Contents

Chapter 7
Part-time and
acting judges

Acting judges

Issues Paper 29

7.13In Issues Paper 29, the Commission pointed out the appointment of acting or temporary judges has long been a contentious matter in many jurisdictions, and that some jurisdictions preclude them altogether.91  Our own statutory provisions enabling acting judges lack consistency.

7.14Section 11 of the Judicature Act 1908 is headed “temporary judges”. It provides that at any time during the illness or absence of any judge, or for any other temporary purpose, the Governor-General may appoint any person, including a former judge, to be a High Court judge for a term not exceeding 12 months. Any person so appointed may be reappointed, but no judge may hold office under section 11 for more than two years in the aggregate.

7.15Section 11A, which is headed “acting judges”, then provides that the Governor-General may appoint any former judge to be an acting High Court judge for a term not exceeding two years, or one year if the former judge has attained the age of 72 years. No person can be appointed a temporary or acting High Court judge unless both the Chief Justice and the Chief High Court Judge have certified that, in their opinion, it is necessary for the “due conduct” of the court’s business.

7.16Acting District Court judges may be appointed under section 10 of the District Courts Act 1947. A person (including a judge), who has attained the age of 70 years may be appointed for a period of up to one year, or for two or more periods not exceeding four years in the aggregate. Section 10A deals with acting retired judges, and provides that each appointment may not exceed two years, or one year if the person has attained 72 years.

7.17There is no provision for acting judges in the Court of Appeal, but former judges of the Supreme Court and Court of Appeal can be appointed as acting judges in the Supreme Court under section 23 of the Supreme Court Act 2003.

7.18The legislative provisions relating to acting judges therefore provide for varying periods of appointment depending on whether a judge is a temporary or an acting judge, have different provisions regarding reappointments, and different provisions around the ages of retired acting judges in the various courts.

7.19We discussed in Issues Paper 29 how the use of acting judges may threaten the independence and impartiality of the judiciary in that they may be perceived as being more inclined to make decisions favourable to the Executive in order to secure reappointment as an acting judge.92  In Issues Paper 29, the Commission said, as a matter of fundamental principle, we incline to the view that judicial appointments in New Zealand should normally only be permanent, and that resort should not be made to acting or temporary appointments merely to make up the numbers because of a failure of government to appoint sufficient permanent judges.93  We said some exceptions may have to be entertained to cope with unexpected absences or extended illnesses, but acting appointments should be avoided.

7.20We were provisionally of the view there should be a generic legislative provision providing for acting judges, rather than both temporary and acting judges, and that the statute should restrict the appointment of acting judges to situations where there is a temporary illness or absence of any judge, and where the Chief Justice or the Chief District Court Judge (as appropriate) has certified that the appointment is necessary for the proper conduct of the business of the relevant court.

7.21We also proposed the age and term requirements be standardised, and that only former judges under the age of 75 years should be eligible for appointment. We suggested appointment should be for a specified term of up to two years, with reappointment for a further one or more terms possible until a judge reaches the age of 75, with an acting judge’s term of appointment to not exceed a maximum of five years in aggregate.

7.22Finally, we also said provision should be made for the appointment of acting judges in the Court of Appeal, and that, despite the understandable concerns raised by commentators, it is difficult to see how the necessity to have the ability to resort to acting judges in the Supreme Court can be avoided.

7.23The Commission sought views on whether acting judges should be permitted, and if so, to what benches, and on what terms.

Submissions

7.24In their submission, the Senior Courts’ judges sought to explain the difference between acting and temporary judges, which is not clear on the face of the Judicature Act 1908 provisions, in the following terms:

Acting judges are appointed to meet specific needs, and work only when called upon to do so by the Chief High Court Judge. They are paid only for the period they are actually working. Temporary judges are temporary full-time appointments and are paid for the period of their service on the same basis as full-time judges.

7.25The judges said they did not see anything in these sections that requires amendment. Nor did they accept there is any substantive basis for concern about temporary judges or acting judges of the High Court, given the protection provided by the existing section 11B, which prevents the appointment of a temporary or acting judge unless the Chief Justice and Chief High Court Judge certify as to the operational necessity for the appointment.

7.26The Senior Courts’ judges agreed with the Commission that provision should be made for former judges of the Court of Appeal to be appointed as acting judges of that Court, subject to similar provisions as apply to former judges acting as judges of the Supreme Court.

7.27The New Zealand Bar Association agreed with the Commission that only former judges should be eligible for appointment as an acting judge, and that there is no good reason why there should not be acting judges in the Court of Appeal.

7.28The Chief District Court Judge disagreed with the Commission that acting judges should only be appointed where unavoidable or to cover temporary illness or unexpected absence, unless there is first established a reasonable number of permanent judges sufficient to ordinarily conduct the work of the Court, including leave and administrative functions required of the District Court Bench.

7.29The Chief District Court Judge said that while agreeing that from a constitutional standpoint appointment on a permanent basis gives a greater appearance of judicial independence, the simple truth is the District Courts cannot get through their workload without the assistance of acting judges. Her Honour made the important point that not getting through the workload in this context is a failure to deliver justice to New Zealanders. She also provided the following useful information on the work of District Court Judges:

On average, the District Courts dispose of 248,421 cases and applications annually, with an average 85,000 support sitting hours. This workload is handled by 133 full time District Court Judges. Though the total number of District Court Judges is 148, 16 have special duties and are not available to sit on the core business of the District Courts (criminal summary, jury, civil), Family Courts and Youth Courts. Those 16 include: those appointed to the Environment Court, Employment Court, Immigration and Protection Tribunal, the ACC Appeals District Court Registry; those seconded to the Supreme Court of Vanuatu; and the Chief District Court Judge, Principal Family Court Judge, and Principal Youth Court Judge, who have extensive administrative responsibilities.

In addition, those 133 judges are not available 100% of the time. A number have additional responsibilities outside of the core work of the District Courts, as legislation requires several boards and tribunals to be chaired by District Court Judges. These include the Parole Board, Land Valuation Tribunal, and Tax Review Authority. Each Judge also qualifies for long service leave every five years.

Looking to the future, from 2017 an increasing number of District Court Judges will reach the mandatory retirement age. If not replaced by permanent judges, the only possible way to get through the workload will be to use acting judges.

Given this, the ready availability of acting judges is crucial to the ability of the District Courts to deliver justice in a timely fashion. If the use of acting judges were restricted, there would be a smaller pool of judges to get through the same workload. The inevitable outcome is delaying disposing of cases and applications. The Judges of the District Courts see this as a greater concern than the concerns about impartiality and independence raised in the Issues Paper.

For clarity, it should be mentioned that of the 32 acting judges of the District Court, four sit exclusively on the Parole Board and one exclusively on the Liquor Licensing Authority. This relieves permanent Judges of these extra responsibilities to allow focus on the District Court’s core work. Furthermore, acting judges are specifically warranted to sit in either jury, general, family or civil cases. A number of acting judges is needed to ensure coverage across all of these practice areas.

Commission’s view

7.30Although the position of an acting judge was held lawful in Wikio v Attorney-General,94  in light of the potential difficulties associated with acting judicial appointments discussed in Issues Paper 29,95  the Commission still considers their use should be minimised to the extent possible. The highest priority for achieving this is for the government to re-examine the level of the statutory cap on District Court judges in section 5 of the District Courts Act 1947, and to appoint a sufficient number of permanent judges so the District Courts can function effectively. If acting judges are currently being appointed as a necessity, an increase in the number of permanent judges will decrease the number of acting appointments, and therefore seems unlikely to have major fiscal implications (although there would be some increased costs for allowances).

7.31The Commission remains of the view that there is no need for a distinction between acting and temporary judges, and that there should be clear and consistent provisions governing the appointment and conditions of acting judges across the District Courts and all courts. Only retired judges aged less than 75 years should be eligible for appointment as an acting judge, as only persons with judicial experience can realistically be expected to cover the work of another judge. In addition to situations of temporary absence or illness, the provision should enable the appointment of acting judges to cover the work of judges who hold other office by virtue of their appointment as a judge.

7.32For the Senior Courts, the Chief Justice should be required to certify that the appointment of an acting judge is necessary for the proper conduct of the court in respect of which the appointment is to be made. The Chief District Court Judge should be required to do the same in the case of an appointment of an acting District Court judge or an acting judge of any division of the District Courts.

R28The statutory number of District Court judges should be reconsidered, and adjusted if necessary, to better reflect the District Courts’ workload, and to minimise the need for acting judges in the District Courts.

R29An acting judge should only be appointed during the illness or absence of any judge, or for any other temporary purpose, or to fill an office required to be held by a judge.

R30The appointment of an acting judge should only be made on the certification by the Chief Justice or Chief District Court Judge (as appropriate) that the appointment is necessary for the proper conduct of the court in respect of which the appointment is to be made.

R31Only former judges under the age of 75 years should be eligible for appointment as an acting judge.

R32Appointment as an acting judge should be for a specified period of up to two years.

R33 Reappointment as an acting judge should be possible, for a maximum of five years in total.

91Review of the Judicature Act 1908: Towards a consolidated Courts Act , above n 89, at [3.55].
92At [3.65].
93At [3.71].
94Wikio v Attorney-General (2008) 8 HRNZ 544 (HC).
95Review of the Judicature Act 1908: Towards a consolidated Courts Act , above n 89, at 30-34.