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Playing nicely together: Attorney-General warns about politicised judiciary, urges restraint from all three arms of government

21 Jun 2024

| Author: Neil Sands

Attorney-General Judith Collins KC has weighed into the debate about what she describes as the Waitangi Tribunal’s recent and “highly unusual” attempt to summons Minister for Children Karen Chhour for cross-examination, warning the judiciary should not become politicised.

“It would generally be regarded as extraordinary for a court exercising a judicial review jurisdiction to summons a minister to give evidence and be cross-examined,” she told a breakfast in Auckland last week, hosted by The Law Association.

“Comity requires restraint. A compelling case is needed before such a course would be embarked on.”

“Comity,” the Attorney-General said, refers to the ability of the three branches of government – the judiciary, executive and Parliament – to work together with mutual respect and restraint, rather than resorting to coercion and confrontation.

The principle underpins the separation of powers between the three branches, she said. Avoiding conflict is critical to democracy and maintaining New Zealanders’ confidence in their constitutional system.

Addressing the broader issue of judicial activism, Collins said that parliamentarians needed to draft clearer laws if they wanted to avoid the courts interpreting legislation in ways they did not like.

“One of the issues we tend to come across when we see judgments from the court that might occasionally surprise us is that normally we see some gap in the statute law,” she said. “We’ve left the concept open, whether it’s a principle or something else, and said ‘it’s too hard for us, we’ll leave it to the courts to sort it out’ – then we don’t like the result.

“The opportunity is for the government and Parliament itself to write the law in such a way that it’s really clear.”

Collins said the government could “legislate over the top of certain cases” if the courts were interpreting laws in ways that Parliament did not originally intend, but the best way to avoid such issues was removing ambiguity in the legislation.

“Don’t leave an open door and wonder why people go through it,” she added.

Collins said that in the absence of a written constitution, comity had allowed New Zealand to develop a flexible constitutional system where each branch respected the others’ boundaries.

“Our great strength is not to have ever politicised the judiciary and to have a distinct separation of powers… I want to make sure we keep it like that,” she said.

 

Different context?

The Attorney-General’s remarks come in the wake of the Waitangi Tribunal’s decision to summons Chhour for cross-examination about plans to repeal s 7AA of the Oranga Tamariki Act 1989.

Section 7AA, drafted under the previous National government in 2017, obliges Oranga Tamariki’s chief executive “to provide a practical commitment to the principles of the Treaty of Waitangi (te Tiriti o Waitangi)”.

The aim was to reduce the disproportionate number of Māori entering into care. Critics, including Chhour, said it prioritised cultural considerations over the wellbeing of children.

Collins said Chhour appealed the summons because she believed it infringed the principle of comity.

“In particular, she considered there was a risk that if she appeared under summons, she would be asked questions in the tribunal, the answers to which would infringe Cabinet confidentiality and collective responsibility,” Collins said.

The Crown won on appeal in the High Court, which found that a significant amount of evidence on the issue had already been voluntarily supplied to the tribunal and ruled the Chhour summons was a breach of comity.

The Court of Appeal, however, disagreed, saying comity did not apply to the tribunal, which is a statutory body with a limited jurisdiction set by Parliament.

“It is a principle that typically operates as between the judicial and legislative branches of government, which is a different context from that in which the tribunal operates,” it found in a judgment released on May 13.

However, on the same day the judgment was published, the government tabled a bill in Parliament repealing s 7AA, taking the issue out of the tribunal’s hands and rendering the summons moot.

 

Blurred borders

Collins said the case had thrown a spotlight on comity – “a previously underexplored area of jurisprudence” governing the ways constitutional actors interact.

“One of the most significant is the principle that the branches should not criticise one another publicly,” she said.

“For example, the court should not comment aversely on the good faith or wisdom of executive policies, and executives should not comment adversely on the good faith and wisdom of individual decisions made by judges. Even though it might be really tempting, we must not.”

Collins said comity was needed to navigate the sometimes blurred borders between constitutional branches.

“Boundaries are maintained and our system of government strengthened by our constitutional actors respecting the roles each other play,” she said.

“This includes giving each other appropriate ‘constitutional room’ within which to play our respective roles.”

As the Crown’s senior law officer, Collins carries principal responsibility for the executive’s relationship with the judiciary and she said this involved regular meetings with Chief Justice Dame Helen Winkelmann to discuss any issues.

Part of her role also involves helping shield judges from improper attacks or criticism, including from ministers.

“It’s sometimes difficult for people, if they’re brand-new ministers, to know until they err,” she said.

“But I can help ensure their concerns are expressed in a manner which ensures that comity between the executive and judicial branch is observed.”

Collins said that did not prevent politicians from airing legitimate criticisms.

“From time to time, judgments can expose issues with our laws – that they are not functioning as Parliament intended, or are out of step with community expectations,” she said.

“It’s legitimate for ministers to express public views on the adequacy and efficacy of our laws. They’re elected representatives of their communities and as members of the government they have a unique ability to do something about it.”

From the judicial perspective, Collins said judges generally expressed their views on a case only once, when delivering their reasons, and were then unable to defend themselves further.

But she said if the judiciary had concerns about an Act of Parliament, the Bill of Rights allowed a senior court to declare that it appeared inconsistent with human rights, triggering a select committee review.

She said executive actions could also be tested in the courts “but the way in which this is done reflects comity, not coercion”.

So, if a court issues a declaration that the executive has acted unlawfully, the executive is expected to act on the declaration, meaning there is no need for the court to take coercive action.

“The courts should not generally have to resort to coercive remedies against the executive because each branch exercises restraint and respect for the other,” Collins said.

 

Duty of candour

Similarly, courts do not usually compel the executive to provide evidence.

“This is because courts expect, and the executive observes, a duty of candour,” she said. “That is, the executive voluntarily discloses relevant information and gives a frank account of its actions in evidence.”

In this context, Collins said summonsing a minister for cross-examination was “extraordinary”.

“Summonsing a minister on a matter of proposed legislation was a highly unusual move by the Waitangi Tribunal,” she said. ■

 

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