Max Pakinga-Barber is a Senior Solicitor with Franks Ogilvie. He joined the firm in early 2023 as a Law Clerk and was admitted as a barrister and solicitor in March 2023. Max joined the firm from BNZ, where he worked in client relations and personal banking while completing his Bachelor of Laws at Victoria University.
Since joining Franks Ogilvie, Max has been involved in all aspects the firm’s work, including litigation matters ranging from a Commerce Act appeal through to appearing at a coronial inquest, a major commercial negotiation in the biosecurity sector, and law reform projects relating to water infrastructure, local government, and primary sector governance.
In late 2023, the coalition government between the National, ACT and New Zealand First took office. The National/ACT coalition agreement stated that the Government would repeals 7AA of the Oranga Tamariki Act 1989. The repeal policy originated with ACT and ACT MP Karen Chhour became the Minister for Children.
Section 7AA imposes a duty on Oranga Tamariki to show practical commitment to the principles of the Treaty of Waitangi by directing its internal processes towards reducing disparate outcomes for Māori children in state care, and by entering strategic partnerships with iwi or Māori organisations in some cases.
Shortly after the Government took office, several Māori claimants submitted claims in the Waitangi Tribunal arguing that the repeal policy breached the principles of the Treaty of Waitangi.
During the resulting inquiry, the Tribunal directed several questions about the policy to the Minister.
In March 2024, Cabinet agreed to enact legislation to repeal s 7AA. The Crown then informed the Tribunal that the Minister’s evidence was no longer necessary because the policy was now a Cabinet decision. The relevant Cabinet Paper was provided as evidence of the basis of the decision, and Oranga Tamariki officials would give supplementary evidence in person.
The Tribunal disagreed that the evidence was no longer necessary. It directed further questions to the Minister, seeking the identities of “prominent individuals” and “anecdotal evidence” identified in the Cabinet Paper as supporting the case for the repeal Bill.
The Crown maintained its position that the Minister would not give evidence. In response, the Tribunal issued a summons to the Minister, compelling her to provide evidence sought.
The Crown applied for judicial review of the summons decision to argue that Chhour should be exempt from a subpoena.
The case
The Crown alleged in both courts that the summons was unlawful because the evidence was not relevant to the inquiry, and because the ‘heightened requirements of comity’ in the case meant that it was inappropriate to issue the summons.
Relevance
Both the High Court and Court of Appeal rejected the relevance challenge. However, the two courts came to opposing conclusions regarding the value of the Minister’s evidence.
The High Court accepted the Minister’s evidence would not add much to that provided by the Cabinet Paper and by officials. However, the threshold for evidential relevance was low, and the Minister’s evidence would clearly meet it.
The Court of Appeal disagreed that the Minister’s evidence had nothing to add. The Crown had acknowledged in the Tribunal that the repeal policy reflected “a philosophical or political viewpoint not reducible to empirical analysis”. The ACT Party was the genesis of the viewpoint, notwithstanding Cabinet’s subsequent adoption of the policy pursuant to the National/ACT coalition agreement. In this context, the Minister’s personal evidence was highly relevant and the High Court had erred in saying otherwise.
Comity
Comity is a constitutional convention that mandates mutual respect and restraint between the different branches of government. Its purpose is to avoid clashes between the separate branches of government that could undermine the constitutional order. Like all constitutional conventions, it is not directly legally enforceable.
Historically, the convention has arisen most often between Parliament and the judiciary. However, the convention is not necessarily confined to that relationship.
The High Court held that the requirements of comity in this case were heightened. This was because the Tribunal was exercising powers similar to that of a court, and requiring the Minister to give evidence personally on a Cabinet decision could infringe collective ministerial responsibility and Cabinet confidentiality (themselves constitutional conventions).
The heightened requirements of comity meant the Minister’s evidence had to be ‘clearly necessary’ to the purpose of the inquiry, rather than the lower threshold of relevance. As the Tribunal already had the Cabinet Paper and evidence from officials as evidence, the Minister’s evidence was not clearly necessary. Accordingly, the summons decision was unlawful.
The Court of Appeal overturned the High Court decision on this point.
In their judgment, the Court of Appeal emphasised that the purpose of the convention was to avoid conflicts over the powers and privileges of the branches of government, citing the law of Parliamentary privilege as a notable example. There was no potential for similar conflict in this case.
The Tribunal was not acting judicially. Its summons power was being exercised pursuant to an investigation and not an adjudication of rights and duties between parties. The Tribunal could not make legally binding orders, with its function being instead to deliver non-binding recommendations to the Crown about compliance with Treaty principles. Additionally, it ceased to have investigatory jurisdiction as soon a policy was embodied in a Bill that had been introduced to Parliament.
The court also disagreed that summonsing the Minister would breach collective responsibility and Cabinet confidentiality. The repeal policy was the Minister’s in substance, and the Minister could speak to it without compromising any Cabinet proceedings.
Because of this, there was no potential in this case for the type of institutional conflict that the comity convention existed to protect. The High Court had been wrong to apply the ‘clearly necessary’ requirement, and the summons was lawful.
Result
The appeal was allowed, but the court made no order. This would have been redundant given when the case was heard, the Tribunal had already made its final report, and the repeal Bill was before the House of Representatives.
The decision nonetheless provides a rare example of judicial comment on the ambit of important constitutional conventions and the influence they can have on legal rights and duties.
At the time of writing, the Oranga Tamariki (Repeal of Section 7AA) Amendment Bill is before the Social Services and Community Select Committee, which is due to report back on 21 November 2024.
For further information on this case or similar issues please contact Director, Brigitte Morten
The Covid-19 Recovery (Fast-track Consenting) Act 2020 (“FTCA”) was enacted to facilitate economic and social recovery from the impacts of Covid-19. It allowed referred and listed projects to be consented by an expert panel rather than requiring them to go through ordinary resource consenting procedures.
Hiringa Energy Ltd and Balance Agri-Nutrients Ltd (“Respondents”) sought to establish a renewable wind energy facility with infrastructure for the production of hydrogen as an alternative transport fuel. They sought consent for the project under the FTCA and the Minister referred the project to an expert panel for consent (“Panel”).
The project required a number of wind turbines to be installed on site. Evidence showed the turbines obstructed the view of Taranaki Maunga (mountain) from the rohe (governance area) of various hapū in the area. The Panel accepted that obstruction of the view of the maunga could have adverse cultural impacts on the hapū.
The Respondents engaged with the hapū prior to the consent hearing. No consistent view was expressed. Some hapū tentatively supported the project while others were opposed. The existence of the turbines was the major sticking point.
As a result, the Respondents agreed to take various actions (including limiting the number of turbines to four and decommissioning them after a maximum of 35 years) to mitigate the damage to the taonga. The Panel granted the consents and included these agreements as consent conditions.
Several hapū and the designated post-Treaty settlement governance entity in the area (“Hapū Appellants”) and Greenpeace appealed the consent decision to the High Court. The High Court dismissed the appeal, and the Hapū Appellants and Greenpeace appealed to the Court of Appeal.
This case brief describes Hapū Appellants’ appeal.
Under the FTCA, panel decisions were appealable on questions of law only. Accordingly, the court noted it was not concerned with whether the Panel decision was right or wrong - their enquiry was confined to whether the Panel had correctly understood and applied the relevant law.
The Hapū Appellants argued the Panel had made an error of law as their decision was inconsistent with the principles of the Treaty of Waitangi.
Treaty clauses
‘Treaty clauses’ are a term used colloquially to describe statutory provisions that require (usually) public decision-makers to engage in some way with the principles of the Treaty of Waitangi. These clauses are the primary means by which the Treaty has binding effect in New Zealand law; the Treaty itself not being directly enforceable in the courts. The courts have created the Treaty principles on a case by case basis, beginning with the landmark Lands decision in 1987.
The FTCA Treaty clause required decision-makers under the FTCA to “act consistently” with the Treaty principles. This was a bottom line requirement – a decision that was inconsistent with the Treaty principles would be unlawful regardless of the extent to which it promoted the purposes of the Act.
What Treaty principles applied
The Hapū Appellants argued that the “active protection” Treaty principle applied. As the parties agreed that the turbines could cause spiritual harm, the Hapū Appellants argued that active protection required the Panel to decline the consent or require an alternative site for the turbines where they did not obstruct the view.
The court rejected this argument. Relevant case law and Waitangi Tribunal decisions had established that the overarching Treaty principle was ’partnership’. The Crown and Māori were obliged to act in good faith and reasonably in their dealings, a requirement which implied an element of give and take.
The active protection principle was an element of partnership – the courts and Waitangi Tribunal had noted that in some cases, the Crown must take an active role in protecting Māori interests in order to satisfy the principle of partnership. An example was the decision of the Broadcasting Assets case in the Privy Council, which found that the partnership principle required the Crown to take an active role in preserving Te Reo.
As an element of partnership, the active protection principle was necessarily fluid. The court emphasised that the principle had never given Māori veto rights over Crown decisions that would harm their interests.
Was the Panel’s decision inconsistent with the Treaty principles?
The court held that the Panel’s decision was consistent with the partnership and active protection principles.
The Crown’s interest strongly favoured allowing the project to proceed, as there was no dispute from the Hapū Appellants that it was inconsistent with the purpose of the Act. This interest had to be balanced against the interest of the Hapū Appellants in preserving their relationship with the maunga.
The court held that the Hapū Appellants’ interest had been sufficiently protected. They noted the hapū most affected had been supportive of the project, there had been ample engagement with all effected hapū, and the engagement had resulted in a number of consent conditions that protected the taonga relationship with the maunga.
As a result, the consent decision was consistent with the Treaty principles and there was no error of law.
Result
The appeal was dismissed on all grounds. The decision has not been appealed to the Supreme Court, meaning the Respondents’ project is free to proceed on the conditions agreed by the Panel.
The court declined to award costs against the Hapū Appellants on the ground that they had brought the appeal in the public interest.
This case is an important reminder that the Treaty of Waitangi is not directly enforceable in New Zealand law. Even where an Act gives strong status to the Treaty principles, the courts will balance the interests of the Māori parties against the public interest underlying development. The Treaty does not give Māori veto rights over public projects that affect their physical, economic, or spiritual interests.
For further information on this case or similar issues, please contact Director, Brigitte Morten
The Court of Appeal declined to make a declaration excluding the Jehovah’s Witnesses faith from the Royal Commission into abuse in state and faith-based care.
Royal Commissions are investigatory bodies established by the Governor-General (on the advice of Cabinet) under the residual royal prerogative power. This power is supplemented by the Inquiries Act 2013, which enables royal commissions to (among other things) compel parties to produce documents and give testimony under oath.
In 2018, the government established a Royal Commission whose terms of reference (“ToR”) required it to investigate historical abuse in state care and (following an amendment late in the year) abuse “in the care of faith-based institutions”.
The Christian Congregation of Jehovah’s Witnesses (Australasia) Ltd (“CCJWA”)are a corporate entity representing the Jehovah’s Witnesses faith (“Faith”) in Australia and New Zealand.
The Commission required CCJWA to produce documents as part of its investigation. CCJWA provided the documents but disputed that the Jehovah’s Witnesses were within the scope of the inquiry. They asserted that because the institution had no formal arrangements for care of children, it was impossible for “care” to have been provided in the relevant sense.
The Commission disagreed in a formal minute, they identified certain practices of the Faith that could support a finding that the Faith had assumed responsibility for the care of children.
In March 2023, CCJWA filed judicial review proceedings against the Commission, arguing that the Commission had exceeded the scope of the ToR in investigating the Faith.
In response to the proceedings, the Governor-General (on the advice of Cabinet) amended the ToR (“Amendment Order”). The effect of the amendment was to validate the Commission’s interpretation of the ToR.
Shortly afterward, CCJWA then amended claim, arguing that the Amendment Order had been made unlawfully.
CCJWA was unsuccessful in the High Court and appealed to the Court of Appeal. They sought a declaration that the Faith did not provide “care” in the relevant sense and were therefore excluded from the inquiry.
The Court of Appeal was tasked with determining two issues. First, whether the Commission had erred by investigating the Faith prior to the Amendment Order, and second whether the Amendment Order was unlawful.
The first issue turned on the meaning of “in the care of a faith-based institution” as it existed in the ToR prior to the Amendment Order.
CCJWA argued that the High Court was wrong to uphold the Commission’s interpretation of its ToR, asserting that the court had wrongly granted deference to the Commission to determine the scope of its own jurisdiction.
The Court of Appeal accepted that the High Court should not have deferred to the Commission’s assessment of its own powers. The court emphasised that like all other public bodies, the Royal Commission’s powers were delineated by the ToR, which was secondary legislation. The meaning of the ToR, like any other task of statutory interpretation, was always a question of law for the courts to determine. Allowing public bodies to determine their own jurisdiction was inconsistent with the rule of law.
However, notwithstanding this criticism, the court held that the High Court had reached the correct outcome. The meaning of “care” in the ToR, the court held, did not allow the Commission (or the courts) to draw a bright line between faith-based institutions providing care and those that did not. Whether care was provided in a particular instance was to be determined case by case.
The Commission had material (as set out in one of its minutes) that could have supported the conclusion that the Faith had provided care. The Commission was entitled to pursue this evidence, even if it had turned out after the fact that the matter enquired on was out of scope. Accordingly, the court found that the Commission had not misinterpreted its ToR by investigating the Faith.
CCJWA also argued that the Amendment Order was unlawful as it breached section 27 of the New Zealand Bill of Rights Act and was made for an improper purpose.
The court held that there was no breach of section 27, which protects the rights to bring judicial review proceedings and other proceedings against the Crown. The Amendment Order had not stopped CCJWA from bringing the proceedings – it had only impacted the relief available by correcting a potential legal error. To recognise a breach in this case would have been to recognise that judicial review applicants were entitled to have the law frozen in place from the time they filed their claim until it was heard.
The improper purpose argument also failed. The court held that the purpose of the Amendment Order was to mitigate uncertainty and delays for the Commission in producing its report, and not (as CCJWA argued) to favour the Crown in ongoing litigation. This was held to be a proper use of the power to amend the ToR.
CCJWA’s appeal was dismissed. Subject to a potential further appeal for the Supreme Court, the Royal Commission will be free to release its report on its inquiry into abuse in state care.
The judgment also provides a powerful re-emphasis of the fundamental principle that all public bodies are required to act within the scope of their powers as delegated from Parliament and the royal prerogative.
Following the appeal judgment, CCJWA applied to the Supreme Court for leave to appeal. They also sought interim orders prohibiting publication of parts of the Commission’s report dealing with the Faith until the appeal was heard. The Court of Appeal declined the application for interim relief because CCJWA’s case on appeal was weak, the report was of significant public interest, the orders sought infringed the rights of third parties, and would interfere with Parliamentary privilege (as the report was due to be tabled in Parliament on the same day as the judgment). In September 2024 the Supreme Court issues a judgment dismissing the application for leave to appeal.
The Royal Commission published its report on abuse in state and faith-based care on 24 July 2024. The Commission found that the Faith had taken inadequate steps to prevent and respond to abuse in care in the inquiry period, and was critical of its insistence that no children or young people were ever in its care.
For further information on this case or similar issues, please contact Brigitte Morten, Director.
