Oranga Tamariki Act 1989

Oranga Tamariki Act 1989 Children's and Young People’s Well-being Act 1989
New Zealand Parliament
Long title An Act to reform the law relating to children and young persons who are in need of care or protection or who offend against the law and, in particular,— (a) To advance the wellbeing of families and the wellbeing of children and young persons as members of families, whanau, hapu, iwi, and family groups: (b) To make provision for families, whanau, hapu, iwi, and family groups to receive assistance in caring for their children and young persons: (c) To make provision for matters relating to children and young persons who are in need of care or protection or who have offended against the law to be resolved, wherever possible, by their own family, whanau, hapu, iwi, or family group: (d) [Repealed] (e) To repeal the Children and Young Persons Act 1974
Royal assent	27 May 1989
Administered by	Ministry of Social Development
Legislative history
Passed	1989
Related legislation
Oversight of Oranga Tamariki System Act 2022, Children and Young People's Commission Act 2022
Status: Current legislation

The Oranga Tamariki Act 1989 or Children's and Young People's Well-being Act 1989 (titled the Children, Young Persons, and Their Families Act 1989 prior to 14 July 2017) is an Act of the New Zealand Parliament that was passed in 1989. The Act's main purpose is to "promote the well-being of children, young persons, and their families and family groups." In June 2017, the New Zealand Parliament passed amendment legislation renaming the bill the Oranga Tamariki Act 1989.

Key provisions

Considered to be groundbreaking legislation at the time, the Act introduced the Family Group Conference (FGC) as a means of making decisions about a child or young person that did not involve a Court Hearing. The Act set out procedures for the removal of abused children from their parent's care, making the best interests of the child the first consideration. It also set out procedures for dealing with youth offenders, making arrest and imprisonment interventions of last resort. Although Police initially feared those restrictive provisions on their powers would cause problems, practical experience has not borne out those fears. The Act also provided for a Commissioner for Children.

The Act determines how the state intervenes to protect children from abuse and neglect, and to prevent and address child and youth offending. The Act introduced principles that changed the way decisions were made about children and young people, enabling family to become partners in the decision-making process to resolve family issues.

Fundamental to the Act was the incorporation and inclusion of families throughout the process of making decisions in matters of care and protection of children and young people, and offending by young people. This was most clearly reflected in the extensive use of Family Group Conferences as the preferred method of operation, and in the use and involvement of family in meeting the needs of children and young people who had offended and/or who were the subject of care and protection actions. Generally, it was expected that families would provide for their members and solutions were to be sought within the family.

History

The Children, Young Persons, and Their Families Act 1989 was one of the significant social service reform legislation implemented by the Fourth Labor Government of New Zealand. It repealed the Children and Young Persons Act 1974, which had been introduced by the Third Labor Government of New Zealand.

When the Children, Young Persons and Their Families Act 1989 was introduced it was seen to be world-leading child welfare legislation. The Act impacts on the lives of thousands of children, young people and their families. The Act introduced major changes to the way decisions were made about children and young people who were victims of abuse and neglect or who broke the law, and placed New Zealand at the forefront of international legislative best practice.

In April 2007, the Ministry of Social Development called for submissions on a discussion document reviewing how the Act was working, with a view to making improvements.

Amendments

Children's ombudsmen

In 2003, the Act was amended by the Children's Commissioner Act 2003, which replaced the previous Commissioner for Children with a new Office of the Children's Commissioner (OCC). The OCC was also designated as a Crown entity and tasked with promoting the United Nations Convention on the Rights of the Child (UNCRC).

In August 2022, the Labour Government passed two new laws replacing the Children's Commissioner with the Children and Young People's Commission and splitting oversight of the Oranga Tamariki system between the Independent Children's Monitor and Ombudsman's Office.

Name change

In June 2017, the New Zealand Parliament passed the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill 2016, which amended the Children, Young Persons and Their Families Act 1989 by renaming it the Oranga Tamariki Act 1989 and specified that 17 year olds would be treated as adults by the justice system.

Section 7AA

On 1 July 2019, the Sixth Labour Government made several amendments to the Oranga Tamariki Act 1989. These amendments included Section 7AA, which requires Oranga Tamariki (the Ministry of Children) to focus on reducing disparities for Māori children and young people, take into account Māori whakapapa (genealogy) and family ties when uplifting children, and partner with iwi (tribes) and Māori organisations. Section 7AA sought to reduce the high uplifting rate of Māori children by state agencies and to ensure that uplifted children were not disconnected from their Māori families and culture.

During the lead-up to the 2023 New Zealand general election, the opposition ACT party campaigned on repealing Section 7AA, claiming that it prioritised race-based factors over the safety and well-being of Māori children. Following the 2023 election, the newly-formed National-led coalition government announced that it would repeal Section 7AA as part of the National Party's coalition agreement with ACT. In response, Waikato-Tainui iwi's (tribe) chairperson Tukoroirangi Morgan announced that his iwi would oppose the Government's plans to repeal Section 7AA. Chief Children's Commissioner Dr Claire Ahmad also expressed concerns that the repeal would reverse gains made by Māori in ensuring that uplifted Māori children remained connected with their families and culture.

On 23 December Te Tāwharau o Ngāti Pūkenga, the post settlement body for the Ngāti Pūkenga iwi, filed an urgent claim challenging the Government's plans to repeal Section 7AA. Minister for Children and ACT MP Karen Chhour had lobbied for the repeal of Section 7AA, arguing that the policy prioritised the Treaty of Waitangi and cultural needs over the well-being of vulnerable Māori children.

In mid-April 2024, the Waitangi Tribunal summoned Chhour to attend an urgent inquiry into the proposed repeal of Section 7AA. The Tribunal requested Chhour submit figures on the number of caregivers who had expressed concern about the impact of Section 7AA and examples of children being placed into unsafe conditions as a result of Section 7AA. On 17 April, Crown lawyers filed judicial proceedings in the High Court seeking to block the Tribunal's summons. The Tribunal's summons was criticised by New Zealand First MP Shane Jones and ACT leader David Seymour, who accused the body of behaving like a "star chamber" and of alleged "race fanaticism." On 24 April, the High Court overturned the Waitangi Tribunal's subpoena to Chhour. In response, Treaty rights activist and lawyer Annete Sykes confirmed that she would be appealing the High Court's ruling. According to Crown Law, Chhour plans to introduce legislation repealing Section 7AA in mid-May. Once Parliament has received the repeal bill, the Tribunal is compelled by law to halt any investigations into the matter.

On 29 April, the Tribunal released an interim report arguing that the repeal of Section 7AA would harm vulnerable children. In early May 2024, Te Pāti Māori MP Mariameno Kapa-Kingi denounced the Government's plans to repeal Section 7AA, accusing them of seeking to "exterminate Māori."

On 11 May, the Tribunal ruled that the Government's proposed repeal of Section 7AA of the Oranga Tamariki Act breached the Treaty's guarantee of Māori self-determination and the Treaty principles of partnership and active protection. They urged the Government to stop work on repealing the legislation. On 13 May, the New Zealand Court of Appeal overturns the High Court decision squashing the Waitangi Tribunal's summons to Chhour to testify at a hearing about the Government's legislation to overturn Section 7AA of the Oranga Tamariki Act. That same day, the Oranga Tamariki (Repeal of Section 7AA) Amendment Bill was introduced into Parliament.

On 21 May 2024, the Repeal of Section 7AA Amendment Bill passed its first reading with the support of the governing National, ACT and NZ First parties. Labour MP Willow-Jean Prime, Greens co-leader Chlöe Swarbrick criticised the Government for not engaging with the Māori community and institutions' concerns. ACT MP and bill sponsor Chhour defended the Bill, arguing that uplifting children based on cultural needs and family desires harmed Māori children. Te Pāti Māori MP Mariameno Kapa-Kingi claimed that the Government was seeking to exterminate Māori culture and identity.

See also

• Oranga Tamariki

Further reading

• Cheyne, Christine; O'Brien, Mike; Belgrave, Michael (1997). Social policy in Aotearoa/New Zealand : a critical introduction. Auckland: Oxford University Press. ISBN 0195583345.
• Eru Ruanui Tia Kapa-Kingi (2018). Ka mate, ka ora rānei? Oranga Tamariki Act not enough to address Māori overrepresentation in state custody and out of home placements – A way forward through Crown-Māori partnership (PDF) (Report). Victoria University of Wellington.

External links

• Oranga Tamariki Act 1989 (Government Bill). New Zealand Parliament. 1 July 2021.