Talking to Newstalk ZB on Tuesday morning, Christopher Luxon said he hadn’t been briefed about the powers, but a couple of hours later, after questions from the Herald, he acknowledged they had been addressed by Cabinet.
Asked if he was not across what Cabinet had agreed to, Luxon said: “I am pretty much across everything”.
But Labour’s Chris Hipkins has called the situation “mind-boggling”, saying the Prime Minister should be across Cabinet papers, “particularly when they’re talking about the use of force against children”.
The Government is proposing legislation to establish a Young Serious Offender (YSO) declaration and the ability to send some of these offenders to a military-style academy. This involves a period in a youth justice residence followed by a community-based programme.
Prime Minister Christopher Luxon said he believed the new academies would be very different to boot camps of the past. Photo / Mark Mitchell
The leaked paper – which Chhour has refused to answer questions about – was written after Cabinet agreed on June 10 that military-style academy providers should have use-of-force powers. The agreement to provide those powers is confirmed by a public Cabinet minute and a statement to the Herald by the minister.
The Cabinet minute of the June 10 decision said ministers agreed “a military-style academy provider and their staff, whether Oranga Tamariki or another agency or provider, would have the power to use force in the form of physical restraint / physical holds [no greater than reasonably necessary]”.
It said these would be allowed to prevent young people absconding or harming themselves or others. According to the Cabinet documents, the powers already exist when a young person is at a youth justice residence. Cabinet agreed to expand the powers outside of a residence, such as when a child is in transit to a residence location or at other activities.
Asked by Newstalk ZB’s Mike Hosking if the providers running the military-style academy programmes will have use-of-force powers, Luxon said: “That will be ultimately a decision for the operators in the programme and I am not close enough to know what they need”.
“I am just not in that position to comment on that as to why it would be used or how it would be used for restraint or other things.”
Hosking asked, considering it’s the Government that creates the settings for the providers, whether the providers would be given the powers.
“I haven’t had those conversations, I haven’t been briefed on that,” Luxon. “It hasn’t been a topic of conversation that we have had with Karen Chhour and myself as the minister.”
Hosking told Luxon not to “BS” him and noted that Chhour hadn’t fronted to the Herald on Monday to discuss the matter.
Luxon said he didn’t know why that was.
“Feel free to keep reaching out to her office ... It is not something I am briefed on, it is not something I am aware of, it is not something I should be involved in, those closest to it should make those calls and decisions as to what they need.”
Luxon said he was interested in ensuring the academies had “the layers of child safeguarding and protection and oversight which has been a consistent problem across our care of kids for decades now as evidenced by the abuse in state care”.
He believed the new academies would be very different to boot camps of the past.
Hosking asked the Prime Minister if, as a concept, he was comfortable with use-of-force powers.
“No, I want to make sure there are multiple approaches around oversight around oversight and protection of those young people and that is where I would be coming down on that conversation when we get to have that conversation.”
Does he mean oversight of the ability to use force, or not to use force?
“Not to use force. I appreciate these are really difficult kids and individuals, but the history here is shocking and what I really want to see is a culture shift and change to focus on the care, rehabilitation, the layers of protection and child safeguarding.”
Later at Parliament, the Herald asked Luxon why he said he hadn’t conversations about the powers, when Cabinet had agreed to them.
“Well, I hadn’t had an explicit conversation with Karen Chhour about that particular issue. I know there was broad paper, it was referenced in a Cabinet paper. I get that. What I am saying is I didn’t have an exact conversation with her about how restraint is used operationally, that is a decision that is ultimately made by [Oranga Tamariki].”
He also said restraint was needed when young people were at risk of self-harm, if there was fighting, or a child was attempting to abscond.
“There are very strict rules around that. That is the reality of it. Restraint is used, but it needs to be done under very strict guidelines.”
Luxon said his focus was ensuring there was “better child safeguarding across all of our services”.
“To make sure that we actually do have advocacy and outlets for the children in these cases to have outlets. Let’s acknowledge, these are some of our serious young offenders, there are instances where restraint is needed and we use that under strict guidelines.”
The Labour leader said the Prime Minister saying he hadn’t been briefed on something that Cabinet had agreed to showed Luxon was “not on top of his job”.
“He should make sure that he’s actually reading the Cabinet paper that he’s agreeing to.”
Hipkins acknowledged there was a “limited range of circumstances” in which the powers could be used already, such as in Oranga Tamariki facilities, but he said an expansion of those powers in light of the Prime Minister’s lack of detail was “incredibly concerning”.
“I think what we are seeing here is ... a government that doesn’t know what it’s actually doing.”
Children Minister Karen Chhour didn’t address the paper’s acknowledgement of the risks of providing use-of-force power. Photo / Mark Mitchell
The leaked document contains a section on the risks of allowing the use of force and detention.
It said the provision of these powers “may be viewed as increasing the potential risk of abuse in custody, particularly in light of historic[al] abuse experienced by children and young people in similar programmes reported in the Royal Commission of Inquiry into Abuse in Care report”.
“These powers will also be held by individuals and organisations, and not attached to places of detention. In New Zealand, only law enforcement personnel currently hold such powers,” it said.
But it said not providing these powers would mean staff outside of the residential setting “would be exposed to legal risk if they tried to prevent a young person from absconding or from harming themselves or harming another person”.
“Given this risk, I consider that clear authority is needed,” the paper said.
The paper shows the Government intends to introduce the legislation next month, but “due to the time available, comprehensive safeguards are not outlined in the primary legislation”.
Instead, safeguards “to ensure these powers are used safely and reasonably” will have to be introduced through a regulatory framework. The paper said these regulations will be required before the bill can be brought into operation.
Chhour’s statement to the Herald said Cabinet had agreed to providing use-of-force powers to providers. She didn’t address the paper’s acknowledgement of the risks of providing use-of-force power.
“The military-style academy order will be a modular-based programme, including rehabilitation and education programmes and community integration and intensive support.
“The intention is this legislation will be introduced in the House later this year and anything that can be announced will be done in due course.”
Both the Greens’ Tamatha Paul and the Children’s Commissioner were critical of the military-style academies.
Paul, the Greens’ justice spokeswoman, told the Herald it was “scary” third-party providers may be granted the use-of-force powers.
She said it wasn’t clear who these third-party providers were, and she hoped the minister would be “tossing and turning over the decision she’s about to make”.
“The scary thing about the third-party provider elements is that it feels like it is repeating history,” Paul said. “It’s one of those things in this paper that is eerily reminiscent of boot camps of the past.”
Dr Claire Achmad, the Children’s Commissioner, said she was “disappointed” her office wasn’t consulted, despite her team previously flagging that they would like to provide independent advice on the development of any policy in the youth justice space.
In late October, after seeing mention of the use-of-force powers in a publicly available Cabinet document, Achmad said she “sought clarity from Oranga Tamariki about this aspect of the plans”.
“I am concerned to understand who those third-party providers are going to be, what is envisaged here, and then also in terms of the use-of-force and restraint by third party providers, that needs to be given extremely careful and well-thought-through consideration from a children’s rights perspective.”
She said information about safeguards was “critical” and an “aspect I will be seeking to understand”.
Jamie Ensor is a political reporter in the NZ Herald press gallery team based at Parliament. He was previously a TV reporter and digital producer in the Newshub Press Gallery office.
