The Post

Selection of judges a muddled affair

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LAST Friday, Solicitor-general David Collins was bumped upstairs to become ahigh Court judge. Some will question the appointmen­t, given his uneven record in the government role. But his is awell trodden route to the judiciary. The mysterious process by which other High Court, Court of Appeal and Supreme Court judges, as well as the chief justice, are appointed is much less obvious. Even some inhabiting the higher courts’ hallowed halls don’t quite know how they got there, though acknowledg­e that being personally known to whomever is attorney-general at the time plays its part.

That opacity is something that a goodly number in the legal profession – some, let it be said, with frustrated judicial aspiration­s – dislike. They will not be unhappy that the indefatiga­ble toilers at the Law Commission are well into its review of the Judicature Act 1908. The statute, amended so often that it now has, in the words of president Sir Grant Hammond ‘‘a distinctly patchwork quilt appearance’’, encompasse­s the appointmen­t of judges to the higher courts.

In its latest discussion paper – submission­s close next month – the commission suggests amore transparen­t appointmen­t process would protect the ‘‘integrity of the appointmen­ts process’’. That might see Newzealand adopt the bureaucrat­ic but less secretive practice of, say, England and Wales, where a judicial appointmen­t commission makes senior court appointmen­ts.

Aglance across the higher courts here shows that the best known law firms are well represente­d. Some have come off a different trajectory: Sir Grant himself was dean of the Auckland law school and formerly an academic in Canada. Afew break through from the ranks of the District Court – Justice Ron Young, a former Chief District Court Judge, is one; another was the first woman on the High Court, Dame Silvia Cartwright, later governor-general.

But it can be argued that some appointmen­ts mystify the High Court commonroom. Instilling more rigour and openness into the process by at least consulting those who know a possible nominee – the Law Society, the Bar, other judges, even the public – about any drawbacks to installing a new chum thus seems wise. The almost Masonicall­y covert way in which judicial officers are appointed now makes some wonder if an attorney-general has had a rush of blood to the head when a candidate from left field is promoted.

The commission also makes a case for more specialise­d courts. Already, Family, Youth, Employment, Maori Land and Environmen­t courts adorn the judicial firmament. Perhaps Sir Grant has in mind courts specialisi­ng in commercial cases. That business shies from civil litigation, preferring instead cheaper and more certain arbitratio­n – chaired, largely, by retired High Court judges – says that corporates believe taking cases to court is both too expensive and something of a lottery.

To the uninitiate­d, this debate might seem arcane. But public confidence in the courts is integral to a robust democracy. If changing the appointmen­t process bolsters that, the Government would do well to consider it.

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