Graeme Edgeler: The Waitangi Tribunal Summons; or the more things stay the same

This morning [April 21], the Wellington High Court is hearing a judicial review brought by Hon. Karen Chhour, the Minister for Children, against a decision of the Waitangi Tribunal. This is unusual, judicial reviews are much more likely to brought against ministers, rather than by them. Chhour is challenging a decision by the Waitangi Tribunal to issue a summons requiring her to give written evidence, as part of an inquiry into a government policy decision around Māori children in state care (the repeal of section 7AA of the Oranga Tamariki Act).

This is rare. The Waitangi Tribunal has apparently not previously done this, but it’s also not wholly unique. Ministers frequently file written evidence in Court proceedings, and before Commissions of Inquiry. They just usually agree to when asked nicely, so no summons is necessary.

The inquiry itself is pretty standard. Te Tāwharau o Ngāti Pūkenga, the post settlement entity for Bay of Plenty iwi has filed a claim about a Government policy decision, and requested an urgent hearing. The Tribunal agreed there was something to look into and the usual process commenced.

I say “usual process” deliberately. While over the last couple of decades the Waitangi Tribunal has been primarily known for its work on historical settlements, it was originally set up to deal with contemporary claims, and has always had that jurisdiction.

I also say normal process because calling for evidence is something that Commissions of Inquiry do, and the Waitangi Tribunal is formed as a permanent Commission of Inquiry. And this includes calling for evidence from Ministers. The Royal Commission on the Terrorist Attack on Christchurch Mosques received evidence from Jacinda Ardern, Chris Finlayson, John Key, Andrew Little, Phil Goff, Lianne Dalziel and Annette King. Indeed, they also got evidence from Jens Stoltenberg, a former Prime Minister of Norway.

But there is an “except” here. None of those ministers and former ministers will have been summoned. They could have been: Royal Commissions are Commissions of Inquiry and have the power to summons witnessed. But they weren’t for one simple reason: they didn’t need to be, because those witnesses were willing to give evidence when asked nicely.

And that’s what usually happens in the Waitangi Tribunal as well. If evidence from a Minister is desired, the Minister will provide a written statement if asked. Usually it won’t be necessary to ask: most major government decisions involve substantial preparation from public servants, and the Tribunal will usually be able the information it needs from them.

The Tribunal tried that here. The Chief Executive attended the inquiry to provide evidence, but couldn’t provide the answers needed. The policy to repeal section 7AA arises from ACT’s time in opposition. It’s a pretty simple change, so the types of background work that might usually be done by a Ministry haven’t occurred in the usual way, and the rationale for the change, being something strongly directed by the Minister, is something only she can provide.

The Minister has declined. The Crown has argued, and will argue today, that the Tribunal should not be using its powers to require her to attend contravene constitutional principles, including around the confidentiality of Cabinet decision-making.

Judge Doogan, who is presiding over the enquiry, summarises the Tribunal’s position:

“9. We noted the fact that the Minister appeared to have convinced Cabinet to proceed because when the now-Minister Chhour introduced a private member’s bill to repeal section 7AA last year the position of the National party was that they did not support a repeal but would consider amendment.

“10. That observation should not be taken to mean that we expect the Minister to breach Cabinet confidentiality, it is simply an inference from the evidence available. It also reinforces our view that the Minister as the primary mind behind this policy is in the best position to explain it to the Tribunal. As we see it, it would assist our inquiry to have the opportunity to hear from the Minister, to better understand the reasons for the policy, and, as appropriate, test both the philosophical and empirical premises for the policy against consistency with the Treaty and its principles.”

Notably, although not noted by the Tribunal, the ACT party and even ACT ministers, have been defending the proposal publicly, although the Minister is apparently unwilling to do so before the Tribunal itself.

The Government’s position on the repeal of section 7AA is one it gets to take. The Tribunals ultimate powers are limited. It can recommend an alternative course, but has no binding power to stop it happening. Indeed, once a bill is introduced, the Tribunal ceases to have even the investigative powers it is exercising now: once the legislative process starts, the Tribunal stays out of it.

What then, of today’s Crown judicial review?

It’s my general practice to try to avoid making firm predictions about court cases, so I will merely posit my own views:

* The Tribunal clearly has the power to issue a summons if it considers someone has relevant evidence.

 

* I anticipate that the Minister does have relevant evidence. Perhaps less the Tribunal would like. Perhaps much of it subject to withholding on the grounds of legal privilege, or Cabinet confidentiality. Perhaps the documents and advice the Tribunal has already been provided by the Crown don’t leave much more for the Minister to say in person. But I suspect they leave room for some. And the summons doesn’t actually seem to have the Minister appear in person anyway, but to provide evidence in written form.

* For me, these aren’t issues to go to the legality of the summons overall. These are arguments are the scope of questions, about how long the Minister would actually be needed to give evidence if she was giving it in person, and whether the Minister’s lawyers could object to any particular question a member of the Waitangi Tribunal might wish to ask.

* One aspect of the summons I think is clearly beyond the scope of the Tribunal’s powers. It asks “Has the Minister taken legal advice on the proposed repeal and its effects? If so, please provide.” Other parts of the summons may butt up against other constitutional principles, like Cabinet confidentiality. But it is difficult to see that all of it does.

* The summons seeks answers to a range of questions, some of which at least ACT leader Hon. David Seymour has seen fit to provide partial answers to in news media. If Cabinet confidentiality doesn’t prevent his speaking publicly, it is difficult to see the Ms Chhour is precluded from saying at least something in response to the Tribunal’s questions.

Sadly, the Courts have not caught up with the wonderful openness of the Waitangi Tribunal, which has placed the documents in its hearing (even the summons itself!) online (search here, filter using Wai Number 3350), so the full scope of the Crown’s argument on the judicial review is not public. The day the Courts start doing that seems a long way off, but the scope of this case at least, should be public soon.

UPDATE: The Court has adjourned for Lunch, with the Crown having presented argument this morning.

The argument has three basic prongs:

First, the Crown says that the summons is deficient. It requests a written affidavit or brief of evidence, when the power it relies on is only one to attend in person or provide documents in your possession. (There was some push back from Justice Isac on this, who pointed to other powers the Tribunal has that would allow this).

Second, the Crown says that the Minister has no relevant evidence to offer: the Tribunal has already been provided everything it needs to be able to form its view on the consistency of the Government’s and that therefore there is nothing that would be added by the Minister turning up in person. It is a general principle of evidence law that if something is not relevant, you can’t compel someone to give evidence of it.

Third, the Crown says that the general requirement of comity between Tribunals and the Crown is such that the standard to be met before a Minister will be compelled to give evidence should be higher than the usual do they have relevant evidence? to is their evidence clearly necessary? It accepts that there is a power to order people to give evidence, and that power could be exercised in respect of a Minister, but that it should only be exercised in those truly exceptional cases where the work of the Tribunal cannot be undertaken without it. It points out that it knows of no instance where this has happened, although hasn’t yet faced the obvious rejoinder “of course it hasn’t happened before, Ministers usually give evidence when asked without needing compulsion.”

The second argument is highly fact specific, and the Crown has spent some time contrasting what the Tribunal has required in the summons, and pointing to what has already been provided. They argue that the concerns that have been expressed by the claimants are concerns not about the insufficiency of evidence, but are concerns about the insufficiency of the policy process, and that this is something that the Minister giving evidence cannot

Graeme Edgeler is a Wellington barrister, with a professional interest in constitutional and electoral law. This article was first published HERE