Maybe he’s right that High Court Justice Cheryl Gwyn could have been described as
a “communist” in her younger years because she belonged to the Socialist Action League, which later rebranded as the Communist League.
But when Jones said it, he was talking about a decision she’d made, so there is no doubt he was criticising her as a judge.
And maybe he thought it was okay because he made the comment in a private meeting. But someone was taking notes. And those notes then made their way to the public. He was in that meeting because he is a minister. So there is no doubt it was a minister criticising a judge.
That’s not on. Ministers must not criticise the judiciary because virtually our entire system relies on us having confidence in the courts. Hence, his telling-off from Attorney-General Judith Collins.
But just because Jones’ comment was naughty doesn’t mean it won’t be popular.
There is mounting frustration with judges and their sometimes inexplicable decisions.
A case in point is the absolute clanger delivered last October by the Court of Appeal on the Marine and Coastal Area Act (known as MACA).
When MACA was passed in 2011, Parliament set a very high bar that iwi must meet in order to claim customary rights. They must have exclusively used and occupied the area in question from 1840 to today, without much interruption.
But two Court of Appeal judges decided the bar was too high. They ruled it was inconsistent with the Treaty of Waitangi. So they dropped the threshold right down. Now, an iwi could claim the right if they simply practise tikanga in the area. These two essentially ignored what Parliament had written into the law.
Not everyone in the legal world agreed the judges were right. It has frustrated some lawyers and commentators. Even the third judge hearing that case disagreed publicly with what the other two had done.
It’s also frustrated politicians. That’s why the coalition Government is busy rewriting the law to judge-proof it. It clearly frustrated Jones.
But it’s not just judges presiding in pointy-headed civil cases winding people up.
Most public frustration is driven by the criminal courts, where judges hand down discounts to criminals like it’s a Briscoes sale in courtroom 1.
One of the most inadequate decisions was made by Auckland District Court Judge Claire Ryan, who gave a 77% discount to one young offender because he’d had a rough upbringing and said he was sorry. His crime was that he’d raped a young woman walking home with her boyfriend from her 21st birthday celebrations.
Judge Ryan’s decision was overturned by a more senior judge. Obviously.
Because of nonsense like this, Parliament is going to beef up the Sentencing Act to try to judge-proof that too.
It’s clear judges are bristling at the criticism they’re copping. Because they can’t defend themselves, bodies representing lawyers have started defending them publicly.
While the judiciary is more than entitled to get their mates to run defence for them, they may want to also reflect on why they’re copping it from so many quarters, including from Jones.
Because while Jones was wrong to say what he did, not many voters will find him guilty of anything.
