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High Court overturns Waitangi Tribunal’s summons to Children’s Minister

3 May 2024

| Author: Anna Longdill

Application for judicial review of decision of Waitangi Tribunal to issue summons to Minister for Children  –  Treaty of Waitangi Act 1975, s 6 and schedule 2; Commissions of Inquiry Act 1908, ss 4A-4D – tribunal’s power to summons a minister – is the tribunal able to require an affidavit or brief of evidence under summons? – is the summons unlawful because there is already other relevant evidence available to the tribunal? – is the summons unlawful because it infringes the principle of comity?

Minister for Children v Waitangi Tribunal [2024] NZHC 931 per Isac J

 

Section 7AA of the Oranga Tamariki Act 1989 imposes several duties on the Chief Executive of Oranga Tamariki to “recognise and provide a practical commitment to the principles of the Treaty of Waitangi (te Tiriti o Waitangi)”.

Following the general election on 27 November 2023, a coalition government was formed consisting of the National, New Zealand First and ACT.  The coalition agreement between National and ACT resolved to repeal s 7AA.

Ngāti Pukenga and Ngā Potiki then filed a statement of claim with the Waitangi Tribunal seeking a recommendation that the repeal would breach the treaty principles of active protection and equality. Other parties filed similar claims and a number of parties joined as interested parties. The tribunal granted urgency to the matter.

On 28 March 2024, the tribunal posed a series of questions directed to the Minister for Children, Karen Chhour. The tribunal explained 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 addressing the reasons for the repeal and a Regulatory Impact Statement (RIS) which accompanied it.  The Cabinet paper and RIS highlighted different views on the merits and consequences of the proposed repeal. The Crown informed the tribunal that it did not intend to depart from the orthodox approach of not calling ministers to give evidence and submitted that the minister’s evidence was not necessary to inform the tribunal of the relevant information.

On 9 April 2024, the tribunal invited the minister to reconsider her decision, noting it had a power to summons witnesses but preferred “constructive engagement voluntarily”.

On 10 April 2024, the Crown filed a memorandum in response, reaffirming 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, and that a summons would likely breach Cabinet collective responsibility and confidentiality as the repeal policy now reflected a collective decision of Cabinet.

On 11 April 2024, the tribunal issued the summons, requiring the minister to attend the tribunal on 26 April 2024 and furnish information, by way of affidavit or brief of evidence, to the questions originally asked by the tribunal (along with an additional set of questions arising out of the Cabinet paper).

The Minister for Children applied for judicial review of the summons issued by the tribunal.  She argued that the summons was unlawful as (a) the evidence required by the summons was irrelevant in light of the material already provided to the tribunal by the Crown and (b) it infringed the principle of comity between the judicial and executive branches of government.

 

Applicable principles: Treaty of Waitangi Act 1975, s 6 and schedule 2; Commissions of Inquiry Act 1908, ss 4A-4D – tribunal’s power to summons a minister – is the tribunal able to require an affidavit or brief of evidence under summons? – is the summons unlawful because there is already other relevant evidence available to the tribunal? – is the summons unlawful because it infringes the principle of comity?

 

Held: The application for judicial review is granted. The summons issued by the tribunal is set aside.  It was not clearly necessary for the tribunal to require the minister’s attendance or to provide an affidavit under summons for two reasons: (1) the minister’s personal involvement in the development and promulgation of the repeal proposal (in the period between her appointment as a minister and the Cabinet decision) can be only incidental to the real issue; (2) there is no suggestion that the tribunal will be impeded in its inquiry, or the rule of law undermined if she is not compelled to give evidence.

An appeal against this decision was heard in the Court of Appeal last week. At the time of writing, no decision had been released.

Note: The High Court expressly noted that the power of the tribunal to summons a serving minister to attend and give evidence under compulsion, if clearly necessary, is very much alive.

 

Minister for Children v The Waitangi Tribunal 2024-NZHC-931

 

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