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JUDICIAL APPOINTMENTS: OFFICE OF DISTRICT COURT JUDGE
The appointment process for District Court Judges
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 formalised.
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 applies to appointments to the office
of District Court Judge.
Hon Margaret Wilson
Attorney-General
This booklet sets out the process for making appointments of Judges of the District 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. The Environment Court and Employment Court are separate, specialist courts.
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 and 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 Māori Affairs. Appointments to the Māori Land Court and the Māori Appellate Court are made by the Governor-General on the recommendation of the Minister of Māori Affairs.
The Attorney-General places great importance on maintaining the quality and integrity of the judiciary. 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 Masters), the administrative process is carried out under the direction of the Solicitor-General. For appointments to the District Court, Family Court, Environment Court and 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 District Court Judges
Section 5 of the District Courts Act 1947 specifies that no person shall be appointed a District Court Judge unless he or she has held a practising certificate as a barrister or solicitor for at least seven years. A barrister or solicitor of seven years' standing who was or has been continuously employed in the Department of Justice or Department for Courts for 10 years and for at least seven years as Clerk or Registrar of a Court also qualifies.
The constitutional importance of the judicial role, and the fact that Judges have to make decisions which significantly affect the liberties and rights of citizens, make it vital that those who become 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. Requisite applied experience is often derived from practice of law before the courts which is experience of direct relevance to being a Judge. But application of legal knowledge in other branches of legal practice, such as in an academic environment, public service or as a member of a legal tribunal may all qualify. More important than where legal knowledge and experience in application is derived from, is the overall high quality of a person as a lawyer demonstrated in a relevant legal occupation.
- 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. Mental agility, administrative and organisational skills are valuable as is the capacity to be forceful when necessary and to maintain charge and control of a court.
- 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 District Court Judges are as follows:
1. Expressions of interest are called for by public advertisement. While each vacancy is not advertised, general advertisements for District Court 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 criteria 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 vacancies arise those who have expressed interest in the jurisdiction and location of the vacancy are identified and assessed by the interview panel (see below) against the criteria for appointment. In arriving at a proposed shortlist the Chief District Court Judge consults with other Judges, in particular the Executive Judges.
5. A proposed shortlist is submitted to the Attorney-General for approval. The Attorney-General, after such consultation as he or she believes necessary, decides who should be on the shortlist for interview. Those approved are interviewed.
6. Following the interviews referee checks are carried out and the President of the Law Society is consulted. (Law Society consultation may follow consideration by the Attorney-General.)
7. The panel reports on the interviews and the results of their checks to the Attorney-General, who may choose to interview candidates. The Attorney-General selects the candidate(s) for appointment, mentions the appointment in Cabinet and tenders formal advice to the Governor-General.
The interview panel
The interview panel is the Chief District Court Judge and the Secretary for Justice (who may delegate this role to a senior manager). With the prior approval of the Attorney-General another Judge (usually the relevant Executive Judge) may also sit on the panel. For the Family Court and the Environment Court the Principal Family Court Judge or the Principal Environment Judge (as appropriate) will either substitute for the Chief District Court Judge or sit on the panel as an additional member.
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 President of the Law Commission, 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 District Law Societies, the New Zealand Bar Association, the Criminal Bar Association, and, in the interests of increasing diversity, the Women's Consultative Group of the New Zealand Law Society, the Māori Law Society and women lawyers' associations. Nominations may also be sought from the Minister of Justice, the Chair of the Justice and Law Reform Select Committee and the Opposition Spokespersons for the Attorney-General portfolio.
Persons interested in appointment as a District Court Judge are asked to complete an Expression of Interest form and to provide a curriculum vitae. Candidates selected for interview are asked to provide information on their health status and financial security.
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. 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 material in the curriculum vitae. The form is also intended to provide an opportunity to highlight experience which is considered to be of particular relevance to the criteria on which appointments are made.
Statutory declaration
The Expression of Interest form includes a statutory declaration as to convictions, disciplinary action, bankruptcy, tax status, etc as well as an undertaking not to resume practice before the Courts on retirement or earlier termination of appointment.
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. Candidates selected for interview are asked to update their curriculum vitae if necessary.
Storage of information: prior to appointment
Details of all prospective candidates who meet the statutory requirement for appointment are placed on the judicial appointments 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. After five years prospective candidates are 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 District Court Judge. All other paper records are transferred to the Secretary for Justice, 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
First published June 1997
Revised May 2003