The steps in the process
The steps in the appointment process for District Court Judges are as follows:
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.
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.
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.
Enclosed with the expression of interest form is a statutory declaration as to convictions, disciplinary action, bankruptcy and tax status.
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.
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.
5.42In 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.
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.
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.
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:
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.
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.