Contents

Chapter 7
Part-time and
acting judges

Part-time judges

7.2Section 4C(1) of the Judicature Act 1908 provides that a judge of the High Court acts “on a full time basis” unless that judge is authorised by the Attorney-General to act on a part-time basis for any specified period. A judge authorised to act on a part-time basis must resume acting on a full-time basis at the end of the specified period. An authorisation to work part-time can be made from the inception of appointment as a judge, and may be made more than once in respect of the same judge. The authorisation may occur only on the request of the judge and with the concurrence of the Chief High Court Judge, who must have regard to the ability of the court to discharge its obligations in an “orderly and expeditious way”. There is an equivalent provision in the District Courts Act 1947.88

7.3Section 4C(8) of the 1908 Act provides that an authorisation under section 4C(1) may not apply to a judge of the Court of Appeal or Supreme Court, although section 57A enables Court of Appeal judges to act on a part-time basis if authorised by the Attorney-General to do so.

Issues Paper 29

7.4In Issues Paper 29, the Commission indicated its preliminary view that High Court and Court of Appeal judges should be treated the same with regard to part-time appointments, and sought views on this.89  The Commission noted that, in practice, part-time appointments are generally sought by persons with family responsibilities, who cannot work full-time, or by an able judge who has served many years but who may wish to “scale down” his or her involvement prior to retirement. A judge might, for instance, serve 15 years full-time, but wish to serve the remaining five years of a 20 year judicial career part-time.

7.5The Commission said there may be sound social and professional reasons for enabling this to occur, but that the current legislation requires a part-time appointee to resume full-time work at the end of the specified part-time period (although there is an ability to be appointed for further part-time periods, so the system could be operated in such a way as to allow a judge effectively to continue a part-time appointment if that judge did even one week full time in between part-time appointments). We said the legislation should provide more flexibility in this regard, to enable an older judge to work reduced hours for a period of up to five years before retirement.

Views of submitters

7.6The Senior Courts’ judges do not support having part-time judges in either the Court of Appeal or the Supreme Court, and pointed out that the existing provision for part-time judges in the Court of Appeal has never been used. The Senior Courts’ judges said the provision for part-time appointments was made to increase diversity in the judiciary, especially by enabling those with family responsibilities to accept judicial appointment with a reduced level of commitment for a period, and this need is less likely to arise in relation to appointments to appellate courts because of the age at which such appointments are made. In the judges’ view, the presence of a part-time judge would provide significant practical difficulties for courts which are small and which function best if they can operate collegially.

7.7The Senior Courts’ judges also do not support changes to enable judges to take on a reduced load towards the end of their careers. They said the provision for part-time judges was principally aimed at making judicial office attractive to those with family responsibilities that prevented them in the short- or medium-term from full-time engagement:

While [part-time appointments later in a judge’s career] may prolong some judicial careers, it would do so at the expense of the practical problems arising from the presence of part-time judges and at the risk that those who partially disengage with no intention of full re-engagement will not perform at their highest level.

7.8This view contrasts with that of the former Chief District Court Judge, the late Judge Johnson, who in consultation discussions with the Law Commission was firmly of the view it should be possible for older judges, in the District Courts at least, to scale down their workload prior to retiring.

7.9The Human Rights Commission submitted that while family responsibilities are arguably not the sole reason for the absence of women from the judiciary, they must contribute to it in part. It said allowing part-time judges in the Court of Appeal would clearly go some way towards encouraging more women (and men with family responsibilities) to the Bench. It also pointed out allowing part-time work in the Senior Courts would not be unique to New Zealand, and that the House of Lords Constitution Committee recently recommended flexible working conditions should be more widely available as a way of encouraging applications for judicial appointment from women and others with caring responsibilities.

7.10The New Zealand Law Society said it could see no reason why part-time appointments should not be permitted in the Court of Appeal.

Commission’s view

7.11The Commission remains of the view that new courts legislation should enable the appointment of part-time judges to all courts below the Supreme Court.90

7.12We think the legislation should enable flexibility so judges are able to work part-time at any point during their tenure, at the request of the judge, and with the consent of the Attorney-General and the relevant Head of Bench. Caring responsibilities are not confined to a set time in a person’s life, and other life events may also make it desirable for a judge to be able to work part-time for a period. Although enabling part-time judicial work in the five years leading up to retirement may be more suitable for judges in the District Courts than the Senior Courts, the Commission considers it should be possible in any of the courts in which part-time work is permitted. The requirement for permission from the Attorney-General and the relevant Head of Bench means that part-time appointments will only occur when the appointment can be managed effectively.

R25 New courts legislation should enable part-time judicial appointments for a specified period in all courts below the Supreme Court.

R26There should be flexibility to enable a judge to work part-time for a specified period up of to five years prior to retirement in all courts below the Supreme Court.

R27Part-time appointments should only be made with the agreement of the Attorney-General and the relevant Head of Bench.

88Section 5AA.
89Law Commission Review of the Judicature Act 1908: Towards a consolidated Courts Act (NZLC IP29, 2012) at [3.41].
90As alluded to in Issues Paper 29, the limited number of Supreme Court judges, and the quorum requirements there, would make part-time appointments to that court impractical from an operational perspective.