The Court of Appeal has ruled in favour of the Waitangi Tribunal following its unprecedented decision to summons a government Minister to appear at an inquiry.
The Tribunal had been hearing a legal challenge over the Government’s plan to repeal a section of the Oranga Tamariki Act, and wanted to speak directly to Children’s Minister Karen Chhour about the policy.
When the Minister failed to give evidence voluntarily, the Tribunal issued a summons, compelling the Minister to do so.
Crown lawyers challenged the summons in the High Court and won.
But the Court of Appeal has today overturned that decision, confirming that as a commission of inquiry, it is within the Tribunal’s jurisdiction to summons a minister of the Crown to give evidence if it is relevant.
“It was legitimate for the Tribunal to consider that the Minister might be able to provide more information both relevant and necessary to the Inquiry,” the Court of Appeal said.
“When issuing the summons, the Tribunal was also appropriately sensitive to relevant issues, including collective Cabinet responsibility, the confidentiality of Cabinet discussions, and legal privilege.”
Crown lawyers had argued in the High Court that the summons could affect the principle of comity, where the Government and judiciary respect each other’s roles.
But the Court of Appeal said that principle didn’t necessarily apply to limit the power of the Tribunal.
“It is a principle that typically operates as between the judicial and legislative branches of government, which is a different context from that in which the Tribunal operates,” the Court said.
“The Tribunal is fulfilling a statutory duty, and s 6(6) of the Treaty of Waitangi Act identifies when its jurisdiction is limited by the proceedings of Parliament.”
Even if the principle did apply, the Crown needed to take it seriously too, the Court said.
“Such a duty would involve the Minister voluntarily providing the information that the Tribunal requested,” it said.
“That would also be consistent with the Crown’s Treaty obligations.”
Given the Tribunal had already issued its report on the repeal, the Court of Appeal was making no further orders aside from formally allowing the appeal.
The Oranga Tamariki (Repeal of Section 7AA) Amendment Bill was introduced today.