Lawyers argue to keep minister from Tribunal
The Waitangi Tribunal is attempting to use “extraordinary”, “coercive” and “unprecedented” powers to demand answers from Children’s Minister Karen Chhour, according to Crown lawyers hoping to cancel the minister’s summons.
An all out legal spectacle is taking place at Wellington’s High Court, with the judiciary and Government butting heads in a case that raises important questions about the accountability of ministers and power of The Waitangi Tribunal.
The Government brought in its top lawyer, Solicitor-General Una Jagose, to argue Chhour could not be forced to give evidence to the Tribunal – despite the Tribunal clearly having power to summons people. She argued it did not apply to the Children’s Minister in this instance.
Lawyers acting for the Tribunal and claimants, including the iwi Tainui and Ngāti Pikiao as well as the Māori Women’s Welfare League, said the minister was obliged not just by statute but by tikanga to answer the Tribunal’s questions.
They said the Tribunal had legitimate questions to raise about whether removing Treaty obligations from the Oranga Tamariki Act would harm tamariki Māori. And whether the Government had considered Te Tiriti o Waitangi when deciding to remove those obligations, through repealing Section 7AA of the act.
Appearing for Ngāti Pikiao, Matthew Smith said Cabinet had gone against officials’ advice when it decided it wanted to repeal that section. He said the Cabinet Paper from Chhour encouraging Cabinet to do so had been written in the first person, setting out her personal views for wanting to make the change. Therefore, he argued she was the only one who could shed light on the Crown’s reasoning for removing Treaty obligations from the Oranga Tamariki statute.
“The tribunal in itself must inquire to the fullest and fairest extent. It has obviously identified information that it believes will be extremely valuable to the inquiry,” said Tom Bennion, who represented Tainui.
He called out “irony” that the Crown was arguing the Tribunal should not summons Chhour, to protect the separation of powers between judiciary and Government, while ministers has shown “flagrant disregard for those principles”.
His comments were presumably in relation to ministers David Seymour and Shane Jones, who had suggested the Tribunal should be wound down or weakened following its subpoena to Chhour.
Chhour has been summonsed to appear at the Tribunal on Friday.
For the Crown, Jagose argued there may be instances when the Tribunal could summons a minister, but she said the current inquiry did not meet that threshold. “This is an unorthodox and actually unprecedented event for a statutory tribunal to summons a minister to attend it,” she said.
She argued that Chhour had limited responsibility, and had little to offer in way of explanation to the Tribunal. Affidavits from public servants and hundreds of pages of documentation should suffice, she said, and so the Government was not hiding away from questions.
“This is far from a case where the Crown just doesn’t show up ... What the Tribunal is inquiring into is the Crown’s conduct, not Minister Chhour’s. It is a collective decision that it is having to examine,” she said.
Professor Jason Varuhas, who also appeared for the Children’s Minister, said the Tribunal’s summons “places the minister in an invidious position”.
He argued Cabinet’s collective responsibility rules, alongside its strictly guarded confidentiality, limited Chhour’s accountability and ability to answer questions at the Tribunal.
He said forcing her to provide evidence, through the “coercive” use of a summons, could cause constitutional strife.