Chapter 3 - Judicial appointments

Formal constraints

In the New Zealand statutes we have under consideration there are important formal constraints on the appointment of judges.

First, no person is to be appointed as a judge unless that person has held a practising certificate as a lawyer in New Zealand for at least seven years. We are not aware of any dissatisfaction with that principle, or any suggestions that it needs to be altered.

Second, as a broad principle, judges must not undertake any other paid work. In short, they are expected to devote their full time attention to their judicial work. How this is achieved statutorily is somewhat untidy, and is less transparent than it should be.

No other employment or office

Section 4(2A) of the Judicature Act 1908 provides:

A Judge must not undertake any other paid employment or hold any other office (whether paid or not) unless the Chief High Court Judge is satisfied that the employment or other office is compatible with judicial office.

This provision was inserted into the Act at the same time as other provisions dealing with part-time judges.72 Although we consider it applies to all judges, whether they are full- or part-time, this is not explicit on the face of the section.

The equivalent provision in the District Courts Act 1947 provides in addition that “no judge shall practise as a barrister or solicitor”.73

There is also room for argument as to whether section 4(2A) of the Judicature Act 1908 applies to judges of the Supreme Court and Court of Appeal. Section 4 is in part 1 of the Judicature Act 1908, which deals with the High Court. The appellate judges are technically also judges of the High Court, although they do not sit on the High Court bench, and their relevant head of bench is not the Chief High Court Judge, but the President of the Court of Appeal or the Chief Justice (as the case may be).

Section 4(2A) was raised by counsel in Saxmere Company Limited and Ors v Wool Board Disestablishment Company Limited, but the Supreme Court found it unnecessary to decide whether subsection (2A) has any application to judges of the Court of Appeal or of the Supreme Court.74  The Supreme Court noted that “it would be odd, to say the least, to require an appeal judge to obtain a consent of the kind envisaged by the subsection from the head of a lower bench.”75  This approach has been criticised.76

We consider the relevant section in a new Courts Bill should apply to all judges, whether they have a full- or part-time warrant, and it should be clear on its face that it applies to the appellate judges also. We are provisionally of the view that a generic section is appropriate, which clearly states that no judge may undertake any other paid employment, act as a barrister or solicitor, or hold any other office (whether paid or not), unless the particular head of bench for that judge is satisfied that employment or other office is compatible with judicial office.

This last point is important. Judges are from time to time asked to serve on such things as school boards or advisory organisations, some of distinct significance. There ought to be provision across all courts for prior clearance through the head of bench for any such undertaking as being not incompatible with judicial office.

This likely reflects the existing practice, but we think it should be provided for in legislation, so the position is clear to the public.

Q6

Should the provisions preventing judges from undertaking other employment or holding other office apply to judges of all courts? Should they apply to both part-time judges and full-time judges?

Judicature Amendment Act 2004.

Section 5(5).

Saxmere Company Limited and Ors v Wool Board Disestablishment Company Limited [2009] NZSC 122, [2010] 1 NZLR 76.

At [9].

Phil Taylor “Judge faces being first to go to conduct panel” The New Zealand Herald (online ed, Auckland, 19 December 2009).