Resources Minister Shane Jones railed against the “Americanisation” of New Zealand’s judiciary and took specific aim at a recent Supreme Court decision on climate change in comments to an energy industry breakfast on Thursday morning.
The New Zealand First deputy leader accused the nation’s top judges of having “flexed their muscles” in a decision to permit legal action from climate activist Mike Smith against several large climate polluters to go ahead.
Asked by a member of the audience whether the Government would seek to intervene in the proceedings, he said they were not there yet.
“I’m very, very worried. Obviously the other ministers will take briefings. We’re not at a point where we’re going to intervene because it’s an extraordinary step to take as to what you do when your Supreme Court says a citizen is entitled for his day in court. But what concerns me is, it could be the fishing industry tomorrow, it could be other farming interests the next day, or indeed, it could even be horticulture in a week or three’s time,” he said.
It is unusual for ministers to speak publicly about individual court cases, particularly when they are still ongoing. Last year, Labour’s Stuart Nash was forced to resign as Police Minister after it was revealed he had repeatedly commented on judicial decisions.
The Cabinet Manual is also very clear about the limitations on ministers’ comments on the courts.
“The separation of the Executive and the judiciary under New Zealand’s system of government means that ministers must exercise judgment before commenting on matters before the courts or judicial decisions, whether generally, or in relation to the specifics of an individual case. Ministers should 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 any judge,” the manual states.
“Ministers may comment on the effectiveness of the law, or about policies on punishment (that is, on matters where the Executive has a proper involvement), but not where the performance of the courts is brought into question.”
Victoria University of Wellington public law professor Dean Knight told Newsroom he didn’t think Jones had breached the Cabinet Manual.
“The minister’s remarks will raise eyebrows amongst many, including me. I don’t think the minister has breached the Cabinet Manual rule about ministers ‘not reflecting adversely on the impartiality, personal views, or ability of any judge’ because he hasn’t spelt out such adverse reflections, even if perhaps some might think it comes quite close to the line,” he said.
“But when you read between the lines in the light of innuendo and sting, it’s quite strong castigation of the court and their recent rulings – especially the implication that the judges have somehow strayed outside their lane and their established judicial function. For me, the real concern here is that the minister is mischaracterising those developments and seems to be trying to whip up unfair concerns about judicial activism.”
Knight said the Supreme Court decision in question was “constitutionally unexceptional” and Jones’ portrayal of an activist court didn’t reflect reality.
When Nash’s comments were made public in March last year, National Party leader Christopher Luxon called for him to be sacked from Cabinet. Deputy leader Nicola Willis said at the time that Nash needed to lose all of his portfolios.
“He has explicitly breached the Cabinet Manual and shown grave errors of judgment and doubled down on those errors of judgment. He has directly interfered in a decision for the police and he has commented on decisions by the judiciary and has failed to see that that is wrong. When ministers breach the Cabinet Manual, they should lose their warrants,” she said.
The Prime Minister’s office did not respond to a request for comment.
In his response to the questioner, Jones took particular issue with the judiciary’s incorporation of tikanga into its rulings.
“If you have ongoing uncertainty through the Americanisation of our courts – and I have to advise my Singaporean friends taihoa before you bring in export of a billion dollars to New Zealand. I put it to you, and it’s a difficult issue for industry I know because you’ll be lambasted and stigmatised as sort of cigar-smoking […] capitalists, but stick away from those cartoonish caricatures: Either Parliament is sovereign in New Zealand or it isn’t,” he said.
“We’re a Westminster democracy where sovereignty is in Parliament, so what we discussed in our caucus was, are we at an inflection point? And this is not the only case, sir, where the courts have flexed their muscles. I personally am horrified by the notion that offshore mining can turn on the court’s view of tikanga Māori.
“Well, I’m Māori with a big dose of Croatian and I speak the language since I was a little boy. And I learned my language from my grandmother born in 1892. And I put my credentials up against any New Zealander in this regard. It is the weaponisation, it is the distortion, of my culture, driven by people who want to substantially change the ethos and the direction of our country on the basis of eco-catastrophisation and colonial guilt. I deeply resent that.”
Earlier, Jones had said there would always be trade-offs between environment and economy, but used that as an opportunity to again attack the courts.
“There will be trade-offs. But who do you want to make the trade-offs? You want elected representatives to make the trade-offs on your behalf?” he told the industry audience.
“Or do you want the Supreme Court – who by the way has just given Mike Smith, my whanaunga, the ability to sue you at will? It won’t stop there. I see a situation where the next random litigant will be taking on the fishing industry because of their destructive approach, in their view, towards biosphere and ecological diversity.”
Though ministers could be expected to comment on issues of public policy, they were expected to do so with caution when it touched on the judiciary, Knight said.
“Of course, as always, ministers and others have an interest in these developments and the underlying public policy – and debate about how these matters are expressed in legislation and common law precedents is to be expected from all quarters,” he said.
“But broader constitutional principles and conventions expect care, respect and comity from ministers towards the judicial branch when entering the fray. That’s why the Cabinet Manual directs ministers to exercise careful judgment when commenting on judicial decisions. Delicate balances within our constitutional ecosystem will be put out of whack if the ministers start beating up on judges, especially as judges aren’t able to directly respond in any debate.”
Knight said Attorney-General Judith Collins would be paying close attention to Jones’ comments, “as it falls on her to publicly defend the work and reputation of the judiciary as an institution if it is exposed to unfair attack and misplaced criticism”.
Jones’ speech came a day after Newsroom reported he had been treated to wine and oysters by fishing industry executives at an exclusive event in Nelson. There, current and former campaign donors had put to him their views on cameras on boats, catch limits, bottom trawling and immigration waivers.
The minister said in his speech to energy leaders that this reporting was a natural consequence of being a “champion of industry”.
“We’ve attracted politicians into New Zealand society – some [to] New Zealand Parliament – who do find it very challenging and hard to be consistent champions of industry. Our party, my role and the mandate that I’ve got in oil and gas, regional development and fisheries is to be that person,” he said.
“If you have any doubt how challenging that role is, please read the articles over the last 48 hours in terms of, if you’ve been, for example, a recipient of donations from an industry that you’re involved in, then you’re stigmatised or ruled out of that industry. I utterly reject that. I’m not suggesting that any of you are in the business of offering donations but if you want my advocacy, then stand up yourselves. Do not acquiesce, do not tolerate any longer, the long period of stigmatisation that has happened to our natural resource sector in New Zealand.”
Perhaps Mr Luxon is now becoming aware of why previous National leaders, along with the current Labour leader, ruled out working with NZ First in government.
” people who want to substantially change the ethos and the direction of our country ”
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…by re-defining the ‘principles’ of what is effectively our founding document, and by ending a system that his fellow MP described as a “quaint experiment in the South Pacific”. He’s pointing in the wrong direction.
“eco-catastrophisation”
How else would one describe the East Coast destruction, caused by cyclones and slash, than as an eco-catastrophe.
PM Luxon has been trying to say his government no longer calls climate change a hoax, unlike the old days when National did. But Jones’ comments are tantamount to denial. And after all, we are living in The Post Truth Era where denial has become mainstream. Much of the silent (unexplained) electoral support for this new government reflected that denial. Given the government’s “rip, sh*t and bust” (as described by usually reserved Rod Oram) approach to our ecosystems it will be interesting what excuses Luxon has for Jones’ comments here. They contradict National’s rhetoric, but do support National’s actions toward climate change.
I don’t see in any of Jones’ comments an attack on an individual judge. Smith’s suit has been brought under tikanga and that is a significant constitutional development, as you reported the other day. I am surprised Dean Knight thinks it is not. Politicians must be allowed to criticise it.
John
My explanation of why I thought these rulings were constitutionally unexceptional didn’t make the cut for the article. But this is what I said:
“In reality, those developments are part of the orthodox ebb-and-flow of the common law and ordinary dynamics of legislative interpretation. The court rulings were constitutionally unexceptional. More often we’ll hear the courts discuss tikanga and its potential influence on state law. But that’s because, properly understood, the common law must strive to reflect the contours of the place where it operates and the values of the peoples it serves. And the courts also must give effect to the legislative cues from Parliament to factor indigenous interests and customary laws into their work. All our courts are doing is iteratively working all that out in cases that come before them, in a pretty cautious way. “