Contents

Chapter 5
Appointment of judges

Commission’s view

The process for appointment

District Courts

5.35The District Courts have a more refined judicial appointments process than that relating to the Senior Courts. It is useful to set it out in full:50

The steps in the process

The steps in the appointment process for District Court Judges are as follows:

1. Prospective candidates may submit an expression of interest for judicial office on the prescribed form at any time. Alternatively, as a result of the consultation process described below, prospective candidates may be nominated, invited to express their interest and to enter the process. All prospective candidates are provided with an application form for completion.
2. A proposed shortlist is submitted to the Attorney-General for approval. The Attorney-General, after such consultation as he or she believes necessary, decides who should be on the shortlist for interview. Those approved are interviewed.
3. Following the interviews, the Solicitor-General and the President of the Law Society are consulted.
4. The interview panel reports on the interviews and the results of the assessments and checks to the Attorney-General, who may choose to interview candidates. The Attorney-General selects the candidate(s) for appointment, mentions the appointment(s) in Cabinet and tenders formal advice to the Governor-General.

The interview panel

The interview panel is the Chief District Court Judge, the Head of Bench where relevant, the Executive Judge for the relevant region and a representative of the Ministry of Justice.

Consultation

A range of groups and people are contacted at various stages in the appointment process. The intention is to ensure a sufficiently broad perspective is obtained as to prospective candidates. The Attorney-General regards the knowledge, experience and judgment of the professional legal community as a very good source of informed opinion on the relative merits of prospective candidates. They are prominent among those consulted accordingly.

The list of parties who may be contacted includes the Chief Justice, the President of the Court of Appeal, the New Zealand Bar Association, the President of the New Zealand Law Society and other organisations or groups representative of lawyers who the Attorney-General believes can contribute names of suitable persons. Such groups may include the New Zealand Bar Association, the Criminal Bar Association, and, in the interests of increasing diversity, the Women’s Consultative Group of the New Zealand law Society, the Māori Law Society and women lawyers’ associations. Also community groups with which the applicant has had involvement may be consulted. Nominations may also be sought from the Minister of Justice, the Chair for the Justice and Electoral Select Committee and the Opposition Spokespersons for the Attorney-General portfolio.

Information sought

Persons interested in appointment as a District Court Judge are asked to complete an expression of interest form and to provide a curriculum vitae. Candidates selected for interview are asked to provide information on their health status and financial security.

Expression of interest form

The expression of interest form is a formal document. It seeks a variety of personal and professional information such as a brief description of the person’s legal experience. It also seeks the person’s consent to the information being conveyed as necessary to those consulted during the appointment process. Information contained in the expression of interest form is intended to supplement material in the curriculum vitae. The form is also intended to provide an opportunity to highlight experience which is considered to be of particular relevance to the criteria on which appointments are made.

Statutory declaration

Enclosed with the expression of interest form is a statutory declaration as to convictions, disciplinary action, bankruptcy and tax status.

Curriculum vitae

Persons interested in appointment are also asked to provide a curriculum vitae so that more detail about their legal career, including a full work history, is available together with any relevant experience outside the law.

5.36The website notes that there is an Attorney-General’s Appointment Unit “attached” to the Ministry of Justice to deal with District Court appointments, but “its records are held separately from those of the Ministry”. It has its own email address, telephone and facsimile numbers, and postal address. Its role is to provide administrative assistance throughout the appointments process.

5.37The process for appointment of District Court judges appears to us to be appropriate, and should be continued.

Senior Courts

5.38In the case of appointments to the Senior Courts (including Associate Judges), the administrative process is carried out under the direction of the Solicitor-General, although, as noted above, the actual nomination is by the Attorney-General.

5.39We were pressed by nearly all submitters to ensure that the actual process followed for the Senior Courts should be more clearly and publicly spelled out. We agree with concerns that the process lacks transparency.

5.40In our view, this problem could be addressed, and in a relatively flexible way, by prescribing that the Attorney-General must, from time to time, publish, perhaps on the Courts of New Zealand website,51  the procedures for appointment he or she will follow in each of the Senior Courts. These could include:

Criteria for appointment

5.41In Issues Paper 29, we noted there has been extensive discussion on the concept of “merit” and the criteria for judicial appointment around the western world in recent years.52  We suggested the time has come for the criteria for appointment in New Zealand to be stated in legislation, and set out what a draft provision might look like.

5.42In the submissions, the main opposition to this came from the Senior Courts’ judges and two law firms. The general thrust of all three submitters was that there are advantages in flexibility that cannot be obtained in a statutory provision. One large law firm stated that the risk with legislative criteria is that “the Attorney-General will become tied down to particular criteria at the expense of taking a more rounded view of the merits of the particular individual (including the views of those with whom the Attorney-General has consulted).”

5.43However, the majority of the submitters agreed with our provisional view that while no single template is achievable or desirable for New Zealand judges, it is possible to state some general principles that ought to be observed by an Attorney-General in making appointments. With the benefit of consultation we are still of that view.

5.44A point raised by some submitters, including the New Zealand Law Society and Chief District Court Judge Doogue, was whether the criteria should be considered in a “two-step” process. While varying slightly in detail, the common thread was that the initial (and paramount) consideration should be “merit”, but that if two candidates are equal then a diversity criterion should be applied.

5.45In the United Kingdom, the House of Lords Select Committee on the Constitution has recommended that such a “tipping” or “tie-break” approach (which is enshrined in section 159 of the Equality Act 2010 (UK)) be used as part of the judicial appointments process.53  This has been endorsed by the United Kingdom Ministry of Justice, which has stated that:54

We therefore intend to enable the use of a ‘tipping point’ provision, but not to dilute the merit principle. It is intended that a “tipping point” principle could be applied and the provision that appointments be based solely on merit also be retained in the Constitutional Reform Act 2005. This proposal will be developed in consultation with the [Judicial Appointments Commission], and we will consider the concerns expressed during consultation around the problem of prioritisation of different protected characteristics.
(Their emphasis)

5.46The 2012 Annual Report of the Judiciary Diversity Taskforce notes that “[f]ollowing the [United Kingdom Ministry of Justice] consultation and subsequent publication of the Crime and Courts Bill, a designated team has been set up within the [Judicial Appointments Commission] to take this work forward.”55  Under the heading “Future actions planned”, it then states:

It is understood that the Lord Chancellor may issue guidance to the [Judicial Appointments Commission] under the provisions of the [Constitutional Reform Act 2005]. Proposals for implementing the provisions consistent with any guidance issued will be put to [Judicial Appointments Commission] Commissioners in the latter part of 2012.

5.47The “Forecast completion date” is listed as May 2013, depending upon the progress of the Crime and Courts Bill and United Kingdom Ministry of Justice guidance.

5.48The situation in the United Kingdom is not directly comparable to that in New Zealand, given the absence of an equivalent to section 159 of the Equality Act 2010 (UK) on our statute book. The criteria we recommend below do provide for diversity to be taken account when the Attorney-General is considering an appointment. However, we consider that the United Kingdom experience should be monitored, as it may provide useful guidance as to whether such a provision should be introduced in New Zealand at a later date.

5.49

Accordingly, we recommend legislation should provide that in making appointments to the New Zealand courts, the Attorney-General must be satisfied, before advising the Governor-General on an appointment, that:

(a) the person to be appointed a Judge has been selected on merit, having regard to that person’s –
(i) personal qualities (including integrity, sound judgment, and objectivity);
(ii) legal abilities (including relevant expertise and experience and appropriate knowledge of the law and its underlying principles);
(iii) social awareness of and sensitivities to tikanga Māori; and
(iv) social awareness of and sensitivities to the other diverse communities in New Zealand; and
(b) regard has been given to the desirability of the judiciary reflecting gender, cultural and ethnic diversity.
5.50As we said in Issues Paper 29, doubtless criteria of this kind are in practice already in the forefront of an Attorney-General’s consideration.56  However, to engender public confidence and transparency, these criteria should be explicitly stated in legislation.

5.51We do not consider it necessary to make specific provision for their application to the circumstances of a given level of court. The differences in the kind of work being undertaken by a given court, and the needs of a particular Bench will be well known to, the Attorney-General, or his or her advisors, in any given case.

5.52Expressions of interest from persons who reflect the breadth of these criteria and who enjoy the confidence of the Bar should be encouraged.

Consultation

5.53Consultation is an essential aspect of the appointments process. It must be both appropriate and adequate. In Issues Paper 29, we noted that, traditionally, Attorneys-General in New Zealand have taken “soundings” from the Solicitor-General on appointments to the Senior Courts, and from the Secretary for Justice on appointments to the District Courts.57  We said further that the Chief Justice, the Presidents of the New Zealand Law Society and the New Zealand Bar Association, and the relevant Head of Bench have also been consulted, to a greater or lesser extent, depending on the preferences of the particular Attorney-General.
5.54Our provisional view was that, for new appointments, consultation with all of these people should be mandatory, and formalised in legislation. This would be a minimum requirement, and we envisaged the Attorney-General would consult with a broader range of people, and possibly even suitable lay persons, in order to encourage diversity.58

5.55Submitters almost unanimously agreed with this formalisation, and with our proposed list of people to be consulted.

5.56One submitter did suggest a mandatory list may mean other groups, such as the Women’s Consultative Group of the New Zealand Law Society, the Māori Law Society and the Women’s Lawyers Association, are passed by. However, we do not consider that this will be the case. As noted above, the proposal would not limit the Attorney-General to only those persons included in the mandatory list; he or she would be free to consult any and all other persons, including lay persons, who may provide relevant information.

5.57Accordingly, we recommend the legislation provide that the Attorney-General must consult certain persons before advising the Governor-General on the appointment of a judge. These are:

5.58The Attorney-General should also be empowered to consult such other persons as he or she considers, in any given case, to be appropriate.

R12 The formal requirements for appointment as a judge in the New Zealand trial and appellate courts should remain as set out in the District Courts Act 1947, the Judicature Act 1908 and the Supreme Court Act 2003.

R13The nomination for the Office of Chief Justice of New Zealand should continue to be made by the Prime Minister, and this should be provided for in new courts legislation.

R14The Attorney-General should continue to recommend the appointment of all District Court, High Court, Court of Appeal and Supreme Court judges.

R15The Attorney-General should be required by statute to publish, in written form and on the Courts of New Zealand website, the process he or she will follow in soliciting and advancing nominations for judicial appointment.

R16 There should be additional statutory criteria for appointment as a judge as follows:
(a)the person to be appointed a judge must be selected by the Attorney-General on merit, having regard to that person’s –
  • personal qualities (including integrity, sound judgment, and objectivity);
  • legal abilities (including relevant expertise and experience and appropriate knowledge of the law and its underlying principles);
  • social awareness of and sensitivities to tikanga Māori; and
  • social awareness of and sensitivities to the other diverse communities in New Zealand; and
(b)regard must be given to the desirability of the judiciary reflecting gender, cultural and ethnic diversity.

R17 Before making an appointment, whether “first instance” or an elevation to a higher court, the Attorney-General should be required by statute to consult:
  • the Chief Justice, in the case of an appointment to the Higher Courts, and the Chief District Court Judge, in the case of appointment to the District Courts;
  • the Head of Bench of the court to which the appointment will be made;
  • the Solicitor-General;
  • the President of the New Zealand Law Society;
  • the President of the New Zealand Bar Association; and
  • such other persons as he or she considers to be appropriate.
50Ministry of Justice “Judicial Appointments: Office of District Court Judge” (August 2012) .
51Courts of New Zealand  <www.courtsofnz.govt.nz>.
52Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 38, at [3.34].
53House of Lords Select Committee on the Constitution 25th Report of Session 2010-12: Judicial Appointments (28 March 2012) at [101].
54Ministry of Justice (UK) Appointments and Diversity ‘A Judiciary for the 21st Century’: Response to public consultation (11 May 2012) at [96].
55Judicial Diversity Taskforce Improving Judicial Diversity: Progress towards delivery of the ‘Report of the Advisory Panel on Judicial Diversity 2010’ (September 2012) at 30.  
56Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 38, at [3.39].
57At [3.23].
58At [3.27].