A wave doesn’t stand still and nor will Māori

A personal reflection on the repeal of s7AA and te reo

In this guest post from Kerri Cleaver (Lecturer, Whare Wānanaga o Waitaha | University of Canterbury), Kerri explains her personal response to recent government changes.

Ko wai au? 
Ko Aoraki te mauka 
Ko Takitimu te waka
Ko Aparima te awa
Nō Kai Tahu, Kāti Māmoe, Waitaha ahau
He uri au o kā hapū o Te Ruahikihiki me Taoka
Ko Kerri Cleaver ahau


All risk and no recognition: repeal and devolution in child protection

Two of the things up first on the hit list for change in child protection are: repealing s7AA of the Oranga Tamariki Act 1989, and increasing the devolution of care decisions to the community. These two appear at odds, but can be explained by the key ACT aims of removing Tiriti rights, while increasing community responsibility within a ‘small state’ vision. ACT argues the repeal of s7AA is about ensuring children’s best interests are at the centre of decision making. I think it’s more about the partnerships and reporting on disparities the section enabled.

However imperfect the partnerships under s7AA were, they were a step in the right direction of rebalancing power, and the repeal will increase inequities, remove a series of policy and practice changes that were improving outcomes, and damage a fragile trust.

The policy changes proposed by the triumvirate government reflect a curious mix of ideological positions, lobbyism, and the hobby horses of particular individuals. The result is an odd combo of at times quite conflicting policy changes. Much like Hagrid’s three-headed dog ‘fluffy’, we probably wish we could have kept it asleep a little longer with Labour’s lullabies. It’s awake though, and we have to put up with all three talking heads and their bluster for three long years, with its assortment of business cliches, smooth-talking cruelty and a lot of aggressive barking. 

Getting rid of s7AA of the Oranga Tamariki Act is one proposed change. Just what is s7AA all about? The section’s aim, entitled ‘duties of chief executive in relation to Treaty of Waitangi (Tiriti o Waitangi)’ took effect in July 2019. Its aim is to provide a ‘practical commitment to the principles of the Treaty of Waitangi’. It creates an onus on Oranga Tamariki to ensure that policies and practices of the department ‘measure and reduce disparities for Māori’, develop strategic partnerhips with iwi and Māori organisations, consider delegation of functions to iwi, and requires all policies and services to  “have regard to mana tamaiti (tamariki) and the whakapapa of Māori children .. and the whanaungatanga responsibilities of their whānau, hapū, and iwi”. 

Repealing it is part of ACT’s resistance to any recognition of te Tiriti as conferring rights differently for Māori than other New Zealanders. But their framing of it focusses on individual decision-making and a false dichotomy between children’s best interests and their rights to whakapapa. As Chris Bishop argued just yesterday when asked about repealing it “the most fundamental point with all law concerning children was to put the welfare of the child at the centre of all decision-making, that’s what the minister is focussed on”. The proposed changes from the Act website frames it like this : “While well intentioned, section 7AA creates a conflict between protecting the best interests of the child and race-based factors enshrined in 7AA. This conflict has the potential to cause real harm to our children. Oranga Tamariki’s governing principles and its Act should be colour-blind, utterly child-centric and open to whatever solution will ensure a child’s wellbeing… [we should place] more value on the best interests of the child rather than the Treaty.”

This sets up a straw man argument between on the one hand Te Tiriti, and the other, children’s best interests. It also implies that s7AA is only about how particular principles should be weighed up in specific case decisions. Both misrepresent the section and its intent. Children’s best interests are served by a consideration of their whakapapa rights, not damaged by it. Children’s best interests are served, not harmed, by an emphasis on the responsibilities of their whānau hapū and iwi to care for them. Much of the harm of the child protection system for Māori has stemmed from a lack of recognition of the interconnection of children’s interests and their connection to whānau and hapū, a finding of countless reports and inquiries showing the harm of being cut off from access to identities and support networks these confer. Ensuring iwi have sovereignty over kāinga and with it, decisions regarding children’s care, is an important solution that can protect children’s best interests – all of them – not just their need for immediate care and safety, but longterm wellbeing connected to whakapapa and belonging. 

Cases that have hit the media, such as ‘Moana’ are clearly at the heart of Act’s position, often those where care changes are disputed and one driver is a consideration of whakapapa and mana tamaiti. But complex individual cases of interpretation, where not all facts of the case can be reported, should not be used to disparage legislation unequivocally. Just because it’s difficult to apply principles in practice doesn’t mean we get rid of ones we don’t like. They all have value, and in this case, not just value, but embody an important protective principle without which many, many children are harmed and have been down through the generations.

There is also already an override regarding children’s best interests where specific situations may prove difficult to weigh up – the paramountcy principle of section 6 that requires a child’s best interests and wellbeing to be the first and paramount consideration. Of course, defining what those are is also not straightforward and should also contain consideration of whakapapa and whānau.

But it’s hard to believe getting rid of s7AA is really about children’s best interests and decision-making about individuals, because without s7AA,  there are extensive other requirements in section 4 and 13 principles that require the principles of te Tiriti, children’s right to whakapapa and the rights of whānau, hapū and iwi to be upheld in decisions. These still remain despite the repeal of s7AA.

So if repealing s7AA isn’t really about decision-making for individual children, what’s the real reason for repeal? More fundamental to issues of rangatiratanga are the partnerships and measuring disparities requirements. Those iwi and Māori organisations who pursued partnerships under s7AA gained a different kind of relationship with the crown than just another community organisation. This higher level of relationship will be returned to simply another ‘community organisation’, structured by contracting, procurement and accountability rules that keep Oranga Tamariki in the drivers seat. The growing trust and relationships established between iwi and Oranga Tamariki, will be trampled.

Removing s7AA also removes the need to measure and reduce population level disparities for Māori, emphasised particularly by the Waitangi Tribunal inquiry into disparity causes in 2020. This reported the immense damage done to Māori communities over the years through the vehicle of the child protection system. As a mechanism of colonisation, it removed thousands of Māori children for spurious reasons, damaging their connection to whakapapa and exposing them to tremendous harm. Without measurement and reporting, those disparities will simply ‘disappear’ from view, and with it, a work progamme to address them. And it was working in many ways. For example, since 2019, disparities for Māori babies entering care have reduced from fives times the non-Maori rate, to three times. The overall rates of Māori children entering care have plummeted. 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.

It’s not that Te Tiriti relies on codification into legislation for power and meaning. It stands in its own mana. Some even argue that the Treaty principles embedded in legislation water down the Treaty promises: after all, partnership is not sovereignty, participation is not self-determination and protection is not equity. Repealing in some instances could free Te Tiriti from a set of watered down rules forged and framed in a bygone, stepping-stone era. But that would only ring true on the ground if a proposed alternative was better than this one. As it stands, s7AA  demands the Crown abide by some basic privileging of iwi -Crown relationships over Crown – other community organisation relationships, enabling the restoration of some forms of power.

But the child protection system is a machine with many cogs. Other changes – both within the assumed purview of Oranga Tamariki – and other ministries, will also have an effect. The ‘devolving of care decisions to the community’, for example, will intersect with the repeal of s7AA. It reflects a libertarian nod to the notions of community responsibility and small state bureaucracies. ACT see no conflict in removing iwi rights while also giving more responsibility to communities, right up to care decisions. Many of those asked to take on such decisions will ironically, be iwi and Māori organisations.

Community decision-making in child protection as a general practice is an interesting beast. Some decisions about children can certainly be made in the community, especially those about initial reports, service provision, whānau hui and family group conferencing. Their quality is improved with community expertise and relationships (Roguski, 2020). But final decisions for orders are a different matter. This ‘devolution’ could be a vehicle for empowering communities to make these decisions themselves, but it would take a huge resource of strategic planning, capacity-building and funding involving organisations and the family court. Most community orgs, including iwi, are hesitant to take on this level of power, because of the uncomfortable position it puts them in – as a support service provider AND remover of children. The infrastructure to enable this would be considerable. So while the repeal of s7AA will remove some powers of iwi organisations, the devolution of decision-making might give some back albeit without any differentiation from other organisations. But it’s likely to be all risk and responsibility with no resourcing. 

A key problem with the repeal of s7AA is really one of the destruction of trust. Many people within Oranga Tamariki and iwi and Māori organisations have been working hard to restore trust through partnership agreements, but that rug has been pulled from under everyone’s feet. Some work will go on, but the symbolic and emotional aspect of the repeal – as a rejection of Te Tiriti – might do far more damage than the details of its impacts. For Māori, this comes on top of many, many disappointments with the Crown. In child protection, these cuts run deep into muscle and memory and whakapapa.

The Treaty to me has never been about Treaty rights, it’s always been about the rightness that comes from people accepting their obligations to each other.” – Moana Jackson.  


Solidarity in motion: Let us work together

By Eileen Joy and Meryl Fraser.

Earlier this month members of the Aotearoa New Zealand Social Work Journal issued a plea for Justice for Palestine. Sadly we note that our plea must remain, that Palestine is still under bombardment and the genocide of Palestinians continues apace. In that plea we noted the weak responses of both the International Federation of Social Workers and our own professional association the Aotearoa New Zealand Association of Social Workers (ANZASW). We also said that we would follow up our plea with a list of actions people could take. We know that many fellow social workers are likely to feel a sense of bewilderment, horror, and confusion about what is happening and these feelings can lead to paralysis. That paralysis is often accompanied by a sense of helplessness. Here in Aotearoa it might seem that there is nothing you can do. Hopefully this list will help you – and others – realise that there is a lot you can do.

But first I want to start with the words of Brittany Packnett who was writing in 2018 about the death of a young Black woman in the United States. These words have been shared anew via Instagram in recent weeks. I share them to frame this conversation:

The most important step is this: Train yourself toward solidarity and not charity. You are no one’s saviour. You are a mutual partner in the pursuit of freedom. Lilla Watson, an Aboriginal activist and artist once said ‘If you have come here to help me, you are wasting your time. But if you have come because your liberation is bound up with mine, then let us work together.’ I want to be free. I want you to be free. And you aren’t free until I am. 

This means we have to work together. This means that solidarity is a verb. This is about working together, it is about kotahitanga to achieve rangatiratanga, both are values embedded in the ANZASW Code of Ethics – these are values that social workers in Aotearoa should be very familiar with. 

Given that what can solidarity look like when we are in Aotearoa – miles away from bombs and genocide? What follows is a non-exhaustive list of things you can do – and I encourage you to add things to this list in the comments section.

  • First up, see here for an informative google document about Palestine, Abolition and Social Work. There are a lot of resources here that you can use to educate yourself and others, which leads onto the next point!
  • Educate yourself about the situation and the long history of Palestinian struggle, how Israel was established on Palestinian land. Be clear in your head about the difference between Hamas and Palestinians and anti-Zionism and critiques of Israel versus antisemitism. It is frustrating when people say they do not know enough to comment and then do not bother to educate themselves – having said that there is nothing complex about opposing genocide or apartheid.
  • Push back against incorrect framing. This isn’t a war. It’s not a conflict. Israel is not defending itself when it slaughters unarmed civilians.
  • Follow Palestinians on social media, read books by Palestinians. Social media will allow you to see what is happening in real time. Know also that this can be distressing and upsetting, so you may need time out, but do not let that make you turn away from solidarity.
  • Take all the actions you are capable of taking – posting on social media (this is not performative, Palestinians are literally asking people to do this). This also means signing petitions, go to marches, write emails to your MPs, (find yours here) give money to campaigns, take part in boycotts. The feeling of helplessness is by design – we are supposed to feel that way so we don’t recognise the power we hold, especially when we come together.
  • Make the connections between the violent colonial oppressor of Palestinians and other Indigenous peoples are the globe, including here in Aotearoa

More specific actions:

  • Sign this petition for the NZ government to demand an immediate ceasefire
  • Purchase from Palestinian owned business – see here for a place where you can buy an assortment of items and part of the purchase goes to donating meals to children in Gaza.
  • Go to this Link-tree for more petitions and actions you can take.
  • Download this app – Halal Kiwi – Apple or for Android – which can show you what foods are halal but also contains a list of companies that have supported Israel in various capacities so you can make more informed consumer choices.

Remember you can make a difference. We can stand together. Millions of people around the world are calling for a ceasefire, for a radical rethink about the occupation of Palestinian land. You can and should join those calls for action. Solidarity is a verb, take action. Do the mahi. Fight back.


On mandatory reporting

A twitter thread by @EmilyK100


Smarter, not harder: decision-making, policy swings and the Malachi Subecz report

The ombudsman’s report has now been now released about the handling of Malachi Subecz’s case. Between that and media reporting, we are learning more about the circumstances that led to his tragic death. These facts raise many questions in relation to decision-making at the often called ‘front door’ of the child protection system, as well as wider reflections on the broader system. What often happens in cases of child death is a sense of outrage, media frenzy and a growing ‘collective emotion’: in the aftermath this collective emotion generates a pendulum swing towards more risk averse decisions, an increase in screen-ins, a call for more or mandatory reporting, and more investigations and child removals. Of course we should be emotional, we should be horrified to learn of what Malachi suffered and his family’s best efforts to get him help. But unfortunately reforms in response to sentinel events are seldom durable, often ill-focussed, and can have significant unintended consequences.