Ministers cautioned after Supreme Court criticism

Prime Minister Christopher Luxon may have to step in if his ministers keep ignoring Cabinet Manual guidance about respecting the judiciary, a legal expert says.
Several ministers have landed themselves in hot water in the months since the coalition Government formed for their attacks on courts and court decisions. Most notably, NZ First’s Shane Jones criticised a Supreme Court decision on a major climate change case and he and Act Party leader David Seymour threatened to reform or shut down the Waitangi Tribunal after it issued a summons to a different minister.
Between those two incidents, Attorney-General Judith Collins spoke to Cabinet ministers about comity – the principle of the different branches of government respecting one another’s boundaries and authority.
She also wrote to all ministers on March 15, cautioning that breaches of comity could constitute contempt of court. That’s in a letter obtained by Newsroom under the Official Information Act.
“I remind you of the Cabinet Manual’s guidance, paragraphs 4.12-4.16. The Manual provides sound advice for how Ministers navigate such matters and counsels caution in commenting on matters before the Court or from the Court,” Collins wrote.
“Contempt of court is a generic term descriptive of a range of conduct. Relevant to my reminder to you is the well-accepted contempt that is conduct that ‘tends to undermine public confidence in the judicial system.’ The Solicitor-General takes decisions whether to prosecute for this sort of contempt.”
It was particularly important that ministers refrained from commenting on criminal cases and sentencing decisions.
“Ministerial criticism of sentencing decisions could, in theory, amount to contempt of court, but there may be other serious implications. Where the Solicitor-General is considering a Crown appeal against sentence, public criticism by Ministers may tip a decision away from bringing an appeal as Ministerial criticism may suggest decisions on Crown appeals are influenced by Ministers,” Collins wrote.
“That would be a very serious matter as it is critical that criminal matters are conducted without actual or perceived political influence.”
The letter came a month after Jones told energy lobbyists that he was “horrified” by the Supreme Court’s decision in Smith v Fonterra to allow the suit against major climate polluters to go ahead.
“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,” he said.
University of Otago public law professor Andrew Geddis said it was clear that ministers hadn’t heeded Collins’ written warning.
A month after receiving the letter, Jones accused the Waitangi Tribunal of being a “star chamber” for its summons of Childrens Minister Karen Chhour, and Seymour suggested the tribunal could be “wound up”. The Court of Appeal later confirmed the summons was lawfully issued.
“Given that these ministers are on notice – the Attorney-General has told them the reason for the need to show restraint in their comments – if they continue to innappropriately criticise the judiciary and courts, then the next step is for the Prime Minister to get involved,” Geddis said.
“Ultimately, it’s the Prime Minister who has to make sure that ministers are acting in accordance with their responsibilities and giving due attention to matters such as comity.”
Geddis said Collins should be credited for performing the role of Attorney-General by defending the judiciary from inappropriate attacks.
Asked whether the letter was prompted by any specific incident or whether she thought ministers had made inappropriate comments about the judiciary, Collins declined to comment.
Labour’s justice spokesperson Duncan Webb called on Luxon to rein in Jones and Seymour. When in opposition, Luxon called for Labour’s Stuart Nash to be sacked over his criticism of judicial decisions.
“It is essential that judges are given the ability to act independently and without being attacked directly or indirectly by politicians. They have a tough job to do, and difficult decisions to make – we need to trust them to do that,” Webb said.
The letter was sent on the March 15, he reiterated, which meant both Act and New Zealand First Ministers were warned about criticising the judiciary, right before going on to criticise decisions made by the Waitangi Tribunal.
“I think it’s well past time Christopher Luxon did his job, showed some leadership and pulled his ministers into line. There’s only so much of that Judith Collins can do for him.”