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  • Ethan Rogacion

Government Forging Ahead With Plans To Make Oranga Tamariki Worse, Somehow

Ministers have been in hot water recently—and it’s not just from the scalding-hot, fast-tracked coal-powered baths they’ve been having. Instead, they have been under fire from the judiciary, and Ministers are firing back.

It all has to do with the Coalition’s proposed Bill to repeal section 7AA of the Oranga Tamariki Act 1989. That section requires the Chief Executive of the agency to—among other relatively cool shit—commit to the principles of Te Tiriti o Waitangi, ensure that disparities between Māori and non-Māori children are reduced, and develop partnerships with iwi and Māori organisations. 

Unsurprisingly, the Government is not a fan: ACT had campaigned on its repeal, and this was realised in their coalition agreement with National.

This has attracted a great deal of controversy from people that have a more cohesive and more normal view on the world—including the Waitangi Tribunal. The Tribunal launched an urgent inquiry into the planned repeal late March, with its interim report releasing early last week. 

As part of the Tribunal’s powers, it can require a Minister to answer questions and give evidence before them in order to assist the inquiry. Here’s the catch: Karen Chhour, Minister for Children, refused to appear before the Tribunal, instead giving them a Cabinet Paper and other documentation. Unsatisfied with this (it does seem pretty useful for the Minister in charge to answer questions before an inquiry into the thing she is doing), the Tribunal issued a summons, ordering that the Minister appear.

Presumably unhappy with the idea of being held accountable, the Minister took the Tribunal to the High Court for judicial review, arguing that since she had already given the relevant evidence, the Tribunal had no power to summons her. A number of Ministers, including David Seymour and Shane Jones, had already swung out against the Tribunal, saying that it had overreached.

Counsel for the Crown argued that appearances by ministers are governed by the constitutional convention of comity between the executive and the judiciary, and “coercing” the Minister to appear goes against this. They also argued that—despite Chhour being the Children’s Minister—the decision to forge ahead with the repeal was made by the whole Cabinet. 

The Court ended up ruling in favour of the Crown, with Justice Isac writing that, because of comity, Ministers “can only be summoned if the evidence is ‘clearly necessary’ which is a more stringent test than mere relevance.” However, he added that the Minister “might be expected to demonstrate the same respect and restraints she now seeks from the Tribunal.” This issue is now before the Court of Appeal.

“[I]n large part the difficulty the Minister now finds herself in is in my view a consequence of her own decision.”

Nonetheless, the Tribunal pushed through and released its report, listing a number of issues with the policy. Namely, it said that, a “key problem we see with the government’s decision to repeal section 7AA is that it has come about without proper regard to its obligations to Māori under the Treaty of Waitangi.” It went on to say that, based on the evidence, it appears to be the Government’s belief that coalition agreements take precedence over the Crown’s obligations under Te Tiriti.

The Tribunal also expressed concern about the risk that repealing 7AA would have on vulnerable tamariki Māori, especially given that—according to submitters—it has been “pivotal” in establishing more partnerships between Oranga Tamariki and Māori organisations. 

“Constructive engagement with such communities through connected iwi and Māori providers is a common-sense approach and one that ought not to be undermined by an arbitrary appeal of the provision under which a number of existing arrangements are in place.”

The Tribunal’s full findings will be released early this month.


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