Skerret-White & Ors v Minister For Children & Ors - [2024] NZCA 160
Date of Judgment
13 May 2024
Media releases
Decision
Skerret-White & Ors v Minister For Children & Ors (PDF 559 KB)
Summary
Judicial review - Appeals - Treaty of Waitangi - Procedure - Commissions of inquiry - Evidence - Comity- Power to issue summonses - Waitangi Tribunal - Minister
The appeals are formally allowed, but we make no other order having regard to the changed circumstances since the summons was issued.
If there is any issue as to costs the parties may file memoranda within 10 working days. Our preliminary view is that costs in this Court should lie where they fall.
Any issue as to costs in the High Court is to be dealt with in that Court in accordance with this judgment.
The issues before the Court arose out of an urgent inquiry (the Inquiry) on which the Waitangi Tribunal embarked into the repeal of section 7 AA of the Oranga Tamariki Act 1989. Section 7 AA sets out the duties of the Chief Executive of Oranga Tamariki in relation to the Treaty of Waitangi | te Tiriti o Waitangi. The Tribunal hearing was scheduled to be on 12 April.
Judge Doogan, the Presiding Officer of the Tribunal panel, issued a memorandum directing the Crown to respond to a set of questions through the "responsible minister" (the Minister for Children). He said it would assist if responses to these questions could be filed by way of a brief of evidence or affidavit on or before 9 April.
On 5 April, the Crown notified the Tribunal that it did not intend to call Minister Chhour as a witness. Instead, the Cabinet papers would be produced as part of the Crown evidence. The Crown provided the Tribunal with a Cabinet paper headed "Repeal of section 7 AA of the Oranga Tamariki Act 1989", signed by the Minister for Children. In this paper, the Minister for Children recorded her concern that the section may have been used to justify decision-making in relation to care arrangements for Maori children which had not been safe or in the child's best interests.
On 9 April, the Tribunal maintained, despite the Crown's contention that evidence from the Minister was "not necessary to inform the tribunal of the relevant information", that it would greatly assist its inquiry if the Minister provided evidence as to the basis for the opinions recorded in the Cabinet paper. The Tribunal had read the departmental advice annexed to the Cabinet paper, which recorded a lack of robust empirical evidence to support the premise behind the policy.
The Crown, in its response dated 10 April, reiterated that it would not call the Minister as a witness nor produce a written statement from her. The Crown stated that if the Tribunal proceeded to summons the Minister or direct her to file evidence, the Crown would launch urgent judicial review proceedings in the High Court.
On 11 April, the Tribunal issued a summons for the Minister to appear before the Tribunal on 26 April for the purpose of providing evidence. On 15 April, the Minister commenced a proceeding against the Waitangi Tribunal in the High Court. The High Court granted the application for judicial review and set aside the summons.
Following these events, the Minister sent a letter to the Tribunal on 26 April, which recorded her opinion that the record showed all there was to show in support of the Crown policy and that there was no more information she could materially add.
On 29 April, the Tribunal released an interim report concerning the proposed repeal of s 7 AA, identifying that a "key problem" with the Government's decision to repeal s 7 AA was that it had come about due to a belief or assumption that coalition agreements took precedence over the Crown's obligations to Maori under the Treaty of Waitangi.
On 10 May, the Tribunal issued a further report setting out its findings and recommendations, and reserved leave for the parties to apply for further directions following the release of the Court's judgment.
Issue 1: Is it within the scope of the Waitangi Tribunal's power to issue summonses to witnesses?
Held: Yes. The Waitangi Tribunal has a role of constitutional importance. It has a statutory duty to inquire into the claims made to it under s 6(1) of the Treaty of Waitangi Act 1975 that a Crown policy to enact legislation is inconsistent with the principles of the Treaty of Waitangi. The Act provides that, in fulfilling that duty, it has the powers of a commission of inquiry under the Commissions of Inquiry Act 1908, including the power under s 4D of that Act to summons witnesses to give evidence.
Issue 2: Was the Tribunal's issue of the summons to the Minister lawful?
Held: Yes. 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. 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. It also indicated it preferred that the Minister provided the requested information voluntarily.
Issue 3: Does the principle of comity operate to prevent the Tribunal asking for information that would, in its view, assist it to carry out the inquiry?
Held: No. The principle of comity did not apply to limit the power of the Tribunal. The Tribunal is fulfilling a statutory duty, and s 6(6) identifies when its jurisdiction is limited by the proceedings of Parliament. Moreover, even if comity applies it applies to the Crown as well as the Tribunal, and such a duty would involve the Minister voluntarily providing the information that the Tribunal requested. That would also be consistent with the Crown's Treaty obligations.
Issue 4: Mootness and relief
After the Tribunal issued the summons, a number of events took place. The Minister provided a letter to the Tribunal responding to the questions it asked; officials gave evidence related to those matters; and the Tribunal issued both an interim and full report. The introduction of a Bill is imminent. These changed circumstances give rise to issues of mootness. However, even if the appeal were moot, that would not preclude the Court from deciding the appeal and issuing a fully reasoned decision, given the issues of public importance involved.
The appeals are formally allowed, but we make no other order having regard to the changed circumstances since the summons was issued.
If there is any issue as to costs the parties may file memoranda within 10 working days. Our preliminary view is that costs in this Court should lie where they fall.
Any issue as to costs in the High Court is to be dealt with in that Court in accordance with this judgment.
The issues before the Court arose out of an urgent inquiry (the Inquiry) on which the Waitangi Tribunal embarked into the repeal of section 7 AA of the Oranga Tamariki Act 1989. Section 7 AA sets out the duties of the Chief Executive of Oranga Tamariki in relation to the Treaty of Waitangi | te Tiriti o Waitangi. The Tribunal hearing was scheduled to be on 12 April.
Judge Doogan, the Presiding Officer of the Tribunal panel, issued a memorandum directing the Crown to respond to a set of questions through the "responsible minister" (the Minister for Children). He said it would assist if responses to these questions could be filed by way of a brief of evidence or affidavit on or before 9 April.
On 5 April, the Crown notified the Tribunal that it did not intend to call Minister Chhour as a witness. Instead, the Cabinet papers would be produced as part of the Crown evidence. The Crown provided the Tribunal with a Cabinet paper headed "Repeal of section 7 AA of the Oranga Tamariki Act 1989", signed by the Minister for Children. In this paper, the Minister for Children recorded her concern that the section may have been used to justify decision-making in relation to care arrangements for Maori children which had not been safe or in the child's best interests.
On 9 April, the Tribunal maintained, despite the Crown's contention that evidence from the Minister was "not necessary to inform the tribunal of the relevant information", that it would greatly assist its inquiry if the Minister provided evidence as to the basis for the opinions recorded in the Cabinet paper. The Tribunal had read the departmental advice annexed to the Cabinet paper, which recorded a lack of robust empirical evidence to support the premise behind the policy.
The Crown, in its response dated 10 April, reiterated that it would not call the Minister as a witness nor produce a written statement from her. The Crown stated that if the Tribunal proceeded to summons the Minister or direct her to file evidence, the Crown would launch urgent judicial review proceedings in the High Court.
On 11 April, the Tribunal issued a summons for the Minister to appear before the Tribunal on 26 April for the purpose of providing evidence. On 15 April, the Minister commenced a proceeding against the Waitangi Tribunal in the High Court. The High Court granted the application for judicial review and set aside the summons.
Following these events, the Minister sent a letter to the Tribunal on 26 April, which recorded her opinion that the record showed all there was to show in support of the Crown policy and that there was no more information she could materially add.
On 29 April, the Tribunal released an interim report concerning the proposed repeal of s 7 AA, identifying that a "key problem" with the Government's decision to repeal s 7 AA was that it had come about due to a belief or assumption that coalition agreements took precedence over the Crown's obligations to Maori under the Treaty of Waitangi.
On 10 May, the Tribunal issued a further report setting out its findings and recommendations, and reserved leave for the parties to apply for further directions following the release of the Court's judgment.
Issue 1: Is it within the scope of the Waitangi Tribunal's power to issue summonses to witnesses?
Held: Yes. The Waitangi Tribunal has a role of constitutional importance. It has a statutory duty to inquire into the claims made to it under s 6(1) of the Treaty of Waitangi Act 1975 that a Crown policy to enact legislation is inconsistent with the principles of the Treaty of Waitangi. The Act provides that, in fulfilling that duty, it has the powers of a commission of inquiry under the Commissions of Inquiry Act 1908, including the power under s 4D of that Act to summons witnesses to give evidence.
Issue 2: Was the Tribunal's issue of the summons to the Minister lawful?
Held: Yes. 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. 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. It also indicated it preferred that the Minister provided the requested information voluntarily.
Issue 3: Does the principle of comity operate to prevent the Tribunal asking for information that would, in its view, assist it to carry out the inquiry?
Held: No. The principle of comity did not apply to limit the power of the Tribunal. The Tribunal is fulfilling a statutory duty, and s 6(6) identifies when its jurisdiction is limited by the proceedings of Parliament. Moreover, even if comity applies it applies to the Crown as well as the Tribunal, and such a duty would involve the Minister voluntarily providing the information that the Tribunal requested. That would also be consistent with the Crown's Treaty obligations.
Issue 4: Mootness and relief
After the Tribunal issued the summons, a number of events took place. The Minister provided a letter to the Tribunal responding to the questions it asked; officials gave evidence related to those matters; and the Tribunal issued both an interim and full report. The introduction of a Bill is imminent. These changed circumstances give rise to issues of mootness. However, even if the appeal were moot, that would not preclude the Court from deciding the appeal and issuing a fully reasoned decision, given the issues of public importance involved.