Should the Chief Justice short list senior judges?

Roger Partridge writes:

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.

This gives massive power to the Chief Justice. A Chief Justice is appointed at the personal discretion of the Prime Minister, and may serve for a long time. Dame Sian Elias did 20 years. Most do at least 10. The current Dame Helen Winkelmann will do 13 years.

And the current rules give the CJ an effective veto. No one can even be considered by the Attorney-General for the senior courts, unless the CJ agrees they make the short list.

For my 2c it would be more sensible to have the Chief Justice consulted on the short-list, but not needing to agree on it.