Attorney-General 2005

4" . :1 "1 fl 5' JUSTICE '9 '-if Briefing for the Incoming Attorney-General Ministry of Justice Briefing for the Incoming Attorney-General Contents Introduction................................................................................................................................. 5 SECTION ONE: Background ..................................................................................................... 7 SECTION TWO: Issues requiring ministerial consideration in the next six months ............... 13 3 Ministry of Justice Briefing for the Incoming Attorney-General Introduction This briefing accompanies the overview briefing for all Ministers to whom the Ministry of Justice is responsible. The purpose of this briefing is to provide you with a summary of the immediate issues and specific projects with respect to the portfolio of Attorney-General. We will brief you in more detail on these issues and projects in the coming months. This briefing was prepared prior to the 2005 Election. In accordance with Cabinet Office instructions, the briefing describes issues and options. It does not recommend specific solutions or policy directions. 5 Section One: Background Background Role of Attorney-General The Attorney-General has two roles in government. The first is as a Minister of the Crown with ministerial responsibilities for the Crown Law Office, the Serious Fraud Office, and the Parliamentary Counsel Office. The second role is that of 'senior law officer' of the Crown with principal responsibility for the Government's administration of the law. This function is exercised in conjunction with the Solicitor-General/Chief Executive of the Crown Law Office, who is the 'junior law officer'. Within the first role, it is likely that the incoming Attorney-General will be given responsibility for some areas within the Minister of Justice's portfolio, as determined by the incoming government. Within the second role, the Attorney-General is responsible for three areas administered by the Ministry of Justice: o Judicial and some statutory appointments. o The New Zealand Bill of Rights Act 1990 (BORA) requires the AttorneyGeneral to advise the House if any provision in a Bill appears to be inconsistent with any of the rights and freedoms contained in BORA. o Entering into agreements with groups concerning territorial customary rights recognition under the Foreshore and Seabed Act 2004. This briefing therefore concerns those three functions. Judicial and statutory appointments The Attorney-General is responsible for the following appointments that are established under legislation administered by the Ministry of Justice: o District Court Judges (including the Chief Judge): Are appointed under the District Courts Act 1947. There are currently 130 judges. o Employment Court Judges: Are appointed under the Employment Relations Act 2000. A new Chief Judge and Judge of the Employment Court have recently been appointed. o Environment Court: The Court considers applications and appeals made under the Resource Management Act 1991. The Court consists of a mix of judges and commissioners. 9 Ministry of Justice Briefing for the Incoming Attorney-General o Judicial Complaints Lay Observer: This position was created to allow for the independent review of the handling of complaints about the conduct of members of the Judiciary. o Legal Aid Review Panel: The Panel is established under the Legal Services Act 2000. It is a quasi-judicial, independent tribunal charged with responsibility for reviewing decisions of the Legal Services Agency on applications for, or grants of, legal aid, and for reviewing lawyer remuneration decisions of the Agency. The panel consists of a convenor and a mix of lawyer and lay members. o New Zealand Parole Board: Established under the Parole Act 2002, the principal function of the Board is to consider the sentences of prisoners serving life, preventative detention and finite sentences of seven years or more. The Board consists of a chairperson (a judge or retired judge), panel convenors (usually District Court Judges) and a number of lay members. o Visiting Justices: The Corrections Act 2004 provides for the appointment of Justices of the Peace or barristers or solicitors as Visiting Justices. Twenty-four Visiting Justices were appointed under the Act in May, ready to begin their work on 1 June 2005. o Judicial Conduct Commissioner: Established under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004, the Judicial Conduct Commissioner screens all complaints about the judiciary, refers appropriate complaints to the Head of Bench, identifies serious complaints that require a full inquiry and reports to the Attorney-General recommending the appointment of a Judicial Conduct Panel. If required, the Panel will carry out a full inquiry and report to the Attorney-General with a recommendation on whether consideration of removal of a judge from office is justified. The Attorney-General has the discretion to decide on whether to initiate removing a judge. The Solicitor-General is responsible for advising the Attorney-General on appointments to the Higher Courts (the High Court, Court of Appeal and Supreme Court). The Secretary for Justice is responsible for giving advice on appointments to the District Court (which includes the Family Court and Youth Court), the Environment Court and the Employment Court. Expressions of interest in judicial appointment (High Court level and below) are called for by public advertisement, although candidates may also be nominated by, for example, key people and organisations in the professional legal community and Ministers. All prospective candidates are required to complete an expression of interest form. Their names are then registered on a confidential database maintained by the Attorney-General's Judicial 10 Section One: Background Appointments Unit, which operates from the Ministry of Justice. When a position is to be filled, those interested are considered against published criteria for appointment. In the District Court and Employment Court, the selection process involves interviewing and referee checking. The Law Society is also consulted on the proposed appointee prior to his or her name being mentioned in Cabinet. New Zealand Bill of Rights Act 1990 - vetting bills for consistency Provision of BORA advice o Advice is provided on all Bills except Appropriation Bills. o The Crown Law Office provides advice on all Bills developed by the Ministry of Justice, while the Ministry of Justice provides advice on all other Government, Members', private and local Bills. o For Government Bills, any advice on inconsistency under section 7 must be provided to the House on introduction; for all other Bills, Standing Order 264 requires advice to be provided before the motion for first reading is moved. o The Ministry also provides comment and guidance (not legal advice) to departments, when requested, on the consistency of policy proposals or regulations with BORA and the Human Rights Act 1993. In practice, this is a significant component of the work and is helpful in resolving many BORA issues before legislation is drafted. Publication of BORA advice since 2003 o Officials' advice on BORA consistency is published on the Ministry of Justice website (www.justice.govt.nz) as soon as practicable following a Bill's referral to Select Committee. Specific approval for publication is sought on each piece of advice and as Attorney-General, you have the right to maintain legal professional privilege in respect of any BORA advice. To date, the only exception to publication of officials' advice has been the Foreshore and Seabed Bill 2004, where the then AttorneyGeneral published her own statement on BORA consistency, and privilege has been maintained in respect of the Crown Law Office advice. o Publication promotes public debate and understanding of BORA issues, provides greater transparency about the vetting process and assists Select Committees and submitters to assess BORA issues when considering Bills. 11 Issues requiring ministerial consideration in the next six months SECTION TWO Part Two: Issues Requiring Ministerial Consideration in the Next Six Months Issues requiring ministerial consideration in the next six months This section provides an outline of issues that are expected to require your consideration over the next six months or so. Forthcoming judicial and statutory appointments o As discussed in the general briefing to all Ministers, one of the initiatives to manage court workloads is to consider the appointment of further judges. Before further Court of Appeal judges can be appointed, a decision on reactivating the Judicature Amendment Bill must be made. Should the amendment become law, the Attorney-General will be asked to recommend on the appointment of an additional Court of Appeal Judge (additional funding was approved in the 2005 Budget). o The appointments of 12 members of the New Zealand Parole Board expired in May 2005. They were allowed to run on until early 2006 in order to allow the new Chairperson of the Board time to assess the ongoing membership requirements of the New Zealand Parole Board. Judicial retirement age All judges must retire on reaching the age of 68 years, which is comparatively low when compared with similar Commonwealth countries. Some suggest that New Zealand should increase the retirement age to 70 - the prevailing retirement age in the United Kingdom and Australia - especially for judges of the higher Courts (Supreme Court, Court of Appeal and the High Court). The present retirement age can discourage the recruitment or limit the contribution of senior practitioners, who have distinguished themselves as barristers, commercial lawyers or academics. This issue may require examination. Part-time judges The legislative framework is now in place to allow for part-time judges. The Ministry is currently working to implement the framework, and will seek your decision on implementation options. New Zealand Bill of Rights Act 1990 - vetting Bills for consistency Each week, the Ministry will provide your office with a list of upcoming advice and Bills under consideration by the Ministry. 15 Ministry of Justice Briefing for the Incoming Attorney-General Foreshore and seabed negotiations The Foreshore and Seabed Act 2004 provides for groups to enter into negotiations with the Crown. Negotiations under the foreshore and seabed legislation have non-Treaty origins and represent the development of a new and challenging role for the Ministry. Any agreements reached through direct negotiations require confirmation by the High Court under section 96 of the Act. Until a negotiated agreement is tested by the High Court there is considerable uncertainty about the direction of future negotiations. The highest priority for the next year is being given to a combined set of negotiations with Te Runanga o Ngati Porou (on behalf of the hapu of Ngati Porou) and Te Runanga o Te Whanau (on behalf of the hapu of Te Whanaua-Apanui). Unlike most other parts of New Zealand, there is a concentration of Maori land contiguous with the public foreshore and seabed owned by members of the hapu who have had a long association with the areas. Priority has been accorded to this combined negotiation because it covers a large population and is the largest foreshore and seabed area with adjoining Maori land. Negotiations with the two runanga are at a critical stage and you will be required to make decisions as to next steps. 16