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Court of Appeal backs Waitangi Tribunal’s decision to summons minister

17 May 2024

| Author: Anna Longdill

Appeals against High Court judicial review decision setting aside Waitangi Tribunal’s summons to Minister for Children  –  Treaty of Waitangi Act 1975, ss 3, 5, 6 and schedule 2; Commissions of Inquiry Act 1908, ss 4A-4D; Bill of Rights 1688, article 9 – role, jurisdiction, and powers of Waitangi Tribunal – was it within the tribunal’s powers to issue the summons to the minister? – does the principle of comity operate to prevent the tribunal summonsing the minister? – is the appeal moot as a result of events following the High Court judgment?

Skerret-White v Minister for Children [2024] NZCA 160

 

The coalition agreement between National and ACT resolved to repeal s  7AA of the Oranga Tamariki Act 1989, which imposes a number of duties on the Chief Executive of Oranga Tamariki in order to “recognise and provide a practical commitment to the principles of the Treaty of Waitangi (te Tiriti o Waitangi)”.

Three claims were submitted to the Waitangi Tribunal alleging that the intended repeal of s 7AA, and the absence of consultation with Māori about it, are in breach of the Crown’s obligations under the Treaty of Waitangi. The tribunal granted leave to 29 parties to participate as interested parties and granted urgency to the matter (against the opposition of the Crown).

On 28 March 2024, the tribunal posed a series of questions directed to the Minister for Children, Karen Chhour, explaining that it was necessary to direct its questions to the minister personally as information central to the inquiry was held primarily at the political and not the departmental level.

On 5 April 2024, the Crown filed a memorandum confirming that Cabinet, on 2 April 2024, had considered and agreed to repeal s 7AA.  The Crown provided the Cabinet paper (signed by the minister) addressing the reasons for the repeal and a Regulatory Impact Statement. The Crown advised it would call the chief executive and the two deputy chief executives but not the minister, submitting that evidence from the minister was not necessary.

The tribunal disagreed with that assessment and invited the minister to reconsider her decision on 9 April 2024, referring to its power to summons witnesses but indicating a preference for “constructive engagement voluntarily”.

On 10 April 2024, the Crown responded, confirming it would not call the minister as a witness and submitting that she should not be summonsed.  The Crown raised the constitutional principle of comity, arguing that a summons would likely breach Cabinet collective responsibility and confidentiality, as the repeal policy now reflected a collective decision of Cabinet.  The Crown advised that urgent judicial review proceedings would be launched if the tribunal proceeded to summons the Minister.

On 11 April 2024, the tribunal issued a further memorandum, reiterating its view that it was entitled to ask the minister (who it described as “the primary mind behind this policy”) for information and clarifying that it was not expected that the minister would breach Cabinet confidentiality. The tribunal then formally issued the summons, requiring the minister to attend the tribunal on 26 April 2024.

The hearing of the tribunal’s inquiry took place on 12 April 2024.  Officials from Oranga Tamariki gave evidence.

The Crown commenced judicial review proceedings in the High Court.  On 24 April 2024, Isac J granted the judicial review application and set aside the summons. This judgment was immediately appealed.

Following the High Court judgment, on 26 April 2024 the Crown filed a further memorandum in the tribunal, attaching a letter from the minister addressing the questions posed by the tribunal.

On 29 April 2024, the tribunal released an interim report. On 10 May 2024, the tribunal issued its urgent inquiry report, reserving leave for the parties to apply for further directions following the release of the Court of Appeal judgment.

 

Applicable principles: Treaty of Waitangi Act 1975, ss 3, 5, 6 and schedule 2; Commissions of Inquiry Act 1908, ss 4A-4D; Bill of Rights 1688, article 9 – role, jurisdiction and powers of Waitangi Tribunal – was it within the tribunal’s powers to issue the summons to the minister? – does the principle of comity operate to prevent the tribunal summonsing the minister? – is the appeal moot as a result of events following the High Court judgment?

 

Held: The appeals are formally allowed.  The tribunal has a role of constitutional importance and a statutory duty to inquire into claims. In fulfilling that duty, it has the power to summons a minister if the minister has relevant evidence.

At the time the summons was issued, the tribunal could properly take the view that it would be assisted in the inquiry by hearing evidence from the minister.  The tribunal was appropriately sensitive to collective Cabinet responsibility, confidentiality of Cabinet discussions and legal privilege.

The principle of comity does not necessarily apply to limit the power of the tribunal, which is fulfilling a statutory duty. Due to the changed circumstances following the issue of the summons, no further orders are made. Even if the appeal were moot, that would not preclude the court from issuing a fully reasoned decision, given the important public interests involved.

 

Note: On 14 May 2024, the day after the Court of Appeal judgment was delivered, legislation to repeal s 7AA was introduced to Parliament.  This means the tribunal’s jurisdiction ends (s 6(6) Treaty of Waitangi Act 1975) unless the Bill is referred to the tribunal under s 8 or a fresh claim is made after the Bill becomes an Act.

 

Skerret-White v Minister for Children 2024 NZCA 160

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