Chapter 5
Appointment of judges

The current mechanics of appointments

5.10In Issues Paper 29, we noted that all judges in the courts we are considering are appointed by warrant by the Governor-General of New Zealand.42

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.

5.13The Attorney-General also recommends the appointment of District Court judges. At one time those recommendations were made by the Minister of Justice.43  But it was thought appropriate to move that responsibility to the Attorney-General to distance that process from any suggestion of Ministry of Justice interference.

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.

42Review of the Judicature Act: Towards a consolidated Courts Act, above n 38, at [3.10].
43We note that the Minister of Justice is still responsible for appointing community magistrates: District Courts Act 1947, s 11A.