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

This part sets out all matters related to the Children and Young People’s Commission. This includes the establishment of the commission; all functions, duties, and powers; and review of the Act. The notable change from the Government Supplementary Order Paper is reducing the time for that. The review of the Act must commence within three years—a change from five years.

Notable changes that were recommended by select committee include providing for a Chief Children’s Commissioner, explicitly providing for the commission to report to the Prime Minister, and requiring members of the board of the commission to have knowledge and understanding of the Treaty of Waitangi.

Thank you, Mr Chair. There are a few points to make in relation to this part of the bill, and I certainly will start by acknowledging the change that was proposed from the Social Services and Community Committee to have a chief commissioner put into the legislation. We’ve been told that it was possible anyway, but to actually ensure that there will be at all times a known face—at least one—for this organisation and to be able to hold that voice and make that connection to our young people and our children is a really important change as far as it goes.

I would say that I have been disappointed with these changes, which were not part of the primary consultation. While I understand there has been some consultation, the consultation with young people, to my knowledge, around this part of the bill has been very limited. The reality is that the Office of the Children’s Commissioner is their office—it’s the office of children and tamariki around this country—and they need to have confidence in that institution. I would have thought that any changes of this nature really should have been from a quite considerable consultation and a deep consultation.

I know that there were issues that came up at one point in discussion around diversity which possibly led to the idea of a board, and that’s absolutely something that the Greens are keen on, but this was not a proposal that was tested against other proposals. Really, it was hearing some ideas—or this is how it’s certainly come across to me—and then coming up with “This is a solution.”, as opposed to really working through with young people on what they wanted their organisation and their voice to be looking like. So on that foundation alone, the Green Party don’t support these changes.

There were very strong concerns raised at select committee around this, and I’ll raise just a couple. One from Starship Hospital during the select committee was saying that they “felt the change would stop any efforts to fix the system, which would largely be felt by whānau Māori.”, and the “Separation of these functions will disperse relevant information and processes and will create more layers of bureaucracy, delaying outcomes for tangata whenua/mana whenua, and their tamariki.”

Judge Eivers and other Children’s Commissioners—who know the workings of these agencies and the possibility of them, as opposed to the limitations that they’ve experienced through what I would describe as starvation funding for many years—have opposed these changes really strongly, and I do want to link this to the point that there were many other possible solutions. One of them could have been just—and I’m recognising that none of us are standing here and saying that, actually, we didn’t want to strengthen advocacy and the voice and monitoring for children. Nobody in this House or in the community is saying that. But people are saying that they wanted it to be independent and that there was trust in the Children’s Commissioner, whereas there isn’t trust in our other Government agencies.

There is a concern, so that is a clear point, but also funding—they’re running on $3 million a year. So of course the detail of monitoring for all of their functions on $3 million a year was not enough.

I remember raising this when National was in Government, and we heard from the then commissioner Russell Wills clearly telling us at the time that, as commissioner, he was having to prioritise their monitoring into specific areas because they did not have the resources to be able to cover the whole system, and that is on the previous National Government to be held accountable for that. He produced some very impressive reports at that time, and the Māori Women’s Welfare League in their submission clearly argued that we would not have got to the point of public awareness of the problems within our child protection system if it had not been for his monitoring and reports. However, they were constrained—and he admitted that—and the Children’s Commissioner has been in front of the royal commission apologising for those failures because of a lack of resourcing.

So how we get to the point from acknowledging that as a problem to removing those functions, in effect, by diminishing those functions and putting them in other places is a bit beyond me, and people are really a little bit hōhā over seeing so much money going to the monitor and the Ombudsman—I think it’s another $18 million—in the face of the fact that the Children’s Commissioner, who’s managed to do such a great job on $3 million. What they could have done with that money would have been truly impressive.

I just want to speak to some of the other possibilities that have been on the table that could have been possible. One of them was just doing that increase in funding and doing a consultation—like a proper consultation—with young people across the country to hear their voices about the agency and how they wanted it to represent them, or to even increase the independence of the Children’s Commissioner further by making it an Office of Parliament and to have them funded by Parliament rather than by the Government to remove that sense of them becoming a political football.

What I would say, from my perspective, is that under the National Government, they actively—actively—starved the agency of funding to be able to reduce their advocacy. We don’t want that happening, but this bill is not solving that problem, and, in fact, I would argue, as others did, that by the dismantling and separating out of functions it actually creates more risk in that sense. We could have implemented the Waitangi Tribunal’s recommendation for a Māori transition authority that would have had monitoring and accountability—not to the Crown—that would have enabled that independence as well as ensuring Te Tiriti obligations were met.

There’s a real concern that came through in terms of submissions about the sense of this view about advocacy and monitoring being in conflict, and we’ve heard the Minister articulate it as not being consistent with the Parliamentary Commissioner for the Environment—that is, they monitor and they advocate. The newly established Health and Disability Commissioner also has those dual functions, and the view of many submitters was that making that statement was actually saying that people will lose their functions if they advocate too strongly in a way that the Government doesn’t like what they’re saying.

This is a very strong concern, and I haven’t heard anything that allays my concern about that. Jonathan Boston made some quite strong statements in select committee—which I’m not going to repeat—that showed a very real concern of people who know the functioning of Government, which is that Government is in this instance silencing an advocate for children because it doesn’t fit with the Government’s agenda to maintain and tinker with the status quo, as opposed to delivering real transformation, and that they’re prioritising the trust of the public in the status quo over delivering for our children. That is being done through, I still say, a gutting of our commission.

I’m going to speak to the points that were made by the member, but I will point out the ones that are relevant to this part and the ones that are broader.

The point around the form and the ask, I guess, that was made by the member Jan Logie to consider that the Children’s Commissioner become an Officer of Parliament needs to be responded to. Officers of Parliament are not allowed to be advocates. They have to provide objective information, and it is explicitly stated in their roles that they are not able to be advocates, so we would not want the Children’s Commissioner to be an Officer of Parliament.

They have maintained their absolute independence through this legislation, the same independence that they had prior to us bringing this bill to the House. The one thing I will say that is one of the things that has changed is that they now have more extensive powers to get information or to require information than what the Children’s Commissioner was able to gather before, and that is to bolster what informs the advocacy of the Children and Young People’s Commission.

The member asked about consultation around the system. Again, that’s perhaps traversing slightly beyond what I am meant to here, but I will respond to it. When the consultation occurred with the Beattie report and in the lead-up to the Independent Children’s Monitor being established, it was consultation about the whole system that was in place, which, of course, is what we’re talking about today: the monitoring, the advocacy, and the complaints and investigation function. So all of that was traversed, and children were consulted during that process.

One of the things that came out loud and clear was that children wanted diversity in the advocacy that they were able to access, and what we’ve done with the Children and Young People’s Commission is to bolster the advocacy by requiring a governance board that must have people on it who—and this is referring to clause 92, “Experience and knowledge of board members”, in Part 5. It states, “(1) The Commission must have, on a collective basis, among its board members—(a) experience and knowledge of children’s and young people’s rights and issues; and (aa) knowledge and understanding of te Tiriti o Waitangi … and (b) the required skills and leadership expertise to reflect the needs of children and young people of interest to the Commission.” So it is actually bolstering the representation that will be able to inform the advocacy.

This is so important. The previous Children’s Commissioner Judge Becroft actually was so concerned about the need to have, particularly, Māori advocacy present that he created a position, which was the assistant Children’s Commissioner for Māori. We’re going beyond that with what we are proposing here.

He recognised that there was a lack of diversity. Despite the fact that our Children’s Commissioners have been amazing advocates for children—and I say that about them wholeheartedly—when we reflect back on the Children’s Commissioners that we have appointed in this country, seven out of nine of them were Pākehā men. Now, that is in no way a criticism, but that is a reflection of the lack of thought that went into diversity in the Children’s Commissioner for the representation of children, the vast majority of whom have always been Māori children, with an overrepresentation of disabled children.

So the governance board is in no way taking away from the role of the Children’s Commissioner, depleting its powers, or undermining the role of a chief Children’s Commissioner. It is extending its ability to advocate effectively for the children that end up in the care system.

Thank you very much, Mr Chair. This might be my final chance, at least for now, to comment, and I congratulate you, Mr O’Connor on your current elevation to the role of Chair. I won’t do so at length—I appreciate that the debate has to move on—but as a fellow member of the parliamentary cricket team, I thought it might be helpful for you to consider that if members are speaking outside the scope of the bill, then a “wide” might be appropriate. If you don’t accept a point of order, I suppose you’d have to say “that’s a no-ball”, and, finally, if any more of us are sent from the Chamber, then that’s obviously a dismissal.

CHAIRPERSON (Greg O’Connor): I’ll be very wary of bouncers, actually.

Very good. Thank you for that guidance, Mr Chair. I’ll try to avoid imparting too much spin.

Clause 95, in Part 5, notes that there’s to be the appointment of a judge to the commission, so I just wonder if the Minister can tell us—I appreciate that it’s a fairly arcane point and she might not know; that’s fine—whether the judge and their actions and contribution to this process would be subject to the Judicial Conduct Commissioner arrangement. Ordinarily, of course, a judge performing their duties in a normal courtroom setting could be the subject of a complaint in terms of their conduct, and I don’t know if that would apply to the role they would do as part of this regime, because we see that for all purposes the judge’s service as a board member is taken to be service as a judge. So I’m curious to know, but I’m comfortable if the Minister is unable to answer.

It’s explicitly stated in clause 95, in Part 5 of the bill. Clause 95(2) states that “For all purposes, the Judge’s service as a board member is taken to be service as a Judge.”

Thank you, Mr Chair. I just want to just make note of, once again, my Supplementary Order Paper 189; it’s inserting clause 118 to make sure the review is commenced “no later than 6 months after the delivery to the Minister of the report of the Royal Commission of Inquiry into Abuse in Care and must be completed no later than 12 months after its commencement.” It’s very similar to what I was speaking to in regards to the last part of this bill. It’s just giving assurances to young people and to survivors of abuse in State care that we actually take that seriously, and we are going to make sure that the recommendations are taken into consideration.

Thank you, Mr Chair. I’m almost certain—in fact, I’m quite confident—that those members of the public listening in to this debate who have worked in the specialised area of child welfare sector care, and also those members who are part of the current Office of the Children’s Commissioner, would find that not only has this bill—from the time that it was introduced to the House—a sense of foreboding but an attitude of “Government knows better than anybody else”, anybody who has dedicated their professional and their personal lives to this, and the submissions that have been made to the Social Services and Community Committee have been disregarded almost in totality.

So this part of the bill, Part 5, is comprised of clauses 82 to 122. Clause 83, “Purpose of this Part” is “to establish the Children and Young People’s Commission”. I put a proposal to the House that actually it’s to vanquish truth to power with the decommissioning of the current Office of the Children’s Commissioner. I say that because the truth to power is that the Office, despite its inadequate, deficient resourcing, for whatever reason, despite the pleas for additional resourcing, with submissions before this Government in select committee, the decision had been made back in 2019 to reroute that funding to the appointment of the Independent Children’s Monitor. It had been rerouted in resourcing, prioritising, and bolstering the function, the role, and the purpose of the Office of the Ombudsmen, all in a staged transition to the decommissioning of the current Office of the Children’s Commissioner and the Children’s Commissioner, and vanquishing that truth to power. By now, fleshing out and proposing—and it is a done deal; always was, right from the first day that this came before select committee. I knew full well when I heard the advice and the pushback on the proposals and the recommendations from those in the public, in this specialised sector of child welfare and advocacy, from those of us who have worked in the sector too, to be told we don’t know much really, and, frankly, the Government knows better.

Coming back to the purpose of this part. Clause 83 says, “to establish the Children and Young People’s Commission to promote and advance the rights, interests, and participation of children and young people”. Well, as has been well heard in this debate, the voices, the views, the input of our children and young people through their specialised advocacy groups, for example, VOYCE - Whakarongo Mai, all of whom the select committee and those of us in Opposition have engaged, met, listened—not just heard; listened to, and taken to heart, heeding what their life experience is in State welfare care. So the Government has seen fit to disband that very important representative advocate voice and face, the Office of the Children’s Commissioner, by establishing a board. The State—the Government—knows best, and is telling, again, that specialised sector and the children in lived care experience and, also, those who are still giving evidence before the royal commission of inquiry, that the State, the Government, the Minister know best and they will disestablish truth to power by the appointment of a commission board.

I heard the Minister talk about the importance of experience and diversity, and, actually, the experience and diversity is fully representative in the current Commissioner for Children, Judge Frances Eivers, who is whakapapa Māori and whakapapa tauiwi.

💬 Hon Carmel Sepuloni: Yes. We appointed her.

Yes. It’s known that Judge Eivers was appointed by this Government. But it’s also known that Judge Eivers put on notice that this bill was coming before the House, because—

💬 Hon Member: She was.

—and if that’s the case, Judge Eivers hasn’t had the opportunity to speak and present that publicly because of a compromised position. But it’s well known that those persons who have advocated in this sector and given a lifetime’s service—former Commissioner for Children Judge Becroft, former Commissioner for Children Russell Wills, and others, and it’s going to be very interesting when this gets signed off with Royal assent.

Thank you, Mr Chair. I wanted specifically to speak to one of the provisions in our Supplementary Order Paper in a minute, but I’m also keen to hear from the Minister, to address the points in the Auckland University Aotearoa New Zealand Centre for Indigenous Peoples and the Law report, Time to Taihoa, around this provision in the bill, that was saying that it breaches Te Tiriti and the Declaration on the Rights of Indigenous Peoples in the following ways”: that “It fails to recognise Māori tino rangatiratanga over kāinga, which includes the right to oversee and monitor that the rights of tamariki Māori are respected and upheld.” It said that “Māori should have participated in [the] decision-making on whether the Office of the Children’s Commissioner should be reconfigured and, if so, what form any new body … should take, and how it should be governed.” And that the bill fails to “explicitly state that Māori must be represented on the proposed Children’s Commission’s Board.” and I’ll get into that more, and that it “provides that a nominations panel and the responsible Minister have the power to decide who will represent Māori on the … Children’s Commission. In line with te Tiriti and the … Declaration, Māori must decide who will represent them”, and that it “fails to provide the Children’s Commission with any monitoring or complaints oversight functions, both generally and in relation to Oranga Tamariki.” And “Considering the disparity faced by tamariki Māori and the extent to which their rights as tangata whenua, te Tiriti partners … are violated … essential that … [the commissioner] as … New Zealand’s national child rights institution, is independent and effective and has all the necessary powers and functions to monitor, investigate …, and promote and protect children’s rights in line with international standards.”

I’m interested in the response to those points, but I would like to get into a little bit more our suggested amendment to have at least half of the board members have experience and knowledge of tikanga Māori and whakapa Māori. There was a very strong support for this that came out through the select committee process. I acknowledge that this clause has been strengthened slightly through the select committee process, but it does not include that requirement to whakapapa Māori. Some of the advice that we were given was that it might be discriminatory to do so, so we sought advice as a committee from the Human Rights Commission on that point and their advice was really clear: that it would not be and that, actually, it was consistent with the guarantees of partnership, active protection, and equity under Te Tiriti o Waitangi, and that rationale is further supported and affirmed by the rights, standards, and obligations outlined in the UN Declaration on the Rights of Indigenous Peoples. And the Waitangi Tribunal’s recent report emphasised that Māori must lead the transformation of Oranga Tamariki and it is their view that this leadership role must extend to the oversight of the agency and the composition of the Children and Young People’s Commission governing board. The commission further noted that there were also strong grounds for including whakapapa Māori around special measures around the New Zealand Bill of Rights Act (BORA), let alone Te Tiriti obligations, saying that under the New Zealand Bill of Rights Act they’re required to address significant inequalities for tamariki Māori and measures to achieve equality are provided for under the BORA and under international human rights law.

So I’m very concerned that there’s a view that actually providing explicitly for whakapapa Māori, in terms of our governing arrangements of the commission, but more generally, is somehow problematic when I think that’s really at the very foundations and heart of our country to enable that, and considering the history of harm, the Green Party would argue there should be a duty for that.

I move, That the question be now put.

Thank you, Mr Chair. I just want to speak to Part 5 as a whole—replacing the Children’s Commissioner. I have a huge fear that the Children’s Commissioner, who has built up a brand of trust within the community, with our youth, within organisations, is now having that trust factor taken away. Whether the Minister feels this is true or not, it’s perception from young people that matters the most, and young people have expressed huge concern that youth are going to fall through the cracks in this new scheme where we are separating monitoring, advocacy, and oversight. It’s been stated by quite a few people who have knowledge from the ground that young people need a simple system so that they know where to go, what’s going to happen, and the processes. This just seems to have complicated the issue for young people more. Many times the Minister has said the problem is they just don’t understand or we don’t understand—it’s a misunderstanding. If it is that complicated that even people who have years of experience with legislation and with writing policy—the Minister is saying they just misunderstand—how are our youth supposed to understand this?

I move, That the question be now put.

Thank you, Mr Chair. It’s a question to the Minister in terms of having spoken to clause 95, “Appointment of Judge to Commission”. Minister, if you are able to take advice, perhaps, and give clarity to why we’re seeking specifically the appointment of a judge to the commission. Is it because the current Children’s Commissioner is a judge, and to make room for the Children’s Commissioner, who is now going in as a result of an amendment to this bill that has been proposed, as a chair?

So I directed the question to the Minister to clarify that, because I do have it on authority that judges are unlikely to be given permission to apply or sit on a Crown entity in that capacity whilst they’re serving as a presiding judge—so they’re unlikely to be given permission to apply or sit on a Crown entity board as a part-time board member due to constitutional conflict of interest issues. As I say, I do have that on good authority.

So I’m interested as to how this clause came to be in terms of appointment of a judge to the commission when the presiding or the current Children’s Commissioner is a judge, not giving service quite at this time as a judge—one day may go back to that position of service—but also is a person, as I referenced earlier, as have been a number of people, who comes from lived experience. As is well known, Judge Eivers was a specialist child welfare Family Court lawyer, advocate, representative in other sectors too—representing, advocating for our children and young people as a specialist lawyer—before appointment to the Family Court bench, giving approximately 13-14 years’ service in that capacity before her appointment as Children’s Commissioner.

So clarity around clause 95 and some of those potential constitutional conflicts of interest and how that’s to be addressed.

Briefly, to this one, there’s no expectation through the legislation that the person appointed to the Chief Children’s Commissioner role needs to be a judge. The provisions in this bill are carried over from the other Children’s Commissioner legislation. There’s nothing new in this. There have to be provisions that allow for alignment between any legislation where judges may have some kind of connection, and that is it.

Thank you. This will be a fairly brief contribution—the Minister might be relieved—but I guess it’s to the point around the functions and investigations and the removal of that to the Ombudsman. We’ve heard from the Minister previously about the fact that the Children’s Commissioner actually does that already. They give the complaints through to the Ombudsman. And I think the Minister’s said in an answer to a question in the House that there’d been 78 complaints referred to the commissioner in recent years. I wanted to know whether the Minister would take this opportunity in the committee in terms of acknowledging that those figures conflicted with the material in an Official Information Act request that said actually only 26 cases have been referred over the last 12 years and that the Children’s Commissioner has provided evidence to the committee about how quite often when people come to them with complaints, they engage and they seek resolution early, as does the Ombudsman but that they are set up in terms of the focus of their systems is around child-friendliness and engagement.

There’s now going to be a huge amount of resource and effort that is going into trying to create that expertise within the Ombudsman because they’ve acknowledged they don’t have it. And that really feels a bit wasteful when we could have just put more resourcing into the Children’s Commissioner to enable all of that skill to be used in its fullest extent, and for that information that came from those complaints to inform their work much more broadly as an organisation. So that is my contribution. I’m interested in the Minister’s answer.

Thank you, Madam Chair. I’m referring to the Minister’s Supplementary Order Paper (SOP) 209 with the multiple proposed amendments, some 10 initially, which are more substantive amendments. Then, on the face—I haven’t done a specific count—are the minor and technical changes which traverse the entire scope of the bill, not just Part 5.

So, Minister, a question: why is it that towards the end when we get to the committee of the whole House at least 10 substantive amendments have been proposed to Part 5—at this point in time when advice has been given at select committee and your members of Parliament of the Labour Party did not in fact take heed but the Minister has at the eleventh hour? Could the Minister please just clarify that? I think the public is probably due an explanation when they are the ones who have made their submissions at the earlier stage and the anguish that they’ve been put through. And finally, Minister, it’s acknowledged that it’s been taken heed but why the delay?

I move, That the question be now put.

Thank you for that. I’m going to just hear some more contributions. I’m very aware that Part 2 contains a number of Supplementary Order Papers (SOPs). I’m also aware that this part began its debate at 11.52, so with all those things in mind, I will just see where we go. I’ll be looking for relevance and addressing SOPs and making sure that we’re not going over old ground.

💬 Hon Carmel Sepuloni: Do you know we’re on Part 5? You said Part 2.

Part 5—yeah, Part 5. Thank you. That was a bit unorthodox, but the message got through. Thank you. It’s obviously been a long morning. Right—easy. The question is that the Minister’s amendments to Part 5 set out on Supplementary Order Paper 209 be agreed to.

The question is that Jan Logie’s amendments to Part 5 set out on Supplementary Order Paper 214 be agreed to.

Karen Chhour’s amendment to clause 93 set out on Supplementary Order Paper 194 is out of order as being inconsistent with a previous decision of the committee.

The question is that Karen Chhour’s remaining amendments to Part 5 set out on Supplementary Order Paper 194 be agreed to.

The question is that Karen Chhour’s amendment to clause 94 set out on Supplementary Order Paper 190 be agreed to.

The question is that Karen Chhour’s amendment inserting new clause 102A set out on Supplementary Order Paper 195 be agreed to.

Karen Chhour’s amendment to clause 118 set out on Supplementary Order Paper 189 is out of order as being inconsistent with a previous decision of the committee. The question is that Part 5 as amended stand part.