K3 Insights

Yes, the Waitangi Tribunal has the power to summon Ministers! Being a commission of inquiry rather than a court, the Court of Appeal held that comity did not apply in the circumstances to the Waitangi Tribunal.

No doubt, this issue will eventually reach the Supreme Court of New Zealand, so time will tell whether they will align with the High Court or the Court of Appeal. It is suspected that the Supreme Court would endorse the views of the Court of Appeal. Either way, the recent decision by President Cooper provides some insight into New Zealand’s constitutional arrangements.

Supreme law

New Zealand’s constitutional arrangements are based on the United Kingdom's Westminster system. In New Zealand, Parliament is ultimately supreme, and there is no supreme law. This means that courts can only strike down legislation that is not made following the correct process. For example, New Zealand courts cannot strike down legislation that is inconsistent with the New Zealand Bill of Rights Act. Instead, New Zealand courts issue a declaration of inconsistency with the Bill of Rights Act. While this embarrasses the government, it has little legal effect. It is up to Parliament whether to act on a declaration of inconsistency.

In comparison, in countries like Israel, their Supreme Court has substantially more power. There, Prime Minister Netanyahu’s government created a law which removed a tool the Supreme Court had to void decisions it ruled to be unreasonable—this law was struck down and nullified. Similarly, the United States Constitution is key, and laws which are inconsistent with the constitution are struck down.

This makes the political climate in New Zealand substantially simpler and milder compared to many overseas countries. Ultimate power rests with Parliament, elected every three years. New Zealand only has one house of parliament, so it is not constrained by something equivalent to an upper house or senate. Political parties focus on ensuring there is public support for measures they introduce when they are in government and typically flag contentious policies to voters before elections to minimise criticism. This means that changes to laws in New Zealand are typically predictable and tend to reflect promises made by successfully elected governments prior to their election.

Unlike other countries, New Zealand governments nearly always have full power to do what they promised before they were elected because there is no supreme law that could be used to strike down legislation. However, this does mean that populist governments have more power in New Zealand to pass laws which the majority approves of, which are unfair to minorities or breach the Bill of Rights. Ultimately, we rely on the New Zealand public voting in trustworthy politicians.

Our Mixed Member Proportional (MMP) voting system limits politicians’ power because each party essentially has a number of seats in Parliament proportional to the number of votes they get. It is so rare for a party to get a majority that this has only happened once between 1996 and today. Because governments are normally established with two or more parties, this requires extensive negotiations and in practice limits how much one political party’s ideas can be translated into law.

Separation of Powers Overview

Separation of powers is an important constitutional concept in New Zealand. It means that the courts, Parliament, and the executive (the government such as ministers and the public service) do not interfere unduly with each other and respect each other’s roles, a concept called comity. For example, we expect that government ministers do not try to influence decisions before the courts, the courts respect that Parliament is supreme, and Parliament should not try to undo court decisions it does not like using legislation.

The Treaty of Waitangi

New Zealand was essentially created as the country it is today by the Treaty of Waitangi, an agreement between the Crown (typically referring to the New Zealand government) and Māori signed in 1840. Two documents were signed: Te Tiriti (written in Māori, signed by substantially more Māori rangatira) and the Treaty of Waitangi (English, used more widely historically) which are inconsistent with each other in key provisions.

The Treaty of Waitangi is (rightly or wrongly) not considered to constrain what laws Parliament can create and the New Zealand government has breached this treaty many times since it was signed.

The Waitangi Tribunal was set up to make recommendations relating to how the Treaty of Waitangi applies and claims that the Crown has breached its promises made to Māori under the Treaty of Waitangi. Recommendations made by the Waitangi Tribunal do not bind the New Zealand government but enable Parliament to create laws providing redress for historic wrongs (if it chooses to do so). The Waitangi Tribunal also investigates current and future breaches of the Treaty of Waitangi.

Waitangi Tribunal – Recent Controversy

There has been some controversy recently regarding the concept of comity relating to the Waitangi Tribunal, most recently heard in the Court of Appeal. The Waitangi Tribunal was reviewing the government’s proposal to repeal parts of legislation which created duties for Oranga Tamariki (the government ministry for children that deals with situations like removing children from sufficiently unsuitable parents) in relation to the Treaty of Waitangi to account in various ways for how Oranga Tamariki policies impact Māori. The Waitangi Tribunal issued a summons to the Minister for Children to give evidence to understand why the government was making its proposal given that the probability of poor outcomes for Māori children would likely increase. The Minister refused to give evidence, so a court case was launched to determine if the Waitangi Tribunal could compel the Minister to give evidence before it.

The High Court ruled that the Waitangi Tribunal could not summon the Minister for Children because the Crown had submitted a substantial amount of other evidence, and the Waitangi Tribunal could continue without her evidence. The High Court held that a high level of necessity for a minister’s evidence was needed before the Waitangi Tribunal could summon that minister due to the concept of comity, mutual respect.

In contrast, the Court of Appeal held that the concept of comity did not apply, so the Waitangi Tribunal could have summoned the Minister for Children to give evidence. This was because the Waitangi Tribunal is not a court – it is a commission of inquiry and typically only provides recommendations. The summons was relevant to the legitimate inquiries of the Waitangi Tribunal, and any decisions the Waitangi Tribunal made would not harm politicians’ freedom of speech and ability to make laws in Parliament. This meant that comity did not apply in the circumstances, so the Waitangi Tribunal did not need to be restrained from summoning ministers.

In spite of this, the Minister for Children has not been summoned before the Waitangi Tribunal. This is because the government introduced a bill before Parliament seeking to repeal parts of the relevant legislation. This means that the Waitangi Tribunal no longer has jurisdiction to investigate or issue recommendations on the proposed changes because they are currently before Parliament. The Waitangi Tribunal will need to wait until after the bill has become law before continuing its work.

While this system does respect parliamentary supremacy above everything else, it sits uncomfortably because of the limited role of the Waitangi Tribunal to hold Parliament to account for breaches of the Treaty of Waitangi. This helps give some insight into how the political process in New Zealand works to pass laws at present—if in doubt, Parliament has power to pass whatever laws it likes. This means that most people concerned about laws focus on influencing public opinion, which the government might choose to listen to in order to improve its chances at the next election.