The Government has declined calls to stop progress on the bill until the Royal Commission of Inquiry into Abuse in Care has reported back. Photo / Mark Mitchell
The most trenchant opponents of a bill involving the Children's Commission have suggested that successive commissioners have annoyed Governments so much that it moved to emasculate the office.
There is no evidence that such pettiness has motivated changes proposed by the Government – although commissioners have definitely annoyed various governments at various times.
And the contentious bill, the Oversight of Oranga Tamariki System and Children and Young People's Commission Bill, involves much more than the Children's Commission.
It is about the monitoring system and complaints system for children in state care, and the advocacy of children generally, and whether the roles should be handled by separate bodies or by one outfit.
It is rare for Government legislation to attract as much broad opposition as the bill did when it was first introduced. Of the 374 written submissions, only eight supported it, 55 expressed no opinion and 311 opposed it.
The bill has been reported back from the social services select committee with some important changes approved by Social Development Minister Carmel Sepuloni, but not enough to placate the current Children's Commissioner, Frances Eivers, who issued a withering attack, questioning how the public could have trust in the Government.
What are the biggest complaints about the bill?
The two most common gripes about the bill as introduced were first, that it replaced the position of a single named and identifiable Children's Commissioner with a board of up to six commissioners and second, that the newly established unit to monitor Oranga Tamariki would not be housed within the Office of the Children's Commissioner. Oranga Tamariki is the Ministry for Children, the organisation which replaced Child Youth and Family and is responsible for children in state care and for some young offenders.
Has the select committee responded to the gripes?
Yes and no. The committee recommended there now be a named and identifiable Chief Children's Commissioner who will head a board of up to six commissioners. That should address many concerns about having a figurehead that young people in particular can identify as their person. But the committee has not budged on calls to transfer the independent monitoring of Oranga Tamariki to the Office of the Children's Commissioner.
At its essence, what does the bill do?
At present, the Office of the Children's Commission has broad responsibility for advocacy for children and young people, whether in state care or not, and for monitoring the system and oversight of complaints. The bill separates those functions and makes the Children's Commission responsible for advocacy, the Ombudsman responsible for complaints (serious but non-criminal) and it says the agency conducting the Independent Monitoring of Oranga Tamariki should be hosted by the Education Review Office (ERO), which is itself on monitoring agency of the education system. The Cabinet has accepted the view that it is better to separate the advocacy role from the monitoring role to avoid any conflicts. Opponents say it is unnecessary fragmentation and it would be better to have all functions under one roof.
How has the Children's Commission handled its monitoring and complaints duties in the past?
This is part of the problem. There is no doubt that the Office of the Children's Commission has accentuated its advocacy role as it has evolved, particularly in regard to highlighting issues around child poverty. While the Children's Commission currently has the power to accept complaints and conduct investigations, it has not done so. It is being stripped of powers it does not use. Between January 2015 and February 2022, the Office of the Children's Commission referred 78 complaints to the Ombudsman, Sepuloni told Parliament last week. The Children's Commission's last formal investigation into a complaint occurred in 2010. But it has done many reports. It recently conducted an inquiry into baby uplifts by Oranga Tamariki (as did the Ombudsman), a report into non-bullying schools, what makes a good life for disabled children, and children's rights in the Covid-19 response.
So under the bill, will the Children's Commissioner be prevented from conducting inquiries into matters it thinks important?
No. It won't be responsible for specific monitoring of Oranga Tamariki's national care standards or specific complaints from, for example, a child in care or a family member. But under the bill, the Children's Commission has powers for "inquiring generally into, and reporting on, any systemic matter, including (without limitation) any legislation or policy, or any practice or procedure, that relates to or affects the rights, interests, or well-being of children and young people". It will also have the power to compel people to require documents to be produced in support of such inquiries.
What does the independent children's monitor do?
In July 2019, a set of national care standards came into force that sets out what to expect when a child goes into care. They are designed to set standards for the quality of care and cover such areas as needs assessments for children, caregiver approval and support, and transitions between placements. Under a previous bill, the Ministry of Social Development was given responsibility for setting up an independent children's monitor unit to take charge of monitoring Oranga Tamariki, a unit that will be shifted out of MSD eventually.
How does the bill change the monitoring?
The current bill will establish the statutory position of Independent Monitor who will be the chief executive of the independent children's monitor when it is hosted by ERO. The Independent Monitor must provide their reports to the relevant ministers and chief executives as well as to the Children's Commissioner and Ombudsman.
The Children's Commission currently monitors conditions in places of detention run by Oranga Tamariki under the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment (OPCAT) and that does not change under the bill.
Will the work of the Children's Commission change much?
Probably not, but there was scope for it to have become a lot more powerful than it is now if original thinking about monitoring had been stuck to.
Why are people so upset by the Children's Commissioner not getting responsibility for the Independent Monitor?
Part of the problem is that there was an early expectation that the independent children's monitor, once fully established, would be moved to the Office of the Children's Commissioner. That was recommended in a report in 2018 by Sandi Beatie, and in the first Cabinet paper that followed. Beatie had recommended having two distinct and separated roles under one roof, a Children's Commissioner and a Commissioner of Care and Protection, the latter of whom would be responsible for monitoring. But then various strands of advice to the Government, including from the Public Service Commission and MSD, thought there was a potential conflict in combining advocacy and monitoring in the same organisation. So it was decided to move monitoring under ERO's wing. The monitor currently has 47 FTEs (full-time equivalent staff) and is expected to grow to 59.
Some opponents of the bill say there is nothing wrong with combining the monitor function and the advocacy function, that being a monitor would enhance the advocacy, and the Children's Commissioner would have done more if it had been better resourced – it has 37 full-time staff.
Who are the opponents of the bill?
Some heavy-hitters oppose the proposal and want the Office of the Children's Commission to undertake monitoring, including Professor Jonathan Boston of Victoria University's School of Government, former Children's Commissioner Russell Wills, the young people's advocate VOYCE, and the Aotearoa New Zealand Association of Social Workers. They are joined in staunch opposition to the bill by National spokeswoman Louise Upston and Greens spokeswoman Jan Logie.
What are the arguments against the Office of the Children's Commissioner being a monitor?
It is argued that the monitor needs to give clear factual evidence-based advice to the Government about what is happening in Oranga Tamariki and the best source for that is not an entity that is a strong advocate. The strongest advice against using the Children's Commission as the monitor came from the State Services Commission, now the Public Service Commission. It told the Government the type of monitoring of national care standards was quite different to the current monitoring the Children's Commission currently does of residences and warned it "would seek to simply scale up its existing monitoring approach to the new task, with limited regard to the intention of the legislation; its feedback, which may extend beyond what is required by current policy settings, would not be particularly helpful to Oranga Tamariki; Oranga Tamariki and others may perceive its feedback as coloured by its advocacy role on behalf of children".
Is there some bad blood between Oranga Tamariki and the Children's Commissioner?
There certainly has been in the past. The Children's Commissioner report in June 2020 into baby uplifts was slammed by the Oranga Tamariki chief executive at the time, Grainne Moss. She accused it of ignoring the interests of the babies over mothers and said the organisation had not been given a chance to have input into the report. The 13 cases it had highlighted were a fraction of the 61,300 children the ministry had worked with in the previous year.
The bill stipulates that the commission may not make any comment that is adverse to an individual or agency if the commission has not given the individual or agency a reasonable opportunity to be heard.
Are there other concerns and changes?
Yes. There was concern that the original bill dropped the direct reporting line between the Children's Commission and the Prime Minister. That has been reinstated by the select committee. There was concern that having the monitor hosted within the Education Review Office would compromise its independence. But the bill explicitly says ministers cannot prevent the monitor from undertaking any work it decides needs to be done. There was also a strong call for the bill to be paused until the Royal Commission into Abuse in Care is finished. But the Government have made it clear that the need for comprehensive monitoring of Oranga Tamariki is too important to be delayed and that changes can always be made after the Royal Commission has reported back.
Why isn't the Minister for Children Kelvin Davis in charge of the bill?
Social Development Minister Carmel Sepuloni is in charge of the bill because the Government does not believe the minister in charge of Oranga Tamariki should also be the minister in charge of the monitoring of it.
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