These changes were passed in 2017 with one objective being to improve the over-representation of Māori in general in both state care and youth justice in New Zealand. This paper focuses on two changing provisions and argues that those provisions are insufficient to achieve this goal. This paper then states how these changing provisions can be improved and thus used in practice to reduce the over-representation and harm of whānau-Māori, particularly within the context of state care and out-of-home placements.
It would be better to achieve the reduction of tamariki Māori in state detention and out-of-home placements.
Te Terenga o Te Waka – Introduction
This discussion will center around the Crown using an improved version of the amendments to devolve power to Māori, while still maintaining the principle of partnership.
Tō Te Ture Whakapapa – Legislative Background
The main goal of CYPTFA was "to promote the well-being of children, young people and their families and family groups"7. This article will now turn to the central parts of the Legislation Act and analyze their form and content. The sections of the Legislation Amendment Act which are the focus of this document are section 7(1) and section 14.
This will guide the subsequent discussion on the effectiveness of the upcoming amendments to the Oranga Tamariki Act.
He Reo Hou – Section 7(1) of the Legislation Act: New Terminology
We will discuss this along with the analysis of this section later in this document. ii) Tikanga Māori. This term occurs twice in the Legislation Act in the interpretation section; once as its own defined term and secondly as part of the definition of mana tamati. As a result, decisions cannot and will not be made in accordance with tikanga Māori and thus will not support mana tamaiti under the Oranga Tamariki Act.
Like mana tamaiti, whakapapa and whanaungatanga are expressed in the purpose, principle and duty sections of the Legislation Act. Indeed, all terms (except for tikanga Māori, but this is implicit in mana tamaiti) appear expressly side by side in the same five provisions of the Legislation Act. These two poop peacocks would eventually maintain mana tamaiti, which would be the tāhūhū (the central rafter beam) of the embankment.
However, some of the Chief Justice's comments expressly recognized the place of tikanga Māori in common law. This discretion is granted as part of the legislative policy direction towards prevention and early intervention for child protection.62 A judicial mechanism to determine tikanga Māori would be redundant here. Therefore, if these provisions are to be enforced by mana tamaiti, the means to know and use tikanga Māori must be proactively provided to all those empowered by the Oranga Tamariki Act.
Section 7(1) of the Legislative Act should at least clarify a procedure to identify and apply tikanga Māori in decision-making. Te Whakamana i Te Tiriti – Section 14 of the Legislation: Duty of the Chief Executive in Relation to the Treaty.
Te Whakamana i Te Tiriti – Section 14 of the Legislation Act: Duty on the Chief
For example, if the principle of mana tamaiti is in conflict with the principle of making and implementing decisions expeditiously within a time frame appropriate for the age and development of the child63, the decision on which principle will affect the other will fall trump. at the discretion of the decision maker taking into account the relevant circumstances. The purpose of this duty is to recognize and provide for the principles of the Convention. As will be explained below, this provision does not go far enough to address the fundamental issues of the state care system and will not in itself reduce the over-representation of tamariki Māori in state custody and out-of-home placements.
However, what constitutes the proper performance of these duties is determined by the more specific wording of the paragraphs that follow. The wording in those subsequent paragraphs, particularly that under the partnership paragraph, weakens the Chief Executive's duty to uphold the principles and principles of the Treaty. For example, paragraph (a), the first of the policy paragraphs, imposes a duty to establish measurable outcomes which "aim to reduce inequalities" between Maori and non-Maori in the system.
There is no room to question the effectiveness of the measures in achieving this objective. Its value as a policy rests on the import of the expertise and natural attributes of iwi and other Māori organizations well placed to deal with tamariki and whānau Māori.65 However, this duty is similarly weakened by the legal wording. This was one of the criticisms of the Legislative Bill introduced by the Human Rights Commission, which recommended strengthening this provision by imposing a more direct duty to develop and implement strategic partnerships, as opposed to the current duty they as vaguely criticized.66.
These shortcomings must be addressed if the Oranga Tamariki Act is to achieve better social outcomes for Māori. These provisions are ineffective and merely serve to illustrate a more fundamental issue in this area of the law.
He Anga Whakamua – A Way Forward
It is argued that this can be achieved through Section 14 of the Legislation, soon to be Section 7AA of the Oranga Tamariki Act, through the formation of Crown-Māori partnerships. This submission mirrors that of the New Zealand Māori Council in its inquiry into the Legislation Act,69 and echoes the aspirations of the Puao-te-ata-tu report.70 These are that social security powers should are handed over to Māori. That is to say, the state must recognize that the state must not absolve itself entirely of its duty to ensure Māori equality, as promised in Article III of the Treaty.71 The Crown must provide infrastructure and resources to iwi and Māori organizations for this proposed framework. .
The Rangatahi Court, an initiative of the judiciary, is a form of Juvenile Court often held at marae. It aims to reduce the percentage of Māori youths who commit offenses “by encouraging strong cultural links and meaningful involvement of whānau, hapū and iwi in the juvenile justice process”.72 It also implements tikanga Māori processes such as pōwhiri and karakia and is typically held within a wharenui (traditional meeting house).73 Since the establishment of the first Court, 15 have been adopted nationwide.74 According to a 2012 report by the Ministry of Justice, the trial at the Court has been successful in; involving young Māori, encouraging more positive behavior from young Māori, connecting young Māori to their wider community and building a sense of Māoritanga within the rangatahi who participate.75 Judge Taumaunu, the initiator of the first Rangatahi Court in Gisborne, states that this provides. 75Kaipuke Consultants Evaluation of the first results of the final report of Ngā Kooti Rangatahi (Ministry of Justice, December 17, 2012) on [8.4].
28 an opportunity for young people to understand who they are as Māori and for the local community to participate and contribute.76 However, Williams J notes that despite the early positive signs, the Rangatahi Court has some important limitations; these include that the main juvenile court is always the first point of contact and that the jurisdiction of the Rangatahi court only operates if the victim and the offender agree to such a referral. initiative, the executive branch of government is only really lagging behind and tautoko78. In 2012, Ngāi Tūhoe entered into a partnership with the Crown as part of the settlement of their historic treaty claim, with specific Crown agencies recognizing Tūhoe's mana motuhake. 30 relationship with Oranga Tamariki and the police, with Tūwharetoa providing advice on key issues involving whānau Māori in the area and developing strategies for working with these whānau in general practice.86 This relationship has been positive for all parties involved and demonstrates the benefits Crown and iwi collaborations.
The history of state care in New Zealand, as outlined in the earlier sections of this article, is evidence of the Crown's continued failure towards Māori. It is argued that the recent changes that will come into force as part of the Oranga Tamariki Act are unlikely to change this, particularly in the context of state custody and custodial placements.
Te Taunga o te Waka – Conclusion
32 decisions about care, while also providing the resources and support to uphold the principle of partnership, is what is needed to make any real change. However, this does not rule out the possibility of the Crown and Māori working together to improve outcomes for the care and orangi of tamariki Māori. 33 embodies the principle of partnership, will be most effective in working to improve the situation of Māori and thus Aotearoa whānui89 in caring for tamariki.
Raupapa Whakatauākī – Bibliography
35 Kaipuke Consultants Evaluation of the first results of the final report of Ngā Kooti Rangatahi (Ministry of Justice, December 17, 2012). Ministerial Advisory Committee on a Maori Perspective for the Ministry of Social Welfare Puao-Te-Ata-Tu (day break) (Government of New Zealand, September 1988). Ministry of Social Development Children in Care – National and Local Level Data – June 2017 (June 2017) Legislative support for improving outcomes for Māori children and young people (New Zealand Government, November 2016). 36 Final Report of the Panel of Experts on Modernizing Children, Youth and Families: Investing in New Zealand's Children and their Families (Ministry of Social Development, December 2015). Child, Youth and Family Modernization Panel Expert Panel on Child, Youth and Family Modernization: Interim Report (Ministry of Social Development, Version 1.0, July 2015). 29 June 2017, Volume 723) Children, Young People and Their Families (Oranga Tamariki) Bill — Second Reading (Hon Anne Tolley). Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (UBC Press, Vancouver Toronto, 2016). New Zealand Human Rights Commission "Submission of Children, Young Persons and Their Families (Oranga Tamariki) Amendment Bill". 37 New Zealand Law Society “Children, Young People and Their Families (Oranga Tamariki) Bill: NZLS Submission”. Te Rūnanga o Ngāi Tahu “Submission to the Children, Young Persons and Their Families (Oranga Tamariki) Bill”. Reverend Pita Sharples “Treaty relationships need rebalancing: Sharples” (22 October 2010) Beehive.govt.nz
