Wednesday, April 17, 2024

Ministers are not above the law

Today in our National-led authoritarian nightmare: Shane Jones thinks Ministers should be above the law:

New Zealand First MP Shane Jones is accusing the Waitangi Tribunal of over-stepping its mandate by subpoenaing a minister for its urgent hearing on the Oranga Tamariki claim.

The tribunal is looking into the proposal to scrap Section 7AA of the Oranga Tamariki Act which requires the chief executive to demonstrate a practical commitment to the principles of the Treaty of Waitangi.

In a rare move, the Waitangi Tribunal has summonsed a sitting minister to explain why she wants to repeal section 7AA of the Oranga Tamariki Act.


Jones says the tribunal should focus on the effects of policy rather than the construction of policy.

“The Waitangi Tribunal has no business running its operations as some sort of star chamber delivering pre-emptory summons for ministers to rock up and be cross-examined or grilled in some kind of wannabe American star chamber pulp fiction gig,” he says.

[The Tribunal has in fact asked for an affidavit, rather than cross-examination, and a formal summons is a last resort in the fact of noncooperation]

The problem here is that the reason for a policy is an important part of determining whether it is justified, and its motivation may be relevant to an assessment of its effects. Orthodox Bill of Rights Act analysis, for example, starts with asking "does this serve an important public purpose", while a policy which has racist effects is so much worse if it is motivated by racism than if those effects are due to an oversight. And where Ministers are proposing, but have not yet implemented, action, the answers on motivation can really only come from them.

In terms of "mandates", the Waitangi Tribunal is legally a Commission of Inquiry, with all the powers of a court. Ministers give evidence to both when it is relevant for them to do so (for example, a pile of Ministers gave evidence to the inquiry onto the Christchurch shootings; their evidence was then suppressed for thirty years to protect "national security"; the Cabinet Manual section on "Litigation involving Ministers" includes a note that courts routinely expect affidavits from Ministers in Judicial Review proceedings). If the Minister is worried about being asked about Cabinet discussions, they can always seek a direction that these not be disclosed (the protection of collective and individual ministerial responsibility is a withholding ground under the Official Information Act, and can thus be protected under section 70 of the Evidence Act).

In fact, the only constitutional problem here is that Jones is criticising a court, in clear violation of both constitutional norms and the Cabinet Manual. Unfortunately the Prime Minster is neither willing nor able to enforce either against his coalition partners.

In this inquiry, the onus is on the government to explain its proposed policy and how it does not breach Te Tiriti. And if Chhour does not wish to provide a reason for the policy, the Tribunal is fully justified in assuming that there is none (or at least, none the government wishes to publicly admit to), and drawing the appropriate conclusion.