Contracting for social and welfare services : the changing relationship between government and the voluntary sector in New Zealand

<p>Ten years ago, the provision of government funding for the social and welfare services delivered by voluntary sector service providers was a simple process. In evidence presented to the Waitangi Tribunal in support of a claim by a Charitable Trust against the actions of the New Zealand Community Funding Agency heard last year, a witness who was employed by the Department of Social Welfare from early in 1988 describes the process at that time thus: The Department of Social Welfare has operated funding programmes for many years...these programmes were grant funding. That is there was no contracting nor reporting as presently known. Also they were operated on a Head Ofiice Wellington decision on the recommendation of a small team (3 or 4 people based in a Regional OfiBce Auckland).(Crown Law Office, 1994 c, 6) This simple process has, in the last decade, been replaced by a funding relationship between government and the voluntary sector which owes its origins primarily to theory emanating from the study ofthe operation of private markets and the internal organisation of firms within the marketplace. Agency theory and Transaction costs analysis, along with other theoretical perspectives from the world ofthe private business sector, have had a substantial influence upon the restructuring ofthe public sector in New Zealand during the last decade and in particular have provided the theoretical basis for the transformation of the relationship between government and the voluntary sector into one of principal and agents, bound by contractual terms and a regulatory framework for the monitoring of quantity and quality of social and welfare service outputs.</p>

Contracting for social and welfare services : the changing relationship between government and the voluntary sector in New Zealand

<p>Ten years ago, the provision of government funding for the social and welfare services delivered by voluntary sector service providers was a simple process. In evidence presented to the Waitangi Tribunal in support of a claim by a Charitable Trust against the actions of the New Zealand Community Funding Agency heard last year, a witness who was employed by the Department of Social Welfare from early in 1988 describes the process at that time thus: The Department of Social Welfare has operated funding programmes for many years...these programmes were grant funding. That is there was no contracting nor reporting as presently known. Also they were operated on a Head Ofiice Wellington decision on the recommendation of a small team (3 or 4 people based in a Regional OfiBce Auckland).(Crown Law Office, 1994 c, 6) This simple process has, in the last decade, been replaced by a funding relationship between government and the voluntary sector which owes its origins primarily to theory emanating from the study ofthe operation of private markets and the internal organisation of firms within the marketplace. Agency theory and Transaction costs analysis, along with other theoretical perspectives from the world ofthe private business sector, have had a substantial influence upon the restructuring ofthe public sector in New Zealand during the last decade and in particular have provided the theoretical basis for the transformation of the relationship between government and the voluntary sector into one of principal and agents, bound by contractual terms and a regulatory framework for the monitoring of quantity and quality of social and welfare service outputs.</p>

Contracting for social and welfare services : the changing relationship between government and the voluntary sector in New Zealand

<p>Ten years ago, the provision of government funding for the social and welfare services delivered by voluntary sector service providers was a simple process. In evidence presented to the Waitangi Tribunal in support of a claim by a Charitable Trust against the actions of the New Zealand Community Funding Agency heard last year, a witness who was employed by the Department of Social Welfare from early in 1988 describes the process at that time thus: The Department of Social Welfare has operated funding programmes for many years...these programmes were grant funding. That is there was no contracting nor reporting as presently known. Also they were operated on a Head Ofiice Wellington decision on the recommendation of a small team (3 or 4 people based in a Regional OfiBce Auckland).(Crown Law Office, 1994 c, 6) This simple process has, in the last decade, been replaced by a funding relationship between government and the voluntary sector which owes its origins primarily to theory emanating from the study ofthe operation of private markets and the internal organisation of firms within the marketplace. Agency theory and Transaction costs analysis, along with other theoretical perspectives from the world ofthe private business sector, have had a substantial influence upon the restructuring ofthe public sector in New Zealand during the last decade and in particular have provided the theoretical basis for the transformation of the relationship between government and the voluntary sector into one of principal and agents, bound by contractual terms and a regulatory framework for the monitoring of quantity and quality of social and welfare service outputs.</p>

Contracting for social and welfare services : the changing relationship between government and the voluntary sector in New Zealand

<p>Ten years ago, the provision of government funding for the social and welfare services delivered by voluntary sector service providers was a simple process. In evidence presented to the Waitangi Tribunal in support of a claim by a Charitable Trust against the actions of the New Zealand Community Funding Agency heard last year, a witness who was employed by the Department of Social Welfare from early in 1988 describes the process at that time thus: The Department of Social Welfare has operated funding programmes for many years...these programmes were grant funding. That is there was no contracting nor reporting as presently known. Also they were operated on a Head Ofiice Wellington decision on the recommendation of a small team (3 or 4 people based in a Regional OfiBce Auckland).(Crown Law Office, 1994 c, 6) This simple process has, in the last decade, been replaced by a funding relationship between government and the voluntary sector which owes its origins primarily to theory emanating from the study ofthe operation of private markets and the internal organisation of firms within the marketplace. Agency theory and Transaction costs analysis, along with other theoretical perspectives from the world ofthe private business sector, have had a substantial influence upon the restructuring ofthe public sector in New Zealand during the last decade and in particular have provided the theoretical basis for the transformation of the relationship between government and the voluntary sector into one of principal and agents, bound by contractual terms and a regulatory framework for the monitoring of quantity and quality of social and welfare service outputs.</p>

The contra proferentem rule in the reports of the Waitangi Tribunal

<p>This paper examines the Waitangi Tribunal’s application of the contra proferentem rule, a rule developed by United States courts for the interpretation of treaties with Native Americans. The Waitangi Tribunal adopted the Unites States courts’ approach in one of its earliest reports when interpreting the Treaty of Waitangi and has held on to it ever since, even though it is less prominent in the later reports. As a survey of Tribunal reports reveals, the Tribunal has used the contra proferentem rule to different effects. A comparison of the circumstances surrounding the treaties with Native Americans in the United States and the signing of the Treaty of Waitangi however reveals crucial differences that make an interpretation of the Treaty contra proferentem inappropriate. Given that the Treaty is essentially the text in the Māori language, this paper argues, it should be interpreted as a Māori document, that is to say in the Māori oral and cultural context of the Treaty signings. This however is something that the Tribunal only very rarely attempts.</p>

The contra proferentem rule in the reports of the Waitangi Tribunal

<p>This paper examines the Waitangi Tribunal’s application of the contra proferentem rule, a rule developed by United States courts for the interpretation of treaties with Native Americans. The Waitangi Tribunal adopted the Unites States courts’ approach in one of its earliest reports when interpreting the Treaty of Waitangi and has held on to it ever since, even though it is less prominent in the later reports. As a survey of Tribunal reports reveals, the Tribunal has used the contra proferentem rule to different effects. A comparison of the circumstances surrounding the treaties with Native Americans in the United States and the signing of the Treaty of Waitangi however reveals crucial differences that make an interpretation of the Treaty contra proferentem inappropriate. Given that the Treaty is essentially the text in the Māori language, this paper argues, it should be interpreted as a Māori document, that is to say in the Māori oral and cultural context of the Treaty signings. This however is something that the Tribunal only very rarely attempts.</p>

The Honour of the Crown: Giving Effect to the True Purpose of the Treaty of Waitangi

<p>The Treaty was a constitutional agreement entered into by Maori, then sovereign of New Zealand, and the British Crown. The purpose of intention of this agreement was to enable both parties – Maori and the Crown – to share public power over Aotearoa, New Zealand. This paper refers to this purpose as the kawanatanga-tino rangatiratanga relationship, or dual sovereignty. This purpose has been derived from the Maori version of the Treaty, according to the Maori legal system which governed New Zealand at the time. This purpose has not been given effect to, instead our constitution holds the Crown as the sovereign, and Maori are mere subjects of the Crown. This arrangement allowed the Crown to introduce their colonial legal system that enabled them to attain Maori land through war, confiscation and other means throughout the 19th and early 20th centuries. This in turn has created a “cycle of grievance” among our Maori community which keep Maori oppressed, claiming rights from the Crown which can be given, but are often taken away again or breached, depending on the political leanings of the day. The only way we can end this cycle of grievance, and restore legitimacy to our constitution, and restore Maori to their intended constitutional position of sovereign Treaty partner, alongside the Crown. While this proposal may seem very radical, it is argued that New Zealand has been heading towards dual sovereignty through an “organic” revolution known as the Maori Renaissance that began in the 1970s. This paper will trace this “organic” revolution pointing to three specific institutions as examples of movement towards dual sovereignty: the Waitangi Tribunal, the Treaty Settlements process and the Treaty Principles. It is argued that while these institutions have made some incredible advances for Maori rights, they remain confined by our current constitutional arrangements that recognise the Crown as the only sovereign. This paper argues that what is needed as the next step in this organic revolution, is to step outside of our current constitutional arrangements and give effect to the true intention of the Treaty. This paper thus reflects on the historical context in and the Maori legal system in which the Treaty was signed. This paper then explains how we might be able to achieve this through the courts by invoking the doctrine of the honour of the Crown and adopting Dr Carwyn Jones’ theory of a ‘constitutional korero’. The honour of the Crown is a common-law doctrine that requires the Crown to honour its constitutional obligations. It recognises colonial governments as part of a special nation-to-nation relationship with indigenous peoples and can therefore give effect to the indigenous legal system and world-view that our current institutions cannot do. In this way it can perform as a limit on the Crown and its Parliamentary Supremacy. It is argued that realistically the courts may invoke this doctrine to enforce obligations made by the Crown to iwi through the recent Treaty Claims Settlements legislation. It is argued, however, that in keeping with this organic revolution, an eventual court may one day invoke the doctrine to enforce Article 2 of the Treaty of Waitangi itself and dual sovereignty may be achieved.</p>

The Honour of the Crown: Giving Effect to the True Purpose of the Treaty of Waitangi

<p>The Treaty was a constitutional agreement entered into by Maori, then sovereign of New Zealand, and the British Crown. The purpose of intention of this agreement was to enable both parties – Maori and the Crown – to share public power over Aotearoa, New Zealand. This paper refers to this purpose as the kawanatanga-tino rangatiratanga relationship, or dual sovereignty. This purpose has been derived from the Maori version of the Treaty, according to the Maori legal system which governed New Zealand at the time. This purpose has not been given effect to, instead our constitution holds the Crown as the sovereign, and Maori are mere subjects of the Crown. This arrangement allowed the Crown to introduce their colonial legal system that enabled them to attain Maori land through war, confiscation and other means throughout the 19th and early 20th centuries. This in turn has created a “cycle of grievance” among our Maori community which keep Maori oppressed, claiming rights from the Crown which can be given, but are often taken away again or breached, depending on the political leanings of the day. The only way we can end this cycle of grievance, and restore legitimacy to our constitution, and restore Maori to their intended constitutional position of sovereign Treaty partner, alongside the Crown. While this proposal may seem very radical, it is argued that New Zealand has been heading towards dual sovereignty through an “organic” revolution known as the Maori Renaissance that began in the 1970s. This paper will trace this “organic” revolution pointing to three specific institutions as examples of movement towards dual sovereignty: the Waitangi Tribunal, the Treaty Settlements process and the Treaty Principles. It is argued that while these institutions have made some incredible advances for Maori rights, they remain confined by our current constitutional arrangements that recognise the Crown as the only sovereign. This paper argues that what is needed as the next step in this organic revolution, is to step outside of our current constitutional arrangements and give effect to the true intention of the Treaty. This paper thus reflects on the historical context in and the Maori legal system in which the Treaty was signed. This paper then explains how we might be able to achieve this through the courts by invoking the doctrine of the honour of the Crown and adopting Dr Carwyn Jones’ theory of a ‘constitutional korero’. The honour of the Crown is a common-law doctrine that requires the Crown to honour its constitutional obligations. It recognises colonial governments as part of a special nation-to-nation relationship with indigenous peoples and can therefore give effect to the indigenous legal system and world-view that our current institutions cannot do. In this way it can perform as a limit on the Crown and its Parliamentary Supremacy. It is argued that realistically the courts may invoke this doctrine to enforce obligations made by the Crown to iwi through the recent Treaty Claims Settlements legislation. It is argued, however, that in keeping with this organic revolution, an eventual court may one day invoke the doctrine to enforce Article 2 of the Treaty of Waitangi itself and dual sovereignty may be achieved.</p>

Te Reo Maori as a Language of New Zealand Law: The Attainment of Civic Status

<p>In July 2011 the Waitangi Tribunal released Wai 262, its report on the indigenous flora and fauna claim. In the report, the Tribunal signalled "a deep-seated fear for the survival of te reo" and found that the language was in a state of "renewed decline". To date, revitalisation initiatives have focussed largely on stemming language decline in the community. Comparatively little attention has been given to the need to develop te reo Māori in the civic life of the state; in particular, as a language of law and legal process. This dissertation argues that if te reo Māori is to survive in the 21st century, it must develop as a fully functional language of New Zealand law. This dissertation critiques the domestic and international instruments that protect the right to use te reo Māori in civic contexts, and identifies three developments that are necessary for te reo Māori to achieve full functionality as a legal language. The first is the provision of an unqualified right to use Māori in the law-making process. The second is the use of Māori in the substantive enactment of law. The third is a principled and consistent approach to drafting and interpreting Māori words and provisions in statutes.</p>

Te Reo Maori as a Language of New Zealand Law: The Attainment of Civic Status

<p>In July 2011 the Waitangi Tribunal released Wai 262, its report on the indigenous flora and fauna claim. In the report, the Tribunal signalled "a deep-seated fear for the survival of te reo" and found that the language was in a state of "renewed decline". To date, revitalisation initiatives have focussed largely on stemming language decline in the community. Comparatively little attention has been given to the need to develop te reo Māori in the civic life of the state; in particular, as a language of law and legal process. This dissertation argues that if te reo Māori is to survive in the 21st century, it must develop as a fully functional language of New Zealand law. This dissertation critiques the domestic and international instruments that protect the right to use te reo Māori in civic contexts, and identifies three developments that are necessary for te reo Māori to achieve full functionality as a legal language. The first is the provision of an unqualified right to use Māori in the law-making process. The second is the use of Māori in the substantive enactment of law. The third is a principled and consistent approach to drafting and interpreting Māori words and provisions in statutes.</p>