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Judicature Modernisation Bill (Consistent) (Sections 11, 19, 25(a), 27) [2013] NZBORARp 49 (20 November 2013)

Last Updated: 21 April 2019

Judicature Modernisation Bill

20 November 2013 Attorney-General

Judicature Modernisation Bill (PCO 17309/14.0): Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/207

1. We have considered this Bill for consistency with the New Zealand Bill of Rights Act 1990 (NZBORA).
   
2. We conclude that the Bill, which consolidates and modernises existing legislation on the constitution, jurisdiction, practice and procedure of the High Court, the Court of Appeal and the Supreme Court and related matters, appears to be consistent with the Act.
   

Background

3. The Bill represents the Government’s response to the Law Commission report Review of the Judicature Act 1908: Towards a new Courts Act.
   
4. The Bill is intended to modernise courts and improve judicial leadership and accountability, while respecting judicial independence. The proposals are not intended to create fundamental change, but to offer enhanced clarity and transparency to increase public understanding of how courts are constituted and operated.
   

The Bill: particular issues

Clause 13: Jurisdiction in relation to persons who lack competence to manage their affairs (Bill p 33)

5. Clause 13 provides:

Jurisdiction in relation to persons who lack competence to manage their affairs (1)The High Court has jurisdiction and control in relation to—

(a) mentally impaired persons who, in the opinion of the court, lack wholly or partly the competence to manage their own affairs; and

(b) the property and managers of those persons.

(2)Subsection (1) is subject to other enactments making provision in relation to those persons or their property or managers.

6. The clause updates s 17 of the Judicature Act 1908. As drafted, cl 13 reflects a modern understanding of capacity or competence, in that it does not define the High Court’s jurisdiction by virtue of any particular mental illness or disorder but against a person’s competence to manage their own affairs.
   
7. The High Court’s parens patriae jurisdiction appears to be specifically maintained by cl 13. Unlike the current s 17 Judicature Act 1908, cl 13 jurisdiction is not limited to a class of people experiencing defined mental conditions. Instead, it is applied to all people who lack competence to manage their own affairs, regardless of the cause of that incompetence.
   
8. There are several rights affirmed by NZBORA that may be breached by a power such as cl 13, including the rights to refuse medical treatment, freedom from discrimination, liberty of the person, and rights to justice. However, the Court is required to exercise its discretion in accordance with NZBORA and the common law so as to intervene only in reasonable and minimally restrictive ways.
   
9. It is also required to exercise discretion in accordance with the autonomy rights of disabled people under art 12 of the United Nations Convention on the Rights of Persons with Disabilities (CRPD). These include recognising that disabled people enjoy legal capacity on the same basis as others while also ensuring disabled people have the support required to exercise that legal capacity. Any support measures must be tailored to the person’s circumstances thereby ensuring they are proportional to the extent and duration of

incapacity. Clause 13 is therefore properly viewed as a measure designed to reasonably accommodate disability and accordingly we do not consider this provision is inconsistent with NZBORA.

High Court Rules, Part 4 Subpart 7: Incapacitated persons (Bill p 372)

10. Part 4 Subpart 7 of the High Court Rules provides for a litigation guardianship regime for certain incapacitated persons involved in proceedings, including minors in some cases.
    
11. The definition of ‘incapacitated person’ for the purpose of this part appears to be appropriate [1]. It does not presuppose that particular medical or physical conditions give rise to incapacity, but rather focuses on the elements that indicate a lack of capacity in the particular context of court proceedings.
    
12. Proposed rule 4.35 provides that litigation guardians may be appointed.
    
13. The litigation guardian regime’s compliance with NZBORA and international conventions, including the United Nations Convention on the Rights of Persons with Disabilities, was examined in Spicer v Attorney-General [2]. Ronald Young J concluded that litigation guardian rules were an effective way of facilitating an incapacitated person’s exercise of his or her legal rights [3]. The appointment of a litigation guardian in cases of incapacity was held to address the danger of merging the lawyer and client functions in the absence of coherent instructions [4]. It was also held to reduce the risk of a person’s case being undermined [5].
    
14. In this way, the litigation guardian provision is consistent with the obligation to reasonably accommodate disability in order to avoid a finding of discrimination. No discrimination arises. The power of Courts to ensure that litigation guardians exercise their power consistently with art 12 of the CRPD further supports the reasonableness of the provision.
    
15. Similarly, the ability to appoint a litigation guardian for minors aged 16 and 17 arguably advantages rather than disadvantages a young person for the reasons outlined in Spicer. Therefore even if prima facie discriminatory any infringement on the right is justified,

especially given the Court’s power to ensure the power is exercised consistently with autonomy rights of children arising under the United Nations Convention on the Rights of the Child.

Power of High Court to require party to undergo medical examination: clause 42 (Bill p 45)

16. Clause 42 of the Bill provides:

High Court may require person to undergo medical examination

(1)The High Court may order a party to a civil proceeding to undergo a medical examination by a registered medical practitioner at a time and place specified in the order if the court is satisfied that the physical or mental condition of the person is relevant to a matter in the proceeding...

(4) The person to be examined must do the things reasonably requested and answer the reasonable questions asked by the medical practitioner who conducts the examination.

(5) If the person to be examined fails, without reasonable excuse, to comply with the order or wilfully obstructs the medical examination, the High Court may—

(a) stay the proceeding; or

(b) strike out a notice, statement, or other document filed, or a step taken, in the proceeding by the person to be examined.

17. This clause raises the question of whether a medical examination as envisaged in cl 42

would constitute “medical treatment” for the purposes of s 11 NZBORA.

18. Case law is not entirely consistent on whether medical examination must have some

therapeutic element to qualify as “medical treatment” [6]. However, even if s 11 is engaged here, it needs to be balanced against fair trial rights; the discretion available to the courts under clause 42 to refuse to make an examination order; the reasonableness requirements specified in the clause and the limited fair trial related consequences if a person refuses to comply with the order.

19. This conclusion is reinforced by the Court of Appeal’s recent decision in W v S where the Court held an order under s 100 of the Judicature Act (materially similar to clause 42) would

not be made unless the interests of justice so require, and that any examination should be no more intrusive than is reasonably necessary to achieve its object [7].

20. We conclude the provision is not inconsistent with s 11 NZBORA.
    

Acting judges; clauses 110-116, 214-215 (Bill pp 72-75, and 119)

21. Clauses 110 and 111 of the Bill provide for acting Supreme Court and Court of Appeal judges. Clauses 112 and 113 provide for acting High Court and Associate Judges. All candidates must be former judges, with specific eligibility differing depending on the court. Clause 114 provides that before an acting judge can be appointed, the Attorney must have received a certificate signed by the Chief Justice stating the appointment is “necessary for the proper conduct” of the relevant court. Clause 115 provides an acting judge cannot be appointed for a term in which he or she will turn 75, or for a term of over two years (or one year for acting associate judges (clause 116)). All acting judges may be reappointed; however, an acting judge cannot serve more than five years in aggregate.
    
22. Clause 214 provides for acting District Court judges. Candidates must be former judges and must be under 75. Before an acting judge is appointed, the Attorney must have received a certificate signed by the Chief District Court Judge attesting that the appointment is necessary for a stipulated temporary need. Clause 215 provides an acting judge cannot be appointed for a term in which he or she will turn 75, or for a term of over two years. All acting judges may be reappointed; however, an acting judge cannot serve more than five years in aggregate.
    
23. In terms of material changes, the Bill:
    

23.1 Introduces retirement ages for acting judges of courts other than the Supreme Court (75 years) and

23.2 Introduces aggregate serving limits for acting judges (five years).

24. The constitutionality of the office of an acting judge under the current law was considered by the Court of Appeal in R v Te Kahu [8] and the High Court in Wikio v Attorney- General [9].

25. The Court of Appeal expressly declined to make a finding as to whether the appointment provision for acting judges in s 11A of the Judicature Act was consistent with fair trial rights under s 25(a) NZBORA.
    
26. The Court accepted there was a prima facie argument that such appointment undermined the s 25(a) right, but nonetheless affirmed that New Zealand Judges could reasonably be relied upon to resist any subconscious influences posed by the nature of reappointment [10]; and affirmed there were “a number of” policy justifications which remained to justify the existence of acting judges, such as reducing workflow.
    
27. The issue was revisited in greater depth in Wikio. In that case the High Court concluded the power to appoint and reappoint acting judges did not offend against s 25(a) NZBORA.
    
28. Having regard to case law both in New Zealand and overseas [11] we conclude the power to appoint and reappoint acting judges does not offend against s 25(a) NZBORA.
    

Judicial retirement age: clause 132 (Bill p 80)

29. Presently:
    

29.1 Judges and Associate Judges must retire at 70 [12].

29.2 Acting Judges of the Supreme Court must be no older than 75 [13].

29.3 Other Acting Judges are not subject to the 70-year retirement age prescribed in the Judicature Act [14] and do not appear to be subject to any specific age limit; however, they are subject to other controls such as conditions precedent for appointment and term limits.

29.4 Section 13 of the Judicature Act 1908, as initially enacted, provided for a judicial retirement age of 72 years. This was decreased to 68 by the Judicature Amendment Act 1980, s 2(1). This was then increased to 70 by the Judicature Amendment Act 2007 (No 3), s 4.

30. Clause 132 of the Bill provides:

(1) Every Judge must retire on attaining the age of 70 years, but may be appointed an acting Judge.

(2) Every Associate Judge must retire on attaining the age of 70 years, but may be appointed an acting Associate Judge.

31. The existence of a mandatory retirement age (regardless of the age at which it was fixed) is prima facie discrimination on the basis of age, contrary to s 19 NZBORA.
    
32. Setting a mandatory limit, however, also has an important purpose: namely the preservation of judicial independence. The importance of this purpose is affirmed by s 25(a) NZBORA, which protects the right to trial by an independent and impartial court, and s 27 rights to natural justice.
    

33.A mandatory retirement age may be rationally connected to achieving those purposes, as it forms part of a wider range of statutory controls on judicial service (such as fixed income and protection against removal from office) which, taken together, instil security of tenure.

34. The limit of 70 years reflects a proportionate response to achieving those purposes. Such a limit has been adopted in the United Kingdom, Australia, and Ireland. The United Nations General Assembly has also affirmed the reasonableness of mandatory retirement ages generally in GA Res 40/32, 29 November 1985 and GA Res 40/146, 13 December 1935: Basic Principles on the Independence of the Judiciary.
    
35. Alternatives, (such as having no mandatory limit) would potentially provide greater security of tenure, but have disadvantages (such as potential diminution of judges’ health). Similarly having judicial appointments limited by term, while potentially avoiding prima facie age discrimination, would create risks for judicial independence.
    
36. We conclude the 70 year limit is an incursion on s 19 NZBORA rights, but a proportionate one to achieve an important objective.
    

Restrictions on commencing continuing proceedings clauses 162-165, 395-398 (Bill pp 95- 96 and 202-203)

37. These clauses will enable the courts to impose a range of orders prohibiting a litigant from beginning or continuing civil proceedings in any Court without leave and will replace the present vexatious litigant procedure under s88B of the Judicature Amendment Act 1908.
    
38. We accept, as the Court of Appeal said in Brogden [15], that a litigant’s right of access to the Courts is of “fundamental constitutional importance”, but that right is not absolute. To be set against it has to be “the desirability of freeing defendants from the very considerable burden of groundless litigation”. Also, there is a need to protect the resources of the

judicial system, which are “barely sufficient to afford justice without unreasonable delay to those who do have genuine grievances” [16].

39. The Courts have in the past accepted that provisions such as s 88B may stand alongside the rights guaranteed to a litigant under s 27 of NZBORA.
    
40. Our view is the s 27 right is itself less than absolute, and that provisions such as s 88B, and those in the Bill, constitute a justifiable limit on s 27 in terms of s 5 NZBORA.
    
41. In coming to this conclusion we have also had regard to the equivalent provisions in the United Kingdom: see for example the recent UK Practice Direction - http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03/pd_part03c
    

Service on Sunday (clause 177)/sitting on a Sunday (rule 3.3(2)) (Bill pp 102, 351)

42. The Bill prohibits service of documents on a Sunday (cl 177) and limits courts sitting on Sundays (rule 3.3(2)). These provisions are prima facie discriminatory against religions other than Christianity. For example, it might be argued cl 177 is discriminatory because it does not prohibit service on days of religious significance to other religions, in breach of s 19 of NZBORA.
    
43. On balance we do not consider either provision to be discriminatory, for two reasons. First, Sunday as a special day for home and family has a wider modern place in New Zealand society than its historical association with Christianity. Second, it would not be workable to

construct a rule that has the effect of treating all members of religions equally, other than to remove the provision altogether, thereby permitting documents to be served on all seven days of the week.

44. As service can be intrusive on privacy, we consider cl 177 to be less disadvantageous to all, including members of religions with religiously significant days other than Sunday, than removing the prohibition. Any disparate impact arising is therefore justified.
    
45. Similar reasons apply to Sunday sittings of courts. For these reasons we do not consider either provision to be discriminatory.
    

Conclusion

46. We conclude the Bill appears to be consistent with the New Zealand Bill of Rights Act.
    

Peter Gunn

Crown Counsel

Footnotes

[1]Judicature Modernisation Bill, High Court Rule 4.29. [2]Spicer & Ors v Attorney-General [2012] NZHC 661. [3]Ibid, at [30].

[4] Ibid, at [33].
[5] Ibid, at [32].

[6]R v B [1995] 2 NZLR 172 (CA), A v Council of the Auckland District Law Society [2005] 3 NZLR 552 (HC), M v Attorney-General [2006] NZFLR 181 (HC)

[7]W v S [2012] NZCA 166, (2012) 28 FRNZ 796 at [14] – [16].

[8]R v Te Kahu [2005] NZCA 438; [2006] 1 NZLR 459 (CA)

[9]Wikio v Attorney-General [2008] NZHC 1104; (2008) 8 HRNZ 544 (HC).

[10]At [41].

[11] Kearney v Her Majesty’s Advocate (2006) SC (PC) 1, Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 229 ALR 223
[12] Judicature Act 1908, s 13.
[13] Supreme Court Act 2003, s 23(1).

[14] See Judicature Act 1908, s 13 which provides that that section applies to “every judge other than a former Judge appointed under section 11 or section 11A or a person who is deemed by section 58(10) to be a Judge.”
[15] Brogden v Attorney-General [2001] NZCA 208; (2001) NZAR 809 (CA) at [20].
[16] Attorney-General v Jones [1990] 1 WLR 859 (CA) 865, cited in Attorney-General v Hill

[1993] NZHC 1029; (1993) 7 PRNZ 20, 27.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Judicature Modernisation Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.