Children’s Commissioner Bill

Before I get into some of the specifics of Part 2, I think it is worthwhile just taking at look at parts of the Supplementary Order Paper that relate to the particular part the Minister has just put through the Committee. The whole point of the Commissioner for Children Bill is to increase the amount of independence and strength that the Commissioner for Children has, but if we look at some of the clauses in the Supplementary Order Paper that has just been supported by Labour, we can see that the clauses are designed to claw back any of the independence and strength that this bill could have given the commissioner. I find it extraordinary that the Minister has put in a few clauses that basically allow him to control the work of the commissioner, to review the operations and performance of the commissioner at any time, and also to require the commissioner to supply the Minister with any information reasonably required and requested by him. That basically leaves everything absolutely wide open. That means the Minister can ask for any information whatsoever, and the commissioner will be in a position—unless he or she has certain reasons for not providing that information—to hand it over.

I ask members to look at the recent case of Saliel Aplin and Olympia Jetson. That investigation basically required the Commissioner for Children to ask the families involved for some very sensitive information. The commissioner had to do some very sensitive investigations and build a rapport with people who had information about the case. These particular clauses make it quite clear that the Minister is now in a position to ask for any information from the commissioner that he so chooses, and I think that very much compromises the independence we were hoping this bill would provide the Commissioner for Children in her work.

Part 2 very clearly spells out the sort of person who cannot be a commissioner, and although it seems common sense, it is important to restate that. The commissioner is not allowed to be an undischarged bankrupt or someone who has a conviction, and certainly not someone who has any convictions to do with children, because that would be quite ridiculous. Unfortunately, in this day and age, when some people can provide CVs that only can be described as pieces of creative writing, it is important to restate these sorts of clear indications of the sort of person we want to as a commissioner.

I look now at the general functions. Once again, we see restated the important role the commissioner has to investigate any decision or recommendation made in respect of any child, or in that child’s personal capacity. That allows the commissioner to investigate any aspect relating to the treatment of a child, or the life of a child, in this country, and therein lies the nub of the reason that we have a children’s commissioner in the first place. Importantly, the role of the commissioner is to raise awareness and understanding of children’s interests and rights, and that is why a commissioner needs to be incredibly independent and not able to be manipulated or controlled by the Minister in any way. So in terms of the Supplementary Order Paper we have seen, I am concerned by some of the changes that have been made at the last minute. I think the Minister should take a call to explain the reasons for slipping in those clauses at the last minute.

💬 Lindsay Tisch: Sneaky.

As my colleague has just mentioned, it is very sneaky to do that at the last minute when the bill is very close to being passed.

The commissioner also has to raise awareness in other ways, and she will do that by commissioning research into any matter she sees fit—mainly, of course, research to do with the welfare of children. Once again, to be able to do that job effectively, the commissioner needs to be aware that she is totally independent and at arm’s length from ministerial control. That is why I am concerned by some of the changes the Minister has made. I invite the Minister in the chair, Steve Maharey, to stand up and allay my concerns, and tell me that that is not the intention with some of those last-minute changes, because it is an important role.

I would like to look particularly at clause 7, “Appointment of Commissioner”. It is really vital that the nomination and selection of the commissioner is a transparent process, and, as such, the amendment to clause 7 is an important one. The bill takes some steps to ensure that suggestions for appointment are made from outside and are free of interference from any political party—and, of course, from ministerial processes. With the recent appointment of the new Commissioner for Children, cross-party consultation would have been an advantage to the appointment process, because it is essential that the role of the commissioner remains independent at all times.

When we look at clause 11(1)(g), we see that the bill now appears to give the court greater powers to suggest that the commissioner can give both verbal and written reports on his or her work. This means that the work of the commissioner may be curtailed as she gets involved in this rapidly growing area, because the court process seems to be a very lengthy one and increasing as time goes on.

New clause 12A, “Commissioner to develop means of consulting with children”, places an obligation on the commissioner to consult with children in certain circumstances. It is really vital that the potential legislation promotes an approach that empowers children and young people to participate in the decisions that affect them. We really do have to consider what children and young people feel about their society and their lives, so New Zealand First will be supporting this part.

I will take a brief call on this part. I question clause 7, in particular, as it relates to individuals who may not be appointed as commissioner. Subclause (3)(d) talks about an individual who has been convicted of an offence punishable by imprisonment for a term of 2 years or more, or who has been sentenced to imprisonment for any other offence, unless that individual has obtained a pardon. The thing that worries me a little is that it goes on to state “or served the sentence or otherwise suffered the penalty imposed on the individual”. On my reading of that subclause, it means that someone who is a convicted criminal and has served a sentence can be appointed to be the Children’s Commissioner. I think that takes the clean slate rubbish slightly too far. I would like to hear from the Minister. If I am misreading that provision, I would like him to have the opportunity to put me right. On a plain reading of that subclause, it states to me that a convicted criminal, as long as he or she has served his or her sentence, can become the Children’s Commissioner.

We may be a small country, but I am sure that amongst our 4 million people we should be able to find someone who is not a convicted criminal, and who is able to be the Children’s Commissioner. I certainly think we have not had difficulty with regard to that until this bill came in, so I am sure the Minister could do a little better than that. We would, obviously, be very happy to support an amendment to this bill, to make it perfectly plain that a criminal conviction and sentence, whether served or not, would render a person invalid in terms of being an appointee.

I would like to hear from the Minister. I see the Minister is smiling. Hopefully he wants to talk to us on this point. To me, he looks very keen to do so.

Part 2 talks about the appointment, functions, and powers of the commissioner. I, too, would like to make mention of the fact that this position is so heavily controlled by the Government that it almost wipes out the necessity to have a Commissioner for Children. If we end up with a political puppet, then what is the point in having a Commissioner for Children? The Minister may like to take a call to explain to us that that is not what is going to happen with regard to that office. I do reflect on the fact that the former Commissioner for Children was appointed by the previous National Government, and stayed in office until very recently. I do not think anybody could have called him a puppet; that is for sure. It is quite a worry that Labour has a reputation for trying to keep everybody under its control. It usually appoints its cronies to positions of importance.

I see that the Minister is looking up. I have caught his eye, and his attention is now riveted on this speech. It would be very, very appropriate for the Minister to stand and tell us exactly what process he went through in appointing the commissioner, and let us know that the commissioner will be given the freedom to do an independent job. When we look at Supplementary Order Paper 116 in the name of the Hon Steve Maharey, we find that the Minister’s fingerprints are all over the position. Clause 30A(1) states: “The Minister may review the operations and performance of the Commissioner at any time.” That sounds to me to be quite sinister. Then clause 30B(1) states: “The Commissioner must supply to the Minister any information reasonably required by the Minister, and requested by the Minister, in connection with the exercise of his or her powers …”. That means that in respect of anything at all that the commissioner is working on, the Minister can demand that the commissioner show it to him. He can then exercise his ministerial authority to tell the commissioner to leave that issue alone, or to take it here, there, or anywhere.

I suggest to Mr Maharey that this bill now has become one that makes the Commissioner for Children simply a political puppet. I think that most New Zealanders would resent that, especially since the two clauses that I have just read out have come out on a Supplementary Order Paper. The Social Services Committee did not have a chance to see them beforehand, and the public of New Zealand did not have a chance to comment on them. I say that the Office of the Commissioner for Children, who most people believed was an independent Officer of Parliament, is now being brought under the wing of the political system. We can no longer trust that office. If these powers are as far-reaching as they appear to be, we will no longer be able to trust that office to provide the independent advice that we have grown to accept from not only Roger McClay but also Laurie O’Reilly before him. Both were men who spoke out freely and had a lot of autonomy. I think the Minister needs to set our minds at rest. If he does not take a call, that means he cannot set our minds at rest and our suspicions are founded—that this is a bill to turn that office into another Government spin machine. That would be such an indictment on the Labour Government that it hardly bears thinking about.

Our party does not support this bill, mostly because most people believe that a commissioner can do something about their individual cases. All the time as MPs, we get individuals and families writing to us to say that something has happened concerning their children, and asking for our help. Most people would also write to the Commissioner for Children, thinking that he or she is in a position to be able to help. The point is that the commissioner cannot help. During the select committee process we heard many submissioners say to us that the Office of the Commissioner for Children was toothless, in that it could not intervene in cases and it could not help families who were having real trouble. I believe that those families should not be going to the commissioner but to the Minister. They should be complaining directly to the Government. Otherwise, they get up all those false hopes and think that somebody will sort out their problem. But the reality is that the commissioner’s office was never set up to do that. In fact, it does become a complaints operation. It has an advocacy role, and I think everybody thinks that that is a good idea, but there are so many dashed expectations held by people who had hoped that the commissioner would sort things out, when he or she cannot do so.

The question was put that the amendments set out on Supplementary Order Paper 116 in the name of the Hon Steve Maharey to Part 2 be agreed to.

Part 3, “Transitional and miscellaneous provisions” contains a range of clauses that basically need to be tidied up as a result of imposing new legislation on to an organisation that is already in existence. So, of course, one needs to restate a whole lot of things that we already know to be correct. For example, the first clause in Part 3 just restates that the Office of the Commissioner for Children is the same as Children’s Commissioner. We know that, with this Government, language is everything, but, of course, in terms of the day-to-day work being carried out by the Children’s Commissioner, very little will change. Dr Cindy Kiro, whom I met today, will still be in the same position of being a very strong advocate for children. Although I thought this bill was designed to strengthen her role, I am now concerned, having studied the Minister’s Supplementary Order Paper in detail, that much of the increased strength that we thought this bill was designed to give the commissioner has been withdrawn in one fell swoop by the Minister. Perhaps he became concerned about some of her more outspoken statements about children—in particular the Government’s performance when it comes to implementing things like the Agenda for Children over the last couple of years.

In looking at the way the Office of Children’s Commissioner has been set up, one wonders why the model was not used for another commission that is currently being established—that of the Families Commission. Here we have an office that is able to be a very strong advocate for children, yet we have seen, for the Families Commission, a much more neutered version of an organisation that is unlikely to be able to advocate for much at all—given the scope of the Families Commission. Clause 30 deals with the application of the legislation to matters commenced under the Children, Young Persons, and Their Families Act. That piece of legislation basically underpins everything to do with children in this country and, of course, the United Nations Convention on the Rights of the Child. The convention is set out in schedule 2 of this bill. There is not much to Part 3. It is quite small, but it deserves some comment, and my colleague Judith Collins will be taking a very enthusiastic call on this part.

I thank my colleague for that enthusiastic speech. Part 3 concerns me the most. Apart from the fact that a convicted criminal can now be the Children’s Commissioner, there is also a provision that says the commissioner will, in fact, be able to become a toothless tiger, because the Minister will be able to review all the operations and performance of the commissioner, at any time. One might wonder whether there should be some sort of accountability. Well, is the Minister not the one who is accountable? The commissioner is someone who is appointed for up to 5 years and is able to be reappointed. Personally, I think a position of this magnitude should only be for a 5-year term, because a commissioner is hearing all the time about problems and difficulties. It is the sort of role in which, if continued on for a maximum of 10 years, a person is likely to lose his or her objectivity. It is a role in which the person is hearing only of the negative, and that is a very tough job.

I am concerned that the Minister has not yet chosen to take a call in relation to this part. I am concerned that the independence of the role of commissioner is being prejudiced by the Minister in this Supplementary Order Paper—which has been tabled at the last moment. It has not gone through the select committee process, and we do not know what the current commissioner, Ms Cindy Kiro, thinks of this. We do not know in Parliament what her views are about having her role reviewed by the Minister, when she has already—and I think it is great—come out as a forthright defender of the rights of children.

I will slightly digress and mention that I know Ms Kiro. We were both on the Casino Control Authority before I came into Parliament—I as the chairperson and she as a Government appointee. She is pretty left of centre but a very decent person, in my view, and someone who, I believe, will do a good job for children. She is the mother of two boys, and it is good to see someone with some practical knowledge of children being able to comment on children. I think, personally, it should be a requirement in the House that only people with practical knowledge should give advice on parenthood. In this particular respect, however, the fact that Ms Kiro is not going to be trusted by the Minister to be able to be a forthright advocate for children is concerning, because the main thrust of her comments will, of course, be about the Minister and his department. That is something that is very concerning to the National Party. We are not supporting this particular provision. We believe that the children of this country need a commissioner who is utterly independent and who is able to be as forthright as possible. Otherwise, what is the point? We might as well save the money and not even bother to have one if we are going to have one who is tied, unable to advocate strongly, and without any concern for her position on the rights of children.

I would like to put on the record that the silence of Minister Maharey means that the Office of Children’s Commissioner is now becoming a political office, and that the commissioner herself will become a political puppet. I challenged the Minister to set the record straight and stated that his silence would mean that he concurred with those remarks. He was silent, so I think that from now on we can acknowledge that this is a political office. I have to say I feel sorry for the new Children’s Commissioner, Cindy Kiro, because I am sure she came into the job expecting to be able to act with some independence, and she probably did not realise that the Minister was going to table a Supplementary Order Paper that, I think, she probably has not even seen—because no one else has seen it. It basically says that anything the commissioner does can be at the behest of the Minister. I think that is an absolutely appalling state of affairs. We already know that the Labour Government has a liking to control everything that goes on, and if people step out of line the Government has no hesitation in basically dumping them, sacking them—you name it. To have a situation now where an office that was independent is no longer going to be independent, I think, is appalling.

I wonder even about the report from the Children’s Commissioner, which is going to be tabled tomorrow, concerning the deaths of Saliel Aplin and Olympia Jetson. I wonder about whether there has been any political interference with that report. It was delayed several times. It has taken well over a year to be tabled, and I am aware of the fact, as is everyone else, that it was a previous Commissioner for Children who was writing the report. Now, of course, it has passed on to the new Children’s Commissioner. I would again, in the same vein, like an assurance from the Minister that there has not been any political interference with that report.

Part 3 basically discusses the relationship of the Children’s Commissioner with the Children, Young Persons, and Their Families Act, because the commissioner’s office was established under that Act. One of the reasons, I am sure, it was established was that the people who developed the idea of the commissioner’s office probably thought it would help to improve the ability of the department—what we now call the Department of Child, Youth and Family Services—to do its job. But I have to say that the Office of the Commissioner for Children has not helped. It has given a lot of advice over the years, but just recently we had probably the most damning report about a Government department in public-service history. I might add that it all happened under the watch of the Minister in the chair, Mr Maharey. I do recall that when he stepped down from the position of Minister of the Department of Child, Youth and Family Services, Ms Dyson, who took over, said that he had been a bit busy. The relationship between the Children’s Commissioner and the department is a close one, because the commissioner often comments on the actions of the department, but it has not helped at all, because the department, as we now know, is in a terrible state of affairs. Just today we heard here in Parliament that about 2,700 cases of potential child abuse need further action. They have not been acted upon. Hundreds of them are critical and very urgent. One has to ask oneself how many more children out there are in a situation similar to some of the real tragedies we have had. Those cases are sitting on the case list uninvestigated, because this Government has not got its act together with regard to its child welfare agency.

The Office of Children’s Commissioner can advise, advocate, and say everything it wants, but if the Government of the day does not have a desire to actually fix things, then children will be harmed; they will be damaged. One of the things I would like to see the Children’s Commissioner do is to be very bold and very brave and start to talk about the real issues surrounding child abuse—the real factors that are influencing families to damage their children. I hope that the Office of the Children’s Commissioner will advocate for proper welfare reform, because the Minister knows that that is at the heart of the problems.

I rise to take a very short call. One of the things that attracted my attention during the debate and that I think is worth making a very quick comment on is the pronunciation of the name of the new Children’s Commissioner. We are talking about someone who is a fantastic person, and I think everybody agrees with that, regardless of where they come from around the Chamber. She has a practical and an academic track record that makes her highly appointable. In fact, I cannot imagine anybody in the Chamber who would not have appointed her. However, she is having a little bit of difficulty in getting people to pronounce her name properly. It is pronounced “Kiro”, not “Ki-roe” and the various other pronunciations that have occurred in the Chamber. I just say that for the sake of getting the commissioner’s name right. She is a person who deserves to have her name pronounced properly. She is a person of real standing and independence, and she has had a real impact already. So “Kiro” is the way that her name is pronounced.

The question was put that the amendments set out on Supplementary Order Paper 116 in the name of the Hon Steve Maharey to Part 3 be agreed to.