Submission (oral): Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill

As well as our written submission we also made an oral submission to the Select Committee. Here’s the edited version of our remarks.

Tena koutou katoa

Ko Kay Jones toku ingoa

I’m here representing the New Zealand Council for Civil Liberties on our joint submission.  I’ll make a few statements and hope to leave time for questions.  If the Committee has questions about areas that my colleagues would have better answers for, I would be happy to follow them up with supplementary submissions.

First though I’d like to thank you all for voting to keep rainbow young people safe from the threat of conversion practices.  It’s wonderful to see MPs come together to support young people to have the right to be who they are.  That Bill was drafted to centre the protection of young people.  This Bill should do the same but it doesn’t.

We base our approach on three core documents – Te Tiriti o Waitangi, New Zealand Bill of Rights Act and Human Rights Act.

I’ll focus on two parts to the Council’s submission, namely

  • Secrecy and official information – and
  • Centering children and young people in the Bill and what that would mean

Secrecy and Official Information

Yesterday the Committee heard from Judge Boshier on the secrecy provisions in the Bill. He sought an amendment so that the lead investigating agency could override secrecy provisions in order to better ensure a young person’s wellbeing.  He described this as paternalism overriding individualism in the interests of protecting children.  

There are two other reasons why the Bill’s secrecy provisions could and should be changed – The first and most important one is the right of a mokopuna or rangatahi to know information about themselves.  

The second part that the Council is concerned about is the public interest or public good right of advocates to seek information to hold officials and agencies to account.

That’s one of the reasons why we have the Official Information Act and that we are able to request and obtain information to enable there to be scrutiny not of private personal information but to get insights about what is happening within agencies, and we have seen journalists try to make use of Official Information provisions to get clearer information.

The Royal Commission into Abuse in State Care’s interim report He Purapura Ora, he Māra Tipu, made 95 recommendations for immediate change.  The bill implements none of those recommendations.

There are many accounts of adults who were taken into care as children and as a result lost connections to their whanau, sometimes to their own names, the record keeping was done poorly, and they didn’t have their medical histories.  They are still having difficulties obtaining access to their records.  People are entitled to copies of their records, subject to any relevant considerations of the Privacy Act.  When children and young people are seeking justice for wrongdoings, and they can’t get information about that, how can they deal with these issues?  How can you go forward in life when there are no clues to where you come from?

So we made specific recommendations to clauses 109 and 55 to enable survivors to get copies of their records and to understand what is left of them, because currently they get heavily redacted records and they are stuck in a morass of bureaucracy trying to get justice. 

The Council recommends that clause 109 is removed from the Bill. 

Clause 59 of the Bill relating to official information and actually creating secrecy does makes it appear that Oranga Tamariki is afraid of public scrutiny over its practices.  There have been instances of reports coming out and not having action and the public won’t believe there has been any improvement unless there is more openness and more willingness to engage with official information to get better transparency of operations.  How can people judge whether there have been improvements if there is no information? 

Being Child Centered and Effective Governance

I echo the wishes that the systems that are in place are focused on what is best for children and young people.  That means having respected independent and credible organisations that they may deal with, who will communicate with them in ways they can understand, who will encourage them to approach them.  Currently when you hear Children’s Commissioner or Ombudsman who are children or young people more likely to see as a voice they can actually turn to? 

Jumping ahead, in reference to the Beatie report on STRENGTHENING INDEPENDENT OVERSIGHT OF THE SYSTEM there was a lot of focus on initially identifying problems but the solutions do not actually do that.  

As the United Nations Commissioner for Human Rights has said if you want to better strengthen agencies, you give them broad mandates, you resource them, you do not separate out the functions into different parts to make it easier for information and complaints to slip between cracks, for complaints not to be followed up, for there be too many opportunities for people feel they are facing bureaucratic barriers to getting justice. 

One piece I’d recommend the Committee to look up is the 2021 report That’s a Lie, commissioned by Chief Victims’ Adviser Kim McGregor about how children and young people were treated in the justice system when they presented with complaints of sexual violence.  

Where the rules said they should be treated with respect but the experiences of those young people is that they were not believed, that their voices were not heard, that they faced a whole challenging set of attitudes by officials who didn’t have flaxroots experience of the issues they were facing.  

Now with due respect to the officials, that is the impression that this Bill gives.  It has not been drafted by people with an innate understanding of the challenges of supporting young people at the front line nor thinking about to how best to listen to them, to engage with them in ways they can understand.  It’s like telling deaf and hard of hearing people to speak up clearer we can’t hear you, without providing them with support and resources.  Or someone who is fully Deaf from birth not being given options of sign language. Somebody who is more confident in Te Reo Maaori.  Someone who sees bureaucracy and it’s scary to them and it reminds them of bad experiences.  

If you don’t have a child focused organisation supporting them, then you cannot enable children and young people to have their human and civil rights respected. And under the NZ Bill of Rights Act and the Human Rights Act children and young people have rights.  And it is that which should be centred in the Bill not what makes it easier for bureaucracy to put pieces of paper into different buckets.

So I’m being less formal than our submission is but the same causes are there, that we are wanting to be sure that children and young people will have their needs met and that does not mean separating off investigating powers to the Ombudsman who may not have the full experience in making children and young people able to raise concerns nor does it mean taking away that right and responsibility of a central officer, the Children’s Commissioner to be seen to be accountable to people. When you have a board that’s responsible, you take away that responsibility.  We have a Police Commissioner.  We have a Privacy Commissioner.  We have a Prime Minister, for heaven’s sake.  In each case we have a central person who is known, who is named, who has a full time job in following through the responsibilities.  It is not spread amongst a group of well meaning people who may not all agree on things and there are good reasons for that structurally.