Justice ministry battles leaks and ministers over Treaty bill

Analysis: Officials at the Ministry of Justice have found themselves defending against attacks on two fronts over their work on the Treaty Principles Bill: leaks by staff opposed to the bill and criticism from the minister in charge of it.
The first blow was struck in January, when a draft Cabinet paper on the controversial legislation was leaked to Te Pāti Māori co-leader Rawiri Waititi and to journalists at TVNZ.
According to a briefing obtained by Newsroom under the Official Information Act, the ministry still hasn’t managed to find the source of the leak. Chief executive Andrew Kibblewhite wrote personally to Justice Minister Paul Goldsmith in April to update him on the inconclusive findings of the leak hunt and the department’s new safeguards.
Efforts at the justice ministry, Crown Law, Te Puni Kōkiri and Te Arawhiti (the Office for Crown-Māori Relations) to find the leaker had failed. In response to concerns about the possibility of other agencies leaking material about the bill, staff from other agencies are now required to physically visit the Ministry of Justice offices to look at hard copies of Cabinet papers on the proposed law.
Electronic tools have also been deployed, requiring staff to follow certain classification procedures and embedding non-editable watermarks unique to each agency to sensitive documents that will be distributed for external consultation.
“Some recommendations [from the ministry’s chief security officer] require further analysis to assess whether they can be delivered within existing system capability,” Kibblewhite wrote.
At the same time as the ministry fends off further leak attempts, however, it has also quietly gone to war with David Seymour, Act Party leader and the minister responsible for the Treaty Principles Bill.
Speaking to Newsroom in August, Seymour said officials at the ministry were professional but were also struggling with the process of putting the bill together.
“It’s interesting with the Ministry of Justice, I think they’re great people, they’re very professional. They’ve also got to remember it’s a weird exercise, because this is the Parliament saying to the courts and the executive – being the other two branches of government – you have gone too far interpreting what we said in 1975,” he said.
“We said there are principles, but we as Parliament don’t agree with where you’ve taken it. But of course, it’s the departments of the executive government that’s advising me on this. I’m basically asking them to give me advice that they’re wrong. I think they’re having some difficulty with [that], but I think they’re incredibly professional.”
More details about that disagreement burst into the public eye last week, with the release of official advice and the first Cabinet paper on the Treaty Principles Bill by Seymour.
The advice came in the form of a Regulatory Impact Assessment, a standard procedure where ministries vet regulatory proposals. While it’s not uncommon, particularly under this Government, for officials to push back on ministerial dictates through the regulatory impact process, the comments in this document were particularly scathing.
Officials said the status quo, where the courts and the Waitangi Tribunal define the principles of the Treaty, was more beneficial. While it might be possible for Parliament to develop principles that align with the Treaty, the wording in Act’s policy proposal “is inconsistent with the Treaty/te Tiriti”, officials wrote.
Particular issue was taken with Seymour’s interpretation of Article 2, which he says promised particular rights to “every New Zealander”. Officials argued for the conventional interpretation that the article instead promised rights to Māori.
Seymour’s take, they wrote, “reduces indigenous rights to a set of ordinary rights that could be exercised by any group of citizens. An interpretation of Article 2 that does not recognise the collective rights held by iwi and hapū, or the distinct status of Māori as the indigenous people of Aotearoa New Zealand, calls into question the very purpose of the Treaty and its status in our constitutional arrangements.”
A panel which reviewed the regulatory statement, consisting of officials from justice and from Seymour’s own Ministry of Regulation, said more consultation was needed than ministers had given time for.
“The panel considers that full consultation on a broader range of options is required for the analysis to be considered complete. Although some proxies have been provided for consultation, this is not sufficient,” the review panel wrote.
“Given the constitutional significance of this proposal and the impacts on the Crown-Māori relationship, the panel would expect the analysis to be based on full consultation with iwi and hapū (as the Crown’s Treaty partner), constitutional experts and the broader public to understand their views and shape additional policy options.”
In his Cabinet paper, Seymour pushed back on the ministry’s advice, calling one comment “disappointing” and arguing there is no obligation on the Government to consult Māori on the Treaty differently to other New Zealanders.
He also referred to comments from Te Arawhiti, which backed up justice officials and (redacted) advice from the Parliamentary Counsel Office.
“Te Arawhiti has ventured into areas of political and constitutional importance without the authority, the mandate, or the expertise to do so,” Seymour wrote.
“Te Arawhiti has no democratic mandate and does not represent or speak for Māori – it is an agent of the Crown. The ‘partnership’ interpretation of the Treaty which Te Arawhiti, and the public service, argues for to criticise the proposed Bill is precisely what is being challenged and what the Bill seeks to clarify.”
Disagreements between ministers and officials are not unheard of, but rarely are they as explicit or as hostile as the battle between Seymour and the Ministry of Justice.
Nor is this over. With the first Cabinet paper done and dusted, the focus now moves to drafting the legislation itself – a process the Ministry of Justice will be intimately involved in. More policy work will also continue behind the scene on matters such as the logistics of the referendum.
Once the bill is introduced, officials will be tasked with feeding into Seymour’s speeches in the House for first reading. They’ll advise the select committee which considers it and submit their own officials’ report on the legislation as well.