Te Hunga Rōia Māori o Aotearoa the Māori Law Society has complained to Prime Minister Chris Luxon about cabinet minister Shane Jones’ savage criticism of the Waitangi Tribunal this week, saying his comments were “inappropriate and unconstitutional”.
The society wants the prime minister and the Cabinet Office to review whether Jones’ comments breach the Cabinet Manual and for Attorney-General Judith Collins to “exercise her constitutional function to uphold the integrity of the judicial branch of government within the cabinet”. It also wants a meeting with both to discuss the issue.
Jones’ comments came after a Waitangi Tribunal judge summonsed Children’s Minister Karen Chhour to explain her reasoning in trying to remove a Waitangi Tribunal related section from the Oranga Tamariki Act. Judge Michael Doogan said the minister had declined to appear in the urgent tribunal hearing being held over the issue. In a court memo he pleaded with the minister to appear volunarily but said he knew the Crown’s lawyers would seek a judical review of his summons in the High Court.
The Crown has since filed papers seeking the judical review.
‘Star chamber pulp fiction gig’
But Jones, in full rhetorical flow this week, said: " The Waitangi Tribunal has no business running its operations as some sort of star chamber delivery 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.”
(Star chambers refer to legal or administrative bodies with strict, arbitrary rulings, no “due process” rights to those accused, and secretive proceedings.)
Jones also said he was looking forward to the review of the tribunal promised in NZ First’s coalition agreement with National.
" I don’t understand why the Waitangi Tribunal believes it has the power and authority to gainsay a newly-elected government with a electoral mandate to change things.
“What gives the Waitangi Tribunal the belief that their power is greater than voting democratic power of Kiwis?”
The Māori Law Society argued those comments were “inappropriate and unconstitutional”.
Ministers ‘must exercise judgement’
“The Cabinet Manual provides that ministers must “exercise judgement before commenting on matters before the courts or judicial decisions” 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”.
It said the Cabinet Manual provided that ministers might comment on the effectiveness of law but not not where the performance of the courts was brought into question.
The society’s letter tpo the prime minister and Atthorney-General Collins, said the comments directly bring into question the performance of the Waitangi Tribunal, an independent commission of inquiry established byh legislation that serves a fuynction 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 and reflect adversely on Waitangi Tribunal decisions going forward.”
The society said it was not the first time Jones had criticised the tribunal publicly but the difference was that compared to election campaigning, there was a live claim before the tribunal and and the tribunal had a statutory obligation to inquire into it.
Up to the High Court
“When making electioneering comments, Jones was not then a part of the executive.”
This week’s comments effectively undermined both the tribunal and its processes regarding a current case: “That is not the role of the Executive.”
The remedy available to a minister was to seek a judicial review, which had happened
“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 now before the High Court was an ‘unconstitutional use of power and platform that undermines the integrity of our system of law”.