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Kathryn Hollingsworth[* ]
In 1989 the Commissioner for Children was established as part of wider reforms to the law relating to the care and protection of children and young persons.[1]
The introduction of this office coincided with the adoption of the United Nations Convention on the Rights of the Child (UNCROC), and was part of a growing awareness in New Zealand and worldwide of the importance of protecting the special interests and rights of children. As one of the world’s first children’s
‘ombudsmen’, the Commissioner was hailed as an innovative and important aspect of the system of child protection, responsible for holding to account the Child, Youth and Family Service (the organisation with primary responsibility for the care and protection of children)[2], as well as providing a ‘voice’ for children and young people.
However, fourteen years on, New Zealand has the third highest number of child deaths due to maltreatment in the industrialised world.[3]While such comparative statistics should be treated with a certain amount of caution[4], they do provide a warning signal that New Zealand is failing adequately to protect its children and young people from abuse and neglect. The worrying picture created by these figures is compounded by the most recent report of the UN Committee on the Rights of the Child on the extent to which New Zealand is meeting its obligations under the UNCROC.[5 ]Amongst other things, the report notes that the Government has not yet acted on the previous recommendations made by the Committee in 1997.[6] Improving the conditions in which New Zealand children live is not the sole responsibility of any one body or institution, and certainly a commissioner for children cannot be expected single-handedly to reduce incidents of maltreatment or to alleviate child poverty. But at the least, one would expect a country with a children’s commissioner to feature less prominently in the Unicef statistics and its Government more readily to address recommendations of the UN Committee. Proposals are currently before Parliament that will extend the role and jurisdiction of the Commissioner. The extent to which the proposed changes would help redeem New Zealand’s poor ranking in the Unicef statistics and improve the effectiveness of the Commissioner will be explored in this paper. First though, the current legal position of the Commissioner and the limitations of the Office will be considered.
At present, the Commissioner is not sufficiently independent from Government; there are inadequate opportunities for the views of children to be taken into account; and too much emphasis is placed on advocacy rather than accountability. It is these three inter-related issues on which the Commissioner’s ability to contribute to the improvement of the lives of New Zealand’s children depends. First,theeffectivenesswithwhichtheCommissionercancarryoutherfunctions, broadly defined as accountability and advocacy,[7]hinges on her independence from Government. The Commissioner’s accountability role is comprised of an ombudsman’s investigative function and monitoring policies and practices, both in relation to the Department of Child, Youth and Family Services (CYFS). To scrutinise and hold CYFS to account in any robust and meaningful way, the Commissioner must be independently appointed and, once in the post, should be protected from threats to limit her budget or control her work programme, and be safe from dismissal. If not, the very real risk exists that the Government will be able to limit the degree to which the Commissioner is able, and willing, to carry out full and proper scrutiny of CYFS. Likewise, the Commissioner’s role as a children’s advocate requires the appointment of a well-qualified and independent candidate. The danger with any child advocate is that although he or she may act on behalf of children, that person may not always represent children. Likewise, the values underlying child advocacy are “highly related to the individual child advocates’ general political, social and religious values”.[8]
This is probably inevitable, but the problem is greater if Government is able to exert pressure on the Commissioner to promote its values, thus avoiding the more open channels of political scrutiny that exist if those values are instead advanced in legislation and policy.
One way to ensure that it is the views of children that are reflected in the work of the Commissioner, rather than just those of the Commissioner or Government, is to increase the opportunities for children’s participation. This is the second factor that must be present for the Commissioner to be effective.
The third issue concerns the focus of the Commissioner’s work. Over the last fourteen years, the Commissioner’s role as children’s advocate has gained primacy over the accountability role. As will be argued below, the Commissioner would have a much greater impact if her work focused on holding Government to account, rather than the more ambiguous advocacy role. The shortcomings in the Commissioner’s role and status stem partly from the circumstances in which the office was set up. The Commissioner was not created in a piece of stand-alone legislation but instead was established by section 410 of the Children, Young Persons and Their Families Act 1989 (CYP&TF Act), as part of the wider reforms to the system of care and protection of children, and youth justice. According to Laurie O’Reilly, the second Commissioner, the Office of Commissioner for Children (OCC) was established in order to help deflect the criticisms the Government of the day was receiving about the reforms as they were originally conceived.[9]The establishment of the Commissioner provided a compromise between the proposals advocated by the National Advisory Committee on the Prevention of Child Abuse and Neglect, which recommended a strong system of accountability,[10]and others such as the Department of Social Welfare, who felt that the initial proposals put too much emphasis on accountability.
Creating the Commissioner in order to provide a solution to a political impasse, rather than recognising the establishment of a children’s commissioner as being of value in and of itself, explains why the constitutional status of the post is weak. This is also partly due to the fact that the Commissioner was established within a piece of legislation that deals extensively with other issues, and consequently, little of the Parliamentary debate focused on the role and status of the Commissioner.[11]In comparison, the Children’s Commissioner for Wales was established in 2000 following a high profile investigation into child abuse in care homes in north Wales.[12]The creation of a “children’s champion” was one of the key recommendations made in the subsequent Waterhouse report[13]and commanded all party support.[14]The legislative process therefore focused specifically on the establishment of the Children’s Commissioner[15], and considerable emphasis was placed on securing the Commissioner’s independence where possible (taking into account the particular constitutional arrangements in Wales) and on providing the Commissioner with the powers and functions necessary to ensure the post was more than a “toothless watchdog”.[16]
The limitations of the New Zealand Commissioner for Children have been increasingly recognised over the last decade and calls have been made to improve the role, status, and independence of the Commissioner, including the introduction of two private members’ bills in the late 1990s.[17 ]In 2001 the Government responded by introducing the Commissioner for Children Bill.[18]
The Bill re-affirms the position of the Commissioner in a piece of stand-alone legislation and extends, in some limited areas, the Commissioner’s jurisdiction and role. In particular, the Bill gives the Commissioner a statutory role to monitor and promote the UNCROC. But the proposed legislation does not go far enough. The Bill focuses on the Commissioner’s role as an advocate for children, making this the primary function.[19]However, the Bill does little to improve or increase the Commissioner’s accountability function, though this is surely the most important aspect of the Commissioner’s role if she is to address the concerns raised in the UN Committee or Unicef reports. Most importantly, the Bill also fails to address the limitations in the Commissioner’s constitutional status, particularly with regards to her independence from Government. This is a critical omission given that the Commissioner’s independence is crucial to the effective performance of both the advocacy and accountability roles. The Bill does increase the emphasis on children’s participation, though even here the provisions do not go far enough. The publication of the Unicef statistics could, or should, provide the impetus that was lacking in 1989 to persuade the Government that now is the time for legislation that provides for an independent children’s officer to promote the rights of children and adequately holds government to account. However, given the provisions in the Bill as it currently stands, and the lack of priority with which the Government is treating the Bill,[20]this does not look hopeful. This article will analyse the role of the Commissioner, and the impact the Bill would have if successful. It will argue that increasing the Commissioner’s advocacy role should not be at the expense of her accountability role, and that in any event, to carry out either of the functions successfully, the Commissioner must be independent of Government and must encourage children’s participation.[21]
a) Accountability The Commissioner’s role in holding Government to account is multifaceted. It includes an “ombudsman” role, investigating specific decisions and actions exercised under the CYP&TF Act[23], and a monitoring role, of the policies and practices of CYFS.[24]The Commissioner also currently advises the Government and encourages “child friendly” policy development.[25 ]This is beyond what could be considered an “accountability” role, and it is inappropriate for an officer who is also responsible for holding Government to account to be involved in advising Government. However, it will be argued below that this function could be re-developed into an audit role, thus strengthening the Commissioner’s accountability function.
i) The investigative role: The Commissioner as ombudsman The Commissioner’s role in the traditional ombudsman sense includes powers to investigate decisions and recommendations made in respect of any individual child or young person.[26]This is limited to decisions, recommendations and acts done under the 1989Act. However, the Commissioner may also inquire generally into any matter that relates to the welfare of children and young persons.[27]This latter function is not confined to those issues covered by the Act; it is potentially a Government wide function. However, it is limited to “general inquiries” and does not include specific investigations. This distinction was not adhered to by the last Commissioner, Roger McClay.[28]
McClay’s interpretation of his investigative jurisdiction was the subject of a complaint to the Ombudsman by a school that had made a decision not under the CYP&TF Act, but under the Education Act 1989.[29]The school’s decision had been investigated by McClay, but the school was unhappy with the procedures he followed and complained to the Ombudsman. In the course of the Ombudsman’s investigation it came to light that this was a jurisdictional matter. McClay appeared to believe he had the power to investigate any decision that related to the welfare of an individual child. However, in the Ombudsman’s opinion, the Commissioner’s jurisdiction to investigate specific complaints was limited to decisions or actions made under the CYP&TF Act and did not extend to all welfare matters.[30]
This was the correct decision given the current limits of the statutory provisions, and a child whose complaint falls outside the CYP&TFAct need not be left without a remedy. Redress can, for example, be had to the Ombudsman. However, one can appreciate McClay’s desire to widen the scope of the investigative function in order to give better protection to the welfare of children, especially since the Commissioner may have a better appreciation of the issues for a child as a child, rather than simply as a complainant to the Ombudsman like any other. This is recognised by the Ombudsman’s Office. Currently the Commissioner’s jurisdiction overlaps with the Ombudsman in relation to investigating complaints about decisions, recommendations and actions taken under the CYP&TF Act. Following the Ombudsman’s investigation of the Commissioner, the establishment of a protocol between the two offices, setting out their relevant jurisdictions and the procedures to be followed when there is overlap, was discussed. The protocol recognised that the Commissioner is the best person to investigate decisions involving children.[31]However, the protocol has not yet been formalised. Part of the reason for this is because of the 2001 Bill.
If the Commissioner for Children Bill is enacted, the Commissioner’s investigative role will be extended to cover not just those actions carried out under the CYP&TF Act, but any decision or recommendation made about an individual child.[32]If, or when, that happens, the overlap between the two offices
(as well as other statutory bodies) will be increased, and the need for a revised, and formalised, protocol will be all the more pressing. The Bill provides that where a complaint also falls within the scope of another statutory body, including the Ombudsman,[33]the Commissioner should consult that body and refer the complaint where necessary.[34]The requirement for consultation and referral is valuable, but it should not be seen as obligatory for the Commissioner to refer all complaints that fall within the jurisdiction of another body to it, or there would be little point in extending the Commissioner’s jurisdiction. At the least, there should be a presumption that where the complaint relates to a child because she is a child, the Commissioner should take responsibility for that investigation. Other complaints that straddle the jurisdiction of one or more statutory bodies should be decided on a case-by-case basis.
The Bill’s extension of the Commissioner’s investigative jurisdiction is to be welcomed since it would allow the Commissioner more readily to hold all of Government to account.[35]However, the widening of the Commissioner’s investigative jurisdiction is of little value if she lacks adequate powers to carry out those functions and is unable to persuade Government to accept recommendations. Under the CYP&TF Act, the Commissioner has all such powers as are reasonably necessary or expedient to enable the carrying out of the functions. However, these are “broad and ill defined” powers,[36]whose scope creates uncertainty, leading to delays in the Commissioner’s investigations.[37]
The Commissioner’s powers include the discretion to regulate the procedure of her investigations, with the proviso that she cannot make an adverse comment about a person unless that person is given the opportunity to respond. The Bill is more prescriptive both in terms of the procedure to be followed[38]and the powers the Commissioner has when conducting investigations. Crucially, the Bill would give the Commissioner legally enforceable rights to access documents and information from any person to whom written notice is given, provided a number of listed conditions are met.[39]The Bill requires the Commissioner to maintain secrecy, and in relation to personal information, the Commissioner continues to be bound by principle 6 of the Privacy Act 1993.[40]
It is not just the robustness of the investigative procedures that are crucial to the Commissioner’s success, but also what happens to the reports and recommendations after the investigation. It is often said that commissioners or ombudsmen whose recommendations are not enforceable are “toothless watchdogs”. However, the lack of legally enforceable powers is not uncommon for statutory officers or ombudsmen,[41]and the Commissioner is no different.[42]
Indeed, the Commissioner does not even have a specific power to report after an investigation, and the Bill would not change this.[43]Being able to compel compliance with recommendations would certainly give the Commissioner
“teeth”, but would also increase the likelihood of the Commissioner being challenged through judicial review or under section 27 of the New Zealand Bill of Rights Act 1990. The result might be that in order to avoid such challenges, investigations would be lengthier, more expensive, and more time consuming. Rather than being able to compel compliance, one option would be to give the Commissioner powers to follow up investigations if recommendations are not complied with. Such follow up procedures could include a requirement that where her recommendations have not been followed an advertisement be placed in the press by the relevant body to explain why.[44]The use, and threat of, negative publicity can be an effective sanction whilst avoiding the problems of legally enforceable powers.
ii) Monitoring: The Commissioner as auditor
In addition to the investigative role, the Commissioner has a wider accountability function to monitor and assess the policies and practices of CYFS.[45]The Act is silent on how the Commissioner is to monitor and assess policies. It is left to the present incumbent to decide how they go about this aspect of his or her job. Roger McClay fulfilled this role by: conducting CYFS site visits around the country; reviewing the CYFS child case review,[46]section 47
Place of Safety Warrants, and Care and Protection Resource panel reports; and inviting complaints about decisions made, or not made, and actions taken under the CYP&TF Act.[47]Under the Bill, part of the monitoring role would require the Commissioner to promote effective complaints mechanisms and to monitor the nature and level of complaints.[48]
The Commissioner’s monitoring role also includes providing advice to the Minister.[49]The advisory role is three-fold. First, her role is to advise the Minister on any matter relating to the administration of the Act and the working of the Act;[50]secondly, her role is to encourage the development, within CYFS, of policies and services designed to promote the welfare of children and young people;[51]and thirdly, her role is to undertake and promote research.[52]
It is inappropriate for the Commissioner to have this type of role. The Commissioner may be asked to investigate a complaint that relates to a practice or procedure that she has enquired into, or encouraged. Not only does the potential for conflict of interest require exclusion from an advisory function, but as an officer who is holding Government to account, the Commissioner should be completely removed from the internal Governmental processes. If the Government requires someone to promote the rights and interests within the system of Government, it should create a Minister for Children. The Commissioner can still have a role in monitoring the policies and practices of Government, but it should be an external audit function. This could be achieved by requiring child impact statements on new policies and laws. This would focus the minds of policy makers and provide a basis for the Commissioner’s audit function. The Commissioner should not be able to criticise Government policy, but could quite legitimately examine the impact of those policies on children, and their effectiveness at promoting and protecting the rights of children.[53]Parliament, and the media, could then use the reports to criticise, scrutinise, and hold Government publicly to account. The changes suggested above, combined with the wider investigative function as proposed by the Bill, would provide a stronger accountability role for the Commissioner, a “bigger stick”. This is where the Commissioner can make the most difference to children in New Zealand. The advocacy role is important, but should be the secondary, not primary, role of the Commissioner.
b) Advocacy: promoting the rights, interests and welfare of children The other statutory functions of the Commissioner are more closely linked to what could be described as the advocacy role. Advocacy is a somewhat elusive word, used frequently to provide a catch-all term for the type of activities that seek to promote or protect the interests, rights and welfare of children. Specifically under the 1989 legislation this includes receiving and inviting representations from members of the public and increasing public awareness.[54]Like the CYP&TF Act, no definition of advocacy is given in the 2001 Bill[55]and yet, as well as being listed as one of the twelve general functions of the Commissioner,[56]it is also identified in the purposes of the legislation as being the primary role.[57]
The assumptions that underlie advocacy can help to explain better the purpose of this aspect of the Commissioner’s role. These can include: (i) an assumption that people have or ought to have, basic rights; (ii) an assumption that rights are enforceable by statutory, administrative or judicial procedures; (iii) advocacy efforts are focused on institutional failures that produce or aggravate individual problems; (iv) advocacy is inherently political; (v) advocacy is most effective when it is focused on specific issues; and (vi) advocacy is different from the provision of direct services.[58]Of the proposed general functions set out in clause 11 of the Bill, the majority are what could be described in some way as an “advocacy” role. These include:[59]raising awareness of the UNCROC and children’s interests, rights and welfare;[60]to act as an advocate for children’s interests, rights and welfare (except before a court or tribunal); and to report to the Prime Minister on matters affecting the rights of children. Missing from this list is the type of advocacy with which we as lawyers are most familiar – legal advocacy.[61]The Bill would, however, give the Commissioner a statutory power to make a report to a court if there are issues raised which related to the UNCROC or to the interests, rights or welfare of children generally.[62]But this “legal advocate” role is limited to providing the Court with information about children in general, rather than acting as an advocate for a particular child in legal proceedings.[63]This limit is of course absolutely correct.The role of a commissioner for children is not that of a lawyer, and if he or she became involved in the cases of individual children, the role as an advocate for all children could well be compromised.[64]In any event, a lack of resources would likely prevent the Commissioner from being able to fulfil such a role.
The restriction on acting as an advocate for individual children in court should also extend to the Commissioner exercising self-imposed restraint from commenting in the media on the cases of individual children. For example, in
1999 Roger McClay publicly stated his views in the cases of Liam Williams- Holloway and Tovia Laufau, that the parents’ right to refuse the medical treatment recommended by doctors should be overridden if it were in the child’s best interest.[65]Although the Commissioner may have expertise on issues that affect children in general terms, this does not extend to expertise in specific cases, unless of course the Commissioner has been directly involved through an investigation. But in such cases the Commissioner would in any event be barred from talking about them because of the secrecy provisions. There is no specific statutory authority for commenting on individual cases and doing so seems to go beyond what is envisaged as the proper advocacy role for the Commissioner. The danger with prioritising and increasing the Commissioner’s advocacy role in the Bill is that it may encourage a Commissioner to comment more frequently on cases in which she or he has no specific knowledge. As with the investigative role, the advocacy role of the Commissioner will at times overlap and, on occasion, conflict with other statutory bodies. For example, it is likely that the Commissioner’s advocacy functions will overlap with the proposed Families Commission.[66 ]The Families Commission will not have any investigative powers, but will be an “advocate for families”. It will promote interest in and understanding of family issues and needs amongst government departments and the wider community. As well as having overlapping interests with the Commissioner (given that children are a key component of many families), the work of the Families Commission is also likely to conflict with the Commissioner’s work. What exactly the rights and interests of the family are remains to be seen,[67]but one danger is that they may be equated to the rights and interests of parents. These rights and interests do not necessarily align with the rights of children, indeed they may actively conflict, given that most abuse of children takes place within the family. The Commissioner would then have to be an even fiercer advocate of children’s rights. This is best done within the context of the accountability functions. If the Commissioner engages in public disagreement with the Families Commission, or any other statutory body, particularly in cases involving individual children, the risk is that the debate will be confused and unconstructive, and the credibility of both bodies weakened.[68]
The Commissioner’s focus should be on protecting children’s rights by acting as an ombudsman and an auditor, within a robust system of accountability. Publicly commenting on individual cases, or criticising the views of other statutory bodies, should be left to pressure groups and lobbyists.
c) The Foundation of the Commissioner’s Functions: The United Nations Convention on the Rights of the Child Akey purpose of the 2001 Bill is to give the Commissioner an increased role in relation to the UN Convention on the Rights of the Child.[69]The UNCROC will thus form the basis of much of the Commissioner’s advocacy and accountability roles. The Convention guarantees 40 substantive rights to children and covers the full range of civil, political, economic, social and cultural rights,[70 ]but is by no means perfect.[71]The Convention veers between a welfare/paternalistic approach[72]and a child autonomy approach,[73]and allows for the possibility of civil rights being “trumped” by traditions and cultural values.[74]
As an international Convention which sets out a number of “rights” but which lacks an adequate system for enforcement,[75 ]the UNCROC does not necessarily further protect or guarantee those rights to children. States can however demonstrate their commitment to the protection afforded under the Convention in at least two different ways.[76 ]First, the Convention can be incorporated into domestic legislation in which case the rights are enforceable through the national courts.[77 ]Given that many of the Convention rights are “aspirational” and encompass economic and social rights as well as the more traditional civil and political rights,[78]it is unlikely that this path will ever be taken by New Zealand. A second, and perhaps less contentious, way for a nation state to give better effect to the UNCROC is to have a children’s advocate, such as the Commissioner for Children, who has a specific function to promote the UNCROC rights and check that they are being upheld.The Bill would give the Commissioner this role, requiring the Commissioner to raise awareness and understanding of the Convention and to monitor the application of the Convention by departments of State and other instruments of the Crown.[79]
The 2001 Bill is important in providing the legislative basis for the Commissioner’s UNCROC work, but it is clear that it does not affect the legal status of the Convention in New Zealand. The Convention is set out in schedule
2 of the Bill but this is for reference purposes only and certainly does not have the effect of incorporating the convention into domestic law.[80 ]Nonetheless, the Government must intend for the Bill to allow better effect to be given to the Convention rights or why else increase the Commissioner’s jurisdiction? With time, and a vigorous approach by the Commissioner, the UNCROC rights could be given real protection in New Zealand. However, as with all ombudsmen-type officers, this will depend on the status and respect with which the Commissioner is held by those being monitored, and the extent to which recommendations are followed.
In his submission to the Select Committee on the 1998 Bill, Roger McClay suggested that the Commissioner should be empowered to direct any public body to comply with the principles of the Convention, and that if there was no compliance the Crown should have the power to direct the party or agency to offer an explanation to the Commissioner or to Parliament. However, the Government of the day did not agree. It argued that because the UNCROC is not incorporated into New Zealand law it would be inappropriate for the Commissioner to be able to compel people to comply. This is a reasonable point to make; the UNCROC should not be incorporated “through the backdoor”. A compromise between powers to compel and recommendatory powers only would be to give the Commissioner powers to direct reasons to be given where there has been a failure by Government to follow the principles in the Convention.
Whatever enforcement powers the Commissioner has, promoting and monitoring the convention will not be an easy task. The Commissioner will have considerable discretion to interpret the meaning and scope of each of the rights as well as deciding the priority and weighting to be afforded to them. The Commissioner will also have to marry the slight, but crucial, difference between the UNCROC and the CYP&TF Act. In the former, article 3 provides that the best interests of the child shall be a primary consideration in all actions concerning children. In the latter, section 6 provides that in all matters relating to the administration and application of the Act the welfare and interests of the child or young person shall be the first and paramount consideration.
One of the key organizations that the Commissioner will be monitoring in relation to their compliance with the Convention will be CYFS. Clearly, and rightly so, the domestic legislation will take primacy over the Convention, but the difference between article 3 of the UNCROC and section 6 CYP&TFAct serves to highlight that the Commissioner’s task will not simply be a straightforward matter of showing inconsistencies between the law and practice of New Zealand institutions and the Convention, it will also require active choices by the Commissioner as to whether those differences are notable or not. The Commissioner will thus have significant power to shape the development of the UNCROC protected rights in New Zealand.[81]It is crucial that the Commissioner promotes those rights which are important to children themselves and not to the Government of the day. For this reason, as well as the others described above, the Commissioner should be independent of Government and ensure that the views of children feed into her work.[82]
Participation and Protecting Independence
a) Children’s participation
Children’s participatory rights have been increasingly recognised over the last
15 years, both internationally in article 12 of the UNCROC[83 ]and domestically, for example, in section 5(d) of the CYP&TF Act[84]and the proposed Care of Children Bill 2003.[85 ]The increased emphasis on participation rights reflects a more fundamental shift in attitude to children’s rights and interests, from a welfare or paternalistic approach to one that has at its heart a child’s right to autonomy.[86]Those participation rights are often formulated in a way that gives children the opportunity to put forward their views about decisions which affect them individually. The 2001 Bill would give greater recognition to those rights by providing that the Commissioner promote the participation of children in decisions that affect their lives.[ 87]
Less recognised, certainly in legal provisions, are the collective participation rights afforded to children and young people. Children are increasingly being recognised as having competence to voice their opinions on matters that affect them individually, but less so in the wider, more political, sense of participating in matters that affect children generally. The ultimate aim for a children’s advocate should be to diminish the necessity of his or her own role, as the voices of children themselves become increasingly powerful.[88]In this sense, the future success and credibility of the Commissioner for Children as an advocate for children may well turn on how well she can promote and encourage the participation rights of children as a group, and in particular ensure that a diversity of children’s views are heard. One provision that could be seen as giving effect to this is the requirement in clause 10 that the Commissioner give serious consideration to the views of children and take those views into account. The departmental response to the Select Committee’s report demonstrates further commitment to the group participation rights of children. A new clause is recommended that specifically requires the Commissioner to develop appropriate means of consultation with children for the purpose of enabling the views of children to be taken into account in the exercise of the Commissioner’s functions, and when she makes any significant recommendations.[89]The increased advocacy role of the Commissioner makes this a crucial provision. It is essential that a children’s advocate actually represents the views of children, rather than simply assuming he or she is representing the views and interests of children, otherwise there is a considerable risk of confusing whose interests are being advocated.[90]
One way of achieving this would be for the Commissioner to have in place proper procedures and systems to ensure that the priorities and concerns of children are being heard and promoted, and reflected in the work programme. The Young Persons’ Reference Group, formed to provide the basis of the Commissioner’s consultation with young people, provides a starting point, but only a starting point. The Reference Group is small, and other participation structures should be put in place to ensure that a diverse group of children is able to participate.[91]At least then, when the Commissioner does have a role to play as an advocate for children, she will be legitimately acting on their behalf.
b) The Importance of Being Independent
The current legislation fails to provide a robust framework for protecting the Commissioner’s independence from Government in a number of ways. First, rather than being established by a piece of stand-alone legislation, the Commissioner is established within legislation which sets out the wider provisions for the care and protection of children, thus intrinsically linking the Commissioner to these mechanisms. Although it would mostly provide only a symbolic level of independence, the Commissioner should be set up in a distinct piece of legislation. If enacted, the 2001 Bill would satisfy this requirement. Secondly, and of more concern, is the part played by the Minister for Social Development and Employment in the Commissioner’s appointment, dismissal, setting of the terms of employment, budget and accountability. Ultimately, the Commissioner is responsible to the Minister. The Commissioner is appointed by the Governor-General on the recommendation of the Minister,[92 ]can be removed
“for just cause or excuse” by the Governor-General,[93 ]and it is the Minister to whom the Commissioner reports.[94]
Under the current legislation, the Commissioner’s accountability functions relate primarily to CYFS. Previously part of the Ministry of Social Welfare (now the Ministry of Social Development and Employment), since 1999 CYFS has been a stand-alone department[95]with its own minister.[96 ]The Commissioner oversees CYFS, but it is the Minister for Social Development and Employment to whom the Commissioner is responsible. In that sense, there is an element of distance between the Commissioner and those she is responsible for monitoring. However, CYFS is a service delivery department and works very closely with the Minister for Social Development and Employment. In any event, both departments are, of course, part of Government, and so the legal separation between them does not provide strong enough protection for the independence of the Commissioner.
i) Appointment
The provisions for the appointment of the Commissioner are inadequate, leaving as they do the possibility of the appointment of a politically favourable applicant, or at least someone who would not cause too much “trouble” for the Government. These concerns would be less pronounced if the appointment process had in practice been transparent, involved open competition, and consultation with relevant groups and individuals. However, this has not been the case. In the appointment of the fourth and most recent Commissioner, Cindy Kiro, expressions of interest were sought but that is not the same as open competition.Thelackoftransparencyintheappointmentprocessmakesitdifficult to know who, outside of Government, was consulted over the appointment. The accusation that the appointment is a result of political negotiations between the coalition partners, rather than the result of an open process, is easy to make. Given the non-partisan nature of the post, one would expect at a minimum that the opposition parties would be consulted. However, with regard to the latest appointment this did not happen.[97]This is not to suggest that any of the appointed Commissioners have operated in anything but an independent manner, but it is crucial that not only is the Commissioner independent, but also that she is seen to be independent.[98]
Under the Bill the Commissioner would continue to be appointed by the Governor-General on the advice of the Minister. The Social Services Select Committee recommended inserting additional provisions that would seek to ensure the post was advertised and subject to open competition[99]and an element of consultation would be required.[100]This has been accepted by the Ministry in its departmental report on the submissions. However, the provision would only require the minister to “have regard to the desirability of consulting. . .”. This is not the same as placing a duty on the Minister actually to consult and to have regard to the views of certain groups or individuals. It would be difficult under these provisions legally to challenge the appointment of a Commissioner where consultation has not taken place. However, the proposed clause does list organisations representing children and children themselves as being groups the Minister should consider consulting.[101]Tellingly, the Government sees the appointment of the Commissioner as an “administrative” decision, and thus one in which children should not automatically be involved.[102 ]But this is one area where children should be consulted. The Commissioner will have increased legitimacy and credibility if children have a part to play in the appointment, as well as ensuring that the best candidate, one who can listen and relate well to children, is chosen. New Zealand could draw from the experiences in Wales where the Minister can only appoint the Children’s Commissioner after consulting relevant children and obtaining the advice of a selection panel.[103]
For the appointment of the first Children’s Commissioner, Peter Clarke, 17 young people from across Wales were selected to spend the day with the short listed candidates and two of the 17 sat on the formal appointment committee. Whether this is tokenism or not, it certainly widened the consultation process and appeared to give due weight to the views of children.[104]
ii) Term of office and dismissal The 1989 Act is silent on the length of the Commissioner’s term of office, and instead this is negotiated between the Commissioner and the Minister.[105]Like the appointment process, this is unsatisfactory, leaving the potential for a minister not only to appoint a commissioner for too short a term (thus thwarting long-term planning and the ability to get to grips with the role), but also to give an overly extended term of office to a politically favourable appointee. To date, all the Commissioners have been appointed for five years and the 2001 Bill would put that practice on to a statutory basis.[106]The Commissioner should not be subject to re-appointment, so as to avoid a Commissioner seeking the favour of the Minister in order to secure re-appointment. To date, none of the Commissioners have been re-appointed, but the Bill does allow for this.[107]
The original Act provides that the Governor-General, on the advice of the Minister, can dismiss the Commissioner for “just cause or excuse”. The 2001 Bill would provide more robust provisions. It would require the Minister to give notice that includes the reasons for the dismissal, and an opportunity for the Commissioner to be heard.[108]The Bill would also require the Minister to obtain the prior advice of the Attorney-General and presumably that advice would be available under the Official Information Act 1982, and thus publicly available. Although these requirements do not completely protect against a dismissal based on partisan reasons in the same way that prior Parliamentary approval would, they do provide a more open process. They impose political restraints on the Minister but this is still insufficient. The Bill would be more robust if a limited number of grounds for dismissal were set out in the statute rather than simply
“for any just cause”.
iii) Budget and work programme Once appointed, the biggest threat to the independence of the Commissioner is the control which the Minister has over the budget and work programme. The legislation provides that all fees, salaries, allowances and other expenditure incurred are to be payable out of money appropriated by Parliament,[109]which is preferable to being financed directly from the Ministry of Social Development and Employment’s (MSDE) budget.[110]According to the MSDE, the Commissioner’s budget has a “baseline” element, which “all things being equal” continues into infinity.[111]Bids to increase the funding are managed through the annual budget process, and if successful are reflected in the Purchase Agreement. However, it is the MSDE that presents the funding bids to the Minister of Finance. The Commissioner has no guaranteed right of audience to put forward her case for increased funding. The Commissioner’s budget has traditionally been less than other comparable bodies, such as the Parliamentary Commissioner for the Environment (PCE).[112]
However, an increase in funding has been promised by the MSDE to reflect the proposed extended role of the Commissioner.[113]It is interesting that the proposed Families Commission, a body which has advocacy but not investigative powers, will have funding of $28.5 million over 4 years, with annual funding of $9.3 million from 2006/07.[114]This is not the place to campaign for an increase in the Commissioner’s budget but as Freeman says “there is . . . little point creating an improved legal framework or instituting greater rights for children, unless additional resource allocation is addressed and redressed”.[115]
As a Crown Entity, the Commissioner must negotiate a Purchase Agreement with the Minister on an annual basis. The ability of the Minister to set targets and priorities for the Commissioner within that agreement acts as a potential stranglehold on the Commissioner’s ability to determine her own work programme and develop the role as she sees fit. Laurie O’Reilly raised the problem of a close association between the Ministry of Social Welfare (as it then was) and the Commissioner in his 1996/97 Annual Report. He felt his ability to criticise CYFS was compromised, particularly where those criticisms addressed the curtailment of services or the standard of services. In such instances, the Commissioner was opening himself up to criticism that he was interfering with the management of the service. Although O’Reilly acknowledged the good working relationship between CYFS and the OCC, clearly tensions can arise. Such conflicts are not in themselves problematic, indeed they are to be expected. The problem arises where a Commissioner fears that criticising those he or she is monitoring may result in budgetary cuts or a purchase agreement that further restricts his or her operational freedom. Budgetary and operational control should be removed from the hands of the MSDE and instead be overseen by a Parliamentary committee, and the Commissioner should be free to bid for increased funding and to develop, within the legislative framework, her own work programme. The status of the OCC as a Crown Entity prevents this. Although individual ministers may well have exercised restraint over the last 14 years, the potential for political interference remains even if the 2001 Bill is passed. Without doubt, this undermines the Commissioner’s constitutional status. Ideally, the Commissioner should be protected from all potential interference from Government. The best way to do this would be to make the Commissioner an officer of Parliament and completely remove from the Minister any powers or control over the Commissioner.[116]
iv) Officer of Parliament status
The primary purpose of the 1998 private members’ Bill was to make the
Commissioner an officer of Parliament. This issue formed the basis of most of the submissions to the Select Committee, many of which, including the submission from the Commissioner himself, supported the legislation. Had the 1998 Bill been successful, the Commissioner would have been the fourth officer of Parliament.[117]
In 1989 the Finance and Expenditure Committee (FEC) undertook an inquiry into officers of Parliament.[118]The report made a number of recommendations that dealt, inter alia, with the establishment of officers of Parliament,[119]their funding,[120]their appointment and their accountability.[121]Provisions such as the ones recommended by the FEC, help to insulate officers of Parliament from the executive and properly reflect their status as working on behalf of the House of Representatives. It is not surprising that given the weak protections currently afforded to the Commissioner, elevating the post to officer of Parliament has a number of attractions, most significantly in terms of protecting independence. Despite this, the proposals in the 1998 Bill provoked opposition, and not just from Government. This resistance came, for example, from the speaker of the House and from the Law Society,[122]and was based in part on the recommendations made by the FEC. Specifically, the FEC had warned against establishing too many officers of Parliament, and recommended that an officer of Parliament should only be created to provide a check on the arbitrary use of power by the Executive and only where the officer would be discharging functions which the House of Representatives itself, if it so wished, might carry out.[123]
The objections to making the Commissioner for Children an officer of Parliament therefore seem to be three fold. First, there is a general concern not to create too many officers of Parliament, with the corresponding floodgates argument – that if the Commissioner for Children is made an officer for Parliament, then so too should be the Race Relations Commissioner, the Health and Disability Commissioner and so on. The second and third objections relate to the Commissioner’s role. Although the Commissioner has accountability functions, the usual role for an officer of Parliament, she also has a role as a child advocate and advises the Minister. Advising the Minister is considered an inappropriate function for an officer of Parliament, who should be separate from Government and report instead to Parliament. Advocacy is seen as inappropriate because of its “political” nature, and indeed as we saw above, one of the underlying assumptions of advocacy is that it is inherently political.[124]
Therefore the retention and extension of the Commissioner’s ministerial advisory and advocacy roles have been presented as a justification for not increasing the status of the Commissioner to Officer of Parliament. On the face of it, drawing a distinction between, for example, the Commissioner for Children and an existing officer of Parliament, such as the Parliamentary Commissioner for the Environment, on the basis that the former carries out work that is “political”, does not appear to make sense. The promotion and protection of the rights of children does not appear to be any more political than the promotion and protection of the environment. However, the barrier to the Commissioner being made an officer of Parliament is more about the
“political” nature of how she protects and promotes those rights, rather than the subject matter being inherently political in itself. As we have seen, many of the functions of the Commissioner require her to advise the Minister, to
“encourage” the Department and so on. As an advocate of children’s rights, this presumably allows the Commissioner to criticise government policy where it impacts negatively on the rights and interests of children. Officers of Parliament, however, do not question the policy of Government (in order to retain their independence), but look instead at the implementation of that policy.[125]
The way in which the Commissioner’s functions have been perceived and drafted both in the current Act and the 2001 Bill appear to reflect a choice by Government to keep the Commissioner at a level lower than that of officer of Parliament. By choosing to give the Commissioner these functions they are creating an obstacle to making the Commissioner an officer of Parliament. However, the Commissioner could be as effective, if not more so, if her functions were re-developed in a way that was appropriate for an officer of Parliament. For example, as we saw above, rather than “advising” the minister on how policy impacts on children, or “encouraging” the department to develop child friendly policies, the Commissioner could be given an audit function.[126]The Commissioner could then report to Parliament and Parliament, through the committee system, could press for the necessary changes. This audit function would strengthen the Commissioner’s overall ability to hold the Government to account, and help shift the focus from advocacy. It would also remove the barrier to the Commissioner being made an officer of Parliament, and thus allow full protection of her independence.
As the Unicef statistics suggest, the current statutory framework for the Commissioner for Children is neither robust nor focused enough for the Commissioner significantly to improve the lives of New Zealand’s children. Changes have been proposed in the Commissioner for Children Bill 2001, and the Bill is positive in some respects. It would provide an increased role for the Commissioner in protecting and promoting the UNCROC rights and would improve the participation of children in decisions that affect them individually and more generally by feeding into the work of the Commissioner. The Bill also provides a clearer legislative basis for much of what the Commissioner is already doing. This is important in that it prevents a minister from “negotiating” down the role of the commissioner by way of the annual purchase agreement, and also widens her jurisdiction, limiting the potential for further challenges to her investigative functions. But it is hard to deny that the Bill is little more than a sop. Rather than address the crucial issues of the Commissioner’s constitutional status — the key concern of the earlier private members’ bills — it focuses on the role. Indeed, by widening the Commissioner’s advocacy role, and stating that this is the primary function, the Bill diminishes the accountability role. The Commissioner would have a greater impact if it were the accountability functions that were given primacy over advocacy. Crucial to the Commissioner’s success and credibility for both roles is independence from Government. This would be best achieved by making the Commissioner an officer of Parliament. By re-developing the Commissioner’s advisory functions into an audit function, the accountability role would be strengthened and the primary objection to making the Commissioner an officer of Parliament would be removed. By speaking softly and carrying a big stick the Commissioner would fulfil a role appropriate for an officer of Parliament and help to protect the rights, welfare and interests of children in New Zealand.
[* ]Faculty of Law, University of Otago. Thank you to Gillian Douglas, Mark Henaghan, Deborah Lawson and Nicola Peart for their helpful comments on an earlier version of this article.
[1]The Commissioner was established under Part 9 of the Children, Young Persons and Their Families Act 1989. Since 1989 there have been four Commissioners: Ian Hassell, Laurie O’Reilly, Roger McClay and the current incumbent, Cindy Kiro.
[2]Now the Department of Child, Youth and Family Services.
[3]See Unicef’s Innocenti Report Card, A League Table of Child Maltreatment Deaths in Rich Countries. Issue No 5, September 2003. The league table comprised of the
30 members of the Organisation for Economic Co-operation and Development
(OECD). New Zealand was joint third with Hungary behind the United States and Mexico.
[4]Some of the problems include the different definitions of maltreatment used, the varying data collection methods and the failure to recognise differences in national reporting rates. In addition, because the figures of deaths of children from maltreatment are small, one additional death can change a country’s placing in the league table to a significant degree. See the report itself, which identifies some of these limitations, and the New Zealand Herald, October 3[rd ]2003, ‘Shoddy research mars a good cause’.
[5]See Concluding Comments of the Committee on the Rights of the Child, CRC/C/
15/Add.216, 3[rd] October 2003. New Zealand ratified the UNCROC in 1993.
[6]Other recommendations in the 2003 report include the continued need for New
Zealand to ensure that all children are covered by the Convention, to prioritise children in the budget, to ensure access to education for all children, and to improve children’s health.
[7]See below for further discussion on the Commissioner’s functions.
[8]See Melton, G. B., “Children, Politics and Morality, The Ethics of Child Advocacy”
J. Clinical Child Psych (1987) vol. 16, No. 4, 357-367.
[9]See O’Reilly, L., “Advocacy for Children: A Right’s Perspective” University of Canterbury, Faculty of Law, Christchurch, 15[th] July 1997.
[10]The NationalAdvisory Committee recommended, in the form of a draft Bill, a three tier level of accountability that included Child Protection Teams held to account by Independent Review Panels and overseen by a National Committee for Child Protection.
[11]Although it should be noted that in the Commissioner’s submission to the Select Committee on the Parliamentary Commissioner for Children Bill, a private member’s bill introduced in 1998, Roger McClay asserted that in 1989 “considerable emphasis was placed on the principle of independence”. See p. 3 of the submission. As will be seen later, this was certainly not reflected in the final legislation.
[12]See The Care Standards Act 2000 (Part V) and the Children’s Commissioner for
Wales Act 2001.
[13]Lost in Care: Report of the Tribunal of Inquiry into the abuse of children in care in the former county council areas of Gwynedd and Clwyd since 1974, HC 201 (2000).
[14]For details of the relevant legislation and its development see Hollingsworth, K. and Douglas, G. “Creating a children’s champion for Wales? The Care Standards Act 2000 (Part V) and the Children’s Commissioner for Wales Act 2001”, [2002] Modern Law Review 58.
[15]Though note that since devolution in 1998 the legislative process for specifically Welsh issues differs from UK wide legislation. A lot of the “legislative process” takes place in the National Assembly for Wales and is implemented through secondary legislation.
[16]Similarly, closer to home, the Parliamentary Commissioner for the Environment
(PCE) was established following the Clyde Dam legislation and the “kneecapping of the Commission for the Environment by the Muldoon administration”. Although the PCE was established within a larger piece of legislation, the Environment Act 1986, the events surrounding the Clyde Dam highlighted the need for independence. The PCE was accordingly given “officer of Parliament” status, which, as will be shown below, is one very effective way in which independence can be secured. See Woollaston. Hon. P., “The creation of the Position of PCE: The Importance of the Role” in Hawke, G., (eds) Guardians for the Environment (1997: Wellington; Institute of Policy Studies).
[17]See the Parliamentary Commissioner for Children Bill 1997 and 1998, introduced by Pam Corkery and John Wright respectively. See also the 1992 Mason Review that recommended that the status of the Commissioner be made that of an officer of Parliament (Review of the Children, Young Persons and Their Families Act, 1989: Report of the Ministerial Review Team to the Minister of Social Welfare, February 1992, p. 182), and the UN Committee on the Rights of the Child who recommended in
1997 that consideration be given to making the Commissioner accountable directly to Parliament. See Concluding Comments of the UN Committee CRC/C/15ADD
71, para. 24, 24[th] January 1997.
[18]The Bill was introduced on 29[th ]August 2001, and referred to the Social Services
Select Committee which reported back to the House on 5[th ]April 2002.
[19]See clause 3 of the Bill which sets out the purposes of the legislation.
[20]The Bill has been in limbo since the Social Services Select Committee reported. It is currently 12[th] on the Order Paper (as of 14[th] October 2003).
[21]Both in relation to decisions that affect them individually, and in the work of the
Commissioner generally. See further, p. 613 below.
[22]The current functions of the Commissioner are set out in section 411 of the 1989
Act. The functions deal either generally with issues relating to the welfare of children or are more specifically confined to matters included in the 1989 Act. The Bill re-states these functions in clauses 11 and 12, and also includes some new and extended responsibilities for the Commissioner.
[23]That is, matters that relate to care and protection of children and young persons, and the system of youth justice. See section 411(1)(a).
[24]Section 411(1)(b).
[25]Section 411(1)(h)(i)(c)(d)(e).
[26]Section 411(1)(a).
[27]Section 411(1)(e).
[28]See the 2002 Annual Report of the Office of Commissioner for Children, p. 29 where McClay states “The Commissioner will also investigate matters outside the coverage of the CYP&F Act”.
[29]The Office of Commissioner for Children is one of the organisations over whom the Ombudsman has jurisdiction. See Ombudsmen Act 1975, first schedule.
[30]No references or specific details about the investigation are available because of the secrecy rules which bind the Ombudsman’s office. See Ombudsmen Act 1975, section 21.
[31]Personal communication with the OCC and the Ombudsman’s office.
[32]Thus allowing the Commissioner to investigate the type of decision that was the subject of the Ombudsman’s investigation without being outside jurisdiction. See clauses 11(1)(a) and12(1)(a).
[33]And also: the Chief Commissioner under the Human Rights Act 1993; the chief executive of the department for the time being responsible for the administration of the Children, Young Persons and Their Families Act 1989; the Commissioner of Police; the Health and Disability Commissioner; the Police Complaints Authority; and the Privacy Commissioner.
[34]Clause 17. There is no corresponding requirement in the Bill on the other officers to consult the Commissioner. The Social Services Select Committee considered this to be outside the scope of the Bill. See n. 18 above, p. 6.
[35]Though most of the investigations of the Commissioner will probably still relate to CYFS.
[36]Letter from Roger McClay to Brenda Hegarty, Policy Manager, Ministry of Social
Development, 19[th] November 2001.
[37]For example, the Commissioner has had difficulty gaining access to court records because the officials from whom records have been requested have not known whether the Commissioner has such powers.
[38]These requirements include a discretion to consult other statutory officers, not to make adverse reports without allowing the opportunity to be heard, requirement to maintain secrecy, and regard to be had to whether the rights or welfare or interests of children have been prejudiced.
[39]These include a belief that the exercise of the powers are necessary to enable her to carry out an investigation, and that the person on whom the notice is served has failed to comply with a previous request. See clause 18.
[40]Clause 20(2)(b). The ability of the Commissioner to get personal information from other agencies who are themselves bound by the Privacy Act falls within section
7(1) of that Act which states that “nothing in principle 6 ... derogates from any provision that is contained in any enactment that authorises or requires personal information to be made available”.
[41]Forexample,neithertheOmbudsmannortheHealthandDisabilitiesCommissioner have power to enforce their recommendations.
[42]The Commissioner can report to the Minister and make recommendations but has no powers to compel compliance with those recommendations.
[43]Reporting powers are not specifically set out in the 1989 Act but section 415, in requiring the Commissioner to report annually, sets out that this is “without limiting the right of the Commissioner to report at any other time”. Presumably then, the Commissioner could report back to the Minister when carrying out his functions under section 411(1)(a).
[44]The Children’s Commissioner for Wales has powers similar to this. See regulation
14, made under Part V of the Care Standards Act 2000.
[45]This function also applies to other people exercising functions under the Act in relation to the exercise of functions, powers or duty imposed by the Act. See section 411(1)(b).
[46]A case review is carried out on children who have died, who had come to the attention of CYFS in the 24 months prior to their death.
[47]See Annual report, n. 28 above, p. 29
[48]This is a role the Commissioner has already begun to undertake. See clause 11(1)(b)
and the 2002 Annual Report, n.28 above, p. 29.
[49]The Minister for Social Development and Employment.
[50]Section 411(1)(h) and (i).
[51]Section 411(1)(c).
[52]This function is not limited to those issues covered by the Act but concerns more generally matters relating to the welfare of children and young people. See section
411(1)(d).
[53]Similar to the Controller and Auditor-General’s performance audits.
[54]Section 411(1)(f)(g). These functions are exercised in relation to matters that relate to the welfare of children and young persons.
[55]The absence of a definition is perhaps intentional. Besides the difficulty of coming up with a precise and succinct meaning, leaving the term undefined provides the Commissioner with the scope to interpret the role as the incumbent sees fit.
[56]Clause 11(1)(f).
[57]Clause 3 states that “The Act restates the Commissioner’s functions with modifications that are consistent with the Commissioner’s primary role as an advocate for children”.
[58]See Freeman, M., The Moral Status of Children: Essays on the Rights of the Child, (1997: The Hague; Kluwer International), p. 79.
[59]In addition to those in the CYP&TF Act which are described above.
[60]The awareness raising function in the 1989 legislation relates only to welfare issues.
[61]This is one of 3 types of advocacy relevant to children’s advocates, the other two are legislative and administrative. See, Melton, G. B., Child Advocacy: Psychological Issues and Interventions, (1983: New York; Plenum Press).
[62]The Bill limits that power to occasions when the court requests the report. The Social Services Select Committee recommended that it be extended also to allow a request from counsel representing the parties to the proceedings, or the child who is the subject of the proceedings, or counsel assisting the court or tribunal. The Ministry of Social Development and Employment has accepted this recommendation.
[63]For example, the Commissioner could provide information about children and the importance of their right to privacy. The Commissioner provided the Court of Appeal with this information in August 2003 when TV presenter Mike Hosking sought an injunction to prevent publication of photographs of his children in a women’s magazine.
[64]Clearly the diversity of children means that at times their interests, rights and welfare may well clash. The views of the Commissioner as to what is in the interests of children as a whole may differ from the individual interests of a particular child. On this point, see Flekkøy, M. G., A Voice for Children: Speaking Out as Their Ombudsman (1991: London; Jessica Kingsley), p. 190.
[65]See Sunday Star Times, 19[th] October 1999.
[66]If the Bill seeking to establish the Families Commission is successful.
[67]This will be much more difficult than defining the rights of children without a pre-written international convention to turn to for guidance.
[68]This was arguably the case with Liam Williams-Holloway where the publicly espoused views of the Commissioner were at odds with the Health and Disability Commissioner. The Commissioner for Children believed that Liam’s rights entitled him to receive conventional medical treatment against the wishes of his parents and Liam himself, and the Health and Disabilities Commissioner believed the wishes of the parents to use alternative medicine should be respected. See Otago Daily Times, 8[th ]May 1999, p. 3, and the Sunday Star Times, 14[th ]February 1999 and
19[th] October 1999.
[69]Clause 3(c).
[70]Freeman categorises the rights into 6 groups: general rights (e.g., right to life, right to information); rights requiring protective measures (e.g., to prevent against drug abuse); rights concerning the civil status of children (e.g., the right to nationality); rights concerning development and welfare (e.g., right to health); rights concerning children in special circumstances (e.g., children with disabilities, refugee children); and procedural considerations, such as the establishment of the committee to monitor the implementation of the Convention. See n. 58 above, p. 55.
[71]For a discussion of this see Freeman, who points out that additional rights could be included and the Convention could be less adult-centred. See n. 58 above, pp.
53-57.
[72]See article 3 in particular
[73]For example, article 12
[74]For example, genital mutilation of girls could be justified as being a cultural value. See further Freeman, n. 58 above, p. 65.
[75]Compare, for example, the European Convention of Human Rights and the
European Court of Human Rights. The UNCROC has a system of state reporting but does not allow for inter-state complaints to be made, nor applications from individuals.
[76]These are not necessarily mutually exclusive.
[77]Though even without direct incorporation the courts may give partial effect to the rights by using the Convention as an interpretation tool. See Tavita v Minister of Immigration [1993] NZCA 354; [1994] 2 NZLR 257 (CA).
[78]For example, article 27 provides for the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development.
[79]Clause 11. This could perhaps be carried out by imposing a requirement that departments include in their annual reports the extent to which they have applied the UNCROC principles in that year.
[80]Clause 31.
[81]This contrasts with other rights-focused legislation, such as the New Zealand Bill of Rights Act 1990, or with international Conventions which have their own enforcement mechanisms, where it is left to individuals whose rights have been infringed to shape the development of those rights by their enforcement through the courts or other relevant institution.
[82]The Commissioner will also be bound to have regard to the UNCROC when exercising her powers. The most relevant article here is article 12, which provides for a child’s participation in matters that affect that child. The emphasis on this right is evident in that it has been included, almost verbatim, in the Bill itself, as one of the principles to guide the performance and exercise of the functions and powers of the Commissioner.
[83]“State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child . .
.”.
[84]“The principle that consideration should be given to the wishes of the child or young person, so far as those wishes can reasonably be ascertained, and that those wishes should be given such weight as is appropriate in the circumstances, having regard to the age, maturity, and culture of the child or young person”.
[85]The Care of Children Bill 2003 will enable children to express a view on matters that affect them and have those views taken into account.
[86]See for example the decision in Gillick v West Norfolk and Wisbech Area Health
Authority [1985] UKHL 7; [1986] AC 112.
[87]Children’s participation in decision-making can be analysed in terms of a “ladder of participation”. For example, Alderson refers to a four-tier model: (1) being informed; (2) expressing a view; (3) influencing the decision making; and (4) being the main decider. One role for the Commissioner will be to encourage processes and procedures that seek to move to the higher steps of this ladder and ensure that children are not only able to express a view but that they actually influence decision making as well. See P. Alderson, Young Children’s Rights: Exploring Beliefs, Principles and Practice (2000: London; Jessica Kingsley). See also Smith, A.B., Taylor, N.J., and Gollop, M.M., Children’s Voices: Research, Policy and Practice (2000: Auckland; Pearson Education).
[88]For example, when structures are in place that ensure genuine consultation with groups of children in policy-making.
[89]However, it is notable, and ironic, that despite these moves, no children were consulted on the recent appointment of the fourth Commissioner Cindy Kiro.
[90]See Flekkøy, n. 64 above, p 190. A number of submissions on the 2001 Bill to the Social Services Select Committee recommended that the name “Commissioner for Children” be replaced with “Children’s Commissioner” to reflect properly the role of the Commissioner as being their advocate rather than a grown-up acting in a paternalistic way on their behalf. This has been accepted and recommended by the Select Committee, and the Ministry in the departmental report on the submissions to the Select Committee.
[91]This might include the use of a more interactive website for example, which invites children to contribute their views about what concerns them, or a programme of consultation through schools.
[92]Section 416.
[93]Section 418.
[94]Section 415.
[95]Previously CYFS was a business unit within the Ministry of Social Welfare. It merged with New Zealand Community Funding (also previously within Ministry of Social Welfare) to become the department. See Department of Child Youth and Family Service Act 1999.
[96]Specifically, with effect from May 2003, the Minister for Social Development and
Employment delegated full responsibility for the Department of Child, Youth and Family Services, including accountability to Parliament, to the Associate Minister for Social Development (CYFS).
[97]The Government has been criticised for this. See for example, the comments by Dr Muriel Newman on August 12[th ]2003. http://www.scoop.co.nz/mason/stories/ PA0308/S00245.htm
[98]The most obvious target for such criticism was the appointment by the National Government in 1998 of Roger McClay, himself a former Minister for the National Party. This appointment may not have been seen as an independent appointment, even if McClay did act independently in practice.
[99]See inserted clause 7(2A)(a).
[100]See inserted clause 7(2A)(b).
[101]The OCC’s Young Persons’ Reference Group would provide one forum for consultation with children and young persons.
[102]See the Departmental Report on the Commissioner for Children Bill, p. 14.
[103]The Minister is the First Minister of the NationalAssembly for Wales. See generally, Hollingsworth, K and Douglas, G., n. 14, above.
[104]There was unanimity between the views of the children and the adults. It would be interesting to see how much weight would be given to the views of the young people if they did not accord with those of the adults involved. However, the Commissioner himself appeared to be impressed with the process and has pledged to involve children in the appointment of all his staff.
[105]Section 417.
[106]Clause 8(1)(a).
[107]Of course, the need to legislate against re-appointment would be less pronounced if the Minister did not play any part in the appointment process.
[108]Arguably this would be required by the principles of natural justice in any event.
[109]Section 422.
[110]However, the OCC does not have a separate vote. Instead funding comes mostly within Vote Social Development, and to a lesser extent, from Vote Education. This is separate from CYFS, which has its own vote, but does not provide enough transparency to protect against a reduction of funding without proper parliamentary scrutiny.
[111]Personal correspondence from MSDE, 18[th] September 2003.
[112]The Commissioner’s submission to the select committee, p. 6, notes that the Commissioner’s budget in 1999/2000 was only 59% of that of the PCE. In 2002/02 the Commissioner’s funding from the Crown was $1.582 million.
[113]See press statement on 19[th ]June 2001 which promised an additional $2.8 million over 4 years.
[114]See 2003 budget information on the MSDE’s website: http://www.msd.govt.nz/
media-information/budget-2003-fact-sheets/families-commission.html
[115]See Freeman n. 58, above, p. 30. This point was made in relation to services for children generally but applies equally to the mechanisms, such as the Commissioner, for protecting the rights.
[116]This is primarily because officers of Parliament report to, and are appointed and dismissed by, Parliament. The procedures for doing so are included in the legislation which establishes the individual officers.
[117]Along with the Ombudsman (see the Parliamentary Commissioner (Ombudsman) Act 1962, and now the OmbudsmenAct 1975), the Parliamentary Commissioner for the Environment (see the Environment Act 1986) and the Controller and Auditor General (the Controller and Auditor General had been treated as a de facto officer of Parliament for many years, but his/her status was not legally recognised as such until the Public Audit Act 2001).
[118]Report of the Finance and Expenditure Committee on the Inquiry into Officers of
Parliament, 1989.
[119]Recommendation 5, officers of Parliament should be created in separate legislation principally devoted to that office.
[120]Recommendation 6, they should be funded by an individual Annual Vote subject to Parliamentary approval by the Estimates Process.
[121]That a bi-partisan Parliamentary Officers Committee be established with responsibility for recommending the appointment of an officer of Parliament to the House of Representatives as well as responsibility for examining the estimates and auditing the accounts of the officers
[122]See submissions made on the Parliamentary Commissioner for Children Bill.
[123]See above, n. 118, recommendations1-3.
[124]See above, p. 608.
[125]And whether, for example, it achieves value for money (C&AG) or whether and what impacts it has on the environment (PCE).
[126]With the corresponding requirement on government to provide “child impact statements” on proposed legislation and policies.
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