A Constitution for Aotearoa New Zealand keeps court structures as they are, but proposes some additional safeguards for judicial independence.
Courts and tribunals make decisions about disputes by applying and interpreting the law. Their decisions are authoritative, and can be enforced if they are not respected.
While courts and tribunals hold significant power, they cannot take the initiative in developing law or policy – they can only adjudicate on the disputes that are brought to them. They are reactive, not proactive.
Other than making provision for the courts to invalidate any Act of Parliament that is unconstitutional, A Constitution for Aotearoa New Zealand proposes very few changes to the judiciary. As with most provisions concerning the machinery of government, nearly all of the provisions concerning the Judiciary reflect existing practice.
In particular, our proposed constitution continues the current structure of the senior courts – the Supreme Court, the Court of Appeal and the High Court – while permitting Parliament to organise the other courts and tribunals as it sees fit.
Our proposed constitution also continues existing protections against removal of judges from office and reduction of judges’ salaries, which are designed to protect judicial independence. The proposed constitution also provides for a compulsory retirement age for senior court judges.
We do propose one significant innovation, which is designed to strengthen protections for judicial independence.
Currently, judges are appointed by the Governor-General on the recommendation of the Attorney-General, who is a Minister in Cabinet. The Attorney-General typically consults the judiciary and others before making recommendations.
The process is less transparent than it should be and less transparent than is the case in a number of overseas jurisdictions to which we typically compare ourselves.
Furthermore, if the courts are to decide whether Government and Parliamentary actions are constitutional, it is important that the process by which judges are appointed is more free of executive influence than the current process is.
We therefore porpose the establishment of a Judicial Appointments Commission, made up of members of the judiciary, the legal profession, the House of Representatives, and the public.
The Commission would identify candidates for judicial office, based on merit. No-one could be appointed as a judge unless recommended by the Commission.
In our view this is a significant protection against the politicisation of the Judiciary, and the use of judicial appointment for political patronage. We do not believe that this currently occurs in New Zealand, but with the enhanced role of the judges under our proposed constitution it is prudent to reinforce the current apolitical approach by ensuring that the Government cannot appoint someone to the bench who does not command the respect of the Judiciary, legal profession, MPs and the general public.