Proposal to repeal section 7AA – a BIG Mistake!

The Waitangi Tribunal has just released its Interim Report on the Minister for Children's proposal to introduce a Bill to Parliament to repeal section 7AA of the Oranga Tamariki Act 1989. The Minister's proposal was outlined in a Cabinet paper lodged with the Cabinet Social Outcomes Committee on 27 March.

Reading the Tribunal report, it's clear that there is no sound reason for repealing section 7AA and that no Bill to enact the repeal should be introduced to Parliament.

For those who don't have time to read the Tribunal Report and who want to know what "all the fuss" is about, we outline below "the basics" of the Minister's proposal to repeal along with the Waitangi Tribunal responses. We begin with an outline of section 7AA of the Oranga Tamariki Act.

Section 7 AA

Section 7AA was enacted into NZ law in 2017 along with a number of other reforms. The broad reform aims were to improve outcomes for children in the statutory care and protection and youth justice systems and reduce inequities between Māori and non-Māori in these systems. (See Expert Panel Final Report Investing in New Zealand’s Children and their Families Investing in Children Programme, December 2015)

Section 7AA guides the  Chief Executive (CE) of Oranga Tamariki in its duty to give effect to Te Tiriti of Waitangi, particularly in relation to the Treaty obligations concerning partnership, equity and tino rangatiratanaga. Key provisions are that:

•  Oranga Tamariki's practices, policies and procedures must have regard to mana tamaiti (tamariki) and the whakapapa of tamariki Māori and to the whanaungatanga responsibilities of their whānau, hapū, and iwi:
• The CE must seek and respond to invitations to enter strategic partnerships with iwi and Māori organisations.
• The CE must report publicly on the fulfilment of their duties under section 7AA including on the impact of the steps they have taken to improve outcomes for Māori.

What the Minister of Children is proposing and the Tribunal's response

The Minister of Children's proposal for legislation to repeal section 7AA rests on a number of suppositions/proposals outlined below.

Proposal

The problem is that tamariki are being moved from stable and loving placement for cultural reasons rather than because of their needs and interests. Section 7AA is the cause.

Tribunal Response

The Tribunal accepted that sometimes wrong decisions can be made.  However, no evidence was presented that section 7AA was to blame. The Tribunal and Oranga Tamariki indicated that wrongful removal of children from placements reflects poor social work practice at an individual level.

It's also relevant here that section 7AA is a Pou or cornerstone of the Oranga Tamariki Act 1989. Unlike Parts 2 and 4 of the Act (provisions to guide care and protection and youth justice interventions), section 7AA doesn't guide decisions about the placement of a child.

Proposal

Section 7AA means that a child's best interests are not prioritised in case decisions and are overrode by a "misplaced" concern with cultural identity.

Tribunal Response

This is not true. In fact, evidence presented to the Tribunal indicated the opposite and that s7AA has resulted in material gains for young people in care.

Oranga Tamariki reported that tamariki now have more opportunity to connect with their culture and develop a sense of belonging. This protects against adversity and supports long-term well-being and is in children's best interests.

Te Puni Kōkiri submitted to the Tribunal that children's cultural needs must feature in any "best interests" consideration for a child because addressing cultural needs is essential to a young person's wellbeing and success.

Proposal

Decisions about children should be "colour blind".

Tribunal Response

The view that all children should be treated the same regardless of ethnicity reflects out-dated and now widely criticised views of equality.

More than 40 years ago, in the landmark Pūao-te-Āta-tū report this view of equality was criticised for having contributed to inequities between Māori and non-Māori in the care and youth justice systems. It is a woefully inadequate answer or guide to addressing the complex dynamics and impacts of colonisation.

Reducing equality to same treatment also fails to recognise that Māori, including tamariki, have particular rights under the Treaty including the right to live as Māori in Aotearoa.

Proposal

That section 7AA is causing harm to children and diverting people from a child-centric approach.

Tribunal Response

There is no evidence that s7AA is causing unsafe practice and harm to children.

Rather, evidence presented at the Tribunal indicated that the repeal of s7AA itself is likely to cause harm in a number of ways:

• It will undermine the trust and confidence that has been slowly built between Oranga Tamariki and iwi/Māori
• It will impede and undermine prevention and early intervention work
• Tamariki may be more exposed to harm
• Work to reduce inequities between Māori and non-Māori in care and youth justice is likely to slow down
• There will be adverse impacts on the  safety, stability, rights, needs and long-term wellbeing of children involved with Ministry.

In conclusion

It seems incomprehensible that the Minister of Children wastes public time and money on a proposal lacking merit and integrity. It doesn't  address the problem she's concerned with. If it progresses to legislation it is likely to cause harm.

It rides roughshod over the good faith and hard work that has been done by iwi/Māori and her own Ministry to build relationships and processes that will achieve good outcomes for children and young people in care.

Let's hope that now, with the benefit of the Waitangi Tribunal's Report, the Minister will realise her mistake and look at how she can achieve more for children in care through closer working with iwi and Māori organisations.