Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill

This debate will, I imagine, be a rigorous one. As the early debates on this bill will attest, this has been a bill that has been controversial, to say the least. One would have hoped—and I know certainly it was our hope on this side of the House—that we would have been able to find a position collectively where we were able to vote together on such an important piece of legislation, because, of course, we are debating today a fundamental redraft of what was groundbreaking and historic legislation in the original Children, Young Persons, and Their Families Act of 1989. It was groundbreaking.

We had a hope that New Zealand would maintain its positon as world leading in the redraft that we are considering today, and yet, as this Committee stage will demonstrate, rather than working on the strong foundations of that original legislation, this piece of law is a retrograde step. In fact, it would have been my hope that rather than debating this new bill today—I would rather debate the original Act of 1989 and moved Supplementary Order Papers (SOPs) on this floor to improve that Act than debate what we have today. There was poor consultation in its drafting, particularly with iwi. There was a sense, really, of urgency in this drafting that has come through, which I do not blame officials for, but the lengthy SOPs we see today also, I think, stand testament to the fact that this law has been rushed. We cannot risk making mistakes when it comes to vulnerable tamariki—we cannot—and yet that is what I fear this bill will generate.

I want to begin my first contribution on the issue that has been the most controversial for the Labour Party, amongst many other elements of this bill, because there are a few things in there that we do support. The one issue that, on principle, has led us to vote against this entire piece of legislation are the elements of the “Principles” clauses that fundamentally change the relationship between the State and children and their iwi—fundamentally changes that relationship. I want to speak to that in my first contribution.

When we reflect on what made the original Child, Young Persons, and Their Families Act groundbreaking, it was the acknowledgment of the range of elements that allow a child to thrive—the acknowledgment that when we have a situation where a young person or a child is not safe, there are certain things that the State should strive to achieve before we get to the point where a child is removed, and then certain things that we should strive for at the point that that horribly traumatic decision is made. Originally, of course, there were purpose sections at the beginning of the Child, Young Persons, and Their Families Act, but then, contained in Part 2, in section 13, “Principles”, it really set out the consideration that must be given when a child faces potential movement or housing under different circumstances.

It states in section 13(2) that, “In determining the welfare and interests of a child or young person, the court or person must be guided by the principle that children and young people must be protected from harm and have their rights upheld,”. I want to state that again: “must be protected from harm and have their rights upheld,”. And it is also in the principles in section 5 as well as the following principles. So we have, right from the outset—right from the outset in the original Act—the primary consideration being that a child must be protected from harm and have their rights upheld. Nothing stands as more important than those two principles in the original Child, Young Persons, and Their Families Act. The reason this is important, I will come to.

It then goes on to state in the Child, Young Persons, and Their Families Act of 1989, in section 13(2)(b), “the principle that the primary role in caring for and protecting a child or young person lies with the child’s or young person’s family, whanau, hapu, iwi, and family group,” and, accordingly, that they should be assisted and supported to, essentially, do the role that is there, and that intervention into family life should be at a minimum.

Then section 13(2)(c) states: “the principle that it is desirable that a child or young person live in association with his or her family, whanau, hapu, iwi, and family group, and that his or her education, training, or employment be allowed to continue without interruption or disturbance:”. And then paragraph (d)—this is where it really hits home—“where a child or young person is considered to be in need of care and protection”, where it is considered that they need to be removed from their home, “the principle that, wherever [possible or] practicable, the necessary assistance and support should be provided to enable the child or young person to be cared for and protected within his or her own family, whanau, hapu, iwi, and family group:”. There it is.

That was what was groundbreaking: the acknowledgement that a child does not exist in isolation, that if there is harm, that we suddenly prevent future harm simply by removing them and placing them somewhere else—wherever else. This law acknowledged that, actually, that had the ability to further traumatise a young person, and that if we truly wanted to make sure that we listened to all of the research and evidence, (a) we should do everything in our power to prevent a child being removed in the first place, and (b) if they were, whānau mattered. We had an obligation as the State to make sure we did everything in our power to make sure that a child was placed within that kind of environment.

So what was the problem that the Minister tried? Why have we redrafted this new law to remove that principle? Why? When you ask the Minister, she states that she thought it was more important that a child’s safety was the paramount consideration. She blatantly misunderstands the law. The law always said that a child’s safety came first; their rights came first. Then, when it was possible and practicable to place them within whānau, iwi, or hapū, that was our next obligation. The Minister redrafted the law without understanding how the law was meant to work in the first place, and if that was not what was happening on the ground, that was a problem with practice, not with the legislation.

I absolutely agree that there have been issues with practice. There has been a risk aversion, I think, amongst some, because we have created such a risk-averse environment for our social workers, so much stress and pressure around them, that there is a perception that if you place children within whānau, then perhaps you do not need to do the same level of rigorous checks, with the same level of support placed around those iwi and hapū placements. That was the problem, not whānau or iwi in the first place—that was the issue. Not nearly enough support was provided to them.

I have seen cases where we have had family members who suddenly have a child placed in their care and then they will not hear from Child, Youth and Family for months—months go by. This will often be a child with high needs. There is no respite, there is no support, there is no guidance, there is no anticipation of what the long-term plan is—there is nothing. The Children’s Commissioner identified it as a “dump and run” problem, and the Minister’s response has been to blame whānau. Well, that was wrong—that was patently wrong.

Our view is that a bill that does not contain a “whānau first” principle—as this bill does not—is a bill that fundamentally fails children. It fundamentally fails to understand what helps them to thrive in spite of trauma. It fundamentally misunderstands the importance of their cultural connection. It fundamentally misunderstands the trauma of removal from a family in the first place. We stated from the outset, and we continue to state today, that we cannot and will not support a bill that takes such a retrograde step right at the first mark, right at the first test.

I can tell you that when Labour is in office, we will not preside over a Ministry for Vulnerable Children; we will preside over a ministry for children—Oranga Tamariki, the ministry for children, children’s well-being. We will reinstate the “whānau first” principle. We will put children and family at the centre of that ministry. We will do everything in our power to have a ministry that focuses on supporting whānau so that children are never removed in the first place. That should be our ambition and goal: prevent the trauma, prevent the harm, and put that right at the beginning. That is why we will be opposing this bill.

I rise to take my first call in this, the Committee stage of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill. There are quite a few points to cover in this debate, and I do want to share the concern that has already been raised about process. We yesterday got a Supplementary Order Paper (SOP) on this bill that is almost the same size as the legislation itself, almost 100 pages. This relates to legislation that guides practice where children’s lives are at risk, and we are being expected, within one day, to absorb this information and consider what it will mean in practice. I have to admit, I do not think that is possible. I spent hours going over this last night, up till very late, trying to work through it, to understand the implications of these changes, and I have many questions that I hope the Minister for Social Development will be able to answer for me. I will start by outlining some of those questions that I have, so bear with me.

One of the changes in this SOP 329 is the change to the complaints system so that it is amending—the existing language in the legislation is providing direction for what should be considered in coming up with a complaints system. No detail, no guidance, which is a bit of a problem, but the things that should be considered. This adds the wording, from where it was previously “complaints mechanisms”; it now adds in the wording “1 or more complaints mechanisms.” So I want to know whether that is actually opening up the possibility for a constraint on what will come out of this, by saying there may be multiple and this will apply only to one, whereas the initial implications of the legislation would have been that it applied to all of them, if there were multiple. If that is the implication, I would like to know the rationale for it.

I would also note that in new section 4, “Purposes”, inserted by clause 6, there has been the removal of the phrase, that the purpose of the Act would be adding to the establishment and promotion of services—there is the removal of the language of assisting with the establishment and promotion of services and facilities. That seems to me to be consequential—that if it is restricting the purpose, which in previous legislation had included facilities, just to services, is this now constraining the role of the new ministry in a way that is actually more limited than what we had seen previously, to the extent that there will not be the assisting of other organisations in setting up services or facilities and there will not be any role for them in looking at facilities? That seems to me to be something that the Minister should stand up and speak to and, at the very least, explain to this Committee.

I also notice that in one of the sections where it currently talks about assisting families in the prevention of children and young persons from suffering harm, it deletes the phrase “the risk of suffering harm”. That seems to me to be, actually, a sensible removal. It was not there in the original legislation, is my understanding, so that seems sensible. But again, I really think it is something that we should be able to have explained to us, because the explanatory note in terms of the bill does not provide the explanation. It just tells us very, very broadly what it is doing.

I do have a question about two points in the Supplementary Order Papers (SOPs). We are told that “Clause 21 amends section 18B to ensure that it applies in relation to decisions that a child or young person is in need of care or protection on certain grounds made before the commencement … for consistency with other provisions in the principal Act.”

My concern—and there is another provision, a completely different point, that is the same thing—is that this is undoing a change that was made in the select committee. We were given advice that we should have the specific language that this is amending, and now it is reversing that decision and taking it out, and in two cases in this SOP. It undermines my confidence in this whole process. This is happening very quickly, without proper debate or scrutiny, and I am not seeing the rationale for it. It worries me.

I also would like to understand, because I do not understand, the difference around the transfer back to the Youth Court. There is a change in the language and the ordering of the language, but I do not actually understand what difference it would have in practice and in meaning. It just seems to be a kind of reordering, but I would actually need some explanation to understand it, because it does not make sense to me about why we are making that change in an obvious way.

There are other points as well, but I am conscious of the time so I will move on to some of the discussion, but I really do hope that the Minister will engage in some discussion about the SOPs, and explain them to this Committee so that we can understand and at least have a token, cursory look at being able to do due diligence in ensuring that this legislation and the way it is written will actually provide for what we need.

I would like to speak now to some of the changes that are being made to the purpose clause, which have already been mentioned in concerns raised by Jacinda Ardern. I will leave the discussion around the changes to the “whānau first” principle to my colleague Marama Davidson. It is an area of significant concern to us in terms of the process leading up to this, as well as a concern that we may have undermined the clarity of the purpose of the legislation with the changes that are coming in this legislation.

I also want to speak about another two points in relation to the purpose. One that the Law Society raised concern about is that we are adding complexity to a piece of legislation that they suggested had bedded in over time and that we needed, in terms of practice and surety in the courts—and so many cases do go to court. That certainty plays a really important role in decision making, and this risks undermining the surety of practice. We do not know what some of the outcomes will be in the court, particularly when we add words like “safe, stable, and loving home from the earliest opportunity” into the purpose of the bill. How will the courts define “loving” in a legal sense? I do not think that this is a concept that has been introduced into our legislation before, and this was questioned by quite a few submitters—whether it is appropriate to be in here. We all want our kids to be loved, but is it appropriate for us to ensure, through legislation, that they are loved? I am not convinced. It just does not seem appropriate, and other submitters agreed on that point.

We were also challenged by some practitioners and by Child Poverty Action to include in the purpose a more general duty on the Government to ensure that all children and families have adequate income to meet their basic needs. If we were looking at being really aspirational and really brave about actually doing the best for our kids, then we would include that.

Of all the issues that we debate in this House, when it comes to children I would have thought that the Government of the day—particularly this Government—would have aimed to try to unify all the parties, to try to get it right. There is unanimity in this House about ensuring that our children, our young people, the future generations of our families in this community—our country depends on them. I would have thought that that would be the priority. Yet, again, when you look at this bill, it smacks of cost cutting. It smacks of arrogance, because the Government does not recognise that our children have potential. It smacks of negligence, because it refuses to recognise that, yes, we do have some bad kids, but these children, our children—our collective children—have potential, and, whether we like it or not, they take over from us.

You will appreciate that I am not a member of the Social Services Committee, but when I skim through the legislation, it borders on reaffirming, again and again, institutional racism. That is how I read this bill. I want to acknowledge Jacinda Ardern, the deputy leader of the Labour Party, because we are deeply committed to what she said: the fact that it should not be about vulnerable children; it should be about children per se, children whom we know and recognise as the future of this country. The fact that the Government has removed the “whānau first” principle tells me so much about the arrogance of a Government that believes that one-size-fits-all is going to fix a problem that it cannot fix on its own. It requires united support from the rest of the House.

I want to draw attention to clause 4, “Purposes”: “The purposes of this Act are to promote the well-being of children,”—fine with that—“young persons, and their families …”. I want to ask the Minister why the word “parents” is missing from that statement. Why is the word “parents” missing from paragraph (c) and paragraph (d)? Why is the word “parents” missing from paragraph (h)? Why is the word “parents” missing from new section 5(1)(c), inserted by clause 8, in subparagraphs (i), (ii), (iii), (iv), (v), and (vi)? Families do not have children; parents bear children. The fundamental unit of a family is parents and children, and even if you are removing children from parents and therefore you decide to discard the parents, those parents are going to have children. What about their well-being? When a Government agency removes children from parents who may not know what wrong they have done, how do they fix their problem? We have an obligation, do we not, to look after the parents as well, to ensure, firstly, that they recognise they have done some harm and, secondly, that they are given tools to help prepare them either to receive their child back or at least be prepared to be able to teach and pass on good things to the next crop of children that they have.

So I am asking the Minister: why is the word “parent”—I would have thought that it is so fundamental to getting things right that it would be placed in throughout this piece of legislation. I want to ask the Minister also: the legislation refers to “family, whānau, hapū, iwi, and family groups” in that section, but if we go to new section 5, “Principles to be applied in exercise of powers under this Act”, subsection (1)(b)(vi)(D), it makes reference to “cultural identity”. The principle of “whānau first” has been removed from this. I would have thought that that was a key principle that should have been retained in this legislation. Doing away with that tells me that this Government does not care about the diversity within our communities.

If my youngest son were to be removed from me, my greatest fear is that that young son of mine would be raised by another family that does not share my spiritual values, that does not share my language values, and that does not share my genealogical values. When it comes to Samoa, we speak different languages to Māori and other members of the Pacific community. We also belong to different villages. I would have greater confidence that if a son of mine was to be removed—I would prefer, first and foremost, that he is given to a brother or sister of mine, the immediate family, before he is offered to the extended family. If nobody in the extended family is able or willing or meets the certain conditions of the department, I would prefer that he is given to the extended family that belongs to the village grouping or the district grouping.

There is so much that is missing from this legislation, by omitting the differences in culture, language, and spirituality, that it tells me that this legislation is going to reaffirm institutional racism and practices that will then mean these kids get to be treated as if one size fits all. It does not recognise that at 16, many of these young people, in a Pacific sense, will know how to speak Samoan or speak Tongan, will know certain values, and will know the roles that they play.

Young men—for Samoan, o le taule’ale’a. Young women—for Samoan, o le tausala, o le taupou. Ia malamalama le tamaititi i lona gafa—her genealogy; his genealogy. That will not be able to be shared by that young person if placed in a different family. Again, by omitting a vast amount of cultural values in this legislation, it tells me that this Government is prepared to dump any of these children with any family. It reminds me of what the Palagis did with the Indians: removing families’ children. It reminds me of what the Australian Governments did with the Aborigine children. They are trying to make them into something that they are not, and yet the problem that we are trying to resolve here is about keeping children safe. That was always in the previous legislation, but I think what has happened here is that much, much more has been removed, because the Government, in my view, when it does these sorts of things, is looking at a shortcut. It is looking at throwing up lines that might seduce some people, because it is election year.

But I say again, this is one matter—this is one issue—where it would be to the benefit of this Government and the benefit of this country if we just worked to try to unify and find the common values and the common intelligence of the whole House, rather than depending on one Minister’s belief.

In clause 4 it says “mana tamaiti”. Most Pacific Islands believe in the mana of young people—of mana tamaiti. Whilst Māori also believe in that, I would say that Pacific needs to be specified. If this Government believes that it is Māori and Pacific kids who are usually in trouble, then why is it that we do not specifically mention recognition of the specific and different languages, cultures, spirituality, and genealogy? That is where these kids will find support and grow a sort of sense of who they are. Simply removing them from their first families—from their parents—and placing them anywhere they choose is not going to give those children confidence. It is not going to give those children a better understanding, in terms of who they are and their place in this world, and certainly in their place in the future of Aotearoa New Zealand.

I thought I would take a call at this point to address a few of the issues that have been raised. First of all, I want to talk about the Green Party member Jan Logie’s speech, where she talked about the concern that some submitters had on this bill around the certainty of existing law. I want to say to her that there is one certainty of the existing law, and that is that it does not serve well the young people for whom it was designed, and for whom it should be operating to protect and enhance. I have that on good advice from the young people themselves. So that was the certainty that we entered into this discussion. And, yes, I know it is always difficult for lawyers when we change the law, but too bad. They are going to have to get used to a new law that actually focuses on the children first—on their needs, on their views, and on what is best for them—and they are going to have to come along with this.

The second thing I want to say to that member is: why are we scared in this Committee to talk about the fact that every child is entitled to be loved? Actually, I am not scared to say that, and I have put it in the legislation: every single child is entitled to be loved. One thing is very clear: we are not afraid to say that that is their right. They have the right to a safe, stable, and loving home at the very earliest opportunity, and this legislation is designed to get in and work with families as early as possible.

I refer a couple of the members to a very, very important clause. It is in Part 1, clause 8, amending section 5(1)(c)(i) of the Children, Young Persons, and Their Families Act,: “the primary responsibility for caring for and nurturing the well-being and development of the child or young person lies with their family, whānau, hapū, iwi, and family group:”. That underpins the legislation. That underpins the reason why we are changing the legislation to include everything from prevention through to transition into adulthood. The core of our communities is family. The earlier we can get in and work with and support families, the more chance we have of realising my vision for this service, which is to have no children needing to be in State care. That is what this whole Committee wants. That is what these young people up in the gallery want. It is their lives we are talking about, not any of ours. It is their lives we are talking about, and those of the young children to come. So let us be very clear.

Secondly, I want to talk to the previous speaker who resumed his seat, Aupito William Sio. He said: “Why didn’t this Minister get all the parties agreed?”. My question to that member is: which parties is he talking about? Actually, it is not about us in this House. It is not about politicians; it is about young people and children. That is who it is about. We have gone to extraordinary lengths to make sure that their voices have been involved in the development of this legislation, and we have legislated to make sure that their voices are involved in the development and the operation of this new ministry. We have put legislation in place to say that they are entitled to a say in what happens to them as individuals, and what happens to this organisation that is being set up to work with the most vulnerable in our communities.

Let us not be afraid to talk about the most vulnerable, because they are among us. Yes, we have over a million children. They do not all need the State in their faces. They do not all need the State looking to support them. But some of our children do need extra special support for them and their families, and we should not be embarrassed about saying that. I do not understand why we want to coat it in sugar-coating and dress it up as something else. There would be 800,000 or 900,000 children who do not need the State anywhere near them and their families, but there is a significant number that do need that extra support, and this bill is about how we provide that in order to make their lives successful and give them the opportunity.

I absolutely reject—and it is a 30-second soundbite to say that we have removed the principle of whānau first.

💬 Hon Members: You have.

It is absolutely embedded into this. It is absolutely embedded into this, the principle that I have just expounded. I have just said it.

💬 Jacinda Ardern: Which clause?

Part 1, clause 8: “primary responsibility for caring for and nurturing the well-being and development of the child … lies with their family, whānau, hapū”—

💬 Jacinda Ardern: That’s already in the legislation.

It is not. That is new. Do your homework. Do your homework. That is a core part of this piece of legislation. The core part is that when a child has to be removed from their family, first of all, you have to make sure that they are safe. If you listen to the young people, they say that the next thing they want is to be with their brothers and sisters. They want to keep their brothers and sisters alongside them. The next part they say is that they want to know who they are and where they belong. So if they are Māori, they want to know their iwi, their hapū, their marae, their whakapapa. They want to know that because it is part of who they are, and we have put that in this bill.

💬 Hon Member: Where?

Read it. Read it. It is there. And to the previous speaker, Mr Sio, I would say that it is there for the Pasifika as well. It is an essential part of what makes up the identity of young people. I say to the Opposition: get on board. We are determined that young people and their views and their interests are at the centre of everything that happens in this ministry. And you have got to put aside your adult agendas and get on board with these young people, and make sure that we support them and we give them every opportunity for a great life.

It is highly offensive when a Minister stands up in the Chamber and tries to infer that she is the only one who cares about the well-being of children. I am of no doubt that the Minister does care, but I am of no doubt that everyone in this Chamber cares about the well-being of children. We just have different ideas, actually, about how we are best going to respond to their needs.

I want to touch on the Minister Anne Tolley’s comments about children needing to be at the centre and about the well-being of children needing to be paramount. No one disagrees with that. I have a concern, though, and that concern is that the Minister thinks that that only pertains to this ministry. I am not even sure that she has got it completely right here in this legislation.

But I want to give an example, and that is that she is also in charge of the Ministry of Social Development (MSD). There are a set of principles that guide the Social Security Act. We put an amendment forward to say that we should amend those principles to include a principle that is about ensuring that every policy in the Social Security Act is about ensuring that the well-being of children is paramount. Did the Minister think that children should be at the centre of policy then? No, she did not. She thinks that that pertains only to the Vulnerable Children Act and the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill, and nowhere else. When we are talking about the well-being of children, we need to also put them at the centre of any housing policy. But does the Minister agree with that?

💬 Hon Members: No.

So how can we possibly be looking after the best interests of children when we have such a narrow view of where their best interests lie? That is the first thing that I want to point out about the flaws in what Anne Tolley is talking about.

She has talked about the fact that the legislation was not working. Well, I sat through those submissions, as did quite a number of people in the Committee today, and a lot of the submitters actually pointed out that there were good things in the original legislation. The problem is that it was never operationalised properly, for a number of reasons, as has been pointed out in the Committee through interjection, not by the Minister. The culture of the department has never been attended to or addressed. There have been issues with regard to resourcing, and if it is underfunded, how do you possibly realise all that was already in there? Because of the underfunding and the under-resourcing, you have overstretched staff. You do not have professional development offered to staff who are in very important positions and need that professional development. So there are issues with the ministry, which do not necessarily translate to the actual legislation, that that Minister still has not responded to. Yet she thinks that by tinkering with the legislation, all of those things are going to be fixed up. I do not have the confidence that that is going to be the case.

I am like every other New Zealander in that recently we heard the story about Isaiah Neil, the 8-month-old child who was left in the car while his parents and his grandmother were doing synthetic drugs. He ended up dying in that car. The really upsetting thing about that, as if that is not upsetting enough, is that the family had made eight to nine complaints to her ministry and nothing had been done. That child had been left in that dangerous situation, and the Minister is trying to say that the formation of this new ministry, and her tinkering around the edges, is going to stop that from happening. Well, we can guarantee, unfortunately, Minister—we do not want to have to say this to you, but it is not going to stop it from happening at all. And that is upsetting to all of us in the Committee, actually.

I wanted to spend most of my first 10 minutes, actually, talking about an issue I have spent the best part of 6 months talking about—I have gone a little bit off track, so I am going to have to take another call. But that issue is around data collection. I am really concerned that we are heading down the wrong track again and that the Minister, who ignored the Privacy Commissioner’s concerns on data collection through MSD with regard to the individual client-level data collection, is again ignoring the Privacy Commissioner’s advice with respect to this bill.

We should be concerned. If we put it into context in terms of what happened the first time that Minister ignored that advice, then we are all very aware, because it was very public, that what we ended up having was a system for data collection that had to be shut down and an overall Government agenda that had to be put on hold because, actually, the Minister ignored the advice of the Privacy Commissioner around the importance of making sure that that security portal for collecting, holding, and sharing information was safe. She went too fast and she ignored the advice.

It was not just the Privacy Commissioner who had warned against it at that time; it was the social services, the clients of the social services, and Opposition political parties. Then, of course, there was the breach in January, which the Minister was never informed about, then there was the Privacy Commissioner’s report, and then there had to be another breach for the Minister to finally say: “OK, stop. Hold up. Maybe the Privacy Commissioner was right. We’ve moved too quickly. This isn’t safe.” Now here we are, in the same situation again, and the Minister is ignoring the advice.

The Privacy Commissioner’s submission on this particular bill was very clear, in that he said: “the information sharing provisions contained in clause 38 have been developed without adequate consultation, are complex and fragmented, and will be harder to understand than the current legislative regime.” His view on this is that “as currently drafted the information sharing provisions in the Bill will not deliver the intent of improving information sharing, and may make things worse for some of the most vulnerable.” Is that the track that we want to go down, particularly given that the last report we got from the Privacy Commissioner to the Minister on data sharing was absolutely right? Yet here we are, ignoring his opinion in this case.

It was not just the Privacy Commissioner who raised concerns; it was also the Children’s Commissioner who raised concerns about the data-sharing provisions in this bill. In fact, the Children’s Commissioner said that “there is a significant risk that families could withdraw from government services as a result of fears about their information being shared.” That is the last thing we want to happen. We have already had a family who could make eight to nine complaints to Child, Youth and Family about a vulnerable child who was potentially in danger and who eventually ended up dying, and here we have the Children’s Commissioner telling us that families might not even come forward to share their information because of the fact that this will put them off doing that. That is similar to the concern that the Privacy Commissioner had with regard to MSD’s overall individual client-level data-sharing agenda, in that he said, and clients said, and social services said, that, actually, the risk is that people will be put off from accessing the support services that they need.

That is why I have put up an amendment about this, which tidies it up and, basically, gets rid of the fragmented, complex, and extended compulsory information-sharing that could potentially cause harm—as has already been said by the Privacy Commissioner—because we do not want to go down that track. I for one—particularly given the Privacy Commissioner’s good track record on this—want to take on his advice here, because it is too risky not to and there is too much at stake. I would like to hear from the Minister about why she thinks, in this instance, the second time this year, it is worth ignoring the Privacy Commissioner’s advice on something as important as this—children—and why she thinks that it is putting children at the centre to ignore this really valuable advice on data sharing.

I will just very quickly answer the questions. The member is a little mischievous to compare the two. One is about professionals who are concerned that a child is at risk of being harmed, sharing the information that they have about that child and their family, with the attempt by the Ministry of Social Development to collect individual client-level data.

Yes, I have had several discussions—many discussions, actually—with the Privacy Commissioner and with the Children’s Commissioner on this particular issue. In fact, we traversed this when we were setting up the Hamilton children’s team, and the Privacy Commissioner did a lot of work on our behalf, trying to develop the approved information sharing agreement (AISA), which is what he is proposing that we have in this piece of legislation. In the end, no one other than Government agencies has signed up to that AISA, even to today—2 years down the track—no NGOs. In fact, I have letters from NGOs saying that they were not prepared to sign up to that.

Now, I do not know about that member, but I have been to a number of meetings over the years following a child’s death at the hands of a family member, where, in a room with a whole lot of groups of NGOs and Government agencies, everyone sat around and worked out that they all had a different piece of the jigsaw puzzle that made up that child and that family’s life but no one had the whole picture.

So the idea of this bespoke information-sharing regime is that when a child’s life or well-being is at risk, that group of professionals is able to share that information if it is in the best interests of the child. They will be protected. The example that I give is—and we have had it before—where a child is at serious risk and the health professional sitting at the table has very pertinent information about the mental well-being of one of the family members, often the parent, and is afraid to share that information because there was an unclear gap between the Child, Youth and Family legislation and the Privacy Act.

What happened was the children were the ones that missed out because that information was not shared—an important piece of information if you want to make changes to support that child and their family. So I reject the assertions that I have run roughshod over the Privacy Commissioner’s advice. I have worked with him very closely to try to achieve something that he would be comfortable with. In the end, it did not work for the children on the ground and, again, if you have got a child-centred system, you have to go with what is in the best interests of a child.

I think I am going to take a quick call for my first call of many. I just want to highlight, firstly—there are a few genuine questions that I would like to ask the Minister for Children in my first call. I think I would like to highlight one of the major issues, first—and it has been highlighted in the first 45 minutes of this debate—and that is the absolute ambiguity in the legislation about the priority for the child. The reason why it is highlighted is because we have got the Labour Party members standing up and disagreeing with the Minister, we have got the Greens standing up and disagreeing with the Minister, and we have got the Minister standing up and yelling at the Labour Party and the Green Party about how they should read the bill.

Now, if it was so clear—if the priority was so clear—then why is there so much ambiguity and argument? One of the major issues with that is that if we are sitting in here and cannot even decide—with it in front of us—what the priority is, the clear priority, how on earth is a caseworker going to be able to do it on the ground? That is the problem with this legislation, and it is highlighted.

I think one of the other issues is that there is a mixture of the definition of the principles of the legislation and, like I said, what the priority of the legislation is or what the priority is within the legislation. There is a lot of talk about the principles and how you are supposed to approach things with the legislation. But, until it is clear and—look, there is no denying that the Labour Party, the Greens, and the Māori Party as well, and our party too, have different angles on this, and have different thought processes with which we address this issue. But all of us want it to be clear what the priority is. We might have different priorities, but we need to ensure that we know what those priorities are. It all rolls downhill. If we cannot get it right here within 45 minutes of looking at this legislation, I do not know how caseworkers on the ground will be able to do it.

I am just looking at the part the Minister talked about—I just want to highlight what I am talking about—new section 5(1)(c) set out in clause 8. I could go through that whole page. I have highlighted: “the child’s or young person’s place within their family … should be recognised, … (i) the primary responsibility for caring … lies with their family, …”. That is not clear. In (ii) “… child’s or young person’s relationship … to whakapapa should be considered: (iii) … belonging, whakapapa, … group should be respected: (iv) wherever possible, the relationship between the child or young person … should be maintained and strengthened:”. I mean, the list goes on; this is an issue. I am going to be taking different calls throughout the debate, but I think that underlying—whether we can sort that out and ensure that we have a clear priority. Even if it is something that all of the other parties disagree with, the Minister needs to be clear about what the priority is.

The second question that I want to move on to, and I have noted that in new section 5(1)(b), it talks about the United Nations Convention on the Rights of the Child (UNCROC). It says: “the well-being of a child or young person must be at the centre of decision making that affects that child or young person, and, in particular,—(i) the child’s or young person’s rights (including those rights set out in UNCROC …”. I am just wondering whether the Minister can answer whether the new legislation—with the new way that the 17-year-olds are going to be included in the youth justice system—is going to be in line with all of the principles of UNCROC, because, under UNCROC, with the youth justice system versus an adult justice system, the UN and UNCROC state that the youth justice system must be totally separate—100 percent separate from the adult justice system. That is not in line with what is written in new section 5(1)(b)(i), inserted by clause 8: “the child’s or young person’s rights (including those rights set out in UNCROC …”. Those rights are not being met. I am happy to be corrected by the Minister, if the Minister can address that.

I have got a couple more questions. In new section 276A, inserted by clause 104, which is moving into the youth justice area, it states: “(2) The District Court or the High Court must transfer the proceeding back to the Youth Court to be dealt with in that court, unless the interests of justice require the proceeding to remain, and be dealt with, in either of those courts.”

I want to ask the Minister what part justice plays in that. Why is it different? Is this saying that there are different parts that justice has in the adult court versus the Youth Court? Why is that a consideration? Why is it not a universal consideration? Why is justice not a universal consideration, whether it be in the Youth Court or in the adult court? Will this new legislation allow 17-year-olds not just to be transferred to the courts, but to be involved with the Police Alternative Action plan? I think that is unclear in here, as well—whether they are going to be dealt with just within the court and whether the Youth Court can transfer them into the Police Alternative Action programme from the police, through the family group conference plans, and how that would work, and whether that is the intent of this legislation.

I have got few questions for the Minister, but, lastly, in clause 107, which inserts new section 284(1A), it lists the considerations of the court: “whether to transfer a proceeding to another court for sentence or decision under section 283(o), in addition to the factors in subsection (1), the court must consider and give greater weight to all of the following: (a) the seriousness of the offending: (b) the criminal history of the young person: (c) the interests of the victim: (d) the risk posed by the young person to other people.”

They are quite clear. There are four of them. The question is why and how the adult court and the Youth Court provide different things for those four things. Why would they have different results for the seriousness of the offending, the criminal history of the young person, the interests of the victim, and the risk posed by the young person? Those, surely, are the four main things that both courts should be considering at the same level. I will leave my questions there, at this stage, but it would be appreciated if the Minister could answer those questions. Thank you.

I want to speak briefly in response to some of the comments that the Minister in the chair, Anne Tolley, made around changes to clause 13 and the “whānau first” principle. The member Darroch Ball is absolutely right. If we are wrong, then almost every single submitter to our Social Services Committee misunderstood the Minister’s intention with this legislation. So I want clarity on that.

Beforehand, though, I want to begin by acknowledging the incredibly important role that the Youth Advisory Group that worked alongside the Minister—the contribution it has made to this legislation. There are elements of this bill that the Labour Party wholeheartedly supports, that we wish we could vote in totality in favour of, if other elements of this bill were not letting it down. But those parts are so important—things like extending the age of care and protection, things like putting the child’s voice at the centre of decision making, and things like the establishment of VOYCE - Whakarongo Mai, which should be well supported by every member of this House. Elements of this legislation, I have to acknowledge, and we acknowledge, are a vast improvement. I would not want our opposition to other clauses to diminish that, so I want to state that and thank the group for the incredible work that they have done and will continue to do.

But we do have to have clarity on some of the really important principles that are set out in the beginning of this legislation, because they will fundamentally change the way that we work on the ground, with families in particular. The Minister claimed that the “whānau first” principle had not been removed. Why, then, in the departmental report does it acknowledge the many submissions that talked about the removal of the “whānau first” principle? It even quotes the Community Law Wellington and Hutt Valley submission, which states: “the bill removes the section 5 ‘whānau first principle’ that requires consideration to be given to how a decision will affect the stability of a child or young person’s whānau, hapū or iwi.”, and of course, indeed, the degree to which priority is placed on placement with them. There is no dispute about that being the position of many submitters in the departmental report.

The Law Society, in its submission, reading from paragraph 108, stated: “New section 13(2) removes reference to some principles from the existing legislation that are protective of Māori children. These include the principle that, provided children and young people can be kept safe from serious harm, priority should be given to family, whānau, hapū, iwi and family group as caregivers and that, only as a last resort (when children cannot be kept safe by family, whānau, whānau, hapū, iwi and family group) should other non-kin placements be considered”. The Law Society noted the removal of that principle. Was it wrong too, Minister?

The Children’s Commissioner, in his submission, at paragraph 14, stated: “There are many positive additions in the Bill that affirm the role of whānau, hapū, and iwi. For example, the new section 5(d) makes it clear that decisions about tamariki and rangatahi Māori must recognise the whakapapa and whanaungatanga responsibilities of their whānau, hapū and iwi … These new elements, while referenced at the start of section 13, do not clearly and adequately offset the removal of the priority for kinship care placements as described in the Act … In my view, the Bill as currently drafted could lead to whānau, hapū, and iwi being excluded from decisions about where to place a child who has been removed from their usual caregivers.”

The Law Society, the Children’s Commissioner, the Labour Party, the Green Party—almost every single submitter recognised the removal of the “whānau first” principle.

💬 Hon Member: And the Māori Party.

And the Māori Party—all of us. Minister, are you stating that we are all wrong? Every single one of us is apparently wrong. If we are, I would welcome that. I would welcome being wrong if we have missed something. I would welcome you standing on your feet and telling me how this bill keeps that priority. Because, Minister, what we would have liked to see is this: a simple set of principles and purposes that say the primary things we must consider, if a child has to be removed—has to be removed—and we have done everything we can to prevent that. First is their safety—their safety. Second is their rights and their views—what they want for their life, what they want for their future, and where they want to be. Third is whānau placement. If we can do it under those circumstances, it is what the young person wants, and it can be done safely—whānau placement. Why is that not set out in the legislation? Why is that not what we codified? Why was that removed?

And finally, Minister, no one in this House will disagree with the concept of loving and stable homes. But this is the law we are talking about.

I am delighted to stand and refer the member—[Interruption] No, the member is not wrong. All those submissions were made, absolutely, and I have had conversations with iwi all around the country who were concerned. I said to them that it was never the intention, and that I was sorry that the bill was not clear, and so we made changes.

So I refer the member to section 13(2), inserted by clause 13, in Part 1: “(i) if a child or young person is removed from their home, decisions about placement should—(i) be consistent with the principles set out in sections 4A(1) and 5:”—which are safety, their wishes, all those things that the member listed—“(ii) address the needs of the child or young person; and (iii) be guided by the following: (A) preference should be given to placing the child or young person with a member of the child’s or young person’s wider family, whānau, hapū, iwi, or family group who is able to meet their needs, including for a safe, stable, and loving home: (B) it is desirable for a child or young person to live with a family, or if that is not possible, in a family-like setting: (C) the importance of mana tamaiti (tamariki), whakapapa, and whanaungatanga should be recognised and promoted: (D) where practicable, a child or young person should be placed with the child’s or young person’s siblings: (E) a child or young person should be placed where the child or young person can develop a sense of belonging and attachment:”.

I have to say that those words were carefully worked through with the iwi leaders group, which is satisfied that we have represented well in the legislation that “whānau first” preference.

💬 Carmel Sepuloni: The Minister consulted after the fact.

But we have changed the legislation, which is why you have a submissions process, in order to make the changes, to make this piece of legislation work. So, on the one hand, I hear the members say “If you put it in and we’re wrong—”

The CHAIRPERSON (Hon Trevor Mallard): Order! The time has come for me to leave the Chair for the dinner break. I will resume the Chair at 7.30 p.m.

Sitting suspended from 6 p.m. to 7.30 p.m.

I thought I would just take this opportunity to answer a few questions that Jan Logie posed earlier about the Supplementary Order Papers. Regarding the changes in Supplementary Order Paper 329 to section 4, in clause 6—“the risk of suffering”—this phrase was causing a drafting challenge in terms of the provision making sense. It was felt that the phrase “… assisting families, whānau, hapū, iwi, and family groups to—(i) prevent their children and young persons from suffering harm …” sufficiently encompassed that concept of the risk of suffering. So it is no major change—just trying to put it in legalese.

Clause 21, which amends the provisions relating to subsequent provisions—there is a bit of a problem with the transitional nature of this bill, so that change is just to make sure that we can take account of any declarations made before the bill comes into effect.

Finally, the transfer of young people from the adult court to the Youth Court, talking about the interests of justice in the legislation—the provision now sets out that young people in an adult court shall be transferred to the Youth Court if their charges are reduced to Youth Court charges, unless the transfer is against the interests of justice. So it promotes, rather than diminishes, the likelihood that young people will be dealt with in the Youth Court when it is appropriate. So it is just a terminology change.

I think the last question that I had—I just cannot lay my hands on it—was there was concern that we had changed something from the select committee’s recommendation. That is not the case. Again, it is just a wording issue.

Thank you, Minister, for addressing some of the questions I had regarding this 100-page Supplementary Order Paper (SOP) 329, which arrived with us yesterday. You have not spoken on any of the rationale for the other changes that it makes. That you have at least put on record now a couple of sentences relating to three of the points is, I think, something.

There are quite a few points I want to cover in a short amount of time. I would like to ask the Minister to explain to us the change around the complaints mechanism. My understanding of the bill as it has been reported back to the House is that it would establish “a review mechanism” for that complaints system “that—”, and then it had an entire list of 10 points. That has been changed now by SOP 329. So instead of “a review mechanism that—” it has changed to a review mechanism “that is intended to be—”, and 10 points has been reduced to two points: “(A) accessible and timely: (B) have the necessary capability …”, and an explanation of that. Then, instead of the other points, which were all in one list, now we have “for which 1 or more of the following are specified:”, and then there is a list that seems to me to be quite a significant change in terms of the direction in relation to that complaints mechanism. I do hope that the Minister will take the time and give the public the courtesy of explaining the rationale for that amongst the other Supplementary Order Papers at this late stage.

I want to touch on another point that the Minister made in earlier speeches. When we said that submitters had told us clearly that there was not necessarily a need to change the legislation, that there was a need to change practice, the Minister stood up and said: “Well, actually, the safety of our children is a clear need for changing the legislation.” Well, I would like to give the Minister some of the submitters’ responses to that and see what her response might be.

We were told that the intent of the initial legislation was that it was a liberal, positive piece of legislation, but then in the 1990s, and after that, there were changes to the State Sector Act and the Public Finance Act. This is from Professor Mike O’Brien, telling us that it had undermined the role and the ability of Child, Youth and Family to be able to respond to the needs of children and their families—that the Public Finance Act and the State Sector Act changed what was the core business of child protection, which was created originally in this legislation out of huge amounts of consultation with our communities, and that, basically, it changed the concept from what was good for the family and what children needed, to how much money we can get to provide that service out of the systems.

We were told that in the 1990s a $600 limit was put on support for whānau, and that then we had all the other systemic change happening in our society around benefit levels being set below the poverty level, around limited tenure in housing, and that that has created a huge amount of instability. So what we heard was that, actually, the model of practice was really positive but there were structural limitations put on the ability of social workers to be able to support families and children, and none of those points have been addressed in this piece of legislation. So although we are hearing all this pretty talk about being able to support children and their families and make great changes, there is a real danger that nothing will change in practical terms, in terms of ensuring that those families get the support that they need.

I would like to speak a little bit about two more points. One is around youth justice, and the other is around information sharing. We have heard of the information-sharing provisions and that the Minister has been in discussion with the Privacy Commissioner about this. The insinuation was that the Privacy Commissioner was on board with this. Well, I sat—no, the Minister is shaking her head, but that is right. The Privacy Commissioner is not on board with these changes. We heard from the Privacy Commissioner, the Office of the Children’s Commissioner, the Law Society, a range of women’s refuges, and community organisations who are absolutely, without a doubt, not concerned about adult affairs but concerned about the welfare of our tamariki and children in this country. They told us that there were several problems with this information-sharing provision in the Act. It was not developed out of consultation with the people who are doing the work. Actually, those people who are doing the work know what families need and what works for them.

I was at a social services conference in Christchurch where a professor of social work was telling us that all the social work literature tells us that the one thing that makes the biggest difference in terms of helping people change their lives is relationships—it is trust. Actually, when you put in information-sharing provisions like this, which would enable the State to compel almost anyone in New Zealand to give information about a child, a young person, or their family, we risk breaching that trust at the community level. That is what this legislation does.

Section 66 of the Children, Young Persons, and Their Families Act enables social workers to be able to compel people, against their ethical guidelines. We heard clearly from the Royal Australian and New Zealand College of Psychiatrists that they were really putting a line in the sand and saying that this is dangerous. They are saying that actually you cannot trust the information, and that the general practice for people, the protection in law, to be able to change the information and check it—that is not a normal part of practice, and we risk sharing bad information. We were also warned that this legislation is putting in an information-sharing provision ahead of the development of the operating model that it is going to connect to.

So we are in real danger of there being a mismatch between those two things. We were also told that it is complex and fragmented and harder to understand than the existing law, and we were told just last week, I think it was, by the Privacy Commissioner that it is a mismatch with the family and whānau violence legislation information-sharing provisions that will in all likelihood apply to these same families and children. So we are going to be in the situation where social workers are going to have to be choosing, I think, between three different information provisions created by these pieces of legislation and decide which one is going to work and gives them the most power. How is that going to make practice good?

We have heard from the Minister that we know that there are situations where everyone has had a different piece of the puzzle and we just need to make sure everyone gets the pieces of the puzzle. Well, the problem is not necessarily the fact that there is not legislation around information sharing. Often people have shared information but nothing has happened with that information because they have not been resourced to be able to respond to that information, or they are given information and they do not know how to understand it and they do not respond to that information, or they are given information and they do not trust the people who gave it to them so they do not do anything with that information.

Nothing in this legislation will change that, and that is how this stuff works on the ground. That is what we were told continually, and we are in this piece of legislation making things worse, and that puts children’s lives at risk. When we know, particularly to address the needs of tamariki Māori, that there is institutionalised racism built into all of our systems—there is no question about that—and that we will be sharing information that is loaded with that bias, is that going to increase the change of tamariki and whānau being stigmatised? I say yes. That is the information we were giving and we should not be doing that. We should be putting our efforts into building trusting relationships in our community and properly resourcing our organisations to work alongside whānau to be able to support them in a relationship of trust, because all of the evidence tells us that is what works—that is what will protect our babies.

Tēnā koe, Mr Chair. Thank you very much for the opportunity to speak to what is an incredibly important piece of legislation: the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill. Firstly, I just want to acknowledge the Minister in the chair, Anne Tolley. I do actually think she has a genuine commitment to making the lives of our most vulnerable children better, and there are some very good things in this legislation in terms of extending the responsibility of the State, in terms of its support for some of our young people, particularly those who are in the State system up to the age of 25 years. The relevance of this piece of legislation, as highlighted in the Children’s Commissioner’s submission, is that it touches over 60,000 who every year are captured within our care and protection and youth justice system. One of the other interesting pieces of information is that 83 percent of prisoners actually have care and protection histories. So we need to get this right, and I would like to hope that this process is actually seen to be helping us get it right.

I would like to talk to my Supplementary Order Paper 333 specifically, because we genuinely want to ensure that this Committee stage debate has the potential to produce some amendments to this legislation that are going to better meet the needs, as I said before, of the 60,000 young people who are in our care and protection and youth justice system, whom this bill is incredibly relevant to. So what I would like to do, and it would be great if the Minister responded, is to amend, in clause 6, new section 4(1)(e)(i). Currently, new section 4 reads, and this is in the purposes of the Act, “(1) The purposes of this Act are to promote the well-being of children, young persons, and their families, whānau, hapū, iwi, and family groups by … (e) ensuring that, where children and young persons require care under the Act”—so this is their entry into the care and protection system—“they have—(i) a safe, stable, and loving home from the earliest opportunity;”. So what my Supplementary Order Paper wants to do is to extend that to read: “(i) a safe, stable, and loving home from the earliest opportunity, giving preference to placement with a member of the child’s or young person’s family, whānau, hapū, iwi, or family group;”.

Now, why would I want to do that? Well, actually, what I want to do is recognise that the child is not born without their attachment to who they are, actually—their identity. So they have a prior right; that word “preference” means that the whānau, hapū, iwi, or family group have a prior right to care for that child. So when that child’s parent or immediate family do not have the capacity to care for that child, we would hope that the State would have relationships wide enough to find somebody in that child’s whakapapa who could care for them.

I want to bring us back to the definition of “mana tamaiti (tamariki)”, which is in this bill, which focuses on the inherent value and inherent dignity derived from whakapapa. The other thing that I want to highlight is that contained within this bill is a commitment to ensuring that we uphold the United Nations Convention on the Rights of the Child. Article 8 of the Convention on the Rights of the Child is about the preservation of identity for that child, and it outlines the State’s responsibility in three areas: to preserve that child’s nationality, that child’s name, but also that child’s family relations, which is their whakapapa and their kinship. So I would like the support of this Committee to include that in this bill, which will actually give effect to a lot of what the Minister spoke about before the dinner break.

The other issue that I would like to highlight and have highlighted in my Supplementary Order Paper is a change to new section 5(1)(b)(iv), inserted by clause 8. When I sat in on the Social Services Committee there was a particularly robust discussion and debate about this very section. At the moment it says—and I know I am going to need another call, please, Mr Chair—that the principles to be applied in exercise of powers under this Act are “(iv) mana tamaiti (tamariki) and the child’s or young person’s well-being should be protected by”—and the word in the Act is “recognising”—“their whakapapa and the whanaungatanga responsibilities of their family, whānau, hapū, iwi, and family group:”. “Recognising” means acknowledging the existence of or the validity of their whakapapa. What identifying actually does is make sure that we establish or indicate the whakapapa of that young person.

The robust debate we had within the select committee was the difference between what “recognising” is versus actually knowing what it is. My contention was that in putting “identifying” in there would compel the department to do a cultural assessment of that child so that we actually know that child’s whakapapa, we know their hapū, we know their iwi, we know their marae, we know where they are from, and we know which family and which hapū and iwi we need to work with to provide an alternative safe, caring, loving home for that child for whom, for whatever reason, their family, their immediate family, their parents cannot provide that.

Therein lies all the other changes that I want made—the “wherever possible”s and the “where practicable”s, because “wherever” is just an emphasis on the possible, able to be done or achieved; practicable, “able to be done or put into practice”. Well, you cannot put into practice putting a child with their whānau, hapū, and iwi if you do not know it in the first place, and therein lies the issue that I have with some of the words in this bill. This is because it says a lot about saying that as an organisation Oranga Tamariki is going to ensure that it places children with their whānau, hapū, and iwi, if their family cannot look after them, but you cannot actually do it if you do not know what that is. And you do not then develop, I believe, the opportunities for partnership with hapū and iwi to take some of these tamariki, because their actual family cannot and do not have the resources to be able to care for their own.

We know what some of those issues are. We know that some of our parents have drug and alcohol issues. We know that some of our parents do not have some of the skills to be able parent the child.

💬 Hon Ruth Dyson: It is not exclusive to Māori.

It is not exclusive to Māori, absolutely not. And, actually, if you look at Māori—I was just thinking about this before I came in—we have got Treaty settlements in the morning, and all those Treaty settlements acknowledge that Māori, like in Ngāti Tamaoho’s case, are virtually landless. But what does virtually landless actually mean? It means we do not have a tūrangawaewae, we do not have a home. We do not have an ability to stand on our tūrangawaewae and from there develop that sense of identity because we have a marae. Some of our iwi do not even have marae.

And that is the point. How do we help our whānau to create homes so that they are safe and loving for our children? Well, it is not by giving our children to somebody else to bring up. It is not by not ensuring that they have access to their birthright, which is their whakapapa, which is that intimate relationship to hapū and iwi. It is not a random process. So that is why I am hoping that the Minister and her officials, if they are not going to support it, will say why they will not.

The other very important part of the Supplementary Order Paper is making sure that we keep siblings together, because, again, in that particular new section 13(2)(i)(iii)(D), inserted by clause 13(2), we have got “where practicable”. It should not be “where practicable”. It should be a bottom line that we will never separate siblings. So I am challenging the Minister to remove those particular words, “where practicable”, from this bill, because under no circumstances should children be separated. At minimum, if they are removed from their families, at least they have one another and together those children have an opportunity to develop some resilience.

💬 Carmel Sepuloni: They said that’s what they wanted.

That is right. But “where practicable”, as far as I am concerned, actually does not make sense.

I will be taking other calls, because I do have another Supplementary Order Paper. I know that there are other people in the House who are incredibly passionate about this piece of legislation. So what I am hoping, Minister, is that you are taking some of these amendments at face value. We actually do want to work with you. We want to make this legislation work. I do not want our children growing up in the care and protection system, but if we are going to have a care and protection system, let us make sure that it is one that is inherently going to ensure the identity of our tamariki.

Firstly, I just want to refer to a comment that Minister Tolley made before the dinner break about the need for this legislation because the previous legislation, in her words, is not working. I want to start my contribution by challenging that, because it is obvious to me, in my experience, that there are some amazing people who work in child protection, child support, and in the youth justice system. They are working really hard to ensure that our children are safe from harm, and when things are difficult for them they do the very best to ensure that our children are restored and placed in the best care. There are people working very hard for that.

But what I have to say is, I do not believe that the problem is so bad that we need to change the legislation. I think the real issue—and others have raised it—is around practice. I want to give you a practical example of what I mean by that. The social workers within Oranga Tamariki—what was Child, Youth and Family—work extraordinarily hard. They have huge caseloads with some very complex issues. But when we get situations where we have, within the legislation, the ability to have family group conferences—which, when they were designed, were world-leading opportunities to get key parties together to wrap around that child and put in place plans to support not only the child but the family, the parents, to actually parent that child better, and actually put in place all of those monitoring mechanisms, such as the nannies, the aunties, the people with vested interests in ensuring that child’s well-being. They were groundbreaking, the family group conferences.

The problem that we have today is that we do not resource them, that we have to wait for months for a family group conference to occur, and that when they do occur we are not getting the right people in the room because we cannot actually identify who they are. We have got social workers who are hampered in their ability to do a good job. How is that going to change with legislation?

After the death of a baby, a process was put in place called the child protection review panel, made up of members of community organisations and members of the community, which would spend some time every week reviewing those files that social workers had closed before an investigation could be completed. So at least there was a set of eyes on those children who may have gone under the radar. In terms of a notification, it may not have seemed sufficient enough to even warrant an investigation, so nobody would actually have gone out to have a look at that child. This panel was put in place because a child died because the practice was so poor. The community panel was put in place to monitor those notifications that were not investigated. The reason that was put in place was that Child, Youth, and Family could not resource that process itself, not with paid professionals, so it needed a community group to do that. So I go back to my point that before we look at changing legislation, let us look at what our current practice is or is not achieving.

Now, when we look at the changes that have been made and the proposed changes in this legislation, where are the voices of those people who are at the coalface? Where is the significant voice of not only social workers but Māori practitioners? One of the issues that has been raised in this is that of the children who come under the purview of Oranga Tamariki, 60 percent of them are Māori, so where are the Māori practitioners advising on this piece of legislation?

I want to turn to the bill itself. We have had lots of commentary about clause 4, “Purposes”, because, I think, there are some inherent flaws in there. When we look at the very first part of clause 4, “Purposes”, clause 4(1)(a), we look at the words “establishing, promoting, or co-ordinating services that—(i) are designed to affirm mana tamaiti (tamariki), are centred on children’s and young person’s rights, promote their best interests, advance their well-being, [and] address their needs,”. Why are we addressing their needs? Why are we not actually meeting their needs? Why are we not establishing what their needs are and actually meeting them? Why do we use words like “address”? Why are we saying in this clause “establishing, promoting, or co-ordinating services that are designed to”? Every single word in a piece of legislation has value. Rather than saying “co-ordinating services that are designed to affirm”, we must surely affirm. We do not need to design something to affirm; we must affirm. Why are we addressing needs? We must meet their needs.

We look further down to clause 4(1)(d), and the words are: “(including their developmental needs, and the need for a safe, stable, and loving home):”. I will address the safe, stable, loving home shortly, but “including their developmental needs”—what are the developmental needs of a child? Yes, probably a safe, stable, loving home. It would be nice if it was a warm, dry, affordable home. It would be great if the families—

💬 Carmel Sepuloni: You mean, not a car or a garage?

No, not a car or a garage. It would be great if families and beneficiaries did not have their benefits cut if they could not make an appointment, thereby cutting the potential for being able to feed their kids that week. Health needs—does that come under developmental needs? It certainly does.

Where in this legislation are the responsibilities of Oranga Tamariki to ensure that that family is supported to meet these needs, first and foremost—first and foremost? That does not appear to be in here. It is one of the big failings, not of the legislation but of the practice, that we are not wrapping services around those families, first and foremost, to address those needs. Government policy is actually leading some of these children into care, Government policy is leading some of these families into distress, so let us address that first before we start fiddling with legislation, because, let us face it, the previous legislation actually needed to be fully implemented first before we could say it had flaws in it.

I go back to my comment about family group conferences. It was groundbreaking when those were first instituted. When they are resourced properly, they work well, because what they do is they address the needs of that family to ensure that it can keep the children. They put in place all the community support that that family needs, but address it up front before it gets so bad that you must uplift that child.

The Minister’s own Chief Social Worker came all the way from Wales to work in New Zealand because of the process of having family group conferences. He said that it is such a good process, he wanted to be involved in the country that put it in place. You cannot tell me, Minister Tolley, that the legislation is flawed when your very own Chief Social Worker is saying that the processes that we have put in place, if they are implemented right, are actually going to do the job.

First and foremost, we need to look at ensuring that the family is supported to care for the child, that the parents are supported to care for the child, that the mother is supported, and that Government policy does not get in the way of that. That is our first priority. So when we are talking about the need for a safe, stable, and loving home, where is the Government responsibility to ensure that that happens? Let us face it, many of our homes are not stable—they are pretty chaotic a lot of the time, are they not—so what is the requirement? Why have we got this in there—“a safe, stable, and loving home”? Is the Minister implying that our families do not have loving homes? Is the Minister implying that we do not love our children because sometimes chaos gets in the way? I actually find that hugely patronising, and it goes straight to the heart of why we have to get away from legislation that carves us off in terms of our race, Minister. I am going to take further calls, but—

I have put up a number of Supplementary Order Papers this evening in response to the legislation. Minister Tolley well knows that the Māori Party wants to be supportive, wants to work with the Minister, and wants to work with her officials to ensure that the new bill for Oranga Tamariki is purpose fit for our tamariki.

The Oranga Tamariki reminds us that health is not merely the absence of disease, but that oranga is the presence of all those elements that keep us well: spiritually, physically, emotionally, and culturally. Oranga Tamariki conveys the ultimate place-based solution. Home is not only where the heart is; home is about showing us that the most enduring changes occur when they are locally owned. I recognise Louisa Wall’s contribution, which talked about the marae—a place to stand. The Treaty bills that are coming tomorrow to this House—when your identity and your culture are ripped away from you, you flounder and are lost. That is what we have today in this country as a result of that happening, and now we have it as a result of it happening with our children.

We have built a new ministry called Oranga Tamariki, which is supposed to remind us that the social investment is best realised by taking an intergenerational approach—when it is passed down. Unfortunately, unwell things are being passed down in some instances, and families need support. But taking children from their families and placing them at greater harm has not helped them, and it has not helped their families. Yes, I understand why we are changing this legislation. We need legislation that is going to improve strengthening families, because when the child is in the heart of a safe, strong, strengthened family, they are at their best. That is where they thrive.

Just this week, we heard from a family whose children had been uplifted because the mother had been in a domestic violence relationship and the father was coming out of jail soon. She had not done anything wrong. The children were uplifted and placed with the other child of the family, who had been in whāngai care with another woman, because that child had formed a bond with her whāngai parent.

Well, we will take the two children off this mother, who obviously has no bond, and give them to this person, who has no whakapapa relationship whatsoever, and leave them there because they had formed a bond with this other child? It is ridiculous. And they will now be there permanently—for ever—and will never come home, despite the fact that this young woman has now had counselling and treatment. She has now undergone all of those things, and she has set herself up in a stable environment to try to be a better mother because she has bonded with her own children—funny that. And yet we still continue to take them, and now we take them from the birthing table. It is like you are for ever tarnished with your crime, and your crime might simply be that you did not have the capacity and the support needed when it was needed.

So we cannot support this bill. We have got a number of changes in these Supplementary Order Papers—and many of them have been articulated tonight—around the wording. The words “wherever practicable” or “should” should be “must”—we must go back to the family and support those children and put them back there. There are untold stories of children continuing to be sexually abused in the care of their foster parents while there were grandparents begging, begging, begging—

💬 Ria Bond: And within their whānau.

And within their whānau, yes. But they had parents and grandparents begging the State to “Please give them to us.” where they were safe. They were safe there.

💬 Ria Bond: Not all children.

They were. The children were safe, and they went off into foster care for 2 years, and an 8-year-old child was put into the Wiri boys’ home.

💬 Ron Mark: Try 13 years, try 14 years.

Well, I get it. I get it. I get it.

💬 Ron Mark: Where was the whānau for me? Where were they? They turned their back.

They did not turn their back. Our families who have the capacity and who love their children should be given their children. They are their children. A loving and safe environment and Māori families are not mutually exclusive—they are not. They are not.

So, yes, when you have exhausted all options, obviously that makes sense, but you have to be able to exhaust all options first, and if you have qualifiers that say “wherever practicable”—

💬 Ron Mark: Then how can it be a “must”, Marama?

No, I am saying “wherever practicable”—read the Supplementary Order Paper. Read the Supplementary Order Paper. We do not say “must” for everything. We have highlighted the places where we must consult and we must take into account. That is what we are saying. Just take into account—you do not even have to take it into account. “Wherever practicable” says that you do not have to bother if you do not think it is practical to do so. That is what it means. You put qualifiers around it. We are not saying: “You must always put them back here, in an abusive home.” You must seek out and attempt to find a safe and loving environment where they have a familial connection.

Those two babies who were taken from their mother—one of them had their first birthday; there was no contact, no phone call. She did not even know where they were. How is that continuing to keep identity and culture and familial relationships alive? It is not.

The people who put this into action—they are the issue. It was not the law. It was what goes on and puts it into action. There is no way we would want to see children continue to be abused, and to suggest that we would want that to happen is absolutely appalling—absolutely appalling. So qualifiers need to go. Qualifiers need to go, and not everywhere “must” you do things, but you “must” consult, you “must” look, and you “must” try to put children with whānau where they are safe.

Look, the Minister for Social Development genuinely, I believe, wants to do a good job with this. I recognise that in her when she speaks. And I do not want to be just arbitrarily opposing everything, because we actually need this to work—those are our children. All of us, all of them—Māori, Pasifika, and non-Māori; they are all our children, and they all deserve the best. If this legislation cannot provide them with the best outcome and the best pathway, then we cannot support it, because we have put face paint on a building and the same culture exists—take the kids, take the kids. Then we cannot go and complain about it because they are before the Family Court—well, they are always before the Family Court; they always are.

Then strategic partnerships, where it says “The chief executive must ensure that—(c) the department must develop”—rather than “seek to develop”—“strategic partnerships with iwi and Māori organisations” to “better reflect a practical commitment to the principles of the Treaty of Waitangi.” If you leave it as “seek to develop”, she may or she may not seek to do it. It will be up to the discretion of the chief executive, and we think that is far too much discretion. If you say the strongest possible wording, “must develop”, then it happens.

There are too many outs in this bill. There are too many provisos in this bill. There are too many qualifiers in this bill, and it detracts from the importance of the work. Our tamariki are the most important things in our lives, but without their whānau or a loving family around them, they do not thrive—they do not. We believe that they need to be strengthened. If you take those children off a terrible family and do nothing with this family, well, that has not fixed anything. It has not fixed the problem. It has kept the child safe—yes, it has—but those parents, or those young people, or those old people, may go on to continue to abuse or to continue to have other children in a family that they have not improved. Where do we provide the support? I hear the Minister talk about supporting families—there is nothing in this bill that talks about that. How do we provide for them?

The information sharing I will talk to, as well. The information sharing—the ministry officials themselves have said there is no mechanism to check the veracity of the information that is being shared. We are just going to trust that they are professionals and that they have got it right. Well, I am sorry, but how has that gone for us? How has that worked so far? It has not. We cannot trust the information when the system is inherently racist.

I have been sitting here listening to the discussion that has been happening in this Committee, and I can tell you that not all children are safe returning to their whānau. Not all children are safe. Not all children are safe from being sexually abused again if they are returned to the very family that did it to them in the first place. To look at that particular issue—that all whānau are safe, and all and all and all—which was brought up just before, is looking through rose-tinted glasses. Well, they are not. Not all whānau are safe.

Let us look at this bill. We have gone all over the place. We have drawn a long bow in the discussions that have happened in this Chamber today to do with this bill, and it is very clear—the Minister for Social Development is very, very clear—that this bill is child-centred. It is about making sure that young people who end up coming into the system are protected and that they actually have a say in the decisions about their future. If they do not want to return to their family, then who are we to say: “You will go back to your whānau because we think it’s the right thing to do.” Well, I am sorry, that is not what this bill is about. This bill is about respecting young people and their choice. That is what this bill is all about.

Talking about how social workers must know where to place young people when they come—with the whānau, the hapū, the iwi—well, hey, sometimes young people may not wish to even know that. We are sitting in this room, we are making judgments on behalf those young people, and this is not what this bill is about. We had four young people up in the gallery before we rose for dinner. They were the advisers to the Minister. Every time the Minister spoke, I looked at their faces, and I looked at their faces when other members stood up to speak about them, about doing things for them. This was their decision. They have been part and parcel of this bill from whoa to go, so who are we to get in and say: “Oh no, we think it should be this. We think it should be that.” “Where practicable”, “where possible”, “should”—yes, those are words that we need to have in this bill. “Where practicable”—we have to have those in the bill because it gives options. It gives an option.

I stand here and I listen to all the kōrero that is going on about how, yes, we want young people, young children, to go to safe and warm, secure homes. But then we start bringing in all the housing issues. This is about young people and what they want, their decisions—to make sure their voices are heard—and we keep forgetting about that. I sit and I am listening, and we keep forgetting about it. We keep saying: “Well, actually, this is what is good for you. This is what is good for you, because we reckon it should be.” Well, no, you are very, very wrong there—you are very wrong. We should respect—respect—the decisions of these young people. They helped to get this bill here. They were integral in actually appointing the CEO of the Ministry for Vulnerable Children, Oranga Tamariki. They have had a lot of say in this, and we must respect that. That is what this bill is all about. I do not want to sit and listen to any more of that rubbish when it comes out.

I know. I have a family member who had her two children taken off her because she would not listen to us—her family—or to the police who said: “Be careful about that partner that you choose who has just got out of jail.” He has been in jail because he has had violent tendencies, he has been arrested for a number of violent actions towards children and towards women—and what did she do? She gave her children up for him. How fair is that on those two little girls? So when I see this—those little girls needed protection, and we looked after those little girls. We looked after them, but, in saying that, we were not the only ones. We were not the only ones whom these young girls could have gone to. There were so many other girls. These girls were not Māori—they were not Māori. When this happened the family set up and said: “We would like to have the children, if it suits—if it works out.” In this bill—it actually has it in the bill. If you read in the bill, in clause 13(2)(i), that is where it is. So there is the choice. Thank you.

In some ways, I almost walked out of here a few minutes ago. It is really interesting hearing a lot of people who have got a lot to say and are very passionate about what they think about how children in care should be looked after, and it is very interesting to hear even the Minister say that they paid a lot of attention to the youth group that was there as an advisory group. Well, surprise: I am a foster child. I still call myself a foster child. I work with fostering kids and have done for years, trying, in some way, to put back some of the things that I was privileged to gain from caring, loving New Zealand parents who took me into their home because my family would not, did not, could not—should have, listening to all the rhetoric I hear around here about the importance of whakapapa—

💬 Marama Davidson: No, that’s not what we’re saying, Ron.

No, no, you had your say—take your call. Take your call when it is your time. Maybe try listening to someone who is a foster kid, who has gone through that, and who understands the dislocation—

💬 Marama Davidson: That’s not what we’re saying.

Oh, I hear exactly what you are saying, in your politically correct, patronising overtones. So get this: it does not matter what we all think about the parents’ rights, the extended whānau’s rights, the extended, extended whanaungatanga that might be preached at us loud and clear. It actually only matters what is right for the child. That might well cut right across some adult feelings and hurt them, but that is tough—tough—because the only thing that matters is what is right for the child.

I was fortunate, unfortunate, depending on which month, which year, of my foster care I want to look at—and understand this: my last set of foster parents was unofficial; they just took me in. They were Pākehā—Audrey and Alex Horn. They took me in because I had nowhere to live. Yes, I had barracks in the army, but where did I go when I went home? My foster parents had packed up and moved out. I had been discharged from care at the age of 17, apparently an adult, capable of living on my own. Well, now you guys are saying we should raise the age of criminal responsibility because I should not have been living on my own, I should have been in care. Well, hell, I did, like tens of thousands of other foster kids like me.

They took me in, unofficially, and gave me a home. Why? Because they cared about me. They loved me. They were not Māori. They could not talk to me about whakapapa. They could not teach me Te Reo. The only thing they could give me was love—that was it. It is interesting, because when I joined the Labour Party, one of the people whom I admired was a chap by the name of Norm Kirk. Norm had only one thing to say: “People don’t want for much, they only want somewhere to live, someone to love, and somewhere to work.” That is the nub of this.

Care of the child is paramount, and I do not actually give a stuff about the bleatings and the whinings of some extended whanaunga who may or may not visit them once in a lifetime. Let me assure you, many of my extended whanaunga whom I live among now never visited me once—not once. Not once did they make an attempt to find out where I was, or my brothers and sisters. Not once did they come looking for me. The only thing they have got to criticise me for today is that I do not speak Te Reo. The only thing they have got to criticise me for is that I dare to argue back at them with a different view. Well, my view is built on life experience, and they gave it to me. They gave it to me.

What do I look on that is positive? I look on five sets of foster parents whom the State selected and who took me into their homes: the Duncans, the Seymours, the Wylies, the Fields, and the Thorburns—every one of them Pākehā. I could have been placed with a Māori family at the drop of a hat if someone had stepped forward. It did not happen. I know from the connections I have managed to attain since I came to Parliament that I have got family who love me dearly and who have taken me back into Papawai, taken me back into Hurunui o Rangi, and taken me back into Te Ore Ore. Now I know about my connections with Tūwharetoa, Ngāti Raukawa, Te Arawa, and Whakatōhea, and I am very, very, very proud of all of them, and particularly of my uncle Api Mahuika and my Ngati Porou family.

I have been able to learn that and pick it up, and feel the love and the generosity post my care in a way that I will for ever be grateful for. I will always cherish it and I will be proud of it. But in those days, from 3 years to 17, the only thing that really, really, really mattered was that someone would take me in to their home, give me a bed to sleep on, a roof over my head, three square—well, some of it was not always three square meals a day, but good meals, regular meals. Even if I had to go to school barefoot—which I did, at Pahīatua primary and at Hillcrest—it did not matter; I had Weet-Bix in the morning, milk on that, I had a cut lunch in my bag, and when I got home someone took an interest in my homework.

I will for ever be grateful. Why do I give support to these foster families, regardless of their race, ethnicity, the language they speak—Muslim, Jewish, Christian, Māori, Pākehā—the whole lot? Why? Because they care, and I will be damned if I will sit in this Committee and have every foster parent slammed and banged. [Interruption] Stop it there. The innuendo that comes out is “Oh, they all get abused.”—they all get abused. Well, hell, I got some hidings—yes, I did. But overall, when I finally got what I wished for—that one visit back home—and I ended up as a 15-year-old in Cannons Creek pub in Porirua, at 35 Driver Crescent, and I saw firsthand what my life could have been, I thanked God for the Department of Social Welfare, I thanked God for the system we had, I thanked God for those foster parents who took me in, cared for me, and gave me a chance. I also thanked God that people like Rex Hēmi, like Auntie Lu, Auntie Mihi, Auntie Mary, and even the guy that I battled a lot with—oh, shocking; God forgive me, his name has just gone straight out of my head.

💬 Marama Davidson: Uncle?

No, Workman—Kim Workman. Kim Workman, despite our different political views on the justice system and other things, was the man who connected me back to Papawai, aided and assisted by Rāna Waitai, and I thank God for them.

But let us not lose sight of what is important here. We would have ended up supporting this bill, Minister Tolley, but for that little issue that we disagree on around the youth justice system, and a couple of other tweaks that are inappropriately focused, in our view, on iwi/whanaunga first. Sorry—it is about the child first.

Having heard that speech, I do remember the honourable member Ron Mark, when he first came into Parliament, reconnecting with his whānau. What a significant time and turning point it was, to reflect on the past that you have spoken to in the Committee, but also strengthening the future opportunities. But if this bill was right—right in a way that it provided the conditions where children at a younger age could reconnect—then what might that prospect afford? I have gone to a lot of youth justice facilities, I have helped a lot of children in care, and I too believe that “children first” matters, but the context matters as well. If this bill was right, surely there would be supports around the environment to ensure that those children who are identified as vulnerable can be provided for so that there is not mass fallout.

I do not know about any other member of the House, but I am but one of this House who has been contacted by many grandparents who, for whatever reason, have had to take on board—not had to, but actually felt a deep responsibility that they must take on board—their grandchildren or their mokopuna from the extended whānau who have fallen through the system, likely to be picked up by Child, Youth and Family (CYF), and they do not want them to get lost. We have had numerous debates in the House, Minister Tolley, about the lack of support for grandparents who are in this exact situation. If this bill was right, we would be recognising that in order to put children first, the context and the environment of their family and their whānau relationships would have to be supported, and it is not evident in the bill.

I have sat very quietly to listen to some very impassioned speeches. In particular, I want to speak to clause 12 and the duties delegated to the chief executive in relation to the Treaty of Waitangi, and I just ask the Minister, if she takes a call, to give an explanation. I see in the new “Purposes” section, inserted by clause 6, that there is reference to the bill needing to provide “a practical commitment to the principles of the Treaty of Waitangi … in the way that is described in this Act:”. What are those principles, as it relates to the bill? In terms of the delegation of those principles to the chief executive, are there sufficient checks and balances to ensure, at a high level and at a practical level, that those obligations are going to be upheld?

Let me explain. I listened to the member for the Māori Party, Marama Fox—I almost thought that that member was not sitting around the Government table by the way she spoke, but let me say this: but for the fact that the iwi leaders have been arguing for concessions in this bill, many of them on the back of a number of initiatives that they have taken off their own bat to enter into this space because they know it matters. It is about early intervention, making a long-term impact in this space. In terms of the Treaty obligations and those strategic partnerships, it is not a two-way approach. That is why I do support Supplementary Order Paper (SOP) No 332, which was tabled by my colleague Louisa Wall. What it will enable is that as iwi innovate in the space of providing services to support whānau and vulnerable children, and whānau in particular, they are able to innovate and then transfer some of those learnings into improving practices and relationships with the department.

From my reading of Louisa Wall’s SOP to clause 12, new section 7AA(2)(c), before subparagraph (i), inserting that new subparagraph (ia)—that is a really useful inclusion to the bill. What it will do is ensure that where innovation exists—and, let us face it, often innovation exists mostly outside of a Government department—in strategic partnerships where iwi are investing into this particular space, they are able to then put enough information, evidence, and learnings into the way that practices can be improved.

So I think that is what the intention of this clause is supposed to do. I am concerned and I remained to be convinced, Minister, that by delegating Treaty of Waitangi obligations to the chief executive there are not sufficient checks and balances, especially in so far as policies are determined, because, ultimately, this is where some of the rub is. If there is a fundamental challenge to Government policy in relation to the Treaty of Waitangi, the only avenue that Māori have, often, to challenge this is to go to the Waitangi Tribunal. Minister, I know that that is not, certainly, the intent of many bits of legislation that come through the House, but this is where the difficulty is. It is incoherent, in my view, in terms of those delegated responsibilities. When policies may be challenged by iwi because they are not upholding the principles of the Treaty of Waitangi there is no real remedy for iwi to challenge that, and it is almost taking the ministerial role right out of the picture altogether. I am really concerned, and, as I say, I remain to be convinced about this particular delegation.

The other thing is that it is unclear is, if iwi or Māori organisations are inviting the chief executive to enter into strategic partnerships, what is envisaged here. Take, for example, the fact that much of the funding coming out of the Ministry of Social Development (MSD) has now gone to Whānau Ora commissioning agencies. They are now superseding the space where once MSD was funding at a community level organisations that were supposed to support whānau and fill in gaps where there were vulnerabilities. If this particular clause is intended to create new strategic partnerships between, for example, a Whānau Ora commissioning agency and the chief executive, what does that mean in small communities that do not have the range of services there that can support vulnerable families? I am talking mainly about small communities—communities that have distances to travel to be able to provide the types of support. If we take one service, Family Start, and if we take how that then rolls out away from a main city centre into a more, sort of, semi-rural town or smaller communities, you can see some of the difficulties that will emerge. The strategic partnership with iwi will still leave significant gaps in the rest of the community.

I am here to say that while predominantly many of the children we are speaking about are Māori, there are some who are not as well. So what about the 40 percent who will not be captured by a Whānau Ora commissioning agency and may be in a small and remote community where the community-based essential services that are there to support them are not able to be provided, because MSD has transferred all that responsibility to iwi? I think that is, again, another challenge there.

I am concerned in terms of the delegations to the chief executive. It is unclear what the level of accountability of the Minister is, in terms of maintaining a higher Treaty obligation. I would really like the Minister to take a call on this and to explain it, because it has not been something that we have discussed in the House and it is something where, certainly, if there remain residual concerns of the iwi leaders that the Māori Party were not able to get across the line, this is an area where it would benefit the debate and the Committee, and the clarity of the intention of these delegations, for the Minister to take a call.

Finally, I want to come back to many a point that was raised. I never heard people attacking foster whānau. In fact, we need to commend those courageous whānau who are putting themselves out there and willing to take children who, for whatever reason, have nowhere else to go. I have not heard members in this Committee criticise foster whānau. What I have heard is that the lack of support given to foster whānau, and also the investment given to increase the number of foster whānau so that we can ensure that children are placed safely.

The other thing that I have heard, certainly in terms of where iwi are participating in this space, is that this is the area where there has been the most intensive investment to increase the number of whānau where whānau-based placements can occur. It is not lip service; it is a real thing, but you have to invest in it. You have to walk whānau through the process—what there is to support them and who the networks are within their community. One such initiative happens to be within our iwi.

Again, I will come back to my last comment to the Māori Party. It is unfortunate that in sitting around the Cabinet table you have not managed to achieve all the gains that were necessary—

It is an honour to take a call on this legislation, the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill—my first call. I want to pick up both my colleagues Ron Mark and Nanaia Mahuta comments and make it very, very clear—and I take the point if we have not. So I will make it very, very clear: a big mihi—an ongoing, profound, and longstanding mihi—to all of the foster parents of the world who have stepped up to take in and care for children who were not born of them. It is one thing to be a parent; it is whole other thing to be a family to children who were not born of you, and that is happening to this day. It is not just happening through the Child, Youth and Family system. It continues to happen because it is an age-old strategic tool that humans have used since for ever, including Māori.

Whāngai, and the practice of it, has been with us as a deliberate, purposeful tool for ever. Whāngai has been a customary way of recognising our connection and our whakapapa when, perhaps, those birthing parents, for whatever reason, were not able to fully care for that tamariki. Whāngai is a centre point of how we have always operated and continue to, to this day. I think any one of us—not just Māori, but particularly our Māori—could probably put our hands up when we think about either who else we have had to welcome into our whare who was not particularly of our birthing process, or who we have had to ship out from our whare when we have birthed them. We all have this experience. It is a valuable one. We need to support that to happen more. That is what we are saying with this legislation.

We need to do everything and put all our effort into doing everything we can to make sure we can access safe whānau Māori, which is most of us. Safe whānau Māori is most of us. The narrative, and the implications that are ruinous through this legislation, is the narrative that implies that putting the interests and well-being of children first is separate from connecting them to their whakapapa Māori. That, actually, is the narrative, which is ruinous to all of Aotearoa and has been implied from the very introduction of this bill. So I will continue to make it clear: all foster parents—all loving, safe foster parents—are the heroes of the world, and we have Māori whāngai opportunities that we need to be supporting better.

That is why the Greens, too, disagree with the watering down of the “whānau first” principle. It implies that connecting and making sure that we exhaust all whānau opportunities is at odds with the well-being of tamariki Māori. As a House of Representatives, with the leadership and the power and the resources that we have here in this House, we must not be putting up ruinous implications that imply that whānau Māori do not love our tamariki as much as others do.

That is what this legislation has done. That is clearly what we have heard in the submissions. We also heard in the submissions—and I talk about one of the comments from one of our rangatira, Moana Jackson, who said: “Do you mean to tell me that we cannot find one whānau Māori possible for our tamariki Māori?”. Now, the problem is, perhaps, as my colleague Nanaia Mahuta has implied, that we have not created the pool. We have not created the support. We have not ensured that our system upholds the principle of exhausting everything we possibly can to keep our tamariki connected to their whakapapa Māori.

That narrative, that implication of whakapapa Māori being at odds with tamariki ora is ruinous. When we speak of the importance of whakapapa, we are making an explicit statement about the well-being of tamariki. That is what we are implying. He taonga te mokopuna!

[The grandchild is a treasured being!]

Mokopuna are the reflection of us. That has been the way we have functioned since for ever. Please, in this Committee, can we not imply that whakapapa is separate to our tamariki Māori well-being? It has been the way we have operated. A whole lot of processes came in and interrupted that—processes that we now have a job to try to help fix, but he taonga te mokopuna [the grandchild is a treasured being] has been core. That is why the language in the bill, such as “should”, “desirable”, and “where practicable”, is not strong enough. It does not imply that we must exhaust all possibilities. Absolutely, we want safe whānau Māori, and that is most of us.

With the remainder of this call, I wanted to focus on clause 93, amending section 238(1) and clause 94, inserting new section 239(2)(2A), which are around youth justice. Of course, we welcome extending the youth justice jurisdiction to include 17-year-olds. That should have been a long time coming. The Greens welcome that. But in this big overhaul of the legislation, the Minister could not prioritise the best interests of young people who we know we endanger when we put them in prison with adults on remand. So this legislation had the opportunity to ensure that young people on remand could also be prioritised into youth prisons. But in this legislation there is the possibility for young people to still be sent to an adult prison on remand. It is apparently a resource issue. What the heck? We can fix that. [Interruption] Well, that is what the excuse apparently is—that it is a resource issue.

We know of the harm of young people being on remand, but here is another thing: how come the time counted for young people on remand is not taken off their final sentence, like it is with adult imprisonment sentences? I would really welcome the Minister’s explanation on that. What it is—17-year-olds being held on remand in youth units do not get the time counted off their sentences. So we have the Minister standing up to say that this is completely about prioritising the well-being of young people, but those outs in the clauses do not prioritise the well-being of young people.

I will end my contribution in this round by reminding us, again, that it should be incumbent on us to ensure that the practices and applications of the current legislation are working. We heard from submitters that that is more the problem than a legislative overview. The practice and application needs to be fixed and could be done so on the current legislation. Tamariki Māori can and deserve to be with safe whānau Māori, and that is the same as prioritising the well-being of tamariki Māori. Thank you.

I thought I would just take a call and answer a few of the issues that have been raised. Can I first address this issue that has been talked about by a couple of speakers now, that the current legislation is OK—that it just has not been resourced properly. While I have some sympathy for the resourcing issue and have attempted, while I have been Minister, to make up for some of that lack of resourcing and penny-pinching, the reality is that if you talk to the young people for whom the system is working, it is not working. The current legislation does not work for them.

Even something like our internationally renowned family group conferences are known all over the world. Many other countries copy that. The young people say: “Actually, the adults sit around the table and talk about us. Nobody talks to us about how we feel, what’s happening to us, and whether we think what’s being proposed is going to work. And, actually, we know all the people that are sitting round the table saying they’re going to do stuff for us, and we know when that’s true and when that’s not.” So even something as integral to our system as the family group conferences, the young people themselves are saying they are not effective for them.

I have never ever blamed the staff for that system not working. We had in Child, Youth and Family and now in the Ministry for Vulnerable Children, Oranga Tamariki some passionate, great, professional staff who have done their very best. The system has become, over the years, so risk-averse that we know that those staff were spending less than 15 percent of their time with young people and their families and the foster families, and more than 50 percent of their time on administration. Now, that system cannot be right. It cannot be right. What is more, the expert panel said it is dealing with the crisis in a child’s life.

The cathartic moment for me was when I looked at that coroner’s report on those four young women who died, who had committed suicide, in Flaxmere. The coroner did an amazing job, bringing in child psychologists, going right back through the lives of those four young girls who were tragically lost. We looked at all the opportunities when a crisis happened in their lives and various agencies went in and out, but there was no one single point of accountability. There was no continuity for those young girls and their families. There was no prevention put in place.

Whenever a crisis happened and work was done to support the family and those girls, there was no ongoing support. What the expert panel said was if you can get in and work with these families the first time they come to the agencies’ attention, you have got a much better chance of preventing that family from falling apart and those young people needing to come into care.

We have to change the legislation in order to do that. We have to change the legislation in order to lift the age and to help and support those young people to transition into adulthood. It is silly to stand in the Chamber and say the legislation is fine, just put more money into it, because the legislation is not sufficient to support families early on, and support young people as they transition out. So that is the first thing.

The second thing I want to address is Nanaia Mahuta’s very good questions about the Treaty obligations and the requirements put on the chief executive. So in no way does anything in this piece of legislation remove the obligation of the Crown as a Treaty partner. But what it does do, and this is quite unusual—we have put the responsibilities for the chief executive into legislation, which would normally be in the conditions of employment. No other chief executive of a State agency has the robust requirements that we have put into the legislation. So we are very fortunate that we have an extremely able person who has taken up that role quite willingly.

We have also reflected that she is accountable for implementing those principles of the Treaty, and she has to report regularly on how she is putting them into effect. That means that we need to have some oversight of that, and we are working with the iwi leaders as to how that might be achieved. She also has to report annually and publicly on the targets that have been set for the changes that are made for tamariki Māori. The targets have to have been set and then she has to report against that, and she has to report how she has given effect to the Treaty of Waitangi.

These are quite onerous responsibilities that are put on the chief executive, because 60 percent of the children in care are Māori. That has not changed much in 20 years, and we are absolutely determined, unashamedly, and have high aspirations to reduce the number of tamariki Māori who need to come into care and whose families need that ongoing support. I think that probably answers all the questions.

I am kind of glad that I have had some time since my colleague Ron Mark got up and spoke, because it has given me a chance to dial down my heart, and also dial down my anger at what I have heard in some comments and feedback when members have taken their calls on this side of the Chamber. I think that as a former foster child, I can legitimately get up here and stand and talk about aspects of this bill that, yes, still remain ambiguous. The words “should”, “could”, and “would” are not, in my eyes, actually sustainable in the sense of our having a clear idea of exactly how the children who need this care are going to be looked after. So I support my fellow colleague Darroch Ball, who earlier, in his first call, identified and outlined to Minister Tolley that there are areas in this bill that are definitely ambiguous.

Probably what I want to talk about—and what dialled my heart up, actually—is putting children first, and having the iwi, the whānau, and the hapū being the first choice of preference that those children go back to. In the time since this bill was first read in the House, I was lucky enough to go along to the Māori women’s council and actually talk about this very concept. With the short time that I got to speak to it, I explained about the fact that, yes, I am a former child who lived in State care. From the age of 3, I was put into foster homes. The reason why I was put into foster homes is that the level of violence in my family was shocking. It was shocking. I do not think any member in this House would know what it is like to hide in your mother’s closet while you hear her being punched like a punching bag—

💬 Marama Davidson: Oh, that’s a rough assumption, actually.

—and to get up in the morning and find her teeth. It is not an assumption—it happened. So what I am saying is that it is all very well to get out there and give your opinion, but you do not actually know what happens to these children, and yet you try to push and say that they belong with their iwi and their whānau. If they have been the abusers, that child does not deserve to be revictimised and put back within the iwi, the hapū, and the whānau. I know of many children from my generation who are Māori and who actually have not had a chance to speak to this bill, where their voices have been lost. They would be speaking in contrast to what other members in the Green Party and the Māori Party have actually said within this debate.

Children want the time to get past the abuse. They do not want to be thrust back into their family. They do not want to see the very behaviour that can in some cases—not all cases—be seen as acceptable as part of the lifestyle and part of growing up. Māori children who have been abused by their family members, by their extended family, and by their community around them do not want to go back into those very homes and whānau that have abused them in the first place, and that is something that has to be respected. It is something that I do not think many people can actually get up and talk to.

💬 Marama Davidson: That’s an assumption, Ria.

This bill says—it is not an assumption. Everything that you have tried to pull comes back to the fact that if they do not go back to iwi, then this bill is racist. Well, that is rubbish. That is absolute rubbish. [Interruption] They are your words—they are your words, which you were reading in the House. They are your words.

What I am saying is this: it is all very well for some members in the House to criticise and say that children should not go to non-iwi families, but I actually beg to differ. Children need the right to be heard. They need the right to make sure that they can decide and work with adults and that they have the choice to go to a safe home.

I have had non-Māori foster care parents and I really enjoyed the upbringing that they gave me for the very short time that I had that. I valued that and I treasured it. It is just a shame that I cannot find them today to thank them for taking care of me when my family, my immediate hapū, and my uncles and my aunties did not have the skills to look after me. I was not ready to go back into the punching ring and see what was going on. Yes, I am a third-generation child of the system that still sees that happen today. That is what is wrong. That is what is wrong.

When the Children, Young Persons, and Their Families Act came into place in 1989—I remember it vividly. I remember it because it was pioneered as being the very Act that was going to help children like me, just when I was coming out of that foster care system. I did not rely on my family—I could not. They were not able to do anything that I needed in order to reconnect back with my tikanga.

I am in my—I think, actually, I will not say my age. Six years ago I went back to my marae. That is when I was ready, not when it was dictated to me by adults and by people who did not understand the victimisation of what I went through as a young Māori child, when my culture, actually, was the very culture that I did not want to belong to. That was my choice, made from what I saw. I think it is really important that it is established that just because you are Māori, it does not mean that you have to be placed back within your iwi, because that is not right. Minister Tolley, it is not right.

Tēnā koe e Te Heamana o Te Komiti o Te Whare nei. I have heard in this House a number of times in the last 3 years this saying:

Hūtia te rito o te harakeke, kei whea te kōmako e kō?

Kī mai ki ahau he aha te mea nui o te ao?

Māku e kī atu, he tangata, he tangata, he tangata.

[Pull out the centre shoot of the flax, where will the bellbird sing?

Tell me, what is the most important thing in the world?

I will say, it is mankind, it is mankind, it is mankind.]

What we hear mostly is the last bit, not the first bit. So if you take the central root of the flax plant out of the flax, where will the bellbird call? Where will it land? So it is a metaphor for—in this instance, if you take part of the whānau out of the whānau, then it affects the whole whānau. That is the issue that I want to talk about in respect of everything that is in this bill and in respect of everything that we have heard so far, because here is the thing: we are coping today with the legacy of legislation from the past.

My big concern with this piece of legislation is that we are actually creating a new legacy for the future, and it is the wrong one—because it does not deal with some fundamental issues like historical and intergenerational trauma. So let us talk about that a bit, because, as my colleague Marama Davidson pointed out, when our Māori world view and our Māori world is interrupted, we get to cope with those traumatic experiences and then they get passed from generation to generation and we have heard it from members in this House tonight.

Now, that is created by coping with the legislation that we had at that time and right up until now. So it would be a mistake for this House to think that we could take the experiences of the past legacy and apply them to the future, because we will just be applying the flaws of those past experiences, and thinking that will solve the future. If we do not change now, nothing changes, and that is my biggest point on here.

I want to acknowledge, in particular, my colleague Louisa Wall, for her Supplementary Order Paper 333, because in addressing that issue of historical and intergenerational trauma, we have to make absolute decisions about how we are going to cope with what is happening with our families. Unless we deal with the real issues—because I do not subscribe to the notion that the whole whānau or one part of the whānau can develop in isolation to the rest of it. I will never accept that argument. So I feel for those who have had bad experiences in the past, but that ought to inform how we behave in the future. Unless we deal with the issues that our whānau are dealing with now—coping with or trying to cope with—and give them the opportunity to be in a position to look after their children, then we are just dreaming about what the real issues are.

I say to the Minister, around the resourcing—it is an issue; it is definitely an issue. It may be a bigger issue in making certain that—way too many of our families are living in absolute poverty. If we deal with that issue, then, in my opinion, we will create an environment for whānau to be able to look after their children. I am going to leave it there. That is my contribution to this bill. Kia ora.

I rise to speak to the bill, and specifically in my comments I would like to address new paragraph (f) in section 238(1), in clause 93(2). Linked into that is Supplementary Order Paper (SOP) 331, which has been put forward by Jacinda Ardern. My late father-in-law had a saying that he would never let me forget, which was: “You measure twice and you cut once.” He was a carpenter. I do not think it was a saying that was unique to him, but it is a piece of common sense that says that when you are doing an important job you really take your time to size it up and get it right before it is too late to turn back.

I think, in the course of this debate, that that is what we have heard in speech after speech—that we are dealing with some incredibly complex and important issues, that across the Chamber there is a great desire that we do right by our kids, by our tamariki, but that on this side of the Chamber, certainly, we do not think the measuring has been done. Time and time again, when we come to the submissions, when we hear the comments made in speeches tonight, I think there is plenty of evidence that there has not been enough measuring, with this bill.

I want to turn to that in respect of section 238(1)(f) in clause 93(2). This is an interesting part of the bill, because clauses 92 to 109 are the ones on youth justice. It has been commented on by members on this side of the Chamber that in general terms the Labour Party is supportive of changes to the age of youth justice, ensuring that 17-year-olds, for the most part, are dealt with in the youth justice system.

My colleague across the House and friend from the Mt Roskill by-election spoke against that on the campaign trail. I think it is important that we are consistent in these matters. But in turning to section 238(1)(f) we have got a funny little inconsistency.

💬 Dr Parmjeet Parmar: You should hear clearly what I said.

All I ask, Ms Parmar, is that we are consistent in what we say, whether it is on the street or in this House, and if we do that, we can hold our heads high.

If we turn to section 238(1)(f), this is the section that deals with young people on remand—17-year-olds in remand situations. We had a reasonably significant change at the select committee stage. If you look at section 238(1)(f), it states: “subject to section 239(2A), order that the young person (aged 17 years) be detained in a youth unit of a prison.” We then turn to section 239(2A), in clause 94, and this is where we have got the significant change. The previous wording we had was that the court “must not make an order under section 238(1)(f) for the detention of a young person (aged 17 years) in prison …”. That changes to “may make an order” subject to certain conditions.” So we have got a complete flipping of something that is quite important in terms of how we are treating young people who might be on remand.

There are a number of serious concerns that the Labour Party has got in this area, and I guess the first one—having crossed the Rubicon in this bill and recognising that we should, for the most part, treat 17-year-olds within the confines of the youth justice system—is that it seems an inconsistency that relatively late in the legislative process we have said that we are going to do something other than that in respect of remand.

The reasons for the original change are clear to most members of this House—acknowledging that not everyone agrees with it. We believe that it is most appropriate to treat 17-year-olds in the youth justice system in terms of their ultimate rehabilitation and in terms of our international obligations. It is a matter of record that the United Nations Convention on the Rights of the Child says that we should not be treating 17-year-olds in the adult criminal justice system. Again, we commend the fact that in this bill, for the most part, we are dealing with that issue. So we question why we would, in this section—this change that has occurred in the select committee—open up our young people to be held on remand in adult prisons, all being where there are, I think, youth facilities.

What I also note, and this is more specifically as we make our way through the changes—I am turning now to section 239, in clause 94—is the scope that is provided here. In Supplementary Order Paper 331, in the explanatory note that my colleague Jacinda Ardern has provided to support the SOP, she notes that in the principal Act we do have some capacity to deal with this issue, and we absolutely require it in situations of extremis, in very limited circumstances—

Thank you for the opportunity to make a contribution to the Committee stage of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill. At the outset, I want to acknowledge that this debate is, by its nature, an emotive debate—and, actually, so it should be. We often talk in this House about how we are talking about the most vulnerable in our society. Well, actually, tonight I cannot think of a more vulnerable group in our society than these children. So if we are not emotive about this issue we probably will not be emotive about any issue ever.

I want to acknowledge all the contributions that have been made. I know that they all come from the right place, from everyone in this House wanting to make the very best legislation that we can, because of what is at stake if we do not get it right. It is in that spirit that I want to support the issue that has been raised about how this legislation treats the responsibility to do everything we can for whānau, iwi, and hapū to have their responsibility of taking care of their own.

I heard Ron Mark’s contribution, and I want to say I know how difficult it was for him to make that contribution. But I heard the hurt in the voice of that 3-year-old boy, in his contribution—I heard the hurt in that voice. The thing that it prompted me to think about was that I heard that little boy being angry about being abandoned by his family, by his whānau. That is what I heard.

So the question I want to ask the Minister and have her consider is: if we had legislation in place for Ron Mark that meant that the system did everything possible to connect him with his family and not have him feel abandoned by his family—what if the system was required to do everything it could to say to his whānau: “What do you need?”, “How can we make this work?”. Then, how much better would our colleague be feeling about the experience he had? That is the question I have, and I do not have the answer. I am not going to pretend to know all of the circumstances for Ron Mark and his whānau. I am not going to pretend to know that. It is not my business to know. But I am simply asking the question: how much more embraced would that hurt 3-year-old boy have felt if the emphasis was on the system making sure he did not feel abandoned by his family, where it could be made so?

I have not heard anyone in this debate say that 3-year-old Ron should have been forced into an unsafe situation. No one is asking for that to happen. What we are asking for is for this legislation not to let the system off the hook from not doing everything it can—everything we can—to connect that hurt little boy so that he does not feel abandoned by his family and his whānau. That is what we are asking for.

So I want to support all the Supplementary Order Papers that attempt to do that, because these are serious issues that we are dealing with. I do not want to be in a country where we end up one day apologising for the stolen generation like the Australians had to do. I do not want to be part of that. I certainly do not want to be a member of Parliament who sits quietly and lets that happen through this legislation, and I do not believe for a minute that the Minister wants that either. But if we do not get this right, if we do not put the requirement on the system to do everything it can to stop that 3-year-old boy from feeling abandoned by his family from the age of 3 to 17, then we have not done our job properly—and that, Minister, is what we are asking for.

I hope that we can take the politics away from the situation, that we do not get into a situation like some of the contributions I heard earlier, where members stand up and try to portray this side of the Committee as trying to seek things that we are not. I want to get this right.

I am delighted to be able to tell that member that that is exactly what we have put into the principles of this bill. So, first of all, if I take the member quickly through the principles on page 19, recognising that child and the best interests of that child are at the centre, around that is the family, the whānau, the iwi, and the hapū, and the responsibility to work with them to support them because they are an integral part of that child’s life. Then there is the further circle of recognising the connections of the child to the wider community.

Many of the young people have told me themselves that whereas their family might not be as close and as supportive as they would like and need, sometimes there is someone or something in the community that they are connected to, and that can be used. That is really what the principles in new section 5, inserted by clause 8, are setting out to explain. All of that has to be taken into account. As I said earlier in the Committee, the underlying principle is that it is the primary responsibility of the family, the whānau, the iwi, and the hapū to be responsible for the nurturing and the developing of that child. That has to underpin everything we do. The best place for every child is with their family. We must do everything we can as early as we can to ensure that we have strong and supportive families so our children can grow up successful and thriving.

I want to speak directly to the issue that the Minister just raised, because she talked about doing everything within our power to make sure that that child is supported. Presumably, that includes within whānau, hapū, and iwi, because the Minister has repeatedly claimed that her new clause, as set out in the amended version of the bill, is, essentially, the “whānau first” clause that was in the old version of the Children, Young Persons, and Their Families Act. That is patently not true. It is patently not true for two reasons: firstly, the Minister herself, in March, made it very clear, and I quote from Twitter: “To be clear—we’re not going back to the drawing board. Through the select committee process some of the wording of the Bill may change but its intent won’t. We will not be reinserting the whanau first principle.” That was what the Minister stated.

So her claim that the “whānau first” principle is in this legislation is not correct; she has put something else in. I acknowledge, Minister, that you did make a change; you accepted the select committee argument. You have used the word “preference”, but there is a considerable difference to the word “preference” in the legislation that came back from the select committee and what was in the original Act. The original Act talks about not just placing the idea of whānau, hapū, and iwi first but actually resourcing it, doing everything we can to make sure it can happen. Simply saying “preference” means that you can do a quick search, see whether or not someone comes up on the system, and if they are not there, move on—move on. Even then, actually, we know that that is predominantly what happens anyway. But the legislation as it was drafted in 1989 went further than that; it put the onus on the State to make an effort to put support around whānau, hapū, and iwi—to do everything within its power not just to put preference but to actually put some basis behind the principle. It was not just words on a page. Now we have words on a page. We have lost the “whānau first” principle fundamentally. So that is what we object to, Minister, and that is what I wanted to clarify.

For the purposes of the moving speeches that have come from the members of this House who have been in care, the first thing I would say is that I do not make any assumption about any of the lives that anyone in this House has had—no assumptions. I do not do that for anyone outside of this House. We do not know each other’s stories—we do not know each other’s stories. So I would never prejudge anyone’s contribution as being from a place of privilege or a place of harm. They come from a place though, in most cases, of very goodwill. They come from goodwill, and I acknowledge that most members of this House—actually, I would hazard a guess and say all of us—want the right outcome for kids, for rangatahi; that is ultimately what we all want. We just have some very different ideas about how that is best achieved. That is probably the thing that defines this debate, rather than our intent.

Minister, there is another point I want to make, and it has been touched on by some of my other colleagues, and that is that, actually, the bill fundamentally moves us away from the old legislation of a minimalist State approach to an early intervention approach. We would argue that that has always been the basis of our beliefs: that, actually, early intervention is best—the idea of never having a child removed is best. But, actually, by using that language in the bill, we are moving some way on. And, actually, we never really codified what it means. The bill talks about it, but it does not tell us how. The threshold for intervention, for instance, has not changed. We are still waiting for significant harm to be done before we have any legal footing to move in to support a whānau. We have not actually talked about what it means to provide early intervention.

Minister, if I was going to say what the research tells us, that if we want to support any whānau from preventing it from being in a situation of harm or neglect—if we want to prevent that—the first thing we would do is make sure every family has the basics they need to survive, that they have the resources to provide for their family, and that they are not living in a state of material deprivation. That is the reason the children’s covenant that Judge Caroline Henwood worked up, which has been integrated into some of the principles of this bill and has been supported by iwi leaders, talks about making sure that we will strive to provide children with a proper standard of living. That is a fundamental, and yet that is the one principle that does not make this legislation.

We cannot talk about creating an environment of well-being and of making sure whānau, hapū, iwi, and family have all they need to provide for their kids so that we do not end up in a situation of harm, without acknowledging the best way to do that first and foremost, because the best determinant of child well-being is poverty and deprivation. Every time we have raised that in the House, members on that side have claimed that we are saying that families who live in poverty harm their children. That is utterly deplorable. We have never argued that—we have never argued that. But what kind of situation are you putting family in if you ignore the economic circumstances they live in?

💬 Hon Nanaia Mahuta: Sleeping in cars.

If they are sleeping in cars and they have financial stress and pressure—that every payday is a choice between whether or not you are putting food on the table or a uniform on your child’s back—that causes issues for families. Of course it does. We would be ignorant to ignore that, and we would be ignoring the evidence.

Under a Labour Government, Oranga Tamariki will have a legislated obligation to care about material deprivation, because you cannot have families who are focused on well-being unless you care about poverty and deprivation too. We would make sure that Oranga Tamariki would have a board—a child poverty reduction board. It would have members from every single Government department on that board, who would have a legislated requirement to set targets to reduce the impact of material deprivation and harm on kids, because that is what a genuine focus of early intervention looks like.

Instead, the Law Society has pointed out in their submission: “It is unclear how the Bill is intended to intersect with the Vulnerable Children Act 2014 and the [overall] establishment … of the Ministry for Vulnerable Children,”. It also talks about how there is a need for “a complete redrafting … to ensure a clear process for early intervention and to ensure the government’s objectives are achieved. Instead, the Bill makes a range of complex amendments to the Act that will inevitably create difficulties, as the philosophies of the Act and Bill are in many respects inconsistent.” That is what we are left with. Again, I do not doubt the intent of the Minister, but what we have been left with does not achieve her goals. That is why it should have been drafted very, very differently and with a very, very different value set.

I want to finish my contribution by coming to something that Michael Wood was just speaking on. Yet again, to me, this speaks to the lack of aspiration in this bill. We have a situation where Youth Court judges now are frequently in the media commenting on how unsatisfactory it is that children and young people are being held in police cells, not just at the point they are apprehended but on remand as well. And that is unacceptable. The Children’s Commissioner rated it as probably the most significant issue in his contribution. In 2016 there was a total of 150 young people and children detained in police cells for more than 24 hours, and now what does this bill do? This bill allows us to put them in prisons as well—in prisons. It does not actually get rid of anything; in fact, it extends the ability to use those provisions. If we were truly aspirational, we would have got rid of it. Or even if we thought we did not have the resource to get rid of it straight away, we could put a sunset clause in it. But we are breaching our obligations with a clause that allows children—children—to be held in police cells.

Look, my father was a policeman. I remember one day being briefly locked in a police cell. It may have been a joke but even in that brief moment—in that briefest of moments—I saw what it might be like to be in a place like that, and it was pretty horrifying. I cannot imagine what it would be like for a young person to stay in there for longer than 24 hours. Those police cells are not made for adults to stay in for longer than 24 hours; and, in fact, they do not. They are moved on quickly into prisons and held on remand outside of a police cell environment. This speaks to the lack of resources within our youth justice system.

Minister, I want to finish, though, on a note of congratulation to you. I am so pleased that we see in this bill an increase in the age of the youth justice jurisdiction. That is an incredibly positive move—incredibly positive move. I do not doubt, and I accept that that—

💬 Darroch Ball: You just said there was a lack of resources.

I accept that causes resource issues, and they should be faced, but it is not a reason not to do the right thing, Mr Ball. But also I would say, though, that we are not being consistent if we increase that age and acknowledge that a young person is not an adult at that age, and yet we continue to hold them in an adult environment. That is inconsistent. So Minister, thank you for that. I know it would have been met with some opposition by your colleagues. I applaud your doing it, but we must make sure that when we give with one hand, we do not then lose with the other, and I am afraid that, overall, that is exactly what this bill does.

Thank you for the opportunity to make a contribution in this debate. Can I begin by acknowledging both Ron Mark and Ria Bond, and saying that it is not easy to tell a story of a family that you do not have a lot of time for in terms of the way they behaved. That is a very courageous thing, and is a significant contribution to this debate. But can I also say to both of my colleagues from New Zealand First that violence and an inability to properly support children is not limited to brown people. There are thousands and thousands of Pākehā families in our country who seriously abuse or murder or neglect their children.

This is not about parents who are not able to support their families; it is about what this entire legislation should be—that is, how do we get the best outcomes for every child who is born in our country? Let me refer the Minister to the evidence on that. She will have read it, I am sure, in her preparation for this legislation coming to the House.

The best outcomes for a child happen when they are born into a family, regardless of whether there are one or two parents and regardless of the parents’ gender, that wants that child—not necessarily planned, but wanted. That is an important step.

The next one is that that family has enough money to support the family, that they live in a home that is warm and dry and where they have security of tenure and they can afford to pay the rent or the mortgage, that one of the parents has a job that pays a fair wage, and that, as the baby gets older, they are able to access affordable, high-quality early childhood education and top-quality, free public education in their own community. That is the start of building the best contributor to New Zealand that we could ever want for every baby who is born, and there is nothing in this bill that does anything towards that. There is a lot that the current Government is doing that undermines that.

I think that is a real tragedy, because we have in this, the first new piece of Child, Youth and Family protection legislation we have had since the late 1980s, a huge opportunity to learn from the past, look at the barriers that we have, and say that we can make a real difference. This Parliament could make a real difference in the lives of every child born in our country. We have just missed that opportunity and I think that is a shame.

I know that the Minister has got every good intention at heart, but, you know, she maybe did not have the backing of her colleagues or maybe did not have the ability to be bold and visionary. I know that the Social Services Committee worked really hard on this. I know that every member of Parliament who has debated it has worked really hard on it. But we missed an opportunity, and maybe we might be able to take it in the near future.

There are two things that I think are missing. First of all, there is the topic that has been debated a lot tonight. There is overwhelming evidence both in New Zealand and internationally that if babies and children and young people stay connected to the safe elements within their family, they have better outcomes. The family that they are placed with if their own parents cannot look after them has to be safe. You know, for any member to imply that we would be putting kids in an unsafe environment is just dumb. No member of this Parliament would want to do that. No member of any party in this Parliament would do that.

The more connected a child or a young person stays with the safe part of their family, the better the outcome is. That principle should be in this legislation, because we have seen what has happened in New Zealand, for goodness’ sake, and, heaven alone, if we look across to Australia, we can see what happens when you have a culture that thinks it is superior to another one and, therefore, thinks kids are better placed with people who are not members of their family and who just happen to be white, actually. That is what happened in Australia. That is what happened in the past in New Zealand, and we should never commit that crime again. We should never deny children the basis of their identity.

Of course, children have to be safe. That has always been the founding principle of this—[Bell rung] Mr Chairman.

The CHAIRPERSON (Hon Trevor Mallard): The Hon Ruth Dyson.

I was not sure whether you were hoping my voice would give up completely or not, Mr Chairman, but it is not going to. We should never deny children a connection with their identity—and the stronger that connection can be, the better—and we should never ever allow the children who are the Ron Marks and the Ria Bonds of today to be in violent situations either, and we can do both of those things. We can do them better than we have done in the past. So that connection with your family, regardless of whether you are Māori or Pasifika or Chinese or New Zealand - born Pākehā, makes a difference.

The second part is the issue I referred to earlier, and that is the environment in which we bring up the children. Where in this legislation does it link that vision that the Minister talked about of early intervention—of actually getting in early with a family to better support them to raise, in a healthy environment, their child? How can they do that when there is nothing in this that triggers early intervention and support? There is nothing about the link with truancy services. There is nothing about the link with affordable housing. There is nothing about the link with employment, or with support for travel. All the things that make people’s lives possible and make them able to better raise a child—nothing in this legislation does that.

So there is no point talking about early intervention if we see exactly the same threshold for intervention as in any other care and protection case, which is that the child is in harm. That is too late, Minister. I know that the Minister supports early intervention. Well, let us see it reflected in the responsibilities of Oranga Tamariki and in the legislation that we are debating. Let us make sure that children are born into warm, dry homes, that they have a family income that supports them, that one of their parents has a job that earns a fair wage, and that those children are connected to quality early childhood centres and a community school that gives them the best chance at education.

Another thing we might want to throw in, just for icing on the cake—we know that kids who are born in poor families do not have computers at home, so they miss out. The Minister used to be the Minister of Education. She will be well aware of that point, and she knows how much further behind kids are in the education system if they come from a poor family and do not have a computer in their home. They miss out on a whole lot of educational opportunities that other kids have. What is the biggest way to improve the outcomes in the quality of life for a New Zealand baby? It is to offer them the best education possible. Nothing in this legislation gives us that—nothing at all.

So, Minister, I want to reinforce the comment that Jacinda Ardern made, and that was to congratulate you on the change in the youth justice age. It is overdue. You have done it. It would not have been easy, I imagine, with some of your colleagues, but that step was taken. You won, and I think that is a thing to your credit. It will be your legacy in this portfolio.

We should have inserted in this legislation the requirement to deliver a proper standard of living for every child. That is a responsibility for the New Zealand Government to then deliver through a multitude of agencies. It would actually break the cycle. It would actually remove poverty as the driver of so many of the negative outcomes that it causes in our current society. The gap between rich and poor is getting bigger, so the challenges that people in low-income families face—

💬 Hon Tim Macindoe: Not according to the evidence.

—are increasing and are getting more and more. We know the statistics, Mr Macindoe. Tragically—

💬 Hon Tim Macindoe: No, not according to the evidence.

It is not a political debate; it is a factual debate. There are parts of this legislation that are very good, but, unfortunately, the fundamentals that will make a difference—the fundamentals that are evidence-based about what will give us the best outcome in a care and protection and early intervention system—are missing. So I am sad that we will be opposing this legislation. It is an opportunity that is missed for our country. It is an opportunity that is missed for future generations of our babies.

Tēnā koe, Mr Chair. I would like to speak to my Supplementary Order Paper (SOP) 332. Just reminding everybody—the context of this particular amendment is related to new section 4, inserted by clause 6, the purposes of this Act, which are “to promote the well-being of children, young persons, and their families, whānau, hapū, iwi, and family groups by—“, and it is: “(f) providing a practical commitment to the principles of the Treaty of Waitangi (te Tiriti o Waitangi) in the way described in this Act:”. What my Supplementary Order Paper seeks to do is to, I guess, provide more tools for the CEO’s tool kit and the CEO of Oranga Tamariki’s ability to fulfil duties of the chief executive in relation to the Treaty of Waitangi.

So the duty is a moral or legal obligation or responsibility of the chief executive of Oranga Tamariki, and what I am proposing is that under new section 7AA(2)(c) “the department seeks to develop strategic partnerships with iwi and Māori organisations, including iwi authorities, in order to—” to insert “assist the department in developing and implementing policies, practices, and services that are appropriate to advance and improve outcomes for Māori children and young persons, including those policies, practices, and services under paragraphs (a) and (b).”

New section 7AA(2)(a) says: “the policies and practices of the department that impact on the well-being of children have the objective of reducing disparities by setting measurable outcomes for Māori children and young persons who come to the attention of the department:”. It is relevant because 61 percent of the children in care and protection are Māori. And paragraph (b) says: “the policies, practices, and services of the department have regard to mana tamaiti (tamariki) and the whakapapa of Māori children and young persons and the whanaungatanga responsibilities of their whānau, hapū, and iwi:”.

The reason I believe this amendment is required is that, when we look at the relationship as it is outlined, it is to “provide opportunities to, and invite innovative proposals from …; set expectations and targets to improve outcomes for Māori children …; enable the robust, regular, and genuine exchange of information …; provide opportunities for the chief executive to delegate functions under this Act …; provide, and regularly review, guidance to persons discharging functions …; agree on any action both or all parties consider is appropriate.”

It seems to me that the relationship outlined is a contractual one, and if the Minister and this Committee think that these are the Treaty obligations that the chief executive of Child, Youth, and Family, or Oranga Tamariki, has to exercise to provide a practical commitment to the Treaty of Waitangi, then I think we have completely misunderstood the context and relevance of the Treaty of Waitangi. The Treaty of Waitangi is a constitutional document. That constitutional document, when we look at the responsibilities that the Crown has, is about partnership; it is about how Māori participate, and how we are protected within the public system. So ensuring the chief executive of Oranga Tamariki has to work with Māori to develop and implement policies, practices, and services is actually about how Oranga Tamariki is going to do the work that it needs to do to make sure that that 61 percent of children in the system who are Māori have their needs and aspirations met.

I would have thought, for example, that the chief executive cannot do this by herself; she will need a partnership with Māori organisations, which will include the iwi leaders and, presumably, other Māori who are interested in being involved in the care and protection of our children. So I think that this amendment then allows the chief executive of Oranga Tamariki to develop an entity to have a formal relationship with. I do not think that can happen otherwise. I would have thought that we as a House, we as a Parliament, would want to give the chief executive the tools that they need to actually provide a practical commitment to the Treaty of Waitangi. So I am hoping the Minister is going to support this SOP and see it for what it is, which is a contribution to the debate that I think adds value to this piece of legislation. I did not hear the Minister speak against it. She answered some questions that my colleague the Hon Nanaia Mahuta brought up, but I think this is actually critical.

My colleague Jacinda Ardern talked about a board. Well, I think that there should be a board that is set up by the chief executive to help give effect to the Treaty of Waitangi, because otherwise we are setting the chief executive up, actually. It would be very difficult for her to do her job, and I think it is broader than just reducing disparities. So we want to go from 61 percent to—I do not know—55 percent or 50 percent. What is a good measure? I mean, it is bigger than that. It is bigger than that. This is about how Oranga Tamariki is going to do the work that it needs to do in a culturally competent and a culturally appropriate way, to make sure that we get the outcomes that we are hoping to seek.

I agree, Minister, that we do not want our children in care and protection. You know, that is a shocking statistic—that 83 percent of the people in prison have got a care and protection history. We have got to stop it. It has to start somewhere, and we need to recognise that the institution itself is part of the problem. So I am hoping that you see this in the spirit that it was actually created.

Like my colleagues, I find this is an incredibly emotional topic to talk about. We talk about our whenua. When we have our Treaty settlements, this House is usually packed, and it is so emotional because we have to relive a lot of the horrific abuse that our whānau, hapū, and iwi have actually gone through. Well, that is the same mamae that we all feel about discussing this bill and the children who are captured within the system.

The last thing I would like to contribute is that earlier this year, as members of the Justice and Electoral Committee, we had an opportunity to visit Justice McClellan and the royal commission that the Australians have convened on institutional responses to historical child sexual abuse, and we have not really talked about the impact of what happens in the intergenerational trauma, which my colleague Adrian Rurawhe talked about. We also had an opportunity to visit with the Prime Minister’s office and talk about women who have had and have experienced family violence and talk about the practices that are developing in Australia. There, they are not taking the children away from women who are suffering from family violence, who may have drug and alcohol issues, or who may have parenting issues. What are they doing? They are supporting those women. They are giving them homes. They are giving them income. They are giving them the support that they need to be able to look after themselves and keep their children.

So I think that our response should be the same, and we should recognise that a lot of the children in care and protection—I think Marama Fox talked earlier about some of our women picking partners, and the blended families and the risk that that our tamariki face. But, for whatever reason, it is incumbent on us, I think, to support people through that process.

I can understand that there are certain times in a child’s life when we have not got the time to allow the family to rehabilitate, which is why, if they are given to the extended whānau and their hapū and iwi, there is a chance for them to come together at some point in time, because, you know, the whānau will be a whānau and they will gather at certain events. They will gather on the marae, so the relationship between the parent and child is not completely severed. It is not like an adoption.

I would just like, also, to contribute that the issue of historical abuse of children in care will not go away. I think it is completely interlinked with what has happened historically in our Child, Youth and Family system. I know that tomorrow, at 1 o’clock, there will be people gathering on the steps of Parliament, because it is about time that we as a country faced up to some of the historical abuse that happened in State care to children who were the responsibility of the State. To say to those people “You can go through a criminal justice system to get redress.” is actually a further abuse, I reckon, of those people in care, and it is the Government not taking responsibility, which it should do. Thank you.

Members, I am going to seek a little bit of indulgence as we go into quite a big list of amendments, and in order to get through them in, hopefully, better time, I will take them out of the normal order so that there is an ability to group them up for various approaches.

The question was put that the amendment set out on Supplementary Order Paper 342 in the name of Carmel Sepuloni to the proposed amendment set out on Supplementary Order Paper 329 in the name of the Hon Anne Tolley to clause 38 be agreed to.

In order to expedite matters, can I ask for the next set of amendments, which are to clauses 6 and 13, set out on Supplementary Order Paper 338, from Marama Fox—does any party intend to vote in a way that is different from the way they voted in the last amendment? Right.

The question was put that the amendments set out on Supplementary Order Paper 338 in the name of Marama Fox to clauses 6 and 13 be agreed to.

A party vote is called for, and given what I have just been told by the Committee, the Ayes are 47, the Noes are 72. The amendment is lost.

Amendments not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 333 in the name of Louisa Wall to clauses 6, 8, and 13 be agreed to.

Can I now ask, with Marama Fox’s next set of amendments to clause 8, set out on Supplementary Order Paper 339, is there any party that intends to vote in a manner different from how they voted on the previous Fox amendment? A party vote is called for, and I declare that the result of the party vote is Ayes 47, Noes 72.

Amendment not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 335 in the name of Marama Fox to clause 8 be agreed to.

A party vote is called for and on the basis of previous comments, unless I hear otherwise, the Ayes are 47, the Noes are 72.

Amendments not agreed to.

The question was put that the following amendment in the name of Jacinda Ardern to clause 8 be agreed to:

in new section 5(1)(b), after subparagraph (viii) insert:

(ix) endeavours should be made to provide the child or young person with a proper standard of living:

The amendment set out on Supplementary Order Paper 334 in the name of Marama Fox to clause 8 is out of order because it is the same in substance as Louisa Wall’s amendment previously considered by the Committee.

The question was put that the amendments set out on Supplementary Order Paper 336 in the name of Marama Fox to clause 12 be agreed to.

A party vote is called for, and, unless I get an indication otherwise, I will declare that that amendment is lost, 47 to 72.

Amendments not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 332 in the name of Louisa Wall to clause 12 be agreed to.

A party vote is called for, and I, with the absence of dissent, am declaring that that amendment is lost, 47 to 72.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 340 in the name of Marama Fox to clause 38 be agreed to.

A party vote is called for, and, with no one disagreeing, I am declaring that the Ayes are 47, the Noes are 72. That amendment is lost.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 341 in the name of Marama Fox to clause 38 be agreed to.

A party vote is called for, and I declare the result is Ayes 47, Noes 72, if there is no dissent to that.

Amendment not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 331 in the name of Jacinda Ardern to clauses 2, 93, 94, and 96 be agreed to.

A party vote is called for, and I declare that the result of that is Ayes 47, Noes 72. Therefore the amendments are not agreed.

Amendments not agreed to.

Parts 1 and 2, schedules 1 to 4, and clauses 1 and 2 as amended agreed to.

The question was put that the following amendment to Supplementary Order Paper 330 in the name of the Hon Anne Tolley be agreed to:

in clause 2(1), replace “131 to 139” with “138 and 139”.

Amendment agreed to.

The Committee divided the bill into the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill and the Vulnerable Children Amendment Bill, pursuant to Supplementary Order Paper 330 as amended.

House resumed.

The Chairperson reported progress on Te Ture Whenua Māori Bill, the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill with amendment, and that the Committee had divided it into two bills, and no progress on the Enhancing Identity Verification and Border Processes Legislation Bill.

Report adopted.

Sitting suspended from 9.55 p.m. to 9 a.m. (Thursday)