Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill

Members, we come now to further consideration of the Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill.

I don’t believe there’s anybody likely to wish to take a call, if they do, they know they write “call” in the chat. If we receive new tabled amendments, I’ll let members know so that they can refresh the House pages to see the new amendment. And finally, it would be helpful for members to ask multiple questions—the flow of the debate goes extremely well when that happens—if they have them of the member in charge during the call.

Part 2: this is the debate on clauses 12 to 42, “Oversight of Oranga Tamariki system”. Members, when we were last debating the bill, we were debating the question that Part 2 stand part.

As we resume the debate on Part 2 today, I wish to respond to some of the points that were raised at the end of the debate last night, given I didn’t have an opportunity to do so. There were a few matters raised by the National Party and the Green Party that I’d like to respond to this evening.

Louise Upston expressed concern that the monitor isn’t independent enough, that, perhaps, in her mind, it was sitting too close to the centre of power, and that its work would be subject to what she called political considerations. As I’ve previously made clear, the monitor will be a statutory officer with a duty in legislation to act independently. It will have the ability to initiate reviews of its own accord, and although Ministers will be able to ask the monitor to look into an issue, they cannot direct it not to.

Once the monitor completes its reports, the agencies they relate to must respond, and respond quickly, because our Supplementary Order Paper (SOP) 209 will substantially shorten the time frame they have to explain how they will address these matters of concern for our tamariki and rangatahi. The reports and responses must then be published by the monitor online and the reports tabled in the House. So the monitor will be free to investigate whichever systemic issues it sees fit, and the recommendations and the responses of the agencies to which they relate will be published, without any changes by Ministers or anyone else, for all to see.

Despite this, Jan Logie expressed her concern that having a monitor reporting on Government agencies, she felt, was like a junior chief executive critiquing a very powerful one in the same Public Service. I want to make it clear that the decision about where the monitor sits is actually not in the bill. It was a matter for Cabinet, and that matter was determined by Cabinet. I also want to make clear that the monitor is a statutory officer. It will be operationally autonomous from other departments, including the Education Review Office, in relation to its monitoring role, as well as acting as a trusted adviser to the Children and Young People’s Commission, the Government, and the public.

I wanted to also just share that the concept is not new within Government. The Government Statistician has their duties and independence outlined in legislation, fulfilling a trusted role in the provision of data to both Government and the public. The monitor is also a critical role in the Oranga Tamariki system, and one that is of great importance to the wellbeing of our tamariki and rangatahi.

I want to note, again, that our SOP has reduced the time agencies have to respond to reports by the monitor to increase the accountability of these agencies and the teeth of the monitor. The National Party had some conflicting views on independence. Unlike his colleagues in the Green Party, the member Christopher Penk expressed concerns that the monitor would be too independent. But I think perhaps the conflicting point made by National members actually goes to show that we may have struck the right balance on the independence of the monitor in this bill. Christopher Penk also worried about the requirement that the monitor produce a state of the Oranga Tamariki system report every three years, which he was concerned was too long to wait. I’m pleased to advise Mr Penk that that is just a minimum requirement for that particular report. But I did talk about the other reports that would be required much more regularly than that particular one. The monitor—again, I will just share—can also carry out additional reviews on anything relating to the delivery of services or support through the Oranga Tamariki system as set out in clause 25. And if a matter requires urgent attention, the Minister and chief executive can also request they carry out a review—clause 24.

I thought it would be worth reminding the committee that the Independent Children’s Monitor has actually already published four reports on its website, including its first full report on agency compliance with all the national care standards and related matters and regulations earlier this year. Before there was progress reported last night on this debate, Jan Logie discussed a report from public policy analysts which she brought up to support an argument that she had regarding her thoughts that we didn’t need to separate the monitoring and advocacy functions in the Oranga Tamariki system, and her concern that the different parts of the systems could inform and learn from each other and prevent—and Jan Logie had numerous points throughout the debate in relation to the separation of the monitoring and advocacy. I just want to point out that the redress report that has been received from the royal commission actually stated that they supported the separation of those functions to ensure that the monitoring could be done in a robust way. That is why the bill clearly sets out and separates the functions of each entity in the system to make it as simple as possible also for our tamariki and rangatahi, and avoid the trade-offs between advocacy and monitoring that may happen if they are performed by the same entity. This separation does not mean that no one will be working together or learning from each other; in fact, our SOP further clarifies in clause 9 our expectation that the entities work more closely together than ever before.

The bill also—and this is in relation to questions that were raised—provides for information to be shared between the commission, the monitor, and the ombudsman if “the sharing of information would minimise the burden on individuals and agencies”, or “the sharing of information would assist [the commission] the Monitor or an Ombudsman in the performance of each of their functions, duties, and powers.” And, absolutely, children and rangatahi are at the heart of that entire system.

Thank you very much, Madam Chair. May I start by saying that I don’t appreciate the Minister’s mischaracterisation of my interrogation of the legislation last night in the committee of the whole House stage. A diligent member of Parliament takes this opportunity to tease out issues in the legislation, and to represent me highlighting the fact that accountability and independence should be weighed in the balance—they’re competing considerations to some extent—seeking to reconcile them, inviting the Minister’s comment, and to misrepresent that as somehow arguing in favour of more or less independence than my colleagues, I find rather, well—

💬 Simeon Brown: Shameful.

I’ll just say irritating; we won’t go further than that.

As for the point regarding reports not needing to be made any more frequently than three years—and the Minister says, “Well, that’s the minimum requirement”. That’s my point. I pointed out that it was a minimum requirement; it could be as much as three years. Of course, it could be less. It could be three days, it could be three months, it could be three whatever—whatever intervals that might be used. I can’t think of any others, of course; I’ve gone general on it, but that’s the whole point. This is a very serious matter.

I presume the Minister agrees, and no doubt that she’s trying her best, not only to get most of the sector off-side but her best to actually do the right thing. I presume she’s trying to. I did presume, until such time as she actually doesn’t seem to take seriously reasonable questions about accountability mechanisms within the bill. This is the whole thing. The whole thing is about accountability. The whole thing is about transparency. Yes, independence is an important value, but so too is the need for those who are involved in the system, those who are not involved in the system, but would critique and monitor it, and, most importantly, those who are so deeply affected by the system as to have their rights and freedoms curtailed by the system. It’s important on all their behalf that we take these questions seriously, we ask these questions, we answer these questions, and we don’t belittle these questions.

So I will take the opportunity to ask some serious questions, in good faith, about some aspects of Part 2 that I think are interesting and important. I hope the Minister shares my view that they’re interesting and important, whatever substantive view she might have in terms of how those should be answered.

So my question is in relation to the role of the Ombudsman. We see in Subpart 2 of Part 2 that the purpose of the subpart is to provide the Ombudsman with additional duties and powers when dealing with matters that fall under the Ombudsmen Act 1975. These relate to services and support delivered by Oranga Tamariki—or OT as it’s commonly known—or care or custody providers. So that seems helpful, actually, just to throw a bouquet out there. It seems helpful that the Ombudsman, who is an officer of Parliament, who has a role to provide some accountability through this House, we know, effectively—I suppose one might say, on behalf of the House. I don’t know that I’ve framed it particularly well, but, roughly speaking, it’s a positive thing that we have someone who is part of the arrangements of the State but not part of the Government of the day, not part of the executive, even. It’s part of Parliament, which is technically separate, has got some accountability mechanism there.

So notwithstanding that that many people who have commented on the bill are dismayed, or at the very least questioning, but many are dismayed at the changing in responsibilities in relation to the Children’s Commissioner. This, at least, so far as it goes, might be said to add an element of accountability. So that’s fine. My question is, in terms of not only complaints and investigations that might be initiated by others, if the Minister sees a role for the Ombudsman in maybe initiating matters of inquiry. Of course, the Ombudsman has a role in relation to our prisons, so obviously a different kind of context, but at a level similar in the sense that people’s freedoms of movement and so on are being constrained by the State—pretty serious matter. So I just wonder if the Minister can explain how she would see circumstances in which the Ombudsman could actually initiate investigations into how OT is using its powers. I look forward to that. I think that would be helpful not only for the purpose of the committee, and I sense the Minister’s ready to answer that question, so I’ll simply resume my seat and say that I look forward to it.

Yes, and I will also mention that a number of complaints received from the Children’s Commission in recent years have been sent over to the Ombudsman because they do have the power and functions to be able to receive those complaints. Many of the complaints—and I’ve spoken to the Ombudsman about this—have been able to be resolved without getting to the point of inquiry. However, absolutely, if they are not able to be resolved easily, then they can be escalated to an inquiry. This is not a new function for the Ombudsman. However, the bill in front of us provides much greater clarity with regards to the Ombudsman, complaints, and his ability to be able to receive those.

Thank you, Madam Chair. I’ll, firstly, just respond and thank the Minister for addressing some of the points I made last night. I do find it a bit frustrating to get the response about the concern about the public sector positioning of this—to say that was a decision of Cabinet, it’s not in this bill—when, actually, the whole shape of this bill is formulated on the changing of the functions of the Children’s Commission—and will be the Children and Young People’s Commission—to sit alongside a monitor that sits within Government. That doesn’t feel entirely, I don’t know, open.

I also want to address the point the Minister made, to say that, actually, to have it within a department and a statutory office is not unique. I recognise that that point was addressed in Improving a System when Young Lives are at Stake, written by David King and Jonathan Boston, who pointed out that same point, that the Government Statistician, the Public Service Commissioner, and Commissioner of Inland Revenue are also all statutory officers. They go on to say, though, “However, the circumstances surrounding these positions are quite different. They are areas where constitutional norms and consensus have built up over time, to all but guarantee full independence.” Except they go on to say that the Public Service Commissioner could not be viewed in the same way, and, actually, there’s a very close relationship in that sense to the Minister.

I also want to address the point the Minister made about saying this was a recommendation of the royal commission and just express my real frustration in relation to that when, actually, the Royal Commission Forum, who have been observing those processes, wrote to the Government and to every member of the committee asking us to advocate, to pause this legislation until the royal commission finally reports, and noting that the interim report that the Minister is drawing on to make that comment—they’d only heard, like, about 20 percent of the evidence. They hadn’t even looked at any of the material in the Children’s Commission. They were only just identifying research gaps that they needed to try and fill. So to rely on that, in terms of justifying this legislation, feels very flimsy and problematic to me.

I would also like to ask the Minister, in terms of the monitor and some of the other critiques that have been raised about this: we hear the Minister saying that there will not be the ability for the Minister to take work from the monitor—I understand that—just to be able to give them work, but there’s no visible, at least, budget that goes with that. To me, that creates a real potential of actually saying “Here’s work, here’s work, here’s work.” that then means other things they’d planned fall off. Or, at the very least, it creates a tension for them in terms of their own independent programme.

Also, the up to three-yearly report on the state of Oranga Tamariki, which is similar, I would argue, to the reports that were done by Russell Wills, in terms of the Children’s Commission, that were hugely influential and important for us as a country, my understanding is that the content of that report is going to be defined by regulation. That is political. That is not independent. So I would like to hear the Minister address that point and tell me how independence is actually maintained in that context.

I also want to speak to the point where the Minister has previously said that they can’t support our Supplementary Order Paper to remove the clause to ensure that the monitor has an objective of supporting public trust and confidence in the Oranga Tamariki system. And I just re-emphasise that for many people, for myself, but many other people, that is a real point of concern. When we discussed this in the select committee, we were told that this has been a key objective for the bill since its inception, that the bill was borne out of reviews, due to reported failings of Oranga Tamariki system, and the resultant diminished public trust and confidence, so the system needs public trust and confidence in order to function. I ask the Minister: when everyone is saying, “Do not do this. We do not trust this proposal.”, how can she think that is going to build trust and that just telling the organisation that it has to deliver trust will do it?

Speaking to Part 2 of the bill and referring to the functions of the monitor again and the concern that the member has raised about the fact that we have allowed for the Government to be able to ask the monitor to undertake some work, I just want to refer to clause 24, that says, “The Monitor must carry out a review on any topic within their monitoring function at the request of the Minister responsible for the Monitor. However, a request under subsection 1 must not require the Monitor to stop carrying out any one or more of their monitoring activities currently under way or scheduled to begin in order to prioritise a review of the matter to which the request relates.” So no request from a Minister can override what is being asked of the monitor through the legislation.

Also, I want to give some justification to why I actually think that that’s really important. I actually think that Government after Government—and I won’t even just say this one; I will say previous Governments—have had concerns and have expressed their concerns about the Oranga Tamariki system. And if we’ve got a monitor in place, we want to be able to ask them to actually look into any areas that we think may be of concern or underperforming in some way, because I think, fundamentally, in this House, we all believe that we need an oversight system that works for those children.

So it is not imposing something that I think is unfair or unreasonable on the monitor. I think that, actually, collectively, we might want independent advice on areas we are genuinely concerned about—and I don’t even think that’s just us as a Government; I think the previous Government may have wanted the same thing as well.

But as I said, it can’t undercut what is required or override what is required of the monitor through the legislation. The member has asked about budget; that’s not something I can speak about with regards to the bill. And the member has asked about—trying to think what else was asked about—I think it was mostly to do with the monitor and the expectations around the monitor.

Oh, the member did just raise concerns about the royal commission and the report that will be due next year. It’s actually kind of related to Part 3—well, it’s definitely related to Part 3—because we actually put a Supplementary Order Paper up in that part that reduces the time frame for the need to report back on the system, with the purpose of really responding to some of the calls out there for us to reduce that period of time. But that is for discussion in Part 3, so I won’t continue to traverse that.

Thank you, Madam Chair. And we are addressing before the committee of the whole House Part 2 of the bill. Part 2 covers clauses 12 to 42. I’m just going to touch on—the Minister referenced to Part 3, and we’ll address it appropriately when we get there. But the time frames were issues that I reiterated at the select committee and was dispensed by officials and members from the Labour benches as not being significant to this. Child-centric is what I keep emphasising and reiterating.

On that note, coming back to Part 2, talking about the monitor’s responsibilities, I addressed and put before the committee of the whole House last night—last evening—Supplementary Order Paper (SOP) 230, it’s one of my SOPs, and that was to do with clause 16. And, again, the Minister, on advice, it would appear from observation, has been advised that that’s not relevant. I’m going to bring that SOP 230 up again—number 230.

I’ve heard the Minister talk about the role of the Independent Children’s Monitor, that there have been about four reports that have been filed thus far. It’s well known that the children’s monitor was established, the office and the appointment, in 2019. Here we are in 2022 and this bill—soon to be law, and it will go through undoubtedly—is about requiring what the functions and the duties are of the monitor. That’s three years or four years post the establishment of the monitor who’s put out four reports. I have one of those reports to hand, and I remind the Minister that the Independent Children’s Monitor has reported the importance of the children and young person’s voices, and I quote, “allowing them to have a voice regarding decisions made about them, particularly when that child is in care.” Further quote, “children will need to have a voice in the system”, not about the system mentioning and referring and looking at other organisations and the overview of the Independent Children’s Monitor, the Office of the Children’s Commissioner, soon to be board, in an advocacy role, and the Ombudsman in terms of investigating complaints. But there’s no specific reference to the positioning of children in the system. That’s what my clause, the Supplementary Order Paper 230 was precisely doing.

I reiterate, the bill in terms of the Independent Children’s Monitor’s tools and monitoring approaches, clause 16(2)(b) reads, “operate in a way that recognises the importance of children’s and young people’s families, whānau, hapū, iwi, and communities …”, doesn’t actually insert and include that it should operate in a way that recognise the importance of children and young people and their families, whānau, hapū, iwi, and communities. I reiterate that this is a direct recommendation coming out of the Office of the Children’s Commissioner, and for some reason has just been parked and dispensed with. Our children should be centre and central and pivotal to what the function of the Independent Children’s Monitor is.

So that’s why I say directly to the Minister, directly to the public who are listening in, and directly to the Office of the Children’s Commissioner: I’m advocating for the inclusion and the importance of children and young people’s voices being particularly factored in to what the tools and monitoring approaches are of the monitor.

Further to that, in the Supplementary Order Paper 209, clause 16(4) “In developing their tools and monitoring approaches, the Monitor must consult—(a) the chief executive of Oranga Tamariki: (b) the chief executive of services approved under … Oranga Tamariki Act … (c) the Commissioner of Police”. Where’s mention of consultation, engagement directly, with the children and the young people? So my proposed amendment, is that there be the insertion of a clause 16(4)(d) “care-experienced children and young people and their whānau.”

So the Independent Children’s Monitor report emphasises the necessity and the importance of that. And, again, I quote page 6 of the children monitor’s report, dated May 2020, “child-centric approaches. Considerable importance was put on placing tamariki within the context of their whānau.”

Thank you very much, Madam Chair. Some of what was brought up by the member was discussed last night, and we talked about the Government Supplementary Order Paper—a lot of what came up from that member was discussed last night. We talked about the Government Supplementary Order Paper and, I think, actually, one of the Green Party ones as well, which further enhances the need to ensure the best interests of children and that children are consulted.

The issue with the Supplementary Order Paper that that particular member has put up is that that member is asking us to consult with every single child in care.

💬 Harete Hipango: No.

Now, that is not practical—it is—and that would result in the slowest-moving system ever, which would not support or protect the children in the way that she is voicing that she would like to see them supported. The Independent Children’s Monitor, as it currently exists—and she is right; it has been around since 2019—has already been consulting with care-experienced children when developing their tools, but it is certainly not practical to consult with every single one.

Thank you, Madam Chair. Thank you for the opportunity to speak to this issue. During the select committee process, it was very clear how distraught some of the submitters were in regards to the independence of the monitor and having trust in the monitor that it did have independence. Now, I’d just like to speak to a report that was sent to the Minister on 16 April 2022, and this is a report I got from an Official Information Act request. The purpose of the report was to provide advice on specific independent provisions for the Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill and it set out four different options on how you were going to look at putting independence into this bill. I have a few questions around some of the things written in this report, and one of them was—it states “MSD had initially explored a more explicit independence provision when drafting the bill similar to the independence provided to the Chief Archivist under the Public Records Act 2005, as there was a clear recognition that the monitor needs to be perceived to be independent in order for public support in trust and transparency. However, the Public Service Commission was not supportive of including this explicit legislative independence provision of this nature.”

Would the Minister mind letting us know why they weren’t in support of having that kind of independence added into this bill?

I just want to reiterate that the form of the monitor was a decision by Cabinet and is actually not traversed in this bill at all. The decision was made, and now we have drafted a bill that is in front of us with the level of detail around how it will work, but it’s certainly not something that was in the bill.

Thank you, Madam Chair, for the opportunity to take a call on this piece of legislation. I want to raise a couple of questions in regards to the appointment process for the monitoring of the Oranga Tamariki system. I would like to ask around the appointment process for the independent monitor of Oranga Tamariki too. The question—I note from the debate—has been around the independence. I’d like to have the Minister outline how the independent monitor is going to be appointed and what the process of that will be, because I think it’s important that this committee understands how that process is going to be undertaken, who will be responsible for it, because, I think, in the interests of making sure that this committee appreciates the independence—if that is what it is to be—that process should be clearly articulated by the Minister.

I also just want to make a quick couple of questions in regards to clause 17 in regards to the Māori advisory group. I note that the monitor must appoint a Māori advisory group in order to support meaningful and effective engagement with Māori. I’d like to understand, again, the process by which the appointment process for that must take place. It says here in clause 17(2), “A person must not be appointed as a member of the Māori Advisory Group unless, in the opinion of the Monitor, the person is qualified for appointment, having regard to the person’s—(a) experience and knowledge of children’s and young people’s rights and issues in the context of the Oranga Tamariki system; and (b) experience and knowledge of tikanga Māori.” Now, obviously that has some criteria involved in that, but as we’ve seen from recent appointments to the ministerial advisory group on Oranga Tamariki that there have been a number of questions raised in relation to individuals and the fact that CVs were not required or disclosed as part of that process, which I think is absolutely shameful when we are talking about some of the most vulnerable New Zealanders.

💬 Harete Hipango: The checks were not done.

The checks were not done—the background checks were not done. I think it’s critically important that this committee has assurances that those checks will be undertaken in regards to that.

So this Government has, effectively, in that appointment process, I think, undermined confidence in Oranga Tamariki, and particularly in the Government’s ability to manage that system by failing our young people, by not actually doing that CV check and background check. I think it would be highly useful to the committee to have the Minister actually answer questions to ensure that the processes in place under this legislation in regards to the appointment will be more thorough. And I assume that it will probably be more thorough because it won’t be a ministerial appointment, ironically. That’s the real issue in regards to those appointments was actually it was the Minister who was in control and the Minister wanted to find a quick way through. But here I assume it will probably be more rigorous, but I think it’s important that we actually have that laid out very clearly for the committee to be able to understand. Thank you very much.

I just want to make clear that the bill—and particularly Part 2 of the bill that we’re looking at at the moment—does not seek to amend the Public Service Act with regards to the process for the appointment of chief executives. That stands. It’s the Public Service Act. It still remains with the Ombudsman, for instance, that it’s the Officers of Parliament Committee that takes that through its process, I think, from memory. And the Children’s Commissioner and the Chief Children’s Commissioner, as is in the bill, is still appointed via Cabinet. There’s no attempt to change any of the mechanisms there through this bill in any way, and nothing is stated in here that does that.

Members, I have time for one more quick call before I need to report progress. I will take Karen Chhour.

Thank you, Madam Chair. So just going back to this report, it states, “submissions at the select committee stage were largely opposed to the bill. A lack of independence of the Monitor was cited as one of the key reasons for not supporting the bill. Some submitters recommended the inclusion of a specific legislative independence provision in the bill, however the majority recommended that the Monitor would be established as a Crown entity to ensure independence from Ministers”—then goes on to say, “Cabinet decided that the Monitor would be a departmental agency hosted by Education Review Office (ERO). Advice on the home of the Monitor was addressed that if the Monitor was housed within ERO, the Monitor would face issues regarding the perception of ministerial influence.” I’m just wondering what kind of advice did you receive on that, and how damaging the perception of ministerial influence would be on public trust?

We looked at overseas examples of where they had split monitoring and advocacy, and the rationales for that—also the redress report that came through from the royal commission that felt that it was really important to differentiate between the two, and to keep them separate. We had to make a determination, as a Cabinet, when given the different options. We absolutely agreed that the monitor needed to have the level of independence that we have clearly articulated in the bill that we have in front of us. But we also thought, given our experience and sometimes the questions that we’ve had of Oranga Tamariki in general—and I know previous Governments and all parties in the House have—that we wanted the ability to be able to ask them to undertake work where we had concerns with the system. I think that that’s a really important part of what we’re able to do with the monitor, with the way in which we’d set it up. If it had a higher level of independence, we would have no ability to even be able to ask them to do any additional work that may be reflective of the concerns that we might have. So we as a Cabinet—again, it’s not in the bill—made that determination.

Members, the time has come for me to report progress.

House resumed.