New Zealand judges are not elected. They are effectively appointed without scrutiny, in secret, by two officials. Once appointed, they have the job for life and, for all practical purposes, are not held personally accountable for their actions. No judge has been removed from office in New Zealand history (although a few have resigned through the years under clouds of scandal).
Extremely little is publicly known about these judges who provide such a critical function to society. The risk of this public ignorance has been heightened recently by judicial conflict revelations.
New Zealand lawyers are indoctrinated not to express informed opinions of judges. A number of Crown lawyers responded to say they did not consider it appropriate to, or were prevented from, participating in a survey despite the survey being expressly anonymous. Lawyers were invited to post back the surveys in plain envelopes.
No less than the New Zealand Law Society President made a public plea for lawyers not to participate.
These are the lawyers who have been educated to protect our democracy and freedoms. Can you imagine the Law Society and Crown campaigning to keep information on the official conduct of Members of Parliament from being made public?
A total of 730 lawyers and court-minders nationwide were sent this first ever survey of New Zealand judges and asked to evaluate only those judges they were familiar with. The response rate was disappointing, at less than 7%.
Only the 62 Judges in the High Court and above were included in the survey. The results were certainly enlightening, and often surprising.
Retiring Court of Appeal Judge David Baragwanath was the highest overall scorer at 9.1, with embattled Supreme Court Judge Bill Wilson pulling a dismal 3.1 in last place.
Lawyers were asked to score each judge on a scale of 1 to 10 in four categories; knowledge of the law, intelligence, personal character and fairness - as well as provide relevant comments. A survey with all '10's was not considered serious and discarded.
Though women comprise 21% of the judges surveyed, they captured half of the top ten spots and 3 of the top 5 in the rankings. The average rating for female judges was 7.75, compared to 7.50 for the men.
Male judges still scored, on average, higher in knowledge of the law and intelligence, but the women blew the men away on perceived fairness and integrity. If Judith Potter J - a definite outlier in the survey - was removed, female judges on average were considered an astounding 28% fairer in their judicial approach than their male counterparts.
The results from the survey also raised the disturbing possibility that the overall judicial pool is short on talent and that, with the possible exception of Sian Elias, the New Zealand Supreme Court is not the bastion for this scarce legal talent. There appears palpable fear by some lawyers responding that the Supreme Court is not as reliable as the Privy Council was.
Judicial independence was also regularly raised as a concern. So many of the current judges are related or engaged in business ventures together. There is little diversity on the court, with judges coming from many of the same law firms and clubs, and minorities virtually unrepresented. Several lawyers admitted to suffering through cases where the judges had potential conflicts of interest, afraid to raise it for fear of offending the judge and prompting retaliation. Comments were common that many judges act with overt bias on Crown cases.
These results strongly suggest that New Zealand consider re-evaluating the mechanism by which judges are appointed, promoted and monitored. A copy of the survey results has been sent to the Attorney General and New Zealand Law Society.