28 August 

The New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture has observed a recent increase in comments and public statements by Ministers about Judges that go much further than criticisms or discussion of judgements.

This cannot be explained away as simply “political rhetoric” by politicians, when Ministers of the Crown owe duties to uphold the role of judges. Barristers in New Zealand are concerned about this. We recognise it is not healthy for our institutions.

The judiciary in New Zealand can be an easy target. Judges cannot speak in defence of themselves or their judgments. The careful separation and balance of powers between our courts, government and politicians means Ministers must not engage in any personal criticism of judges or the leadership of the Courts. Just as the courts and judges, remain outside of politics.

In recent years, we’ve seen polarising criticism of the judiciary in other countries. The risks of politicisation of the judiciary are clear. We do not want to follow other examples overseas where there has been a loss of independence in the courts.

Judges’ decisions should always be open to challenge and debate. This is an encouraging sign of interest in our legal system and demonstrates our free and open democratic society. But the way politicians and other leaders in the community talk about the judiciary is important. It is

fundamental for our democracy that judges are not the subject of personal attack or criticism by Ministers that may risk Judges being restricted in their role. Judges must be capable of being able to freely play their independent constitutional role in Aotearoa New Zealand.

The legal profession has a statutory obligation to promote the rule of law, and this involves speaking in defence of the judiciary and our legal system, where needed. We consider this is one of those occasions.

The New Zealand Bar Association urges the Government to ensure that this Ministerial conduct is not condoned by inaction. We have written to the Attorney-General today to seek action.

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