Former staff critical of Oranga Tamariki bill

Friday, 25 February 2022

Children's Commissioner Andrew Becroft discusses his feelings about Oranga Tamariki's care and protection units. (First published in July 2021)

External critics have been lining up in their hundreds to find fault with a proposed law that is supposed to protect children. But former staff are also voicing concerns, describing aspects of the bill as “Mickey Mouse”. Aaron Smale reports.

When Ministry for Social Development Minister Carmel Sepuloni was being questioned on a bill to change the oversight of child protection, she didn’t just flail. She bailed.

Because she hung up during the interview, a number of questions went begging.

However, some of those questions are partially answered by documents leading up to the bill. And people who have worked inside the ministry are also highlighting flaws.

The Oranga Tamariki Oversight Bill was heard by a select committee over the past week and has received more than 300 written submissions, overwhelmingly critical.

* Questions left hanging as Minister for Social Development Carmel Sepuloni hangs up

Carmel Sepuloni, Minister for Ministry of Social Development, is leading the Oranga Tamariki Oversight Bill.

* Demand for Children's Commissioner to be retained amid Government reforms

The bill’s stated purpose is to improve oversight of Oranga Tamariki, the agency responsible for children in state custody. The bill will take a monitoring function away from the Children’s Commission and place it within the Independent Children’s Monitor, an entity that will sit within the Education Review Office and a complaints function within the Ombudsman’s office will be increased. The Ombudsman’s office will expand its role in investigating complaints.

Before the bill arrived at the select committee it was developed by Cabinet ministers, led by Sepuloni, and based on advice from officials in MSD and other agencies.

Buried in a report to Sepuloni by Molly Elliot, general manager of Social Development Child and Youth Policy at MSD, there is a sentence that is as clumsy as it is revealing. Elliot discusses the form that the oversight entity should take, writing: “Ministers will need to weigh the need to balance the perception of the entity being sufficiently ‘independent’ against the need for Ministers to maintain a degree of control over the nature of the monitoring arrangements.”

This indicates the Government wants the new entity to have the perception of independence, without the actual substance. It’s like suggesting the judiciary can maintain the perception of independence but politicians can help them out with court decisions now and again.

Minister for the Public Service Chris Hipkins has described the decades of failures of redress for abuse in care survivors as 'a national disgrace'. (Video first published in December 2021)

This intention to maintain the perception of “independence” while ministers maintain a degree of control may explain the way the Children’s Commission will virtually be dismantled under the bill. Or at least disempowered. A board will also be appointed to sit within the Children’s Commission, but this board was originally intended to oversee monitoring of professional standards. This function will be moved into the Education Review Office (ERO).

Initially the new monitoring body, the Independent Children’s Monitor, was going to sit within the Children’s Commission. But then officials started advising that monitoring functions and advocacy couldn’t sit under the same roof.

Why this has suddenly become a problem when those roles coexisted in the Children’s Commission for years hasn’t been explained. Could it be because the previous Children’s Commissioner, Andrew Becroft, did his job too effectively and made life difficult for ministers and bureaucrats who were stung by his criticisms?

When asked where she was getting her advice from and was it from MSD, Sepuloni sounded incredulous – of course she was getting advice from MSD.

Then State Services Commissioner Peter Hughes chats to then State Services Minister Chris Hipkins before an announcement about the reform of the public service in June 2019 (file photo).

But is that the problem?

The Royal Commission of Inquiry into Abuse in Care has taken a hard look at redress processes for abuse in state care, the very issue the new bill is supposed to prevent. For more than 20 years, MSD has been responsible for the Government’s response to thousands of cases of abuse in state care spanning decades, and the royal commission had a specific investigation into that response.

The resulting redress report was released at the end of last year and made for grim reading. Minister of Public Services Chris Hipkins described the findings as “a national disgrace”. What Hipkins failed to mention was that the person most deeply involved in that response was the boss at Public Services Commission, Peter Hughes, who reports directly to Hipkins.

Oranga Tamariki has come under heavy criticism for its removal of newborn babies and violence in residential facilities.

Hughes was the chief executive at MSD during the 2000s, which was the period that came under particular scrutiny at the royal commission. Hughes was in charge when MSD used private investigators to try to dig dirt on victims and witnesses in a test case on state abuse that went to court. The use of private investigators in that case cost nearly $100,000 and was found to be in breach of government code of conduct by an inquiry in 2018.

Ironically, it was Hughes who set up the inquiry as head of State Services (as it was then called), but he made no comment on his own culpability that was exposed by its findings.

Hughes is also exerting an indirect influence in the shaping of the current Oranga Tamariki Oversight Bill.

One of Hughes’ deputies at the Public Services Commission, Assistant Commissioner Hannah Cameron, Strategy and Policy, gave advice to Cabinet on how to fix the oversight system for Oranga Tamariki. But how can MSD be involved in setting up independent oversight when it has a vested interest in the process and has failed miserably in the past? MSD itself is not independent. Despite this, MSD is giving the minister advice that questions the independence of the Children’s Commissioner.

In a report to Sepuloni, Cameron argued that “there is an inherent tension for one organisation to act as both an advocate that recommends policy changes and a monitor who assesses compliance and quality of services against current policy”.

She also recommended to Cabinet that “the Children’s Commissioner should be focused on advocacy and that Cabinet agree to a different location for the monitoring of the Oranga Tamariki system”.

A number of the more than 300 submissions on the bill are highly critical of that assertion and say it has no basis. But it’s not only external voices that are critical. Those who have worked inside the government departments putting the bill together also find the argument highly questionable.

David King, who worked within the Ministry for Social Development (MSD) and was a public servant for nearly 20 years in areas including child protection and constitutional policy, says the “bill includes some of the most Mickey Mouse provisions I have ever seen in legislation”.

David King is now an independent policy analyst but, up until 2020, he worked within MSD and was a public servant for nearly 20 years in areas including child protection and constitutional policy. He is also a victim of childhood abuse himself. King says the bill in its current form is abysmal.

“To create the impression of independence, the bill includes some of the most Mickey Mouse provisions I have ever seen in legislation,” he said in his oral submission.

“The most charitable interpretation that may be given this bill is that ministers and senior officials think that they can better ‘fix’ Oranga Tamariki without all the ‘noise’ that the Children’s Commissioner creates for them.”

King points out that the assertion that monitoring and advocacy can’t sit under the same roof is contradicted by the Government’s own recent actions.

“The Government has recently established a Mental Health and Wellbeing Commission, an entity focused, like this bill, on oversight arrangements for a group of our most vulnerable members of society. The Mental Health and Wellbeing Commission combines monitoring and advocacy functions,” he says.

King says that scattering different functions across different agencies creates a potential for issues to fall between the gaps and for children to be harmed.

“The monitoring, advocacy and complaints functions need to be combined in one, independent office so that there is a single point of accountability for oversight of children and young people’s issues. An integrated office has a far better prospect than the alternative in this bill of achieving the best results for children and young people. This office should be the Children and Young People’s Commissioner.”

King acknowledged in his submission that he is a personal friend of Andrew Becroft, who recently stepped down as Children’s Commissioner, but says he has refrained from talking to him about the bill so he could express his views as his own.

King says he is also suspicious of the language the bill uses saying ministers want “trusted advice”, implying the advocacy from the Children’s Commission wasn’t trusted.

“By ‘trusted’ advice they actually mean the archetypal public sector chief executive who will abide by the minister’s priorities, who will generally not put the most free and frank advice in writing, and who will never speak out against their minister’s decisions in public.

“This bill should be rejected by the committee and a new start made, as so many submitters have recommended.”

Luke Fitzmaurice worked in Oranga Tamariki National Office from 2013 to 2020, which included involvement in the establishment of Oranga Tamariki. He left in 2020 to pursue PhD research in children’s participation in the child protection system.

He says the proposed legislation fails on all fronts.

“This bill reduces the independence of the monitoring of Oranga Tamariki, decreases transparency and weakens the mechanisms designed to ensure the agency remains accountable to the tamariki and whānau it is designed to serve.”

He says while the bill claims to be based on evidence, it is ignoring the evidence of significant independent inquiries.

“The Waitangi Tribunal has made several urgent recommendations for change which this bill largely ignores. The Royal Commission of Inquiry on Abuse in State Care is the largest commission of its type ever conducted, further highlighting the urgency of this issue. It is astounding to me that this bill, which ignores most of that evidence, is being passed at this time.”

Fitzmaurice was also critical of the suggestion that monitoring and advocacy could not sit within the same organisation.

“The perception that monitoring cannot be effectively conducted if the monitor is also an advocate is misplaced. In fact, the opposite is true – the combination of monitoring and advocacy functions can be powerful and crucially important.

“The investigations and subsequent advocacy undertaken by the Children’s Commissioner in the last three years is an illustration of this. No other organisation, expect perhaps the Waitangi Tribunal, had both the public trust and the statutory enablers necessary to thoroughly investigate Oranga Tamariki following the incident in Hawke’s Bay in 2019. To deliberately remove that combination of powers is naïve at best and cynical at worst.”

Fitzmaurice also says the increased role the bill gives to the Ombudsman is misplaced.

“The Ombudsman has no expertise when it comes to hearing from children and has demonstrated a tendency towards working within current systems in its dealings with Oranga Tamariki.”

Fitzmaurice was working at Oranga Tamariki shortly after the documentary on the baby uplift in Hawke’s Bay in 2019 was broadcast. He was astonished at the blasé attitude among staff about the video’s revelations.

“I was away for about a month when it was all kicking off. I’d been following it in the media in that time and expected to go back and for it to have unsettled everyone, and for people to be talking about it. I went back and hardly anyone was talking about it. That was more disturbing to me than anything.

“Everyone had been sent at email saying, ‘What’s in the media is not accurate, don’t worry about it. Keep getting on with your jobs.’ For the majority of people that was enough to say, ‘Oh OK.’ There were a few exceptions but the lack of people talking about it was far more upsetting to me. It was almost like, nothing to see here.”

The question Sepuloni struggled to answer was about two recommendations from the royal commission’s redress report, a report she admitted she hadn’t read. The recommendations were that the Government should create explicit legislation that children in state care had a right to be free from abuse. Although that seems to state the blindingly obvious, Sepuloni couldn’t bring herself to agree with it.

Neither could Sepuloni agree with another recommendation that said if governments failed to uphold that right, they should be legally liable. Both recommendations from the royal commission are partly to address the failure of previous governments to do just that – protect children in state care and to take full responsibility when those children in state care are harmed.

But Sepuloni wasn’t the only one sitting around the Cabinet table when the bill was drafted. Prime Minister Jacinda Ardern approved the bill in its current form, as did Minister of Oranga Tamariki Kelvin Davis.

If there are common themes among the submissions, one is that the Children’s Commission is being dismembered so it can’t hold the government accountable.

Another common theme is that the current bill will open the door to further abuse of children in state care. Many believe it will protect bureaucrats and politicians from criticism and responsibility, but it won’t protect children.