Monday, May 13, 2024

Ministers are not above the law after all

Back in April, the High Court surprised everyone by ruling that Ministers are above the law, at least as far as the Waitangi Tribunal is concerned. The reason for this ruling was "comity" - the idea that the different branches of government shouldn't interfere with each other's functions. Which makes perfect sense when talking about Parliament and the courts, but sounds awfully like echoes of absolute monarchy when Ministers demand it for themselves.

Today, fortunately, the Court of Appeal has overturned that bullshit:

The Court of Appeal has overturned a High Court decision which blocked a summons order from the Waitangi Tribunal for Children's Minister Karen Chhour.


In its ruling, the court acknowledged the importance of the Waitangi Tribunal's role in inquiry into legislation that is inconsistent with the principles of the Treaty of Waitangi and that the minister had relevant evidence to give to the Tribunal.

It disagreed with the High Court's ruling that the principle of comity, or legal reciprocity, applied to the Tribunal.

Unfortunately they don't give much of a reason why, other than that "The Tribunal is not easily located within the judicial branch", and
It is not clear to us why the constitutional relationship between the Crown and the Tribunal should prevent the Tribunal from asking for information that would, in its view, assist it to carry out the Inquiry.
Still, its a win, which firmly establishes the principle that the Tribunal can summons Ministers if, in its opinion, they have relevant evidence. And that seems valuable for the future - especially with so many other urgent Waitangi Tribunal inquiries happening right now.

Meanwhile, Chhour has introduced her racist bill to the House. When it gets to select committee, I hope that everyone will submit in opposition, citing the Tribunal's view that it breaches te Tiriti. Like violations of the BORA, Parliament simply should not be passing bills that do that, and future governments are fully justified in rectifying such constitutional outrages and implementing the Tribunal's decision under urgency.