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Submission: Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill
About the New Zealand Council for Civil Liberties
- The New Zealand Council for Civil Liberties is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.
- We wish to make an oral submission before the Committee.
Summary of Recommendations
- The New Zealand Council of Civil Liberties recommends that the Bill be withdrawn, as its details accomplish the opposite of its stated objectives. The Council further recommends:
- Removing the secrecy clauses: 59 and 109 (see paragraphs 9 and 15)
- Removing clause 55 which creates immunity from prosecution (see paragraph 25)
- This bill is intended to strengthen the oversight of Oranga Tamariki, but the Council believes it will have the opposite effect.
- The Bill’s explanatory note claims the objective is to uphold the rights, interests and well being of children and young people in Aotearoa New Zealand. The Council notes however that the majority of the Bill’s changes focus on the governance and structural arrangements for Oranga Tamariki and the Office of the Children’s Commissioner. There is no mechanism to ensure the voices of children and young people are heard.
- The Royal Commission into Abuse in State Care’s interim report He Purapura Ora, he Māra Tipu, made 95 recommendations and called for the government to respond within 4 months. The bill implements none of those recommendations.
Freedom of Information and Freedom of Expression
- The Bill contains two clear infringements of our right to information, which is part of the right to freedom of expression, protected by Section 14 of the New Zealand Bill of Rights Act 1990 (NZBORA). This derives from Article 19 of the Universal Declaration of Human Rights, and Article 19 of the International Covenant on Civil and Political Rights. Both affirm our right to seek, receive and impart information and section 14 of the NZBORA reflects this. Additionally, Article 13 of the UN Convention on the Rights of the Child accords a child the same right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds. Our right to receive information from our government is made manifest by the Official Information Act 1982 (the OIA).
- Clause 59 of the Bill removes three categories of information from the definition of ‘official information’ in the OIA: pre-investigation communications with the Ombudsman, the provision of guidance by the Ombudsman; and information shared by the Ombudsman with the independent Monitor. By removing it from the definition of ‘official information’, this Bill removes our right to this information under the OIA and clearly limits our rights under section 14 of the NZBORA. The Cabinet paper says this is because without such a guarantee of confidentiality “agencies [are] reluctant to share information in full, or discuss matters frankly before a formal investigation is started.”
- Oranga Tamariki’s desire to avoid disclosure seems to be driven by potential embarrassment and fear of public scrutiny and oversight. Neither is a ‘compelling public purpose’ which is a key test under section 5 of NZBORA for limiting any of the rights in the Act. The secrecy also undermines one of the key principles of good regulatory practice, which is transparency. How are people to judge whether the Ombudsman’s involvement has been effective if they cannot scrutinise it? The Council recommends that clause 59 is removed from the Bill.
- Clause 109 of the Bill requires the Children and Young People’s Commission and its staff to maintain secrecy in respect of all matters that come to their knowledge in the course of any inquiry. This clause overrides the Official Information Act which is contrary to the principles of open government. We can be sure that this is intended – in spite of clause 109(2)(b) – because clause 109(3) reproduces some of the OIA withholding grounds; there would be no need for this sub-clause if the OIA applied to the information in question.
- The clause is unnecessary as the OIA already includes grounds to protect privacy, information supplied in confidence and information required to investigate criminal offences. The Council sees no legitimate use for this removal of the OIA, and plenty of potential for abuse.
- The clause is also badly worded with regard to the rights of people to obtain records about themselves.
- The Royal Commission’s interim recommendations on record requests and record-keeping, and on content and destruction of records (85 through 89) refer to difficulties survivors or their representatives face in obtaining copies of their records, and understanding what is left of them after extensive redactions. People are entitled to copies of their records, subject to any relevant considerations of the Privacy Act 2020. The lack of such records may be a barrier to children and young people seeking justice for any wrongdoings, and may be a barrier to individuals coming to terms with their own histories.
- By providing a blanket of secrecy, and then saying, in clause 109(2)(c), that the Commission ‘may’ disclose information to give effect to privacy principle 6 in section 22 of the Privacy Act (the right to obtain information about yourself) the Bill is muddled. Either the government wants to say that the Privacy Act applies to information gathered by the Commission – in which case it should not be at the Commission’s discretion – or it does not.
- For these reasons, the Council recommends that clause 109 is removed from the Bill. Alternatively, it should delete paragraphs 109(2)(b) and (c) and insert a sub-clause stating that “Nothing in this section limits any obligations under the Privacy Act 2020 or the Official Information Act 1982, or any power to gather information under an enactment.”
- The Council notes that clauses 59 and 109 run contrary to the duty on Chief Executives to ‘foster a culture of open government’ found in the section 12 ‘Public Service Principles’ of the Public Service Act 2020. The Council is not aware of any explanation for this deviation, and the Council recommends that the Committee follow up with the agencies and Minister to ask how they have incorporated the Public Service Principles into the Bill.
- The 2018 Beatie report was focused on the oversight of Oranga Tamariki. The Bill shares this same focus as the report but does not appear to address the report’s core findings on resolving shortcomings.
- The United Nations High Commissioner for Human Rights’ (OHCHR) report Assessing the Effectiveness of National Human Rights Institutions found that better outcomes are achieved when agencies have broad mandates and encompassing jurisdictions. This bill does the opposite of OHCHR guidance by separating monitoring, complaints and advocacy functions to three separate agencies. The Council does not believe that this separation has been justified and believes it should be reconsidered.
- The Council disputes the desirability of changing the Commissioner into a Commission. The Explanatory Note states “it is no longer possible for a single individual to be across the broad scope of issues, (so) the Commissioner sole model will be replaced with a Children and Young People’s Commission (the Commission)”. If applied consistently, this logic would replace all single individual leadership roles with boards. If Parliament truly believed this reasoning, this Bill would also replace dozens of other offices, including the Police Commissioner, the Privacy Commissioner, and the Chief Executives of public sector agencies. On the contrary, the widespread success of the “Commissioner sole model” throughout government, disproves the rationale for replacing the Commissioner.
- All commissioners have broad responsibilities. Established practice is to add capacity by appointing deputy or assistant commissioners, not through a board directing a commissioner.
- The Council has concerns about the transfer of investigation powers from the Children’s Commissioner to the Office of the Ombudsman. The Explanatory Note to the Bill states, “The Ombudsmen Act 1975 is generally considered sufficient for Ombudsmen to deal with complaints and undertake investigations in respect of children, young people, and families and whānau in the Oranga Tamariki system.”
- The Ombudsman lacks power to compel action on their findings. Indeed the word the Ombudsman Act uses is “recommendation.” Many Ombudsman’s recommendations from procedural improvements to Corrections facilities to the use of seclusion within schools have been ignored for years. That Oranga Tamariki will selectively ignore the Ombudsman’s recommendations is all but guaranteed.
Right to Justice
- Section 27 of the NZBORA guarantees our Right to Justice. Clause 55 of the Bill provides the Monitor and their employees with immunity from prosecution. This protection goes beyond the protection for civil liability found in section 104 of the Public Service Act, and also protects the Monitor and employees from criminal proceedings. Clause 55 is a prima facie restriction of NZBORA section 27(3), and given the seriousness of the matters to be monitored by this body, we question how public trust in the institution can be maintained if it is also shielded from criminal investigation.
- The Council notes the lack of explanation and analysis of clause 55 in the Explanatory Notes and Departmental Disclosure Statement. No case has been made for this restriction.
- The Council disputes that clause 55 is “demonstrably justified in a free and democratic society,” (NZBORA section 5) and recommends it be removed from the Bill.
Notes on Process
- The Council notes with alarm that the Ministry of Justice’s NZBORA compliance report failed to notice that there are NZBORA concerns with clauses 55, 59, or 109. The Council urges the Committee to seek advice from the Ministry on those clauses.
- The Council notes that it is customary for the Office of the Clerk to be consulted if proposed legislation would establish a new Officer of Parliament. The proposal to disestablish the role of the Children’s Commissioner and replace them with a board (the Children and Young People’s Commission), and to transfer functions to an existing Officer of Parliament (the Ombudsman), has many similar features. The Council encourages the Committee to seek the publication of comments by the Office of the Clerk on this proposal.
- The Council notes that the Treasury has not written a Regulatory Impact Analysis. Treasury says an RIA is not required as the Bill is not expected to impose any regulatory burden outside Government. The Council believes that Treasury’s position rests on an unconventional and unhelpful definition of “regulatory burden”, as this Bill clearly impacts children and young people and the people and organisations who both advocate for them and who provide services for them. The Council urges the Committee to instruct the Treasury to prepare an RIA.