Karen Chhour, Minister for Children and Act MP, is pushing through the repeal of section 7AA of the Oranga Tamariki Act. (Photo: RNZ / Angus Dreaver)

Last Monday, despite widespread opposition from within te ao Māori and the weight of evidence and official advice to the contrary, the controversial bill to repeal section 7AA of the Oranga Tamariki Act was introduced to parliament. 

On the same day, the Court of Appeal overturned a High Court decision, ruling that the Waitangi Tribunal was within its rights to summons the Minister for Children, Karen Chhour, as part of its inquiry into the government’s planned repeal of section 7AA.

It was a hollow victory. A few days before, the tribunal had delivered its urgent inquiry report into section 7AA, where it described the repeal as “rushed and arbitrary” and likely to cause “actual harm” to vulnerable children. But with the bill now before the house, the tribunal can’t go any further. 

Award-winning journalist Aaron Smale has researched and written extensively on Māori children in state care. In this essay first published in Newsroom, he breaks down the complex issues around section 7AA. 

He begins with the Waitangi Tribunal’s urgent inquiry in April.

 

Judge Michael Doogan managed to keep a poker face when the answer to his question landed.

“Did you receive any instruction or guidance from the minister about the Treaty consistency of this policy?” he asked Phil Grady, deputy chief executive of system leadership at Oranga Tamariki.

Grady’s mouth hung open in a pause as he looked towards the ceiling before he dropped a one syllable answer.

“No.”

The judge twiddled his pen while he pondered this revelation.

Judge Doogan was chairing an urgent inquiry before the Waitangi Tribunal, urgent inquiries not being granted lightly because of the tribunal’s already heavy schedule. One of the last urgent inquiries was in 2019, in response to Melanie Reid’s Newsroom documentary on Oranga Tamariki’s attempted removal of a newborn baby in a Hastings hospital, which led to six inquiries and outrage from Māori across the spectrum.

The questions he posed went to the heart of the urgent inquiry the tribunal was investigating. At issue was the government’s intention to remove a small section, 7AA, of the Oranga Tamariki Act, which requires the chief executive to ensure that the policies and practices of the department aim to reduce the disparities for Māori.

The section was introduced by the last National-led government, in part as a recognition that Māori children were disproportionately represented in the numbers of children Oranga Tamariki was removing from whānau. This recognition goes back decades, and the section also had provisions to work with iwi and Māori organisations to address the causes and come up with solutions to address issues that led to Māori whānau coming to the attention of the ministry. This government is going to remove that section of the legislation.

After a pause for Grady’s answer to sink in, Judge Doogan followed on with another question.

“Would it be fair for us to infer that the minister did not or may not have turned her mind to this question?”

After a pause to try to compose himself, Grady replied: “Um. It’s, it’s, it’s, it’s, it’s, it’s difficult for me to answer that question for the, for the, for the minister.” The judge twiddled his pen as Grady referred to various documents before conceding that “there wasn’t a discussion around the Te Tiriti elements.”

Judge Michael Doogan chaired the Waitangi Tribunal’s urgent inquiry into the repeal of section 7AA of the Oranga Tamariki Act.

On the tribunal panel was Kim Ngarimu who at one point zeroed in on Oranga Tamariki’s own analysis that found there were no benefits to repealing section 7AA.

“(The analysis) can’t identify any benefits of fully repealing section 7AA. In fact, it forms the view that full repeal would be worse than doing nothing. No benefits at all?” she asked Grady.

Grady: “To be honest, I’d like to be saying something different but the paper speaks for itself, and that’s what the analysis says.”

The disjuncture was impossible to reconcile because the minister in question, the Act Party’s Karen Chhour, didn’t turn up and didn’t respond directly to questions. (Neither did chief executive Chappie Te Kani.) The Waitangi Tribunal issued a summons to Chhour.

The evidence and the cross-examination showed that Chhour had come in with an election slogan that 7AA was race-based and had no place in the legislation. It also showed that the government’s intention to repeal the section was based on hearsay and anecdotes and there was no evidence to back up Chhour’s assertion it was driving reverse uplifts (the removal of children from foster parents who weren’t related to the child).

The tribunal politely asked various bureaucrats what the logic was behind the minister’s decision and how this process squared with both the evidence and the usual policy development process. This created an almost comical spectacle of public servants trying not to disrespect their boss, while essentially saying she didn’t know what she was talking about.

Under cross examination, it was shown that Chhour had been adamant the repeal was going to be implemented even before she’d got her feet under the desk, and showed a lack of interest in information or advice that might question the validity of her beliefs. She was involved in a draft cabinet paper that said the section should be repealed because it was ideologically driven, but two drafts later, this was changed to say the repeal was to improve practice. Given the repeal was based on anecdote rather than evidence, who exactly was ideologically driven?

While her refusal was supposedly based on cabinet confidentiality, she is a minister outside cabinet and her decisions were made well before it got anywhere near cabinet.

The best the bureaucrats could offer by way of explaining Chhour’s insistence on repealing the section, in the face of evidence and advice she’d been given to the contrary, was that she’d “heard stories”.

Race-based policy?

One of the arguments the Act Party has put up is that any policy that is “race-based” should go. This is one of the main reasons Act is arguing section 7AA should be repealed.

Act leader David Seymour has said the obsession with race is corrosive. Seymour seemed to talk a great deal about race during the election campaign, but wouldn’t front up to an interview with me when I requested to talk about some of his statements on this topic. Neither did Luxon. Or Hipkins. There were more important engagements, like photo-ops of eating sausage rolls.

What Act’s argument ignores is that the Crown has been imposing race-based policies on Māori from day one and those race-based policies were built on Pākehā supremacy. And those policies have had a particularly massive impact on Māori children. If you wanted a historical account of some of the Crown’s worst actions against Māori, you could legitimately structure it around the Crown’s abuse of children.

So this government has quite some work to do if it is race-based legislation it is wanting to eradicate.

The Native Land Court was set up around the same time as Native Schools, which shows the Crown was quite determined to restructure Māori society in the wake of the Land Wars.

The Native Land Court system was designed to individualise and alienate Māori land so it could be put on the market for Pākehā consumption. In other words, race-based land-grabs. The Waitangi Tribunal has issued dozens of reports that describe this exhaustively, based on documentary and oral evidence from iwi leaders and experts as well as historians.

In the wake of massive land loss and economic dislocation, Māori infant and child mortality rates rocketed, while the Crown largely stood idly by, making patronising statements about smoothing the pillow of a dying race.

The Māori population plummeted by as much as 60 percent over the late 19th and early 20th century, partly because of introduced diseases which were especially lethal when the Indigenous economy had been disrupted casting people into poverty. In some places, high child and infant mortality persisted into the 1950s. After all, if you believed Māori were a dying race, as many Pākehā leaders did, then why would there be a need to worry about Māori children dying?

The Māori Land Court still operates today and Māori still live with the race-based policies it embodied.

Native Schools were another Crown policy that harmed Māori children for generations. This was purely race-based. It was the Pākeha-dominated Crown imposing a system on Māori children that included inflicting violence and limiting the potential of students who went through it.

Native Schools in New Zealand, like similar institutions in Australia, Canada and the United States, were set up with the intention of pacifying and assimilating Indigenous children to prevent them growing up and resisting the Crown.

Those countries have all targeted Indigenous children as a way to reshape and erase Indigenous identity and social structures. The result has been the sorry stories that include the Indigenous residential schools of North America and the Stolen Generations of Australia. I’ve compared the numbers across those countries — which always raise issues due to the methods of data collection — but the picture that emerges is that New Zealand took more Indigenous children in a shorter space of time from a smaller population. And when you include institutions like Lake Alice hospital, we inflicted worse abuse.

This happened to children who weren’t Māori as well, and their suffering is no less egregious. But it does show that the policies Britain and her colonies inflicted on poor, working class families would eventually be turned on Indigenous communities and their children. Those policies are about containment and control. But they start with classification, whether that is economic classification or racial classification.

Māori children were beaten for speaking their mother tongue but also prepared for manual, low-paying occupations, which had long-term impacts for generations. Those impacts continue. The Native Schools were wound down in the 1960s, right at the time Māori urbanisation was peaking. But the Crown’s welfare system would be the next state institution to target Māori children.

Before World War Two there were virtually no Māori children in the state welfare system. By the end of the 1970s they made up 70-80 percent of the children in state custody. The Royal Commission of Inquiry into Abuse in Care is finding the majority suffered sexual, physical and psychological abuse. Many ended up in prison as adults. A high number formed gangs.

So the argument in 2024 that section 7AA stands out for being race-based ignores the global targeting of Indigenous children by countries including New Zealand.

Even the police here have had to recognise that their practices are racist (they use the word “biased”) and that Māori get treated differently at every stage of the criminal justice process, from apprehension, to arrest, to charging, conviction and sentencing.

Claims of Māori getting special treatment are nonsense, unless special treatment can be taken to mean worse treatment. Such views refuse to recognise the evidence of institutional racism. They don’t recognise it because some are quite happy for it to carry on. They also don’t want to acknowledge that section 7AA was inserted into the act by a National-led government, which was at least willing to recognise that the numbers were grossly unrepresentative and the Crown needed to do better.

I’ve encountered all of this in my professional life but it has also impacted me personally. I’ve had a claim before the Waitangi Tribunal for years about adoption and I was included in the urgent inquiry for the Oranga Tamariki hearing, where I gave oral evidence, and the 7AA hearing.

Section 19 of the Adoption Act says “no adoption in accordance with Māori custom shall be of any force or effect”. That’s race-based legislation — will Chhour and Seymour seek to repeal that aspect of the law?

The traditional Māori adoption referred to in the Adoption Act is referring to the common law practice of children being brought up by whānau members other than their immediate parents. In many cases, the first-born was brought up by grandparents. These kinds of practices are common not only to Māori but also throughout Polynesia and other cultures. The Crown said this had to stop. The wording in the Adoption Act is lifted virtually verbatim from the Native Lands Act 1909. As with other Native Lands Act provisions — which are race-based — this was about making Māori conform to European practices of individual land tenure and restructuring Māori society. European practices and beliefs were taken as the norm and Māori had to conform.

But why? It’s because Māori ways of doing things, whether economic practices like land tenure, or language or cultural practices like how to bring up children, were deemed to be foreign, and to be erased. This is the basis of colonisation and race-based.

The policy of closed adoptions was never actually part of the legislation; it was a random experiment carried out over one generation, before being abandoned. The experiment was based on the belief that children were some kind of blank slate and you could remove them and stick them wherever you pleased and it wouldn’t matter. This practice was imposed on Māori and their children who had practised their own form of adoption for more than 800 years, or longer if going back to antecedents in Polynesia.

Despite this, the actions of the Crown have been portrayed as neutral and somehow objective when they were built on the cultural and racial assumptions of people from Britain.

What all these examples underline — and there are plenty of others — is that when it comes to Māori children, the Crown cannot be trusted. It has a track record that led to violence and trauma for generations of Māori children. It has also stolen the future of generations of Māori children by stealing their economic base and robbing them of their potential through an education system that prepared them for the bottom rung of the economic ladder.

This continues in the present because there is no mechanism to stop it.

“Before World War Two, there were virtually no Māori children in the state welfare system. By the end of the 1970s, they made up 70-80 percent of the children in state custody. The Royal Commission of Inquiry into Abuse in Care is finding the majority suffered sexual, physical and psychological abuse. Many ended up in prison as adults. A high number formed gangs.” (Pictured: a group of children in Rotoroa, 1935. Photo by Fox Photos/Hulton Archive/Getty Images)

Crown Impunity

At the 7AA hearing, the Waitangi Tribunal respectfully and methodically tried to gain answers over the government’s intentions. It had asked the minister’s office to address its questions, but she did not respond directly. It ended up issuing a summons to Chhour, essentially compelling her to appear and answer the questions that government officials in the ministry couldn’t answer on her behalf.

There was much objection from Act leader David Seymour and New Zealand First minister Shane Jones that the tribunal would dare to compel a minister of the Crown to appear and be held accountable.

Jones said it wasn’t the place of the tribunal to question whether the Crown’s action conflicted with Te Tiriti. Actually, that’s its whole purpose. Its reports for the past 30-plus years have been about deciding whether the Crown’s policies and actions have breached the Treaty. Seymour suggested the tribunal might get ditched altogether.

Their words and attitude were so belligerent that Prime Minister Christopher Luxon, who was on an overseas trip, had to tell them to pull their heads in. Seymour didn’t seem inclined to listen.

But the attitude from Jones and Seymour reflects a wider issue: How does anyone hold the Crown accountable when it causes harm and even breaks its own laws, let alone breaches the Treaty of Waitangi? What is the mechanism for consequences for the Crown when it harms children?

When Jones and Seymour were granted their ministerial warrant by the Governor-General, did it include a stipulation that they or the Crown would be held accountable and legally liable for crimes committed in their name? If not, can they explain how the Crown is held accountable when such crimes are committed against children in the Crown’s custody. And this is not hypothetical — crimes of rape and torture have been committed against children in the Crown’s custody.

There’s a whole catalogue of examples of how the Crown, and those who populate its ranks, refuse to entertain a mechanism or institution that might hold it accountable for crimes committed by those working in its name. In many cases, ministers, lawyers and bureaucrats of the Crown have ignored or even attacked institutions and victims who try to hold them to account. Seymour and Jones are the latest examples.

I’ve spent the past eight years, tens of thousands of words and hours of broadcast time, reporting on these crimes. Through that coverage I’ve met dozens of victims who have not only suffered horrendous abuse at the hands of the state, but have also been ignored, attacked as liars in courts of law, and treated with utter disregard for the trauma they’ve suffered.

This government seems determined to create another generation of such victims because it refuses to contemplate a mechanism that might hold them accountable. No deterrent means no reason to stop.

MPs, bureaucrats and lawyers have deliberately and knowingly gone to great lengths to avoid responsibility for these crimes. One story I wrote catalogued a decades-long narrative of this in 13,000 words. I won’t inflict this on the reader (or editor) here, but there have been multiple ongoing examples since, which are even more egregious because they were done with full knowledge of past failures.

This is not about just Karen Chhour or the Act Party, or even this particular government. The Labour Party, which had an outright majority in the last term, chose to ignore the first report from the Royal Commission into Abuse in Care, an inquiry that Labour set up.

The previous National government refused to hold an inquiry into state abuse of children, possibly because it knew what it would find and didn’t want everyone to know. Jacinda Ardern called for the Royal Commission of Inquiry within 100 days of coming into government, but then ignored some of the most crucial recommendations from that commission that it could have immediately implemented.

Two recommendations that would have made a major difference were in the Royal Commission’s first report. It said the government should legislate that children in state custody should have a right to be free from abuse. You’d think this was obvious, but currently it’s not in our law. The second related recommendation was that if the state breached this right, the Crown should be legally liable, that is, it should actually face legal consequences for its failure.

Then Minister of Social Development, Carmel Sepuloni, did not know what report I was talking about when I spoke to her over the phone about this. She obviously hadn’t read the report and gave an incoherent response when asked repeatedly if that government was going to implement the recommendations. Then she hung up.

These recommendations stood out to me as a crucial and necessary change. One of the first interviews for the first story I did on state abuse was with Judge Carolyn Henwood. She was the chair of the Confidential Listening Service, which allowed victims to disclose their abuse. But the powers of the panel were limited in what it could do. When she came into the role, Judge Henwood, being a lawyer and judge, asked officials for the legal framework and what the duty of care was. To her horror she was told there wasn’t one. If there are no legal consequences for the Crown, then there’s no reason to clean up behaviour.

There still isn’t.

The legislation passed by Labour effectively gutted the Children’s Commissioner’s Office, possibly because the Children’s Commissioner Andrew Becroft early in his term was being a little too forthright and doing his job a little too well. There has been political interference in the Commissioner’s office for years. The Children’s Commission was the only specific institution exclusively focused on the wellbeing of children and has a large measure of independence. The changes Labour made undermined that.

The current government announced early this month that it would reverse the changes Labour made that undermined the Children’s Commission — changes then opposed by many, including Act, National and NZ First. The role will again be for one individual rather than a panel of five, and the separate Aroturuki Tamariki, the Independent Children’s Monitor, will be a Crown agency rather than housed under the Education Review Office.

But will the government embed in law the Royal Commission’s recommendations that the Crown should be legally liable for abuse of children in its custody? To go after section 7AA while ignoring these other issues shows their claim to be concerned about child welfare can’t be taken seriously.

Victims have taken civil cases and criminal cases against the Crown and/or its employees but to date no one has been held accountable for the systemic failure that led to known crimes.

The Crown has even tried to stifle media coverage of the Crown’s actions against children.

When Melanie Reid’s story on the Hawke’s Bay uplift of a baby from hospital broke, the Crown tried to shut it down with lawyers, which didn’t work. The story led to a number of inquiries including by the Waitangi Tribunal, the Ombudsman and the Children’s Commissioner. All of the resulting reports were damning.

After a follow-up story that Reid did on reverse uplifts — the removal of children placed in foster homes — Crown Law effectively suppressed the story by obtaining a High Court injunction and referred Newsroom to the police, resulting in district court criminal charges. That injunction has now been overturned by the Court of Appeal and this is likely to lead to the criminal charge being withdrawn.

Solicitor-General Una Jagose sought the injunction against Reid as Newsroom was in discussions with her Crown Law solicitors to try to address their legal concerns about the video story.

No matter how you try and hold the Crown accountable for the abuse of children — through the courts, the police, the Children’s Commission, a royal commission, the media, the Waitangi Tribunal — the Crown will always find a way to dismantle or ignore a mechanism that might be used to try and hold it accountable.

The Royal Commission of Inquiry into Abuse in Care recommended in its first report that the government should legislate that children in state custody have a right to be free from abuse. The second related recommendation was that, if the state breached this right, the Crown should face legal consequences for its failure. Pictured, Governor-General Dame Cindy Kiro formally receiving the report of the Royal Commission’s inquiry on Lake Alice, in December 2022, from Judge Coral Shaw.

Crown ignorance

It’s alarming enough that there’s no way to hold the Crown accountable for serious crimes committed against children. It’s even more alarming when the Crown’s current ministers make statements about their intentions that show a lack of knowledge.

Chhour’s main argument for repealing section 7AA is that it was being used as a justification for “reverse uplifts”, the removal of children in foster home situations that were supposed to be “forever homes” (ironically, it was a story on this subject by Melanie Reid that was the subject of the injunction by the Crown and criminal charges). The government officials were clear in their evidence before the Waitangi Tribunal that internal reviews had found that 7AA was not what was driving these uplifts.

I did a lengthy investigation for North & South magazine that focused on these “forever homes”. The term has changed several times and is policy jargon rather than an actual legal term. Other versions of the same thing are “Home for Life” and “Permanent Placements”. I was concerned about these terms when I first came across them, because I know closed adoptions were a policy whim, not a legal requirement.

Melanie Reid called me when she was editing the first story on the baby uplift in Hawke’s Bay and described to me what sounded like a version of adoption. But Oranga Tamariki avoid using the term adoption because that has a legal process that this practice doesn’t adhere to in even the most basic way.

As flawed as legal adoption is, there is at least a clear legal pathway and the child has a clear legal status at the end of it. A birth mother signs away her parental rights, these rights are transferred to the adoptive parents by the state, and eventually an adoption order is signed off by the courts that extinguished the birth parents’ rights and grants a new birth certificate to the child that recognises the adoptive parents “as if” they are the actual biological parents.

The “Home for Life” policy and its various iterations takes a completely different pathway that creates a legal ambiguity and uncertainty. It uses the powers of the Oranga Tamariki Act to remove children at risk — so it is done coercively and without the parent’s legal consent — and, at that stage, the child is under the custody of the state. But then there’s a switch, where the child is put in a foster home, and at some point the child is moved out of the state’s custody and their legal status comes under the Care of Children Act (COCA).

This legislation was originally designed to address custody disputes when parents split, to decide who gets custody of the children and under what conditions. However, Oranga Tamariki appears to be using COCA to get children off its books (reducing the statistics) and as a way of placing children in permanent foster homes. This legislation does not give foster parents absolute custody. The parental rights of the birth parents are not entirely extinguished as they are in adoption.

It seemed to me that Oranga Tamariki used this cobbled together legal pathway to avoid the Adoption Act and the issue of the lack of legal consent. This leaves the child in a legal limbo in terms of who is their legal parent. They had a legal guardian in their foster parents and it was supposedly permanent, but legally it was subject to challenge. Which is why there were reverse uplifts happening.

Oranga Tamariki could save money because foster parents were footing most of the bill. Weirdly, these foster parents seemed to be able to access more funding for things like clothes and other necessities than the birth parents, who were usually poorer. For the Crown, it solved a problem of children languishing in long-term care or bouncing between multiple placements. It also cut down the financial cost.

Some of the documents I obtained related to when the Home for Life policy was first developed under Paula Bennett. They showed there were couples wanting to adopt but they were told there was little chance of a child becoming available because it required a birth parent to give consent to their parental rights being extinguished. Because of this lack of supply, many of these couples wanting to adopt were then shepherded towards the Home for Life option.

The documents identified an issue where these couples would be given a child (or children) under the Home for Life arrangements but they held a false understanding and expectation that they had absolute legal custody of the child.

When the arrangement is being given titles like “Home for Life”, “Permanent Placements” and “Forever Homes”, it’s easy to see how this misunderstanding could arise. But these titles were false promises from a legal perspective that the state couldn’t actually deliver on.

If a birth parent fought to get their child back, and many did, then because their parental rights had never been extinguished, the courts would often decide that the child had to be returned to their birth parents. The birth parent might have addressed the issues that led to the child being taken in the first place, such as drug addiction, and desperately wanted to be reunited with their child, a child they have never legally relinquished. But judges were giving inconsistent decisions on this based on how long a child had been with foster parents, which caused distress.

So, when Karen Chhour says she’s “heard stories”, she’s likely hearing them from these foster parents who are living under a well-intentioned delusion that the children they are caring for are permanently, legally theirs. They’re not. A top family court lawyer told me there are only a few rare exceptions where the courts will completely extinguish birth parents’ rights. They still retain legal rights to be involved in their children’s lives, regardless of the feelings of the foster parents. Some foster parents are irritated by what they consider an intrusion into what they had expected were akin to exclusive property rights.

The Crown is the one that has created this mess, but it is not the one bearing the consequences. And the problem was not created by a legal commitment to uphold the Treaty of Waitangi. In fact, you could argue that removing that commitment will give even less protection to Māori children who are being shunted around in this legal quagmire.

A further complication is that a number of permanent foster parents were from overseas, but no one seems to know how many and to what extent children were being taken out of the country. I spoke to university researchers, lawyers and child advocates, who had tried to get numbers on how many were in these arrangements and how many were being taken out of the country. No one could give definitive numbers, largely because they were off Oranga Tamariki’s books and didn’t exist statistically. I asked Oranga Tamariki and the minister’s office about the numbers and couldn’t get an answer. They simply didn’t know. One former Oranga Tamariki social worker gave evidence at the Waitangi Tribunal hearing and described it as child trafficking.

I’d hazard a guess that the SPCA would have better numbers on dogs it has adopted out than Oranga Tamariki has on children it has placed in permanent placements.

Removing section 7AA would actually remove a mechanism for challenging this, because, more often than not, the child in question is Māori. There are examples overseas of people discovering years later that their adoption amounted to theft. Their birth families were often poor and Indigenous and the state exploited their vulnerability.

As someone who is adopted, I found these permanent placements alarming. The Crown is effectively creating ticking human time bombs. When these children grow up and find out — and they will — that they were taken from their birth parents without consent and that the status of their foster parents is a tenuous legal construct, it is going to cause major distress.

The Crown can expect to have civil litigation around this practice in coming decades, likely referencing international law. There’s the Hague Convention on international adoption, for a start, not to mention UN Conventions that apply.

Chhour seems either unwilling or incapable of looking at these wider issues and putting 7AA in this wider context. But then it seems a number of ministers in this government, including the prime minister, have that problem.

Christopher Luxon recently made the statement that: “We want to make sure that actually social workers understand legislatively that the obligation is to place children in good homes. As to what ethnicity those families or those foster parents may be, is largely irrelevant.”

This statement shows some ignorance. I was adopted by good parents and grew up in a good home. That didn’t stop the damage that adoption caused. And, yes, Mr Luxon, being Māori did exacerbate it. My adoptive father said to me years ago that my sister and I shouldn’t have been taken from our families, meaning our birth families. He said this because he’d seen the damage adoption had caused us.

It was the most selfless thing anyone could say and was a huge relief to hear him recognise what we’d been through. He wasn’t saying he didn’t want us, but our wellbeing included far more than a roof over our head, food on the table and decent adults to love and care for you. That’s the baseline that every child deserves and they’d done everything to provide those. But it doesn’t include intangibles that can’t be explained to someone who hasn’t been through it. Contrary to Luxon’s view, our birth whānau were Māori and our connections to our whānau had been severed and this had caused harm.

I wasn’t aware for a good deal of my life how deeply damaging the process of adoption had actually been. I didn’t realise that I had lived with a constant high levels of anxiety that was caused by trying to read people that I simply wasn’t like, trying to avoid the great fear of rejection that seems to be so common to those who are adopted. I didn’t know because it was so ingrained that it was my normal.

Then I found out I had a sister I didn’t know about who was also adopted. When meeting her, the anxiety suddenly subsided. The constant grinding anxiety of trying to read strangers dissipated — here was someone who I was not only like in many ways, but who also had lived with the life-long reality of adoption. I didn’t have to try and work her out. We were technically strangers but there was an instant recognition.

We’d both experienced being brought up by decent people who cared about our wellbeing. But they could not replace what we’d lost in the process of adoption. It doesn’t matter how wonderful the strangers are and how much they become the only caregivers you know, the loss experienced in that process does not go away.

This is not just a New Zealand story — the removal and abuse of Indigenous children by colonising states is common the world over.

The loss caused by adoption is common whatever your racial background, but it is particularly acute when you are from a group that has been dispossessed by colonisation. You are being dispossessed of your very identity on top of everything your people have lost. After stripping your people of their lands and culture, the state takes away your very being. Colonisation is partly about erasing the identity and collective existence of whole groups of people. The removal of Indigenous children simply completes that process.

There seems to be a lack of awareness of this history within the current government. Minister of Justice Paul Goldsmith was dismissive when it was pointed out to him that most gang members in the Black Power and Mongrel Mob had been wards of the state as children. The state was their parent.

“Gangs have fed on misery and have contributed to what is multi-generational trauma and difficulties. Just because you’re a ward of the state is no excuse for engaging in violent crime,” Goldsmith said.

But the Crown, of which Mr Goldsmith is a minister, has inflicted more violence on children and caused more intergenerational harm than any gang.

“Minister of Justice Paul Goldsmith was dismissive when it was pointed out to him that most gang members in the Black Power and Mongrel Mob had been wards of the state as children. The state was their parent . . . The Crown has inflicted more violence on children and caused more intergenerational harm than any gang.” (Photo: RNZ)

The Crown has a whole agency that holds powers to take children from their parents, supposedly for their own safety and welfare. Of course, there is a rationale for this — if a parent or caregiver is harming a child, then society has decided that the state should be able to intervene in the interests of that child. But I think most reasonable people would expect that those powers are granted on the assumption that the state does a better job. However, the state has not just abused one or two children or even 10. It has abused tens of thousands.

But how does anyone, including those victims, hold the Crown responsible? What are the consequences for the Crown when it causes such trauma on such a massive scale? What are the mechanisms to stop the Crown? The Crown can cause harm and awards itself carte blanche impunity.

The problem for the Crown is that it can restructure or remove all sorts of other institutions and legislation to kill off accountability, but it can’t get rid of the Treaty of Waitangi. Ministers like Jones and Seymour can exercise the authority of the Crown but don’t want to recognise aspects of the Treaty which the Crown’s authority is supposedly built on. Or they interpret the Treaty in ways that make a good media soundbite, and which media rarely question seriously, but have no basis in law or history.

Both ministers have whakapapa to Ngāpuhi who have always maintained they never ceded sovereignty. The Waitangi Tribunal has exhaustively researched this claim and agreed with Ngāpuhi’s position. The Americans ditched the British Crown in their revolution, seeing it as a tyranny. We’ve held on to that structure and institution and it affects every action, decision and the attitudes of its ministers and so-called public servants. They operate on the assumption of immunity.

Around a quarter of the children in this country are Māori. If we continue to ignore the disparities that afflict those children then it affects all of us. Pākehā numbers are in decline. Māori numbers are growing. It’s in the national interest to make sure the next generation of Māori children are supported and nurtured in every way instead of being targeted and harmed by the Crown.

The High Court decision

Back to the stoush between the Waitangi Tribunal and the Crown over the summons issued to Karen Chhour. True to form, the Crown was highly concerned to protect itself and its ministers from any real independent scrutiny or accountability and took the matter to the Wellington High Court for a judicial review.

One of the arguments was that the different branches of government should show mutual respect and comity, which was a bit hard to sustain when weighed against Seymour and Jones’s statements.

The whole argument that the summons breached the separation of powers is academic, when victims of the Crown’s abuse of power have nowhere to go to hold it to account. The Waitangi Tribunal was trying to exercise its powers to hold the Crown accountable

Nobody seemed to note the irony of an Australian constitutional expert giving evidence on behalf of the New Zealand Crown. He referred to the summons as “coercive”.

An even greater irony was Solicitor-General Una Jagose standing up in the High Court and defending the Crown on this matter. If there is any one person who has been deeply involved in defending the Crown against allegations of the abuse of children in state custody, it is Una Jagose.

Before her appointment as Solicitor-General she was personally involved for years in defending the Crown when victims had tried to hold the Crown accountable for abuse they suffered while in the custody of the state. Evidence and files showed abuse occurred, yet the defence of the Crown position had to go on.

Jagose has been called to give an account of this in recent years. Under cross examination before the Royal Commission of Inquiry into Abuse in Care, she admitted on behalf of the Crown that what happened at Lake Alice met the UN’s definition of torture. She further admitted that the Crown had always known this because the evidence was in the file.

“Under cross examination before the Royal Commission of Inquiry into Abuse in Care, [the Solicitor-General] admitted on behalf of the Crown that what happened at Lake Alice met the UN’s definition of torture. She further admitted that the Crown had always known this because the evidence was in the file.” (Pictured, the now derelict Lake Alice hospital. Public Domain/Pawful)

Despite Jagose knowing all this, when the police requested the specific categories of files from Crown Law in 2020,  not all this evidence was provided to them. The police request came about because the UN had found New Zealand in breach of the Convention Against Torture for its failure to investigate Lake Alice. So it opened up a fourth investigation and found that, contrary to its previous statements, there was a mountain of evidence that crimes had been committed and the perpetrators should have been prosecuted.

But much of this evidence was not provided to the police in the initial investigation started in 2002, and then crucial documents were not provided to the police when requested in 2020. This was Crown Law.

In her response to a Law Society complaint about this failure, Jagose acknowledged that Crown Law had recognised the documents in question were within the scope of the police request, but Crown Law didn’t hand them over and she can’t explain why. That is straining credulity. Why was the reason for this decision not documented?

It should be emphasised here that Crown Law holds the authority to prosecute crimes and yet it has withheld evidence of crimes from police and other authorities. Over decades, Crown Law has repeatedly prioritised the Crown’s interests over the interests of children in the state’s custody. And ministers in cabinet have signed off on this legal strategy.

So this is the Crown that appeared in the High Court in Wellington to argue that one of its ministers shouldn’t have to appear in front of an inquiry to explain the repeal of a piece of legislation that is designed to protect Māori children from the Crown.

The judge found the summons was lawful but unnecessary in this particular case and set it aside.

Despite this, the Waitangi Tribunal carried on with its inquiry and released an urgent report that said: “In light of the possibility that the Bill may soon be introduced, we think this is the right time to raise three matters with the government in the hope they may consider them before taking final decisions on how to proceed.”

The three issues the tribunal raised were that the coalition government had “disregard[ed] its obligations” under the Treaty of Waitangi, and that the repeal of section 7AA would “cause actual harm”, and there was “a more principled way forward”.

While Chhour dodged the summons, the High Court judge found Chhour’s decision to not provide information to the tribunal herself was disrespectful to the Waitangi Tribunal and the position she found herself in was of her own doing.

“The Tribunal cannot be criticised for resorting to a summons in these circumstances, given its repeated and measured requests for the Minister’s response. As a member of the executive Government, she might be expected to demonstrate the same respect and restraint she now seeks from the Tribunal. For this reason, in large part the difficulty the Minister now finds herself in is in my view a consequence of her own decision.”

Only a couple of weeks earlier in the same High Court, a woman was remanded in custody on charges of failing to protect two children she knew to be at risk of serious harm.

If that standard was applied to members of the Crown, a number of people in Wellington would be behind bars with her. But it isn’t and they won’t be.

The High Court case was dubbed a constitutional crisis by various media. But what it really showed was a major constitutional flaw that the Crown doesn’t want to fix: it’s baked into our constitutional structure that there is no serious way to hold the Crown accountable for committing crimes against children in the custody of the state.

Aaron Smale is an award-winning journalist who has written extensively on Māori children in state care. Aaron was associate editor for Mana magazine, and has covered te ao Māori issues for a number of news media platforms including RNZ, Newsroom and North & South. Twitter: @ikon_media.

This essay was originally published in Newsroom and is republished here with permission.

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