Opinion: Fisheries Minister Shane Jones’ reference to High Court Justice Cheryl Gwyn as a “communist judge” at a private meeting with seafood industry representatives in May came back to bite him when, inevitably, it reached the public domain.
The meeting discussed industry concerns about the Marine and Coastal Area (Takutai Moana) Act 2011, which heightened in March after Justice Gwyn granted customary title to five areas of the Wairarapa coastline to iwi. The government plans to amend the act.
Jones expressed a view that could be regarded as reflecting adversely on the impartiality, personal views, or ability of any judge. This was in breach of the provisions of the cabinet manual and he has been spoken to by Attorney-General Judith Collins. His own party leader, Winston Peters, commented that what was said should not have been said.
However, as NZ Herald political editor Claire Trevett pointed out, no one actually disagreed with Jones’ criticism of the decision.
Broadcaster Heather du Plessis-Allan has commented that judges may like to reflect on why they are “copping it from so many quarters”. She maintains that although Jones may have been wrong to say what he did, many voters would not find him guilty of anything.
Jones has also been a stern critic of the Waitangi Tribunal, which this month called for a halt to the planned changes, citing what it said were a number of failings. One can only speculate what Jones’ response to that may be.
Perhaps it might be more profitable for there to be a discussion about why there is concern about the direction some courts are taking. Maybe there should be an examination of the reasons for the decisions rather than labelling such decisions as the outpourings of an “activist” judiciary or that the decisions may arise from a judge’s earlier political antecedents.
This may be a bit much to ask in the age of sound-bite news and immediate gratification. Some of these decisions require a bit of stamina to read and digest.
For example, the decision in Fitzgerald v R – where the Supreme Court held that Parliament, in enacting the Three Strikes regime, did not really intend to require judges to impose sentences that breached section 9 of the Bill of Rights and New Zealand’s international obligations – covers some 117 pages, including a dissenting decision.
The Court of Appeal decision in Edwards v Te Kāhui and Whakatōhea – which resulted in a potential extension of the concept of customary marine title – is a 161-page judgment holding that exclusivity of the exercise of customary rights could be viewed as a form of control under tikanga, and that disruptions caused by the crown should not disqualify a claim if the group’s relationship with the land remained intact through other means recognised by tikanga.
Indeed, the whole issue of tikanga and whether it forms part of the law of New Zealand has been the subject of a number of cases, of which the 126-page Supreme Court decision in Ellis v R (Continuance) is one. The court noted that tikanga is recognised in the development of the common law in cases where it is relevant. It forms part of New Zealand law by being incorporated into statutes and regulations.
Justice Gwyn’s decision in Ngāi Tūmapūhia-ā-Rangi Hapū Incorporated and others v AG, which concerned Jones, covered 249 pages.
These cases should be the subject of an informed discussion about the direction in which the law is heading.
The real issue is not whether the law has fallen prey to an activist judiciary but whether the courts are interpreting statutes beyond what was intended by the legislature and whether the common law is heading in the right direction.
Rather than personal attacks on the judiciary, that should be the focus of discussion.
David Harvey is a retired district court judge.
