The case rocking the capital
The Children’s Minister has taken the Waitangi Tribunal to court.
The unusual case, which has embroiled some of the the capital’s most powerful figures and caused infighting amongst the coalition Government, boils down to a fairly simple question.
Wellington’s High Court is being asked: Should Children’s Minister Karen Chhour be obliged to answer questions, at the Waitangi Tribunal, about her Government’s plan to repeal Section 7AA of the Oranga Tamariki Act? That section imposes Treaty obligations on the ministry.
A long hearing on Monday saw comparisons to former South African President Jacob Zuma, ex-UK prime minister Boris Johnson and the Watergate case, where ex US president Richard Nixon tried to fight a summons.
Lawyers arguing both for and against Chhour’s summons claimed great constitutional questions were at play. They claimed potentially “chilling” effects on the Tribunal’s ability to hold the Government to account - or on the ability for Cabinet to function.
Key players
ACT MP Karen Chhour is in charge of the bill, as Children’s Minister. The Tribunal wants to question her reasoning for the bill, as it investigates whether the change is compliant with Te Tiriti o Waitangi or could harm tamariki Māori. Stuff asked Chhour if she would voluntarily go to the Tribunal, as other ministers have done, but she said she couldn’t comment “given it could be the subject of court proceedings”.
Those court proceedings were brought by the minister, with the Government’s top lawyer, Solicitor-General Una Jagose being brought in to argue Chhour should be exempt from a subpoena. Jagose was one of three Crown lawyers arguing Chhour’s case, against the Tribunal.
Matanuku Mahuika led the Tribunal’s response, and had legal teams from the iwi Tainui-Waikato, Ngāti Hine and Ngāti Pikiao as well as the Māori Women’s Welfare League supporting his argument.
All up, 15 lawyers were in court to argue about the summons on Monday. It brought in some of the country’s most senior public and Treaty law experts, both in the public gallery and on either side of the case.
And because this is about politics as much as it is law, Prime Minister Christopher Luxon has also been drawn in. He criticised coalition ministers ACT leader David Seymour and NZ First’s Shane Jones.
Jones and then Seymour seized the stoush to make comments critical of the Tribunal, suggesting it should be “wound up” or was moving beyond its remit. Luxon called those comments “ill considered”, which upset Seymour who told Stuff the prime minister should have raised concerns privately instead of through the press.
Luxon said the two had since had a “deep and meaningful” conversation.
The arguments
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 was “no Watergate”, she said, after Ngāti Pikiao lawyer Matthew Smith drew comparisons to that American scandal as example of MPs being summonsed.
Jagose said a summons was “coercive” power, as it was an offence for someone to refuse the order. The Tribunal had never used that power against a minister, although many have chosen to voluntarily appear. “This is an unorthodox and actually unprecedented event for a statutory tribunal to summons a minister to attend it,” she said.
Given senior Oranga Tamariki officials had appeared during the inquiry, Jagose said the Crown had given ample evidence and there was nothing more the minister could add.
In favour of the Tribunal, Smith said the only person capable of properly explaining Chhour’s reasoning was the minister herself. “This case must not be taken as a precedent establishing a rule that person can by swearing that he can give no evidence, have their subpoena set aside. Ministers of the Crown have no special privilege,” he said.
He pointed out that the minister had gone against officials’ advice and presented a Cabinet paper written from her perspective, therefore he said officials could not substitute for the minister at the Tribunal.
The history
The issue at the core of this legal and political spat is about how much weight Te Tiriti o Waitangi should hold when Oranga Tamariki takes children into state care.
While relatively little was said about those tamariki during Monday’s case, Justice Andru Isac invited a karakia to start the hearing. That karakia called on the courtroom to keep the prosperity of tamariki Māori centre of mind during its debate.
As representatives of the Māori Women’s Welfare League reminded the court, more than 60% of the children in state care are Māori.
Many iwi vowed to fight Chhour’s bill to remove Treaty obligations from the Oranga Tamariki Act. They fear that without a legal requirement to consider Te Tiriti, many Māori children will again be dislocated from their whakapapa and culture through state uplifts.
But Luxon said repealing Section 7AA would improve child safety.
“We want to make sure that actually social workers understand legislatively that the obligation is to place children in good homes. As to what ethnicity those families or those foster parents may be, is largely irrelevant,” he said.
What next?
Chhour’s summons stands for midday Friday. It will go ahead unless the High Court overturns it.
Justice Isac said he would issue his ruling today, at the earliest.
Crown Law said Chhour planned to introduce the repeal bill to Parliament in mid-May, at which point the Tribunal would no longer have jurisdiction to consider the issue.