For context, Section 7AA of the Oranga Tamariki Act 1989 is the primary legal mechanism that recognises the Crown’s Treaty of Waitangi duties in the country’s child protection system.
It came into force in 2019 after successive independent reports found Oranga Tamariki at fault in its ability to care for children, particularly Māori. Although far from perfect, the section arguably attempted to address deep-rooted prejudice towards Maori in what is otherwise a system that’s geared towards Pakeha.
The section imposed obligations on Oranga Tamariki, including reducing disparities between Māori and non-Māori children, forming partnerships with iwi, reporting requirements to limit bias in decision-making, and ensuring that tamariki Māori remain connected to their families and culture while in state care.
In February, the Ombudsman reported 109 “formal deficiencies” in Oranga Tamariki’s work between 2019 and 2023. Some could argue section 7AA gives the state too much power, but removing the section will leave Māori with no legal recourse to challenge said “deficiencies”.
In a statement released last week, Chhour said the section allows children and youth “as an identity first, and a person second”, creating a divisive system that negatively impacts caregivers.
Waitangi Tribunal urgent inquiry
Aside from the ‘I don’t see colour, just people’ rhetoric, efforts to remove the section prompted the Waitangi Tribunal to conduct an urgent inquiry, which was released in April.
Citing clear breaches of the Treaty, the Tribunal expressed concern the “rushed” and “arbitrary” repeal would “cause actual harm.” With Judge Michael Doogan leading the charge, the Tribunal said there was no evidential basis for the reforms other than anecdotal material.
Ouch.
“Crown counsel and Crown witnesses have confirmed that the government’s decision to repeal section 7AA is not based on an empirical public policy case,” the report read.
Essentially, the Tribunal said the repeal failed to consider alternative options or consult Māori, and promises made during coalition agreement negotiations didn’t cut the mustard.
Irrespective of the Tribunal’s outcome, the saga stems from Chhour’s failure to appear before the Tribunal. After declining to give evidence, she successfully challenged the Tribunal’s calls to give evidence via judicial review in April.
Crown Law - headed by solicitor general Una Jagose - argued in the High Court the summons was unlawful as the courts and government should act independently. Pointing to comity - the principle of mutual respect and restraint - Crown Law said the summons wasn’t necessary or relevant as Cabinet papers and supplementary evidence could be used in the alternative.
I think this is particularly ironic given that Shane Jones and David Seymour have both criticised the Waitangi Tribunal in recent months. In April, Jones likened the Tribunal to a “wannabe American star chamber pulp fiction gig” before threatening to review and potentially reform its status, for example.
“What gives the Waitangi Tribunal the belief that their power is greater than voting democratic power of Kiwis?”, Jones said.
As an aside, this could be seen as democratic fudging at best, seeing as NZ First garnered just 6 per cent of votes. Act saw 8.6 per cent.
Nevertheless, the Māori Law Society came out swinging over Jones’ comments, saying they were inappropriate and unconstitutional. Co-president Natalie Coates claimed the comments breached Cabinet Manual conventions against influencing or criticising the judiciary.
“The comments, which are paired with a threat of executive review of the function and purpose of the tribunal, could also have a chilling effect and reflect adversely on Waitangi Tribunal decisions going forward.”
Finally, some Court of Appeal sense
This brings me to the Court of Appeal’s decision, which provided a sense of calm to what has otherwise been months of rogue behaviour and complete chaos.
In his decision, Justice Mark Cooper said it was legitimate for the Tribunal to compel Chhour to provide more information, both relevant and necessary to the inquiry.
Not only did the Tribunal operate in a different context than the judiciary and legislative branches of government, the Treaty of Waitangi Act specifically identified when its jurisdiction was limited by parliamentary proceedings, the decision read.
“When issuing the summons, the Tribunal was also appropriately sensitive to relevant issues, including collective Cabinet responsibility, the confidentiality of Cabinet discussions, and legal privilege.”
With the Tribunal’s decision already out into the ether, the Court of Appeal’s decision gave rise to “issues of mootness”, Justice Cooper said. It’s now a case of whether the Oranga Tamariki (Repeal of Section 7AA Amendment Act) can stand on its own two legs among the country’s representatives.
Then there’s the court of public opinion.
According to recent research by the University of Waikato, 38 per cent of Pākehā and 59 per cent of Māori survey respondents cited the Treaty of Waitangi as the most important event in New Zealand’s history.
Seventy per cent of respondents born between 2000 and 2006 pointed to the Treaty’s importance.
To rid New Zealand’s child care protection legislation of one of its foundational constitutional documents is a poor move on all counts, it seems.
