Appointment of judges
Judicial appointments are made by the governor-general, acting on ministerial advice. Under procedures introduced in 1999, the attorney general exercises primary responsibility for giving advice on these appointments. The attorney-general is the formal link between the judiciary and the government. The attorney general is the first law officer of the Crown and acts independently of partisan political interests. Before 1999 the minister of justice had recommended the appointment of District Court judges, which represented the majority of judicial appointments. In the 2000s these appointments are made on the recommendation of the attorney general. There are only two exceptions – the prime minister recommends the appointment of the chief justice and the minister of Māori affairs recommends the appointment of judges of the Māori Land Court.
The procedures introduced in 1999 standardised the appointments process. Appointments criteria are publicised, judicial vacancies advertised and expressions of interest called for. A Judicial Appointments Unit in the Ministry of Justice initiates the appointments process. It holds all names that meet the appointments criteria on a confidential database. The solicitor-general supervises appointments to superior courts and the secretary for justice supervises appointments to inferior courts. Both consult widely within the legal profession, including senior judges and the presidents of the New Zealand Law Society and New Zealand Bar Association. They produce a ‘long list’ of potential candidates, from which a ‘short list’ is drawn-up when vacancies arise. The short list is presented to the attorney general, who makes the final decision.
Judicial Appointments Commission
New Zealand has resisted calls for a Judicial Appointments Commission. Several common law jurisdictions have established independent commissions to oversee judicial appointments. Supporters believe that a commission would promote wider consultation, remove mystique surrounding the appointments process and avoid risk of political influence. However, opponents question the need for an independent commission and point to the risk of political appointments to the commission compromising its independence. No questions have been raise about the independence and professionalism of judges appointed under the present system.
Until 2004 New Zealand had no formal procedures by which to discipline judges or remove them from office. Complaints of judicial misconduct were referred to heads of bench (the senior judge who heads each court), with any discipline meted out away from the public eye. That system came under mounting scrutiny, with calls for greater transparency and accountability. In 1999 the judiciary adopted its own complaints process, as a precursor to more extensive institutional reforms.
The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 introduced prescriptive procedures for investigating complaints of judicial misconduct. It covers two classes of complaint against judges: those alleging inappropriate conduct and those alleging serious misconduct that might lead to a judge’s removal. The judicial conduct commissioner conducts a preliminary investigation to ascertain whether a complaint has substance. The commissioner must do one of four things: dismiss a complaint, take no further action, refer the complaint to the head of bench, or recommend that a judicial conduct panel investigate whether the judge should be removed. By 2011 only one judicial conduct panel had been established to investigate complaints against a Supreme Court judge, Justice Bill Wilson. However, the judge resigned from office before the panel assembled.
Where a complaint has substance, the usual recourse is referral to the head of bench, who may admonish, encourage or counsel the judge. A judge who acts inappropriately would be expected to apologise to the complainant and undertake not to repeat the conduct.
Removal of judges
Removal of a judge from office is the ultimate sanction. A judicial conduct panel must examine a complaint of serious misconduct and recommend whether consideration of removal of the judge is justified. The attorney-general then has discretion over whether or not to take steps to initiate an address to the House of Representatives for the judge’s removal. The procedures of the Judicial Conduct Commissioner and Judicial Conduct Panel Act may be bypassed in one situation. If a judge is convicted of an offence punishable by imprisonment for two or more years, the attorney general may initiate the removal procedures without involving the judicial conduct commissioner or a panel.