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.
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.
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.
5.29The 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.
… 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.
5.34A 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.