The High Court has ruled Children’s Minister Karen Chhour cannot be compelled to appear before the Waitangi Tribunal.

In a just-released decision, Justice Andru Isac granted the Crown’s application for judicial review, setting aside the summons issued by the tribunal.

But he added the mana of the tribunal and the importance of its work was not diminished by his decision.

The judicial review challenged an unprecedented request from the tribunal this month for Chhour to appear before an urgent inquiry about the Government’s decision to repeal section 7AA of the Oranga Tamariki Act. It summonsed the minister to appear by this Friday.

That section requires the agency to have regard to its Treaty obligations by ensuring it takes into account the whakapapa of Māori children and reduces disparities for tamariki Māori.

In a brief statement, the minister said she welcomed the decision not for her own sake, but for the constitutional clarity it provided for New Zealand.

She said because parties have the right of appeal she is limited in what comments she can make.

Solicitor-General Una Jagose KC says the summons was “unorthodox” and “unprecedented”. Photo / Andrew McRae, RNZ

Solicitor-General Una Jagose KC told the High Court on Monday the Crown was challenging the coercive aspect of the summons, not the attendance of the minister.

Crown ministers have given evidence to the tribunal in the past, but never based on a summons. Then Mmter for Covid-19 response Chris Hipkins provided two affidavits to the tribunal’s 2021 Covid-19 Response Priority inquiry.

Describing the summons as “unorthodox” and “unprecedented”, Jagose said the tribunal didn’t have the lawful authority to summon the minister in this case because it breached comity – the principle of mutual respect and restraint.

But lawyer Matthew Smith, who represents Ngāti Pikiao, one of the three iwi that lodged the urgent claim with the tribunal, told Monday’s hearing they needed to hear from the minister.

The Cabinet paper was inconsistent with the earlier advice the minister received from officials, he said.

“This is the minister’s paper and it’s the minister’s own words,” he said.

Efforts to get the minister to co-operate voluntarily or to provide an affidavit had failed, hence the summons.

“Until 11 days ago we had a nice, workable, state of constitutional balance and mutual respect and restraint. That state of equilibrium has been shattered by the conduct of this minister necessitating the tribunal to reach to the tool of a summons,” he told Monday’s hearing.

Catherine Hutton is an Open Justice reporter, based in Wellington. She has worked as a journalist for 20 years, including at the Waikato Times and RNZ. Most recently she was working as a media adviser at the Ministry of Justice.

This article was originally posted on the NZ Herald here.