Care of Children Law Reform Bill

I move, That the Care of Children Law Reform Bill be now read a first time. I nominate the Justice and Electoral Committee to consider the bill. Adoption law in New Zealand was set in the 1950s. As you can imagine, at that time the circumstances under which a biological parent sought to adopt out their child were often very different from what they are today. The law was predominantly based around the idea of stranger adoption—the notion that women, often young women, may need to adopt out their child quickly and in secret, to avoid what was then perceived to be the shame of a child born out of wedlock, with these young women often never seeing their child again. I want to put on record my acknowledgment of people in those situations who have shared their stories with me, in light of this bill coming before the House.

Children were given, at that time, entirely new birth certificates. A father’s permission was not needed prior to an adoption order, and nor did the law stipulate that the best interests of the child were the primary consideration when considering the long-term legal relationship between a child and their future guardians. The law did not then, and does not now, cater for whāngai adoption. It has struggled to grapple with the complexity of intercountry adoption, and it certainly is not up to date when it comes to surrogacy and new developments around assisted human reproduction.

In short, our law in New Zealand is antiquated at best and certainly not fit for purpose. It is time for that to change, and I acknowledge all of those who have lobbied long and hard for that change to occur.

The purpose of this bill is to carry out a complete overhaul of our adoption laws in New Zealand by making use of the work already carried out by the Law Commission over 10 years ago now. My bill will see the Law Commission update the work that it has already carried out and will turn it into legislation to be tabled in Parliament for debate. I acknowledge that this is an unusual approach, but it is one that we on this side of the House have ultimately deemed to be necessary. Let me explain briefly why.

The Law Commission’s report, if anyone has seen it or, indeed, dared to read it, Adoption and its Alternatives: A Different Approach and a New Framework, which is what the report is titled, is an almost 350-page report. The contents page goes on for pages and pages. It demonstrates the considerable work required to overhaul our adoption laws. Although the commission’s report led to the introduction of the Care of Children Act when Labour was in office, this Act did not include adoption at that time. There are many reasons why this work was not completed, not least the additional consultation that was required over the issue of whāngai adoption. My hope is that, under this bill, this large and important piece of work will continue but will be completed.

It is also important to note that since the Law Commission’s first piece of work, it has also published report No. 88, New Issues in Legal Parenthood. Many of the issues that it addresses arise in the context of adoption, and that is before we get into the additional issues around surrogacy. Again, I have seen cases there, particularly where you get the added complexity of international surrogacy and the issue of intercountry adoption as well. All of these are issues that need to be included in the Law Commission’s update but ultimately need to be taken into account in our legal framework. Currently, they are not, and that is leaving many families without any legal certainty and without any legal framework for providing a stable relationship for their child.

I mention this because there are those who believe that modernisation of adoption simply requires the Adoption Act to be amended to modernise provisions that are inconsistent and out of date—for instance, around just who can legally adopt children. But it requires much, much more than that. Our adoption laws need to be fully integrated into the Care of Children Act, which has children at the centre of all decision making. The concept of enduring guardianship best describes the modern open adoptions that have replaced the closed stranger adoptions that were the norm in the 1950s, when our current and existing law was drafted.

It makes sense that as Parliament we make use of the expertise of the Law Commission and the work that has already been done. Doing so would be an unusual practice, though, and I do acknowledge that. Embedding this process into a member’s bill is, however, a very, very unique approach, but, as I have said, given that this work is so overdue, anything that can help us speed up reform in this area surely must be welcomed.

Some have argued that adoption is nowadays so rarely used that reform is simply not necessary. It is true to say that last year there were fewer than 150 adoptions in New Zealand, but I would argue that we simply do not know to what degree this is a result of the fact that we have a completely antiquated legal framework that is not fit for purpose. As I have mentioned, it does not even cover whāngai adoption.

In the past there has also been some debate over the effect this bill would have on the inconsistent and discriminatory approach as to who can and cannot adopt. In fact, when this bill was first introduced, unfortunately the debate was seen to be solely around that one question, which although important—extremely important from an equality perspective—is only one part of the debate.

I sought permission from the Business Committee, because of this element of the debate, to delay the first reading of my bill until after the passing of the Marriage (Definition of Marriage) Amendment Bill, so that there would be greater clarity around this point. It is with delight that I now come back to the House, with that bill now passed, and I am able to give greater certainty to that part of the bill. The passage of the Marriage (Definition of Marriage) Amendment Act essentially means that same-sex couples who are married will be considered spouses under the Adoption Act and will be eligible to adopt. Ambiguity, however, remains—and this is where it gets a bit farcical—for civil unioned couples, because there was an explicit reference during the debate around civil unions to exclude adoption for civil unioned couples. That leaves us with a situation where a married same-sex couple can adopt, but a civil unioned same-sex couple cannot—where, even now, a de facto heterosexual couple can adopt, but a heterosexual civil unioned couple cannot adopt. And then you get into the farcical nature of where our laws sit in this area and why they absolutely need to be fixed.

But there is the wider question, though, that even just fixing up the inequality that exists in the law does not necessarily mean that couples will want to use it, because of the way that it is currently shaped. Take, for instance, the situation of a same-sex couple with children. They may care for that child, but they may have an ongoing role, for instance, with the biological mother in that child’s life. If, however, that couple wish to be recognised in legal terms in their relationship with the child and they seek an adoption order, that would have the effect of severing the legal ties that child has with their other biological parent. That is simply not a track that many couples want to go down, and this is why I believe that our adoption laws are not being fully used.

It has been, as I have said, unfortunate that this debate has been narrowed solely to around who can and cannot adopt, but I do want to address the issue, though. I do believe that allowing access to adoption for all couples is a basic human right and that, ultimately, the decision that should be made by the courts is solely whether or not the best interests of a child are being served in that decision. I want to step away from any moral arguments, because when you put the simple fact that there are 5,000 children in New Zealand in State care, who would not want the best interests of those children to be served by the most able and loving couple available to care for those children?

I know there are concerns, on procedural grounds, around my bill. I would ask members in this House to put those aside to give this bill a chance to go to select committee.

The sponsor of this Care of Children Law Reform Bill, Jacinda Ardern, has nominated the Justice and Electoral Committee to scrutinise the bill should it pass this first reading. Therefore, as chairman of the committee it falls to me to have a first go at what can really be described only as a very sloppy and lazy member’s bill by this member.

The purpose of this bill, on the face of it, is to facilitate an evidence-based modernisation of the law relating to the care of children in New Zealand. The bill, if passed, would require the Minister of Justice to request the Law Commission to review the law relating to the care of children in New Zealand, including preparation of a draft bill. The Government is absolutely aware of issues surrounding adoption legislation, and the Government has identified this as clearly an area for potential review. A review of the Adoption Act is on the Government’s work programme.

But at a practical level, adoptions currently in New Zealand function pretty well. Most adoptions are open adoptions and there is a much-reduced demand for closed adoptions these days. As the sponsor of the bill indicated, same-sex adoptions can now be dealt with under both the Adoption Act and, of course, the recently passed Marriage (Definition of Marriage) Amendment Act, which makes it clear that the term “spouse” absolutely includes a same-sex spouse.

The background to this bill, according to the sponsor, is that in the year 2000 the Law Commission produced a report, Adoption and its Alternatives: A Different Approach and a New Framework, and Parliament then enacted some of the report’s recommendations when it enacted the Care of Children Act in 2004. The Care of Children Act replaced the outdated Guardianship Act 1968. It firmly centred all decision making around the care of children on the principle—the very firm principle—that the interests of the child must be regarded as the paramount consideration when making decisions affecting children’s care, health, and well-being.

However, adoption was left out of that Act, so therefore this bill would require the Law Commission to update the 2000 report and the 2004 Act on the basis of subsequent relevant developments, and then this bill would require that the report back from the Law Commission be presented by the Minister of Justice to the House of Representatives with its recommendations as a draft bill. This is in complete contradiction to the work already being undertaken by the Government on the care of children by way of the Family Court reforms and the work being done by the Ministry of Social Development in terms of its reforms.

So as I said earlier, if this bill were passed, it would require the Minister to request the Law Commission to review the law relating to the care of children in New Zealand. Doing so would involve the preparation of a draft bill, and the reality is that there are very few stranger adoptions in New Zealand these days—in fact, fewer than 100 a year. So I think that although most New Zealanders would support the modernisation of our adoption laws, they are, as one commentator has said, “literally a relic from the 1950s.”

But I am very aware that in contrast to this once-over-lightly bill that is being presented by Ms Ardern the Green MP Kevin Hague has actually done a very significant and substantial piece of work and has a bill in the ballot on this very matter. His bill remains in the ballot. It is a hugely complex area. It is emotional and it has huge impacts on people’s lives. Just identifying the key policy issues is itself quite a task, but if Jacinda Ardern genuinely wants to make a real contribution to serious and meaningful law reform in this area, then she needs to put in a bit of serious work. This bill that she has put forward is basically little more than a legislative request for the Government to do something. It is not a solution; it is not even an attempt at a solution. The sponsoring member has acknowledged in her opening speech that it is an unusual, unique approach, and that it is.

This bill is a very light piece of work. Essentially, it requires the Minister to ask the Law Commission to review the law relating to the care of children and update its September 2000 report on adoption. It requires the Law Commission to report within 12 months with a report, recommendations, and, indeed, a draft piece of legislation, and, further, it requires the Minister of Justice to introduce that bill as drafted by the Law Commission without amendment within 7 days—without amendment within 7 days. So there are significant constitutional flaws in this member’s bill. There are absolutely shabby constitutional issues that the member clearly has not addressed or even thought about.

The first major flaw with this very sloppily drafted piece of legislation is that if passed, under this bill there would probably be no law change for at least 4 years or more. Let us just have a look at the likely timings. A select committee would take about 6 months or more to give this member’s bill consideration, given the looming summer break ahead of us. Then there would need to be a second and a third reading—that would easily take a further 3 months or more. Then the Law Commission itself would need to draft its report, and that would take at least a year—probably longer. Then, of course, once it came back from the Law Commission under instruction, the Government bill would have to have its first reading scheduled, and that could take up to another 12 months. Then there would be a select committee process, which would be another 6 months or more. Then there would be a second and a third reading, and at least another 3 months after that.

So the problem is that the member sponsoring this bill is essentially trying to use her member’s bill to get the Law Commission to write her bill for her. That is sloppy. That is lazy. It is a lazy approach. It is politically lazy—it is politically lazy—and it is intellectually lazy. It is symptomatic of what we so often see on the Opposition benches. We see that the members of the far left, the socialist side of the House, make a lot of noise, but they do not offer any solutions, and then they ask someone else to sort it out for them. That is the approach that we see so often from the far left on that side of the House. The member is trying to legislate to force the Minister to introduce a bill, but via the Law Commission.

The second flaw with this bill is that it does not actually specify a single policy principle—not one. It does not identify a single policy principle. It actually gives no direction at all to the Law Commission as to what should be in the bill or what its scope should be. The bill does not even indicate whether it should discriminate against same-sex relationships. Every single detail is left to the Law Commission. It would effectively give the Law Commission a blank piece of paper. It is a constitutional affront to this House and to the members who sit in this House. Surely if the Law Commission had an opportunity, it would merely go back to what it reported in 2000 in its initial report.

The third flaw that is worth noting about this bill is that the Minister of Justice would be required to introduce whatever the Law Commission drafts without amendment—without amendment. Putting aside the rather important constitutional issues of making the Law Commission able to bypass Cabinet, it means that if the first reading is scheduled, the MPs have to vote on whatever the Law Commission drafts. It could not be amended unless it survived until the select committee stage. I am doubtful that the sponsoring member has even given any thought to the constitutional consequences or the precedent-setting aspects that this bill, should it be passed, would cause.

It is very easy to write a nine-clause bill and trumpet that as some kind of solution, claiming that it would address a wide range of concerns about the outdated Adoption Act. But, sadly for the member sponsoring this bill, lawmaking is not that simple, nor is it that easy, and it absolutely should not be. If she wants to do some serious work, then she should put in the hard work. She should put some intellectual grunt into it and actually apply her not insubstantial brain to the matter at hand and actually proffer a solution—she should actually proffer a solution.

Simply drafting this bill and asking someone else to do the job for you is a lazy way of ensuring that a prospective glittering political career falls in the dustbin. The National Government MPs will be opposing this bill. It is a sloppy, lazy piece of legislation, and it deserves to be consigned to the legislative rubbish bin.

Talking about a light piece of work, the member who has just resumed his seat, Scott Simpson, could well apply that definition to himself instead of using it in this House against other members. He is indeed a light piece of work. I am normally really reluctant to attack members opposite using pieces of legislation that are here to assist and support children, but that speech, I am afraid, deserves a firm response. If that member, his Government, and his colleagues firmly believe that Kevin Hague’s bill is what they want to pursue, make it a Government piece of work. Put it on the Government orders of the day, Mr Simpson. Will he do that? No, because he is a light piece of work. And he is the chairperson of a select committee that, I am informed by my colleagues, has very little work in front of it. Talking about lazy and sloppy, he is the chairperson of the Justice and Electoral Committee, which I am reliably informed has very little work in front of it.

That is the mark of a lazy Government. There are many, many things that should be getting addressed in the justice and electoral field, but is this Government doing any of it? No.

💬 Hon Member: What has this got to do with the lazy member’s bill?

It has got to do with that member’s very vitriolic speech, when he should have been talking about an issue that actually affects families and children in this country. So, having put that on the record now, I will move to debate the actual Care of Children Law Reform Bill. This bill is about actually updating the abortion laws, and even the member, the light piece of work opposite—

💬 Hon Members: The abortion laws?

Adoption—the adoption laws. Even the member opposite said that this was a piece of work that needed to be done by the Government. Even the member opposite said that, and then he said that the Government would not support this bill.

💬 Hon Member: It’s on the work programme.

Oh, it is on the work programme. How often have we heard that? We are going to hear that a bit later tonight, by the way—“It’s on the work programme.” It has not been tabled, and there is no work in front of the Justice and Electoral Committee, but “It’s on the work programme.” Well, this is on the debating floor of the Chamber right now, and Scott Simpson could move to actually have it put before the select committee, and that Government should do it.

The member opposite, Scott Simpson, was criticising the Law Commission and its work. He criticised it and said that the Government should never be put in the position where it has to introduce a law that has been prepared by the Law Commission. Well, this is not the first time we have heard that from this Government, because it would not do it with alcohol law reform either. The Government took the Law Commission’s work on alcohol law reform and gutted it—the Government absolutely gutted it. So it is no wonder that my colleague Jacinda Ardern wants the Law Commission to do the work on this complex piece of legislation and she wants the Government to introduce it without amendment, for its first reading. Without amendment at its first reading means that, in the select committee process, if there were issues to be addressed, then that is the very time at which those issues could be addressed.

Adoption law, as Jacinda Ardern said, is something that does need updating. It seems to be that we have agreement across the House on that. Here we have a piece of legislation that will actually begin that process, but it will do it in such a way that a comprehensive body like the Law Commission actually can draft this, because it is complex. It involves whāngai adoption, surrogacy issues, and intercountry adoption—a whole range of issues around who can and who should be able to adopt children, and to fix up the irregularities.

That is not a piece of work to be done lightly. It is a piece of work that an organisation like the Law Commission should be involved in and if the Government opposite was prepared to actually engage with the work of the Law Commission in a way that it was not prepared to engage with it on alcohol law reform, then we would have a very good start to this complex issue.

The Green Party agrees with Jacinda Ardern that the Adoption Act 1955 is obsolete and not fit for purpose. Just as with the Marriage Act from that same year, the values and culture of that era are preserved in that legislation and they fail the test of contemporary Aotearoa New Zealand. The Adoption Act deals with children as if they were the property of their biological parents, and adoption as the transfer of that property to a new owner. Birth outside of marriage, especially, was seen as casting a shadow and disadvantage on both mother and child. Adoption was often seen as a means of providing a fresh start for both of them, while also meeting the wishes of other couples to be able to raise children.

As the bill before us, the Care of Children Law Reform Bill, correctly observes, these arrangements are very much focused on the needs of the adults rather than those of the children. The Act also embeds other value judgments about the suitability or otherwise of particular parenting arrangements, rather than treating each application on its merits and allowing the best arrangement for a particular child to be selected. We have certainly come across situations where adoption under the 1955 Act has seemed to work well, but very often it has not and significant harm has resulted to parents and, particularly, to children. These issues and a number of others were well canvassed by the Law Commission’s report from 2000. We believe that it was a shame that the commission’s recommendations relating to adoption were not implemented when the Care of Children Act was passed in 2004, as we believe that modern legislation is well overdue.

The member Jacinda Ardern announced her intention to place this bill in the members’ ballot back in 2010. On that same day the Greens indicated that we did not support the approach that she proposed. We reiterated that position again when the bill was drawn from the ballot, and as a result we will be voting against the bill today. Although we do not doubt the member’s sincerity—and we certainly are not as abusive as the opposite side was over this—in wishing to address the issue, and we do commend her for doing so, we believe that this approach to reform is not the right approach to take.

First and foremost, the Law Commission has already expressed its views, and any changes in law or public opinion since that time that might alter those views are minor. The ball has now been in Parliament’s court for 13 years, and it is our responsibility to take action. We believe that batting the issue back to the Law Commission is an abdication of the responsibility to act now. One of the reasons that this is important is that drafting a bill to give effect to the Law Commission’s recommendations requires political judgment calls to be made on many policy issues, not just legal or technical ones. It is Parliament that has the mandate to do this, not the Law Commission.

Secondly, this bill incorporates another form of abdication of responsibility to a future Parliament. A future Parliament cannot be bound, of course—we know that well enough—by what we decide today, so there is no greater likelihood that the process will advance the cause of adoption reform any further than the Law Commission’s 2000 report did. More to the point, although it is inevitable that issues first raised by a particular Parliament will not be completed until a future one, some time, this bill would effectively defer any action to a future Parliament. We need to take action now.

Thirdly, the Law Commission already has a busy programme, and even under the very best of circumstances this bill will not result in an actual bill on adoption, for us to debate, for at least another 2 to 3 years. In other words, this bill delays law reform further. There is no reason why a bill cannot be drafted now, and, indeed, one already has been, saving us those years.

Back when the member first announced this bill, colleagues from Labour and National had joined Green members in a cross-party approach addressing adoption reform. We still believe that this is the best way of pursuing the change, and, indeed, have continued to work with National and other parties in the House and with community organisations to develop a bill. Today the bill that was developed in this collaborative way sits in the ballot under the name of Kevin Hague. We would certainly welcome the Government’s intention if it chose to adopt it as a Government bill, and invite the current Minister of Justice or the next one to pick up that bill and advance it as a Government measure.

We need to take action. We can take action. We have legislation that is available to the House. We have cross-party agreement that action is necessary and can be taken now. There is no justification for any further delay. Thank you.

Catherine Tate uses the line “What a liberty!”. What a liberty this is.

💬 Tim Macindoe: Am I bothered?

“Am I bothered?” Fancy coming to the House and putting up a bill, the Care of Children Law Reform Bill, which is actually just a wee bit shorter than a press release, that basically says nothing—it does not say anything. It does not say: “We are going to do this. It is my intention to do that. It is my intention to take away this and replace it with that.” It does not do anything other than abrogate some member of Parliament’s responsibility to come here with a few ideas—it does not. In fact, it gives another organisation the right to make laws in this country. It forces a Minister to do something, regardless of whether they want to or not, but it does not require the person who is putting the bill up to do anything.

It is grandstanding in its entirety. It does not require anybody in this House to do anything other than think that Jacinda Ardern has saved the world with her view on adoption, while at the same time Kevin Hague and Nikki Kaye work behind the scenes, without any fanfare whatsoever, on a comprehensive—

💬 Jacinda Ardern: Which you’ve adopted? Have you adopted the bill?

Well, let us talk about adoption. Let us talk about adoption. We will not be adopting this rubbish. We will not be adopting the grandstanding of the member who wants to be the member for Auckland Central and wave around a piece of paper and say to all the upwardly mobile people in Auckland “Look what I did. I did something for adoption.” But she did not—she did not. If this bill was to pass, she would not do anything, because there is nothing in the bill for her to do.

Fancy coming to Parliament and sitting on the front bench. Fancy coming—

💬 Scott Simpson: Lazy, sloppy.

It is lazy. It is māngere. It is lazy. It is a terrible piece of work.

I have put in a member’s bill once or twice, and one of them got through. Somebody from over that side said: “Well, that bill didn’t do anything, did it?”. Well, I tell you what. It did a hundred times more than what this bill does. Fancy having on a piece of paper: “I request the Law Society to go and make a bill.” What a joke. If the Law Commission was a member of Parliament, I could agree. I could agree if the Law Commission was Cabinet. I could agree if the Law Commission was the Government. But it is not. Why does the member not get off her behind and do the hard yards like the two members whom I just mentioned? Why do they not get off their backsides and do the hard yards, and write down, maybe on a couple of pieces of paper: “Well, this is what we intend to do, and by hook or by crook it is going to go through the select committee.”

Do you know what this bill is going to do? This piece of paper, if it gets through, will go to a select committee. The committee will hear submissions on it. Hundreds of people will want to make a submission on it, until they find out that there is actually nothing in the bill, and they will be very, very disappointed. The bill is about smoke and mirrors, about talking and telling the community that I, Jacinda Ardern, am doing something for adoption. She is not doing anything. She is not bringing the old relic from the past into the new world. She is not doing that. She is asking somebody else to think about it. She is asking somebody outside Parliament to do the job of a member of Parliament. That is why we are here, to think about things and put ideas on a piece of paper, not abrogate our responsibilities and send them down the road for somebody else to make a law. I do not support this lazy piece of work.

I was going to say that it is my pleasure to take a call on this Care of Children Law Reform Bill. It is actually a very, very unique bill. I have never seen one actually drafted like this in the House before. Normally when you look at a bill, especially a member’s bill, you see the person’s passion coming through that bill, their principles, what they believe in, how they want it to go, and what they want to achieve. But in this bill you do not see any of that. All you see in this bill is the member saying that she directs the Minister of Justice to direct the Law Commission to write a report, to draft a bit of legislation to come back into the House, and for it to be tabled. Nowhere in this bill does it actually talk about adoption in between clauses 6 and 9, where all the information should be about what you want to achieve in this bill. Between clauses 6 and 9, adoption does not come up once. You do not mention the word “adoption” once between clauses 6 and 9, where all the action actually happens—where the Law Commission has been directed. There is no reference to that word.

So when we have it in the select committee and we have submitters come forward, what are they going to submit on? Are they going to submit on those clauses, and say: “We do not want it referred to the Law Commission.” or “We do not want the Law Commission writing legislation that has to be tabled in the House.”? Is that what they are going to say? There is no clear direction in this bill about what you actually want to achieve.

We all agree that adoption is very important for many, many families in New Zealand. It is a very emotive topic for many, many people in New Zealand. So let us have a piece of legislation that actually talks about what you want to do with adoption, what your vision is, where we should be going with adoption in New Zealand, and what people in New Zealand actually want. The bill does not give us that. It does not give us direction. It does not give us clarity about what that member wants. What really concerns me is that if the Law Commission does a report, reports back to the House, and there is a piece of legislation attached to that and the member does not like those recommendations, then she has put forward a bill that will have recommendations that she does not even agree with. I cannot support this bill.

I rise on behalf of New Zealand First to speak on the Care of Children Law Reform Bill in its first reading.

💬 Hon Tau Henare: Well, that’s the bill that we are talking to.

I am actually not sure what it is about the Law Commission that Tau Henare does not like. But one thing I know for sure is that the purpose of this bill is that it intends to modernise the Care of Children Act 2004. I commend the sponsor of this bill for her vision to explore the possibility of improving the current legislation.

It is noted that the principal Act wants to give weight to protecting and promoting the welfare and best interests of the child, and to ensuring that their well-being is the first and paramount consideration. It is why the Act should include legislative and social changes that have occurred since 2004. More important, it does not pertain to adoption laws. Instead, adoption laws have been left untouched since the 1950s. Improving and enhancing adoption laws promotes the welfare and the best interests of the child. The time has come for the Adoption Act 1955 to be reviewed, and it needs to reflect societal change and developments. I acknowledge that the bill intends to facilitate an evidence-based modernisation of the law relating to the care of children in New Zealand. It is not possible to have a legal system that is out of touch with reality, because that is how loopholes start to surface and create a mismatch between what the law is and how things actually are.

New Zealand First supports the need for the Law Commission to review the current legislation. Adoptions in the 1950s were primarily closed and stranger adoptions. Today less than a quarter are closed or stranger adoptions. It is high time that the Law Commission undertook a review of the legislation and incorporated social changes to the care of children and adoption. Some of these developments are human-assisted reproduction technology and/or surrogacy arrangements, decreasing closed and stranger adoptions, and also the need for whāngai adoptions to be acknowledged by the law.

I had to do some research into the whāngai adoption and I must admit that it is very similar to the way Pacific Island people operate. However, from what I am able to read, reasons for whāngai include providing a home for an orphan, taking in a child from a larger family that is struggling with a lot of children, taking in a child whose parents were too young to be parents, grandparents taking in a mokopuna and teaching them tribal traditions, and allowing children to inherit land. These are some of the reasons why the Law Commission should review the Care of Children Act 2004 and overhaul our legal system.

It would be wonderful if the Minister of Justice ensured that the Law Commission is afforded the opportunity to carry out the task of reviewing the original report, which is from about 13 years ago, in order to include developments that have been made since. All legislation that pertains to the care and well-being of children is paramount for their well-being and society. This is why the principal Act needs to be updated and reviewed by the Law Commission. It has the expertise to consider what is relevant in this particular case. Our children’s well-being is plastered across media outlets far too often, and we need to ensure that any piece of legislation pertaining to children that goes through this House puts their interests and well-being first. Policy makers, decision makers, and the machinery that drives legal and social change need to work together.

Let me explain why there is a need to combat issues that prevent our children from growing up in a healthy environment. With this in mind, action needs to be taken so that the changes to the Act can be effectively implemented. Children’s rights are important, and so too are parental responsibilities. Changing family structures and norms need to be included in our legislation so that children get the best start in life and do not fall through the cracks due to unintended outcomes.

We do have some concerns, and they are around the whāngai institution, as the Māori customary practice embraces the principles of orphans and kinship. This is something that we wanted to hear more about from the sponsor of the bill, and it would have been a lot better if this bill was given the opportunity to investigate or to explore that side of adoption. Thank you.

I am glad to be able to speak in this first reading of the Care of Children Law Reform Bill. I understand that the intention of this bill, as expressed in its purpose, is, in fact, to enable an evidence-based modernisation of the law as it relates to the care of children in New Zealand—specifically, around the adoption of children.

As members speaking before me have noted, adoption law reform is on the Government’s legislative agenda, but there is much more pressing work that needs to be addressed as a matter of urgency in this country. We on this side understand that, and are well aware of the issues raised by this bill. Although at a practical level the adoption system in New Zealand, by and large, works fairly well, despite being rather outdated—and this applies whether these are adoptions from birth or later in life due to the orphaning of a child or other circumstances—this is not to say that there are not improvements that could be made, but there are other pressing priorities that we are focusing on.

Adoption is not a new thing. I am sure our learned Attorney-General will be aware of this example: 1,900 years ago a non-patrician soldier born in Spain by the name of Marcus Ulpius Traianus became, by adoption, the Emperor Trajan, Caesar of the Roman Empire. Trajan later went on to be considered one of the best Roman emperors, a virtuous pagan, as Edward Gibbon characterised him. It is unfortunate that at some points in our history there has been a certain stigma around adoption, and discrimination against adoptees—for instance, in the right to inherit—but I am encouraged by the fact that this has largely abated, with the majority of adoptions in New Zealand now being open ones.

Speaking from our own family experience, in a situation whereby my brother had a daughter at a very young age, my parents raised my niece, their granddaughter, in what some might call a whāngai arrangement—not a formal adoption, but an open, familial-based adoption—which the previous speaker, Le’aufa’amulia Asenati Lole-Taylor, referred to. These systems and approaches are working in New Zealand. There is not an urgent or a pressing crisis here that needs to be addressed, although there are obviously some areas where there could be some improvement.

People adopt, among other reasons, because they want to create a family or take into the care of their family a child who has been neglected, abandoned by its parents, or orphaned. New Zealand has some of the easiest, most straightforward, and least stressful adoption procedures in the world, when you are looking at other countries that operate adoption systems. I acknowledge that this bill has the best interests of children at its core. However, it currently contains no workable provisions. It is impracticable. It would require a large amount of dedicated resource to make operable any of its suggestions.

Even though National does not support this bill, I would like to highlight some of the initiatives that this Government is taking that do significantly improve the lives of the most vulnerable children. Since National came into office in 2008 we have increased spending on early childhood education by 75 percent. At the end of the last financial year we celebrated the fact that almost 96 percent of children starting school had previously participated in some form of early childhood education.

Under this Government we have also seen large increases in the number of 8-month-olds being fully immunised from diseases such as whooping cough and hepatitis B, including some outstanding results among Māori and Pasifika communities, which have previously and traditionally lagged behind their peers in immunisation rates. Again in the health sector we have seen a reduction in rheumatic fever rates in young children. More than 47,000 schoolchildren have joined the Government’s programme to reduce rheumatic fever, and we now have 211 schools and nine community-based clinics taking part in this, with 146 new schools joining in the last 12 months.

Perhaps one of the most significant measures National has taken to reduce the plight of vulnerable children was to introduce the Vulnerable Children Bill. There is not one member in this House who does not want to give every child a better start in life. In New Zealand there are far too many children who have been the victims of physical or psychological abuse, and, quite frankly, New Zealanders have had enough. So I believe that it is quite right that these sorts of measures, which address the real, pressing, and urgent issues, ahead of changes to adoption rules—which although outdated affect a far smaller group of children than these major problem areas—are prioritised.

As part of National’s Children’s Action Plan, we have already expanded social workers in schools and hospitals, increased funding and services for children in care, and introduced children’s teams to work with at-risk children. I also welcome the member’s bill that was introduced by Tracey Martin—let us face it, a far more carefully worked out member’s bill—that addresses some issues around clothing for orphans and kin carers.

As I have previously said, we are here to support the most vulnerable children in society. The Government is attending to this pressing business. I hope there will be more practical and more carefully considered legislation in this area brought forward in the future.

💬 Dr Rajen Prasad: Mr Speaker—

💬 Hon Christopher Finlayson: Oh dear! This’ll be sanctimonious.

The ASSISTANT SPEAKER (H V Ross Robertson): I call—

💬 Dr Rajen Prasad: That sanctimonious—

The ASSISTANT SPEAKER (H V Ross Robertson): Order! [Interruption] Order! I have not called anybody yet. Calm down, guys. Calm down. [Interruption] Order! I am on my feet. Right.

💬 Dr Rajen Prasad: Mr Speaker—

The ASSISTANT SPEAKER (H V Ross Robertson): I call the honourable member Dr Rajen Prasad.

Namaste. Is it not interesting that some people like to make comments but do not stop to listen to the response? That particular member, Chris Finlayson, who has not stopped to listen, has done that before. He is the sanctimonious person, he is the nasty person, and he will not even face up. If he does, I will remind him of his own sanctimony.

That sets me up in a good mood for responding to this particular bill, the Care of Children Law Reform Bill, and the way in which Scott Simpson responded to this bill. I would have thought that the Government’s approach to the bill might be principled. What we got was surprising. It was, indeed, lazy. The Government’s response to the bill, as articulated by Scott Simpson, was one that paid no attention at all to the problem that this bill, which Jacinda Ardern has put before us, is trying to address. At least she did design something. At least she did put something before us, which is more than that Government has done in almost 5 years of being in Government.

💬 Katrina Shanks: She’s doing nothing.

The member had better stop to listen, because she may learn something. She may learn something. The Government has not done anything. All it did was attack the proposer of the bill for no good reason at all. If the member Scott Simpson had wanted to be taken seriously, he would have shown us what the Government has in train and we could have discussed that. The member did not do that at all. He simply called it—what did he say—sloppy and lazy. Well, the response that Scott Simpson gave to this House would have been written by one of those lawyers who, because of some principles unknown to me, is actually against adoption, the modern type of adoption that this bill would, in the end, regulate. I do not know who wrote that speech, but it certainly was an unreasoned attack. It did not provide any solutions.

It did do something, and I wonder whether the member will stand by this. He said that the proposal that is in the name of a member of the Green Party is a better one. Well, is the Government now saying that it is going to support that? Is the Government now saying that? I bet you that it is not. There is no programme of work. It has been a long time coming to this House. Here is a solution.

I think that this bill proposed by Jacinda Ardern is actually quite elegant. It is quite elegant when you think about it, because what it does is says that we should look to see what the problem is with an Act that was passed in 1955, the Adoption Act. I worked with the legislation in my first 10 years as a social worker in the field. It is still basically the same. It does not actually fit the modern environment that we have with adoptions. What the bill is saying is that we should go back and have a look at when the last major piece of work was done. Let us ask the Law Commission, in this case, to take all of the residual bits that have to do with adoption that were not taken up in the Care of Children Act. Let the commission have a look at it again, bring all those proposals together, and propose a bill to the House. At least that piece of work can start and would go alongside anything else that is happening in the House at the moment. That is quite elegant because the grunt work has already been done. The expertise resides there. It would have taken the considerations of modern adoptions a lot further.

The members opposite have not done that. In fact, all that they have done is pilloried the proposer and the proposal. No good reasons at all, no arguments at all; it is just something that this Government does not have any plans about, and if it has not got an idea, nobody can have a better one—nobody can have a better one. So I think it is the response of Government members that has been lazy. I will say that the last member who took a call, Paul Foster-Bell, at least spoke about the bill and had something additional to say, but the others did not. I do not think that the third member from the National Party who spoke in this debate, Katrina Shanks, had even read the bill and understood it, because she was talking about something that is supposed to be between clauses 6 and 9, without reading the preamble to the bill, the explanatory note—that said it particularly well.

The 1955 Act is old. It is now no longer relevant. How does it apply to open adoption, adoption following care and protection, step-parent adoption, surrogacy, intercountry adoption, adoption for citizenship, and a whole range of other arrangements that are now being developed around adoptions? Here, at least, was a proposal that could have taken that further, and had some good, good considerations. My final point is this: the Government could have said yes and let the Justice and Electoral Committee work through those things that the Government does not like. It could have been amended. But, in fact, the Government has thrown the baby out with the bathwater and in the process has shown and displayed its own ignorance. Thank you.

Kia orana, Mr Assistant Speaker. Meitaki maata. I stand to take a call on the Care of Children Law Reform Bill. The previous speaker, Rajen Prasad, has been talking to us tonight about his concern about the way that the Government—and not only him but also other members, the Greens, have noted that it is not only about the baby that has been thrown out; it is about the bathwater. It is about the process. Although I do know that Ms Ardern has a true intent and would like to see legislation that does address this issue around adoption, I think it is fair to say that it is the process we object to—hence the reason why, as a Government, we will oppose this bill.

The purpose of this bill indicates that it is to facilitate an evidence-based modernisation of the law relating to the care of children in New Zealand. We would agree with that, but I think what is quite clear is that the bill, again, is requiring the Minister responsible for the Law Commission to ask the Law Commission to review the law relating to the care of children. In a sense, it is creating a bill to get the Law Commission to write a bill. I think that is where the concern has come from.

Mr Prasad talked about the fact that the Government has not talked about the things that it is doing. In fact, I think that my colleague here—my learned colleague Paul Foster-Bell—actually talked about those things. He talked about those things. He talked about things that are important, such as the Family Court Proceedings Reform Bill that is in place, around family disputes resolution and refocusing on the Family Court. He also talked about the Crimes Amendment Act that is there, and, again, more work that the Government is doing in this area. There is the Vulnerable Children Bill, which is quite conclusive in its role, and also the Children’s Action Plan.

This Government has been, and is, looking at the care of children—very much so. But in relation to this bill, there are three key reasons why we oppose it. First of all, the bill requires the Minister responsible for the Law Commission to ask the Law Commission to review the law relating to the care of children and update its September 2000 report on adoption. We know that the Law Commission produced a report around adoption and its alternatives. But in actual fact—and it is clear—it said firmly that all decision making around the care of children is to be based on the principle that the interests of the child must be regarded as the paramount consideration when making decisions affecting the child’s health and the child’s welfare.

However, adoption was left out of the Care of Children Act 2004. In a sense, this is the response that is coming from Ms Ardern as well. Therefore, this bill requires the Law Commission to update this. In our view, this is a complete contradiction to the work already being undertaken by the Government on the care of children, by way of the Family Court and also the Ministry of Social Development reforms.

The other thing that we are also concerned about is that the bill requires the Law Commission, within 12 months, to report recommendations and draft legislation. This does concern us because, again, this legislation has only nine clauses. So the bill in itself is incomplete. We feel that it is incapable of addressing some of the concerns that even Ms Arden has put up as well.

The last thing is that the bill requires the Minister of Justice to introduce legislation, as drafted by the Law Commission, without amendment and within 7 days—within 7 days. Again, this is the reason why so many of us oppose this. The reality is that if this law were to be introduced, it would take at least 4 years. So let us take this. After its introduction, it would probably be 3 months before its referral to a select committee—around about 6 months, just in the traditional process. The second and third readings would be around about 3 months. The Law Commission report would be around about 12 months. The Government bill then, in its first reading schedule, would be up to another 12 months, the select committee another 6 months, and second and third readings would be 3 months. In total, we are probably talking about 4 years before legislation was introduced.

That is a very good reason why the majority of the House—not just the Government—is opposed to this bill. I would have to say that we are not opposed to the intent of the member, because I have observed that the intent of the member has always been the right intent. What we are opposed to is its process. I know that this member can do better and does do better. But in this instance, I would have to say, as is the majority of opinion in the House tonight, this is not appropriate. This is not a bill that we feel will address that issue. So, quite clearly, we oppose the bill.

I thank members for their contributions to this debate—with the exception of Tau Henare. I think it is a low point in this House to be called lazy by Tau Henare. That is definitely going down in my book.

I think the ultimate frustration for me in this debate has been that there is an acceptance across this House that our adoption laws need to be updated. That did not seem to be something that was disputed in this debate. No one seemed to argue that point. So there is agreement generally that our adoption laws need to be updated, yet still nothing has come before this House in the way of reform in this area.

The last time that I approached a Minister in the National Government and asked about it, I offered to them and said: “Look, we are looking to progress this piece of work. We want to get it right. Ultimately, we would prefer it if the Government did it. You are better placed to do something of this complexity because members’ bills are drafted by members, not using the expertise of parliamentary counsel and drafters.” We went to the Government. We asked it to pursue this. I had a meeting with the Minister. His response was this: “It is not a priority for this Government.” So I find it absolutely offensive to have members on that side of the House abuse Labour members for trying to pursue this issue, and for trying to claim that we do not care about it, when that Government has refused to further this any more than it has in the last 5 years, which has been absolutely nothing.

I want to refer to some of the comments that were made by the likes of people like Scott Simpson, who claimed that this bill, the Care of Children Law Reform Bill, was a blank piece of paper. This bill essentially enacts 350 pages of work. So my question is this—because it was not only Scott Simpson who made that claim; it was Tau Henare as well, and Tau did not even mention adoption, I should add—how many of the members across that side of the House have read the Law Commission’s report Adoption and Its Alternatives? Who has read it? Who has read it? No wonder they do not understand what this bill does. This bill is essentially saying that we agree with the 350 pages of policy work that has already been done. We agree, to the point that it is about time that it was progressed by this debating chamber.

If members on that side of the House like to claim that adoption is a cross-party issue that we all agree on, why would they have any objection to adopting the work of the Law Commission? So for members on that side of the House to claim that there was nothing in this bill, and for that side of the House to claim it was a blank piece of paper, all that proves to me is that they know nothing—know nothing—about the history of the work that has gone on in this area, and that they would rather sit back and say: “It’s not a priority.” than use a mechanism to fast track a piece of work that is well overdue. So, quite frankly, I found that offensive, to say the least. Let us be honest—let us be honest. If we had translated the Law Commission’s 350 pages of work, including its recommendations, which essentially is a bill—if we had presented that to the House, I can bet your bottom dollar that the first thing members on that side of the House would have said is: “There is an error in paragraphs 4, 5, 12, 10, and 18. We cannot agree with this piece of legislation.” I can guarantee they would not have supported it to go further to a select committee.

And what am I basing that argument on? Well, there is another bill currently on adoption reform—there is. It is in the ballot right now. It is sitting there, wasting away, taking a gamble to be drawn, and members on that side of the House had the audacity to say: “Well, why don’t we use that instead?”. Well, why do they not? If this Government genuinely believes in adoption reform and the paramountcy principle in putting children first, I challenge it to adopt Kevin Hague’s bill tomorrow as a Government bill and progress this work; otherwise, everything that Government members have said in this House tonight is utterly hollow, if they are unwilling to do that.

Ultimately, the people losing out as the result of Parliament being unwilling to progress this work that everyone agrees needs to be done—ultimately, the losers are not me, who was ritualistically abused by some members of the House tonight. It is not me; it is those families who desperately want a law change in this area. I challenge the Government members to respond to the kinds of emails I got through this debate and tell them that this work is not a priority. I challenge them to adopt that member’s bill that is in the ballot, if this one is not to their liking. Or I challenge them to present a bill of their own before the next election, when we finally get the chance to do the work ourselves.

The question is that the motion be agreed to. Those of that opinion will say Aye, to the contrary, No. The Noes have it. [Interruption] The Ayes have it. [Interruption] Right. In that case, the Clerk is instructed to carry out a party vote. Thank you.

I raise a point of order, Mr Speaker. I think there is a requirement for someone to call for a party vote after—[Interruption] Well, no—

The ASSISTANT SPEAKER (H V Ross Robertson): Order!

Can you hear the point of order first? With all due respect, I did hear someone call for a party vote, but it was after you said you would ask the Clerk for a party vote. My understanding of the way that these things are meant to be ordered is that you declare a result and if the people do not like it, then there is a requirement for a party vote. Although it is probably reasonable given the debate for you to anticipate that there might be a division on this particular question, the point I would like to put to you is that you should wait to make sure that they are actually voting with their votes as opposed to just on their voices. As you will know, Mr Assistant Speaker, although there is a tradition in this House of having votes after voice votes, there is a long-term tradition of members being able to vote on the voices but not force a division. My view is that it is up to you to wait and make sure that members do want a division before you decide that there should be one.

As is your custom, you called for the Ayes. Members opposite said “Aye.” You called for the Noes, and members on this side said “No.” I immediately said “The Noes have it.” and I was joined in that by several of my colleagues. Immediately after that I said “Party vote.” as you were saying “The Noes have it.” The member’s point is totally wrong.

I think that the member has absolutely proved my case, because what he has to do is to call for the vote after you have declared the result. So you quite properly said “Those in favour say Aye, those opposed say No.” But you went then from saying “The Ayes have it.”; you declared the result but then immediately called for a party vote rather than wait until after the member had himself called for a party vote, which he can do only after you have declared the result. He cannot call for a party vote against a result until he knows what the result is. That is the way things work. You have got to declare a result and then that is the point when he calls for a party vote.

Can I just instruct the House that the declaration of the result was challenged and I took it from this side that there was a party vote called for, so I instructed a party vote to be taken. I now instruct the Clerk to please take the party vote.

I raise a point of order, Mr Speaker. That cannot possibly be right, because you called “The Ayes have it.” Why would people on this side of the House who supported it call for a division on a vote when you had already declared that we had won? That cannot be right.

Well, can I just say that the thing was challenged, and because it was challenged I instructed a party vote to be called. So I now call the Clerk to conduct a party vote.

I raise a point of order, Mr Speaker. I think you might be confusing a challenge with people voting different ways. There have got to be two things. First of all, people have the right to vote—Ayes and Noes—but there is a division only if your declaration is challenged, as I have tried to indicate to the House. I can give you the case of the immigration legislation of, I think, 1983 where there was a group of seven or eight Labour members who voted No. This was the Samoan legislation of 1983, which ended up going to the Privy Council. Rosenberg, I think, took it to the Privy Council. But the point that I am trying to make is that it is always the right of the members to vote with their voices, but not to call a division. And they can call for a division—they can challenge your result—only when you have declared it. The point that I am making to you is that you had not declared the result before Mr Macindoe was calling for a party vote. He has got to wait for you to call for a party vote before he can challenge your ruling, because you cannot challenge a ruling that has not been made.

Well, can I just say to the member that my declaration was challenged, and so on that basis I instructed a party vote to be taken. That is the reason why I asked the Clerk to please conduct a party vote. I would appreciate it if the Clerk would now do that. Thank you.