So. When I stumbled across a speech that Collins, now attorney general, gave to the Law Association, formerly the Auckland District Law Society, I didn’t pay it much attention. Nor did anyone else.
This is unfortunate. Some background:
As has been widely reported, the Waitangi Tribunal issued a summons to a minister of the Crown, demanding that she attend an inquiry to answer questions about proposed legislative changes to the act governing Oranga Tamariki.
This fell within the remit of the Tribunal and parliament had given it statutory power to issue summons. The Crown challenged the summons in the High Court. Successfully. The Tribunal took the issue to the Court of Appeal. Successfully.
The Courts determined that a democratically elected minister could be compelled to attend the Waitangi Tribunal and answer questions about a proposed piece of legislation.
Let me put this in context. We had an election. Parliament selected ministers from those elected. One of those ministers was doing her day-job of making a change to the law.
Then along comes the Waitangi Tribunal and demands that the minister justify herself.
This is not okay.
We do not have a formal constitution, but we do have foundation documents and one is the 1688 Bill of Rights. This law emerged from the Glorious Revolution that established parliamentary sovereignty and confirmed England as a constitutional monarchy.
This act remains law in New Zealand and article nine states: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
That is the end of the matter. As the High Court correctly observed, “To the extent the genesis of the repeal policy is a product of political party autonomy and not that of executive action, it is beyond the reach of the Tribunal’s investigation.”
There is a further constitutional but uncodified principle of comity; a rather awkward concept that different branches of the state should respect the other. Members of the executive do not criticise the judiciary and the judiciary does not interfere with the business of parliament.
The Court of Appeal was untroubled by this delineation. The judges looked at the law that established the Waitangi Tribunal and found that, yes, the power to issue a summons did exist. Which it did. And, furthermore, the Tribunal isn’t, technically, a judicial body.
Comity, the learned justices concluded, was not a barrier to a summons being issued. The minister could be compelled to appear before this inquisition.
In her speech, Minister Collins embodied comity. “...The executive should not comment adversely on the good faith or wisdom of individual decisions made by judges.”
Admirable. The contrast with the recent debacle in the United States, where the president openly criticised a decision by the Supreme Court on presidential immunity, is a counter-point of what happens when there is no comity between the institutions of state. It’s possible Collins was wise to avoid directly challenging the Court of Appeal’s decision.
I read her speech as a gentle reprimand. “Summonsing a minister on a matter of proposed legislation was a highly unusual move by the Waitangi Tribunal...” she advised, and concluded with what could be considered a subtle hint, “By acting with mutual restraint and respect, constitutional actors avoid escalating conflict.”
In a speech to the Law Association in Wellington on Thursday, which someone rather foolishly invited me to, Chief Justice Dame Helen Winkelmann politely made it clear, in response to my direct question, that she did not share my interpretation of Collins’ speech.
Perhaps I am mistaken? It seems reckless to disagree with the highest legal officer in the land, especially with so many of my own cases pending judgement! Yet you do not need to be a legal expert to discern a disturbance in the force.
The Supreme Court, in 2022, attempted to codify into our laws the role of tikanga, and earlier this year allowed an iwi activist to sue Fonterra and others on behalf of the sea. These decisions do not sit well with many in the legal and commercial community and they are looking to minister Collins to reassert parliamentary sovereignty.
As Collins herself observed, “The challenge for us - as a government... is to ensure the laws on the statute book function as Parliament intends and are in line with community expectations.”
This challenge will not be achieved with gentle nudges and carefully crafted speeches. It will require a sustained and deliberate strategy both in terms of legislation, appointments and promotions over many years.
Collins is National’s senior minister. In cabinet only Peters has more experience. She has never stepped back from a challenge.......The full article is published HERE
Damien Grant is an Auckland business owner, a member of the Taxpayers’ Union and a regular opinion contributor for Stuff, writing from a libertarian perspective.
This fell within the remit of the Tribunal and parliament had given it statutory power to issue summons. The Crown challenged the summons in the High Court. Successfully. The Tribunal took the issue to the Court of Appeal. Successfully.
The Courts determined that a democratically elected minister could be compelled to attend the Waitangi Tribunal and answer questions about a proposed piece of legislation.
Let me put this in context. We had an election. Parliament selected ministers from those elected. One of those ministers was doing her day-job of making a change to the law.
Then along comes the Waitangi Tribunal and demands that the minister justify herself.
This is not okay.
We do not have a formal constitution, but we do have foundation documents and one is the 1688 Bill of Rights. This law emerged from the Glorious Revolution that established parliamentary sovereignty and confirmed England as a constitutional monarchy.
This act remains law in New Zealand and article nine states: “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”
That is the end of the matter. As the High Court correctly observed, “To the extent the genesis of the repeal policy is a product of political party autonomy and not that of executive action, it is beyond the reach of the Tribunal’s investigation.”
There is a further constitutional but uncodified principle of comity; a rather awkward concept that different branches of the state should respect the other. Members of the executive do not criticise the judiciary and the judiciary does not interfere with the business of parliament.
The Court of Appeal was untroubled by this delineation. The judges looked at the law that established the Waitangi Tribunal and found that, yes, the power to issue a summons did exist. Which it did. And, furthermore, the Tribunal isn’t, technically, a judicial body.
Comity, the learned justices concluded, was not a barrier to a summons being issued. The minister could be compelled to appear before this inquisition.
In her speech, Minister Collins embodied comity. “...The executive should not comment adversely on the good faith or wisdom of individual decisions made by judges.”
Admirable. The contrast with the recent debacle in the United States, where the president openly criticised a decision by the Supreme Court on presidential immunity, is a counter-point of what happens when there is no comity between the institutions of state. It’s possible Collins was wise to avoid directly challenging the Court of Appeal’s decision.
I read her speech as a gentle reprimand. “Summonsing a minister on a matter of proposed legislation was a highly unusual move by the Waitangi Tribunal...” she advised, and concluded with what could be considered a subtle hint, “By acting with mutual restraint and respect, constitutional actors avoid escalating conflict.”
In a speech to the Law Association in Wellington on Thursday, which someone rather foolishly invited me to, Chief Justice Dame Helen Winkelmann politely made it clear, in response to my direct question, that she did not share my interpretation of Collins’ speech.
Perhaps I am mistaken? It seems reckless to disagree with the highest legal officer in the land, especially with so many of my own cases pending judgement! Yet you do not need to be a legal expert to discern a disturbance in the force.
The Supreme Court, in 2022, attempted to codify into our laws the role of tikanga, and earlier this year allowed an iwi activist to sue Fonterra and others on behalf of the sea. These decisions do not sit well with many in the legal and commercial community and they are looking to minister Collins to reassert parliamentary sovereignty.
As Collins herself observed, “The challenge for us - as a government... is to ensure the laws on the statute book function as Parliament intends and are in line with community expectations.”
This challenge will not be achieved with gentle nudges and carefully crafted speeches. It will require a sustained and deliberate strategy both in terms of legislation, appointments and promotions over many years.
Collins is National’s senior minister. In cabinet only Peters has more experience. She has never stepped back from a challenge.......The full article is published HERE
Damien Grant is an Auckland business owner, a member of the Taxpayers’ Union and a regular opinion contributor for Stuff, writing from a libertarian perspective.
7 comments:
If the Waitangi Tribunal can order Ministers of the Crown to attend at the Tribunal’s pleasure, and judges of the Appeal Court concur, then democracy in this country is well and truly dead. Welcome to the rule of tikanga.
The Waitangi Tribunal is NOT a Court.
Its statutory role is to evaluate matters relating to the application and interpretation of the Treaty of Waitangi, and to make recommendations to the Crown as to how these might best be addressed.
As such, it is an ancillary body to the Executive, and its role is purely advisory.
As such it sits below our elected Parliament and its duly appointed Ministers.
The thick face of these paru huas is breathtaking!
Thanks Damian, this was my thought on reading her speech. It was a polite poke in the eye to our judges and a warning to stay in their lane.
Sadly, it will take much more than a polite reminder to make this happen.
All she needed to do was provide an affidavit like ministers do all the time. Before the CA issued its decision, she did in the end provide what she was asked to provide in the first place. So it was all for nothing. The real issue which you are hiding from is that the change she wants to make has no evidence to support it, let alone its purported effectiveness. It was all based on her "feelings" and "experience" when the thing she complains about did not happen to her. The exact approach detractors of tikanga rail about - feelings and intuition. It was all based on anecdotes she collected - I never knew research was amongst her skills. Perhaps she's an anti vax style "critical thinker" doing her own "research". It's the same as Simeon Brown and increasing road speeds - not a speck of evidence to back up his assertions. In fact, as Auckland Council and others have pointed out, the exact opposite has occurred with the lowered speed levels - less serious accidents. But again, it's how the ministers "feel" based on slogans and anecdotes that carries the day. And how about the latest story today about boot camps? The NZDF saying that they will be a disaster. A paper was prepared showing how NZDF staff were affected by a previous voluntary iteration. And good luck with your promotions argument. The CJ will be in office well after the current government passes
its use by date in 2026 or at best for them 2029. As will the Chief District Court judge. I mean Labour UK were completely trashed in 2019 and written off for at least two elections but in 2024 now look who is trash? Do you really expect Winston to behave once Seymour becomes Deputy in the lead up to the 2026 election? Now that is funny. Mary Stuart
Who has the power to tell the Court of Appeal that they are clearly wrong.
I understand comity which was the basis of Hon Judith Collins KC speech, however the point she made about Declarations of Inconsistancy was intriguing where a formal declaration by a senior Court, from where an Act of Parliament cannot be interpreted consistently with Human rights, the Court declaration is then noted to Parliament , proceeds though a select committee process and then the result and decision of the select Comittee declared in Parliament . I suggest all NZ legal matters that give authority or judgement and that do not comply with human rights or are inconsistent with what Parliament decreed in law is available for a Declaration of Inconsistency.
I thank Hon Judith Collins for her helpful speech as NZ struggles with Tikanga et al and awaits impatiently for the PM to enact policy to remove rascist and ethnicity issues from segregating our nation.
To me the Marine, Foreshore and Seabed debacle would appear to be an excellent testing case .
Should ministers be compelled by the Waitangi Tribunal you ask?
The apartheid Waitangi Tribunal should have been shut down 6 months ago.
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