Despite overwhelming public opposition, the government is pressing on with a bill that would reduce independent oversight of an agency that’s been plagued with problems. And that’s just the start of its failures, argues Luke Fitzmaurice.

Remember that time the government tried to get rid of the children’s commissioner? A bill introduced late last year proposed major changes to the commissioner’s role, as well as significantly reducing the independence of the oversight of Oranga Tamariki. For a department that had faced significant criticism in the two years prior, reducing independent oversight seemed foolhardy at best, and cynical at worst. Fast-forward six months and a select committee has now reported back on the proposed next steps, following a consultation period. Reader, it’s not looking good.

To be fair, there are a few positive recommendations in the select committee’s report. The big one is that there will still be a children’s commissioner – the select committee has recommended that the chair of the board of the commission be designated the chief children’s commissioner. Under the proposals the chief children’s commissioner would have the ability to report straight to the prime minister, another welcome change. The obligations on the organisation that will monitor Oranga Tamariki have also been strengthened slightly. The monitor will now be required to publish all of its reports, and Oranga Tamariki will be legally required to respond to the monitor’s findings within a set timeframe. 

Beyond that, however, the bill is largely unchanged. The monitor of Oranga Tamariki will remain a departmental agency, not an independent crown entity, which has major implications for the monitor’s independence. It is essentially an internal monitor, not an independent one, with a significant reduction in transparency, accountability and independence from government influence. 

Parts of the bill speak volumes about the potential impacts of this loss of independence. For example, the bill retains a provision that a purpose of the monitor is to support public trust and confidence in Oranga Tamariki. This is hugely problematic – public trust must be earned, not mandated, and it is easy to imagine how a government keen to avoid controversy could use such a provision to silence concerns from what will essentially be another government department. Several submitters cautioned against such a provision, but to no avail.

From a Māori perspective, the lack of independence is just the beginning. There is no mention at all in the bill of rangatiratanga, despite a 2021 Waitangi Tribunal report finding that the Crown had breached Te Tiriti o Waitangi through the actions of Oranga Tamariki and its predecessors. It’s as though the tribunal inquiry never happened. 

There are provisions within the bill to create a Māori advisory group for the monitor of Oranga Tamariki, as well as a requirement that at least half the board of the new commission have knowledge of things Māori. However, the bill deliberately excludes a requirement that the members of these groups actually be Māori. A large volume of submitters argued for such a provision. 

The select committee asked the Human Rights Commission for advice on that point, apparently concerned that such a requirement could violate the Bill of Rights Act. The Human Rights Commission advised that not only would such a provision be justifiable from a Te Tiriti perspective, it would also be justifiable as a measure designed to address disparities for Māori. In other words, the Human Rights Commission endorsed such a requirement on multiple grounds, but the select committee ignored that advice.

There is no mention in the bill of the UN Declaration on the Rights of Indigenous Peoples. There is no mention of the UN Convention on the Rights of People with Disabilities. The current children’s commissioner, Judge Frances Eivers, has come out strongly against the government’s plan, citing a lack of consultation and a failure to respond to the concerns of the public as just some of her many concerns. 

Imagine thinking, in 2022, that the way to reform Oranga Tamariki was through less accountability, not more. Imagine thinking it might be inappropriate to require a position intended to achieve equity for Māori to actually be held by someone Māori. Imagine thinking that after a public consultation period in which submissions overwhelmingly opposed the proposals that you should just press on regardless. The Green Party is calling for the bill to be withdrawn, with Act and National also opposing the changes. Te Pāti Māori is not represented on the select committee but it’s not a stretch to suggest they’d be equally concerned. 

There was another significant milestone this week. The Royal Commission on Abuse in Care began its first public hearing into foster care on Monday, with survivors sharing the stories of abuse and neglect they experienced at the hand of state-sanctioned foster carers. It is the latest phase in the years-long process of trying to ensure the worst horrors of New Zealand’s child protection system are never able to be repeated. Imagine having the gall to continue with these reforms while the Royal Commission remains ongoing. The government can no longer claim these are honest mistakes. They know what they’re doing and they are committed to doubling down, despite overwhelming public opposition.