Key players (top from left: minister Karen Chhour, Judge Michael Doogan, NZ First's Shane Jones and Act leader David Seymour. Justice Andru Isac (bottom from left), Solicitor-General Una Jagose, Crown counsel Jason Varuhas and barrister Matanuku Mahuika. Photos / NZME
OPINION
The Minister for Children versus the Waitangi Tribunal, which is set to be thrashed out in the High Court today, involves so much more than whether minister Karen Chhour should have been ordered by Judge Michael Doogan to appear before him.
That in itself has exposed ongoing tensions between the Government and judges.
But what sits behind it has also contributed to friction between the Government and the public service, between Māori and the Crown, and between the coalition of parties within the Government.
It is about whether a promise made on the campaign trail - to repeal section 7AA of the Oranga Tamariki Act - supersedes the Treaty of Waitangi principle to consult Māori on matters affecting Māori.
There is also an argument that says if a government consults over something it has already determined it will do, such consultation would be insincere.
Crown Law has pulled out its big guns to argue the case: Solicitor-General Una Jagose, the Government’s chief legal adviser and advocate, and Jason Varuhas, senior counsel at Crown Law and Professor of Law at Melbourne Law School (he gave the Robin Cooke lecture at Victoria University in 2023) alongside Kate Whiting.
“It is highly unusual for a minister to be compelled to give evidence by the courts or a tribunal,” Varuhas told the tribunal on April 10. “Authority and constitutional practice establishes the default position is against doing so. This position is underpinned by basic constitutional principles. The circumstances of this case do not warrant departure from this well-established default.”
The Waitangi Tribunal has engaged barrister Matanuku Mahuika to argue its case. Mahuika, a leading light in Ngāti Porou, appears regularly before the tribunal and other courts and more recently co-authored the review of the Intelligence and Security Act 2017 alongside former Supreme Court Judge Terence Arnold.
“The minister as the primary mind behind this policy is in the best position to explain it to the tribunal,” Judge Doogan wrote in a memo explaining the summons. “As we see it, it would assist our inquiry to have the opportunity to hear from the minister, to better understand the reasons for the policy, and, as appropriate, test both the philosophical and empirical premises for the policy against consistency with the Treaty and its principles.”
Section 7AA was put into the Oranga Tamariki Act in 2019 as a response to over-representation of Māori children in state care. It sets out the obligations of the chief executive including “to ensure that policies, practices and services of Oranga Tamariki have regard to mana tamaiti [a child’s mana] and the whakapapa of Māori children and young persons and the whanaungatanga [kinship] responsibilities of their whānau, hapū and iwi”.
Chhour, a Māori Act MP and former state ward herself, believes section 7AA “creates a conflict for Oranga Tamariki when making decisions in the best interests of the child” and campaigned to repeal it.
The case challenging the summons will be heard by Justice Andru Isac. He was appointed to the High Court in 2021.
The Crown’s case, however, has already been subverted by the actions of New Zealand First Cabinet minister Shane Jones and Act leader David Seymour.
The Crown’s strongest argument against compelling a minister to give evidence to the Waitangi Tribunal is the principle of comity, in which the courts and Parliament are expected to show mutual restraint and respect for the other’s role.
If the summons tested the principle of comity, Jones and Seymour trampled on it with their attacks on the Waitangi Tribunal: Jones likened it to a “star chamber” and Seymour suggested the tribunal should be wound up.
The comments suggest that Act and New Zealand First have not made the adjustment from Opposition to Government. The comments they made would be barely acceptable from an Opposition MP but more moderation is expected of Government ministers.
Prime Minister Christopher Luxon has described them as “ill-considered”, which is the first time Luxon has not flannelled when invited by reporters to criticise the actions of coalition partners.
Jones has swallowed his medicine, but the public reprimand has not gone down well with Seymour and he plans to have it out with Luxon. He told 1News he was surprised by Luxon’s reaction. “If you have concerns about another leader’s comments, you should raise them directly rather than through the media, which is what I intend to do.”
Whether or not their comments technically breach the Cabinet Manual guidelines is moot. The Waitangi Tribunal is a permanent commission of inquiry, not a court - although its two key presiding officers are judges: chair Caren Fox and deputy chair Sarah Reeves are judges of the Māori Land Court.
In any case, Luxon is entitled to expect ministers to follow the spirit of the manual, especially with the review of the 50-year-old tribunal happening this term. It has to be seen as a reasonable exercise, not a witch-hunt.
Will Minister for Children Karen Chhour appear at today’s hearing?
No.
Why does the Government want to take the tribunal to court?
It is not clear that it was the Government’s decision to legally challenge the summons, even though it was clearly unhappy that Chhour had been summonsed. Obviously, Crown Law decisions relating to prosecutions are never run past ministers. But which other cases require government approval is less clear. Sometimes it can be better to maintain legal ambiguity and not have the law clarified.
Has the Waitangi Tribunal ever issued a summons to a government minister before?
Waitangi Tribunal director Steve Gunson says the tribunal has previously used its summonsing powers in other inquiries and he cited three, including in the Ngā Puhi mandate inquiry when summonsing former Prime Minister Jim Bolger in his capacity as a Crown negotiator. He also pointed out that other sitting ministers have given evidence, such as Chris Hipkins during the Covid-19 Priority Inquiry. But to the best of Gunson’s knowledge, the tribunal has never summonsed a sitting Government minister. Ministers have sometimes provided written statements.
Why is there an urgent inquiry?
The tribunal responds to claims that actions or omissions by the Crown breach the principles of the Treaty. In terms of legislation, it can only hear claims about proposed laws, not bills that have been introduced already. The Government plans to introduce a bill repealing section 7AA in mid-May. Deputy tribunal chair Sarah Reeves granted an urgent hearing on March 26 into the Government’s intention to repeal section 7AA of the Oranga Tamariki Act 1989. Three claimant groups are Ngāti Pukenga and Ngā Potiki, the Māori Women’s Welfare League and Ngāti Hine Lands Forests and Resources. The inquiry is known as Wai 3350.
Who is running the tribunal’s urgent inquiry?
Sarah Reeves appointed Judge Michael Doogan to head the panel. Doogan was appointed to the Māori Land Court in 2013 and in 2019 he led a tribunal inquiry, also an urgent inquiry, into whether Crown legislation, policy, and practice in relation to Māori children in state care under Oranga Tamariki was consistent with the principles of the Treaty and the Crown’s Treaty duties to Māori.
What did Doogan ask of Chhour?
Two days after the urgent hearing was granted, Judge Doogan directed the Crown’s lawyers to get answers to eight questions: “The Crown, through the responsible minister, is directed to respond to the following questions,” he said in his memo. The questions included things such as what policy problem this addresses, could that policy objective be better advanced by way of amendment rather than repeal of section 7AA, and if not, why not? Had the minister taken legal advice on the proposed repeal and its effects and if so, could the Crown please provide that advice to him, he wrote. Judge Doogan also wanted to know what would happen to the partnerships Oranga Tamariki had with iwi that were part of section 7AA - and he wanted answers within five working days. That was not the summons.
What was the Crown and Chhour’s response to the demand?
The Crown’s lawyers, Simon Barr and Lachlan Ewing, told the tribunal that Chhour would not be providing a written statement or appearing to give evidence. On April 5, it told the tribunal that Cabinet had already made a policy decision to repeal section 7AA, the reasons for and background of which were set out in Cabinet papers and the regulatory impact statement which the Crown was making available to the tribunal. It could also hear evidence from the head of Oranga Tamariki. The Crown gave the tribunal a bundle of documents “in the interests of candour and comity”, including Cabinet papers and totalling 118 pages.
What do the Cabinet papers and other documents say?
They show that Chhour does not have the support of her own ministry for the repeal, nor Te Puni Kokiri, the Ministry of Māori Development. Oranga Tamariki authored the regulatory impact statement setting out its concerns that there was no empirical evidence to back up the definition of the problem that repeal was attempting to address. In other advice, Oranga Tamariki acknowledges that section 7AA may have been used at times by social workers to justify care arrangements for Māori children which may not have been safe or in their best interests. “This is not consistent with the practice approach of Oranga Tamariki,” it said. Regarding partnerships with iwi, the Cabinet paper makes it clear that they will be unaffected by the repeal and there was nothing to stop new partnerships from being established.
Wasn’t there a case in the news recently about Oranga Tamariki?
Yes. Newsroom won an important case in the Court of Appeal. For three years, a documentary by Melanie Reid and Bonnie Sumner about a “reverse uplift” had been banned from publication but it can now be shown. It is about four children from a violent home who were placed with Pākehā foster parents in a “forever home” but following the introduction of section 7AA, things changed quickly and the children were uplifted to be placed with Māori relatives they had not known.
Was the Waitangi Tribunal satisfied with the bundle of documents it received?
No. Memos show Judge Doogan’s tone became slightly more conciliatory than his original “direction” to get answers from the minister. But he believed he was entitled to ask questions of her. He cited his powers under the Treaty of Waitangi Act 1975 which states that “the chairperson of the tribunal, or any other person, being the presiding officer at a sitting of the tribunal or a member of the tribunal purporting to act by direction or with the authority of the chairperson may issue directions or conduct conferences; or may issue summonses requiring the attendance of witnesses before the tribunal, or the production of documents”.
He also said: “Crown counsel may be correct that the minister will not be able to add significant additional information from that already available to us from the documents, or otherwise available from the evidence to be given by the senior officials. We simply do not know at this point, but I believe we are entitled to ask.”
It follows concerns about use-of-force powers being given to staff.