Appointments to the High Court, Court of Appeal and Supreme Court come down to a list of no more than three names. Who decides which names make the list is not straightforward, even if you have read the relevant statute.
Parliament’s answer is simple. Judges are appointed by the Governor-General. Section 100(1) of the Senior Courts Act 2016 provides that she does so “in the name and on behalf of Her Majesty.” She acts on advice. For the Chief Justice, the advice comes from the Prime Minister, under section 100(2). For other senior courts appointments, it comes from the Attorney-General, under section 100(3): “Every other Judge, and every Associate Judge, is appointed on the recommendation of the Attorney-General.”
So, the Governor-General is not answerable for whom she appoints. The Attorney-General is, in the House and at an election. The Act does not require him to obtain anyone’s agreement. Chief Justice aside, the choice is the Attorney’s alone.
Or so you might have thought.
Under section 93 of the Act, the Attorney-General must publish the process for recommending judges. He does so in the Judicial Appointments Protocol, reissued most recently in November 2025 under the signature of the then Attorney-General, Judith Collins KC.
For appointments to the Supreme Court and the Court of Appeal, it provides that the Attorney-General “will … with the agreement of the Chief Justice, who, in the case of appointments to the Court of Appeal, will confer with the President and, in the case of appointments to the Supreme Court, will confer with the other Judges of that Court, settle a shortlist of not more than three possible appointees.” (Italics added.) A parallel provision governs the High Court.
The italicised words matter. “Agreement” is not consultation. A consultee gives a view the decision-maker may weigh and reject. A person whose agreement is required decides whether the process continues. On the protocol’s words, no lawyer or judge reaches the shortlist for the Supreme Court unless the Chief Justice, having conferred with the judges already sitting there, is content for the name to go forward.
The protocol does not say what happens if she will not agree. It does not need to. Without her agreement there is no shortlist. And a shortlist of “not more than three” may be a shortlist of one.
The Attorney-General then chooses the appointee, but he does not choose the field alone. The Chief Justice is the gatekeeper, with an effective power of veto over the shortlist.
The High Court provision matters more than it might appear to. Section 96 fills the Supreme Court from the Court of Appeal and the High Court. Under the protocol, the Supreme Court shortlist will usually comprise existing judges. The judges on it will have secured the Chief Justice’s agreement twice, once for the High Court and once for the Court of Appeal. Yet, nothing in the statute says this. Section 93 requires the Attorney-General to publish information explaining his process, nothing more.
Parliament did give the Chief Justice a part in temporary judicial appointments. Under section 110, the Chief Justice may appoint a Court of Appeal Judge to sit as an acting Supreme Court Judge, in consultation with the President and for specified proceedings only. For permanent appointments, the Act gives her no role at all. But the protocol gives her one regardless.
How long has this been the position? For longer than either the protocol or the court has existed.
In August 2003, four months before the Supreme Court opened, Solicitor-General, Terence Arnold QC, described the High Court appointment process to the New Zealand Bar Association. Expressions of interest were called for by advertisement and wide nominations sought. Then, in his words, the “sifting” of those names into a long list “is carried out by the Chief Justice and the President of the Court of Appeal.”
When a vacancy arose, the Chief Justice consulted the judiciary, and the Solicitor-General the profession, about a short list drawn from the long list. Finally, “several names” were “put to the Attorney-General,” who settled on her preferred candidate. The process was set out in a booklet published by then Attorney-General, Sir Douglas Graham, in 1999.
Arnold assured the profession that consultation gave no organisation “a power of veto” and that the Attorney-General “will make up her own mind.” Both statements were true of the choice of a successful candidate, but neither was true of how the shortlist was arrived at.
Why nobody objected
Politicians of both stripes went along with the arrangement. A National Attorney-General published the process in 1999; Labour’s Margaret Wilson and Michael Cullen operated under it during the Supreme Court’s founding years; and National’s Christopher Finlayson wrote the agreement requirement down before Judith Collins reissued it in November 2025.
But it was not what Parliament had provided for. Section 100(3) makes the Attorney-General answerable for the choice. The protocol hands part of that choice to the Chief Justice, who confers with the judges already on the court. They answer to no one for it, give no reasons and will sit alongside whoever is chosen.
It was tolerated because it rested on a premise: that what judges do is law rather than politics, so that who becomes a judge is a technical question, best answered by the profession’s most senior members. On that premise, the gate looked like quality control.
The Law Commission raised the issue in 2012, if only in passing. It listed among the “most obvious checks on an Attorney-General” a “requirement for the concurrence of another person before an appointment could be made, perhaps the Chief Justice or relevant Head of Bench.” “Concurrence” of that kind is, in fact, a judicial power of veto over appointments. The Commission took it no further, saying the question went “well beyond the scope of our reference” (at [5.32]). It recommended instead that the Attorney-General be required by statute to consult the Chief Justice, among others, and that the appointment criteria be enacted (R17 and R16).
Parliament took neither course. When the Judicature Modernisation Bill 2013 became the Senior Courts Act 2016, the consultation duty and the statutory criteria were left out. Section 93 required only that the process be published.
By then, the requirement was already in writing – in Finlayson’s protocol of April 2013. In November 2023, the Chief Justice’s briefing to the incoming Attorney-General described the pending senior court appointments as requiring “our early attention,” with “a protocol for judicial appointments to guide us through appointments.”
The protocol’s wording has drawn limited published comment. But an article in the Victoria University of Wellington Law Review in 2015 observed that it appears to give the Chief Justice a veto.
The premise has gone
The veto seemed harmless, assuming that choosing a judge is just a question of legal skill and that senior judges are best placed to assess it. That assumption holds while the judicial role stays, in Jack Hodder KC’s word, “apolitical.”
But as earlier columns in this series have traced, the Supreme Court has too often departed from that role. It rewrites statutory language it dislikes. It reshapes the common law to fit judges’ views of society’s changing values. Winkelmann CJ has articulated the vision behind it in a trilogy of addresses. In Ellis v R [2022] NZSC 114 the Chief Justice said that when the law needs to develop, judges “may look to the values in the society” (at [165]).
Whatever one makes of that method, its consequence for appointments is unavoidable. A court that imposes the values its judges divine is making social policy choices – the job of politicians, not jurists. Once judges take on that role, even some of the time, choosing who sits with them becomes a political exercise. And the protocol leaves those same judges with a veto over who joins their ranks.
A gate that filtered for technical quality can now filter for candidates who share sitting judges’ views of their role. What seemed harmless in 1999 has been made dangerous by the Supreme Court’s legal method.
Who Makes the Law?, my 2024 report for The New Zealand Initiative, proposed reforming judicial appointments processes by encouraging the Attorney-General to place more weight on candidates’ respect for the proper relationship between Parliament and the courts; introducing fixed terms for Supreme Court judges; and requiring the Attorney-General to report to Parliament on new appointments.
These proposals address how the Attorney-General exercises a power of selection, assuming he alone holds that power. But under the protocol he does not, because every criterion he applies operates downstream of a gate the Chief Justice keeps. An Attorney-General who concluded that the court would benefit from a different cast of legal minds could adopt the most rigorous criteria imaginable and still be unable to recommend to the Governor-General a candidate the Chief Justice had declined to let through.
The defence of the arrangement is judicial independence. Because an Attorney-General is a politician, a free hand over appointments invites a government to stack the bench with its friends. The fear is as old as the court: Arnold recorded the claim in 2003 that the new Supreme Court would or might be “stacked” by the Attorney-General, and thought it baseless.
In fact, the Act already contains a constraint. Section 100(3) gives the recommendation to the Attorney-General, who answers for it in the House and at an election. Over time, a bench chosen by Attorneys-General of both sides, each answerable for the choice, will hold more than one view of the judicial role. A bench whose members must first pass the sitting judges will not.
Nobody legislated what we have instead: a judicial gate, operated in private, recorded in a document most of the profession has never read.
It will be said, rightly, that the Chief Justice does not select. Her control is negative rather than positive, exercised over a field rather than a name. And the office does not renew itself: the Chief Justiceship goes through the Prime Minister, with no role for the incumbent in choosing her successor. The requirement also runs both ways. Neither the Attorney-General nor the Chief Justice can put a name on the shortlist alone.
Where the symmetry ends
The Attorney-General and the Chief Justice are not, however, in the same position. A name the Chief Justice wants on the shortlist, the Attorney-General can pass over when he makes his choice. A name he wants, she can keep off the shortlist altogether.
Nor are they equally answerable. The Attorney-General is politically accountable for his choices. The Chief Justice cannot be asked to explain a refusal and should not be. So part of a power the Attorney-General must answer for sits with a judge who cannot answer for it. That is a structural defect whether the practice began in 1999 or 2013.
The Attorney-General’s address to the Law Association on 6 August 2026 was a sustained defence of parliamentary sovereignty: Parliament is supreme because it is representative, the courts lack a democratic mandate, and the polycentric choices belong to the branch equipped to make them. The judiciary’s authority, Chris Bishop said, comes from “its legal expertise, its apolitical nature and its independence.”
That is the premise on which the gate was built. His own speech is a measure of how far it has come under strain. His subject was the courts, not the making of judges. But the gate rests on the same premise and has survived through passivity: a practice predating the Supreme Court, raised and set aside by the Law Commission, written down by the executive, never put to the House, and passed over in silence when Parliament re-enacted the scheme in 2016. The difference is that this one he can fix himself.
Removing the gate needs no Bill. The protocol is the Attorney-General’s own document, published under section 93 and administered by the Solicitor-General. He can revise it so that the Chief Justice’s views are sought, not her agreement. He would then remain free to recommend anyone about whom he has sought views. It leaves the choice where section 100(3) puts it.
What Parliament should then add is two of the reforms Who Makes the Law? proposed: fixed terms for Supreme Court judges and a duty on the Attorney-General to report on the appointments he makes.
Parliament has never given the judges a veto over who joins them. They have one anyway, because Attorneys-General lent it to them. The Attorney-General should take it back.
To read the article on the LawNews website, click here.