The Crown has called the summoning of the Minister for Children to the Waitangi Tribunal “coercive” and an “unlawful exercise of expression”.
“This is an unorthodox and actually unprecedented event for a statutory tribunal to summons a minister to attend it,” Una Jagose KC said in her opening remarks.
The summons was issued for the minister to appear by midday Friday.
The High Court judicial review is underway in Wellington, with the Crown in attendance on behalf of Minister for Children Karen Chhour.
Lawyers for the Waitangi Tribunal, Māori Women’s Welfare League, Ngāti Pikiao, Ngāti Hine and Waikato Tainui were also set to give arguments.
The judicial review was sought by the Crown to block the Minister’s attendance at an urgent inquiry being held by the Waitangi Tribunal into the coalition Government’s plan to repeal Section 7AA of the Oranga Tamariki Act.
The minister was summonsed to attend by Friday this week.
Section 7AA compels Oranga Tamariki, the Ministry for Children, to publicly report on the agency’s process in improving outcomes for Māori children in state care.
The Crown said all relevant material has been provided by the Crown and it’s not constructive for the minister to attend.
“The Tribunal is asking for the minister to fill gaps that can’t be filled,” Jagose said.
She said while ministers have given evidence before the Tribunal previously, this has never been done because a summons was ordered.
“Our challenge, our issue is with the coercive aspect of the summons – not with the minister’s attendance on its own,” the Crown lawyer said. She said a summons required a very high threshold, arguing this hasn’t been met in this case.
Jagose acknowledged the Tribunal has wide powers, but said all statutory powers have limits.
The Crown argued the summons could affect comity, a principle where the Government and judiciary have respectful relations.
The Waitangi Tribunal has legal power to summon witnesses as a Commission of Inquiry.
The Tribunal’s summons asked for the minister to provide a range of evidence, including what problem the proposed repeal addresses, if the minister has taken legal advice on the proposed repeal and if the Crown has consulted with Māori – and if not, whether it intends to.
Oranga Tamariki’s official advice to the minister has previously suggested Section 7AA is making a positive difference.
Waitangi Tribunal lawyer Matanuku Mahuika said the tribunal’s important role in the judiciary includes questioning the conduct of ministers.
He said it’s easy for the Crown to plead that comity will be affected, but the argument needs to be used carefully.
“Applied too rigidly it has the ability to undermine a lawful inquiry,” he said.
Matthew Smith, lawyer for Ngāti Pikiao, said the tribunal has tried to maintain respectful relations.
The minister was first asked for voluntary evidence.
“Till eleven 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 the tool of a summons,” he said.
Smith also argued speaking to the Children’s Minister is important because she wrote the Cabinet paper seeking approval for the repeal and needs to answer questions on why its required.
“Why is there an attempt to set out a policy case that conflicts with advice?” he said.
The presiding judge reserved his decisions and expects to issue it on Wednesday.