Time to hit pause on flawed Oranga Tamariki Bill

The new Oranga Tamariki Oversight Bill is seriously flawed, both in its substance and the process followed to develop it, say a group of legal academics.

In a paper titled Time to Taihoa, the University law experts from Te Puna Rangahau o te Wai Ariki, the Aotearoa New Zealand Centre for Indigenous Peoples and the Law lay out major concerns with the Bill, which is progressing through Parliament and is due to go before the House of Representatives for its second reading.

They say that the Government has disregarded both te Tiriti o Waitangi and the United Nations Declaration on the Rights of Indigenous Peoples in developing the Oversight of Oranga Tamariki System and Children and Young People's Commission Bill, and that its progression must be paused.

"It's essential to have on record the many concerns about the Bill and to hold the Government to account," says Dr Fleur Te Aho (Ngāti Mutunga).

"Not only has the Government decided not to establish a Māori-led transition authority or provide for Māori tino rangatiratanga over the care and protection of tamariki Māori, but it has also pushed ahead with the Bill and failed to engage with Māori on its development in a way that reflects our status as Tiriti partner and as Indigenous peoples."

Dr Te Aho and other legal academics from the University's Centre for Indigenous Peoples and the Law say that although te Tiriti o Waitangi guarantees Māori the right to exercise authority over their communities, including the care and protection of tamariki, the Government has failed to honour that guarantee in the development of the Bill.

Research Fellow Claire Mason notes that the Waitangi Tribunal made it clear last year that Māori must lead the current re-visioning of the country's care and protection system.

She says that Aotearoa New Zealand should now be in a transition phase where the Government has taken heed of the Waitangi Tribunal's recommendations and Māori have appointed an authority to lead the transformation of Oranga Tamariki.

Equally, Māori should be at the helm of decision-making regarding oversight and monitoring of the care and protection of tamariki Māori, says Mason.

"Once established, this authority should then be left to do its work, which should involve identifying the changes necessary to eliminate the state care of tamariki Māori and fulfil the Tiriti guarantee of Māori tino rangatiratanga over kāinga, how transformation should be achieved and an implementation plan to effect it.”

"It would also follow that the Government would hit pause on the Bill to await the Royal Commission of Inquiry on Abuse in State Care's findings and recommendations, which are expected to speak directly to these issues as well."

The members of the Centre for Indigenous Peoples and the Law also have concerns regarding the process used to develop the Bill and the consultation that took place.

They note in Time to Taihoa that according to public records, there was fairly extensive consultation at the early stages of the development of the Bill in July and August 2019.

But after that, as far as Mason, Te Aho, and their colleagues are aware, no further hui with Māori stakeholders, beyond a small group appointed by the Ministry of Social Development, were held as the Bill's policy was developed and changed, or once the Bill was drafted and before its introduction.

Mason says this, along with a raft of other issues, is concerning considering that the Bill’s context relating to Oranga Tamariki has significantly changed in the time between when the hui with Māori stakeholders were undertaken and now.