The Waitangi Tribunal has released a scathing interim report on the Government’s proposal to scrap Section 7AA of the Oranga Tamariki Act, warning that a “rushed” repeal could cause real harm.
Its investigation into the policy, which would remove a requirement on the agency to give effect to the Treaty of Waitangi, is ongoing and the tribunal’s findings and recommendations related to it are yet to be released.
But in an interim report sent directly to Prime Minister Christopher Luxon, Waitangi Tribunal Judge Michael Doogan said there were several important matters the tribunal needed “to draw the attention to ministers now”.
One of its concerns included that the “arbitrary” and “sudden” nature of the repeal could pose a risk of harm to vulnerable children.
It referred to official advice presented to Cabinet in the Regulatory Impact Statement, which said Section 7AA was actually making a positive difference, reducing disparities among Māori children in state care and supporting them to connect with their culture.
It also explicitly warned that repealing Section 7AA would be inconsistent with the Treaty of Waitangi.
“Statutory requirements, such as setting measures to reduce inequities and report publicly on progress in achieving these would be removed. Without replacing these accountabilities and reporting mechanisms after a repeal, work to reduce inequities may slow,” the report said.
“This could have a material impact on the safety, stability, rights, needs and long-term wellbeing.”
Section 7AA compels Oranga Tamariki’s Chief Executive to ensure that the agency’s policies and practices have the objective of reducing disparities for Māori children.
It also means the agency must take into account a Māori child’s whakapapa or ancestry when considering whose care they should be in.
Karen Chhour has previously claimed Section 7AA was leading to unsafe practice, but the tribunal rejected that.
“To the extent there is any evidence to support the idea that section 7AA is causing unsafe practice, it is entirely anecdotal. We have seen none,” the report said.
“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 tribunal said the proposed repeal had come about without regard to the Government’s obligations under the Treaty of Waitangi.
“The evidence suggests this is due to a belief or assumption on the part of the Government that the coalition agreements that lead to its formation override or take precedence over the Crown’s obligations under the Treaty of Waitangi.
“It is not for us to comment on the coalition agreement between the National Party and the ACT Party but, once ministers are sworn in and the government is formed, the executive so constituted are responsible for meeting the Crown’s obligations to Māori under the Treaty of Waitangi.
“It is a Treaty of Waitangi, not a proclamation of Waitangi, and the Crown does not have a unilateral right to redefine or breach its terms. The obligation is to honour the Treaty and act in good faith towards the Treaty partner.”
The tribunal is expected to release its final report by May 12.