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Read the statute and New Zealand’s Attorney-General picks the senior judges. Read the protocol and the Chief Justice decides who gets on the list.
Roger Partridge is stirring the judicial pot again.
Ask most lawyers who appoints New Zealand’s senior judges and they will quote the Senior Courts Act 2016. The Governor-General appoints. She acts on the Prime Minister’s advice for the Chief Justice and on the Attorney-General’s recommendation for everyone else. The Attorney-General answers for the choice in the House and at the ballot box. Nobody else’s sign-off is required.
Roger Partridge says that answer is wrong. In his substack column the New Zealand Initiative chair and former Bell Gully chair points to a document few practitioners have read.
The fine print
The Attorney-General must publish how he or she recommends judges, which is done in the Judicial Appointments Protocol, last reissued in November 2025 under Judith Collins KC.
For the Supreme Court and Court of Appeal, the shortlist of up to three names needs the Chief Justice’s agreement. For Supreme Court vacancies, she confers with the judges already on the bench before deciding.
Agreement is not consultation. If the Chief Justice won’t agree, there is no shortlist. The Attorney-General still makes the final pick, but only from a field the Chief Justice has approved. Supreme Court candidates usually come from the lower senior courts, so most will have passed her gate twice already.
None of this is new as the arrangement goes back to at least 1999. Attorneys-General from both major parties have worked under it. Christopher Finlayson KC wrote the agreement requirement into the protocol in 2013. The Law Commission raised the issue in 2012 and recommended a statutory duty to consult. Parliament ignored that recommendation in 2016 and also never authorised a veto.
Why it matters now
Partridge argues the gate was tolerated because choosing judges was seen as a technical question of legal skill. He says the Supreme Court now makes values-driven policy calls, and points to Chief Justice Winkelmann’s reasoning in Ellis v R.
If that is right, a gate run by sitting judges can filter for people who share their view of the judicial role as the judges give no reasons and answer to no one for their choices.
He makes some fair concessions. The Chief Justice doesn’t choose the appointee as her power is only to block names. She has no say in who succeeds her. And the Attorney-General can still pass over any candidate she favours.
The fix
Partridge’s remedy is simple because the protocol belongs to the Attorney-General, so Chris Bishop can change “agreement” to “views” without a bill. Parliament could then add fixed terms for Supreme Court judges and require the Attorney-General to report on appointments. His conclusion: “The Attorney-General should take it back.”
The LawFuel take
Partridge has identified an anomaly, being a significant constitutional power existing by administrative habit, not by statute, which is worth fixing whatever you think of the Supreme Court’s direction. And we know Roger Partridge’s views on that point.
His bigger claim, that the gate is now being used to protect a judicial philosophy, is harder to prove. The protocol is not secret, but we don’t know how it is being exercised. Removing it would also hand the choice of shortlist back to one politician, at a time when governments here and abroad are showing more interest in shaping their courts.
The UK sends appointments through an independent selection commission. That model takes power away from both senior judges and ministers, and it may be a better answer than either side of this debate is offering.
Judicial independence matters. So does knowing who actually decides who becomes a judge.
