5.11By convention, the appointment of the Chief Justice is made on the recommendation of the Prime Minister to the Governor-General. In essence, this is due to the constitutional significance of the Office of the Chief Justice, who is also the head of the judiciary in New Zealand. We recommend this convention be continued, and be placed in legislation.
5.12The Attorney-General advises the Governor-General on appointments to the High Court, Court of Appeal and Supreme Court. Appointments are mentioned in Cabinet after they have been determined, but by convention are not discussed or approved by Cabinet. In making the nominations, the Attorney-General is exercising dual roles. As the First Law Officer, he or she has a particular responsibility to advise the Executive on matters affecting the judiciary. But the decision actually taken and advanced to the Governor-General is by the Attorney-General as a member of the Executive.
5.14Other than the purely formal requirements outlined above, there are no statutory merit criteria for appointment. Nor are there currently any legislated requirements for advertisement, consultation and like matters.
5.15Successive Solicitors-General have endeavoured, over the last decade or so, to put in place, at least as a matter of convention, a better process for appointments: mechanisms for advertising for vacancies, interviews and consultative processes. Those sort of measures have been largely adopted in the District Courts. How far they have been employed in the Senior Courts is not altogether easy to determine, but it appears they have not extended as far as what is done in the District Courts.