Chapter 3 - Judicial appointments

Current legislative provisions

District Courts Act 1947

Section 5(1) of the District Courts Act 1947 provides that the Governor-General may from time to time appoint “fit and proper” people to be District Court judges. This is, however, qualified by section 5(3), which provides that no person shall be appointed a judge unless he or she has held a practising certificate as a barrister or solicitor for at least 7 years, or “has been continuously employed as an officer of the responsible department or Ministry of Justice for a period of at least 10 years, and during that period has been employed for not less than 7 years as the clerk or Registrar of a court, and is a barrister or solicitor who has been qualified for admission, or admitted, as such for not less than 7 years”.

Judicature Act 1908

Section 4(2) of the Judicature Act 1908 provides that “Judges of the High Court shall be appointed by the Governor-General in the name and on behalf of Her Majesty.” Section 6 provides that persons appointed as judges must have held a practising certificate as a barrister or solicitor for at least 7 years. Beyond these provisions, the Act is silent on the process for the appointment of High Court judges and the requirements for appointment. There is no “fit and proper” requirement for persons to be appointed to the superior courts.56

The statutory provisions relating to the Court of Appeal are likewise relatively scant. These state that the Court of Appeal comprises judges of the High Court appointed by the Governor-General as judges of the Court of Appeal.57  A judge may be appointed to be a Court of Appeal judge either at the time of appointment as a High Court judge or at any time thereafter. There are no additional statutory requirements, and there is no prescribed process for appointment.

Supreme Court Act 2003

The Supreme Court Act 2003 contains provisions regarding the appointment of Supreme Court judges. The only requirement is appointment as a judge of the High Court, and a Supreme Court judge may be appointed as a judge of the High Court either prior to, or at the same time as, appointment as a judge of the Supreme Court.58

However, Associate Judges of the High Court are required to be “fit and proper persons” under s 26C of the Judicature Act 1908.

Judicature Act 1908, s 57.

Section 20.