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Oranga Tamariki (Repeal of Section 7AA) Amendment Bill (Consistent) (Section 19) [2022] NZBORARp 49 (13 October 2022)
Last Updated: 31 October 2022
13 October 2022
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Oranga Tamariki
(Repeal of Section 7AA) Amendment Bill
- We
have considered whether the Oranga Tamariki (Repeal of Section 7AA) Amendment
Bill (the Bill), a Member’s Bill in the name
of Karen Chhour, MP, is
consistent with the rights and freedoms affirmed in the New Zealand Bill of
Rights Act 1990 (the Bill of
Rights Act).
- The
Bill repeals s 7AA of the Oranga Tamariki Act 1989. Section 7AA imposes duties
on the chief executive of Oranga Tamariki in order
to recognise and provide a
practical commitment to the principles of the Treaty of Waitangi (te Tiriti o
Waitangi). Specifically,
these duties require the chief executive
to:
- Ensure
that policies and practices aim to reduce disparities by setting measurable
outcomes for Māori children and young people;
- Ensure
that regard is given to mana tamaiti, the whakapapa of Māori children and
young people, and the whanaungatanga responsibilities
of their whānau,
hapū and iwi;
- Seek
to develop strategic partnerships with iwi and Māori organisations;
and
- Consider
and respond to invitations from Māori organisations to form
partnerships.
- In
2016 we advised the then Attorney-General on the clause that became s 7AA, prior
to its insertion into the Oranga Tamariki Act.1 We
considered that although the proposed amendments arguably drew a distinction on
the basis of race, the distinction did not amount
to discrimination for the
purposes of s 19(1) of the Bill of Rights Act because it did not involve a
material disadvantage for any
other group.
- Conversely,
we have now considered whether the Bill’s repeal of s 7AA engages the
right to freedom from discrimination affirmed
in s 19(1) of the Bill of Rights
Act. The proposed repeal, by removing a measure that was intended to promote
equitable outcomes
for a group defined by reference to a prohibited ground,
could be seen as withdrawing a relevant advantage for the purposes of the
s
19(1) inquiry. Ultimately, however, we consider that the measure does not give
rise to discrimination on the basis that it removes,
rather than creates, a
relevant distinction.
- We
have therefore concluded that the Bill appears to be consistent with the rights
and freedoms affirmed in the Bill of Rights Act.
1 Advice to Hon Christopher Finlayson QC,
Consistency with the New Zealand Bill of Rights Act 1990: Children, Young
Persons and Their Families (Oranga Tamariki) Legislation
Bill, 5 December
2016.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
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