Contents

Chapter 5
Appointment of judges

Introduction

5.1The appointment of judges is a critical matter for New Zealand, both for reasons of principle and for pragmatic reasons.

5.2At the level of high principle, the judiciary is the third arm of government. It is not elected, and enjoys the highest level of security of tenure of any institution in the country. It is therefore hugely important that appointments be made with great care and a full appreciation of the enduring nature of the appointment, which often lasts for 20 years or more.

5.3Further, if New Zealand citizens lose confidence in the judiciary, or a given judge, then inevitably the rule of law suffers. Citizens will not, as is their right, resort to the courts (save where they are compelled to do so) for the resolution of their rights and obligations. By choice, they will turn to alternate dispute resolution vehicles.

5.4Given this context, in Issues Paper 29 we suggested that the comment in April 2002 by the Advisory Group on the Establishment of the Supreme Court, that “all judges should be appointed by a transparent process, with clear criteria, and adequate and appropriate consultation”,37  is still apposite.38  We made certain preliminary proposals as to how this general principle could best be achieved in contemporary New Zealand circumstances, and for the foreseeable future.

5.5In this chapter, we outline the current legislative provisions on judicial appointments, and discuss the Commission’s recommendations to enhance these.

37Report of the Advisory Group Replacing the Privy Council: A New Supreme Court (April 2002) at 39.
38Law Commission Review of the Judicature Act 1908: Towards a consolidated Courts Act (NZLC IP29, 2012) at [3.1]-[3.2].