Social Workers Registration Legislation Bill

Thank you, Madam Chair, and thank you for the opportunity to contribute in this committee of the whole House stage. I want to respond to a comment that was made earlier by the Minister in the chair in terms of being very disparaging in terms of tabled amendments that have been put forward by this side of the Chamber. Members have been contacted by a number of social workers, educators, academics, and customers or clients who work with social workers, and to have a Minister absolutely scorn any constructive improvement that this side of the committee has made to improve the legislation so it is workable, I find quite disgusting.

So my first question in my contribution in Part 2, given that this is a Supplementary Order Paper (SOP) that’s been dropped on the Table at short notice again, is that I haven’t had an answer to my question in my contribution around the regulatory impact statement. The regulatory impact statement that was tabled in the early stage of the committee the whole House was that of 1 May 2017; only today is there one for the Supplementary Order Paper dated 26 July 2018. So I want to know—I’m asking the Minister: how can this committee scrutinise legislation when the regulatory impact statement isn’t even provided for members of this side?

So we will be asking questions. We will be constructively contributing to a debate in the absence of the ability of the public to have it. That is our responsibility. That is what we are paid to do, and I do hope and I do request, with all due respect, that the Minister engages constructively, as we are trying to improve pieces of this legislation that have been amended at short notice without public scrutiny. So my question is around the regulatory impact statement and why the regulatory impact statement wasn’t provided on the Table of the House. Mr Chair, you may have a view on that in terms of whether that actually even reduces the ability of the committee to debate in the committee of the whole House and whether or not there is a ruling that should be considered by this House in this situation.

So in terms of Part 2, I do want to refer to the regulatory impact statement, and I’ll put on record that is the regulatory impact statement of 26 July 2018 and not 1 May 2017. The Minister has also talked about a 16-year time frame, which is absolute rubbish given this bill was introduced in May 2017. So in terms of amendments to Part 2 of the Social Workers Registration Legislation Bill, in particular I want to refer to clause 70(2), which talks about the “fit and proper person”. In the regulatory impact statement, there’s significant commentary around who is a fit and proper person to practise.

For those that have just joined this debate in the Parliament on the Social Workers Registration Legislation Bill, what isn’t of debate is how important this legislation is. It was introduced under National, and one of the elements is for those particularly vulnerable New Zealanders who will be interacting with a social worker. They do want the assurance that there is a fit and proper person that is working with them as a registered social worker. Although we haven’t had answers to some of the questions we asked in the earlier part of the debate, I very clearly do want the question answered around the regulatory impact statement, which I think’s a clear breach of the practice of this House.

So in terms of the fit and fit and proper person—so when the Hon Anne Tolley, who was the former Minister for Social Development who introduced this legislation which moved from the voluntary regime to the mandatory registration regime, one of the key elements was the expectation that people who are working with social workers would know that they’ve been police-vetted as one of the elements. So that comes to the heart of the fit and proper person test in terms of their ability to practise. So I don’t think there’d be anyone in this committee that would disagree with the fact that we do want to ensure the fit and proper person test is applied, and in Part 2, the amendment to this legislation is around the amendment to the Criminal Records (Clean Slate) Act of 2004.

I would’ve thought that in the select committee process we might have seen a bit more contention. I’m sure the Green Party of Aotearoa New Zealand will have a contribution to make, because they’ve been quite outspoken in the past about the Criminal Records (Clean Slate) Act and its possible uses for good, bad, or indifferent reasons. So, in this instance, it’s about the amendment of the Criminal Records (Clean Slate) Act so that the Social Workers Registration Board, who are the regulatory body responsible for the social workers who will be registered under this Act, is considering whether the eligible individual is a fit and proper person to be registered or to practise as a social worker under the Social Workers Registration Act.

A lot of this debate has focused on competencies and on qualifications. This one is more around the person’s character. The regulatory impact statement has several pages on this, and, as I say, it’s the regulatory impact statement of 26 July 2018, not the one that was on the Table when we last debated this. It is really critical, because the Social Workers Registration Board are the regulatory body, that they have confidence in terms of being able to declare and be satisfied that the applicant is a fit and proper person to practise social work. There’ll be a range of people who are going through this regime. There’ll be those who are already registered under the voluntary scheme. There’ll be those who are working towards sufficient qualifications that will allow them to be registered under what will be the mandatory regime after the transitional phase has been completed, and then there will be others who have been working as social workers for quite some time, who, you could argue, have sufficient experience. That group in particular would have been working with members of the public for a long, long time.

So, in terms of the legislation, there are a number of examples of reasonable grounds that we agree with. A conviction for an offence punishable by three months’ or more imprisonment—that clearly is a reflection on fitness to practise, and I don’t think there will be any disagreement in this House on that. I would be interested to know, in terms of the Minister’s advice after the select committee process was completed—because there were no changes to the fit and proper person test recommended in the departmental report, but, as we’ve seen with other areas, the Minister has then gone on and got subsequent advice from a group of people; some have been listed, others haven’t—whether there were other changes proposed around the fit and proper person test. Was there consideration after the select committee finished its deliberation that was either considered and then discounted around the fit and proper person test—and I’d be interested to know if the Minister would be able to provide details around that. Obviously, we have visibility of what did make the cut but not of what didn’t make the cut. Clearly, in terms of the select committee process, that’s really been completely abandoned, and the Minister believes that the parliamentary select committee isn’t the place to improve legislation and have the ability to consider details by submitters and by academics or education providers or social workers themselves.

So, in terms of Part 2, in clause 70 there is an amendment here around the Criminal Records (Clean Slate) Act 2004, and, as I said, I am interested to know what the Minister’s considerations were outside the select committee process, because I think the House should have full visibility of it. The Minister had indicated on another occasion, although not today, that she was willing to engage fully in the process, and we would expect that.

In terms of the fit and proper person element, also from the regulatory impact statement, there is the ongoing question mark about annual practising certificates and the assessment of fitness to practise at that point. So there was a—[Time expired]

Thank you, Mr Chair. Going back to what this part is about, I think it’s important to note that the majority of content in this bill was actually in Part 1, and Part 2 is the amendments to other Acts as a result of the content in Part 1. I will state that the Supplementary Order Paper (SOP) introduces this Part 2; however, many of the sections that are in Part 2 were actually in the original bill. It’s just added the scopes of practice and moved a few sections around. There’s very little that is dissimilar to what existed when the previous Government was in place. So I find it interesting that we’re relitigating some of that detail when I think there was agreement up until the introduction of the SOP, despite the fact that not all of this is actually as a result of the SOP, but we’ll have that discussion anyway.

Also, I’ve been again asked how I can be assured or confident that this has been informed appropriately by those who have a vested interest in social worker registration—mandatory social worker registration—and I haven’t stated tonight in the House but I did previously when we were going through the committee stages that the SOP was developed collaboratively by the Ministry of Social Development (MSD) with the Social Work Alliance, which consists of the Aotearoa New Zealand Association of Social Workers, Careerforce, the Council for Social Work Education Aotearoa New Zealand, the District Health Boards’ Health Social Work Leaders’ Council, the Ministry for Children—Oranga Tamariki, the New Zealand Council of Christian Social Services, the Social Service Providers Aotearoa, the Social Workers Registration Board, the Tangata Whenua Social Workers Association, and the New Zealand Public Service Association. So, as I stated previously, the broad coverage of these groups across the social work sector has provided me with the confidence, and the Ministry of Social Development with the confidence, that public consultation on the SOP was not necessary; hence why it didn’t go back to the select committee. All of the key stakeholders have come together to formulate the SOP that we have in front of us tonight and the bill that we have in front of us tonight.

Can I also bring up a point that was raised by the Hon Louise Upston with regards to the regulatory impact statement (RIS)? A good point was made, actually—and I do note this: a mistake was made and an older version of it was put on the Table. The mistake has now been corrected so that the more recent one is now on the Table. But I will state that the correct version has been on the MSD website since mid-December 2018. It’s also on the Treasury website.

💬 Hon Louise Upston: This is Parliament. Table it in Parliament. Get the right version in Parliament.

That member is yelling about an old regulatory impact statement being placed on the Table tonight. Can I remind that member that they tabled a number of SOPs in the House that have now been hand-scribbled on because they were incorrect and made no sense. Occasionally mistakes are made in this House. So I will say that we made one mistake by the MSD officials accidentally putting the old RIS on the table. That’s better than the ten insufficient, inadequate, incorrect SOPs that were tabled by the other side and then had to be corrected.

Can I also just point out that concerns have been raised by the previous speaker about Part 2 and the changes that are in here with respect to amendments to other pieces of legislation. Let me be clear: Part 2 sets out consequential amendments to the Health and Disability Commissioner Act 1994 and the Criminal Records (Clean Slate) Act 2004. So the bill will amend the Criminal Records (Clean Slate) Act 2004 to ensure that no criminal convictions can be concealed from police vettings required for the consideration of whether a person is a fit and proper person. I don’t think any of us in this room would disagree that that’s an important change to be made and, in fact, the only difference is that, previously, when you went for vetting, the clean slate Act could pick it up; now it’s required that when they’re going through the process, a social worker must declare whether or not they have any criminal convictions rather than wait for the clean slate Act to pick it up. So I think that’s a really important change.

The other question that has been asked by the honourable member Louise Upston was with regards to fitness to practise. So there is a definition: “The SWRLB [Social Workers Registration Legislation Bill] extends the grounds on which a social worker may be found not to be a fit and proper person to practise. The Board may find a person is not a fit and proper person to practise as a social worker only if it is satisfied that there are grounds on which a reasonable person would reach that conclusion”—there are sections referred to here. “In addition to the existing grounds, the Board may be satisfied that those grounds exist if they are satisfied that any of the following grounds are met: the social worker is not able to communicate effectively for the purposes of practising;”—

💬 Hon Peeni Henare: Sounds sensible to me.

Sounds sensible to me too. Second bullet point: “the social worker’s ability to communicate in English is not sufficient to protect the health and safety of the public; professional disciplinary proceedings are being taken against the social worker, and the Board considers that those proceedings reflect adversely on the social worker’s fitness to practise; the social worker is subject to an investigation, and the Board considers that those proceedings reflect adversely on the social worker’s fitness to practise; a finding or order has been made against the social worker in professional disciplinary findings or an investigation, and the finding or order reflects adversely on the social worker’s fitness to practise; and the Board believes, on reasonable grounds, that the social worker may endanger the health or safety of the public”. So I think that that’s a pretty clear explanation. Thank you, Mr Chair.

Thank you, Mr Chair. I want to take this opportunity just to explain for those who are watching or listening the importance of a regulatory impact statement, as the Minister has quite flippantly, in my view, disregarded the importance of the regulatory impact statement. To have embarked on a significant part of the debate where the significant changes—67 pages of a Supplementary Order Paper (SOP) tabled in the House that won’t have public scrutiny, and I accept the Minister’s view that she’s worked with a number of stakeholders in the sector. That is not removing the opportunity of the public, as I’ve had multiple people who are engaged in the sector who weren’t part of the Social Work Alliance that the Minister refers to. They haven’t had the chance to say they didn’t necessarily disagree with the changes in the SOP that the Minister was proposing from a policy perspective but they did not believe the drafting was going to deliver the Minister’s intent. So I do put on record again the attempts to be constructive in this exercise in bringing the voices of those who haven’t been given the opportunity in select committee—that is a real kind of overreach, to do that.

I want to just talk about the importance of the regulatory impact statement to making good law, given that the right one wasn’t on the table, which is a critical part of this House’s activity. Yep, it might have been on the Ministry of Social Development’s (MSD’s) website. That’s fantastic, but this is the House, this is the Table whose documents this House discuss and debate and scrutinise, and what ends up in legislation is based on the debates in this House.

So the regulatory impact statement is an analysis that’s done by Treasury. Treasury would have done the original analysis, and I do want to, because the Minister has made comments about it, just refer to the time line of this legislation. It was introduced in August 2017, which is why the regulatory impact statement was back in May 2017. The call for submissions was an OK time frame before Christmas. Submissions closed at the end of January, but then the report back was a short report back in April. Although there were a number of concerns, both in terms of workability, which is what the regulatory impact statement refers to, it doesn’t disagree with—or, in some cases, it does disagree with—the policy direction but it also refers to workability risks and impacts, and in many cases also the financial impact. So although there were some pretty crunchy issues still outstanding in the select committee processes that members on this side of the House wanted to explore fully, the request for an extension to the report back to this House was declined. That’s why we’re in this situation.

So, in that situation, when members of the select committee have concerns, and changes aren’t proposed by the department in the departmental report—they’ve gone past that process and then ended up with a large SOP that MSD has drafted based on a range of advice—it actually behoves this House to give it proper scrutiny.

Part of that scrutiny is the revised regulatory impact statement, which we now know was July 2018. I had asked why that wasn’t supplied. But I want to just reflect why it’s important. So it establishes the conceptual nature of the problem while acknowledging the limitations of empirical evidence. Evidence is one of the considerations of the Social Services and Community Committee, and they had the ability to deal with a lot of the issues but not some of the really crunchy ones—like the scopes of practice, and that hasn’t been explored here fully. So, for example, of the alliance that the Minister has been involved with, I’d like to know—in terms of Part 2—how many of the individual members of the alliance raised issues about changes to the criminal records clean slate amendment bill?

The Minister’s been very happy to talk about changes that were then incorporated into the Supplementary Order Paper. I’m specifically interested, then, in Part 2 and those changes because the regulatory impact statement’s function—[Time expired]

I move, That the question be now put.

Thank you, Mr Chair. The Minister felt that she needed to school the Opposition in regards to Supplementary Order Papers (SOPs) or—actually, they were amendments to the SOP, because we can’t submit an SOP on an SOP. So I’d just like to remind the Minister of that as well.

But we are here because—as my colleague the Hon Louise Upston said—the process, in the Minister’s own tardiness, wasn’t taken care of. There was no opposition in the Social Services and Community Committee; it was a robust process for us heading towards that. There was no opposition to scopes of practice; we were in support of that. What concerned us was that we applied for an extension; the extension didn’t happen, so we thought, “Right, that’s fine. The Minister has a concern. She wants to get this through as quickly as possible into the sector.” We are now six months on. So I just want to put that on record, because the Minister felt she needed to address our so-called tardiness. But I’d like to say to the Minister that, actually, her tardiness is the reason we are here. In fact, this bill would have been done and dusted, all completed, and processed through to the third reading if it had not been this case. So I want to put that on record to the Minister. To the Minister—

CHAIRPERSON (Adrian Rurawhe): Order! Order! OK, I’m going to make a ruling. I’ve only been in the Chair for—this is the fourth speech—so less than 20 minutes and there’s been a lot of kōrero around process and things that are not related to Part 2 specifically. This is, actually, quite narrow, and I’m stating that to the Minister as well. Making a comment—I could have interrupted you at the time, but I’ve been sitting here thinking about that, the response about the regulatory impact statement: fine. But bringing other matters into it—and I’ve allowed the Hon Louise Upston to actually address that, which I’ve done. We can now have a constructive debate if we debate Part 2. So I’m asking the Hon Alfred Ngaro to debate Part 2.

Thank you, Mr Chair. So Part 2—in particular, I would like to put to the Minister, and it goes to the point around Part 2, clause 70, in regards to the “Amendment to Criminal Records (Clean Slate) Act 2004”. Now, the reasons why I’m raising this are that we know this is part of the omnibus process of the original bill, but, in particular, because the Minister has already stated that she has had conversations with those in the sector. In this part, in particular, we’d like to know: what has been the outcome of those conversations?

We have not been privy to them throughout a normal select committee process in which we wouldn’t have those questions. Now we have those questions. My question then to the Minister, in particular, is to ask: in consultation with those in the sector, what was some of the feedback in regards to Part 2, clause 70, “Amendment to Criminal Records (Clean Slate) Act 2004”—in particular, subclause (2), where it says this: “the Social Workers Registration Board is considering whether the eligible individual is a fit and proper person to be registered or to practise as a social worker under the Social Workers Registration Act 2003”.

That becomes important, because I have had those in the community who have talked about clean slate. Those who have had historical offences previously in the past, they’ve actually gone through a process, have actually had a moment in their lives when they were young, made mistakes in their lives, but have been considering and have been working—both in the community work, in youth work, and in others—towards a social work practice certificate, diploma, and degree. So this is a relevant issue for those in the community who have raised this issue.

I’d like to hear from the Minister: in the conversations that she was having—and if I take the bill itself, the Criminal Records (Clean Slate) Act, in Part 2 it talks about who is eligible—the conversations that relate to Part 2 in clause 70 are issues around rehabilitation. So the questions from the community are: the fact is that in section 7 of the Criminal Records (Clean Slate) Act, they talk about the amendments in this change; what were the considerations around rehabilitation so that the Social Workers Registration Board will now have that as part of its consideration?

The second issue will be around custodial sentences. We know that under the clean slate Act, if anyone is ineligible because they’ve had a custodial sentence—but there have been others who talked to me about community-based sentencing. So the concern is that those who have got historical offences, those who would have been eligible under the clean slate Act, they know that now, under this Part 2 of the bill—what will be the consideration for the Social Workers Registration Board? I’d like the Minister to be able to share with us those conversations, if any, or any of the concerns that may have been raised in this regards. It’s pertinent to those who are currently practitioners who are looking to move towards a qualification, but, more importantly, as this bill initiates a mandatory registration for those in social work practice. I believe that that’s not unreasonable for us to be able to ask these questions of the Minister.

Then, in regards to that, once we look at the criteria, then what would be the consequence? Will the Social Workers Registration Board, under this clean slate amendment bill, in Part 2, then take into consideration where there could be an eligible criteria where, potentially, they could work towards a form in which the recognition of their expertise could mean that they could still be eligible to be recognised as mandatory social workers—they are registered under this legislation for the purpose of this bill.

Those are the comments. They’re questions that are genuine. They’re raising this with the Minister. That’s opened up because the Minister has had these conversations outside of a select committee process. We as a committee have not had the privilege to be able to hear those concerns.

Mr Chair, just to clarify, because the Hon Alfred Ngaro and the Hon Louise Upston raised a similar point, which I’ll speak to very briefly, and that is with respect to views by the sector on the changes or amendments to the Criminal Records (Clean Slate) Act through Part 2 of this legislation. Can I say really clearly that I and my officials are not aware of any concerns raised about this particular part of the bill that we’re considering today.

Fantastic. Thank you, Mr Chair. I’m very much looking forward to this, which is, effectively, the new Part 2. I do acknowledge what the Minister indicated earlier, which is, effectively, a good chunk of this was Part 1. It’s been moved into this—it’s not a new Part 2; it’s a revision of a previous Part 2. However, what’s fairly important is there are a number of new sections, and I’d like to focus particularly on clause 8, which is introducing a new section 6AAA under the notion “Unregistered person must not claim to be [a] social worker”, which I suppose is the crux of a lot of the debate tonight. But the first issue, and it was not addressed in the previous section and it’s now arising again—in fact, it’s beginning to indicate the problems that I mentioned—talk once here again—

CHAIRPERSON (Adrian Rurawhe): I think that’s in Part 1.

No, I’m pretty sure it’s in—I do apologise. I’m looking at Part 2 here, “Registration, authorisation to practise …”. Happy to be corrected. It’s the Supplementary Order Paper (SOP).

CHAIRPERSON (Adrian Rurawhe): So what was that clause again, sorry?

So I’m looking at page 12 on the SOP, entitled Part 2, and it begins on page 11.

CHAIRPERSON (Adrian Rurawhe): Yes, that’s definitely in Part 1. If you have look in the top left-hand corner.

So we’ve got Part 2 in Part 1? Well, this is getting very confusing.

CHAIRPERSON (Adrian Rurawhe): Yes, that’s a new Part 2 in the principal Act.

Right. Easy enough. Well, actually, I think, Mr Chair, what this indicates is the fundamental problem which myself and others have been pointing out of a rushed process, an incredibly rushed process, which is now leading to, actually, not even ambiguous wording, but, actually, some members of the committee, and myself included, have been here a while and are going through a rushed SOP, clearly indicating a numbering system—and, actually, as someone who was speaking on Part 1, has now actually lost the right to speak on that. So moving now to the new Part 2, which is Part 2 of Part 2 but not Part 2 of Part 1—

💬 Hon Members: Ha, ha!

Would you like me to repeat that for you?

We’re having what are the consequential amendments to two other Acts, and the primary one, as has been indicated, is around the Criminal Records (Clean Slate) Act. I’d really appreciate if the Greens would take a call, because they have often been great champions, and if it’s going to be a clean slate, it must be a clean slate. We have here, and I would be quite supportive of the fact that those going into social work—that the clean slate, in effect, doesn’t fully apply; that, actually, if there’s been something in the background and it’s been swept aside, we need to know. As it’s indicated here, a new section 19(3)(d) needs to insert—actually, once again we’ve got a problem here in numbering, which I think is going to cause—in fact, that’s a question in itself.

We have a situation developing here in the new Part 2, where a rather confusing section is going to be developed. We’re going to have Part 2, clause 70, subclause (2), which seeks to then insert into, obviously, the existing section, section 19, subsection (3)(d), then paragraph (da)—I suppose why I’m drawing that out is that this is something incredibly, incredibly important, which is that the registration board has to consider “whether an individual is a fit and proper person to be registered”. So, as I say, when it comes to the clean slate Act, I think it’s prudent. I would welcome the Green Party to say whether they support that, because they’ve always been incredibly vocal proponents that once it’s been cleared, it shouldn’t be brought up again.

But, actually, my point that I was going to raise earlier on the Part 2 which wasn’t Part 2 is the definition again of “person”. We continue, and, hopefully, the Minister may respond this time—of what a person is. It is the question of whether they are a natural—

CHAIRPERSON (Adrian Rurawhe): The committee’s already accepted that. We’re now into Part 2.

We are, but we haven’t actually discussed the reason for “person”—the definition between whether they’re a natural or legal person. So whether a proper person, fit and proper—does that apply to what’s known as a natural person?

I move, That the question be now put.

Mr Chair, thank you very much. It’s a pleasure to continue this discussion on Part 2 of the Social Workers Registration Legislation Bill. I know it is a narrow part of the bill. We have debated the substance in Part 1 and we’re really left with, essentially, a page, and a page that, essentially, amends two broad Acts: the Health and Disability Commissioner Act of 1994 and also the Criminal Records (Clean Slate) Act of 2004. I do have some questions about clause 70, which deals with the Criminal Records (Clean Slate) Act of 2004. This section offers an amendment to section 19(3)(d) of the Act with respect to, essentially, making it so that it’s clear that the Social Workers Registration Board is considering whether the eligible individual is fit and proper to be registered as a social worker.

Now, what I see from this change is that, essentially, the individual must state if they have a criminal record to the Social Workers Registration Board, but I do have a question around the process by which they do that. We’ve talked about process quite at length, but I haven’t received an answer to my questions to the Minister around process—how they actually go about registration—

CHAIRPERSON (Adrian Rurawhe): I just want to remind the member again, and members of the Opposition, that we’re debating Part 2, not the process. Any questions that were asked in Part 1—the committee has already accepted Part 1. We’re now on to Part 2.

Mr Chair, I absolutely agree with you, and I am narrowing my discussion on Part 2, because, again, there are questions that I have about Part 2 that were not addressed in Part 1 around the Social Workers Registration Board and the extra funding and resource requirements in order to handle the extra applications. The Minister has not, in fact, answered my question around the resourcing requirements that we will see. In fact, if we’re asking, essentially, people to come to the registration board with any convictions that they have, what is the process by which they do that, and are there actually funding requirements for that? So I would appreciate that the Minister does take the time.

Again, we would have liked—and I would have liked, as a member of the Social Services and Community Committee—to have debated this bill and this Supplementary Order Paper (SOP) in more depth, but, unfortunately, we’re here, and this is why I think it’s really important that we discuss Part 2 of the bill. So I do want the Minister to just clarify the impact for the Social Workers Registration Board in terms of their funding and resource implications, but also the process, because it’s not clear to me how a social worker is actually required to disclose this—is this on an application? What if they’ve submitted their application and they get a criminal record after that—what do they need to do? What if they’re registered and they get a criminal record after they’ve been registered—are they actually required to go back to the registration board? It would be very important that the Minister answers these questions on record.

So they are the questions that I have lingering from Part 2. I’ve tried to, of course, keep the questions that I have narrowly focused. But, again, I want to reiterate that we would have liked to have had this discussion in the select committee, but, unfortunately, we’re here now because the Minister, again, is having—and it’s a lingering trait or quality from this Minister, to drop SOPs at the very last minute. So, Mr Chair, thank you.

I move, That the question be now put.