Lady Deborah Chambers KC argues for the introduction of fixed terms for judges in New Zealand. This is an article from her fortnightly column published in The New Zealand Herald.
In New Zealand, we are comfortable with one idea almost to the point of reflex: that the longer a judge holds power, the safer our democracy must be.
That instinct is only half right.
Judges should be independent. But it does not follow that judicial leadership, the power to govern courts, set culture, and shape institutions, should be held indefinitely. Treating those two things as inseparable has become a constitutional habit rather than a principled choice. And habits deserve scrutiny.
This is not an argument about how judges decide cases. It is an argument about who runs the courts and for how long.
Over the past few decades, the role of the Chief Justice and the Principal Judges of the various benches – Court of Appeal, High Court and various District Courts – has expanded well beyond adjudication. These roles are powerful. They now involve managing large public institutions, allocating judicial resources, issuing practice directions, shaping court culture, engaging with the executive, and representing the judiciary publicly. This is not judging in another form. It is governance.
Yet in New Zealand, these leadership roles are typically open-ended. That might once have seemed natural. However, in a modern constitutional democracy, it looks increasingly anomalous. A judge may hold the role for a decade or more, limited only by retirement or personal choice. Our last Chief Justice was in the role for 20 years. That would be exceptional for an equivalent CEO of a major company or government department. CEOs internationally hold the role for about five years (or less) with the trend towards shorter tenure as boards respond more quickly to performance issues and strategy shifts. In practice, public service department CEOs are appointed to fixed term contracts, typically around four to five years, which can be renewed.
We live in a world which is changing astonishingly fast. AI will arguably be the demise of civil litigation. Our court system desperately needs to change. In some parts it is broken, certainly from the consumers perspective. Fixed term tenures would encourage those appointed to get on and make changes that have impact while they have their hands on the levers. Term limits for leadership roles would reduce the potential for stagnation and detachment from contemporary values.
Internationally, New Zealand would not be striking out alone if it implemented term limits. In England and Wales, judges retain secure tenure, but senior judicial leadership roles are proposed to be reformed to allow for fixed term limits. When those terms end, judges return to ordinary judicial work. The distinction is deliberate: judging is permanent, governing is not.
Australia offers similar examples, particularly at state level, where Chief Judges and heads of jurisdiction commonly serve fixed leadership terms. Judicial independence has not been weakened. Courts still function. Public confidence has not evaporated.
What fixed terms do achieve is clarity and restraint. They reinforce the idea that leadership is a service role, exercised for a time, rather than a permanent elevation. They reduce the risk (inevitable in any human institution) of entrenchment, stagnation, or court administration becoming overly identified with one personality or judicial philosophy.
Open-ended terms can lead to consolidation of informal power, resistance to structural reform and dominance of one judicial philosophy for a generation. Even exemplary judges can become overly invested in “their” system and insulated from critique.
Five to seven years is not a token tenure. It is long enough to set direction, implement reform, and see major initiatives through. But it is short enough to ensure that no single judge governs a court for a generation. Renewal becomes part of the design.
Some appointments have obvious strengths that are sought at the time. For example, a Judge may have real expertise in Tikanga based restorative justice which is a sought-after skill at the time of appointment. That has much to commend it. The Judge contributes that skill base to the job, hopefully makes positive change within their term and then other proficiencies can be brought to the role with the next appointee.
The good news is we have an enormous amount of talent in our judiciary with many capable Judges who have the experience to do an excellent job in governance roles. Terms would mean the ability to refresh leadership for gender balance, Tikanga/cultural competence, criminal vs civil expertise, management vs jurisprudential strengths.
There is also a legitimacy gain. Senior judges wield significant institutional influence, but they are not democratically accountable, nor should they be. Fixed, non-renewable terms provide a modest form of temporal accountability without elections, popularity contests, or reappointment pressure. Power is exercised, then handed on.
Some will worry that any term limit threatens judicial independence. That concern deserves respect, but it misses the mark. Independence protects decision-making, not permanent control over administrative authority. No judge’s tenure, salary, or decisional autonomy would be affected. Judges would continue to decide cases free from interference. The proposal separates judging from governance, rather than blurring them.
Others will argue that continuity matters, that courts benefit from long-serving leaders with deep institutional memory that (hopefully) acts as a stabilising force during political or social upheaval. That is true, up to a point. But continuity does not require permanence. Staggered leadership terms, deputy roles, and the collective experience of the bench can preserve institutional memory without concentrating authority indefinitely in one office.
Fixed terms encourage leadership development, broaden experience, and avoid over-reliance on a small cadre of repeat office-holders.
So what would actually change in New Zealand?
Very little – and that is the point. Judges would still be appointed until retirement. The Chief Justice and Principal Judges would still be chosen through existing appointment processes although preferably with a codified transparent appointment process.
The only change would be statutory: the administrative powers attached to those leadership roles would be expressly time limited. For example, to a single non-renewable term of five to seven years after which the judge would return to ordinary judicial work. Judicial independence would remain untouched; judicial governance would become deliberately temporary.
This is not a radical proposal. It does not politicise the courts or diminish judicial authority. If anything, the current system politicises the Chief Justice role in particular – Dame Jacinda Ardern as our Prime Minister had the task of appointing our Chief Justice. The reality is that a Chief Justice would likely be in the role for the long haul. Arguably any Prime Minister would have someone of similar world view to theirs in the role. That would be perfectly understandable.
American Jurists would laugh at any suggestion that appointments are not political. Shorter fixed terms lower the political temperature and reduce the incentives to game succession. It recognises a modern reality: courts are large, complex public institutions, and institutional power should be exercised carefully, transparently, and for defined periods.
Judicial independence is not threatened by reform. It is threatened by the unexamined belief that longevity and legitimacy are the same thing.
Judging should remain independent for life. Governing should not.
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