Tuesday, November 09, 2021

More Labour secrecy

The government introduced a new bill reforming oversight of Oranga Tamariki today. The bill establishes an "Independent Monitor of Oranga Tamariki System" with oversight functions, expands the functions of the Ombudsman in investigating complaints, and replaces the existing Children's Commissioner with a full Children and Young People’s Commission. These all seem to be good changes, but like so many other recent Labour bills, it includes multiple secrecy clauses.

The first is a direct amendment to the Official Information Act removing communications between the Ombudsman and child-support agencies from the coverage of the OIA. Not just investigation-related communications - they're already exempt - but everything, no matter how trivial. So for example if Oranga Tamariki (or whatever succeeds it) proposes doing something, and the Ombudsman says "don't do that, it would be a bad idea", it would not be "official information" and would effectively be secret forever. We wouldn't even be able to ask how many times an agency had sought or received guidance to see whether the new monitoring functions were working effectively. The effect of this on the public accountability of Oranga Tamariki for the routinely terrible policy decisions it makes is left as an exercise for the reader.

The second is a non-standard secrecy clause binding the new Children and Young People’s Commission to eternal silence, effectively its own little version of the old Official Secrets Act. This is very clearly modelled on the Children's Commissioner's existing secrecy clause, which might sound OK, until you realise that the Commissioner and the Commisison have very different functions. Most importantly, the Commissioner had an investigative function, to "investigate any decision or recommendation made, or any act done or omitted... in respect of any child". That function has been split off, and now effectively belongs to the Ombudsman. Instead, the new Commission's functions are primarily advocacy and awareness-raising. They can inquire into "any systemic matter", but its clear from context that this is about policy and legislation. Their role in investigating individual complaints has been removed. Which seems to remove any justification for a secrecy clause, predicated as it was on a semi-judicial function and the privacy of children.

But more generally, when legislation is reviewed and re-enacted, this should be taken as an opportunity to review secrecy clauses and decide whether they are really necessary. For example, does the proposed Children and Young People’s Commission really need to provide absolute secrecy over "national security" and international relations, Tokelau, or Cabinet deliberations? Is that actually a necessary part of their functions? Or is it just mindless copy-paste legislation thoughtlessly repeating a clause originally drafted in 1962? And if the latter, shouldn't Parliament actually do its job, and think before it legislates?