Chapter 12
The case for a government body

The form of a new public body

12.12We recommend establishment of an independent public body modelled under the Crown Entities Act 2004 and charged with the key functions discussed in Chapter 11. Crown entities are appropriate where there is a compelling need to have the function performed “at arm’s length” from government and in this case we consider that an independent Crown entity is necessary to promote confidence across the sexual violence sector and the community.

12.13Establishing a new Crown entity is the preferred option. Consideration will need to be given to whether the default Crown entities regime would apply in full or any amendments would be made, and whether this entity would be subject to the Official Information Act 1982, Ombudsmen Act 1975, Public Audit Act 2001, and Public Records Act 2005.

12.14A principal enabling statute would set out the core functions, constitution and appointment as well as the powers and duties of what we recommend is the establishment of a commission on sexual violence. Statute would also establish review and reporting requirements. Delegated legislation in the form of regulations and codes would also likely be required in order to implement policies and reforms and to keep up to date with changes in strategy, for example ensuring good practice and accreditation standards are current.

12.15Should our recommendation to establish a commission not be taken up, consideration should be given to the support structure needed to facilitate the other proposals in this Report, namely the training and accreditation of alternative providers and programmes. If a support office were established for this purpose, costs would inevitably be incurred – costs that could otherwise be shared amongst and absorbed within the broader operational costs of a commission (for example, rent and personnel).

12.16The Law Commission’s Māori Liaison Committee has recommended to us that it would not be appropriate to have a single commissioner to fulfil the functions set out here.726 This is on the basis that one person cannot represent the full diversity of victims of sexual violence, including Māori, ethnic minorities, disabled victims, elderly victims, and children.727  With a single commissioner model, there is a risk of alienating certain people or groups of people. The Committee expressed the view that any new public body needs to reflect the faces of the community, and thus a “commission” or a number of commissioners was preferable. We recommend that one commissioner should be appointed to focus on issues and concerns relating to Māori victims. A range of ethnicities and victim groups should also be represented in the commissioners appointed.

12.17The appointment of a prominent individual or someone with public standing as a figurehead could give mana to the organisation and raise the profile of the organisation and the issues being tackled. This comes with the risk that the public body becomes closely linked with the individual rather than the issues at hand, namely sexual violence. Commissioners should have knowledge of and contacts within the sexual violence sector. The relevant individuals may for example have a legal, medical, political or educational background but would need a deep understanding of sexual violence and the sexual violence response sector. The vision of those individuals should be broader than that of the body or enabling statute and should draw on their history and experience.

12.18We consider the best approach to be a full “commission” against sexual violence or a hybrid commissioner/commission model, such as the Health and Disability Commissioner.728 Led by high profile individuals, the commission could be driven by a steering committee populated by a multidisciplinary team of experts and community leaders representing a broad spectrum of stakeholders (including for example Māori, Pasifika, and representatives from the LGBTI and disabled communities).729 Subject to the ability of the steering committee to set the agenda, it could then be appropriate to have a series of sub-committees to focus on the discrete functions of the commission, namely sector coordination; research; training and education; and accreditation and monitoring.730

12.19A further reason for adopting a model similar to the Health and Disability Commissioner is to appropriately accommodate functions relating to oversight of the alternative process within the commission. To retain independence of function and process we consider the ideal would be to have a separate sub-commissioner or director (as with the Director of Advocacy) who has responsibility for coordinating the alternative process (see Part C).

Extent of contact with victims

12.20A commission should be established to operate as a platform from which service providers within the sexual violence sector are supported to best help victims and enable victims to enter into the justice system. This commission would have limited direct contact with victims731 and instead the focus would be on supporting and facilitating the work of service providers; for example, establishing relationships between providers in a given area. The commission would be charged with promoting collaboration and innovation amongst service providers and in conjunction with, amongst others, research bodies and government departments with responsibilities in this area.
726There is a number of options for the size and structure of a new body. A single commissioner model might resemble the model used in the United Kingdom for their “Victims’ Commissioner”. That office is currently occupied by Baroness Newlove, whose function is to promote the interests of victims and witnesses, encourage good practice in their treatment, and regularly review the Code of Practice for Victims which sets out the services that victims can expect to receive. The Victims’ Commissioner model in the United Kingdom resembles the design of the new chief victims’ adviser for New Zealand.
727Māori Liaison Committee meeting minutes (21 August 2015) (on file with the Law Commission).
728The Health and Disability Commissioner sits above two deputy commissioners (responsible for complaints resolution and disability), one mental health commissioner, a director of advocacy, a director of proceedings, and two associate commissioners. The Commissioner is supported by an executive assistant and the office has a corporate services manager. Thus, even though there is only one “commissioner”, the office contains a number of staff. There are 62.58 FTE employed by the Commissioner as at 30 June 2014 (Health and Disability Commissioner Annual Report 2014, at [5.4]). In 2014 the Commissioner had total revenue of $11,309,694 (comprising $10,920,000 from the Crown, $63,233 in interest and $326,461 from other sources) and a total expenditure of $11,655,265 (of which personnel costs totalled $5,847,848). This was broken down into complaints resolution ($4,357,101); advocacy ($4,935,902); proceedings ($733,884); education ($561,481); and monitoring and systemic advocacy ($1,066,897): Health and Disability Commissioner Annual Report 2014 at ch 9.
729In addition, the steering committee/board would need to be constructed on the model outlined in the State Services Commission Statutory Crown Entities – A Guide for Departments (June 2014) at 6, which highlights: (1) competencies needed to understand purpose and functions of the commission and to operate in accordance with the Crown Entities Act 2004 and any enabling legislation if constructed as a statutory Crown entity; (2) ability to articulate robust strategic direction; (3) management accountability systems in place; (4) effective and mentored chair/chief executive; (5) performance review with reference to Minister’s set expectations and succession plans in place; (6) clear understanding of place of commission within wider government structure and interaction with other departments accordingly.
730Another possibility is to house a new commissioner within the Human Rights Commission. That Commission has up to eight Human Rights Commissioners including a Chief Commissioner, an Equal Employment Opportunities Commissioner, a Race Relations Commissioner, and up to five part-time commissioners. A risk with this approach may be that sexual violence ends up being subsumed into a broader set of issues, and as a result fails to get the attention that it needs. The current revenue from the Crown for the Human Rights Commission sits at $9,396,000 for 2013/14 (with total income for the year at $9,720,000) which finances several portfolios including race relations, equal opportunities, disability rights and human rights: Human Rights Commission Annual Report (2014) at 44.
731One possibility that must be explored is the need for a victim referral capability such as an 0800 number or website to advise victims of where and how they are able to access help in their area. To the extent that the commission had a high public profile it is likely that victims could seek assistance directly from the commission, in which case there needs to be an adequate mechanism in place to respond to such queries. There are already several 0800 numbers and helplines in existence, but they operate with limited resources so that (for example) the hours of operation may be limited. Accordingly another 0800 number is not recommended unless it seeks to achieve a clear and distinctive objective, such as channelling all inquiries from victims, families/whānau and service providers themselves to the appropriate service provider, but without requiring the victim to repeat their story several times.