Sequel to “Real reason Waitangi Tribunal could not summons Chhour”

Why Courts should have said Waitangi Tribunal could not summons Karen Chhour

• Gary Judd writes –

In the High Court, Justice Isacs declined to uphold the witness summons issued by the Waitangi Tribunal to compel Minister for Children, Karen Chhour, to appear before it to be questioned.

There are three branches of government – the Executive (effectively Cabinet and the government departments or ministries), the Legislative (Parliament), and the Judicial (the courts). The doctrine of comity requires each of those branches to treat the others with respect.

Real reason Waitangi Tribunal could not summons Chhour

And why did the Crown not challenge the Tribunal’s jurisdiction?

 

• Gary Judd writes – 

Retired District Court Judge, David Harvey, has posted on his A Halflings View Substack an excellent summary of Justice Isacs’ judgment declining to uphold the witness summons issued by the Waitangi Tribunal to compel Minister for Children, Karen Chhour, to appear before it to be questioned. See The Summoning The Witness Summons That Did Not Work.  

In short, the High Court decided that the doctrine of comity, requiring the branches of government to treat each other with respect, meant that the Tribunal could not summons the Minister unless her evidence was clearly necessary. The Court held it wasn’t. An appeal to the Court of Appeal has been heard and its decision is awaited.

Deeply unserious country

Every bit of this seems insane. And people wonder why productivity is falling through the floor.

Energy News reports that the Environment Court finally threw out Allan Crafar’s appeal against a solar farm.

From the story:

The Waitangi Tribunal is not “a roving Commission”…

…it has a restricted jurisdiction which must not be abused: it is not an inquisition

 

NOTE – this article was published before the High Court ruled that Karen Chhour does not have to appear before the Waitangi Tribunal

• Gary Judd writes – 

The High Court is today [22/4/24] hearing an application by the Crown to set aside a witness summons requiring the Minister for Children, Karen Chhour to appear before the Waitangi Tribunal to be questioned as part of an inquiry into her plans to remove s 7AA from the Oranga Tamariki Act, which sets out the duties of the chief executive of Oranga Tamariki in relation to the Treaty of Waitangi.

The section says, among other things, that the chief executive must ensure: “The policies, practices and services of the department have regard to mana tamaiti (tamariki) and the whakapapa of Māori children and young persons and the whanaungatanga [kinship] responsibilities of their whānau, hapū and iwi.” This description is taken from Audrey Young’s article in the Herald.

The Waitangi Tribunal Summons; or the more things stay the same

• Graeme Edgeler writes – 

This morning [April 21], the Wellington High Court is hearing a judicial review brought by Hon. Karen Chhour, the Minister for Children, against a decision of the Waitangi Tribunal. This is unusual, judicial reviews are much more likely to brought against ministers, rather than by them. Chhour is challenging a decision by the Waitangi Tribunal to issue a summons requiring her to give written evidence, as part of an inquiry into a government policy decision around Māori children in state care (the repeal of section 7AA of the Oranga Tamariki Act).

This is rare. The Waitangi Tribunal has apparently not previously done this, but it’s also not wholly unique. Ministers frequently file written evidence in Court proceedings, and before Commissions of Inquiry. They just usually agree to when asked nicely, so no summons is necessary.

Maori push for parallel government structures

• Michael Bassett writes –

If you think there is a move afoot by the radical Maori fringe of New Zealand society to create a parallel system of government to the one that we elect at our triennial elections, you aren’t wrong.

Over the last few days we have seen calls from one or two Iwi for prior consultation with Maori before ministers submit suggestions to the fast-track consenting panel of experts who are to make recommendations back to government on how to proceed with projects caught up in the toils of our out-of-date Resource Management Act. Various loud assertions about “partnership” and Treaty rights have been made to justify Maori having separate entitlements to everyone else.

Spotlight on the Courts

• Muriel Newman writes –

“Houston, we have a problem!”

New Zealand’s Supreme Court – the highest court in our land – has been captured by activist judges.

What is heartening, is the emergence of a wide range of eminent legal voices all openly criticising the Court and calling for this problem to be addressed.

But first some background.

How to rein in an activist Supreme Court

• Roger Partridge writes – 

My earlier column this month, New Zealand’s highest court could be facing a turning point, prompted a flood of feedback from business readers and lawyers alike. A common query was what Parliament can do to restrain an overreaching judiciary. This week I discuss two steps Parliament should not hesitate to take.

But first a quick recap.

On judicial imperialism – why judges must ‘stay in their lane’

This article with minor differences was published by The Law Association’s Law News on 15 March 2024

 

 

• Gary Judd KC writes – 

Provoked by the Supreme Court’s decision in Smith v Fonterra and others [2024] NZSC 5, Professor James Allan, Garrick Professor of Law at the University of Queensland, a Canadian who taught law at Otago University for 11 years before moving across the ditch, has published “New Zealand’s imperial judiciary Who gave them the power? They did” in Spectator Australia on 2 March. He says:

What do I mean by ‘an imperial judiciary’? I refer to a country where the top judges – committees of unelected ex-lawyers if we want to deal in specifics – are giving themselves new-found power at the expense of the elected branches of government. Under the cover of purportedly applying the law they are usurping power to themselves. 

The Ghahraman Conflict

What was that judge thinking?

• Peter Williams writes – 

That Golriz Ghahraman and District Court Judge Maria Pecotic were once lawyer colleagues is incontrovertible.

There is published evidence that they took at least one case to the Court of Appeal together. There was a report on the case in Stuff in 2016 and another story about them working together in the New Zealand Herald in February 2018.