Is it appropriate to publicly criticise judges or their decisions?
Judges are required to decide the cases before them based on their careful assessment and application of the law to the evidence.
Before reaching a view about a particular decision made by a Judge, it is essential that you have read the written reasons given by the Judge, and that you understand the (often complex) factual situation and the rules that the Judge was required to apply.
Public criticism of individual judges can threaten the ability of the judiciary to carry out their role in an independent and impartial manner. For these reasons, it will rarely be appropriate to publicly criticise individual judges.
How are judges appointed?
Judges are not civil servants, they are an independent branch of Government. This is important because it maintains the separation of powers between the executive (usually referred to as the Government) and the judiciary.
The appointment process differs depending on the court or tribunal. The basic rule is that a person must usually have held a New Zealand practising certificate for at least seven years. This is to ensure that judges are experienced in and know the law. However, specialist tribunals (such as the Waitangi Tribunal) may require specialist skills and the appointment process is designed to consider that.
The Chief Justice is our leading judge. She was pointed by the Governor-General on the recommendation of the Prime Minister. She presides over our most senior court, the Supreme Court.
The judges of the Māori Land Court are appointed by the Governor-General on the recommendation of the Minister for Māori Development.
The Attorney-General, the Chief Justice and the Solicitor-General recommend other judges for appointment to the Governor-General.
Judicial appointments are non-political. Unlike some jurisdictions, judges are not voted into office, nor are they selected for their political affiliations. This is important because it ensures that judges remain independent of the government and the executive.
Judges are selected on the basis of their qualifications, personal qualities and relevant experience. Under the Senior Courts Act, there is a protocol for choosing High Court Judges. A list of potential appointees is sent to the New Zealand Bar Association and the New Zealand Law Society for general comments. The Chief Justice and the Attorney-General then agree on a shortlist of three possible candidates from which the Attorney-General will appoint one person after conferring with the Chief Justice and the President of the Court of Appeal. The Attorney-General may be looking to fill a gap in the court with someone with specialist knowledge, such as experience in international law. But generally, candidates must have good all-round experience.
Do judges receive any training?
Most litigators are familiar with court processes and rules. They are experienced lawyers when they are appointed but the Institute of Judicial Studies provides ongoing training for all judges. There is a range of programs for judges throughout their career and the curriculum covers everything from judgment writing, dealing with vulnerable witnesses and defendants through to Tikanga and Te Reo.
Can you complain about a judge?
The Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 sets out procedures for investigating complaints about judicial misconduct. There are two classes of complaint:
The process begins with a preliminary investigation as to whether the complaint has substance. The Judicial Conduct Commissioner can do one of four things:
The most common procedure is to refer the complaint to the head of bench who will deal with behaviour. A judge who has acted inappropriately would normally apologise to the complainant. If there were to be an investigation that recommended a judges removal, the ultimate decision would rest with the Attorney-General who has a discretion as to whether the judge should be removed.
The Attorney-General can initiate removal procedures without referral to the Judicial Conduct Panel when a judge who is convicted of an offence punishable by imprisonment for two years or more.
Details on how to make a complaint can be found on the website for the Office of the Judicial Conduct Commissioner.