Judicial Appointments in New Zealand: An Incremental Approach to Reform

Abstract

The current mechanism for judicial appointments in New Zealand is non-transparent and lacks sufficient accountability mechanisms. As a consequence, there is ample scope for an Attorney-General to make appointments based on political or personal preference. In order to promote actual and perceived judicial independence, and due to New Zealand’s historically conservative approach to constitutional change, I propose a two-stepped incremental approach to reform which would gradually erode the individual executive discretion of the Attorney-General. First, I argue that the criteria for appointment and a mandatory list of persons to be consulted should be expressly stated in statutory form. As part of this discussion, I assess why and how merit and diversity criteria should be legislated. This formalised approach is required to anchor the Attorney-General’s discretion to a prescribed process, which in turn would lead to increased public accessibility and accountability. Secondly, I propose the establishment of a Judicial Appointments Commission in New Zealand to act as an independent advisory body to the Attorney-General. Importantly, by retaining an executive official as decision-maker, the accountability pathway of ministerial responsibility is also retained. Ultimately, these steps are necessary to prevent judicial appointments from being made on a “tap on the shoulder” basis.