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JUDICIAL APPOINTMENTS: OFFICE OF ASSOCIATE JUDGE OF THE HIGH COURT
Foreword by the Attorney-General
The appointment process for Associate Judges of the High Court
The Attorney-General's Judicial Appointments Unit
Foreword by the Attorney-General
Making recommendations to the Governor-General for the appointment of Judges, Associate Judges and other judicial officers is a most important responsibility. I see that responsibility as requiring the selection of a judiciary that will be independent in exercising its functions, which will decide issues according to the law, and which will be aware of, and sensitive to, the broad dimensions of our society. Recognising the importance of this task and the public interest in the appointments processes, the procedures for all judicial appointments have been formalized.
The guiding principles for the procedures are as follows:
(i) Clear and publicly identified processes for selection and appointment;
(ii) Clear and publicly identified criteria against which persons considered are assessed;
(iii) Clear and publicly identified opportunities for expressing an interest in appointment;
(iv) A commitment to actively promoting diversity in the judiciary without compromising the principle of merit selection;
(v) Advertising for expressions of interest, recognising that selection should not always be limited to those who have expressed interest;
(vi) Maintaining, on a confidential database, a register of persons interested in appointment.
These principles are intended to ensure that New Zealand continues to be well-served by the judiciary and to ensure transparency in the processes.
This information explains the process which will now apply to appointments to the office of Associate Judge of the High Court.
Hon Margaret Wilson
Attorney-General
This booklet sets out the process for making appointments of Associate Judges of the High Court. It is intended to provide information and guidance to those interested in appointment.
To provide some context for the process brief reference is made to New Zealand's constitutional arrangements as they affect the role of the judiciary, and to aspects of judicial appointment processes in general.
The separation of powers between the legislature, executive, and judiciary is a fundamental principle of democratic governments such as that of New Zealand. Each branch of government has a role in balancing the power of the other two branches. For instance, the judiciary examine the actions of the executive through the process of judicial review. Conversely, the executive is principally involved in the selection of Judges, and both the executive and Parliament would be involved in the dismissal of Judges in the event of misconduct.
The constitutional importance of appointments to the judiciary reflects the two essential functions of the courts, namely, to settle disputes between citizens and the state (or between two individuals), and in doing so, to clarify and declare the law of New Zealand.
The independence of the judiciary is an important element of New Zealand's constitutional arrangements. The essential element of the principle of judicial independence is that members of the judiciary should be able to decide matters according to law free of all inappropriate pressures. This constitutional principle is reflected for Court of Appeal and High Court Judges in the Constitution Act 1986, and has general application in other laws and conventions.
New Zealand has a hierarchy of courts. The Privy Council is the highest court, followed by the Court of Appeal, the High Court, and finally the District Court which has some specialist divisions. The Employment Court is a separate, specialist court.
The Court of Appeal
The Court of Appeal consists of the Chief Justice, and seven other Judges, one of whom is appointed as President. Judges of the Court of Appeal are also Judges of the High Court. Additional High Court Judges may be nominated to sit on divisions of the Court of Appeal. Appointments to the Court of Appeal are made under the Judicature Act 1908.
The High Court
The High Court consists of the Chief Justice and 37 other Judges. (This number includes the Judges of the Court of Appeal). There are up to six Associate Judges who can exercise certain powers specified in the High Court Rules. High Court Judges and Associate Judges are appointed under the Judicature Act 1908.
The District Court
District Courts are presided over by District Court Judges. District Court Judges are appointed under the District Courts Act 1947. There are 123 District Court Judges.
The Family Court and the Youth Court are divisions of the District Court. Family Court Judges are District Court Judges who, by reason of their training, experience and personality, are deemed suitable to deal with matters of family law. They are appointed under the Family Courts Act 1980.
Youth Court Judges are District Court Judges who, by reason of their training, experience, personality and understanding of the significance and importance of different cultural perspectives and values, are deemed suitable to deal with matters to do with youth justice. They are designated as Youth Court Judges by the Chief District Court Judge under the Children, Young Persons and Their Families Act 1989.
The Employment Court
The Employment Court is constituted under the Employment Relations Act 2000. The Court consists of the Chief Judge of the Employment Court and at least two other judges.
The Environment Court
The Environment Court is constituted under the Resource Management Act 1991. The Court consists of not more than eight Environment Judges and a number of Environment Commissioners. Environment Judges are District Court Judges, appointed as Environment Judges under the Resource Management Act 1991.
Community Magistrates
Community Magistrates are appointed under the District Courts Act 1947. They are members of the community who are selected by reason of their personal qualities, experience and skills to hear minor criminal cases in the District Court. They can impose a range of sentences, but do not have the power to imprison offenders.
Community Magistrates cannot at the time of their appointment be a practising lawyer or be concurrently working in the justice sector.
Appointments to most of the judicial positions described above are made by the Governor-General on the recommendation of the Attorney-General. Present exceptions are Environment Judges and Community Magistrates. Until amendments to the Resource Management Act and the District Courts Act are made, these appointments will continue to be made on the recommendation of the Minister of Justice. In making appointments to the Environment Court, the Minister of Justice must consult with the Minister for the Environment and the Minister of MāoriAffairs. Appointments to the MāoriLand Court and the MāoriAppellate Court are made by the Governor-General on the recommendation of the Minister of MāoriAffairs.
The Attorney-General places great importance on maintaining the quality and integrity of the judiciary. Appointments are made on the basis of merit. There is a commitment to actively promoting diversity in the judiciary, taking into account all appropriate attributes. Putting the responsibility for all these appointments in the hands of the Attorney-General is intended to help to ensure a consistent and principled approach to these important decisions. In the case of appointments to the Court of Appeal and the High Court (Judges and Associate Judges), the administrative process is carried out under the direction of the Solicitor-General. For appointments at the District Court level and the Employment Court, the process is carried out under the direction of the Secretary for Justice.
With the objective of ensuring greater transparency in the process, advertising for expressions of interest in judicial positions is carried out at all levels except the Court of Appeal.
The appointment process for Associate Judges of the High Court
Section 26C(3) of the Judicature Act 1908 specifies that no person shall be appointed a Associate Judge unless he or she has held a practising certificate as a barrister or solicitor for at least seven years.
The importance of the judicial role makes it vital that those who become Associate Judges are suitable to hold that office. The suitability of prospective candidates is assessed by reference to a range of clearly defined, transparent and publicly announced criteria. The criteria cover legal ability, qualities of character, personal technical skills and reflection of society.
- Legal Ability: Legal ability includes a sound knowledge of the law and experience of its application, including an understanding of the High Court Rules and procedures. Requisite applied experience may be derived from practice of law before the courts or as a member of a legal tribunal, both of which are of direct relevance to being a Associate Judge.
- Qualities of character: Personal qualities of character include personal honesty and integrity, open mindedness and impartiality, courtesy, patience and social sensitivity, good judgement and common sense, the ability to work hard, to listen and concentrate, collegiality, breadth of vision, independence, and acceptance of public scrutiny.
- Personal technical skills: There are certain personal skills that are important, including skills of effective oral communication with lay people as well as lawyers. The ability to absorb and analyse complex and competing factual and legal material is necessary. The quality particularly sought in a Associate Judge is a flair for disposing expeditiously with interlocutory matters and other matters that fall within the Associate Judges' jurisdiction.
- Reflection of society: This is the quality of being a person who is aware of, and sensitive to, the diversity of modern New Zealand society. It is very important that the judiciary comprise those with experience of the community of which the court is part and who clearly demonstrate their social awareness. The Report of the Royal Commission on the Courts in 1978 put the point as the need for "a good knowledge, acquired by experience, of New Zealand life, customs and values". (p 199).
The steps in the appointment process for Associate Judges of the High Court are as follows:
1. Expressions of interest are called for by public advertisement. While each vacancy is not advertised, general advertisements for Associate Judges appear from time to time.
2. Prospective candidates respond to the request for expressions of interest. Alternatively, as a result of the consultation process described below, prospective candidates may be nominated, invited to express their interest and to enter the process. All prospective candidates are provided with an Expression of Interest form for completion.
3. The names of those who meet the statutory criterion for appointment are held on a confidential register maintained by the Attorney-General's Appointments Unit (the Appointments Unit). Persons expressing interest are advised when their names have been registered.
4. As and when required, the Appointments Unit uses the register to identify all those who have indicated an interest in appointment to the location of the court where the vacancy is. The Solicitor-General reviews the names and consults the Attorney-General, the President of the Court of Appeal, the Chief Justice and the Secretary for Justice. The purpose of this consultation is to ascertain whether additional names should be considered and added to the list.
5. The Solicitor-General seeks comments about those on the list from a range of key people and organisations. Those consulted are listed below.
6. The Solicitor-General presents the longlist to the Attorney-General. The Solicitor-General's advice includes the results of his or her consultation process.
7. The Attorney-General, after such consultation as he or she believes necessary, decides who should be shortlisted for appointment and who heads it. The Attorney-General may decide to interview, or arrange for an interview by the Solicitor-General of, a person interested in appointment to the High Court.
8. The Solicitor-General undertakes checks on the personal reputation of those on the shortlist. The Solicitor-General also asks prospective candidates to complete a questionnaire intended to confirm that there are no matters in their background of a sort that might cause difficulties after appointment.
9. Once the Attorney-General is satisfied as to the suitability of the preferred candidate, and his or her willingness to accept the appointment, the Attorney-General mentions the appointment in Cabinet. Finally the Attorney tenders formal advice to the Governor-General to make the appointment.
A range of groups and people are contacted at various stages in the appointment process. The Attorney-General regards the knowledge, experience and judgement of the professional legal community as a very good source of informed opinion on the relative merits of prospective candidates. They are prominent among those consulted accordingly. The intention is to ensure a sufficiently broad perspective is obtained as to prospective candidates.
At the nomination stage, the list of parties who may be contacted includes the Chief Justice, the President of the Court of Appeal, the Secretary for Justice, the President of the Law Commission, the New Zealand Bar Association, the President of the New Zealand Law Society and other organisations or groups representative of lawyers who the Attorney-General believes can contribute names of suitable persons. Such groups may include the Women's Consultative Group of the New Zealand Law Society, the District Law Societies, the Criminal Bar Association, the MāoriLaw Society and women lawyers' associations.
Nominations are sought from the Minister of Justice, the Minister of Women's Affairs and the Minister of MāoriAffairs. Nominations may also be sought from the Chair of the Justice and Law Reform Select Committee and the Opposition Spokespersons for the Attorney-General portfolio.
In seeking comment on persons who have expressed interest, the Solicitor-General will consult the Chief Justice, the President of the Court of Appeal, the New Zealand Law Society, the New Zealand Bar Association and others as appropriate.
Persons interested in appointment as a Associate Judge of the High Court, whether or not currently holding judicial office, are asked to complete an Expression of Interest form and provide a curriculum vitae. At the shortlisting stage prospective applicants are also asked to complete a questionnaire.
Expression of Interest form
The Expression of Interest form is a formal document. It seeks a variety of personal and professional information such as a brief description of the person's legal experience, career highlights and any publications. It also seeks the person's consent to the information being conveyed as necessary to those consulted during the appointment process. Information contained in the Expression of Interest form is intended to supplement the more detailed and extensive career history in the curriculum vitae. The form provides prospective candidates with the opportunity to highlight experience of particular relevance to the criteria on which appointments are made.
Curriculum vitae
Persons interested in appointment are also asked to provide a curriculum vitae so that more detail about their legal career, including a full work history, is available together with any relevant experience outside the law.
Questionnaire
Prospective candidates whom the Attorney-General has selected for a shortlist are asked to complete and sign a separate questionnaire intended to confirm that there are no matters in their background of a sort that might cause difficulties after appointment.
Storage of information: prior to appointment
Details of all prospective candidates who meet the statutory requirement for appointment are placed on the register.
Information is held on the register for five years, unless prospective candidates request otherwise. Prospective candidates can ask for their names to be removed from the register at any time. At regular intervals prospective candidates will be contacted and asked to update their personal information. If there is no response to this request, the relevant records will be removed from the register.
All information is treated confidentially and held securely in the Appointments Unit. Every attempt is made to ensure any data held is complete and correct. In accordance with information privacy principles, the purposes for which the information is collected and used is made clear to prospective candidates at the time the information is collected.
The information held on the register is kept confidential and access is available only to those directly involved in the relevant appointment process. Prospective candidates may request to see the information held about them on the register at any time. However, comments made by other people on the prospective candidate's suitability may not be available, if the comments were subject to an obligation of confidentiality as will often be the case. Information on the register may be available under the Official Information Act 1982 but only if special public interest considerations apply.
Storage of information: after an appointment is made
When an appointment is made, the information on the register is deleted. The appointee's name, date of birth and ethnicity remain but no other details. Such papers as are required for judicial administrative purposes are transferred to the Chief Justice. All other paper records are transferred to the Solicitor-General, who is personally responsible for the safekeeping of the files.
The Attorney-General's Judicial Appointments Unit
The Appointments Unit was set up specifically to handle expressions of interest in judicial appointments with the highest degree of confidentiality and security. The Appointments Unit is attached to the Ministry of Justice, but its records are held separately from those of the Ministry. The Appointments Unit has its own telephone and facsimile numbers and postal address.
The role of the Appointments Unit is to provide administrative assistance throughout the appointments process.
Contact details for the Unit are:
The Judicial Appointments Officer
The Attorney-General's Judicial Appointments Unit
PO Box 280
WELLINGTON
Telephone: 04-473-3890 or 0800 473 389
Facsimile: 04-473-3891
Information first published November 2001
Revised May 2003