Judicial makeover opens more doors to wannabe Judges

Dame Judith Potter 95X169                  Major changes are afoot to make our judges and the courts they preside over much more open, accountable and efficient.

As a result of the Law Commission’s review of the 115-year-old Judicature Act, the government will introduce a new Courts Bill later this year. Justice Minister Judith Collins says it will include a raft of measures designed to enhance public confidence in the justice system.

“These changes are important because they will improve the flexibility, responsiveness and transparency of the court system.”

Among other things, Ms Collins plans to make the processes and criteria for appointing judges more open and upfront. However, she has stopped short of introducing annual  performance reviews of judges or a register of their pecuniary interests.

A sign of things to come was an advertisement which appeared in the New Zealand Herald recently. It was placed by the Attorney-General and called for expressions of interest from “suitably qualified persons who would like to be considered for appointment as a Judge of the High Court as and when vacancies arise”.

The advertisement signals the resumption of a practice which began in the mid 1990s and continued until 2003. During this period the Attorney-General publicly sought expressions of interest from suitably qualified candidates every two years or so, with letters also being sent to various individuals and organisations inviting them to submit nominations.

They included the New Zealand Bar Association, the New Zealand Law Society, regional women lawyers’ associations, the Criminal Bar Association, Minister of Justice, courts, Ministry of Women’s Affairs, Ministry of Maori Affairs, the Opposition spokesperson for Attorney-General and “various others”.

 From this process, the names of applicants and nominees were included in what was known as the “long” list. Following consultation with the Judiciary and the Attorney-General a “short” list was drawn up, from which appointments were later made.

The resumption of newspaper advertisements is clearly designed to widen the net of prospective justices as well as address calls for more ethnic and gender diversity on the bench.

Attorney-General Chris Finlayson says he’s conscious of the value of having more diversity on the High Court bench and “seeks to encourage expressions of interest from qualified women as well as those from under-represented ethnic groups”.

Driving it all is a desire to make the selection process more transparent and above board, something that has been the subject of considerable debate over the years.

This is because the seemingly opaque and arcane system in which judges are appointed to the High Court is a mystery to most ordinary New Zealanders, not to mention many members of the legal profession, who are not slow to raise their eyebrows at some appointments. Even some appointees have privately expressed bemusement at how or why they have been elevated to such a prestigious position.

Of course, cynics believe the selection process is manipulated by people in high places who pull political strings to get their cronies on the bench, and in times gone by this was very much the case.

According to Jim Evans, Emeritus Professor of Law at Auckland University, some of the early appointments were not free from political influence. Five of the 16 people appointed as judges in the nineteenth century were prominent politicians, with former Prime Minister Sir Robert Stout becoming Chief Justice.

Things have moved on since then, but politicians, in the form of the Attorney-General, have remained key players in the selection procedures. While obliged to consult widely with others, their personal and professional preferences can have an important bearing on the outcome, which is why the process is still perceived to be lacking in transparency and potentially open to abuse.

As everyone knows, politicians, along with journalists, lawyers and used car dealers, are the least trusted members of society according to some opinion polls. But Paul East, who presided over many judicial appointments as Attorney-General from 1990-97, believes the process in place then was robust and reliable.

“I used to meet with the Chief Justice and discuss appropriate candidates, after which there would be a process of consultation with the Solicitor General and the President of the Law Society among others. I would then make a decision and advise Cabinet of it, but there would be no discussion about it around the Cabinet table.

“I don’t think this process needs to be changed at all because it’s done in a very proper manner and works well.”

Former President of both ADLS and NZLS, Dame Judith Potter, who retired recently after 15 years on the High Court Bench, says the selection process in her day was “somewhat ad hoc”.

“I think this system has worked well, but ideally it should be a less ad hoc system and be more open. How to achieve that is a dilemma. For example the Judicial Appointments Commission they have in Britain has not been a great success,” she says.

 “It’s got bogged down and it can take something like nine months for an appointment to be made and I don’t know how such a system could improve on what happens here now.”

According to the Protocols For Appointment to the High Court, which was updated earlier this year, lawyers wishing to become a superior court judge must have held a practising certificate as a barrister or solicitor for at least seven years.

They must be of good character, have a sound knowledge of the law and of its practice and have a real sense of what justice means and requires in present day New Zealand. They must also have the discipline, capacity and insight to act impartially, independently and fairly.

Applications are submitted to the Attorney-General’s Judicial Appointments Unit and considered in much the same way as before.

According to the revised protocols, the appointments unit passes them onto the Chief Justice, Chief High Court Judge or the president of the Court of Appeal and “others deemed appropriate by them,” or by the Attorney-General or Solicitor-General as part of the consultation process.

Others who are consulted include the president of the New Zealand Law Society, who may in turn consult presidents of “relevant district law societies and/or respected and trustworthy practitioners”.

After receiving advice from the Chief Justice and the Solicitor General, the Attorney-General “mentions appointments at Cabinet after they have been determined”. By convention, the appointments are not discussed or approved by Cabinet.

At this stage it is not known how much interest there has been from aspiring High Court judges in the latest newspaper advertisements, which first appeared a few weeks ago. Applications closed shortly after the deadline for this edition of Law News, but from past experience there is likely to be a significant response from some of the country’s best and brightest legal practitioners.

With only two High Court vacancies up for grabs – one in Auckland and the other in Christchurch – competition could be intense. 

Experienced courtroom litigators would appear to have a head start but this has not always been the case. Dame Judith Potter is a case in point and her appointment to the High Court bench was something of a baptism by fire.

Not only was she was one of the first women to become a High Court judge – Dames Silvia Cartwright, Sian Elias and Lowell Goddard preceded her – but she was a novice in the courtroom.

“If you go back to my appointment in 1997, a lot of eyebrows went up because I hadn’t been in the High Court at all,” she told Law News. “It was an adventurous step and I think it was part of a commitment to try and get women on the High Court bench. I was a commercial lawyer and I hadn’t been in court except on official occasions when I was there in my Law Society capacity.

“It was terrifying but I think those sort of appointments do loosen things up and enable the powers-that-be to cast the net wider.”

Dame Judith, who was aged fifty five at the time of her appointment, believes there is a need to get more gender and ethnic diversity on the bench. “It’s a valid commitment to try and get that spread, the diversity that the judiciary must have to be respected. If you take women, for example, over 50% of law graduates are women and they are performing very, very well. We need to retain them in the profession and have to work with them through to the point where they can take judicial appointment.”

That said, Dame Judith says ultimately, all appointments should be made on merit.

“There has to be a baseline: you have to be skilled in law, you have to have complete integrity and impartiality, you have to be able to relate to people and understand human nature and you must have a full experience of life.”

So what happens when a male and female of equal calibre and experience are competing for just one High Court position? It’s a question that Dame Judith answers diplomatically.

“Well, if that situation ever arose it would be nice to appoint them both, but I think there would be a real concern to try and increase the number of women on the judiciary if you’ve got the right candidates. I have to say the women who have been appointed have been very successful. The Chief Justice, Chief High Court Judge and Chief District Court Judge have all been enormously successful.”

And no one can dispute that, given that just 28% of New Zealand’s judges are women with only 21% in the High Court.

So women are still playing catch-up in our judiciary, but with Justice Minister Judith Collins pledging to inject some Botox into our century-old courts system with her new Courts Bill, this could all change for the better, along with many other relics of the past. 

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