Chapter 5
Appointment of judges


5.19There was a very respectable level of support for the general propositions outlined above. However, concerns were raised by some submitters, which we can conveniently set out under five heads:

5.20Some of the submissions went beyond the terms of our reference, but out of respect for the submitters, we summarise them here. They may also afford valuable pointers for the future.

A Judicial Appointments Commission?

5.21In Issues Paper 29, we noted that a number of countries, including, most recently, the United Kingdom, now have in place Judicial Appointment Commissions.44  Generally, these are advisory bodies only. In other instances, they bring forward a small number of names from which the appointer must choose. It will be observed that such systems also have the functional effect of limiting the power of the appointer (by whatever name that person is called).

5.22We suggested that there is a world of difference between the present context in New Zealand and that of the United Kingdom. Only about a dozen judges are appointed each year in New Zealand, compared to the several hundred per annum in England and Wales. And we said that to do the job properly would require, in a difficult fiscal climate, the establishment of a new agency. This would require resources quite disproportionate to the number of appointments to be made in New Zealand.

5.23Some senior judges and former Heads of Bench nevertheless emphasised to us that, in their view, it is both appropriate and necessary that there should be a Judicial Appointments Commission in New Zealand. Their reasons related partly to a check on the power of any given Attorney-General, and because, in the past, some promising names had not been brought forward. Nevertheless, we are not persuaded that in the present or foreseeable circumstances a Judicial Appointments Commission is desirable or necessary in New Zealand. Both for the reasons we gave in Issues Paper 29, and also because the recommendations advanced later in this chapter will go, we think, some distance towards meeting the concerns which have been raised with us.

Differentiation in appointment procedures for different courts

5.24Some submitters said that different considerations for appointments will be required between the various courts. That must be right. To take only one example, the difference between the kind of work being undertaken in the Family Court, with its heavy emphasis on human dilemmas and the resolution of them in a particular context, and in the Supreme Court, which is charged with the articulation and development of sound “ultimate” principles for New Zealand law, is relatively obvious. We had noted this problem in Issues Paper 29,45 and had endeavoured to address it by suggesting that a common sense application of the generic merit principles we articulated would best address this problem. We are still of that view, and note that section 5(2) of the Family Courts Act 1980 provides that a judge of the Family Court can only be appointed if “he is, by reason of his training, experience and personality, a suitable person to deal with matters of family law.”

Elevations to a more senior court

5.25In Issues Paper 29, we said we did not consider it should be necessary for legislation to require the Attorney-General to undertake consultation again for an appointment elevating a judge from one court to a higher court.46  A “direct” appointment from the Bar (for example) to an appellate court would, of course, require observance of the initial appointment provisions.

5.26Several submitters invited us to reconsider this, with one submitter suggesting a process to identify appropriate candidates for judicial promotion is equally, if not more, important than the appointment of a new Judge. The New Zealand Bar Association also stressed the importance of elevation from one court to another, and that it could “see no reason why the same obligation for consultation should not apply”.

5.27The New Zealand Law Society stated the “profession has a vital interest in [promotions to the Court of Appeal or Supreme Court], and is likely to have information that would be of substantial importance in making promotions”, a comment that was echoed by the current Chief District Court Judge. The Senior Courts’ judges advocated for a published appointments process identifying those who must be consulted, and said that this should apply to appointments to the appellate courts.

5.28In light of these submissions, we recommend the Attorney-General should be required by statute to undertake a full round of consultation again for elevations to a higher court. Given there are relatively few appellate appointments each year (where the majority of elevations occur),47  we do not consider that this would place an undue burden on the Attorney-General (or the persons and groups to be consulted).

Additional check on appointments?

5.29The arguments addressed to us under this head were not, and appropriately so, made on the basis of the criticism of any particular appointments or promotions which have taken place historically, or recently. They were directed to an issue which many see to be of constitutional importance and on which there are really two schools of thought.

5.30The first is that appointing judges is a task which should not, without constitutional safeguards, be entrusted to a member of the Executive. Nor, as a matter of prudence, should it be entrusted to the exercise of judgment by a single individual, even one with the standing of the First Law Officer. This is because of the very great significance of the decisions which are made.

5.31The second school of thought was articulated by the late Lord Bingham, who at at the time was the most senior judge in England. He once referred with approval to what he regarded as the “wise words” of Alexander Hamilton, writing in the Federalist Papers with reference to judicial and other appointments under the proposed United States Constitution:48

… I proceed to lay it down as a rule that one man of discernment is better fitted to analyse and estimate the peculiar qualities adapted to particular officers than a body of men of equal or perhaps even of superior discernment.
The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretentions to them.

5.32The difficulty for the Commission in the review of the Judicature Act 1908 is that these issues go well beyond the scope of our reference. This is a modest consolidation project. We did not discuss this in Issues Paper 29, and it inherently raises some delicate and difficult constitutional questions which would properly support a full reference, on its own.

5.33For what it is worth, we consider that the most obvious checks on an Attorney-General, were there to be any, would include: a Judicial Appointments Commission; some kind of nomination system from which choices would then be made by the Attorney-General; or a requirement for the concurrence of another person before an appointment could be made, perhaps the Chief Justice or relevant Head of Bench.49

Awareness of process

5.34A number of submissions noted that the processes being followed by Attorneys-General have not always been clear and well-publicised. We agree. It is important that there is a clear and publicly known process for judicial appointments, to maintain the confidence of both the public generally, and potential applicants for appointment. We discuss this further below.

44Review of the Judicature Act 1908: Towards a consolidated Courts Act, above n 38, at [3.18].
45At [3.36].
46At [3.26].
47For example, in 2011 there was one elevation to the Supreme Court (Chambers J) and two elevations to the Court of Appeal (Wild and White JJ). To date in 2012 there has been one elevation to the Supreme Court (Glazebrook J) and one elevation to the Court of Appeal (French J).
48Tom Bingham Lives of the Law (Oxford University Press, Oxford, 2011) at 72, citing Alexander Hamilton “No 76 The Appointing Power of the Executive” in Federalist Papers (New York, 1787-1788).
49We note that the Heads of Bench of the Senior Courts strongly support the concurrence proposition.