Wednesday, May 15, 2024

Gary Judd KC: Sequal to Real reason Waitangi Tribunal could not summons Chhour

Why Courts should have said Waitangi Tribunal could not summons Karen Chhour

In the High Court, Justice Isacs declined to uphold the witness summons issued by the Waitangi Tribunal to compel Minister for Children, Karen Chhour, to appear before it to be questioned.

There are three branches of government – the Executive (effectively Cabinet and the government departments or ministries), the Legislative (Parliament), and the Judicial (the courts). The doctrine of comity requires each of those branches to treat the others with respect.

In short, the High Court decided that the doctrine of comity meant that the Tribunal could not summon the Minister unless her evidence was clearly necessary, and it wasn’t.

In that decision the High Court treated the Tribunal as if it were a court when it is not.

I am pleased to see that the Court of Appeal decided the comity principle doesn’t apply. But it still said that the Tribunal was empowered to summon the Minister. In doing so the Court of Appeal failed to consider two vital elements.

First, the Tribunal’s function is to make recommendations to the Crown. It does so by sending its findings to the Minister of Māori Affairs “and such other Ministers of the Crown as in the opinion of the Tribunal have an interest in the claim.” In this case that would obviously include the Minister for Children.

The Tribunal’s position as a standing commission of inquiry, and its function to make recommendations to the Crown and report to Ministers mean it is best considered as a specialist part of the Executive Branch, established to inquire into matters within its functions, to assist the Executive Branch with respect to decisions of Cabinet as the decision-making organ of the Executive Branch.

In this case, the Tribunal has summoned to give evidence one of those whom the Tribunal exists to assist — the responsible Cabinet Minister.

By forcing her to appear and give evidence it is adopting an adversarial position in conflict with its statutory position of adviser to her and the Cabinet of which she is a part. As this is inconsistent with its functions of making recommendations to the Crown, the summons must be invalid.

Secondly, the Tribunal’s jurisdiction is where “any Maori claims that he or she, or any group of Maoris of which he or she is a member, is or is likely to be prejudicially affected” (in this case) by a policy adopted by or on behalf of the Crown.

If claimants claim to be prejudicially affected by a proposal the Minister has recommended to Cabinet, they don’t need the Minister – the person they are advising – to prove their claim. They, not the Minister, claim to be prejudicially affected. They, not the Minister, must know why they are prejudicially affected. They want the Tribunal to make recommendations to the Minister explaining why they are prejudicially affected.

If the Minister wants to give evidence to demonstrate that the claimants are wrong and that there is no prejudice, that would be her entitlement. There can be no genuine reason to summon her to prove their claim.

So, it is obvious there can only be improper, politically motivated purposes.

For these reasons, the summons ought to have been held to be invalid, but these arguments were not advanced on the Minister’s behalf. Instead, the Crown lawyers advanced arguments which elevated the Tribunal’s status. This is consistent with the public service attitude that advancement of Treaty matters is a wholly desirable activity but does not serve the government and the general public in the way it and they should be served.

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.


Reggie said...

It all sounds pretty reasonable and obvious. So why is the Court of Appeal being so strange?

Common sense seems to have departed our fair land. I always thought of Kiwis as being sensible people but that’s largely gone. Certainly most of our Public Servants seem to have gone “troppo ” judging by the steady stream of pigeon English announcements we see coming out of Wellington…must be something in the water! The RBNZ is the worst! But so too have our universities lost it with their excessive adoption of all matters of “…diversity, equity and inclusion…”. Our universities are no longer places of question and challenge…more safe places for snow flakes to be shielded from offence and reality. And now our courts are losing it!

At times I shake my head and wonder which world I’ve woken up in…

Anna Mouse said...

The WT is giving the dovernment the middle finger and they are being assisted by the judicary. Time has come for the coalition to show resolve over this issue before they become the tail the dog is wagging.

Doug Longmire said...

Just one more example of the activist Tribunal grossly exceeding its job description and its powers.

Peter said...

Well-explained and deduced, thank you Gary. It also arguably proves that our judiciary (not to mention the Crown's advisors) are inept and/or (the former) likely activists, and begs the question - that if the matter was now rather pointlessly heard by our Supreme Court, would justice ultimately prevail? With the current lot, I rather suspect not.

It also shows that our legal system is akin to the Waitangi Tribunal, in being an enormous gravy train - where justice depends not only on the depth of one’s pockets, but also very much on getting the right bench. Of course, with the Waitangi Tribunal, the direction of its members is a given, and while there’s little opportunity to challenge their findings, they still typically provide many further work opportunities for thee legal profession.

George Washington once stated “the true administration of justice is the firmest pillar of good government.” Our government clearly has work to do of seismic proportions.

Anonymous said...

Aotearoa ( ex-NZ) will be the poster nation for Critical Race Theory where DIE prevails and everyone has to be woke to advance.

Anonymous said...

It is a delight to hear and read Mr Judd’s commentaries on these matters in this blog and with Leighton Smith. His knowledgeable and logical analysis clearly illustrate the poor state that our courts and judiciary are in currently.

Anonymous said...


Anonymous said...

Looking at the media summary and a glance at the judgment – find both on the Courts of NZ website with a web search "[2024] NZCA 160" – it seems to me that the CA got this one pretty much right.

The CA notes that commissions of inquiry have powers under legislation to summons witnesses.

But the broader issue, highlighted by the judgment, is the powerful constitutional role accorded to the Waitangi Tribunal by the courts, including by the CA here, under the wide-sweeping “partnership” interpretation of the Treaty of Waitangi. That is where the problem lies in my view.


Anonymous said...

The highest status in our society accrues to anyone who can claim membership of an ‘oppressed’ group or class.

To be ‘oppressed’ means everyone else has to lick your backside, give you things you haven’t worked for and therefore aren’t entitled to; and allows you to blame all your problems, failings, and personal inadequacies on someone else.

If one cannot claim such ‘victimhood,, one belongs to the ‘oppressor’ class.

This being the case, one has two options: [1] continue to collude in the ‘oppression’ that your group or class is historically responsible for; or [2] cross the floor to line up with the ‘oppressed’ I.e. become an ‘ally.’

The decades-long capture of our universities by Gramscian Cultural Marxists means that this world view is now almost unchallenged among the West’s educated classes.

Treatyism would never have got off the ground without the collusion of sickly white liberals, helped by academic Marxists to feel guilty for what past generations supposedly did.

A Wigger is someone who rats out their own race and culture for that warm glow which comes from cosying up to the cannibals.

White liberal social narcissists looking to maximise their public virtue-signalling and moral preening opportunities are filth on the face of my country.

Brown supremacist part-Māori who elevate their brown ancestors while turning their white ancestors into a toilet bowl to identify monoculturally as ‘Māori’ are also filth on the face of my country.

Grumpy said...

For what it's worth, I sent a message of support to the office of Minister Chhour - after a few days I received a reply, generic I suppose, acknowledging my communication and assuring me that the Minister is aware of such support and appreciates it greatly.
By comparison, I have never received a reply from any other Minister or MP, including my local (National).
As for the Waitangi Tribunal, why any organisation would place culture ahead of an abused child's well-being beggars belief. Karen Chhour holds the high ground on this issue, without question.