Sunday, November 28

Judges can be appointed without having to attend an interview.

The appointment of judges to the Superior Court is opaque, outdated and must change, lawyers and academics told RNZ.

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Photo: RNZ / Vinay Ranchhod

Judges are hired for their prestigious jobs based on recommendations from high-ranking members of the legal community, and can be appointed without even having to attend an interview.

While there is a detailed and formalized application process for prospective district court judges, including an interview, there is no such requirement for those appointed to superior courts.

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About once every three years, attorneys with more than seven years of experience who want to be Superior Court judges can complete an expression of interest form for consideration.

Other attorneys are nominated or leaned on the shoulder and invited to express interest.

The Attorney General then inquires about the reputations of all potential judges, consulting with the Chief Justice, the Attorney General, other judges, and senior members of the legal community, and advises the Governor General, who makes the appointments.

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Elizabeth Hall.
Photo: RNZ / Samuel Rillstone

Defense Lawyers Association co-founder and attorney Elizabeth Hall said the process was “out of date.”

“In the District Court there is an application process that is apparently followed with a panel and an interview, and a limited verification, apparently, of references. The Superior Court seems to be more of a tap on the shoulders of the person they want. “

RNZ revealed yesterday that 91 percent of the High Court judges are Pākehā, and 59 percent are male.

In the superior courts, more than 70 percent of the judges worked in a few areas of law (corporate, civil, or for the Crown) immediately prior to their appointment.

One of the key principles of the guidelines for the appointment of Superior Court judges is “the commitment to actively promote diversity in the judiciary.”

Former District Court Judge Rosemary Riddell said that the fact that the vast majority of High Court judges were Pākehā was proof that appointing judges based largely on recommendations was not an effective way to diversify. the judicial power.

“It is not good enough because there may be someone practicing law somewhere in the country who has not caught the attention of the superior judge. [of the bench]But he does a really good job, has a good mind, intellectual capacity, and could do very well in Superior Court. “

University of Auckland research fellow Litia Tuiburelevu, who studied Pasifika peoples in the court system, said asking people to nominate themselves goes against Maori and Pasifika culture.

“Culturally, it’s kind of wacky (embarrassing) to say, ‘Oh, I want to be a judge.’ It’s a kind of cultural humility that you’re not going to be the first to raise your hand, although there are definitely people I can think of would be perfect. “.

In fact, data obtained by RNZ from the Prosecutor General’s Judicial Appointments Unit showed that, in April, 86 percent of the people who had expressed interest in becoming High Court judges were Pākehā. Only 6 percent were Maori and 7 percent were classified as “other”. Overall, less than a third of the applicants were women.

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Photo: RNZ / Vinay Ranchhod

In the District Court, almost three-quarters of the lawyers who expressed an interest in becoming District Court Judges were Pākehā, 11 percent were Maori, and 3 percent were Pasifika. Just over half of the applicants were men.

An attorney, whom RNZ agreed not to name, said the appointment process was troubling.

“Appointments in Superior Court are not seen as a transparent process at all … It’s a tap on the shoulder and a coffee date to seal the appointment.”

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David Parker.
Photo: RNZ / Samuel Rillstone

Attorney General David Parker questioned it.

“That is not correct. In fact, I think the process for appointing judges in New Zealand is fantastic. The most important attribute of the judiciary is that they would be competent and independent, and we have achieved this in New Zealand in a way that is probably between the best of the world “.

The informal designation process suited New Zealand due to its small legal community, he said.

“The people who work in the system, being the judges and the Attorney General and her staff, are very well connected to all of these people.”

That meant personal recommendations were appropriate and worked well, Parker said.

“I mean, I’ve done this with two main judges, Dame Sian Elias, and now Helen Winkelmann, and they are very, very wise people. You can’t be the best at that job without being smart and wise.”

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Photo: RNZ / Vinay Ranchhod

Chief Justice Helen Winkelmann also defended the current system, saying a more formal approach would discourage people from running.

“Superior courts tend to be populated by people who are high-performing, highly competitive, and highly self-critical individuals. Experience in other jurisdictions has been that such processes can discourage the application of these roles in the catchment area,” he added . Winkelmann said.

“So they think, ‘Well, I just want to do it if people want me.’

“Having said that, we can see many of these people. The legal profession is not that great, if they practice before the courts, we have many, multiple, sources of information that we can turn to to get a sense of them. And we continue their careers for 20 to 30 years. “

The Attorney General reached out to a wide range of professional networks for recommendations on who might make good judges, including the Asian Lawyers Network and the Maori and Pacific Bar Associations, Judge Winkelmann said.

“We are looking for people who show intellect, who show empathy, who have done it and who are not too specialized. We try to encourage people of different backgrounds to express their interest.”

University of Victoria public law expert Dean Knight said the current appointment process for high-ranking judges appeared to be “establishment-centered.”

“The risk of the established process is that it continues to entrench an almost conservative model of law,” Knight said.

However, the current system reflects the desire not to politicize judicial appointments, he said.

“So it’s a question of how to balance the needs of diversity, competition, and ensure the non-political nature of the outcome.”

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Jessica Kerr.
Photo: Supplied

Jessica Kerr, a PhD candidate from the University of Western Australia, a New Zealander who had worked as a magistrate in the Seychelles and was now investigating judicial issues, said that the generally accepted ‘gold standard’ in the Commonwealth was to have a judicial appointments commission Independent.

While New Zealand could be seen ahead of parts of Australia, where there was still very little transparency in the appointment processes, it lagged far behind Great Britain, which had had an independent Judicial Appointments Commission since 2006, he said.

“There have been calls for such a commission in New Zealand for decades … but it never really gained critical momentum.”

That’s because of concerns that judicial independence could be eroded if appointments are removed from the control of the judiciary and the Attorney General, Kerr said.

“One of the ultimate reasons why judicial appointments are so opaque, so shrouded in mystery, is that there is this concern about political capture, that if politicians or interest groups somehow managed to gain a foothold in the process of appointments, it will result in judges being appointed for how they will govern rather than for their competence, their independence, their integrity. “

The fear of political interference was sometimes exaggerated, he said.

Kerr, however, was not convinced that an independent appointments commission was necessarily the answer for New Zealand, even if there was still work to be done in terms of its lack of transparency.

“I’m not sure it will achieve what its proponents believe it would achieve, whether in terms of greater transparency or diversity or overall judicial excellence.”

That’s because the overall quality of New Zealand’s judiciary is very high, he said.

“There’s no question about it. He’s consistently high-ranking, highly respected around the world. But is it because of our nomination process or in spite of it? I think it’s a fair question.”

Kerr believed that more needed to be done to educate and train attorneys to serve in the judiciary before being appointed, and to make the process transparent to the public.

It would better prepare lawyers for the job, making it a career choice rather than a reward for being a good lawyer, and it would pave the way for lawyers who did not have much court experience, while instilling public confidence in the judiciary, he said. said.

Hall believed that judicial appointments would become more transparent if the “veil of prestige around being a judge” was removed.

“We are deeply rooted in this hierarchical structure. What if being a judge was like any other job?”

This article is part of the series [ Is This Justice?]

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