PM won't commit to recommendation to legally protect children from abuse in care

Thursday, 3 March 2022

Prime Minister Jacinda Ardern: “The system has waited a long time for proper oversight and we are committed to getting it right.”

Prime Minister Jacinda Ardern won’t say whether her government will enact a royal commission recommendation that children in state care should be legally protected from abuse.

The Royal Commission of Inquiry into Abuse in Care released a report last year that made a number of recommendations, including that it be enshrined in legislation that children in care should be free from abuse. It also recommended that if this right were not upheld, the Government should be liable and could not delegate that liability to another party.

The prime minister’s office was approached for comment on the recommendations after Minister for Social Development Carmel Sepuloni hung up during an interview about oversight of Oranga Tamariki. Sepuloni is in charge of a bill looking to change the oversight structure of Oranga Tamariki.

Just before Christmas, the Oversight of Oranga Tamariki System and Children and Young People's Commission Bill was slipped into the public domain with an invitation for submissions. Those who keep a close eye on Oranga Tamariki were caught on the hop and had to hastily put together a response, as the deadline closed at the end of January. The bill is at the select committee stage now.

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

* Oranga Tamariki Oversight Bill under fire: 'They want a lapdog, not a watchdog'

Oversight of Oranga Tamariki was a subject the royal commission spoke to in a report on redress that was released late last year. However, Sepuloni admitted to Stuff that she hadn’t read the report when interviewed two weeks ago and wouldn’t answer questions about the recommendations.

Despite the tight timeframe, there were more than 300 submissions on the oversight bill, a number of them critical, saying that it would weaken oversight, not strengthen it. Many of those making submissions have decades of experience in child protection and child advocacy. Numerous submissions included input from survivors of abuse in state care.

But last week Children’s Minister Davis seemed dismissive about those who had made submissions on the oversight bill, telling Radio Waatea: “To be honest, I don’t know what the concerns are. I think it’s just another thing to grizzle about.”

Stuff sought an interview with Minister Davis through his press secretary to ask him to explain these comments, but he was not available, referring Stuff to Sepuloni for questions about the bill.

Minister for Children Kelvin Davis, centre, dismissed submissions criticising the Oranga Tamariki Oversight Bill as “just another thing to grizzle about”.

With no answers from either minister, Stuff put the questions to the prime minister’s office last Friday. On Tuesday night, Ardern came back with written responses:

“I want to acknowledge the strength of survivors who told their stories to the royal commission. The Government received the interim redress report in December and we are considering its recommendations. This work is being led by Ministers Hipkins and Tinetti and they will bring forward to Cabinet their decision on how the Government will best respond to the recommendations you highlight. They are also responsible for overseeing the Royal Commission of Inquiry. The final report from the Royal Commission is due next year, and there will be a number of interim reports between now and then.

“This redress system is separate to the transformation work being undertaken by Oranga Tamariki being led by Minister Davis. It is also separate to the Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill which is before Select Committee which is led by Minister Sepuloni.”

Tupua Urlich was in state care as a child and is critical of plans to push ahead with the Oranga Tamariki Oversight Bill.

However, the royal commission has heard submissions on oversight and monitoring and its redress report lays out some applicable principles, including that monitoring and oversight should be part of a larger redress scheme.

Ardern continued: “We are progressing the Children and Young People's Commission Bill before the Royal Commission of Inquiry is complete because we simply cannot wait any longer to ensure there is proper oversight of Oranga Tamariki. However, we are very open to making changes to the Bill through the Select Committee process to ensure we get it right.

“We have also built into the bill a five-year review period so that any recommendations from the Royal Commission of Inquiry (due in 2023), can be incorporated into the system which monitors OT, advocates for children and investigates complaints. The system has waited a long time for proper oversight and we are committed to getting it right,” she said.

She did not address the two royal commission recommendations asked about, that “the Crown should create in legislation a right to be free from abuse in care, and a non-delegable duty to ensure all reasonably practicable steps are taken to protect this right, and direct liability for a failure to fulfil the duty.”

In addition, the prime minister was asked whether she agreed with Davis’s on-air comments, but did not provide a response.

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)

Tupua Urlich, a representative of VOYCE, a group that advocates for children in care, said the bill and the prime minister’s response showed that the Government was not listening to those most affected by past failures.

“We would rather wait longer to get this right than the Government steam ahead with what they think is right,” he said.

“Oranga Tamariki can not transform itself. It’s proven this already. Why do we have a royal commission of inquiry under way if the Government are not listening? By separating responsibilities out across different portfolios, it again over-complicates things.”

Urlich said he had no confidence in Minister Sepuloni.

VOYCE chief executive Tracie Shipton said the issues of redress, monitoring and oversight were not separate in the way the prime minister contended.

“They are completely symbiotic. I just find it incomprehensible that she would, or that any prime minister would, see those things as separate.”

Lawyer Sonja Cooper has represented thousands of survivors of state abuse and said the Crown had constantly tried to dodge liability by trying to shift responsibility to a third party, whether contractors or across institutions. She said the royal commission’s recommendations about legal protections and responsibility were a direct response to that issue.

“We come up against that argument with the state constantly. If the buck stops with the state and they’re liable for a breach, we won’t need to go through this dance every time – was this an independent contractor or who was liable, was it the Ministry of Health or was it the Ministry of Education?”

Ardern announced the royal commission within the first 100 days of becoming prime minister in 2018.

“We have a huge responsibility to look after everyone, particularly our children in state care,” she said at the time. “Any abuse of children is a tragedy, and for those most vulnerable children in state care, it is unconscionable.

“This is a chance to confront our history and make sure we don’t make the same mistakes again. It is a significant step towards acknowledging and learning from the experiences of those who have been abused in state care.”

The royal commission has heard from hundreds of victims of abuse, at an actual and budgeted cost to taxpayers of $148 million.

The redress report detailed the response of previous governments to victims of abuse in care.

At its release on December 15, Minister for Public Services Chris Hipkins described the the lengthy process for survivors to get redress as a “national disgrace”.

The commission will seek a response from the Government on the redress report in April, four months after its release.