Chapter 3 - Judicial appointments


There is a consistent thread of criticism of the present system of consultation (to the extent that there is one) that, at least in relation to the higher courts, it is not known, transparent or operating on articulated criteria.

Traditionally, Attorneys-General in New Zealand have taken “soundings” from the Solicitor-General on appointments to the higher courts, and from the Secretary for Justice on appointments to the District Courts. However, there is no legislative requirement to do this.

To move on from the purely discretionary approach to consultation, the legislation could require the Attorney-General to consult with an appropriate range of people prior to making a recommendation to the Governor-General. The Attorney-General could consult more widely than with the prescribed persons, and could supplement the required consultation in other ways (such as advertising and interviews) if that was considered appropriate in particular cases.

As a minimum requirement, we consider the Attorney-General should be required to consult with the Chief Justice, the Solicitor-General, and the Presidents of the New Zealand Law Society and the New Zealand Bar Association before making any recommendations to the Governor-General for the appointment of judges to the higher courts. The Attorney-General should be required to consult with the same people for appointments to the District Courts, except for the Chief Justice, for whom the Chief District Court Judge would be substituted in relation to those appointments. In addition, the President of the Court of Appeal should be consulted on the appointment of other Court of Appeal judges, and the Chief High Court Judge should be consulted on the appointment of other High Court judges. There should also be a requirement for the Principal Judge of any division of the District Court to be consulted on an appointment to the relevant division.68

We do not consider that it would be necessary for legislation to require the Attorney-General to undertake the same consultation again for an appointment elevating or moving a judge from one court to another.

This regime of consultation is similar to that proposed by successive Solicitors-General, and which operates to a greater or lesser extent today, depending on the preferences of the particular Attorney-General. It would create a legislated statutory minimum requirement for consultation, but leave it open to the Attorney-General to develop other techniques for making recommendations, as may be thought to be appropriate from time to time. We envisage that the Attorney-General would consult with a broader range of people, and possibly even suitable lay persons, in order to encourage diversity.


Should the Attorney-General be required, by legislation, to consult those persons set out in para 3.25 of this chapter in advising the Governor-General on judicial appointments?

Principal Judges currently sit on interview panels for appointments to their divisions, but there is no requirement for this.