High Court finds minister Karen Chhour cannot be summonsed to Waitangi Tribunal

Children’s Minister Karen Chhour has welcomed a High Court ruling that means she cannot be compelled to appear before the Waitangi Tribunal. Photo / Mark Mitchell

The High Court has ruled Children’s Minister Karen Chhour cannot be compelled to appear before the Waitangi Tribunal.

In a just-released decision, Justice Andru Isac granted the Crown’s application for judicial review, setting aside the summons issued by the tribunal.

But he added the mana of the tribunal and the importance of its work was not diminished by his decision.

The judicial review challenged an unprecedented request from the tribunal earlier this month for Chhour to appear before an urgent inquiry about the Government’s decision to repeal section 7AA of the Oranga Tamariki Act. It summonsed the minister to appear by this Friday.

That section requires the agency to have regard to its Treaty obligations by ensuring it takes into account the whakapapa of Māori children and reduces disparities for tamariki Māori.

In a brief statement, the minister said she welcomed the decision not for her own sake, but for the constitutional clarity it provided for New Zealand.

She said because parties have the right of appeal she is limited in what comments she can make.

Justice Andru Isac granted the judicial review and ruled the minister did not have to appear before the Waitangi Tribunal.

In his decision, Justice Isac said he was required to answer two questions.

Firstly, was the evidence that would be provided by the summons relevant in light of the material already provided to the tribunal by the Crown?

And, secondly, did issuing a summons infringe the principle of comity - the mutual restraint and respect between the branches of Government?

In making his decision, Justice Isac said he was unable to accept the minister’s submission that the summons was unlawful in this case because there was already other relevant evidence available to the tribunal.

But he accepted the Crown’s second argument of comity, noting there were limits on the power to summon. This included whether the evidence was “clearly necessary” - a higher test than “mere relevance”.

He also noted that a summons could not put the minister in conflict with collective responsibility and Cabinet confidentially.

“Had I concluded that the lack of evidence would affect the tribunal’s ability to discharge its statutory functions, I would have dismissed the application for judicial review,” Justice Isac said.

“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.”

Te Pāti Māori spokeswoman for Children, Mariameno Kapa-Kingi said tonight’s court decision to overturn the summons had enabled the Crown to continue making decisions about Māori without evidence.

”The judicial system has this evening told the nation that this Government can do whatever they want when it comes to decisions for Māori, without evidence and without including us in the conversation. It’s enabling another stolen generation.”

Kapa-Kingi said repealing Section 7AA “is to continue the Crown’s rotten agenda that harms our vulnerable Māori babies” and oppress children.

”This decision socks it to the nation and Māori babies, with the Government’s idiopathic agenda to steal the right tamariki Māori have to be with whakapapa and the organisation’s duty to uphold Te Tiriti o Waitangi.”

Kapa-Kingi said it was only fair to summons the minister to present evidence before the tribunal on behalf of the Government. It was “sheer arrogance for the minister and her Government to refuse to appear.

“This Government is on a fast track to destruction and are willingly trying to create yet another stolen generation of Māori babies.”

Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.