Pictured: Sir Brian Leveson, a prominent former judge, was ruled out of being appointed as Lord Chief Justice because he could not serve the minimum period before turning 70.
Despite Human Rights Legislation, and our international treaty obligations, that prohibit age discrimination, when New Zealand judges reach the statutory age of senility at 70, they must retire.
The backlog of cases in all courts, at home and abroad, has been a growing concern for years. The Covid-19 pandemic has dramatically increased that backlog. It has also triggered governments to confront outdated ageist policies that force judges to retire early.
Last month, the United Kingdom increased the retirement age for all judges to 75. You can read the full Times article here.
I Zoomed into last Saturday’s Australian Judicial Officers Association (AJOA) meeting, where the issue of retirement was also discussed. The Australian federal/state system slightly complicates the position. Within their constitutional framework, all Australian states and territories make some provision for mandatory retirement of judges and magistrates. Most states and territories also make some provision for the post-retirement employment of judges and magistrates.
There is a pressing realisation that judicial retirement ages may be causing undue expense to the public purse, and deprive the judiciary of skilled adjudicators. The rationale and purpose of judicial retirement ages are no longer valid in a modern society, where demographic change warrants a reconsideration of policies that are contrary to contemporary notions of age equality.
For a long time, I have believed we should remove age-based limitations on judicial tenure and not have acting warranted judges who serve at the discretion of the Attorney General. There are at least several reasons for this. Removing age-based limitations on judicial tenure would eliminate the discriminatory impact of judicial retirement ages, address the loss of judicial skill and expertise due to mandatory retirement, and reduce reliance on acting appointments and bring judicial retirement into line with other professional occupations and community expectations.
For fiscal reasons, too, as it is cheaper to retain judicial talent on a daily rate without continuing superannuation contributions beyond 70, rather than appoint more judges for a lifetime of service. Continuing judicial service beyond 70 would come with a suite of options for reserve judges’ full-time or part-time deployment as required by the Heads of Bench and suited to the individual judges’ skills, capacity, competency, and will to continue in judicial service. There are also good reasons to include an option for suitable candidates to serve between jurisdictions on a temporary basis. The terms and conditions of these reserve judges, their daily rate, and their service to be determined as a subset of the annual determination conducted by the Higher Salaries Commission.
These are my views, and not yet JANZ policy. However, what is beyond doubt in the meantime, to meet the pressing adjudication of case backlogs we must immediately increase the statutory age of retirement to 75.
At last Friday’s executive meeting, JANZ agreed to explore this issue. Led by JANZ’s new retired judges’ representative, Keith De Ridder, we will formulate a whitepaper and talk this over at our September Wairakei gathering.
Have you expressed your interest to come to the gathering at Wairakei over 24–26 September 2021? You can do so by sending an email with you and your partner’s details to admin@janz.nz.
If you have a view about retirement, acting warranted judges, or increasing the retirement age to 75, please also write and let us know by emailing admin@janz.nz.