Rt Hon Christopher Luxon
1 Molesworth Street
Pipitea
Wellington 6011
By email: C.Luxton@ministers.govt.nz; J.Collins@ministers.govt.nz
Tēnā koe e te Pirimia,
WAITANGI TRIBUNAL
1. Te Hunga Roia Māori o Aotearoa | the New Zealand Māori Law Society are concerned about recent comments made by Minister Shane Jones in respect of the Waitangi Tribunal. We consider that his comments breach the principle of the separation of powers and the Cabinet Manual.
2. On the 11 April 2024 in the context of the “Oranga Tamariki Urgent Inquiry (Section 7AA)” the Waitangi Tribunal issued a summons requiring Minister Chhour to give evidence in response to particular questions. The Tribunal indicated that they will not require the Minister to attend or respond pending the outcome of any High Court proceedings. The Crown has since filed judicial review proceedings in the High Court.
3. As reported in a Herald Article dated 17 April 2024, Minister Jones has since made comment on the Waitangi Tribunal’s decision:
“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.”
4. The article goes on to say that “Jones says he’s looking forward to the review of the Tribunal which is part of the coalition agreement.”. The article also reports Minister Jones as saying:
“I want to be absolutely clear and honest. I don’t understand why the Waitangi Tribunal believes it has the power and authority to gainsay a newly-elected Government with an electoral mandate to change things,”
“What gives the Waitangi Tribunal the belief that their power is greater than the voting democratic will of Kiwis?”
5. These comments are inappropriate and unconstitutional. The Cabinet Manual provides that Ministers must “exercise judgement before commenting on matters before the courts or judicial decisions” (clause 4.12) and that “Ministers should not express any views that are likely to be publicised if they could be regarded as reflecting adversely on the impartiality, personal views, or ability of any judge” (clause 4.13). The Cabinet Manual at clause 4.16 also provides that Ministers may comment on the effectiveness of the law “but not where the performance of the courts is brought into question”.
6. Minister Jones’ comments directly bring into question the performance of the Waitangi Tribunal, an independent Commission of Inquiry established by legislation that serves a function akin to a Court and over which a Judge presides. The comments, which are paired with a threat of executive review of the function and purpose of the Tribunal could also have a chilling effect and reflect adversely on Waitangi Tribunal decisions going forward. Te Hunga Roia Māori o Aotearoa considers that Minister Jones’s comments breach of the separation of powers and are likely to breach the Cabinet Manuel.
7. This is not the first time Minister Jones has made public criticism of the Tribunal. The difference here as compared to election campaigning is that there is a live claim before the Tribunal and the Tribunal has a statutory obligation to inquire into it. When making electioneering comments, Minister Jones was not then a part of the Executive. Minister Jones’ comments have the effect of undermining both the Tribunal and its processes regarding a current case. That is not the role of the Executive. The remedy available for the affected Minister is through judicial review, which has been sought. It is for the High Court, in accordance with the rule of law, to determine whether the Waitangi Tribunal has overreached by issuing a summons. Ministerial comment relating to a judicial decision that is now currently before the High Court is an unconstitutional use of power and platform that undermines the integrity of our system of law.
8. Te Hunga Roia Māori o Aotearoa are seeking:
a. a review by the Prime Minister and the Cabinet Office in respect of whether there has been a Cabinet Manual breach;
b. that the Attorney-General, who has particular responsibility for maintaining the rule of law, to exercise her constitutional functions to uphold the integrity of the judicial branch of government within Cabinet; and
c. an attendance with the Prime Minister and Attorney-General alongside the Cabinet office to discuss this matter further.
Nā māua,
Natalie Coates | Tai Ahu
Tumuaki o Te Hunga Rōia Māori o Aotearoa
