The judges

Contents:

How judges are appointed

The selection process
Judges and judicial officers are generally appointed by the Governor-General who acts on the advice of the Attorney-General. The Attorney-General consults with the Chief Justice for appointments to the senior courts, and with the relevant head of bench for appointments to other courts.

There are protocols setting out the process and criteria for appointment to the High Court and the District Court.

For appointment of the Chief Justice, the Governor General acts on the advice of the Prime Minister. For the appointment of Environment Court judges, the Attorney- General is required to consult with both the Minister for the Environment and the Minister for Māori Development before advising the Governor-General. Appointments to the Māori Land Court and the Māori Appellate Court are made by the Minister of Māori Affairs after consultation with the Attorney-General. Appointments to the Coroners Court are made by the Governor-General on the advice of the Attorney- General, after consultation with the Minister of Justice.

Qualities of a judge
The Judicial Appointments Protocol provides clearly defined criteria for assessing whether a person is suitable for judicial appointment. These criteria cover legal ability, qualities of character (including personal honesty and integrity, open- mindedness, impartiality, courtesy and social sensitivity), personal technical skills (such as effective oral communication, mental agility and time management and organisational skills), and reflection of society (the quality of being a person who is aware of, and sensitive to, the diversity of modern New Zealand society).

Recognising previous professional and personal experience in judicial applicants
Recent changes to the application process ensure that consideration is given to an applicant’s previous professional and personal experience, including information about previous service to the community and commitment to access to justice.

The expression of interest form that is filled in by anyone nominating a candidate for, or expressing interest in, appointment to the bench contains specific questions about language and cultural knowledge, life experience, past involvement in access to justice initiatives, and in teaching and learning in the field of legal or judicial education. An example is the High Court judge expression of interest form.

Expression of Interest High Court Judge 2022 (justice.govt.nz).

The appointment pool: work being done towards a more diverse judiciary
Work continues to ensure the New Zealand judiciary reflects the community it serves. Although final responsibility for judicial appointments rests with the executive, the judiciary recognises a responsibility to highlight the importance of diversity in appointments, and to encourage lawyers from a diverse range of backgrounds to seek judicial appointment.

The New Zealand Law Society | Te Kāhui Ture o Aotearoa reports annually to its members about the demographics of the profession,[7] and these reports indicate that the profession is increasing in diversity in the younger ranks. Lawyers with less than seven years post-admission experience are more likely to identify as Māori, Pasifika or Asian than their more experienced colleagues, and the numbers have increased since 2022. In 2023, the results for lawyers with less than 7 years post-admission experience showed the percentage of:

Asian lawyers (those identifying as Chinese, Indian, southeast Asian, or other Asian) rose from 16.2% in 2022 to 22.7% of the cohort
Māori lawyers increased from 9.7% to 12.1%
Pacific lawyers (identifying as Cook Island Māori, Fijian, Niuean, Samoan, Tokelauan, Tongan, or other Pacific Peoples) increased from 4.3% in 2022 to 6.4%.

This bodes well for the future diversity of the legal profession and judiciary.

Increasing diversity in the profession is also reflected in the growing numbers of lawyers who speak another language alongside English. There has been a 38 percent increase in the number of te reo Māori-speaking lawyers since 2022 and a 45 percent increase in Mandarin speakers. Other languages to see a marked increase include French, Hindi, Korean, New Zealand Sign Language, Spanish, German, Afrikaans, Cantonese, Samoan and Urdu.[8]

But for now, challenges to achieving a fully representative profession, and therefore judiciary, remain. For example, although in 2023 women made up 55.4 percent of the legal profession, achieving gender-equality in the senior tiers of the profession (and consequently readiness to join the judiciary) remains a work in progress.

Some law firms and chambers are supporting initiatives to increase diversity in the profession – for example by providing scholarships and mentorships to support students who may otherwise not have pursued a career in law.[9] Others promote diversity and inclusion initiatives to attract and keep women and diverse candidates to and in their firms.[10] These initiatives to bring and retain a greater diversity of people, thought and experience into the profession are to be commended.

Encouraging inclusion, identifying barriers
In December, Te Awa Tuia Tangata | the Judicial Diversity Committee ran an initiative called ‘What is really behind the curtain’, aimed at giving students and inexperienced practitioners an opportunity to experience being, and speaking, in court. Hosted by Chief Employment Court Judge Christina Inglis and Employment Court Judge Merepaia King (who were joined by a prosecutor from the Manukau Crown Solicitor’s office, a King’s Counsel and experienced court staff) the event saw more than 50 people take part.

They were given the opportunity to have their appearances taken in front of a judge, be sworn/affirmed as witnesses, to hear about different paths in a legal career, and to ask questions in the concluding discussion.

The judiciary also engages with law schools to support initiatives encouraging the education of a diverse range of law students, and with the profession to encourage practitioners to undertake a broad range of work to equip them for the judiciary.

CELEBRATING 150 YEARS OF LEGAL EDUCATION
The University of Otago Law Faculty, the oldest law school in the country, celebrated its 150th anniversary in April 2023. As part of the festivities and events, former students Justices Christine French, Forrie Miller and Sarah Katz shared their experiences and engaged in a question-and-answer session with second year and Honours students at the law school.

In July, the University of Canterbury law school also celebrated its 150th anniversary. The Chief Justice gave a public lecture in Christchurch to celebrate that event issuing a challenge to educate a legal profession fit for the next 150 years including by teaching law and skills that will meet legal need in the community and understanding how the law, and the work of lawyers, operates within a broader justice system and broader society.[11]

Judicial workforce

A list of all sitting judges and judicial officers for the period reviewed can be found in Appendix 3. Judges who retired during the period are listed in Appendix 4.

As at 31 December 2023 there were 262 permanent judges and associate judges, 48 acting judges and more than 241 [12] judicial officers presiding in New Zealand’s court system.[13] The numbers by court are as follows:

Supreme Court | Te Kōti Mana Nui

Six judges

One acting judge

Court of Appeal | Te Kōti Pīra

Ten judges

One acting judge

High Court | Te Kōti Matua

39 judges

Five acting judges

Eight associate judges [14]

District Court | Te Kōti-ā-Rohe

169 judges [15]

37 acting warranted judges

20 community magistrates

Approximately 170 judicial justices of the peace (JJPs)

Te Kooti Whenua Māori | Māori Land Court and Te Kooti Pīra Māori | Māori Appellate Court

13 judges

One acting judge

Employment Court | Te Kōti Take Mahi

Five judges

One acting judge

Environment Court | Te Kōti Taiao

Eight judges

14 alternate judges [16]

12 environment commissioners

Three deputy environment commissioners

Coroners Court |

Te Kōti Kaitirotiro Matewhawhati

22 coroners [17]

Eight relief coroners [18]

Seven associate coroners

Court Martial |

Te Kōti Whakawā Kaimahi o Te Ope Kātua

Ten judges [19]

Court Martial Appeal Court |

Te Kōti Pīra Whakawā Kaimahi o Te Ope Kātua

Three appointed judges [20]

Judicial appointments in 2023
There were 46 new appointments to the judiciary in 2023. Notably this includes seven appointments to the newly established associate coroner role and the recruitment of eight community magistrates.

It was an extraordinary year for retirements from the senior courts. Appointments were made to cover ten retirements and one appointment to a statutory position.

COURT	New judges and judicial officers appointed by bench (excluding elevations)
High Court	Six judges One associate judge
District Court	15 judges Eight community magistrates
Māori Land Court	One judge
Employment Court	One judge
Environment Court	Two judges
Coroners Court	Five relief coroners Seven associate coroners

Acting judges
Acting judges are typically judges who have reached the mandatory age of retirement for judges (70) and have been granted an acting warrant to continue on the bench. They play a crucial part in the continued operation of the courts and have been fundamental to the ability of the courts to tackle backlogs related to COVID-19. During the year, 21 judges and judicial officers reached the mandatory retirement age. Fifteen of those judges and judicial officers continued to support the courts after they reached mandatory retirement age in an acting warranted capacity.

COURT	Acting warrant taken up during 2023	Acting warrant concluded during 2023
Supreme Court	Nil	Nil
Court of Appeal	1	1
High Court	5 judges	3 judges
District Court	9 judges	9 judges
Māori Land Court	1	Nil
Employment Court	Nil	Nil
Environment Court	Nil	Nil
Coroners Court	Nil	Nil
Totals	16	13

Appointments to the High Court in 2023
It was a year of change for the High Court bench. The High Court welcomed new Chief High Court Judge, Justice Sally Fitzgerald, in December, following the appointment of former Chief High Court Judge, Justice Susan Thomas, to the Court of Appeal.

From a bench of 47, eight judges retired, two were appointed to the Court of Appeal, and two more appointments to the Court of Appeal were announced (to take effect in early 2024).[21] One new associate High Court judge and seven new High Court judges were appointed in 2023. To enable the Court to respond to the increased workload caused by COVID-19 related disruptions, five retiring judges were made acting High Court judges.[22]

Judicial wellbeing

Judges manage heavy workloads and are responsible for making decisions that have considerable impact on people’s lives. In the course of their daily work, many judges are exposed to distressing material, and are responsible for resolving traumatic and high-conflict situations. Their work can therefore be stressful. In recent years, that stress has been exacerbated by the disruption of COVID-19 and extreme weather events which created both difficult working circumstances and added workload.

Given the impact that a judicial decision has on the parties before them, and on the development of the law, it is crucial that judges are supported to judge well. Heads of bench continue to explore a proactive approach to judicial wellbeing.

The Judicial Wellbeing Steering Group, which includes judicial representatives and expert advisor Professor Ian Lambie ONZM,[23] has initiated a change in approach so that wellbeing supports are available and accessed by judges as part of their preparation for work—in other words, they are in place to prevent, rather than respond to, negative impacts on judges’ mental health. The steering group is tasked with identifying what is required to move from the existing pastoral care model to this more proactive approach.

In 2023, the steering group oversaw the expansion of a panel of suitably qualified clinical psychologists to offer professional support sessions and other services to judges throughout the country. Allocated time out of the roster is available for judges to access this support.

Judicial education

Te Kura Kaiwhakawā | Institute of Judicial Studies is a judge-led organisation that supports continued learning for judges through all stages of their careers, via provision of targeted education programmes and online, judge- specific resources, namely bench books.

The education provided supports the day-to- day needs of judges sitting in court. In 2023 Te Kura developed bespoke seminars for Family Court judges on evidence in family proceedings and child-responsive decision-making. It also concentrated on the family law aspects of other regular seminars such as Family Violence.

For the senior courts [24], Te Kura reviewed the role and membership of its education committee and introduced new programmes of particular interest to senior court judges, including assessing expert evidence and an advanced evidence and procedure course.

In September, in recognition of the role that tribunals play in facilitating access to civil justice in New Zealand, Te Kura extended access to its educational resources and bench books to members of all tribunals administered by the Ministry of Justice.

Te Kura's core seminar programmes include:

an intensive week-long programme for new judges covering the transition to judicial life, the role of the judge and courtroom management
regular programmes in evidence and procedure, decision-making and judgment writing
updates on substantive law
courses on social and legal context
renewal and resilience seminars to support judges to judge well—topics include leadership, mentoring and wellbeing.

Judges are regularly required to apply concepts from tikanga Māori. Many statutes incorporate tikanga concepts into law, and tikanga has been recognised as part of the fabric of the common law in New Zealand. In addition, tikanga Māori continues to regulate and guide whānau, hapū and iwi in their everyday lives, and is therefore important social context for judges to understand. Tikanga and te reo Māori are therefore core parts of the judicial education curriculum.

Te Kura has partnered with Te Whare Wānanga o Awanuiārangi to deliver an advanced programme for judges engaging with tikanga. This will complement a pre-existing course at the introductory level. The course will begin in 2024.

Bench books and related resources

Bench books are electronic resources for judges and judicial officers that bring together up-to- date case law and statute, legal commentary and practice directions. All this information is available elsewhere—for instance, through legal publishers, and on judgment publishing sites such as Judicial Decisions Online—however bench books are a convenient repository for this information, tailored towards what judges need to know to deal with common situations.

Te Kura develops and maintains the 12 judicial bench books, which are written in collaboration with judicial officers as a resource for use in their day-to-day work on the bench.

Each bench book is subject to regular review by an editorial committee, made up of judges and in some cases subject-matter experts. For example, the Family Violence Bench Book Editing Committee includes an advisor from the Family Violence Death Review Committee. In 2023, there was a strong focus on educating judges about the Sexual Violence Legislation Act 2021, which made significant reforms to pre-recorded evidence provisions, and introduced the requirement for a judge to direct the jury about misconceptions arising in sexual cases. Te Kura published updated content on these reforms in its Criminal Jury Trials Bench Book and Sexual Violence Trials Bench Book.

Te Kura Kaiwhakawā continues to work towards the public release of bench books—this year publishing example sexual violence evidential directions and commentary, developed to assist judges to direct juries on misconceptions relevant to cases in which sexual offending is alleged, on the Courts of New Zealand website.

The public release of this material has provided opportunity for further engagement with the profession on its content. Following additional feedback from the profession, the sexual violence misconceptions working group re-convened to review the misconceptions materials and to consult with the profession about the existing directions. A revised iteration will be published in 2024.

The Criminal Jury Trials Bench Book and Te Puna Manawa Whenua | Māori Land Court Bench Book are scheduled for public release in 2024.

The jurisdictional bench books are:

Senior Courts Bench Book
District Court Bench Book
Family Court Bench Book
Youth Court Bench Book
Te Puna Manawa Whenua | Māori Land Court Bench Book
Employment Court Bench Book
Environment Court Bench Book
Coroners Court Bench Book.

The specialist bench books are:

Criminal Jury Trials Bench Book
Sexual Violence Trials Bench Book
Family Violence Bench Book
Kia Mana te Tangata | Judging in Context: A handbook.

Judicial conduct

The Guidelines for Judicial Conduct emphasise the importance of judicial independence and impartiality, and the high standard of behaviour expected of the judiciary, both in the courtroom and in their personal lives. The guidelines are available on the Courts of New Zealand website.

During the course of their judicial career, judges receive ongoing education and support on topics connected to judicial conduct.

It is important to the administration of justice, and to the standing of the judiciary that there are well understood processes available to those who wish to raise concerns about the conduct of a judge. There are three processes in place.

The primary mechanism for dealing with complaints of judicial misconduct is through the independent office of the Judicial Conduct Commissioner, established under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004. That Act sets out a process for investigating complaints about judicial conduct and for removal of a judge or relevant judicial officer from office for serious misconduct. The Act’s processes are designed to ensure that judicial independence and natural justice are protected and observed.

The judiciary and the New Zealand Law Society have an informal process for dealing with concerns about judges’ conduct in court (available on the Courts of New Zealand website). This process was created because of feedback from the legal profession that practitioners often do not wish to invoke the formal complaints process available under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 and would prefer to have complaints dealt with anonymously.

Finally, the judiciary has established a policy under which registry or Ministry of Justice staff members can raise concerns or can complain about bullying or harassment by a judge. Work is progressing on a complementary policy for judicial officers (those with judicial functions who are not judges, such as community magistrates and judicial justices of the peace), led by the Office of the Chief District Court Judge | Te Whare o Ngā Kaihautū o te Waka o Te Kōti-ā-Rohe.

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Footnotes

[7] Marianne Burt and Jacqui Van Der Kaay “Snapshot of the Profession” (2023).

[8] Marianne Burt and Jacqui Van Der Kaay “Snapshot of the Profession” (2023). These numbers may also, in part, be attributed to improved data collection, particularly related to new lawyers.

[9] Some examples of promoting law to students include Meredith Connell Community focus | Meredith Connell (mc.co.nz) – Te Kuhunga programme provides school visits, office visits, university open days, scholarships and university This programme is delivered in conjunction with Gilbert Walker and Shortland Chambers.

Simpson Grierson (https://www.simpsongrierson.com/community) works with Waikato-Tainui, Ngāi Tahu, and TupuToa to support Māori and Pasefika students. It also has a weekly mentoring programme at Ōrākei Scol for Year 8 pupils. In addition, it collaborates with Youthline to improve leadership and personal skills in young people.

Chapman Tripp (https://graduates.chapmantripp.com/who-we-are/community/) sponsors initiatives or activities in the legal field that support a diverse range of law students interested in commercial law. It engages with 22 societies, such as Pride in Law, Women in Law, Law for Change, Asian Law Students’ Association, Pacific Island Law Students’ Association, and many Māori law societies.

Minter Ellison Rudd Watts (https://www.minterellison.co.nz/about/diversity-and-inclusion) offers students fully paid internships and employment opportunities during their tertiary studies. It has some initiatives for improving diversity, such as mentoring programmes at Kelston Girls’ College.

[10] One example is DLA Piper (https://www.dlapiper.com/en-nz/locations/new-zealand) which set up a diversity and inclusion steering committee in 2017. The committee promotes an inclusive work environment for all, flexible working and workplace agility, cross-generational understanding, and inclusivity of all races and cultures.

[11] Keep Running Up That Hill: The Challenge of Educating a Legal Profession Fit for the Next 150 years.

[12] Judicial officers are made up of 71 community magistrates, environment commissioners and deputy commissioners, coroners, relief coroners and associate coroners, and over 170 judicial justices of the peace.

[13] Some judges and judicial officers hold more than one position or sit in more than one court.

[14] One associate judge is currently appointed as full-time as Chair of the Independent Police Conduct Authority | Mana Whanonga Pirihimana Motuhake.

[15] Including judges on secondment or performing special roles (such as Children’s Commissioner or Chief Coroner) but excluding Environment Court judges.

[16] Alternate judge is the terminology used in the Resource Management Act for “acting judge”. Alternate judges are either retired Environment Court judges or serving judges of the District Court or Māori Land Court. Alternate judges who are retired Environment Court judges generally serve in a full-time capacity, whereas alternate judges who are serving judges of the District Court or Māori Land Court sit only on select cases.

[17] During 2022, the cap in the Coroners Act 2006 was raised from 20 to 22—see s 109(2)(a).

[18] Relief coroners perform the same role and function as coroners. They have a fixed-term warrant and may work either full or part time. Associate coroners hold a fixed-term warrant and do not have the power to hold an inquest.

[19] Only the Chief Judge sits full-time in the Court Martial. The Deputy Chief Judge and all other judges are District Court Judges who sit on an as-required basis.

[20] Appointed judges are practising lawyers or retired High Court judges, who sit in this court on an as-required basis. All judges of the High Court are also judges of the Court Martial Appeal Court. The Court sits as a panel of three, with at least one appointed judge.

[21] Justices Christine Gordon, Ailsa Duffy, Ed Wylie, Jan-Marie Doogue, Anne Hinton, Rob Osborne, Simon Moore and Helen Cull all retired in 2023. Justice Jill Mallon was appointed to the Court of Appeal in March and Justice Susan Thomas was appointed in December. The appointments of Justice Rebecca Ellis and Justice Francis Cooke to the Court of Appeal were announced in December; these will take effect in mid-January and mid-March 2024 respectively.

[22] One retiring High Court Judge (Justice Wylie) was appointed as an acting Court of Appeal judge.

[23] Registered Clinical Psychologist, Professor of Psychology at the University of Auckland | Waipapa Taumata Rau, and Chief Science Advisor for the Justice Sector.

[24] The Supreme Court, the Court of Appeal and the High Court are collectively referred to as the senior courts.