Chapter 3 - Judicial appointments

Advice to the Governor-General

The Governor-General does not act on his or her own initiative. Somebody who is lawfully empowered to do so has to advise the Governor-General on the particular individual recommended for appointment so the actual appointment can be made. What is difficult, and has caused controversy from time to time, is the process leading up to that recommendation and whether there should be articulated criteria for appointment.

Under the present New Zealand regime, by convention the Prime Minister makes the recommendation to the Governor-General for the office of Chief Justice of New Zealand. This seems appropriate, given the constitutional significance of that office. Not only is the Chief Justice the Head of Bench in the Supreme Court of New Zealand, he or she is also the head of the New Zealand judiciary.59 Further, the Chief Justice is Administrator of the Government when the Governor-General is overseas or unable to perform that office,60 and it is the Prime Minister who recommends the appointment of the Governor-General to the Sovereign.

For all other judicial appointments, the Attorney-General advises the Governor-General. This appears to us to be sound. Apart from anything else, the Attorney-General is the Senior Law Officer in New Zealand, with a particular responsibility to advise the Executive with respect to matters affecting the judiciary.

Appointments are mentioned in Cabinet after they have been determined, but the convention is that they are not discussed or approved by Cabinet.


There is a point of fundamental principle as to whether the final decision on a recommendation should be removed altogether from the political sphere. We agree with the view expressed by two lawyers with experience as Attorneys-General, that the decision should rest with the Executive, which is then politically accountable for the choices it makes in this area.61  This is a very strong constitutional argument.

These days, the process for appointing judges to the District Courts is well set out on the Courts of New Zealand website.62 However, details of the process for appointing judges to the higher courts are not easily accessible to the public.63

In contrast to New Zealand, a number of countries, including most recently the United Kingdom, have established a Judicial Appointments Commission to advise on appointments.64 After calls for New Zealand to follow suit around the time our Supreme Court was established, the Ministry of Justice examined the possibility of establishing a judicial appointments commission in this country to identify and recommend suitable candidates for judicial office.65 Ultimately, this was not progressed.

We consider that to shift the responsibility for recommendations of appointment from the Executive to a body such as an appointments commission would be a major policy change, and outside the scope of this project.

Even if that were not so, our preliminary research and enquiries suggest that a commission is not presently, or in the foreseeable future, a viable option for New Zealand. To take only one illustration, the Judicial Appointments Commission in the United Kingdom, which selects candidates for judicial office in courts and tribunals in England and Wales, and for some tribunals whose jurisdiction extends to Scotland and Northern Ireland, nominates more than 700 judges per annum. It is a substantial organisation with 15 commissioners, a highly refined selection process and significant support staff.66  By way of contrast, New Zealand appoints perhaps a dozen judges per annum across all courts. The kind of institution needed to do the job adequately along the United Kingdom lines would require resources quite disproportionate to the number of appointments to be made in New Zealand.67

However, in our view the current system could be improved if the legislation required the Attorney-General to consult with a range of persons prior to making a recommendation for appointment, and set out the criteria on which appointments should be made.

Supreme Court Act 2003, s 18(1).

Letters Patent Constituting the Office of Governor-General of New Zealand, cl 12.

Rt Hon Paul East QC “A Judicial Commission?” (1995) NZLJ 189 and Rt Hon Sir Geoffrey Palmer SC “Judicial Selection and Accountability: Can the New Zealand System Survive?” in Gray and McLintock (eds) Courts and Policy (Brookers, Wellington, 1995) 11 at 84. See also Malleson and Russell (eds) Appointing Judges in an Age of Judicial Power (University of Toronto Press, Toronto, 2006).

Ministry of Justice “Judicial Appointments: Office of District Courts Judge – March 2010” < >.

A useful summary appears in a 2004 consultation paper by the Ministry of Justice on whether New Zealand should establish a Judicial Appointments Commission: see Ministry of Justice “Appointing Judges: A Judicial Appointments Commission for New Zealand? A public consultation paper” (April 2004).

See Constitutional Reform Act 2005 (UK). The UK Judicial Appointments Commission was launched in April 2006. It is an independent public body responsible for recommending candidates for judicial office.

Ministry of Justice “Appointing Judges: A Judicial Appointments Commission for New Zealand? A public consultation paper” (April 2004).

The Commission has an excellent website that fully sets out its role, history and processes: see Judicial Appointments Commission < >.

The 2010/11 Annual Report of the JAC shows expenditure of approximately NZ$18 million, even after making substantial savings of NZ$3 million over the previous year, as part of a cost savings drive by the United Kingdom government.