In late 2023, the coalition government between the National, ACT and New Zealand First took office. The National/ACT coalition agreement stated that the Government would repeals 7AA of the Oranga Tamariki Act 1989. The repeal policy originated with ACT and ACT MP Karen Chhour became the Minister for Children.
Section 7AA imposes a duty on Oranga Tamariki to show practical commitment to the principles of the Treaty of Waitangi by directing its internal processes towards reducing disparate outcomes for Māori children in state care, and by entering strategic partnerships with iwi or Māori organisations in some cases.
Shortly after the Government took office, several Māori claimants submitted claims in the Waitangi Tribunal arguing that the repeal policy breached the principles of the Treaty of Waitangi.
During the resulting inquiry, the Tribunal directed several questions about the policy to the Minister.
In March 2024, Cabinet agreed to enact legislation to repeal s 7AA. The Crown then informed the Tribunal that the Minister’s evidence was no longer necessary because the policy was now a Cabinet decision. The relevant Cabinet Paper was provided as evidence of the basis of the decision, and Oranga Tamariki officials would give supplementary evidence in person.
The Tribunal disagreed that the evidence was no longer necessary. It directed further questions to the Minister, seeking the identities of “prominent individuals” and “anecdotal evidence” identified in the Cabinet Paper as supporting the case for the repeal Bill.
The Crown maintained its position that the Minister would not give evidence. In response, the Tribunal issued a summons to the Minister, compelling her to provide evidence sought.
The Crown applied for judicial review of the summons decision to argue that Chhour should be exempt from a subpoena.
The case
The Crown alleged in both courts that the summons was unlawful because the evidence was not relevant to the inquiry, and because the ‘heightened requirements of comity’ in the case meant that it was inappropriate to issue the summons.
Relevance
Both the High Court and Court of Appeal rejected the relevance challenge. However, the two courts came to opposing conclusions regarding the value of the Minister’s evidence.
The High Court accepted the Minister’s evidence would not add much to that provided by the Cabinet Paper and by officials. However, the threshold for evidential relevance was low, and the Minister’s evidence would clearly meet it.
The Court of Appeal disagreed that the Minister’s evidence had nothing to add. The Crown had acknowledged in the Tribunal that the repeal policy reflected “a philosophical or political viewpoint not reducible to empirical analysis”. The ACT Party was the genesis of the viewpoint, notwithstanding Cabinet’s subsequent adoption of the policy pursuant to the National/ACT coalition agreement. In this context, the Minister’s personal evidence was highly relevant and the High Court had erred in saying otherwise.
Comity
Comity is a constitutional convention that mandates mutual respect and restraint between the different branches of government. Its purpose is to avoid clashes between the separate branches of government that could undermine the constitutional order. Like all constitutional conventions, it is not directly legally enforceable.
Historically, the convention has arisen most often between Parliament and the judiciary. However, the convention is not necessarily confined to that relationship.
The High Court held that the requirements of comity in this case were heightened. This was because the Tribunal was exercising powers similar to that of a court, and requiring the Minister to give evidence personally on a Cabinet decision could infringe collective ministerial responsibility and Cabinet confidentiality (themselves constitutional conventions).
The heightened requirements of comity meant the Minister’s evidence had to be ‘clearly necessary’ to the purpose of the inquiry, rather than the lower threshold of relevance. As the Tribunal already had the Cabinet Paper and evidence from officials as evidence, the Minister’s evidence was not clearly necessary. Accordingly, the summons decision was unlawful.
The Court of Appeal overturned the High Court decision on this point.
In their judgment, the Court of Appeal emphasised that the purpose of the convention was to avoid conflicts over the powers and privileges of the branches of government, citing the law of Parliamentary privilege as a notable example. There was no potential for similar conflict in this case.
The Tribunal was not acting judicially. Its summons power was being exercised pursuant to an investigation and not an adjudication of rights and duties between parties. The Tribunal could not make legally binding orders, with its function being instead to deliver non-binding recommendations to the Crown about compliance with Treaty principles. Additionally, it ceased to have investigatory jurisdiction as soon a policy was embodied in a Bill that had been introduced to Parliament.
The court also disagreed that summonsing the Minister would breach collective responsibility and Cabinet confidentiality. The repeal policy was the Minister’s in substance, and the Minister could speak to it without compromising any Cabinet proceedings.
Because of this, there was no potential in this case for the type of institutional conflict that the comity convention existed to protect. The High Court had been wrong to apply the ‘clearly necessary’ requirement, and the summons was lawful.
Result
The appeal was allowed, but the court made no order. This would have been redundant given when the case was heard, the Tribunal had already made its final report, and the repeal Bill was before the House of Representatives.
The decision nonetheless provides a rare example of judicial comment on the ambit of important constitutional conventions and the influence they can have on legal rights and duties.
At the time of writing, the Oranga Tamariki (Repeal of Section 7AA) Amendment Bill is before the Social Services and Community Select Committee, which is due to report back on 21 November 2024.
For further information on this case or similar issues please contact Director, Brigitte Morten
