High Court reserves decision on Waitangi Tribunal summons for Children’s Minister Karen Chhour

Children's Minister Karen Chhour. Photo / Mark Mitchell

The Government and Waitangi Tribunal claimants have clashed in the Wellington High Court over whether a Crown minister can be compelled to appear before the tribunal.

It follows an unprecedented request two weeks ago for the Children’s Minister, Karen Chhour to answer questions before an urgent inquiry about the Government‘s decision to repeal section 7AA of the Oranga Tamariki Act. It has summonsed the minister to appear by midday 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 reduce disparities for tamariki Māori.

Solicitor General Una Jagose. Photo / Andrew McRae, RNZ

The Crown says it has no objections to the inquiry or its scope.

But Solicitor-General Una Jagose KC told the court the basis of the Crown’s challenge was the coercive aspect of the summons, not the attendance of the minister.

Crown ministers have given evidence to the tribunal in the past, but never on the basis of a summons. Then Minister for Covid-19 response Chris Hipkins provided two affidavits to the tribunal’s 2021 Covid-19 Response Priority inquiry.

The Crown says the tribunal didn’t have the lawful authority to summon the minister in this case.

“This is an unorthodox, to use the words of the claimants before the tribunal, and actually unprecedented event for a statutory tribunal to summon a minister to attend,” she said.

Jagose said the decision to repeal Part 7AA was part of the coalition agreement and was ultimately a decision of Cabinet, rather than the minister individually.

She said the Crown had already supplied a significant amount of information, including Cabinet papers and a regulatory impact statement. Three senior Oranga Tamariki officials had appeared before the tribunal, their evidence running to 130 pages.

“What the tribunal has asked is for [the] minister to fill gaps that can’t be filled,” she said.

But lawyer Matthew Smith, who represents Ngāti Pikiao - one of the three iwi who’ve lodged the urgent claim with the tribunal - said they needed to hear from the minister.

The Cabinet paper was inconsistent with the earlier advice the minister received from officials.

“This is the minister’s paper and it’s the minister’s own words,” he said.

Efforts to get the minister to co-operate voluntarily or to provide an affidavit had failed, hence the summons.

“Until 11 days ago we had a nice, workable, state of constitutional balance and mutual respect and restraint. That state of equilibrium has been shattered by the conduct of this minister necessitating the tribunal to reach to the tool of a summons.”

In reply, Jagose said many of the matters raised by the claimants were outside the scope of the summons.

She said the minister was being asked about her personal views, which weren’t relevant to this case.

Justice Andru Isac said he understood the need for urgency and planned to deliver his ruling tomorrow afternoon.

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 advisor at the Ministry of Justice.