Introduction and summary

Part 2 – Judges

Judicial appointments

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 requirements for judicial appointments in chapter 5.

To address the problem of a lack of transparency regarding appointments to the Senior Courts, we recommend that the courts legislation should require the Attorney-General to publish the procedures for appointment that he or she will follow in each of the Senior Courts, which may reflect the published procedure for District Court appointments.

The courts legislation should also provide that in making appointments to the New Zealand courts, the Attorney-General must be satisfied, before advising the Governor-General on an appointment, that:

(a)the person to be appointed a Judge has been selected on merit, having regard to that person’s –
(i) personal qualities (including integrity, sound judgment, and objectivity); and
(ii) legal abilities (including relevant expertise and experience and appropriate knowledge of the law and its underlying principles);
(iii) social awareness of and sensitivities to tikanga Māori; and
(iv) social awareness of and sensitivities to the other diverse communities in New Zealand; and
(b) regard has been given to the desirability of the judiciary reflecting gender, cultural and ethnic diversity.

Consultation on appointments is also important. We consider the legislation should provide that, before recommending a judicial appointment the Attorney-General must consult:

The Attorney-General should also be empowered to consult such other persons as he or she considers to be appropriate in any given case.

Judicial conflicts of interest

To ensure public confidence in the judiciary, the public must be satisfied that cases are being decided in a manner that is fair and impartial. Chapter 6 discusses judicial conflicts of interest and ways to better avoid and deal with these.

The Commission recommends the amendment of section 4(2A) of the 1908 Act to ensure there is a clear statutory provision in new courts legislation prohibiting all judges (including full-time and appellate judges) from undertaking other employment or acting as a barrister or solicitor, and from holding other office (whether paid or not), unless the Chief Justice, in consultation with the relevant Head of Bench, has approved the other office as being consistent with judicial office. It is important for the public to know what types of activities will likely be considered consistent and inconsistent with judicial office, and the Chief Justice, in consultation with the Heads of Bench, should develop and publish guidelines on this.

We do not think there is any need for the establishment of a register of judges’ pecuniary interests by statute. Although in principle there are arguments in favour of such a register, there are also significant practical difficulties associated with it. In order for such a register to be effective, it would need to contain a level of detail that would, in the Commission’s view, intrude too far on the privacy of judges and their families. It would likely exacerbate existing difficulties in judicial recruitment and risks to judicial safety and security.

Judges are required to recuse themselves because of interests and associations that would not be captured in a pecuniary interests register, and the existence of a register would not relieve a judge from his or her recusal obligations in any particular case. We therefore consider the best way to deal with potential judicial conflicts of interest is to have clear, robust and well-publicised rules and processes for recusal. We recommend there be a statutory requirement for the Heads of Bench, in consultation with the Chief Justice, to develop clear rules and processes for recusal in their courts, based on a common set of principles developed by the judges. These recusal rules and processes should be published in the Gazette and on the internet.

Part-time and acting judges

The legislative provisions concerning part-time and acting judges are discussed in chapter 7.

The Commission recommends that new Courts legislation should continue to enable part-time judicial appointments for a specified period in all courts below the Supreme Court. We also recommend that there be flexibility to enable a judge to work part-time for a specified period of up to five years prior to retirement.

Given the potential risks associated with the use of acting judges, the Commission considers their use should be minimised as far as possible. As the District Courts are currently unable to manage their workloads without the regular use of acting judges, we recommend the statutory cap on the number of District Court judges should be reviewed, and a sufficient number of permanent judges appointed to ensure the District Courts can function effectively.

We propose other changes to the provisions enabling acting judges, including the introduction of requirements for acting judges to be former judges under the age of 75 years, for appointments to be for a specified period of up to two years, and for reappointment to be possible for a maximum of five years in total.

We also recommend a change to section 88A(4) of the Judicature Act 1908 to clarify that a retiring judge should be paid, on an extended term, in the same manner as an acting judge.

Leadership and accountability

Chapter 8 deals with several matters that broadly relate to leadership and accountability in the judiciary.

We make recommendations for the linkages between the Heads of Bench and the Chief Justice to be provided for in legislation, and for changes to the system of appointing acting heads of bench to enable the President of the Court of Appeal, the Chief High Court Judge and the Chief District Court Judge to nominate another judge to act in that judge’s place, as the present system is inflexible and causes practical difficulties.

We also recommend that there be a statutory requirement for the Chief Justice to publish an annual report on the judiciary within six months of the end of the financial year of the Ministry of Justice. We envisage that such a report would contain matters such as an update from each of the Heads of Bench on the conduct of business in their courts, and an overview by the Chief Justice. The Ministry of Justice and the Chief Justice should agree the broad matters to be covered in the annual report. These matters should then be specified in the legislation.

Further recommendations in chapter 8 include statutory recognition of the principle that court officers undertaking judicial or registry functions are not subject to direction by Ministry officials, and a requirement for the publication of a list of reserved judgments for all judges in all courts on the Courts of New Zealand website.

Judicial powers

Two judicial powers – the statutory ability to hold someone in contempt of court and the jurisdiction to make a “wasted costs” order against counsel personally – were considered in Issues Paper 29. These are discussed further in chapter 9.

In respect of the former, we conclude there should be a generic “contempt in the face of the court” provision in a new Courts Act, dealing with all courts and proceedings, and drafted in similar terms to section 365 of the Criminal Procedure Act 2011. A draft provision is attached as Appendix 4.

Regarding the latter, our preliminary view was that there should be a provision in new courts legislation enabling the trial and appellate courts to make a “wasted costs” order against counsel personally, drafted in similar terms to section 364 of the Criminal Procedure Act 2011. While this received some limited support, the majority of submitters disagreed with our proposal. Ultimately, these convinced us that such a provision would not be appropriate in new courts legislation, at least at this stage.