Repeal of Oranga Tamariki Act section 7AA: New legislation, submissions open and Waitangi Tribunal report

Tue 28 May 2024

Legislation has been introduced to repeal section 7AA of the Oranga Tamariki Act. Submissions on the legislation are due by 3 July 2024. The Waitangi Tribunal released the final report on the urgent inquiry into the government’s proposal to repeal section 7AA on 10 May 2024.

black and white photo of New Zealand Parliament buildings

This is part 1 of a 3-part series that provides an overview and background related to section 7AA, and the care and protection system in Aotearoa. Part 2 looks at Oranga Tamariki Act section 7AA and Iwi partnerships. Part 3 looks at Child care and protection in Aotearoa: history of institutional racism and calls for transformation.

Legislation introduced to repeal Oranga Tamariki Act section 7AA, Submissions open

Minister for Children, Karen Chhour, introduced the legislation, Oranga Tamariki (Repeal of Section 7AA) Amendment Bill on 12 May 2024.

Submissions are open on the legislation. They are due by 3 July 2024.

In announcing the legislation, Minister Chhour said "Removing s7AA from the Act reinforces the need to put the safety of the child first." She also said:

"I have indicated to Oranga Tamariki that existing strategic partnerships with iwi and Māori organisations will continue, and the repeal would not prevent Oranga Tamariki from entering into further strategic partnership agreements with iwi or Māori organisations."

The legislation has passed the first reading and been referred to select committee. In Minister Chhour's speech for the first reading she said:

"During my time in Opposition and before coming to Parliament, I heard devastating stories about how some Oranga Tamariki staff prioritized cultural considerations and the desires of the child’s family over the individual needs of the child.

This sometimes led to unsafe care decisions and disruption for children and caregivers."

The Oranga Tamariki Regulatory Impact Statement for the repeal of section 7AA has been published. It highlights "...a lack of robust evidence to support the view that section 7AA causes harmful changes to long-term care arrangements." Specifically, the paper states:

"There is no empirical evidence to support the notion that section 7AA has driven practice decisions that have led to changing care arrangements. We have heard anecdotal concerns from a small number of caregivers that care decisions are more strongly influenced by cultural factors, than by the immediate safety of children. There is, however, no evidence to suggest that these concerns are related to the duties outlined in section 7AA. Some concerned stakeholders and advocates have expressed the view that section 7AA was responsible for previous, high-profile changes to care arrangements. Again, we do not have evidence as to whether section 7AA explicitly influenced these care decisions, but internal evaluation suggests that it did not."

It further states:

"While some practice decisions have been made that, in hindsight, have not resulted in the best outcome for the child, it is important to reiterate that there is no evidence to suggest these resulted from the duties outlined in section 7AA."

The paper recommends retaining section 7AA and strengthening practice:

"The Department [Oranga Tamariki] considers that a full or partial repeal of section 7AA will not address the policy problem. This paper recommends retaining section 7AA while continuing to strengthen practice and operational guidelines to fulfil the policy objectives and best address the Government's concerns."

Te Pāti Māori has launched a petition to stop the repeal of section 7AA.

Background on 7AA

Section 7AA of the Oranga Tamariki Act sets out specific duties for the chief executive to recognise and provide a practical commitment to the principles of te Tiriti o Waitangi (see section 7aa in the legislation). These include:

setting measurable outcomes for Māori children and young persons who come to the attention of the Ministry
having regard to mana tamaiti (tamariki) and the whakapapa of Māori children and young persons and the whanaungatanga responsibilities of their whānau, hapū, and iwi
seeking to develop strategic partnerships with iwi and Māori organisations, including iwi authorities
reporting annually on the Ministry's progress and next steps.

A key purpose of section 7AA was to reduce the disproportionate number of Māori children and young people taken into the care and protection system, and to improve outcomes for those children and young people already in care.

Section 7AA was added to the Oranga Tamariki Act through amendments in the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017. Section 7AA came into force in July 2019.

While the Waitangi Tribunal has previously found that section 7AA does not implement the full recommendations of Pūao-te-ata-tū nor meet the full obligations of Te Tiriti — this is the first time that the principles of Te Tiriti have been mentioned in New Zealand's child protection legislation. And the Iwi partnerships that have gained resources and authority through 7AA to care for their tamariki and whānau are having significant impacts. For more information see our related stories below.

Waitangi tribunal report on proposed repeal of Oranga Tamariki Act section 7AA

The Waitangi Tribunal released the final report on the urgent inquiry into the government’s proposal to repeal section 7AA of the Oranga Tamariki Act on 10 May 2024. The Tribunal had initially released an interim report on 29 April 2024.

In the final report, the Waitangi Tribunal identified breaches of the Treaty, stating:

"We have found clear breaches of the Treaty article 2 guarantee to Māori of tino rangatiratanga over kainga and of the Treaty principles of partnership and active protection. We have also found that prejudice will arise from the rushed and arbitrary repeal of section 7AA, not only due to the failure to fully analyse likely downstream effects but more importantly due to the significant risk of actual harm to vulnerable tamariki and the risk of erosion of trust amongst Māori whānau and communities." (see final report section 1.9.5)

The Tribunal also recommended "...that the repeal of section 7AA be stopped" to allow the Minister to review and report on the legislation, government policy and related arrangements, as outlined in section 448B of the Oranga Tamariki Act. Under this section of the legislation, this would be required by 1 July 2025.

In the opening letter to the final report, the Tribunal stated:

"We agree entirely with the views of senior officials that a policy change of such significance must rely on evidence and not on anecdotal stories, hearsay, and ideological positions. It should also be informed by community consultation, and in particular consultation with the iwi and Māori organisations that have established strategic agreements with the Chief Executive pursuant to section 7AA."

The Tribunal recommended that as a first step for review of the legislation, that the Crown talk with section 7AA strategic partners and Māori post-settlement entities.

Further, the Tribunal recommended that the legislative review consider the recommendations set out in Appendix 3 of the Tribunal's 2021 report, He Pāharakeke, He Rito Whakakīkinga Whāruarua related to inquiry WAI 295.

Finally, the Tribunal recommended that the requirements of section 7AA to develop strategic partnerships with iwi and Māori organisations and to focus on the reduction of disparities by setting and publicly reporting on expectations and targets, be retained.

During the inquiry, the Waitangi Tribunal summoned Minister for Children Karen Chhour to provide evidence. However, the Crown notified the Tribunal that the Minister would not appear as a witness nor produce a written statement. The Crown also asked for a review of the Tribunal's summons in the High Court, who set aside the summons. However, the case was considered by the Court of Appeal who upheld the appeal and found that it is within the Tribunal's powers to issue summons to the Minister (see Case number[2024] NZCA 160 and the related media release).

See related media below for responses from Prime Minister Christopher Luxon and Minister Karen Chhour.

Responses from tangata whenua and tauiwi advocates

VOYCE – Whakarongo Mai and the Pou Tangata Oranga Tamariki Iwi Leaders Group (ILG) and the National Iwi Chairs Forum oppose the repeal of section 7AA. Many Māori, people with lived experience of state care, advocates and researchers have criticised the proposal to repeal section 7AA since the proposal was first raised in 2023.

Long-time advocate and state care survivor, Paora Moyle (Ngāti Porou) said in an interview with Waatea news:

"...the number one recommendation that the Abuse in Care Royal Commission report says that harms our babies is the lack of reporting, the lack of truth coming to the fore. And you've got thousands and thousands of people that have come forward with their testimony, and now there's irrefutable proof that child protection in this country has been very, very lax. In fact, it's targeted our babies and taken them away from their whakapapa. That has caused intergenerational harms.

This government is responsible for addressing that. It is not. It is actually making it worse. It's taking away the protections. It's taken away the voices."

In a Spinoff article, legal academic Luke Fitzmaurice-Brown (Te Aupōuri, Pākehā) wrote:

"What the new government is proposing is highly regressive and very likely to cause harm to Māori children and families. Section 7AA is not in the law as an empty gesture, it is there because upholding Te Tiriti in relation to child protection could significantly improve outcomes for Māori whānau. Upholding Te Tiriti is also the Crown’s most central constitutional obligation, and they cannot just legislate that responsibility away."

And

"As an advocate for a decolonised child protection system, I am given hope by that unwavering willingness in communities to oppose regressive reforms. But what also gives me hope is that far from just beginning, the decolonisation of the child protection system is well under way. Across the country, Māori have been rebuilding the capacity to care for our own for decades now. Sometimes it has been led by iwi, sometimes by organisations like the Māori Women’s Welfare League, and other times it has been individual aunties and nannies who are fiercely determined to ensure that not one more Māori baby be taken by the state. Section 7AA has often helped, but the decolonisation of the child protection system started before that provision existed, and it won’t just stop if it is repealed."

Also see Luke's additional article in the Spinoff: The Waitangi Tribunal’s latest report is about far more than just child protection.

Activist and social work academic Kerri Cleaver (Kāi Tahu) wrote:

"In 2020, I set up our Kāi Tahu service which, under 7AA, delivers the caregiver functions of Oranga Tamariki for mokopuna Kāi Tahu who are in the state system. Through the design and set-up process with our community, we heard of an overwhelming desire for a “by Kāi Tahu, for Kāi Tahu, of Kāi Tahu” service.

Our current offering, called Te Kaika, was only made possible by our iwi partnership with the Crown under 7AA. It is a minimal, substandard demonstration of giving effect to Te Tiriti o Waitangi, but it’s what we’ve been given."

And

"That the government wants to repeal 7AA speaks to their position that Māori don’t have a right to design and deliver in the existing system. It suggests that the government doesn’t feel required to report on, and account for, Māori children. It rips the rug away from under us, when the rug has only just been laid."

Social work academic Emily Keddell wrote:

"Getting rid of the partnerships and measuring disparities absolves the government of recognising inequalities or pursuing a Tiriti-based solution. Without this, Oranga Tamariki is re-positioned as the ones with all the answers and all the power. That has not worked so far."

Several claimants for the Tribunal inquiry into the proposed repeal of section 7AA have also commented:

Dr Hope Tupara (Ngā Pōtiki ā Tamapahore, Ngāi Te Rangi, Ngāi Tāmanuhiri, Rongowhakaata, Te Roroa), National President of Māori Women's Welfare League said in an interview with Waatea News:

"We have a really good opportunity in our country to show the rest of the world how we can create a system – Te Tiriti offers that to us – to be able to provide for something different that shares power."

Rahera Ohia, representative from Ngāti Pukenga also a claimant for the Tribunal inquiry, said:

"The empirical evidence that's been gathered over years, you know, since Pūao-te-ata-tū, essentially indicates that Māori children need to know where they come from, who they are, who they can rely on. And without 7AA, there's no assurance that Oranga Tamariki will take that into account."

Also see further criticisms and concerns from:

Waikato-Tainui chairperson Tukoroirangi Morgan and Chief Children's Commissioner Dr Claire Achmad in the Stuff article Iwi to fight 'Crown stupidity' repeal of Oranga Tamariki legislation
Tina Ngata (Ngati Porou) in the Waatea News article Racist myths driving 7AA repeal
Aaron Smale (Ngati Porou) in his Newsroom article The Crown versus Māori Children
Tupua Urlich (Ngāti Kahungunu) in the NZ Herald article State abuse survivor urges against repealing Oranga Tamariki Treaty commitments and in the NZ Herald article Oranga Tamariki Act: Karen Chhour’s is not the only voice that needs to be heard on state care and abuse
Margaret Mutu (Ngāti Kahu, Te Rarawa, Ngāti Whātua) in an interview with Te Hiku Media - Repeal of 7AA Causes Outrage for Many
Zoe Witika-Hawke (Ngāti Hako, Ngāti Paoa, Ngāti Pākehā) in an interview with Pacific Media Network
Annette Sykes (Te Arawa, Ngāti Makino, Ngāti Pikiao) in an interview with Waatea News
Tā Mark Solomon (Ngāi Tahu, Ngāti Kurī), Chair of the Oranga Tamariki Advisory Board, in an interview with Waatea News
Ngahiwi Tomoana (Ngāti Kahungunu, Ngāti Hawea, Ngāti Hori and Samoa) and Shayne Walker (Kai Tahu, Ngāti Kahungunu), in comments to Te Karere TVNZ New Minister of Children under fire following law scrap.

Many more responses raising similar criticisms are in the related media below.

Related news

The Supreme Court of Canada has unanimously upheld the constitutionality of a Canadian federal statute affirming Indigenous peoples’ right of self‑government with respect to child and family services. The Supreme Court agreed the Act respecting First Nations, Inuit and Métis children, youth and families, which establishes national standards and provides Indigenous peoples with effective control over their children’s welfare, is constitutionally valid.

To explore this further, see Adjunct Professor Dominic O'Sullivan's article in the Conversation: Taking the Treaty out of child protection law risks making NZ a global outlier.

Related research

To learn more about the history of institutional racism in New Zealand's care and protection system, legislative reforms, and decolonising the care and protection system see the following: