Judicial Selection and Accountability: Can the New Zealand System Survive?
B. D. Gray and R. B. McClintock (eds) 'Courts and Policy - Checking the Balance' (Brookers, Wellington, 1995)
81 Pages Posted: 27 Feb 2013 Last revised: 24 Feb 2015
Date Written: 1995
It is clear that as the chief expositors, applicators and significant developers of the laws, Judges must be regarded as important. The rule of law is a key constitutional concept in democratic government, even if there is vagueness about the precise content of the notion. The Judges are the custodians of that principle. Several factors in recent years have led the author to believe that new Zealand Courts are moving ever closer to their American counterparts in terms of the extent and nature of judicial power. Given this trend it seems appropriate to re-examine the baseline assumptions about the appointment and retention of Judges in New Zealand. Do they hold up in the changing conditions of New Zealand society and the sustained forward march of judicial power?
This paper evaluates the answer to that question, turning first to consider the demystification of the law and how determinate or indeterminate the law is. Developments in New Zealand have been in the direction of more generalised and less specific statutory provisions. This tendency has contributed to Judges exercising greater lawmaking powers than they once did. There have been three other developments which have given Judges significant new power. The first is the power the Judges have given themselves by developing the common law doctrine of judicial review of administrative action. The second development has been the advent of Treaty of Waitangi jurisprudence. The third development was the passage of the New Zealand Bill of Rights Act 1990, which has given Judges a large number of generally state principles to interpret. All of these developments must be factored into the constitutional framework relating to the Judges in New Zealand. With the power and activism of New Zealand Judges increasing, it is likely that the selection and retention of Judges will come under a great deal more attention than hitherto.
The paper discusses the concept of judicial independence and considers whether the New Zealand judiciary fully exemplifies that principle or whether it consists of a blend of dependence and independence as with the English experience. Independence, like anything else, is not an absolute. It is relative. We do not want Judges to be so independent that their detachment from society is such that they do not understand it and cannot relate to it. The law as a workable institution would founder. Judicial independence is a notion which embraces a number of different strands: judges enjoy security of tenure and can only be removed of office for incapacity or misbehaviour; the salary of Judges cannot be reduced while they are in office; New Zealand Judges are free from political and financial pressure exerted by government; New Zealand Judges are incorruptible.
While the judiciary do not necessarily need to be representative, it requires diversity to enjoy the full confidence of the community. Currently there are no checks and balances laid down regarding appointment of Judges in New Zealand. In law, the Attorney-General could recommend to the Governor-General whosoever he or she pleased and the advice would have to be accepted. As a constitutional convention, however, the process is kept free from party political entanglements. The paper makes suggestions regarding improving the selection and appointment of Judges. Also discussed is the American tradition of judicial appointment, including the history and the contemporary position. The paper then turns to the suggestion for a Judicial Commission in New Zealand, considering that a Commission would be overly cautious with a tendency towards safe appointments and blandness.
Keywords: judges, judiciary, judicial power, New Zealand courts, judicial review, administrative action, Treaty of Waitangi, Bill of Rights Act
JEL Classification: K40
Suggested Citation: Suggested Citation