In 2019 the Remuneration Authority completed a comprehensive review of its approach to the remuneration of the judiciary.
The judiciary is a fundamental cornerstone of our democratic society and constitutionally has a distinct place in the independent and impartial oversight of the legality of the activities of citizens and government. Along with Parliament itself, the judiciary provides assurance that the Executive Government of the day and the agents of the state can be held to account for their actions. Courts moderate the nature of policy and its application to the public by their judgements, including the fact that there is potential for judicial oversight.
As society has changed, the involvement of the courts and the nature of their engagement with the public has evolved. This is most visible to citizens in the evolving form of the District Court as a response to emerging concerns and the manner in which they now operate. In 2004 the Supreme Court was established as the ultimate judicial authority of New Zealand, sitting permanently in Wellington.
The cessation of appeals to the Privy Council of the United Kingdom also reflected change in our society, shaping the role of the most senior court. The importance of the courts can be seen in many ways by different communities, for example the 1978 Royal Commission on the Courts noted in the forward that “To many Maori people, the word ‘court’ immediately connotes the Maori Land Court”.
The Authority considers that the integrity of any of the courts rests on the confidence people have in all courts, regardless of their roles. The processes of appointment and remuneration of the judiciary have the purpose of reinforcing their independence from political, commercial or financial pressures.
Those who are appointed to the Judiciary gain certainty in income and workload, a high level of job satisfaction and demanding work, a distinct professional standing, a highly-regarded place in our system of government and a structured pathway for retirement provision. These all play a part in ensuring that the judiciary remains a highly valued calling for those who have the qualifications, experience and aptitude for this work.
The quality of the operational support in the management of courts is also an important ingredient in the working life of judges and inadequacies in this would be a potential source of frustration and potentially put pressure on remuneration expectations.
The Supreme Court is New Zealand’s highest court and the final appeal court. As such, the Supreme Court has the role of maintaining the overall coherence of New Zealand’s legal system. The remuneration of Supreme Court Judges recognises the unique status of the Supreme Court within the justice system and its embedding as a permanent court since its establishment 2004.
The Court of Appeal of New Zealand is the principal intermediate appellate court of New Zealand. It is also the final appellate court for a number of matters. In practice, most appeals are resolved at this intermediate appellate level, rather than in the Supreme Court. The Court of Appeal ensures consistency in application of the law in the High Court.
Because of its position in the judicial structure, the High Court is the court to which most applications are made for authoritative declarations of law. For such matters that affect the integrity of government, the High Court has inherent common law jurisdiction. No other court within the New Zealand legal system has a non-statutory substantive jurisdiction and general supervisory functions.
Associate High Court Judges form a de facto specialist group within the High Court. They have some but not all of the authority of a High Court Judge, in well-defined areas. Their remuneration reflects a pragmatic response to the position that they share with other specialist courts in having a different relationship with the Court of Appeal and judgments with very significant monetary implications.
In general, while appointees to the District Court will typically complete their judicial career on that bench, appointees to the High Court may be later appointed to the Court of Appeal or the Supreme Court, in which case they would move to a higher level of remuneration (although they remain members of the High Court).
As most civil and criminal matters start off in the District Court, it is New Zealand’s largest and busiest court and carries the bulk of the judicial workload. District Court judges sit in 58 locations spread throughout New Zealand.
The District Court is responsible for the proper protection of New Zealanders, the proper determination of remedies and sanctions from unlawful acts and the integrity of the operational activities of government.
The District Court can also hear appeals from certain tribunals and authorities.
In addition to its civil and criminal jurisdictions, the District Court has a Family Court division and a Youth Court division. These are specialist benches within the District Court. The Family Court deals with most family law issues and the Youth Court deals with criminal offending by children and young people.
All of the specialist courts have a defined statutory jurisdiction.
The Court Martial Appeal Court is constituted under the Court Martial Appeals Act 1953 and comprises the Judges of the High Court and any such other persons, being barristers of the High Court of New Zealand who have held a practising certificate as such for not less than 7 years or former Judges of the High Court. Its primary purpose is to hear appeals against decisions made by the Court Martial.
The Court Martial is established under the Court Martial Act 2007 and is a court of record. A person appointed as a Judge of the Court Martial must hold a practising certificate as a barrister or solicitor of the High Court for at least 7 years.
The jurisdiction of the Court Martial covers any charge against a person subject to the Armed Forces Discipline Act 1971 in respect of an offence against this Act, whether committed in New Zealand or elsewhere.
The Employment Court is a specialist court, tracing its origins through various institutional forms enacted by a succession of legislative changes from 1894.
Established by the Employment Contracts Act 1991, the Employment Court, together with the Employment Tribunal, has exclusive jurisdiction to hear and determine proceedings founded on an employment contract. It has both an appellate jurisdiction to hear appeals against Employment Tribunal decisions and a first instance jurisdiction including injunctive relief, plus the common law remedy of wrongful dismissal.
Under the Employment Relations Act 2000 the Employment Court has jurisdiction to hear and determine challenges against Employment Relations Authority determinations, questions of interpretation of law, review and injunctions in respect of strikes and lockouts.
The Māori Land Court is a court of record. It is constituted under the Te Ture Whenua Māori Act 1993, which recognises Māori land as a taonga tuku iho of special significance to the Māori people. The primary objective of the Court is to promote and assist in:
The importance for the Court of a foundation in tikanga Māori and the depth of analysis of whanau and whenua lie alongside the capacity to challenge the adaption of an evolving constitutional and legal appreciation of these in other arenas. The Authority also recognises that the varying scale of cases taken to the Māori Land Court.
The Environment Court is a national court which sits in different parts of the country. It is also an appellate court that can consider matters afresh. The majority of the court's work involves hearing appeals about issues that arise under the Resource Management Act 1991.
Under section 249 of the Resource Management Act 1991 an Environment Judge must be an appointed District Court Judge in order to hold office in the Environment Court.
The Environment Court decisions involve judgements about the nature of the long-term balance between environmental, social and economic costs and benefits. The court has no financial limit on the matters it can consider and often handles high value cases that can last many months. The nature of the cases results in large variations in the demands placed on the court and these are responded to by managerial practices rather than changes in the number on the bench. The Environment Court can make declarations.
The Coroners Court is governed by the Coroners Act 2006. Under the Act, a coroner must have held a practising certificate as a barrister or solicitor for at least 5 years.
Coroners are judicial officers but not classified as judges in New Zealand. Unlike other judicial officers, coroners have a strong investigative function that can ensure that any death can be explained, for the purpose of identifying preventative measures through a well evidenced explanation of the causes. It is the coroner who determines the extent and process of inquiry, some of which may involve investigating a group of deaths that have common characteristics. The way that the Coroners Court carries out its inquiries has to be sensitive to the personal connection to the dead by witnesses.
Coroners do not hold trials. At the end of their investigation a coroner make comments or recommendations if something can be done to prevent similar deaths happening again. Coroners do not attribute blame or punish people.
All judges of the District Court and the specialist courts and the coroners enjoy the immunities of High Court Judges.
There are roles outside of the judicial system that require a Judge’s warrant, while other roles (such as the Law Commission and Children’s Commissioner) allow for sitting judges to hold a role not necessarily held by a judge. There are other appointments where the remuneration or salary component is set at that determined for a judge.
Given the distinctness of the judiciary compared to other callings, the Authority recognises the importance of not only absolute levels of income, but also relative levels. For the judiciary, there is a distinction between ensuring that the relative position in any judicial role is understood and generally reflected in the level of remuneration and its relativity to other roles, and the responsiveness of remuneration to the particular mandate of the Authority. At least four distinct factors exist. These are:
The evidence base available to the Authority in assessing the remuneration of judges is limited by the uniqueness of the role. As with most of the other positions for which the Authority has responsibility, there are few exacting benchmarks that bring an unqualified objectivity to determining remuneration.
It is Parliament’s role to decide the nature of any relative hierarchy among the courts, the most significant being recognition of a distinction between the work of the High Court and the District Court. The establishment and evolution of different courts and the developing social and economic conditions to which they are a response, have not been accompanied by any significant realignment of the relative position between these courts since the establishment of the District Courts in 1980.
The determinations of the Authority reflect shifts in the factors that it is obliged to take into account by legislation. These include scope changes and recruitment, as well as workload changes and conditions. The Authority’s determinations have to meet many tests and this challenges the ability to present every year a determination that meets them all, across all benches. In any year some issues will be resolved pragmatically or remain unresolved from the perspective of particular benches.
The Authority’s response to particular concerns can vary over time and how these have been balanced in past determinations is unlikely to be the basis for setting rigid precedents that bind future determinations. There are few comparable grounds with which to examine all benches, but this is the Authority’s task. Those who are engaged in the workings of a particular bench will most certainly have insights that go beyond that of the Authority.
As with many senior leadership and professional positions in the public sector, a good number of the judiciary receive a level of remuneration that is less than they would have received in commercial roles at the time of appointment to the bench. Hence, once appointed, judges are protected for their remaining life from significant fluctuations in lifetime earnings through the scale of the retirement provision.
Security of tenure, administrative independence and financial security are recognised as key elements of judicial independence. The retirement provision is long recognised as involving some form of protected retirement income that is related to the term on the bench and salary received then. Like salary, it is set at a level to ensure independence of the judicial officer while on the bench and in retirement.
Thus the retirement provision has the purpose of ensuring that judicial officers have certainty of income in retirement and are therefore not forced by economic circumstances to seek income earning opportunities which others might perceive could have been advanced while active members of the judiciary. This is the justification for judicial officers receiving a retirement provision which differs from others enabled by Parliament.
The Authority accepts this premise, though it does not know how much the form and quality of retirement provision has contributed to the integrity of the judicial benches in New Zealand, or whether the change from defined benefit to defined contribution schemes has had an influence, if any.
The defined benefit scheme which applied for many years was comparable in form to positions in the public service at the time. Since 1 July 1992, retirement provision for judges has been by way of working life contributions and government subsidy paid each year into a defined contribution scheme.
Whilst it is comparable in form but more extensive than those now predominant in New Zealand, individual judges are now required to arrange for the management of their retirement funds during their tenure as Judges, so that their retirement income will be subject to the vagaries of economic cycles and the competence of any personal investment advisors as it accumulates.
The nature of further employment that judges undertake after retiring from the bench (or leaving it early) is limited by convention. This is not seen as a significant inhibiting or undesirable factor for those taking up appointment, or for confidence in the judicial system.
Currently, a number of retired judges do take alternative employment in mediation and arbitration, and were this to become more common, then some weight might need to be given to employment after retirement from the bench, when assessing the level of the part of remuneration relating to retirement provision
Where a retirement allowance is paid to those who have a fixed term appointment as a judicial officer, that judicial officer may receive a KiwiSaver allowance. Those in this situation are:
A retired judge who has been appointed as an acting judge is not entitled to any retirement allowance.
The following Acts all stipulate that a superannuation subsidy must not be paid to a person who is appointed as an acting judge.
However, this does not apply to the compulsory employer contribution within the meaning of section 101A of the KiwiSaver Act 2006(external link)