched, codified constitution. And, if the commitments were appropriate in the Supreme Court Act, why are they not appropriate in the bill replacing that act?
This leads me to a related major concern about the bill - the failure to provide proper constitutional protection of the courts, at least on a par with the protections in the Electoral Act for regular elections (the requirement for regular free elections is essentially entrenched, with the core provisions requiring a 75 per cent majority or referendum approval before they can be modified or removed).
In my written and oral submissions, I made the case for giving an independent judiciary a similar level of protection. Regular free elections and an independent and impartial judiciary are two pillars of New Zealand democracy - Parliament has a chance in this act to make that clear.
My last point relates to the compulsory retirement age for judges of 70. Apart from being unjustified discrimination on the basis of age it is a terrible waste of a scarce resource: good judicial minds.
As life expectancies continue to rise, entirely able judges face a legislatively dictated sentence of senility on their 70th birthday. A first step would be to raise the age to 75, or to remove the retirement requirement entirely. There are more rational ways to deal with the possibility of judges needing to leave the bench for medical reasons than simply requiring all to retire at 70 regardless of health.
While this quietly important bill may not make front page news, it touches on institutions - the courts - of importance to us all. There remains time for Parliament to amend it to stand with credit for a further 100 years.
Dr Richard Cornes is a New Zealand-trained lawyer at England's Essex University and a visiting fellow at Otago University's Centre for Legal Issues. The bill is to reach committee stage today.