Court of Appeal rules against Chhour

Written By: - Date published: 7:51 am, May 15th, 2024 - 16 comments
Categories: child welfare, Christopher Luxon, law, law and "order", Social issues, spin, the praiseworthy and the pitiful, you couldn't make this shit up - Tags:

In the ongoing saga of the Government’s attempts to repeal section 7AA of the Oranga Tamariki Act 1989 there have been a few recent developments.

The Court of Appeal has ruled that the Waitangi Tribunal’s summons to Minister Karen Chhour was valid but declined to make any further order on the basis the date specified in the summons had passed, the Minister had provided some information to the Tribunal and the introduction of the repeal bill was imminent.

But the decision is interesting. About the issue of “comity” the Court said that because the Tribunal could make recommendations to the Government only the principle had limited effect. In the future expect greater use of the power to summons Cabinet Ministers.

The letter provided by Chhour to the Trubunal is also interesting. Previously she refused to provide any information. Obviously she thought better about it although the letter does not tell us much. It basically involves her avoiding answering any questions.

As an example to the question “[h]ow many caregivers have informed the Minister of concerns about section 7AA” she answers “[i]t is not possible for me to recall the number.”

She said that in her time as an opposition Member of Parliament, she spoke with a number of caregivers from time to time.

Policy formulation by reckons should not be an option for a responsible Government.

Luxon gave another pants on fire display yesterday morning on Morning Report. His lack of understanding of what he is talking about is of real concern.

He said that the Government acted in good faith and with comity by providing information to the tribunal. It did but in the case of Chhour’s letter it was really late.

He then said this:

The key thing here is we make no apologies for repealing section 7AA so that we can actually make sure that the well being of the child is the primary focus of Oranga Tamariki.

Was it cynical to introduce the bill? Luxon said no.

The thing is like Chhour before him he has got the law completely wrong.

Because the Act currently says that the well being of the child is the primary focus of Oranga Tamariki.

Section 4A of the Act states:

In all matters relating to the administration or application of this Act (other than Parts 4 and 5 and sections 351 to 360), the well-being and best interests of the child or young person are the first and paramount consideration, having regard to the principles set out in sections 5 and 13.

You would expect the Prime Minister to at least have a basic understanding of what he is talking about.

Either that or you would expect him to represent what the law was accurately.

To highlight the sense of desperation the Government has with undue haste introduced the repeal bill. During a recess week. Just to stymie the Waitangi Tribunal.

Fancy misrepresenting what the law was, and picking a fight with the Waitangi Tribunal and with Oranga Tamariki. Just to engage in yet another culture war fighting against something that is not there.

Christopher Luxon’s Government is creating quite a reputation.

16 comments on “Court of Appeal rules against Chhour ”

  1. AB 1

    "I will not be lectured to by [insert name of person or organisation here]".

    That's the CoC's standard for evidence. The parties who proclaim their belief in liberty and free speech turn out to be closet authoritarians. No surprises there. It's Michael Cullen's interjection "we won you lost" now taken out of the realm of debating chamber rhetoric and applied ruthlessly on the ground.

  2. Ad 2

    I would hope from this decision, Labour's leader office gets a broader scope of tools able to hold Ministers accountable.

    This government is using astonishing speed to ram legislative change and policy changes through Cabinet and Parliament.

    Labour's symposia in the upper chamber are another strong innovation.

    With decline of broadcast news, forcing accountability is vital.

    In your eye Crown Law.

    • Maurice 2.1

      This government is using astonishing speed to ram legislative change and policy changes through Cabinet and Parliament.

      It seems that the 54th has learnt well from the 53rd … and learnt how to deliver as well!

      • SPC 2.1.1

        The 54th government will not even try and build as many homes as in 2017-2023 (despite lockdown periods) – most since the 70's and will probably end its terms with less Kainga Ora houses than now.

        And the 25 cents per hour increase in MW signals that MW will go up much slower than rents.

        Deliver for whom?

        • Maurice 2.1.1.1

          Deliver for whom?

          Those who support them and donate to the Parties in power …..

          … as it ever is.

          When will we learn that the agonised shrieking is music to their ears and a confirmation that they are on the correct path?

  3. Belladonna 3

    In the future expect greater use of the power to summons Cabinet Ministers.

    If this is the case, I would expect the government to be rapidly enacting legislation to return the legal position to the previous default (de facto, if not de jure). Where the courts have no power to summon Ministers to appear.

    It is highly questionable whether the courts, in the Westminster system, have authority over the Executive branch of government. It is the AG who has the job to ensure that new legislation complies with existing law – not that of the courts.

    Parker did this over the Rotorua Council representation bill

    https://www.nzherald.co.nz/rotorua-daily-post/news/rotorua-council-representation-bill-cannot-be-justified-attorney-general/FISDTUCJOZHW7LKQMWEF2IIENE/

  4. Maurice 4

    The entire matter is much more complex than the High Court and Appeal Court rulings cover.

    A far wider examination here:

    https://garyjuddkc.substack.com/p/real-reason-waitangi-tribunal-could

    The Tribunal’s position as a standing commission of inquiry, and its function to make recommendations to the Crown and report to Ministers mean it is best be considered as a specialist part of the Executive Branch, established to inquire into matters within its functions, to assist the Executive Branch with respect to decisions of Cabinet as the decision-making organ of the Executive Branch.

    In this case, the Tribunal has summoned to give evidence one of those whom the Tribunal exists to assist — the responsible Cabinet Minister.

    It is taking an adversarial position in conflict with its statutory position of adviser to her. That is inconsistent with the Tribunal’s function with the consequence that it must be outside the powers conferred by the legislation. That’s the reason why the witness summons is invalid. It has nothing to do with comity.

    and: https://garyjuddkc.substack.com/p/sequal-to-real-reason-waitangi-tribunal

    In short, the High Court decided that the doctrine of comity meant that the Tribunal could not summon the Minister unless her evidence was clearly necessary, and it wasn’t.

    In that decision the High Court treated the Tribunal as if it were a court when it is not.

    I am pleased to see that the Court of Appeal decided the comity principle doesn’t apply. But it still said that the Tribunal was empowered to summon the Minister. In doing so the Court of Appeal failed to consider two vital elements.

    First, the Tribunal’s function is to make recommendations to the Crown. It does so by sending its findings to the Minister of Māori Affairs “and such other Ministers of the Crown as in the opinion of the Tribunal have an interest in the claim.” In this case that would obviously include the Minister for Children.

    In this case, the Tribunal has summoned to give evidence one of those whom the Tribunal exists to assist — the responsible Cabinet Minister.

    By forcing her to appear and give evidence it is adopting an adversarial position in conflict with its statutory position of adviser to her and the Cabinet of which she is a part. As this is inconsistent with its functions of making recommendations to the Crown, the summons must be invalid.

    Secondly, the Tribunal’s jurisdiction is where “any Maori claims that he or she, or any group of Maoris of which he or she is a member, is or is likely to be prejudicially affected” (in this case) by a policy adopted by or on behalf of the Crown.

    If claimants claim to be prejudicially affected by a proposal the Minister has recommended to Cabinet, they don’t need the Minister – the person they are advising – to prove their claim. They, not the Minister, claim to be prejudicially affected. They, not the Minister, must know why they are prejudicially affected. They want the Tribunal to make recommendations to the Minister explaining why they are prejudicially affected.

    If the Minister wants to give evidence to demonstrate that the claimants are wrong and that there is no prejudice, that would be her entitlement. There can be no genuine reason to summon her to prove their claim.

    A bit lengthy but more at the links including the relevant sections of the 1975 Act

    • Nordy 4.1

      The Waitangi Tribunal is not an advisor to Ministers/Crown. Read the Functions section of the Act that established the Tribunal. Your attempt to divert from the reality of its role speaks a great deal about what you are trying to say/not say.

      It is only adversarial in this case because the Minister refused to provide requested information. The requested information is in essence political/ideological – as there is no evidence to support the proposed legislation – as set out in the relevant Regulatory Impact Statement.

      It's not complex at all. It's simply yet another example of this Government thumbing its nose at anyone who it disagrees with.

      • Dolomedes III 4.1.1

        "the Minister refused to provide requested information"

        If the minister had appeared before the tribunal, what could she have told them that they don't know already?

        • Nordy 4.1.1.1

          Its called evidence. Unless you think courts and tribunals should just assume what the position of the relevant parties is?

          • Dolomedes III 4.1.1.1.1

            The tribunal already knows what the government's position is. This is just a powerplay by the tribunal – that is all.

            • Incognito 4.1.1.1.1.1

              You’ve got it back-to-front. The Minister was never asked to front in person, only to provide answers, written or otherwise.

              1.3 Our Process

              […]

              On 28 March 2024, the presiding officer issued directions proposing an indica­tive timetable and issuing directions for evidence from the Crown. Crown counsel had previously argued that the proposed repeal of section 7AA is not the product of a policy process undertaken by officials but was part of an agreement made at a political level by political parties in the process of forming a government.

              On that basis, we considered that information central to our inquiry was held primarily at the political and not the departmental level. Accordingly, a number of questions were directed to the Crown through the responsible Minister and a brief of evidence or affidavit was sought from the Minister for Children, the Honourable Karen Chhour, to be filed on or before 9 April 2024. [pg. 2]

              […]

              1.3.1 Our requests for evidence and the Minister’s response

              Following an indication from Crown counsel on 5 April 2024 that the Crown did not intend to call evidence from the Minister for Children, the presiding officer issued further directions on 9 April asking that the Minister reconsider her pos­ition and voluntarily provide evidence. Some further questions were also posed for the Minister’s response.

              On 10 April, counsel for the Crown filed a memorandum confirming that it did not intend to call the Minister for Children to present evidence, nor produce a written statement.3 On 11 April, the presiding officer issued a summons to the Minister for Children.4 [pg. 3]

              […]

              We are asking her to simply explain her reasoning for bringing such a proposal to Cabinet, especially in light of the overwhelming advice from officials not to do so, and the absence of that reasoning in the Cabinet paper. [pg. 26]

              https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_213376913/Oranga%20Tamariki%20Urgent%2010%20May%20W.pdf

              The Waitangi Tribunal was operating within its authority and in a reasonable manner. The Minister, on the other hand, thumbed her nose at the Tribunal and essentially gave them the finger, first by her refusal, and second in her arrogant response to the Tribunal’s questions via a letter on 26 April.

      • Belladonna 4.1.2

        Has the Waitangi Tribunal ever summonsed another Minister to appear before them? If so, what was the result?

        There have certainly been other instances where the WT have felt that crown policies were against the treaty (Foreshore and Seabed Act, for example)

  5. roblogic 5

    Seems to be a pattern here – Chhour isn't just rogue minister, a theme of this coalition government is lack of accountability to the public (press) or to the law (waitangi trib) or to democratic process (fast track) or indeed the truth.

    • Incognito 5.1

      Exactly! The power play of a bad bunch of neo-authoritarians who have a bad bout of incurable and untreatable neo-liberal corporatitis.

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