Children's Minister Karen Chhour. Photo / Mark Mitchell
A leaked ministerial document from the Children’s Minister shows an admission that giving military-style academy providers the power to use force against children may be seen as “increasing the potential risk of abuse in custody”.
The Green Party’s Tamatha Paul, who obtained the document about the Government’s military-style academy legislation, is raising the alarm, saying the Government’s proposal is “scary” and should be stopped.
Paul says it’s “extremely disingenuous” of the minister’s document to acknowledge concerns about the use-of-force powers and still push forward with the military-style academy programme.
Children’s Commissioner Dr Claire Achmad also wants more details about the powers as they need “to be given extremely careful and well-thought-through consideration from a children’s rights perspective”.
She’s “disappointed” her office wasn’t consulted on the proposed legislation and has had to resort to asking Oranga Tamariki for information about what’s being proposed.
Children’s Minister Karen Chhour is refusing to speak about the paper. Despite numerous questions from the Herald specifically about the document and its contents, a statement from the minister didn’t acknowledge it. It didn’t answer questions about the risks of providing the powers, how the programme differed to previous bootcamps, or why she didn’t consult with the Children’s Commissioner.
The document was written to be lodged at Cabinet’s Legislation Committee. It’s unclear if the contents of the paper have changed since the version that was leaked. Chhour’s statement did not dispute quotes provided from the paper.
The planned legislation – which has not yet been introduced to Parliament and was still subject to change when the document was written – would establish a Young Serious Offender (YSO) declaration and the ability to send some of these offenders to a military-style academy.
A pilot of the military-style academy regime, which involves a three-month period of offenders based in a youth justice residence, followed by nine months in a community-based programme, is under way, but using current legislative settings.
Cabinet agreed that military-style academy providers – including “third-party providers” – will have the power to use force against young people outside of a residence, such as on overnight camps or rehabilitative programmes. Currently, powers only exist when a person is at a residence.
Providers would be able to use physical force, no greater than reasonably necessary, to restrain a young person attempting to abscond or harm themselves or others.
Previous publicly available documents contain information about the intention to provide use-of-force powers, but had limited information from the minister acknowledging the risks associated.
The leaked paper contains a section on the risks of allowing the use of force and detention.
It said the provision of these powers “may be viewed as increasing the potential risk of abuse in custody, particularly in light of historic[al] abuse experienced by children and young people in similar programmes reported in the Royal Commission of Inquiry into Abuse in Care report”.
“These powers will also be held by individuals and organisations, and not attached to places of detention. In New Zealand, only law enforcement personnel currently hold such powers,” it said.
But it said not providing these powers would mean staff outside of the residential setting “would be exposed to legal risk if they tried to prevent a young person from absconding or from harming themselves or harming another person”.
“Given this risk, I consider that clear authority is needed,” the paper said.
The paper shows the Government intends to introduce the legislation next month, but “due to the time available, comprehensive safeguards are not outlined in the primary legislation”.
Instead, safeguards “to ensure these powers are used safely and reasonably” will have to be introduced through a regulatory framework. The paper said these regulations will be required before the bill can be brought into operation.
Chhour’s statement to the Herald didn’t address the acknowledgement of the risks of providing use-of-force power.
“The military-style academy order will be a modular-based programme, including rehabilitation and education programmes and community integration and intensive support.
“The intention is this legislation will be introduced in the House later this year and anything that can be announced will be done in due course.”
Prime Minister Christopher Luxon told the Herald he had visited the military-style academy pilot and found it to be a “fantastic experience”.
“You have three psychiatrists and psychologists and working with those young people, when you have social workers in there working on their trauma, working on their issues. But also you have retired police officers who are working a whole bunch of different skills.
“It was really inspiring, frankly, to see this powerful intervention being made in these young people’s lives.”
He said the academies were “very, very different” to previous bootcamps.
Luxon said a significant amount of work had gone into oversight and ensuring there are “avenues that are available to those young people to raise any concerns”.
“The actual care, love and support that they’re getting is pretty phenomenal. When you actually can see the difference it’s making in those young people’s lives, it is pretty inspiring.”
He told Newstalk ZB’s Mike Hosking it was “disingenuous” to compare past abuse in state care with military-style bootcamps for youth offenders he has advocated for.
”The calibre of the team we assembled to work with these kids … was really fantastic. The management around them, the focus on care, all of that stuff was fantastic,” he said.
Despite Cabinet previously agreeing to provide the powers, Luxon said “he is not in a position” to comment on whether those running bootcamps would be able to use force against the young offenders.
”I haven’t been briefed on that. It hasn’t been a topic of conversation I’ve had with the Minister [for Children],” he said.
”What I’m interested in is, have we got the layers of child safeguarding? What we’re focused on here is making sure we’ve got all the support services in. Those decisions as to precisely how it’s deployed will be made by OT [Oranga Tamariki].
”What I’ve experienced with these military academies, I’ve been really, really impressed,” he said.
Paul, the Greens’ justice spokeswoman, told the Herald it was “scary” third-party providers may be granted the use-of-force powers.
She said it wasn’t clear who these third-party providers were, and she hoped the minister would be “tossing and turning over the decision she’s about to make”.
“The scary thing about the third-party provider elements is that it feels like it is repeating history,” Paul said. “It’s one of those things in this paper that is eerily reminiscent of bootcamps of the past.”
The Royal Commission of Inquiry report on abuse in state and faith-based care released earlier this year found young people at the Great Barrier Island-based Whakapakari bootcamp in the 1990s had to endure “what has been described as cruel and inhumane treatment”.
“Young people were sent to Whakapakari to be ‘straightened out’. Instead, their lives were ruined from the abuse they suffered there,” the report said.
Chhour has previously said the new military-style academy programme would be different to those of the past. She said the Children’s Commissioner can show up at any point to check the young people are safe.
Paul was critical of the lack of detail being provided about the use-of-force powers and what safeguards would be introduced and there should be an “exceptionally high” threshold to use them.
“I think we just have to have a look at our recent history to see that we have to be extremely careful with the use of force, because if you open up that discretion, who knows how it can be used.
“I don’t say that to scaremonger. I say that based on our own history, based on what’s already happened when we disregard or water down the rights of children to be safe and secure.”
Papers from the Children’s Minister’s office also show that although a large number of agencies have been consulted about the legislation – including Crown Law, the Ministry of Justice and Te Arawhiti, the Office for Māori Crown Relations – the Children’s Commissioner wasn’t.
Achmad, the Children’s Commissioner, told the Herald she didn’t support military-style programmes due to the “wealth of evidence” they don’t create positive change.
She said she was “disappointed” her office wasn’t consulted, despite her team previously flagging that they would like to provide independent advice on the development of any policy in the youth justice space.
In late October, after seeing mention of the use-of-force powers in a publicly available Cabinet document, Achmad said she “sought clarity from Oranga Tamariki about this aspect of the plans”.
“I am concerned to understand who those third-party providers are going to be, what is envisaged here, and then also in terms of the use-of-force and restraint by third party providers, that needs to be given extremely careful and well-thought-through consideration from a children’s rights perspective.”
She said information about safeguards was “critical” and an “aspect I will be seeking to understand”.
A Cabinet paper from June, released publicly in September, showed Chhour noted she anticipated “some concerns about the risk of harm and abuse” at the academies.
Analysis from Oranga Tamariki officials, who supported the powers, said they would provide strong public safety protections and support the academies’ operation, but would likely impact the young people’s human rights, may result in harm if not used appropriately, and disproportionately impact Māori.
Some of the information in the public documents about use-of-force powers is redacted to protect the confidentiality of advice to ministers and due to legal privilege.
The introduction of the YSO declaration and the military-style academies is part of the Government’s attempt to provide what it says will be a “faster, stronger and more targeted response to serious and persistent offending by young people”.
The Government plans for the YSO declaration to only apply to young people aged 14 to 17 at the time of their offending, who have had two offences punishable by imprisonment of 10 years or more proven in court, and who the court is satisfied are likely to re-offend, with previous interventions proven unsuccessful.
Of these YSOs, those aged between 15 and 17 could be sent to a military-style academy. The scheme would be made up of time in a youth justice residence and time outside of that setting, receiving rehabilitative and educational support.
Cabinet agreed that this would be for up to 12 months in duration. The leaked document also shows the Children’s Minister seeking approval to impose a six-month minimum period.
Jamie Ensor is a political reporter in the NZ Herald Press Gallery team based at Parliament. He was previously a TV reporter and digital producer in the Newshub Press Gallery office.
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