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

Members, we now come to further consideration of the Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill. I’ll remind members that they are able to participate remotely. If you are on Zoom and want to take a call, please type “call” in the chat. You should also use the chat if you want to raise a point of order. If we receive new tabled amendments, I will advise members so that they can refresh the House papers page to see the new amendment. Finally, it would be helpful for members to ask multiple questions, if they have them, of the member in charge of the bill during their call.

We are on Part 2. This is the debate on clauses 12 to 42, “Oversight of Oranga Tamariki system”. I will take the next call on Part 2.

Thank you, Mr Chair. I just would like to speak to, in this contribution, Supplementary Order Paper (SOP) 215 in my name that seeks to make an amendment to clause 16A, and I specifically want to speak a bit of a context to this, and I’ll acknowledge the author of the report that I’ve mentioned quite extensively in this debate, David King, one of the co-authors to Improving a System When Young Lives are at Stake, who wrote to me with a suggestion for an SOP based on information he had gained through an Official Information Act inquiry, trying to understand the independence that we’re hearing about of this organisation and what it meant for those who were drafting the bill.

What he found out through that Official Information Act inquiry that he received from the Public Service Commission—and I will note that what he received was a draft document. The final document is held by the Ministry of Social Development, who, as he wrote earlier this week, and I will quote, “is refusing to provide me with any information in a timely manner.” But what we do have in draft form clearly shows that the independence of the monitor is not what we would normally understand by the term “independence”. It is “appropriate independence which allows the monitor to work in a trusted manner with the Minister”. In public sector speak, that means the monitor doesn’t advise or advocate, as the report puts it, in favour of any changes to policy, only improvements to practice within current policy.

Now, this is a really, really critical point for the public, because there are such strong concerns around the practices and the policies of Oranga Tamariki. Since the initial policy work started on this piece of legislation, we’ve had a Waitangi Tribunal hearing, we’ve had a lot more submissions through the royal commission, we’ve had the Children’s Commissioner doing two very in-depth investigative reports, we’ve had the Ombudsman that has also had a really scathing report into the functioning of Oranga Tamariki, and there are very strong views that question whether it can be fixed as it is at the moment. So to hear that this is being set up to provide advice, accepting that we will not move from or challenge the existing policies, actually goes to the heart of our concern of needing to know: can this model be fixed? Many of us, actually, we’re not convinced that it can be fixed in those existing policy settings at the moment. The Waitangi Tribunal very clearly said that, actually, they were on the side of “No, it can’t.”, and that a Māori transitional authority needed to be set up to deliver for Māori, because harm had been caused, and disproportionate harm to Māori, by the Crown incursion on the rights of tino rangatiratanga over kāinga. That was done through this existing model.

So my SOP 215 makes an amendment to be able to just give us some more confidence that, actually, that monitor will have the ability to critique the Crown policy as well as providing increasing trust for the Government, which we’ve had so much debate and concern about. We’ve heard from the Minister earlier that this amendment isn’t necessary, and I’ve heard that, but this has come from somebody who knows legislation, who knows Government departments, who has said this is a provision that would give us a little bit more confidence that this could possibly have a degree of independence that we could have confidence in. I really encourage the Minister to consider it, because she’s told us she’s doing other things just to give us confidence, even though they’re not really needed. So why not this point?

We’ve discussed this, but I will go into a little bit more detail on this. I know that what the member is seeking is the assurance around independence, and I do understand that. I want to refer the member to clause 16A of Part 2, which is about the duty to act independently, which says “The Monitor must act independently when (a) carrying out their monitoring function under section 14; and (b) developing tools and monitoring approaches under section 16. (2) A Minister of the Crown must not direct the Monitor to stop carrying out an activity, or prevent the Monitor from carrying out an activity, that the Monitor considers is necessary to enable them to perform or exercise their functions, duties, or powers under this Act.”

The objectives are derived from the functions, so we don’t need to then specify the independence of the objectives. In many ways, it doesn’t make sense, given the strength of provision around the monitor’s requirement to act independently. With regard to the objectives, though, it’s very clear in clause 13(1) that the objectives of the monitor are to carry out objective, impartial, and evidence-based monitoring, and then it goes on. That, paired with the explicit wording in clause 16 of this part, absolutely—absolutely—can provide assurance that the independence is there.

Thank you. I just wonder if the Minister, then, could speak to the information, the points around the information, in the Official Information Act request that indicated that the independence and the monitoring was really meant to be within the scope of existing policy as opposed to critiquing the policy, which is—and this is where the public concern is had. We’ve seen the Children’s Commissioner speak out and challenge the institution and call for radical change because the policy settings are causing our children harm. And this is in our name, right? So we need to know—the public needs to know—that we are going to have somebody to stand up and do that. I know that the Minister might say, “Well, the Children’s Commissioner will still have the ability to advocate.”, but that will be advocated severed from the ability to shape the information that is being monitored—to be able to get the full range of information to be able to have the strongest possible advocacy. That’s a real concern for the public. We’re just not getting that this system is going to enable the truth to be told as opposed to providing a voice that will say how we can make this a little bit better and progress things, which is, I would argue, not in the fundamental interests of our children.

We’re going down the route about the difference between advocacy and monitoring again. It is important that we have objective monitoring. The Children’s Commission, or the Children and Young People’s Commission, will still have the power to take that information and to use it to advocate. One of the tensions between advocacy and monitoring is that advocacy can shape the monitoring information. It is not, then, objective. We need the advocate to be strong, but we need the monitoring to be objective, to provide the Government, the Children and Young People’s Commission, and also the public the information that they need. The advocate can then take that, and then the advocate can advocate on behalf of the children if they see something that is of concern to them. They can still undertake the level of inquiries that they have to date, too—for instance, the uplifts inquiry that the Children’s Commission in recent years has undertaken. No one is taking that power away. We’re deviating a little bit from exactly what’s in here, but I thought I would give the member a response to her question.

Just going back to that Official Information Act request and the report that I was speaking to yesterday, there’s a section in there on the ability to build and maintain the trust and confidence of the public. It states, “the ability to build and maintain the trust and confidence of the public, in particular Māori, it is important to ensure the Monitor’s findings are robust and well informed. If Māori do not trust or have confidence in the Monitor, it will be difficult for the Monitor to freely engage and present an accurate picture of how the system is impacting on Māori.” And I think it’s the same for all children: if we don’t have their trust, how can we guarantee that we’re going to get an accurate picture of how the system is working?

I still don’t think the Minister has presented an argument as to why this process could not be done under the commissioner in its current form. We’ve talked about the Independent Children’s Monitor being under the Ministry of Social Development (MSD) for a while now; how has that worked, has there been any findings on how well that has worked under MSD, and is there any particular reason why that could not have been transported into the children’s ministry not under error?

We really have traversed the form, and I have made it clear in this House that the decisions around form were a Cabinet decision; they are not a matter for this bill, let alone this part of this bill.

With regards to trust, I have already mentioned that clause 16A in Part 2 clearly outlines the independence that is required of the monitor, and so, without wanting to repeat myself, I can’t further explain it, because I’ve traversed that quite clearly.

I move, That the question be now put.

I’ve listened to this debate and it is getting repetitive in some areas. I won’t accept the closure motion at this stage, but if there’s any new discussion, then now is the time to bring it out.

Kia ora. Thank you, Mr Chair. I address the committee in speaking to Supplementary Order Paper (SOP) 232, which addresses a proposed amendment to clause 14, which is in direct regard to the monitoring of the Oranga Tamariki system. Clause 14: this is where “The function of the Monitor is to monitor the performance of the Oranga Tamariki system in the context of its interface with other systems.” And subclause (2) is “For the purposes of subsection (1),” which I have just read, “the function includes (without limitation)—”. The proposal, Mr Speaker and Minister, is, as is detailed in SOP 232, clause 14(2)(c), to insert where it says “assessing outcomes for children, young people, families, and whānau, and iwi who receive services or support through the Oranga Tamariki system, and changes in outcomes over time, with particular regard to Māori children and young people and their whānau.”—the request for the proposed amendment is also to include “disabled children and young people.”, because it’s well known that disabled children have particular special needs and are often overlooked—and to push to ensure that in this oversight bill, as an amendment, there is no oversight of addressing the particular and special needs of disabled children.

I also call on the invitation that was made earlier to raise multiple issues within the opportunity to stand and address the committee. So an additional matter to SOP 232, which I’ve just spoken to: yesterday, the Minister raised in the Chamber the importance of consultation with children and that had occurred. I’d invite the Minister to respond accordingly that there was a report prepared by her ministry, dated September 2018, titled Insights from Children and Young People that is relevant to the review of independent oversight of Oranga Tamariki and children’s issues. If the Minister would please explain or clarify who SV8 Consulting Ltd are, which was the group that conducted the engagement in July 2018 for the purposes of providing this report back to her ministry, because it’s been reported that they are an “expert” group in terms of engagement with children; and why only 29 young people of a total of 1.1 million under-18-year-olds—who make up 24 percent of New Zealand’s population—were consulted and that her ministry deemed that that was sufficient to report a representation of young people’s views under the ambit of the September 2018 report. It’s been challenged and put to the Minister, time and time again, the importance of inclusion of children’s and the young person’s voice within the detail of this legislation.

I addressed the committee yesterday on a proposed SOP to clause 16 that’s been dispensed with, placed aside. The response being “No need for the particular and specific inclusion of children and young person’s interests.” I invite the Minister to explain, in terms of her ministry’s consultation under “expert” consultancy agency SV8, why only 29 children’s views were taken into account when it has been well heard in this Chamber. The representative voice, which the Office of the Children’s Commission engages regularly with—VOYCE - Whakarongo Mai—was not included at any stage whatsoever, and that’s based on the information that they have provided to members in Opposition. Thank you, Mr Speaker.

With respect to the first point raised around the Treaty obligations in monitoring, they are Treaty obligations, and so they don’t extend—

💬 Harete Hipango: Point of order. Thank you. I didn’t address the Minister on any Treaty obligations, sir.

💬 DEPUTY SPEAKER: That’s not a point of order. It’s an opinion—you have to sit down—and a debating point. The Minister is addressing it, and so it’s rather disorderly to interrupt the Minister doing that.

Thank you, Mr Chair. There was mention of the Treaty obligations with regards to reference to the monitor, and I just want to respond to that member by saying that that would not be the place to make mention of disability, because of the fact that it is specifically about Treaty obligations. The member should know, at Part 3, she will see that there is specific mention around disabled children, and we can certainly traverse that when we get to that. And with regards to consultation, that is not specific to this actual section either. It’s not specific to this bill.

I move, That the question be now put.

I just want to speak a little bit more about a Supplementary Order Paper (SOP) in my name, SOP 195. It’s in regards to entering facilities. This amendment would grant the commission entry powers to Oranga Tamariki facilities, acting in response to a request or a complaint by or on behalf of a child or young person in order to strengthen its performance as an advocate. Now, I speak to this from the point of view of young people that have said they would like to know that when they are in a situation where they feel that something is not right within a facility—they don’t feel safe or they feel that there is a chance of something going wrong—their advocate would be able to come in and advocate on their behalf.

I appreciate the Minister has spoken to this and said that authorities should be called in that situation, and, yes, I do agree, but it’s also to do with trust, once again, with young people. They need to know the person coming to them is somebody they can trust. As a young person that has been let down by the system myself—and I’m speaking now not just as an MP but as a victim of this system, and I want my voice heard as well, because I feel that my voice and what I went through is being trounced on in this process also. So as a victim of the system and as a victim of the people that were meant to be there to protect me, that I called and begged for help—they did not help.

What is the incentive to ring those people again who never helped you in the first place? If you’re in a facility and you’re feeling unsafe and they send in the very people that have let you down before instead of a person that you trust will advocate on your behalf, how are we going to get an accurate picture of the safety of these young people within these facilities? Many times we have seen where these facilities have gone wrong, within the media. The commission just even recently, through monitoring and advocacy side by side, found an issue where children were being held in these facilities where they shouldn’t have been, and they advocated for this to change. That just shows having monitoring and advocacy side by side can work. Thank you, Minister.

💬 Hon Carmel Sepuloni: Mr Chair.

CHAIRPERSON (Greg O’Connor): Jan Logie.

Oh, sorry, Minister. Thank you, Mr Chair. I feel like I’ve been elevated suddenly. But thank you for this opportunity. I did want to speak a bit more on some of the specifics in my Supplementary Order Paper (SOP) 214 and to get the Minister’s response around the particular points. From the position of the Green Party, we don’t think that this bill can be fixed in terms of meeting our Tiriti obligations or giving public confidence, because of the process that’s been followed as well as the lack of independence from the State in terms of the monitoring. But we have put a lot of effort into trying to work out how we could actually strengthen this bill to help us meet the recommendations of the Waitangi Tribunal. So in our SOP 211, we’ve put forward the suggestion that when developing monitoring priorities, work programme, and monitoring approaches, the monitor must ensure that they’ve got the key priority—the need to support improved outcomes for children, young people, particular attention to the need to support improved outcomes for Māori children, young people. We’ve added, “and their whānau”, and to uphold the rights of Māori to tino rangatiratanga over kāinga, as guaranteed by Te Tiriti o Waitangi, the Treaty of Waitangi.

This is about trying to get the Crown to be acknowledging the Hauroa report, and those recommendations, of the fact that Māori do have tino rangatiratanga over kāinga. So, therefore, any child protection system - related legislation really should embed that, because we have not acknowledged that. I know that there’s a view that this is a constitutional issue and therefore the Government can’t go ahead on this. Actually, it’s about our understanding of Te Tiriti o Waitangi and how we embed that in legislation. It needs to be done legislation by legislation, consistent with those rulings, the Greens would argue.

I really want to, on that point, call back to some of the submissions that came through from the Hon Dame Tariana Turia, Dame Areta Koopu, Dame Iritana Tāwhiwhirangi, Merepeka Raukawa-Tait, and Lady Tureiti Moxon, where they were saying this bill creates new oversight, and considers problems and complaints after they’ve occurred. It’s tweaking, it’s talking about maintaining a system, and nothing in this bill gives mana rangatiratanga, and it relegates Māori to provider level.

This amendment would help shift that deeply problematic—and, we know, hugely harmful historically—dynamic. We also had that view confirmed by Waikato-Tainui, who had been consulted on this legislation, even though they said that, actually, the consultation did not engage in the content that’s in this legislation. But they said that this bill adds more cost and more administration and more State incursion into the role of iwi—because it increases monitoring of iwi activities as we devolve power—and that is really problematic. We heard that very clearly from the Māori Women’s Welfare League, as well as other submitters. So this is our attempt to address those concerns that came up in the Social Services and Community Committee, as well as the Waitangi Tribunal’s ruling.

Another of the amendments in our SOP is to also put that in for the duty of the Ombudsman—in relation to complaints and investigation—to require them to incorporate tikanga Māori approaches for their complaints and investigation processes, including the need to have regard to Te Tiriti o Waitangi, the Treaty of Waitangi, and the tikanga of whānau, whakapapa, and whanaungatanga. So I really—I really—just can’t understand why our legislation can’t reflect our fundamental constitutional relationship and acknowledge that right of tino rangatiratanga over kāinga.

I move, That the question be now put.

The question is that the Minister’s amendments to Part 2 set out on Supplementary Order Paper 209 be agreed to.

The question is that Jan Logie’s amendment to clause 13 set out on Supplementary Order Paper 211 be agreed to.

Amendment agreed to.

The result corrected after originally being announced as Ayes 85, Noes 33.

The question is that Harete Hipango’s amendment to clause 14 set out on Supplementary Order Paper 229 be agreed to.

The question is that Harete Hipango’s amendment to clause 14 set out on Supplementary Order Paper 232 be agreed to.

The question is that Harete Hipango’s amendments to clause 14 set out on Supplementary Order Paper 231 be agreed to.

The question is that Harete Hipango’s amendment to clause 14A set out on Supplementary Order Paper 226 be agreed to.

The question is that Harete Hipango’s amendments to clause 16 set out on Supplementary Order Paper 230 be agreed to.

The question is that Jan Logie’s amendment to clause 16A set out on Supplementary Order Paper 215 be agreed to.

The question is that Jan Logie’s amendments to Part 2 set out on Supplementary Order Paper 214 be agreed to.

Karen Chhour’s amendments to clause 27 replacing “or 24” with “24, or 25”, set out on Supplementary Order Paper 188, is out of order as being the same in substance as a previous amendment. The question is that Karen Chhour’s remaining amendment inserting clause 27(ca) set out on Supplementary Order Paper 188 be agreed to.

The question is that Karen Chhour’s amendments to clause 34 set out on Supplementary Order Paper 195 be agreed to.

Point of order. I want to refer to Jan Logie’s Supplementary Order Paper 211. I believe the New Zealand National Party voted 33 votes opposed to that. If that’s what the record shows, I seek leave for the National Party’s vote to be changed to 33 votes in favour.

Leave is sought. Is there any objection? There’s no objection. That can be amended. The result is that that is now unanimously agreed.

The question is that Harete Hipango’s amendments to clause 38 set out on Supplementary Order Paper 225 be agreed to.

The question is that Part 2 as amended stand part.