Chapter 3 - Judicial appointments

Criteria for appointment

The topic of criteria for judicial appointment has drawn both professional and mainstream media comment in recent years. There are two fundamental issues of principle relating to criteria for appointment of judges. First, there has to be sound structural protection against any political control of the judiciary.

Second, there are legitimate concerns with respect to diversity within the judiciary. Although some progress has been made regarding the appointment of women judges, the position is still not satisfactory.69 Ethnic diversity also remains a particular concern.

In a recent speech, the Chief Justice remarked that, although it is controversial to say so, all of the experiences of a judge cannot help but impact upon substantive outcomes in judging.70 Although personal beliefs or sympathies cannot deflect a judge from doing what is right according to law in the particular case, how the judge goes about “judging” is critical.

Further, quite apart from how judges actually rule, it has to be recalled that there are many other manifestations of the judge’s role where a diversity of viewpoints is a welcome and even necessary thing. Judges make numerous “corridor” contributions to the work of each other and how things are presented. For instance, a simple reminder that what is being done will have to be acceptable to a variety of cultures is sometimes of great importance.

It would be wrong also not to acknowledge that there are components of a judge’s work which do have distinct policy components (on which a judge is required to rule) and questions of that kind ought necessarily to reflect a spread of experience and background.

Judicial diversity is necessary to enhance the legitimacy of the courts and improve public confidence in them. It also provides important role models in society. We realise this is a complex matter, and that the need for greater diversity in senior members of the legal profession is a related issue, but the impact of diversity on the legitimacy and functioning of the judiciary is now simply too compelling for concrete steps not to be taken.

Diversity factors aside, there is universal agreement around the Western world that judges should be appointed “on merit”. We acknowledge that this term can be slippery and insufficiently precise. There is also a substantial literature that endeavours to assess what it means.

However, on closer analysis, there is general agreement that merit is a respectably well-understood term in a professional context. It includes such things as legal ability (most importantly sound knowledge of the law and experience of its application), qualities of character (such as personal honesty and integrity, open-mindedness and impartiality, an ability to listen, and collegiality), good judgement and common sense, and appropriate personal skills (particularly communications skills). These features need to exist alongside an effective appreciation and reflection of New Zealand society.

Obviously there is also a need for “horses for courses”. The combination of qualities required in a Family Court judge dealing day in and day out with a particular kind of subject matter is not necessarily the same as those sought in, say, an appellate judge.

Our provisional view is that while no single template is possible or desirable for New Zealand judges, it is possible to state some principles at a level of generality that ought to be required to be observed by an Attorney-General in making appointments.

We consider these to be:

  • equality of opportunity for all who are eligible for judicial office;
  • appointment on merit;
  • the need for potential candidates for appointment to exhibit an awareness of and sensitivity to, the diversity of modern New Zealand, including tikanga Māori; and
  • the desirability of the judiciary being an adequate reflection of society, and exhibiting an appropriate degree of social awareness.

It is sometimes said that stating criteria in this way can actually inhibit the proper breadth of the appointment process, or that it is merely stating the obvious. Indeed, we have no doubt that these principles are already in the forefront of the minds of Attorneys-General. However, legislation of this character also has important symbolic and persuasive functions. We are, therefore, provisionally inclined to the view that criteria should be included in the legislation.


Should the criteria which the Attorney-General is obliged to consider in recommending a person for judicial appointment be set out in legislation?


Should the criteria reflect the principles in paragraph 3.38, or should they be something different?

Currently 10 of the 38 High Court judges are women, and 42 of the 149 District Court judges are women. Over the past five years, four out of 14 appointments to the High Court bench have been women.

Dame Sian Elias, Chief Justice of New Zealand “Address to the Canadian Chapter of the International Association of Women Judges’ Conference” (Vancouver, Canada, 10 May 2011).