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Image: Tina Tiller
Image: Tina Tiller

OPINIONPoliticsNovember 28, 2023

Stripping child protection law of Tiriti provisions would be huge step backwards

Image: Tina Tiller
Image: Tina Tiller

What the new government is proposing is highly regressive and likely to cause harm to Māori children and families, writes Luke Fitzmaurice-Brown. But it will be fought every step of the way, and decolonisation efforts will continue regardless.

The appointment of Karen Chhour as minister for children represents a significant milestone, as never before has the holder of that position been a survivor of the state care system. Chhour knows the damage the system can do when things go badly and often mentioned children in state care in her first term as an MP. She has made restoring the independent oversight of Oranga Tamariki one of her new priorities as minister, but unfortunately, that is where the good news ends. 

The National-Act coalition agreement includes a commitment to repeal section 7AA of the Oranga Tamariki Act 1989. That provision is the primary legal mechanism for recognising the Crown’s Te Tiriti o Waitangi duties in the child protection system. It outlines a range of obligations for Oranga Tamariki relating to Māori children and whānau. Those include reducing disparities between Māori and non-Māori children in contact with the state care system, forming partnerships with iwi, and prioritising the tikanga of mana tamaiti, whakapapa and whanaungatanga in policy and practice. 

The passage of s7AA in 2017 was the first time that Te Tiriti had ever been mentioned in New Zealand’s child protection laws. To be clear: it is far from perfect. The Waitangi Tribunal has said that far from fully upholding the Crown’s obligations in this area, section 7AA actually waters down those obligations. Article 2 of Te Tiriti o Waitangi assured Māori tino rangatiratanga over kāinga, which the tribunal clearly stated encompasses child protection issues. In practice, the protections enabled by section 7AA are far narrower than what Te Tiriti itself provides for. 

Nevertheless, those gains were hard-fought by Māori, and remain an important (though inadequate) source of protection for Māori children and families against the power of the state. As the Tribunal discussed, the child protection system has had a huge role in the colonisation process, removing thousands of Māori children from their families and systematically undermining essential Māori values and practices. Section 7AA was the most significant legislative change since 1989 aimed at addressing those problems, and the new government now seeks to repeal it. 

They will not be allowed to do so without a fight. In 2019, thousands of people took to the streets to protest the treatment of Māori children and families by Oranga Tamariki and its predecessors. Those protests led to six different reviews of the agency, arguably the most significant of which was the Waitangi Tribunal inquiry. All six reviews recommended widespread change, with several of them stating that the current agency would never be able to address the underlying problems driving child protection inequities for Māori. Even bigger protests are likely to result if the government follows through on the promises they have made to try to strip the Oranga Tamariki Act of its Te Tiriti provisions. Just as will be the case with any other anti-Tiriti legislation the new government tries to pass, advocates for Māori will fight those changes at every step. 

Protesters against Oranga Tamariki’s treatment of Māori whānau march on parliament in 2019 (Photo: Ana Tovey/RNZ)

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. 

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.

The good news for the new government is that there is still time to look at the evidence and understand the issues surrounding Oranga Tamariki in their wider context. Should they do so, they will see that removing the first and only mention of Te Tiriti o Waitangi in our child protection laws is a terrible idea. But the good news for the rest of us is that there is only so much the government can do. The law matters, and I would much prefer that our child protection laws continue to mention Te Tiriti. But changing laws is only one part of decolonisation, and often it’s not the most important part. Where outcomes for Māori have improved in the last few years it has usually been down to the work of dedicated people on the ground. Those efforts are an essential aspect of decolonisation, and those efforts will continue. The government now has a choice whether to support, or to oppose, that vitally important work. I hope they choose wisely.

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Back to the future at the Beehive. Image: Tina Tiller
Back to the future at the Beehive. Image: Tina Tiller

PoliticsNovember 28, 2023

The Ctrl-Z coalition: all the repeals and reversals planned by the new government

Back to the future at the Beehive. Image: Tina Tiller
Back to the future at the Beehive. Image: Tina Tiller

That chopping block is about to get a lot of use. A lot. 

In the lead-up to the 2023 election, a substantial part of the National Party case centred on getting rid of things introduced by the Labour government. To be fair, Chris Hipkins spent a lot of time doing that, too, in the shape of the proverbial bonfire. National, however, buttressed today by the Act and NZ First parties, has an inferno in mind. 

The coalition agreements between National and Act and National and NZ First, both signed on Friday, confirm a number of acts, or parts of acts, that will be repealed. Those supplement the bundle of docs that represent the core of the National programme. Unless either of the coalition deals says otherwise, the contents of the 100-day plan, the fiscal plan, the tax plan and the eight-point pledge card are to be “progressed this term”. 

Given all of that, these are the things that are for the scrapheap.

The Natural and Built Environment Act 2023 

This, one of two RMA replacement bills, is removed under the National 100-day plan, the National-NZ First deal and the National-Act agreement, with the last of those three the most urgent, requiring its repeal “by Christmas”.

The Spatial Planning Act 2023

The second of the RMA replacement bills; as above.

Three waters legislation (x3)

This was rebranded by Labour as “Affordable Waters”, and comprises – deep breath – three 2023 pieces of law: The Water Services Economic Efficiency and Consumer Protection Act, The Water Services Legislation Act and the Water Services Entities Amendment Act. They’re all about to meet their maker, as demanded by the National 100-day plan and the deal with Act.

three yellow pipes with water coming out of them, on a blue background with speech bubbles containing question marks and ellipses
Image: Tina Tiller

Māori Health Authority

All three parties have the removal of this entity, established in 2022, as a priority. 

Fair pay agreements

The initiatives in the 2022 Fair Pay Agreement Act will be gone “by Christmas”, according to a stipulation in the National-Act deal. Its repeal was already one of the “first actions” listed by National in its 100-day plan. 

90-day trial periods

Not so much a repeal as a reintroduction: 90-day trial periods will be restored for all businesses (not just those with fewer than 20 employees). This is in the National 100-day plan as well as the National-Act deal. 

National Policy Statement for Freshwater Management 2020 

This will be “replaced”, according to the National-NZ-First and National-Act agreements.

National Environmental Standards for Freshwater

These also will be replaced, deems the National-NZ-First deal.

Auckland regional fuel tax 

Introduced in 2018, this will be removed as part of National’s 100-day plan. 

Auckland light rail 

This plan will be binned, as decreed by the National 100-day plan as well as both the Act and NZ First coalition deals.

Let’s Get Wellington Moving

Also binned, as also decreed by the National 100-day plan as well as both the Act and NZ First coalition deals.

Clean car tax / ‘Ute tax’

National’s 100-day plan decrees “Repeal Labour’s Ute Tax by 31 Dec 2023”, while the National-Act agreement focuses on the other half of the 2021 measure, and without the tight deadline, reading: “Repeal the clean car discount.”

Reserve Bank dual mandate

“Supporting maximum sustainable employment” will be scrapped from the Reserve Bank of New Zealand Act 2021 so that the bank’s sole focus is inflation. This edict appears in both the National 100-day plan and the National-Act agreement.

The Therapeutic Products Act 2023

Passed in July after a long and bumpy ride, this entailed substantial changes to regulation of medicines, medical devices and natural health products. It attracted more than 16,000 submissions at select committee – most of them opposed. Both Act and NZ First chalk up this repeal in their coalition agreements.

Light rail in Auckland and Let’s Get Wellington Moving: gone.

Smokefree measures

The National-NZ First deal says: “Repeal amendments to the Smokefree Environments and Regulated Products Act 1990 and regulations before March 2024, removing requirements for denicotisation, removing the reduction in retail outlets and the generation ban, while also amending vaping product requirements and taxing smoked products only.”

And the National-Act deal: “Repeal the Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Act 2022 to remove the requirements for denicotinisation and the reduction in retail outlets.”

Arms Act

The Act-National agreement requires “immediate” repeal of Part 6 of the Arms Act 1983, which places obligations on clubs and ranges, followed by a “rewrite” of the act as a whole. 

The Canterbury Regional Council (Ngāi Tahu Representation) Act 2022

The law which provided for two iwi-appointed council members will be scrapped, as laid out in the National-Act deal.

Māori wards

Specifically, the “right to local referendum on the establishment or ongoing use of Māori wards”, per the NZ First and National deal.

Mortgage interest deductibility

National had this policy, but it is accelerated under the deal with Act, which requires the restoration of mortgage interest deductibility for rental properties with a 60% deduction in 2023/24, 80% in 2024/25, and 100% in 2025/26.

Bright-line tax

The bright-line test for residential properties will be reversed to two years, per National’s economic plan. 

Benefits indexed to wages

This will return to indexation to inflation, per the National tax plan.

The Productivity Commission

The organisation created at the request of Act following government negotiations in 2008 will be disestablished to make way for a department of regulation at the request of Act following government negotiations in 2023.

Gone, as part of the Act-negotiated

Three strikes

Will be restored, as agreed by Act and National.

No-cause eviction

The Act-National agreement means landlord rights to issue a 90-day notice without providing a reason or applying to the Tenancy Tribunal will be restored, while tenants’ notice period returns to 21 days and landlords’ to 42 if the tenant wishes to move or the landlord is seeking to sell the property.

Offshore oil and gas exploration

Will be unbanned, as stated in the National-Act agreement and the National economic plan.

David Seymour, Christopher Luxon and Winston Peters arrive for the signing of the coalition agreement (Photo: Marty Melville/AFP via Getty Images)

Live exports

The Labour ban on live animal exports would be reversed, according to a provision in the NZ First-National agreement and an almost identical one in the Act-National agreement.

The Lake Onslow mega-battery

Plan ditched under National 100-day plan and National-Act deal.

First-year fees free

To be replaced, per agreements with Act and NZ First, with a free final year.

Oranga Tamariki Act 1989 

Section 7AA of the act, which binds Oranga Tamariki to the principles of the Treaty of Waitangi in practical terms, will be removed under the Act-National deal. 

The ‘app tax’ *

National’s economic plan pledges to “axe the ‘app tax’ – an unprincipled tax grab that will make your Uber, Airbnb, and food delivery more expensive by removing the long-standing GST exemption for enterprises earning $60,000 or less”. 

* Despite the undertaking to complete all pledges in the 100-point plan (apart from those ruled out in the coalition agreements), Luxon told Newstalk ZB that the app tax would not be reversed.

Sentencing cultural reports

National has pledged – within its first 100 days – to halt “taxpayer funding for [Sentencing Act] section 27 cultural reports”. That is echoed in the National-Act deal. 

Curriculum provisions

Per the NZ First deal with National: “the removal and replacement of the gender, sexuality, and relationship-based education guidelines.”

The Conduct of Financial Institutions Act

The act, which obliges banks and insurers to be licensed by the FMA, is to be repealed in keeping with National’s economic plan. 

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