The Waitangi Tribunal had taken the rare step of issuing a summons, compelling Minister for Children Karen Chhour to appear before it to answer questions on how the government decided to back Act New Zealand policy to repeal section 7AA of the Oranga Tamariki Act.
Under that section Oranga Tamariki is obliged to improve outcomes for tamariki Māori and demonstrate adherence to Treaty principles. Repealing it is longstanding Act policy, and Ms Chhour had a member’s Bill which attempted to do just that voted down during the last Parliament.
The tribunal, which is entitled and empowered to consider the adherence of proposed government policy to the Treaty, has been holding hearings on the proposed repeal and very much wanted to hear from Ms Chhour about how Cabinet had decided to back her.
However, late on Wednesday Justice Isac — following an application for judicial review by the Crown — determined that Ms Chhour did not have to appear before the tribunal at the time it had appointed.
In a carefully worded judgement his Honour was quick to stress that the tribunal did indeed possess the power to summon ministers of the Crown to appear, and that his decision not to uphold the summons in this instance did nothing to diminish the mana of the tribunal.
Indeed the tribunal — and New Zealanders in general — can take some comfort from the judgement. A longstanding legal principle is that no-one is above the law, and the Crown’s arguments that the summons was not legal were both dismissed.
Justice Isac clearly stated that there was nothing in law prevented the tribunal from summonsing the minister, and that despite the Crown having already placed a significant body of material before the tribunal it could not be said that her answers to whatever questions the tribunal might wish to ask her would be irrelevant.
However, Justice Isac also noted that Ms Chhour had not acted alone but as part of a Cabinet process and that her personal views did not represent the totality of the opinion of the executive government, a point integral to his decision to negate the summons.
Accepting that summonsing power existed, Justice Isac said while he did not need to determine on a "clearly necessary" test whether the tribunal really had to hear from Ms Chhour that it would be a useful exercise. He then found that that high bar had not been cleared.
"While the tribunal may not have the benefit of the minister’s personal response to its questions, there is no suggestion that it will be impeded in its inquiry or the rule of law undermined if she is not compelled to give evidence."
While Ms Chhour may take slight personal offence at a judicial suggestion that she is unneccessary, she will be relieved not to have been placed in a situation where her obligations towards Cabinet confidentiality were placed in conflict with an obligation to answer the tribunal’s questions.
However, Justice Isac did stress that he neither endorsed the minister’s decision, or criticised the actions of the tribunal. Indeed, the justice said that had he found that the tribunal had needed to hear Ms Chhour’s evidence that he would have dismissed the Crown’s case.
"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."
That can also be read as saying that the justice system in general, insofar as the law grants it power to so do, can therefore compel ministers to explain their actions if they are legally challenged, something which should give the litigants of the future some hope.
The justice’s observation that this whole situation had very much been of the minister’s own making was also addressed to a wider audience. The tribunal had made "repeated and measured requests" to the minister and reading between the lines it seems that the judge did not feel those entreaties had received the respectful response which they deserved.
It is to be hoped that the government and the courts can avoid conflict. Justice Isac has given a clear signal of how they can do so.
