The Summoning

The Witness Summons That Did Not Work

Introduction

This article is about an application for judicial review of a decision to issue a summons to a Minister of the Crown by the Waitangi Tribunal. It is a commentary on the case that went to the High Court. It raises interesting questions about the relationship between arms of government – in this case the Executive and the Courts or, in this case, a statutory Tribunal.

The case was heard before the Court of Appeal during the week of 29 April 2024. The Court of appeal has yet to deliver a decision. I shall write a commentary about the appellate result when it is available.

The Background to the Case

On 1 July 2019, s 7AA was inserted into the Oranga Tamariki Act 1986. The section was introduced by the previous National Government in the Children, Young Persons, and Their Families Act 2017.

Section 7AA 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.”

The duties require Oranga Tamariki to develop and deliver policies, practices, and services to ensure they positively improve the well-being of tamariki and rangatahi Māori and their whānau, hapū, and iwi. This includes the development of strategic partnerships with iwi and Māori organisations to the same ends.

It also places an obligation on the Chief Executive to report on the progress being made to improve outcomes for tamariki Māori and their whānau, hapū, and iwi.

Following the general election on 27 November 2023, the present government was sworn in consisting of the New Zealand National Party, New Zealand First, and ACT New Zealand.

Under the coalition agreement between National and ACT, the Coalition Government resolved to repeal s 7AA.

In response, on 20 December 2023, Ngāti Pukenga and Ngā Potiki filed a statement of claim in 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, given the proposed repeal will take place in May 2024.

The Summons is Issued

On 11 April 2024 The Tribunal issued a witness summons to the Minister for Children, Ms. Karen Chour, requiring her to give evidence to the Tribunal about the proposed amendment.

The Minister applied to the High Court seeking judicial review of the issue of the witness summons. The Minister claimed that the Government had already supplied all relevant material to the Tribunal.  Thus, given the provision of information already before the Tribunal, her evidence compelled under summons could not be relevant.

However, were she to answer the summons and appear as a witness she could be questioned and cross-examined on issues surrounding the proposed amendment. This could well have a number of implications for the development of policy, Cabinet decision-making and confidentiality as well as the issue of whether or not the Waitangi Tribunal was the appropriate forum for the examination of the political process. In some respects it could be suggested that the Tribunal was inserting itself into an aspect of Government in which, as a Court of Inquiry, it had no business.

These wider issues resolved into another basis for the Minister’s opposition to the summons.

The Opposition to the Summons by the Minister

The Minister argued that  the power of the Tribunal to issue a summons was constrained by the principle of legality, and the fundamental constitutional principle of comity, requiring the branches of government, including the Tribunal, to act with mutual respect and restraint.

The principle requires that the Minister should only be compelled to give evidence if that step is “clearly necessary”. Given the summons does not meet the requirement of relevance, it cannot meet the more stringent test of clear necessity, and the use of compulsion in these circumstances crosses a clear constitutional boundary.

The Minister’s attendance to give evidence would also undermine the fundamental principles of collective ministerial responsibility and cabinet confidentiality.

The Decision of the High Court

The matter was argued before Justice Isacs in the High Court at Wellington on 22 April 2024. He delivered his decision late in the day on 24 April 2024.