Selection of judges a muddled affair
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.