Chapter 3 - Judicial appointments

Acting judges

The appointment of acting or temporary judges has long been a contentious matter in many jurisdictions. Some jurisdictions preclude them altogether. In Australia, for instance, acting appointments are not permitted at the Federal level.77

In New Zealand, there is a real mix of provisions. Section 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. Curiously, section 11A, which is headed “former 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.

Acting 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 2 years, or one year if the person has attained 72 years.

There 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.

The legislative provisions relating to acting judges therefore provide for different 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 different courts. The provisions relating to acting heads of bench also differ.78

In considering these provisions, it is necessary to ask, why do we have them at all? Acting or temporary judges could serve several purposes. First, there may be temporary exigencies (such as illness) in a given bench. Second, an acting appointment might be considered to provide a training ground to determine whether the judge is suitable for permanent appointment. Third, acting appointments might functionally ease the judicial workload of a particular bench.

The training ground rationale, so far as we are aware, has not been resorted to in New Zealand, although we understand that people soon to be appointed as permanent judges may be appointed as temporary judges until there is a vacancy for a permanent judge. Sometimes, because of local exigencies, an acting judge has been appointed. It is impossible to provide a template for these. Illness might intrude, or a judge might be appointed to an inquiry, or be unavailable for other reasons.

It is fair to say that acting judges have most commonly been appointed because of insufficient permanent judges to get through the workload. Those appointed for this sort of reason have usually reached the statutory retirement age for judges of 70 years. In effect, they are given an extension of their judicial term, for a relatively short, but renewable, period. Broadly speaking, these extensions are confined to a period of one to four years.

The courts rely on the use of acting judges. It has been suggested to us that the District Courts, in particular, could not presently get through their workload without the assistance of acting judges. In the High Court, we understand that in recent years as many as six High Court judges (approximately one-sixth of the High Court bench) have held acting warrants.

This can create real anomalies. A judge who retires on a full pension under the pre-1992 judges’ scheme can become an acting judge under the new scheme and in effect receive a salary plus what some might see as double retirement support. Of course, with the passage of time that possibility will fade away, but, particularly with District Court judges being appointed at a younger age today, the possibility of acting appointments on top of a normal full term of judicial service could numerically increase.

There is also a danger, routinely rehearsed in the academic literature, that judges approaching the retirement age could make decisions favourable to the government in order to secure an acting appointment. The Court of Appeal noted in R v Te Kahu that the appointment of temporary sheriffs in Scotland failed the requirement of an independent and impartial tribunal required by Scots law, which had incorporated the European Convention on Human Rights.79  Also, the Supreme Court of Canada has held that the use of acting judges in the Ontario Provincial Court (being former judges appointed to serve “during pleasure”) was inconsistent with the requirement for an independent judiciary provided for in the Canadian Charter of Rights and Freedoms.80

The renewable nature of fixed term warrants exacerbates matters. Given that the renewable tenure is normally one or two years, it can be said that it is only marginally removed from tenure at pleasure.

In Forge v ASIC, the High Court of Australia held by a majority that the appointment of acting judges at State level would not deprive the particular court of the description of a “court”.81  The majority saw the institutional integrity of such courts as not being inevitably compromised by the appointment of an acting judge.

In dissent, Kirby J skilfully assembled the arguments with respect to the inappropriateness of a significant shift of the judiciary from permanent tenure judges to acting judges as being threatening to the independence and impartiality of the judiciary. Nor, he thought, is the exclusive appointment of retired judges the answer: it merely reduces the institutional affront.

His concerns were that extensions for retired judges are dependent on the will of the Executive; some retired judges because of their desire for continuation in office are in some sense beholden to the will of the Executive; and some acting judges in Australia at least have mixed intervals of judicial service with private professional activities. Further, acting judges tend to lack staffing, full personal benefits and the institutional resources of permanent judges. In practice, they tend to play a more limited role in the court when compared with permanent judges. Overall, there is a concern over the breakdown in judicial culture of an exclusive, dedicated, tenured service.

Depending on the method of selection, the use of acting judges may also create a risk of particular judges being appointed to influence the outcome of a decision.82

As a matter of fundamental principle, we incline to the view that judicial appointments in New Zealand should normally only be permanent. 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. Some exceptions may have to be entertained to cope with unexpected absences or extended illnesses, but acting appointments should generally be avoided. We are also provisionally of the view that there should be a generic legislative provision providing for acting judges, rather than both temporary and acting judges.

To minimise the use of acting judges, 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 (depending, respectively, on whether it is a superior or inferior court appointment) has certified that the appointment is necessary for the proper conduct of the business of the relevant court.

The age and term requirements should also be standardised. In our view, only former judges under the age of 75 years should be eligible for appointment. We do not see how a person without experience as a judge can seriously be expected to step in as an acting judge, and a person who is about to be appointed as a permanent judge should be appointed as such, rather than as an acting or temporary judge until there is an actual vacancy.

An appointment should be for a specified term of up to two years. Reappointment for a further one or more terms should also be possible until a judge reaches the age of 75, but an acting judge’s term of appointment should not exceed five years in aggregate.

Another issue of principle is whether the Court of Appeal should be treated differently from the trial courts. It seems odd that there is no provision enabling the appointment of acting judges to the Court of Appeal, although it does get assistance through having members of the High Court judiciary included in the divisional courts of the Court of Appeal.

Previously, acting judges could be appointed to the Court of Appeal, and it is hard to see why, as a matter of principle, the same sort of exigencies that might occur in other courts might not also occur in the Court of Appeal. We are provisionally of the view that the Court of Appeal should be included in a generic provision for acting judges.

Having acting judges in the Supreme Court may be considered problematic, as it is a final court, but the Court’s constitution necessitates such appointments. There must be at least five, but can be six, judges appointed to the Supreme Court.83 For the purposes of the hearing and determination of an appeal, the Court must comprise five judges.84 For almost all of its history the Court has only had five judges, but sometimes a sixth has been appointed for a short period in anticipation of a retirement. Therefore, if there are only five judges and one of them has to recuse (stand down) for a conflict of interest or other good and sufficient reasons, the quorum then falls below the statutory minimum of the court.

Section 23 of the Supreme Court Act 2003, therefore, enables the Governor-General to appoint retired judges of the Supreme Court or Court of Appeal, who have not yet reached the age of 75 years, as acting judges. Under this provision, for instance, the Rt Hon Sir Thomas Gault and the Hon Sir Noel Anderson have been acting judges and able to assist the court as and when required.

Although the administration could overcome the difficulty by ensuring that there are always six permanent members of the Court, the practicality of this would depend on other factors such as the Court’s workload.

Alternatively, the legislation could enable the Supreme Court to sit with a quorum of four judges, but that is an awkward solution because it may result in a split court.85

The third alternative is to retain provision for acting judges. With regard to who those judges are to be, there seems to be no real danger in New Zealand in resorting to retired Supreme Court judges, as we understand that acting judges are not “cherry-picked”; rather, cases are allocated on a rotational basis from those acting judges who are available.

Finally, it has been suggested that the acting judge to be resorted to should be the most senior non-conflicted Court of Appeal judge.86  However, we consider that this will likely give rise to practical difficulty, as the senior Court of Appeal judges routinely preside in that court, and all the judges in that court preside in Divisional Courts from time to time.

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, even if only intermittently, can ever be avoided. Our preliminary view therefore is that the provision enabling acting judges should apply to the Supreme Court.

Q7

Should acting judges be permitted? If so, to what benches should they be appointed, and on what terms?

Commonwealth of Australia Constitution Act (Cth), s 72.

Compare Supreme Court Act 2003, s 19(1) and (2); Judicature Act 1908, ss 4A(4) and 57(7); District Courts Act 1947, s 5A(4).

R v Te Kahu [2006] 1 NZLR 459 at 470, citing Starrs v Procurator Fiscal (1999) 8 BHRR 1 and Millar v Dickson [2002] 3 All ER 104.

Valente v R [1985] 2 SCR 673.

Forge v ASIC [2006] HCA 44.

Petra Butler “The Assignment of Cases to Judges” (2003) 1 NZJPIL 84.

Supreme Court Act 2003, s 17(1).

Section 27(1).

Section 31 provides that if the judges are equally divided in opinion, the decision appealed from or under review is taken to be affirmed.

Michael Taggart “Acting Judges and the Supreme Court of New Zealand” (2008) 14 Canterbury Law Review 217.