Waitangi Tribunal summons to Children's minister overturned by High Court
Wednesday, 24 April 2024
The High Court has overturned the Waitangi Tribunal’s subpoena to Children’s Minister Karen Chhour
Chhour had planned to remove Treaty obligations for the Oranga Tamariki Act.
The Government launched a major legal challenge to try and prevent a Waitangi Tribunal summons to the children’s minister.
The Tribunal wanted to hear the minister’s reasoning for removing Treaty provisions from the Oranga Tamariki Act.
The High Court has overturned the Waitangi Tribunal’s subpoena to Children’s Minister Karen Chhour, over her plan to remove Treaty obligations for the Oranga Tamariki Act.
For the first time in its history, the Waitangi Tribunal used its power to summons to call a minister to answer questions before the Tribunal. But Chhour challenged the Tribunal’s power to summons, launching a judicial review of its decision at the High Court.
The judgement was delivered on Wednesday night.
In it, Justice Andru Isac said: “The mana of the Tribunal and the importance of its work is not diminished by this decision.”
The Tribunal could, in future, summons a minister, but it was uncalled for in this instance, Justice Isac said.
“Had I concluded that the lack of evidence would affect the Tribunal's ability to discharge its statutory functions, I would have dismissed the application for judicial review. It goes without saying, then, 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.”
The Tribunal was entitled to ask the questions it did of the minister, and to expect her response, Justice Isac said.
'It does not matter whether the minister was in a position to usefully add to the sum-total of information made available by officials. The Tribunal cannot be criticised for resorting to a summons in these circumstances, given its repeated and measured requests for the minister’s response.'
Following the decision, the minster said she welcomed the court’s decision “for the constitutional clarity it provides for New Zealand.”
In a statement she said she believed the Crown “has been very open in providing a considerable amount of evidence to the Tribunal, within its urgent timeframes, about the Cabinet decision to repeal Section 7AA of the Oranga Tamariki Act 1989, to prioritise the safety of children.”
Court action
Lawyers arguing both for and against Chhour’s summons claimed great constitutional questions were at play at Wellington’s High Court on Monday.
They claimed potentially “chilling” effects on the Tribunal’s ability to hold the Government to account - or on the ability for Cabinet to function.
All up, there were 15 lawyers appearing on Monday before Justice Isac.
The summons called for Chhour to appear before the Tribunal by midday, Friday.
The Tribunal was holding an urgent inquiry into the Government’s repeal of Section 7AA from the Oranga Tamariki Act.
That section imposed Treaty obligations on the ministry, and had been understood as a safeguard to ensure tamariki Māori taken into state care would remain connected to their whakapapa.
Many iwi vowed to fight Chhour’s bill to remove Treaty obligations from the Oranga Tamariki Act. They fear that without a legal requirement to consider Te Tiriti, Māori children will again be dislocated from their whakakapapa and culture through state uplifts.
Ngāti Pikiao, Tainui-Waikato and Ngāti Hine sent lawyers to the High Court in Wellington to argue that Chhour should have to answer the Tribunal’s summons.
While it was unprecedented for the Tribunal to summons a minister, it has been commonplace for ministers to voluntarily answer questions or appear before the Tribunal. Recently, then Covid Response Minister Chris Hipkins answered questions during an urgent inquiry into the pandemic response.
Stuff asked Chhour if she would voluntarily go to the Tribunal, but she said she couldn’t comment “given it could be the subject of court proceedings”.