The latest came in the
form of Oceans and Fisheries Minister Shane Jones, who took aim at the judiciary (again) when notes released via the Waitangi Tribunal revealed he called High Court Justice Cheryl Gwyn a “communist” in May.
When asked what prompted the comment, Jones told reporters it was a “broad discussion that the creep of a lot of these judicial decisions is beginning to show elements of totalitarianism”.
In the House, Jones said it was a “matter of fact”. Former Prime Minister Chris Hipkins weighed in, asking now-Prime Minister Christopher Luxon whether he was comfortable with the potential constitutional threat to democracy.
While Hipkins had a point, lest we forget it was under his leadership that former minister Stuart Nash found himself in hot water last year over historical criticism (and a call to the Police Commissioner) of a judge’s sentencing decision. The failed conflict of interest declaration and judicial criticism led to the resignation of the former Police Minister.
To Hipkins’ credit, he cracked down on Nash, calling his actions “unwise” at the time.
Back to the other Chris, of Luxon fame. He told the House that Jones’ comments were descriptive, not critical. Solidarity or bystander effect?
Law community not happy
The New Zealand Law Society and New Zealand Bar Association unsurprisingly came out swinging.
Criticism couldn’t be disregarded as simply “political rhetoric”, “when ministers of the Crown owe duties to uphold the role of judges”, Bar Association president Maria Dew KC said in a statement.
“Judges’ decisions should always be open to challenge and debate.”
But it was democratically fundamental that judges weren’t subject to personal attack or criticism by ministers, which could undermine judges’ independence, she said.
Then there was the Law Society, which said ministers of the Crown had a duty to uphold fundamental principles of comity and mutual respect. In a very “speak to the manager” fashion, the representative body wrote two letters to Attorney-General Judith Collins.
We’re talking about the same Judith Collins who arguably brought the criminal bar to its knees many moons ago thanks to commissioning a report into “car boot lawyers”. Long story short, legal aid was stripped, and criminal lawyers have never recovered.
Cabinet Manual 101
So where do you draw the line between “semantics”, as Speaker Gerry Brownlee put it in the House, and breaching parliamentary standards?
First, it’s a matter of constitutional convention where the executive is prevented from directing the judiciary. Direction can only be made through legislation.
Then there’s the Cabinet Manual, which says ministers must exercise prudent judgment before commenting on judicial decisions. Ministers should also “not express any views that are likely to be publicised if they could be regarded as reflecting adversely on the impartiality, personal views, or ability of a judge”.
Which brings us back to Judith Collins KC. As Attorney-General, she is tasked with defending the judiciary by “discouraging ministerial colleagues from criticising judges and their decisions”.
Collins told reporters she was “taking it seriously” and assured she would speak to Jones not once, but twice (there were too many judicial hammerings in the last month to keep count).
Thing is, this isn’t the first time Jones et al (comrade David Seymour) have slammed our legal friends. In April, Jones likened the Waitangi Tribunal to a “wannabe American star chamber pulp fiction gig” before threatening to review and potentially reform its status.
Collins told the reporters she sent a letter to ministers reminding them of the need to respect the judiciary earlier this year. Jones had been told then, and yet here we are.
Where to from here?
The wrath of Collins aside, the Cabinet Manual is a beast to navigate. It is long and vague. Breaches, in theory, could result in political and reputational damage, with a loss of public trust via media scrutiny.
We could see a formal complaint, or the judiciary could issue a response. Bar Association president Maria Dew put it best: “The judiciary in New Zealand can be an easy target. Judges cannot speak in defence of themselves or their judgments.”
This was enforced in Chief Justice Helen Winkelmann’s 2023 Annual Report, released late last month.
“The Chief Justice and members of the executive and legislature ensure that the roles and responsibilities of each branch of government are respected and, in particular, that the judiciary maintains its neutrality on political issues and that the judiciary’s independence is respected.”
Then there’s the question of whether the “descriptive” comments were defamatory, which would be a stretch if they were opinions or fall under parliamentary privilege.
There could be internal party or ministerial accountability consequences, which, by Luxon’s relaxed, hell-is-just-a-sauna take on the issue, I’m not sure if an official apology or condemnation will be happening anytime soon.
Should the Cabinet Manual have more bite? Probably, in a descriptive, not critical sense.
