On March 14, 2019, New Zealand‘s new chief justice, The Right Honourable Chief Justice Dame Helen Winkelmann GNZM, was sworn in at the Supreme Court in Wellington. She replaces Dame Sian Elias, who retired on March 13, 2019, from the role to which she was appointed in 1999. Since that time, the Supreme Court of New Zealand was established in 2004, replacing the Judicial Committee of the Privy Council in the United Kingdom as the highest court in the New Zealand court hierarchy.
New Zealand’s prime minister, Jacinda Ardern, announced Winkelmann’s appointment in December 2018. There were no hearings in Parliament, and no votes were conducted. Given the vast differences in the appointment process compared to the US (and other countries), I thought it was an opportune time to take a look at the rules and practices that apply in New Zealand when it comes to judicial appointments, and the appointment of the chief justice in particular. (I guess this post also fits with Women’s History Month, since the current New Zealand prime minister, the governor-general, and both the new and previous chief justices are all women!)
Higher Court Judicial Appointments Generally
Judicial appointments to the High Court, Court of Appeal, and Supreme Court are made under the Senior Courts Act 2016 (which repealed and replaced the Supreme Court Act 2003 and most of the Judicature Act 1908). Appointments to all positions other than chief justice are made by the governor-general on the advice of the attorney-general. The chief justice is appointed by the governor-general on the advice of the prime minister (section 100).
The Act requires that the attorney-general “publish information explaining his or her process for—(a) seeking expressions of interest for the appointment of Judges and Associate Judges; and (b) recommending persons for appointment as a Judge or an Associate Judge” (section 93). The Judicial Appointments Protocol, last updated in 2014, is available on the Crown Law Office website. It includes criteria for appointment and lists the steps in the process, including seeking expressions of interest, review and consultation processes conducted by the solicitor-general, a rating process carried out by the most senior judges, and the presentation of a long-list of candidates to the attorney-general, which is then utilized to create a short-list when a vacancy arises.
The Courts of New Zealand website explains that
[a]lthough judicial appointments are made by the Executive, it is a strong constitutional convention in New Zealand that, in deciding who is to be appointed, the Attorney-General acts independently of party political considerations. Judges are appointed according to their qualifications, personal qualities, and relevant experience.
Successive Attorneys-General have announced new systems designed to widen the search for potential candidates and increase the opportunity for input. Within the past 10 years the systems adopted by Attorneys-General have resulted in a more diversified judiciary. Judges have been appointed whose career paths have not been those of the conventional court advocate.
The following provision on eligibility applies to all judicial appointments:
A person may only be appointed a Judge or an Associate Judge if—
(a) that person has, for at least 7 years, held a New Zealand practising certificate as a barrister or as a barrister and solicitor; or
(b) that person—
(i) holds a degree in law granted or issued by any university within New Zealand; and
(ii) has been admitted as a barrister and solicitor of the High Court; and
(iii) has held a practising certificate in a jurisdiction specified by Order in Council—
(A) for at least 7 years; or
(B) for a lesser number of years, but, when that number of years is added to the number of years that the person has held a New Zealand practising certificate, the total number of years is at least 7 years.
However, as noted on the Courts of New Zealand website,
[t]his is the bare minimum for appointment as a High Court judge. Judges also require much more than just experience in practice. 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 have the discipline, capacity and insight to act impartially, independently and fairly.
Appointment of the Chief Justice
Under the Senior Courts Act, the chief justice is the head of the New Zealand judiciary (section 89). He or she is also “the head of the Supreme Court and is responsible for ensuring the orderly and efficient conduct of the Supreme Court’s business” (section 90), among other functions, including acting as the administrator of government in the absence of incapacity of the governor-general.
As noted above, the prime minister is responsible for advising the governor-general on the appointment of a new chief justice. A person may only be appointed chief justice if he or she is a High Court judge or is appointed as a High Court judge at the same time as being appointed chief justice (section 89).
Although not required by statute, Prime Minister Jacinda Ardern published a summary of the process for the appointment of the new chief justice in November 2018, when she announced that the process was underway. This included a list of criteria for the appointment, which “were developed by the Solicitor-General, modelled on the criteria for the appointment of the Lord Chief Justice of the United Kingdom and agreed by the Prime Minister.”
The criteria stated that the chief justice must be “an outstanding judge and leader” who demonstrates various competencies, including, for example, “[a]n understanding of the diversity of the communities, an insight into their differing requirements and an appreciation of the impact of law on society”; having, or having the ability to develop, “mana [prestige/status] within, and the confidence of, the judiciary and the legal profession, and the ability to develop the same in the wider public sphere”; “a deep appreciation and understanding of constitutional principle, including an understanding of the role of the Treaty of Waitangi in the law of New Zealand”; and “[r]esilience, stamina and firmness of purpose under pressure.”
In terms of the process itself, the announcement listed the following steps:
- The Solicitor-General will consult, on a confidential basis, with a range of people experienced in the law as to who should be considered against the criteria for appointment.
- The Solicitor-General will form a panel to review the resulting longlist, and to produce a shortlist according to the criteria.
- The shortlist will be provided to the Prime Minister for her to consider.
- The Prime Minister, after conducting soundings with Ministerial colleagues, will determine whether she accepts the shortlist.
- If so, the Solicitor-General will confirm those shortlisted candidates’ willingness to be appointed and confirm with candidates that there are no conflict issues or other matters that would render them unable to accept appointment.
- The Prime Minister will consult with the outgoing Chief Justice.
- The Prime Minister will then make her recommendation for appointment to the Governor-General.
The prime minister’s statement announcing the appointment of the new chief justice included some additional details on the process, including those who were consulted — the then-current chief justice, retired senior court judges, the New Zealand Law Society, the New Zealand Bar Association, and Te Hunga Roia Māori o Aoteroa (the Māori Law Society) — and the composition of the panel that considered the consultation feedback.
When the process started, a spokeswoman for the then-shadow attorney-general (the member of the opposition party with responsibility for covering that Cabinet portfolio) stated that he was “really comfortable” with the process and was confident he would be properly consulted. The leader of the opposition offered his congratulations to Winkelmann when her appointment was announced in December, stating that “New Zealanders can have confidence that Justice Winkelmann will continue the fine tradition of Chief Justices in New Zealand upholding the rule of law and ensuring due process.”
Under section 133 of the Senior Courts Act 2016, all judges in New Zealand, including the chief justice and other Supreme Court justices, must retire at the age of seventy years. Retired judges can be appointed as acting judges.
Dame Sian Elias, the former chief justice, turned seventy on March 13, 2019.
Titles and Honors
You may have noticed a fairly lengthy title above for the new chief justice. Under her previous role on the Court of Appeal she was more simply “Justice Helen Winkelmann.” In early March 2019, she was appointed as a “Dame Grand Companion of the New Zealand Order of Merit” (GNZM). This gives her the “Dame” title before her name, and the “GNZM” letters after her name. The New Zealand Order of Merit is the highest level component of the New Zealand Royal Honours system. In announcing Dame Helen’s appointment, the prime minister noted that “[a]ppointment as a GNZM is limited to 30 ordinary members. Additional appointments over this limit may be made to commemorate important Royal, State or national occasions. This is an additional appointment.”
“The Right Honourable” (commonly abbreviated to “The Rt Hon”) part of the new chief justice’s title is also part of the Royal Honours system. The rules for the grant, use, and retention of this title specify that it “is granted to and may be used and retained for life by those persons who currently hold, and those persons who after the date of the signing of these rules are appointed to, the following offices”:
- The Governor-General
- The Prime Minister
- The Speaker of the House of Representatives
- The Chief Justice