Changes Respect And Promote Judicial Independence

  • Doug Graham

Moves to create greater transparency in the appointments and removal procedures for the Judiciary have been announced by the Attorney General, Rt Hon D.A.M. Graham.

Acknowledging a certain degree of mystification on the public's part as to how judges are appointed and the grounds on which they can be removed, Mr Graham said the changes are designed to give the public greater confidence in the judicial system by making the processes clearer.

He has worked in close consultation with the Chief Justice, the Chief District Court Judge and the NZ Law Society to make the changes.

In future, all judicial appointments (Court of Appeal, High Court, Masters of the High Court, District Court (including Family Court and Youth Court), Employment Court, Environment Court and Community Magistrates) will be made on the recommendation of the Attorney-General alone.

As the guardian of the public interest and the formal constitutional link between the Judiciary and the Government, the Attorney-General has an independent function which is not shared by other Cabinet ministers like the Ministers of Justice and Labour who have previously had a role in recommending appointments.

However, the Prime Minister will continue to appoint the Chief Justice.

"The Chief Justice is head of the Judiciary and the person who acts as Administrator of the Government in the absence of the Governor-General and it is desirable that this appointment should be made by the Prime Minister."

The Attorney-General will not seek the consent of Cabinet to appointments but, as a courtesy, will advise Cabinet of pending appointments. This continues the present procedure.

However Mr Graham said Ministers whose portfolios are relevant to the appointments will be consulted, as will the Minster of Maori Affairs and Women's Affairs.

Mr Graham has also outlined a more transparent process for selecting all new judges, based on the principles that currently apply to the process for District Court Judges.

As all judicial appointments, except that of Chief Justice, will be handled by the Attorney-General, the Minister of Justice's existing Judicial Appointment Unit will be re-named the Attorney-General's Judicial Appointment Unit but will remain within the Ministry of Justice.

The appointment process will be based on the following key principles:

a clear and publicly identified process for selection and appointment
a clear and publicly identified criteria against which candidates will be assessed
clear and publicly identified opportunities for nomination
a commitment to actively promoting diversity without compromising the principle of merit selection
advertising for expressions of interest
a register of candidates maintained in a confidential database
The Solicitor General will provide the Attorney-General with formal advice for the Court of Appeal, High Court and Masters. The Secretary for Justice will provide advice in all other cases.

The President of the Court of Appeal, the Chief Justice, the Chief District Court Judge, the Chief Judge of the Employment Court, the Solicitor General, the Secretary for Justice and the NZ Law Society will be asked for input where appropriate.

The lack of public understanding of the procedure for handling complaints against judges has also been addressed by Mr Graham.

"In order to enhance public confidence in the Judiciary without compromising judicial independence, it is necessary that the process for making complaints about the behaviour of judges should be transparent and consistent."

In future, he said, a complaint should be forwarded to the President of the Court of Appeal where it relates to a Court of Appeal Judge, to the Chief Justice where it relates to a High Court Judge and Masters, to the Chief District Court Judge where it relates to a District Court Judge, to the Chief Judge of the Employment Court where it relates to an Employment Court Judge or to the Attorney-General where one of the above is subject of a complaint, or in any other case.

Mr Graham has accepted a proposal from the Judiciary that, in cases considered to have no merit, a lay observer would review the complaint and recommend whether it be reconsidered.If the complaint is thought to have merit, the judge concerned would be asked to comment.

The Attorney-General would become involved only in cases so serious that removal of a judge was a possibility. The grounds for removal will be standardised: i.e. in cases of misbehaviour or incapacity. A panel of retired judges would consider whether to recommend removal. If the Attorney-General accepts advice that a judge should be removed, the Attorney General would then move the necessary motion in the House. At present the House is involved only with the removal of High Court Judges and Judges of the Employment Court.

Finally, all full-time judges will in the future have immunity from suit. At present some do while those who do not do receive a Crown indemnity.

Mr Graham said these changes are designed to regularise and standardise what until now has been a little understood regime.

"It respects and promotes judicial independence. It makes the appointments and removal procedures transparent and easily understood. I believe confidence in the judicial system as a whole will be enhanced as a result of these changes."

The Government will promote an amendment bill to make the changes as soon as possible.