Should the Children’s Commissioner be an officer of parliament?
I treasure the cartoon which showed the Minister of Energy who led the restructuring of the electricity sector in the late 1990s, in a repair shop with the man behind the counter saying ‘it weren’t broke until you tried to fix it’. One has a similar reaction to the recently introduced Oversight of Oranga Tamariki System and Children and Young People's Commission Bill which abolishes the Children’s Commissioner. With the odd exception, every commissioner since the establishment of the office in 1989 has done an excellent job. So why the need to fix it?
Unfortunately the bill was not introduced into parliament by the relevant Minister – Carmel Sepuloni of Social Development – so we have not been told what has to be fixed. Here is my guess about what is going on. First, note that the scope of reviewing is being narrowed to just a single government department, Oranga Tamariki. Children elsewhere will have not someone to take actions on their complaints, to monitor them, nor to advocate for them. Second, the Children’s Commissioner is being replaced by a commission of four. That will further weaken the surveillance. The overall quality of the Children’s Commissioners has been a miracle; you can be absolutely confident that among the additional appointees will be politically correct and party loyalists of no great competence. So the aim is to weaken the system.
I appreciate, and applaud, setting up an internal review and complaints system for Oranga Tamariki, but I cannot see the consequential logic of abolishing the Children’s Commissioner who has a much wider remit.
At this point I need to set up some terminology. By ‘parliament’ I mean the legislature of Members of Parliament, which makes laws and scrutinises the ‘executive’, in a democracy holding it to account. The ‘executive’ consists of Ministers and government departments which decides on policy, proposes laws (to be approved by parliament) and administers those laws. What is crucial is that the executive has two wings: ministers and departments. When we are thinking about ‘the government’ we rarely pay enough attention to the bureaucracy, which is much more influential than the public discourse thinks. (I add that I am greatly impressed by many of the officials – not all; we are a better New Zealand where the officials are of high quality.)
An oddity of the distinction between parliament and the executive is that there are a number of offices inside the government bureaucracy whose function is to hold the executive to account. The Children’s Commissioner is one (more are listed at the end of the column.) Inevitably, there are examples of bureaucrats going out of their way to weaken those who hold them to account.
The best example of this is the Chief Archivist who is responsible for the preservation of public records which are crucial elements in the accountability system. This is well illustrated by the findings of the Waitangi Tribunal dependent on our archives, but archives are also crucial for the working of the Official Information Act. Thus, the Chief Archivist is a critical component of the constitution. Yet he or she is buried as a lowly officer in the Department of Internal Affairs. Moreover, the DIA consciously downplays the constitutional role of archives, focussing on its cultural role. They are important there also, but in a democracy the constitutional arrangements take precedence – if not in the DIA. The more generous assume the DIA wants to absorb the Ministry of Culture and Heritage but the bloody-minded assume that the department wants to reduce accountability. The abolition of the Children’s Commissioner seems to be another example of downgrading an irritant.
There is an oddity about the constitutional arrangement where agents to hold the executive accountable are imbedded in the executive. In a parliamentary system, the primary responsibility for accountability is parliament itself. It does so by challenging ministers with parliamentary questions and by select committees reviewing executive agencies. In addition there are statutory offices of parliament who also hold the executive to account: the Auditor General, the Commissioner for the Environment and the Ombudsman (whose responsibilities include the Official Information Act). The basic principle of each officer of parliament is that they do what members of parliament could do, had they the time, the expertise and the resources. So they are a critical element in parliament’s holding the executive to account.
If there are any doubts about the need, consider the obfuscation the executive often practices towards official information requests; the frequency which they are overturned by the Ombudsman tells us a lot. (A scorching review by Anna Fifield, editor of the Dominion Post, of the lack of executive transparency is here.) A particularly odious example was when the government was considering whether the Chief Archivist should be an officer of parliament. The DIA held back a key policy paper and fought the Ombudsman’s office, using an absurd defence until the decision was taken, and then it released the paper. (Given its quality one can well understand why they wanted to hide it, but the hiding gave the DIA the freedom of accountability it wanted.)
This raises the question of whether the Children’s Commissioner should really be an officer of parliament. Reviewing its 43-year history one is struck by how essentially the commissioners have been doing something which members of parliament could do, had they the time, the expertise and the resources; to advocate for children, to monitor them and to take actions on their complaints.
The executive will fight to the bitter end to prevent more officers of parliament; it has no wish to become more accountable. (We saw this with the DIA and the Chief Archivist.) Will parliament want to extend its powers by increasing its agents which hold the executive accountable?
The difficulty is that one large party is a core part of the executive and its ministers want to avoid being held accountable. Meanwhile, the other large party wants to become part of the executive ... ditto. Even so there are some minor parties who are unlikely to dominate the executive: ACT, the Greens and Te Pati Māori. They might want to extend the powers of parliament by increasing the range of officers of parliament. A good place to start might be using the Oversight of Oranga Tamariki System and Children and Young People's Commission Bill to make the Children’s Commissioner an officer of parliament.
Footnote. Some examples of members of the executive whose primary task is to hold the executive to account:
Chief Archivist;
Commissioner for Children;
Health and Disability Commissioner;
Human Rights Commissioner;
Police Complaints Commissioner;
Privacy Commissioner;
Retirement Commissioner.
The responsibility of some extends beyond the public sector, for those in the private sector also need to be advocated for and to have actions taken on their complaints.
Goethe wrote ‘It is has been said that figures rule the world. Maybe. I am quite sure that it is figures which show us whether it is being ruled well or badly'. The Brits have a UK Statistics Authority which is an official statistics watchdog which has reprimanded its prime minister. Perhaps we should have a parliamentary commissioner with a similar oversight.