Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill

Tēnā koe e te Heamana. Thank you, Mr Chair. I do just want to ask the Minister to answer the questions that I had asked her when we were last debating this committee stage, and that was particularly around the situation where we have seen in the military-style academy pilot 2.0 that two rangatahi voluntarily withdrew from the in-residence component of the programme. Now, my understanding and my reading of the legislation, and I may not be understanding it correctly, is I understand that rangatahi will no longer be able to voluntarily withdraw from the military-style academy. Now, I understand in the situation regarding these two rangatahi that assaults had occurred.

I had questions for the Minister about that particular situation that gave rise to young people seeking to withdraw from the in-residence component of the military-style academy 2.0. I want the Minister to point me to where in this proposed legislation there is the ability for young people who may have experienced assaults in the in-residence component of a military-style academy to be able to withdraw themselves from the military-style academy, to withdraw themselves from a space of abuse, whether that is rangatahi on rangatahi or whether that is rangatahi and kaimahi—staff members. In those sorts of situations, can the Minister point me to where in the legislation a young person is going to be able to withdraw from a military-style academy, or is it the fact that there is no ability for them to seek to remove themselves from the residence in which they are experiencing abuse, like assaults, like those that I have described, which I understand did occur in this latest 2.0 military-style academy?

I would just like to get answers from the Minister on those questions that I have asked previously, and then, once I have those, I might have further questions from her answers. Then I will move on to the next letter in new section 320, as you have directed.

The answer to the question of whether a young person can withdraw: these young people are actually on custodial sentences, so it’s not up to us to make the decision around custodial sentences. They won’t be able to opt out. Only a Youth Court can cancel the military-style academy order.

Thank you, Mr Chair. Can the Minister for Children please point out to me where in the legislation a young person is able to initiate that and get that before a court to make a decision on their circumstances, in situations where they may have been subjected to abuse and assault, as we have seen with two participants in the current military-style academy?

Thank you, Mr Chair, and obviously my colleague Willow-Jean Prime’s comments are pretty apposite, given recent news that there has been abuse in military-style academies, including walking the line, where young people have been abused by their peers under the observation of kaimahi, which is a hugely troubling factor.

I want to return, though, if I may, to the tabled amendments we have. They’ve been very carefully gone through, and the last amendment we considered was one that was noted as lodged on 5 August at 7.05.33; so I’ll return to the next one, which is time-stamped 7.05.34. As is my wont, I’m a bit more focused on some of the technical aspects than my colleague Willow-Jean Prime. This paper suggests that subsection (6) of new section 320O will be removed. One of the concerns I have is that I think it’s really easy to make these sweeping reforms and have a whole lot of rules which are convenient without paying too much attention to exactly how they work in terms of human rights. The former Chief Children’s Commissioner would be a huge advocate for making sure that the rights of children in situations like with these youth offender orders also comply with basic human rights.

The difficulty I have is that we’ve got a young serious offender declaration which has expired under new section 320O, but it can be extended on the basis that there are other matters which are pending. Now, this actually cuts across a presumption—essentially, a presumption of innocence—because, putting bail aside and so on, you wouldn’t keep someone incarcerated or you wouldn’t keep someone under orders simply because they have charges pending, and neither should you keep a young person under a particular framework of supervision, and what have you, simply because there are other matters which are pending that have not been proven.

In the amendment that has been proposed by Willow-Jean Prime, it suggests there that that clause should simply be deleted and that there’s no real argument for a young serious offender order to remain in force after its expiry, before the necessary essential proofs or admissions have occurred to show that it is warranted to stay in force. It’s important, of course, because you’ve got a young serious offender order which has run its course. They are, as they should be—I mean, we don’t agree with them in principle—time limited; they are time bound. So it’s run its course, it’s come to its end, and then there is an allegation that the young person has engaged in troubling conduct again, but it hasn’t been proved, and yet there are these quite serious orders which are significant constraints on the liberties of the young person, and, essentially, they’re being extended not on the basis of admitted conduct or proven conduct but on charged conduct. Therefore, it’s quite right that the amendment suggests that new section 320O(6) be deleted.

Minister, we’ve spent some time debating various amendments, and I hope that you will have a reasoned and rational thing to say rather than standing up and simply saying, “I’ve looked at this. The Act says this. We’re not going to do it.”, because the whole idea of the committee stage is that we have an interchange, an argument as a committee, where we have a discussion rather than me seeking to persuade you and you simply standing up and saying no. I’m very hopeful that, in the last part of this committee stage, you’ll be able to give some really good arguments as to the position you’ll take on that tabled amendment.

I do not support your amendment. The bill already provides, in new section 320O(6), that a young person is not treated as a serious offender if the declaration has expired while awaiting the hearing for an extension. In addition, all specific young serious offender orders will be suspended for this period. Therefore, the amendment is not necessary.

Mr Chair, thank you. Would the Minister for Children like to answer my questions, as well? No? Hmm, interesting. I do expect the Minister to give me the answer for the situation where young people have been abused or are being assaulted in the military-style academy. I want her to point to where in the legislation a young person is able to get out of that situation. Can they apply for it? Can the chief executive apply for it? Who is looking out for this young person, or are they just stuck in this place of abuse?

We have seen reports in the media recently about yet more instances of harm occurring in youth justice facilities. A concern that many have is that these facilities are the very places that this type of harm occurred in the past. The Minister has said that it isn’t occurring now, and yet it is occurring now and could occur again in the future. My concern is about how a young person takes themselves out of that situation. In the royal commission of inquiry into abuse in State care, many of those people said that they would run away from the harm and abuse that was occurring in boys’ homes and care and protection homes and military boot camps, simply to be returned back to where that abuse was occurring.

Minister, this is not a hypothetical situation that I’m putting to you; it is a real situation. It has occurred historically, and there are very real concerns that it will occur again. It has also occurred in this latest military-style academy 2.0. I do want an answer to that section of those questions. I do not want the Minister to continue ignoring that.

Maybe if that member showed a little bit of respect, she’d get a respectful answer.

💬 Hon Willow-Jean Prime: Is that your answer?

CHAIRPERSON (Teanau Tuiono): No, no, wait—I want people to have those discussions, but they will go through the Chair. I don’t want interchanges between members in the Chamber, or even between the Minister and members. So if questions are going to be asked, you’re going to do them through me.

Thank you, Mr Chair. I don’t understand what was disrespectful at all about the very reasonable questions that I have been asking the Minister. So could the Minister please answer those questions?

Thank you, Mr Chair. My questions are related to new section 320P, “Term of YSO declaration may be reduced”, in clause 4.

CHAIRPERSON (Teanau Tuiono): What was that section again, sorry?

New section 320P, which we haven’t canvassed yet. My questions are specifically around when that application can be made, and this new section talks about being able to make an application to reduce that. However, one of the questions I have for the Minister is about how she and her officials determine that only one occasion would be permitted to reduce that declaration. Is that something that’s consistent across other pieces of legislation or other declarations that might exist within the criminal justice system, and did she or her officials consider extending that one occasion beyond that?

I just think that one occasion is quite restrictive. If something goes wrong during that application, if information has not been able to be sought in a timely manner or if changes happen with that young person’s lawyer or legal team or support team around them and something leads to them making mistakes on that application, it just concerns me quite a bit that they’ve only got that one occasion to get that right. I’m really keen to understand what the rationale of the Minister and her officials is to be providing for only that one occasion. Also, I’d like to know why there are potentially those discrepancies between one occasion after the young serious offender (YSO) declaration has been in force for 12 months, then 18 months, and then 12 months on one further occasion. I’m keen to understand that rationale a little bit more.

Staying on new section 320P, I want to go down to subsection (4), which talks about an application being made and needing to be served on all of the people specified in subsection (1), as well as the Commissioner of Police. I’m just interested to understand it. That feels a little bit heavy-handed, and I’m keen to understand whether that is something that the police have capacity to oversee and be able to respond to those requests for reducing that time.

The other question I have is related to subsection (6) of that new section, which states that “The court may grant an application and make an order reducing the term of a YSO declaration if the court is satisfied that—”, and it goes on. I’m really interested in this point around there being a low risk that the offender will reoffend, and I’m interested in the criteria and what kinds of examples might be provided to show that a young person may not reoffend. What kind of criteria could the court take into account as an indication that there is a low risk that the young person will reoffend?

The other part of it is just below that, at subsection (6)(b), which says, “the YSO declaration is not required to promote the offender’s compliance with orders made by the court.” I’m interested to know how in the first place the YSO declaration promotes compliance with orders made by the court, because when we were hearing submissions on this bill, quite a few of the law groups—whether that’s the Law Society or the law associations—made the point that the YSO declaration in and of itself doesn’t provide any kind of effective legal or administrative advantages within the legal system. So I’m keen to understand how it is that that declaration would promote compliance with those orders, and also what could be the hypothetical situation in which a YSO declaration isn’t required to promote compliance with those orders made by the court?

I will just wait for some information to come my way to answer, because there’s quite a bit in those questions. But in regard to whether a young person can apply to cancel the military-style academy (MSA) order, a young person is able to apply to the Youth Court for the MSA order to be cancelled on compassionate grounds only, and this is clearly provided for in new section 320ZC in clause 40 of the bill.

Thank you, Mr Chair. Can the Minister please give us an example of what those compassionate grounds are, and would that extend to situations like what we have seen in the military-style academy 2.0?

Thank you, Mr Chair. I just want to ask about the decision to allow an application to be made by a lawyer. This is in new section 320P in clause 4, and the repeated use—this is an alternative to others making application.

I can understand a young serious offender having that right and I can understand a parent and a guardian having that right because they have a different interest but they have a caregiving role, and they’d be doing upon their own behalf, and I can even understand it being the chief executive. But a lawyer has a special role in our system of representing the position of their client, and in this situation they seem to be acting independently of that client. There’s no wording to suggest that they’re doing that on instruction from the young serious offender. It doesn’t look like it follows a model from the Family Court of a best-interest type of arrangement where you’ve got something like the counsel for the children who are actually acting in a role that is a hybrid and does take into account wishes and interests, and it is a more paternalistic role. This looks like it’s a straight-out criminal representative, and that doesn’t look the same to me.

Now, I appreciate that in the Youth Court we have developed roles for lawyers that are quite different, but I think it’s really, really important that we understand what that role is here and where the safeguards are around that position of a lawyer being in that role and how that is developed. Does this relate to other safeguards that are built into the law? Is it assuming a role for the lawyer which might not actually be safeguarded in that way and should be by way of an amendment to the law?

I’m very interested in this because it does put the young offender into an unusual position with regard to their lawyer in terms of the type of vulnerability they’ve got to the lawyer themselves. Thank you.

Thank you, Mr Chair. Just on the subject of compassionate grounds, which the Minister mentioned before, I wanted to ask a couple of questions around new section 320Q, “Discharge of YSO declaration”, in clause 4. I note that in subsection (2) of this particular section, it says that the only grounds are compassionate grounds, including those in that particular list, which means that, potentially, I’m guessing that a Youth Court is able to exercise a level of discretion to include other potential ones. But can I just check that in terms of those kinds of cases —let’s say, with subsection (2)(b), where “the offender is seriously ill and unlikely to recover:”—would a serious illness potentially include both physical illness as well as mental illness? Would that be a likely possibility? That is my first question.

I want to ask the Minister for, I guess, clarifications around new subsections (3) and (4) of this, because the wording is a little bit unusual. You have an application, which the four listed groups in new subsection (1) are able to make. That application then must be served on the chief executive—like as in served to the chief executive—who is receiving the application. Is that how to interpret “on the chief executive”? Then, in new subsection (4), it says that “any person who is specified in subsection (1)(b), (c), or (d)”—so, essentially, anyone who is not the YSO themselves—“must be served by the person on—(a) all the other persons specified in subsection (1);”. Does that mean that the application must be then distributed to the other four, I guess, groups or possible people that are listed in section 320Q(1) and also the Commissioner of Police? I just want to get some clarification of what exactly the process pathway is for that in terms of who needs to be given that application.

We’ve still got further information coming for Tamatha Paul. Just in regards to when a new section 320P application can be made, the application can be made twice after 12 months and then after 18 months.

Thank you, Mr Chair. Now, I don’t want to delay unduly the debate on this. I just want to note that there are some tabled amendments that the Minister hasn’t addressed, and I’m pretty sure she’ll have some notes on it. One was in respect of—7.05.35 was when it was time stamped—new section 320O(8). It’s a suggestion that—

CHAIRPERSON (Teanau Tuiono): Can you repeat the timestamp again?

It’s 7.05.35 in the bundle of I think it’s Labour Party lodged tabled amendments. The amendment suggests that there should be a requirement that it be established that there is no less restrictive or less intrusive orders or steps that are sufficient when an extension of a young serious offender order is required.

The other one was for new section 320P(6), and that relates to reducing the term of a young serious offender order. The suggestion there is that a new subsection be inserted, which, essentially, says that where the grounds for the young serious offender order evaporate, then the young serious offender order should be discharged or limited. For example, it could be that the young serious offender order was put in place because they didn’t have enough whānau support or didn’t have good accommodation. If we can sort that out, then perhaps we should discharge that young serious offender order.

I did want to observe that the Minister still hasn’t answered the Hon Willow-Jean Prime’s questions. She stood up and said, “Well, if you give me respectful questions, I’ll give you respectful answers.” The suggestion is that we should be in some way timid or cowering when we are asking questions of the Minister. I’ve got to say that when we are seeking to protect the rights of children in respect of young serious offender orders and boot camps, we will not be timid. We will not sit and politely ask questions of the Minister when we’re seeking to protect the rights of children. I would have expected a Minister of the Crown to be able to stand up to challenging questions from MPs who are seeking to test the authenticity, the validity, and the workability of something like young serious offender orders and boot camps. I would suggest to the Minister that she might want to kind of buckle in and be prepared for some hard questions that are put to her in challenging ways, because we will be fierce advocates for children in this House. I’m surprised and disappointed that a Minister of the Crown wants questions to be put to her in some kind of respectful and timid manner, because we simply won’t do it.

This brings me to my next tabled amendment—not my tabled amendment, the excellent Willow-Jean Prime’s tabled amendment—which is actually about the grounds on which an order may be made discharging. It’s actually quite problematic discharging young—

CHAIRPERSON (Teanau Tuiono): Which number is it?

It’s 7.05—I think it might be a 37, but someone’s handwriting is a bit dodgy. It’s about new section 320Q. If I might get the indulgence of the Chair just to finish this tabled amendment, the current rules are really restrictive. For example, you can get it discharged if you’re unlikely to recover from a serious illness, but, basically, you have to be terminally ill. But, obviously, if you’ve got, say, glandular fever or a curable cancer—leukaemia—that might take two years to treat and recover from, that doesn’t fit within the current rules. Or, as Lawrence Xu-Nan pointed out, you might have a serious mental health issue, anxiety, or depression that requires careful treatment but that is clearly recoverable. Now, under the current framework, this doesn’t seem to be addressed.

Mr Chair, my time has run out. Can I have another—

CHAIRPERSON (Teanau Tuiono): Yeah, yeah.

This is actually quite an important point that the current framework narrows the compassionate—and this is quite important, because the court can only do what the statute permits it to do. The other thing that doesn’t exist, and my proposal is that it should exist, is any other reason that the court considers is appropriate. Now, you might want to temper that with any other extraordinary reason or some other kind of word that makes it clear that it can’t be just some everyday occurrence, but we can’t imagine the series of events that might lead to a young serious offender order being entirely inappropriate in all the circumstances.

The danger is that we make a young serious offender order and that there is no appropriate discretion in the hands of the court to say, “Well, no one would have dreamt that this could have happened, and, therefore, we will discharge the order so that you can deal with some pretty horrible stuff that’s going on in your family—you know, your mum dying; you know, you having leukaemia.” The list of things that could happen that aren’t accounted for is endless. I’d be interested in the Minister’s comments, particularly on that point.

In regards to tabled amendment 7.05.37 date stamped 5 August, in regard to new section 320Q, I have previously already responded to this amendment and have given my reasons why I don’t support that amendment—

💬 Hon Willow-Jean Prime: Can you tell us those again?

Hon KAREN CHHOUR:—and I’m not going to go into all that detail all over again, because I’ve already responded to that amendment.

💬 Hon Willow-Jean Prime: Mr Chair.

CHAIRPERSON (Teanau Tuiono): The Minister’s still taking a call.

When it comes to 7.05.35 in regards to new section 320O(8), I don’t support this amendment. The Oranga Tamariki Act already requires the Youth Court to be guided by the youth justice principles when exercising its powers under the Act. This expressly includes that sanctions imposed on a young person should take the least restrictive form appropriate in the circumstances. Therefore, the amendment is unnecessary.

In regards to Tamatha Paul—what is low-risk offending for new section 320P?—this is actually for the court to determine based on the range of factors specific to the individual and based on reports provided to the court to support that application.

Thank you, Mr Chair. I’m going move on just a little bit to new section 320Q(6), but I will keep this quite short because I know others have questions as well.

When the court may grant an application and discharge the young serious offender (YSO) declaration, I know that that’s satisfied in terms of the grounds, but what happens if the court determines there is a sufficient alternative to what we see under new subsection (6)(b)? Will the YSO need to make a separate application or will the Youth Court simply determine that “Look, we’re not going to discharge this, but we’re going to use one of the alternatives—for example, reducing the term of the order, because we think that is the most appropriate.” Or if we look at what is stated here in subclause (8), the court will then discharge a particular YSO declaration but then make alternative conditions as a result of that.

I guess I just wanted to check: I’m seeking some clarifications from the Minister for Children on whether, if the Youth Court found that an alternative is appropriate, would a separate application need to be made?

My understanding is that if the court discharges the young serious offender order and feels that there’s a considerable appropriate change to that order, the court will be able to do that.

Thank you, Mr Chair. I found that answer to that Amendment Paper with the question from the Hon Dr Duncan Webb quite unhelpful. This has been quite a disjointed committee stage. I know you as chairs are all aware that it has gone across many weeks of half an hour here, 15 minutes here, and so on. I think the Minister for Children could have been a bit more helpful in sharing with us her reasons for not supporting that Amendment Paper, because that might have also helped us get the clarification that we need as we are going through the particular sections here and trying to get clearer understanding about what this actually means in practice. Maybe the Minister might reconsider whether she could be a bit more helpful to the committee, given the circumstances that I just outlined. This has been going on now for almost a month of disjointed committee stage, so she could have been a bit more cooperative and maybe respectful towards us.

I have questions about new section 320Q(2), inserted by clause 4, under which the Minister, in response to one of my earlier questions, said that they could make an application on compassionate grounds. The clarification I need from the Minister, or the assurance that I’m seeking from the Minister, is that this section and the grounds upon which the courts can consider compassionate grounds—they can consider the discharge of a declaration—isn’t just those in (a), (b), and (c), because it says here: “The only grounds on which an application may be made under subsection (1) are compassionate grounds, including that (a) the offender has given birth, or is expected to soon give birth, to a child: (b) the offender is seriously ill and unlikely to recover: (c) any parent or guardian of the offender is seriously ill and unlikely to recover.”

My question to the Minister is: are those the only compassionate grounds upon which a court can discharge a young serious offender declaration? Further to that, I want to know, if it isn’t the case—and I’m just going to put these out and she can deal with it—then why are the words “but not limited to” included? I think when it comes to statutory interpretation, we all know that the courts and lawyers will look to what the intent of Parliament was when they introduced this legislation. They will actually look at this Hansard, as we debated these sections, because, as the Hon Dr Duncan Webb said, the courts have to follow the law.

I do want to point out that we are actually now rushing this through urgency to have it completed in the final days of Parliament. There are only a few sitting days left, and if we don’t get this right—and the Minister has already dismissed an Amendment Paper in here which would give the court any other reasons the court considers an appropriate level of discretion—we potentially have here a section where, in theory, a young person can apply on compassionate grounds to leave, but it wouldn’t cover the situation like I described where two young people subject to assault have applied to leave the in-residence phase of the military-style academy because they’re not pregnant and about to give birth, they’re not seriously ill and unlikely to recover, and it’s not to do with a parent who is seriously ill or unlikely to recover.

Can the Minister please give me an assurance that the court has wider grounds to consider compassionate reasons for the discharge of their YSO order, and can she please introduce an Amendment Paper that puts that in there?

New section 320Q(2), inserted by clause 4, states, “The only grounds on which an application may be made under subsection (1) are compassionate grounds,”. Then it says “including that” and lists a few. These just illustrate some of the types and the seriousness that would be included, but I do note that the Youth Court currently has the ability to vary or discharge any order such as supervision with residence orders or any condition such as a curfew that a young person is subjected to.

Thank you. Further to that, I have huge concerns with the way in which this legislation is drafted, because it doesn’t say “including that but not limited to”. Why did it only give three examples of compassionate grounds and not others like mental health, for example, like “has been subject to harm and physical abuse”? I think it is hugely problematic that this legislation talks about young serious offender (YSO) declarations, not the other orders that you talk about, but these ones, the YSO declaration, and they have to follow the law and the law does not say “including that but not limited to”. Will the Minister correct that section to give effect to what she just said, that actually they could have wider compassionate grounds, but where does it say that in that subsection?

“But not limited to” is not required. This has been confirmed to me with legal advice and the Parliamentary Counsel Office.

When was that confirmed to the Minister for Children? We are in the committee of the whole House stage and we do not have that advice from them. Are we just to take the Minister’s answer and word in terms of that? I would like to see that advice so that I can be confident, because we do check Parliamentary Counsel Office drafting. We do check legal advice. There’s a number of us who are lawyers here in the committee. I would like to see that and understand that. I am uncomfortable with leaving it as it is, because it doesn’t say that it could actually be other compassionate grounds. I have a tabled amendment that you could easily adopt that would give the courts that discretion, or you could quickly draft your own to give us that clarification and that absolute certainty.

CHAIRPERSON (Barbara Kuriger): Yeah, I’m going to take a call from the Hon Dr Duncan Webb, but I was just going to say that the Minister for Children has stated that she is comfortable that she has been given that advice. The members of the House don’t have it, but it’s on the Hansard, so there’s some assurance there that the Minister has said she has been given the advice and she’s comfortable, so she has answered the question in terms of the fact that she’s comfortable with that space.

Thank you, Madam Chair. You might want to have that—

CHAIRPERSON (Barbara Kuriger): Sorry, I didn’t hear that—what?

Thank you—the time button.

CHAIRPERSON (Barbara Kuriger): Oh, no, we’ve fixed it.

But it’s all right; your worthy Clerk has managed that there—

CHAIRPERSON (Barbara Kuriger): Yeah, the Clerk fixed it for us. Thank you.

—and so that’s fantastic.

The Hon Willow-Jean Prime has raised some real issues around whether the language appropriately captures it. There’s always that risk that by saying that it is including these things, it means, essentially, things like this, and I think our overarching concern is that the threshold is so high that if you’re sick and you’re unlikely to recover, your parents are sick and are unlikely to recover, or you’re about to give birth but you might not be about to—and you might just have a difficult pregnancy.

But, anyway. I want to move on a little bit because I appreciate that in the committee of the whole House, we’ve got to step through these sections, and I want to start talking about new section 320R in clause 4. There are two amendments, one in my name and one in Arena Williams’ name, both of which deal with this, and these deal with a situation where the young serious offender order might be set aside.

CHAIRPERSON (Barbara Kuriger): Sorry, what—

These are two amendments lodged on 5 August, at 7.05.38 and 7.05.39. My concern is that the drafters of the legislation have not properly apprised themselves of the situation in which a charged or—I know that “conviction” is not the right language to use in this framework, but an adverse finding in the Youth Court might fall away.

There are a number of situations where this might happen, and one, for example—which we see quite often in the ordinary courts, and it might sound strange, but it happens quite a lot—is where someone actually pleads guilty, and then changes their mind. It’s really common with a technical offence, an offence like fraud or even theft, where someone is like “Yeah, I did take that.”, they plead guilty, and then their lawyer says, “Well, you did take it, but you had an excuse.”, or where someone doesn’t realise that they had a self-defence defence to an assault charge—you know, they did punch that guy, but the person didn’t realise the legal context in which that happened. Courts will contemplate that. Even though someone has said, “Yes, I’m guilty.”, the court will take it into account that they haven’t had good legal advice and they haven’t fully understood the factual and legal context of their actions, and the court will allow them to withdraw their guilty plea and, essentially, start again.

Of course, if you’ve got a young serious offender order on the basis that a charge has been proven or admitted, and all of a sudden that admission falls away because it kind of rests on a faulty foundation, then we need to be able to say that the young serious offender order also needs to fall away. That’s what the first amendment in my name suggests. You can have—yes—a successful appeal, but the court also allows the withdrawal of an admission upon which the basis of the charge is found proven.

Then the second amendment is that the charge or the admission, or the fact that it is proven, simply falls away for any other reason, and you might think that that’s a bit loose, but there can be all kinds of other reasons why a charge will fall away. For example, there might be a discovery that there has been misconduct by the prosecuting authority, or—unlikely, but possible—a pardon. If you look at the three-strikes legislation, there is a comprehensive section dealing with someone who is under the three-strikes regime, but a pardon has occurred. It’s entirely possible that a young person could get pardoned in respect of an offence which in this framework has been proven. My real concern is that we’ve got a policy framework which is part child protection and part criminal law, and they’ve focused too much on the child protection and they haven’t actually got the criminal law stuff right.

So those are two amendments that are actually quite important and need the Minister for Children’s attention. I’d be interested in her fulsome responses to those.

In regard to the amendment lodged at 7.05.38 on 5 August around new section 320R in clause 4 that is proposing to amend the basis on which a young serious offender declaration is set aside to include the situation where an admission is withdrawn, this amendment does not take into account how the youth jurisdiction currently operates. An appeal is required to revisit the charges. If the appeal is successful, then the young serious offender declaration will be discharged, and the bill provides for that now.

In regard to the amendment lodged at 7.05.39 on 5 August, the current drafting preserves the important role of the court in setting aside a conviction. Given the exceptional rarity of that and the process requirements of other mechanisms such as pardons, I’ve been assured that the approach in this bill is appropriate.

Thank you, Madam Chair. I am seeking just one final assurance from the Minister for Children on new section 320Q in clause 4, and then I will move right forward to new section 320RA in clause 4. I just want to know, in the Minister’s legal advice and Parliamentary Counsel Office advice and in her opinion, would a rangatahi experiencing assault and harm in the military-style academy meet the grounds for compassionate leave to have their young serious offender declaration discharged?

It’s not my place to rule on a hypothetical and give legal advice.

This is not actually a hypothetical situation—we have two young people. I have an Official Information Act request that confirms that two assaults occurred in the in-residence phase of the military-style academy 2.0. It’s a very real situation, and that’s why I have been asking questions about how a young person in that situation could take themselves out of that programme. So it’s not a hypothetical, Minister, but a real.

I have stated many times that it would be a court decision.

CHAIRPERSON (Barbara Kuriger): I’ll take a call from the Hon Willow-Jean Prime, but the Minister has made it very clear that it is not her role to make that decision. You’ve just indicated that you’re moving on to the next piece—thank you.

Yes. I will move on, but I just want to note on the record—

💬 Hon Dr Duncan Webb: No, the move-on orders are next!

—move-on orders are next—that I am extremely uncomfortable with the lack of guidance and clarity in the law, and that an assurance given captured by the Hansard is now going to have to be attached to the bill when it passes, or gets the authority from the Governor-General to say that it might also include some of these other situations that we didn’t feel we needed to outline in the legislation, including real, live examples of what has happened in the Government’s pilot programme.

Moving on, reluctantly, to new section 320RA in clause 4, this section is about further offending by a young person subject to a young serious offender declaration. We know that in the first military-style academy, in the in-community phase, eight out of the nine young people who remained in the programme reoffended. I want to know how this section applies to real-life examples—not hypotheticals, because we know and we’ve had that confirmed, even though it took a long time to get that confirmation, that that reoffending happened. So how does new section 320RA apply to these young people who are in the in-community phase of the military-style academy? That was a pilot; this is going to be a law, and so what does it now mean?

I would also note that it’s going to be in-residence for longer, and the length of the term of this military-style academy in law is going to be longer. It is potentially up to, I think, something like almost three years in total, which is what could happen here. Given that we know that eight out of nine of the young people from the first military-style academy reoffended, what does that mean in terms of this section?

Can the Minister also talk to the second military-style academy, where, I understand, a young person who is now in-community has been involved in two aggravated robberies, potentially? How does this section apply to these young people—and, in this case, in the 2.0 military-style academy—when where further offending is occurring? What happens if those charges are upheld and they are convicted; how does this section apply to them? Will they go back into residence? Will they get some other type of order? If it’s serious in nature, if it’s before the District Court, what happens? Can you please give us the interactions with real-life examples.

It would all depend on the scenario and what crime was committed, and it would be up to a court to decide what they were going to ever convict that person of. You can’t just have a scenario and make me decide what’s going to happen to them. It would be up to a court, it would be up to the evidence that’s produced to the court, and then it would be up to the courts to decide whether either they get discharged from that and end up in Corrections, depending on the crime, or whether they end up back in youth justice. It’s all up to the courts to decide.

Thank you, Madam Chair. I know we jumped from new section 320Q forward to 320R, but I just wanted to go back briefly to 320R because that is a really important part and I did hear Dr Duncan Webb covering this really well. So I just had a really simple question on this part, around what happens to that young person if their declaration ends up being quashed via an appeal, and all the material around pardons. My question is, and please do let me know if this is out of scope to belong in a bill, but could that young person—if they were wrongfully declared a young serious offender (YSO) and their convictions are later taken away, for whatever reason—could they be eligible for any forms of compensation, or would that potentially sit in another piece of legislation?

Did the Minister consider that, just given, you know, we’ve talked a lot about how weighty the YSO declaration is and how that’s a label that people will carry for a really long time, and it comes with probably a lot of stigma as well? They might miss out on opportunities for employment or education or other opportunities that they might not get because they carried a wrongful YSO declaration. So, yeah, just a simple question before we move past new section 320R altogether, as to whether that could be considered within this bill or whether that might fall elsewhere.

CHAIRPERSON (Barbara Kuriger): I’ll take a question from Dr Lawrence Xu-Nan. The Minister’s just taking some advice on your question, Ms Paul.

Cool. Just checking if the Minister has the response? OK—

CHAIRPERSON (Barbara Kuriger): No, the Minister has just indicated that she will respond.

So in practice, yes, they would have the ability to apply for compensation, but it would be outside of this bill. It would be done in a different process. But what I would also say is that whilst I appreciate what you’re saying around the stigma of a young serious offender (YSO), and that that could take away their ability to be taken more seriously in jobs and opportunities—that’s the whole point of the YSO. We’re actually putting opportunities in front of them; wrapping around care and services around their whānau, their siblings, and those around them, and putting mentors in front of them so that we can give them better opportunities when they transition back out into the community. Whilst I understand that a serious youth offender declaration may have that stigma, some of the crimes they’ve committed have already given them their stigma. But going through the YSO, with that support around them, may actually give them better opportunities going out into the community.

Thank you, Madam Chair. Can I just get a clarification from the Minister? Thank you, Minister, for that response, but I think the question is in the circumstance of wrongful conviction, if there are any records around that.

I want to check, in terms of new section 320RA, but I want to focus on the Minister’s Amendment Paper 662. There are two questions I have when it comes to 320RA, and I guess the first question is in terms of Amendment Paper 662, both in terms of 320RA and 320RB, because the changes are the same. In the newly introduced (2A) of 320RA and (2A) of 320RB, it gives an exemption against section 285(5)(a) of the Oranga Tamariki Act. My understanding is that that is where they put a certain level of restrictions around some of the cumulative effect when it comes to having a non-YSO response immediately following a YSO response. So I just wanted to check: because of how that (2A) is now being phrased, does that mean that now you can have that cumulative effect in the sense that you have a YSO, and then afterwards followed immediately by a non-YSO response for 320RA, if my reading is correct in terms of the Amendment Paper.

My second question is around 320RA(6), the replaced paragraph(c) in Amendment Paper 662. The current paragraph (c) says that the response, particularly with the non-YSO response that is correct—ah, just checking in terms of lines 12 to 15; ah, yeah, the YSO response. So in the—sorry, I just got to the right section, because there are two provisions with “c” in that section and I just found the right line number. So it is the replacement to page 21, lines 12 to 15, in terms of the definition of a YSO response in the Amendment Paper 662.

Can I just clarify that the only change, then, is to include the supervision order under section 311(5)? I think, because I was looking at the non-YSO response, it may not actually be applicable in this sense, because I thought that that extended that period to 18 months, but it doesn’t. So can I just confirm with the Minister: is there anything else that’s changed from the Amendment Paper other than the inclusion of section 311(5)?

Just in regards to the Amendment Paper that you were speaking to in the very beginning of your question, that Amendment Paper was just to ensure that the changes that were made in select committee could work as intended. The change was important because it ensures that the Youth Court has access to consistent sentencing lengths for all young people, regardless of when their declaration expires. So it was basically to make sure that the changes made in select committee work.

💬 Dr Lawrence Xu-Nan: Are consistent.

Yeah.

CHAIRPERSON (Barbara Kuriger): I’m going to take a call from the Hon Dr Duncan Webb, and I’m going to signal that there’s still more to go in Part 1. This is the substantive part of the bill. But I also noticed that, with the calls we’ve had so far, we’re getting pretty close to moving on to Subpart 2. So are there just any final clarifications—

No, no—well, thank you. Can I firstly say, if I may, Madam Chair, thank you for that guidance. But one of the most important parts of this bill, that we haven’t touched on yet, is actually the young—

CHAIRPERSON (Barbara Kuriger): So I think if the member had let me finish, I was just going to say: are there any important issues just prior to Subpart 2 before we move on to Subpart 2?

We haven’t really stepped through the military-style academies.

CHAIRPERSON (Barbara Kuriger): Yep. So if that’s important, let’s move there now.

Yes. So I propose, now, for my colleagues and I to look at military-style academies and to ask some questions around that, which is at the second-half of Part 1. In fact, the first amendment touched on military-style academies—date-stamped 7.05.50. The Minister, in an earlier response to the Hon Willow-Jean Prime’s question about whether someone who’s been subject to assault can choose to leave, pointed out that “No, they can’t. They are stuck there by order of the court.” That brings me to this point, because one of the concerns I have with Oranga Tamariki, which has its own framework, is it sits outside of what’s essentially the Corrections framework—and don’t get me wrong, I don’t think they should all be lumped in together, but—

💬 Hon Willow-Jean Prime: No, but ACT do.

Ha, ha! But the corrections framework has minimum standards under the Mandela rules, which are in terms of exercise, phone calls, cell size, and all things like that. The first amendment that I want to refer to, which is the amendment of Willow-Jean Prime, sets out that a military-style academy programme—which is incarceration, and I think that’s the first thing. Let’s front up: these young people are being incarcerated in military-style academies, and so the first thing is that it should be treated as a place of detention for the Oversight of Oranga Tamariki System Act 2022, which is a reporting framework.

That’s not immediately clear on the legislation as I see it, and so the first thing is to say, OK, this is like any other place of detention under the Oranga Tamariki Act but also that it’s subject to inspections by the Chief Ombudsman, consistent with New Zealand’s obligations under the Optional Protocol to the Convention Against Torture. This is the ability of the Ombudsman to inspect any place of detention. This is not in a technical sense and not in some kind of tick-box sense, but to come in and say that “This place of detention is inhumane and amounts to unreasonable detention, or is in breach of the torture protocol for the following reasons.”

I do have concerns that where you’ve got a young serious offender military academy which requires them to engage in military-style exercises, which is a kind of forced activity, this crosses the line. I would like to see this come under the oversight of the Ombudsman so that they can say—I mean, I don’t even know what the Minister expects, and further amendments explore this. But if they’re doing 15-mile forced marches, I want to know: is that OK? Who’s the right person to ask that question? It’s the Ombudsman. Are they doing combat training, or are they doing karate or combat—is that appropriate? I want to know.

I’m not an expert in this area, but the Ombudsman and the Ombudsman team are. As a member of the Justice Committee, I’ve had reports from the Ombudsman on various places of detention, and he has taken a very careful approach to this.

We absolutely need a supervisor, particularly when this is now a place of detention. It is involuntary—they can’t walk out if they don’t like it—and so we need someone to say, “Is it OK what’s going on there?”, particularly because it’s young people. That’s my amendment that was time-stamped at 7.05.50, and if the Minister says that we don’t need that amendment for whatever reason, I’d like to know, in particular, what the protections are for this compulsory detention to make sure that young people aren’t subject to harm and aren’t subject to conditions which are inhumane and which, were they in a prison, would be illegal under the Corrections Act.

The military-style academy is currently run within a youth justice facility, and so it is subject to the same oversight under the Oversight of Oranga Tamariki System Act 2022, which means we have grievance panels, Ombudsmen, the Independent Children’s Monitor, the Children’s Commissioner, and VOYCE - Whakarongo Mai who are able to go in and advocate for these young people. They have the same oversight because it is run within the youth justice facility and it is an in-residence programme. The bill also provides for offsite components delivered by qualifying providers, which will be subject to individual monitoring and oversight through consequential amendments to the Oversight of Oranga Tamariki System Act.

CHAIRPERSON (Barbara Kuriger): I’ve made it clear I’m not taking closures at this stage, but I just want to make it clear. When I talked about moving on to to Subpart 2, the member Duncan Webb has moved on to Subpart 4 and the Greens have indicated that they still have some queries around Subparts 2 and 3. However, I’m happy to take any questions on Subpart 4 now, and then do Subparts 2 and 3, rather than going backwards.

💬 Hon Dr Duncan Webb: That’s right, you like to do everything in order.

CHAIRPERSON (Barbara Kuriger): Yeah, I do—otherwise it plays with my mind. I just think if we clear up the section on military-style academies, and then I’m quite happy to indulge the Greens by actually going back to where they thought we were up to, right? That’s where you thought we were up to, and so are there any further questions on the military-style academies in Subpart 4?

💬 Hon Willow-Jean Prime: Yes, there’s heaps, but I think that they span over the ones they want to cover and the ones that we were in, and so I don’t think we’ll get mixed up.

CHAIRPERSON (Barbara Kuriger): OK, so let’s go to the Greens and we’ll do Subparts 2 and 3 and your questions, and then we can come back.

Awesome! Thank you, Madam Chair. Moving to clause 6, we’re super-interested in the “Arrest of young serious offender in breach of bail condition”. My question is specifically about a tabled amendment that I have tabled, and that one is from 6 August 2026 at 11.50.08, and that amendment is, basically, about inserting a new part that says, “This section does not apply if a young serious offender is under the age of 17 and is arrested without a parent or guardian present.” In clause 6, it lays out the provisions by which that young person can be arrested, but the important part, we think, in that new section is the bit around being able to arrest without a warrant. We’re quite keen to interrogate the process of arresting that young person, but particularly this bit around “without a warrant”.

To speak to the tabled amendment and how it applies to that clause, basically there were concerns raised by submitters throughout the select committee process around young people essentially interacting with police without an appropriate parent or guardian present. This was something that was noted by VOYCE - Whakarongo Mai, which is quite important. They’re the advocacy group for care experienced young people and they have a lot of experience when it comes to young people interacting with the criminal justice system in any type of way. I’m really keen to know if the Minister might consider that, and also wanted to clarify where that comes from, as well.

One of the places where that comes from is particularly from the joint inquiry between the Independent Police Conduct Authority and the Privacy Commissioner when they found that there were tens of thousands of photos of young Māori kids being taken by police officers. The reason that that is relevant to this bill is because what it exposed was not only a lack of operational understanding along the front line of what privacy principles exist for all civilians including children, but also it highlighted that so many of those kids that were apprehended by police—and these, by the way, were kids who were not committing any crime. Some of those kids were simply walking down the street, and some of the police officers even commented that those kids looked out of place.

What I’m trying to highlight here is that there is a track record of police interacting with young people and there not always being very good oversight of what powers those police have and, actually—probably more importantly—what powers those young people have. In the situations where those young people were apprehended, they didn’t know that they could actually not consent to their photograph being taken and for them having to interact with that police officer.

That is the intention behind the amendment that I’ve brought, which was time-stamped at 11.50.08 on 6 August. It’s just trying to require the presence of a parent or guardian in a situation where the police are involved, just to make sure that whatever is being communicated to that young person is heard by somebody else who might be able to—because if that young person is being arrested without a warrant, tension will be high. They’re not necessarily going to understand everything that the police officer is saying to them. Again, they might not know their rights, and the police officers might not know their obligations. That’s why we’re recommending that there be an adult present, just to add a third person who can make sure that what happens is observed and that, if there are any discrepancies between rights and laws and obligations, those can be clarified later on.

We really just want to diminish the risk that comes with taking action against the young person without a warrant, which is required. The reason we have warrants is to make sure that people’s rights are upheld and they’re not subject to any breaches of the New Zealand Bill of Rights Act, which we’ll go into next. I’m keen to know if the Minister might entertain that tabled amendment.

Thank you. Look, it’s essential, in my opinion, that police are able to respond quickly to breaches of bail. The presence of a parent or guardian does not change the fact that bail conditions have been breached and need to be responded to. I absolutely understand the need for support for young people, and the expectation is that support will be contacted straight away and that support will be brought to that young person.

Thank you, Madam Chair, and thank you for that response, Minister. I just want to follow from my colleague Tamatha Paul around clause 6. One of the things we’re seeing here is around this idea of “reasonable grounds”. I also had a look at section 35 of the Bail Act, and I know we had that long discussion previously around compassionate grounds, and there were some examples that were given. I can’t see any examples in this piece of legislation or the Bail Act. Can I check with the Minister for Children on what are some of the examples for reasonable grounds, or whether this is simply also an understood term that the police—or a constable, in this case—have been using?

We do have a tabled amendment in my colleague Tamatha Paul’s name, at 16.40.02, around the deletion of clause 6(1)(a)— the new section 214AAA(1)(a). The main aspect of this particular part is around the warrantless arrest. Previously, in other circumstances, when we’ve been engaging with the Minister and the Associate Minister of Justice, we’ve been told that warrants are actually really easy to obtain. That’s what we’ve been told. I want to check with the Minister, more broadly, what is the rationale behind arrest without a warrant? Then, following on from what my colleague said, when you are arresting someone, you are also supposed to be able to read out their rights and obligations. Is that the same thing when we’re looking at arrest without a warrant as well? I’ll ask those questions for clause 6, but I’m going to move on to a subsequent section.

In response to that tabled amendment on clause 6, in regards to the amendment to remove warrantless arrest powers for breach of bail conditions, as I said before, it’s essential that police are able to respond quickly to breaches of bail conditions. Having to wait for three breaches, as is now the case, is unreasonable. These are some of the most serious offences and persistent offenders. As I’ve said, the bill, including the powers referred to here, underwent the vetting process for compliance with the New Zealand Bill of Rights Act and was found to be consistent.

Thank you, Madam Chair. Those were our question on clause 6, so we’re going to move to clause 15 now, which is about family group conferences (FGCs). Clause 15 obviously talks about how a young person who is declared as a young serious offender (YSO) and who is charged with an assault while they are subject to a YSO declaration does not require another family group conference.

My questions are mainly around the family group conference and whether the Minister for Children considered the detrimental impact on family group conferences and the FGCs’ place within the youth criminal justice system when removing that requirement. The reason for that—and this was a point really well made, again, in the submissions by the Royal Australian and New Zealand College of Psychiatrists and also by the Paediatric Society of New Zealand. These are people who, obviously, understand the way that young people’s brains develop, and all that. The reason for this is: why would you remove the ability to access an FGC when family group conferences are potentially the most innovative part of our youth criminal justice system?

Throughout those submissions, there were some really great ones. The Law Society talked about how a family group conference is one of the biggest cornerstones of our youth justice system. Also, Kick Back, a group who deal with and support young people, particularly homeless young people on Karangahape Road in Auckland, talked about how family group conferences are a world-leading mechanism within our justice system as well. Around the world, family group conferences are held up as this really important mechanism to reduce recidivism, and also to avoid a criminal pathway altogether in a situation where a young person is being part of an FGC for the first time.

In this situation, that young person has already got the YSO declaration, and they’ve committed another offence, and this bit, clause 15, takes out the requirement for an FGC. Why are we taking out a family group conference when there is plenty of evidence that a family group conference does reduce recidivism and does present a pathway forward that isn’t criminal, but that same evidence does not exist for military-style boot camps—not in New Zealand, not anywhere in the world? Did the Minister consider the detrimental impact that would have on that mechanism, which is so important and key to our youth justice system?

I see that the member has tabled an amendment in regards to this—it’s 11.50.09 on 6 August. I had read that amendment, and I’m aware of that amendment; as soon as you started speaking to this, I kind of went and had a look at what my thoughts were in this space. Look, all young people who are declared a young serious offender (YSO) would have had at least one family group conference (FGC)—so that does happen—and they would have had FGCs in the past for previous court appearance, because, for each court appearance, another FGC is required.

The issue with that, in regards to the serious youth offender legislation, is that there is a safety plan put in place specifically around the YSO and what supports are going to be in place for this young person. We want to get those supports in place as quickly as possible. If there’s a hiccup and reoffending, we don’t want to have to sit on our hands and not respond because we’re waiting for another FGC to redo the plan all over again. Removing the requirement for another FGC in limited circumstances where there’s reoffending allows us to respond more quickly and put those support networks back in place a lot more quickly.

I would note that the Youth Court still retains the discretion, if they feel that another FGC is necessary or desirable, under amended section 281B of the Act. They still have that discretion, and that will not be affected.

Thank you, Madam Chair. I know that my colleague may have a question on another clause, but I do want to touch on a couple of things in clause 19. This is mainly to do with sentencing, noting that my colleague Tamatha Paul may have additional questions around family group conferences. I specifically want to focus on clause 19, amending section 284(2), and new subsection (1AB).

My colleague Tamatha Paul has an amendment for 18 August 2026, time stamped 16.40.06, and this is the deletion of new subsection (1AB), inserted by clause 19. Now, I understand the rationale around new subsection (1AB)(e) around live streaming or posting on social media, etc., but I want to check one of the framings, and I want to test something with the Minister for Children.

Part of this says, “with no justification in the public interest,”. This is something that we have heard previously in submissions on other things from, for example, the Council for Civil Liberties. Would something like this be captured if it’s for the purpose of a protest or for a strike action, etc.? We’re looking at a school strike for the climate; would that be captured, and would that be considered in the public interest? That, again, does tie into when we’re looking at the New Zealand Bill of Rights Act and the freedom of expression and the freedom of movement.

Again, like I said, I understand where the rationale for some of these is coming from. That’s the first thing I want to test, even though the tabled amendment by my colleague Tamatha Paul is, I think, is an important one. This whole section is responding to a particular context that probably, in the current situation, isn’t as prevalent as it once was, so do we need to specify that as a particular factor to consider when sentencing?

Further on from this, I want to check with the Minister: what if the young persons themselves were not the ones who live streamed or posted but they were featured in that and it was live streamed by someone else who may not have committed particular offending? How would that be considered in the sentencing part? Those are my two questions on new subsection (1AB)(e). I do have additional questions as well around this part, which is, if we’re looking at the sentencing—oh, actually, if it’s OK, I’ll get the Minister’s response and I’ll come back.

Thank you. I appreciate it. When it comes to the tabled amendment 16.40.06, 18 August, that’s a proposal to delete a section which requires the court to take into account, at sentencing, where a young person has live streamed or posted offending online. I think, whilst I appreciate you speaking about things like protests and other areas, this is live streaming offending which they have been charged for which would reach the criminal level of a 10-year sentence, because that’s what a young serious offender (YSO) is. It’s when a young person has committed two crimes that would have got a sentence of 10 years or more. What they are live streaming is actually pretty serious offending, so it wouldn’t be a protest or anything like that.

That’s really helpful. I’m just signalling to you, Madam Chair, if I’m able to have this back and forth with the Minister for Children, I’ve got two things.

CHAIRPERSON (Barbara Kuriger): Yes.

Thank you, Minister. That’s really helpful. The next block of questions I’ve got is around, if we compare it to the Sentencing Act, some of the mitigating factors. What I’m not seeing here, but it potentially would be taken into consideration, would be things like what happens if a young person pleaded guilty. It’s not captured in this particular section. What happens if a young person has limited involvement in the offence on the young person’s part, and also things around remorse shown by the young person? I’m kind of paraphrasing some of the other things we do see in the mitigating factors. I want to check with the Minister if any of those would also be considered as a part of this. If that’s OK, I now have one more.

I was just double-checking I was correct, but normal court processes apply when it comes to those things.

Thank you for that. This is great. The third and final group of questions I’ve got is around the tabled amendments by my colleague Tamatha Paul, and these are date stamped to, I believe, 1 September2026—11.20.01 and 11.20.02. Again, this is to do with other things that are considered, and these are potentially not part of a normal court order of mitigating factors by the Sentencing Act.

I do want to check if the Minister for Children would consider adding additional, I guess, mitigating factors and requirements around the disabilities of a young person, which also, I would hope in this case, not just simply be physical disabilities but also look at fetal alcohol syndrome disorder, etc.; as well as the tabled amendment 11.20.02, which is around the relevant national and international evidence relating to, or responding to, youth offending, as to what is the best way to ensure that a young person is able to have the best possibilities at rehabilitation.

Yes, and I do appreciate that question. I think that’s a really important question. Section 5 of the Oranga Tamariki Act always applies when it comes to anything that the courts are taking into account. Section 5 reaffirms child wellbeing as central to decision-making, including any disabilities the young person may have. Section 284 already requires the court to take that into account, and the personal characteristics of a young person, so far as those matters are relevant to the offence and any response by the court.

This clause 19 is quite important, because this is ultimately about serving the sentence to that young person—so this is really important. We know it’s important, too, because there have been so many changes throughout this term of Parliament to what judges can and can’t take into account in terms of aggravating and mitigating factors. I’m quite keen to have a deep dive into this. I have some quite basic questions on this.

In terms of the seriousness of the offending, could the Minister for Children or her officials let us know what determines that seriousness and how we can identify where that sits? I wanted to ask about new subsection (1AB)(c), inserted by clause 19, which is about the interests of the victim. Sorry, did that not make sense, Minister? Do you want me to repeat that or to slow down?

💬 Hon Karen Chhour: No, just the seriousness of the offending—in what regards? To the YSO?

This is when a young person is being sentenced, so looking at clause 19, “Factors to be taken into account on sentencing”, at new subsection (1AB)(a). That was the first point, just around the seriousness of the offending—so just asking the Minister how you consider that seriousness and what the kinds of parameters are for that. I think that might be probably quite a simple answer.

On new subsection (1AB)(c)—that’s about the interests of the victim—I’m really keen to understand what those interests could be. I have some ideas of what it might be, but I’m just quite keen to draw that out for our understanding. I guess the part of these factors that really stood out to myself and to submitters is, again, the live stream part, and I’m really interested in the submission by Cooper Legal, where they actually said that it was disproportionately punitive to add that live streaming element as an aggravating factor and that it might not be consistent, perhaps, across the adult criminal system. If the Minister could respond in terms of what rationalises or justifies having a disproportionately punitive factor within these sentencing factors. As some other submitters made clear, live streaming on the internet and social media, as the Minister knows, is that young people and others film everything these days.

I think the more important point, actually, is around the myth of deterrence and the fact that these young people, and even grown adults, have no idea what the law is. Most people, unless you’re a lawyer or are involved in some way, have no idea what might aggravate or mitigate when it comes to sentencing or when it comes that crime and what factors might be taken into account. I just think there’s no way that a young person would know that live streaming a crime would aggravate their sentence or bump up that sentence or make it more intense, so I’m keen to understand.

Some of the submitters who talked about this particular clause did question whether these factors were consistent with the United Nations Convention on the Rights of the Child, which requires children, as I know the Minister knows, to be treated in a manner consistent with their age. I’m really thinking about young offenders who will be captured as part of this piece of legislation.

We’ll leave it there, but clause 19 is quite meaty and could have some quite big impacts on those young people.

Thank you, Madam Chair. In regards to the amendment around live streaming, I do understand where you’re coming from, but where I’m coming from is that when you are sharing offending online, including live streaming it, often it can glorify it, it can lead to copycat offending, and it can act as a perverse incentive for further offending. Not only that but also what are the rights of the victims that often are being recorded? Often, the victims of the crime that’s happening to them—that is recorded. What about their right not to be live streamed? What about their privacy? What about the harm and hurt that’s been caused to them also? I’m pretty sure most young people would understand when they are committing a serious crime that, actually, live streaming it is not the right thing to be doing.

CHAIRPERSON (Barbara Kuriger): I’ll take a question from Dr Lawrence Xu-Nan. I’m quite keen, because it has had a select committee, to start winding up as much as possible Subparts 2 and 3 so we can come back to Subpart 4 on the military-style academies. I’m just looking for some last-minute, quick-fire questions of the Minister.

💬 Dr Lawrence Xu-Nan: On Subpart 2, or Subparts 2 and 3?

CHAIRPERSON (Barbara Kuriger): Subparts 2 and 3.

I’ve just got one more answer to one of the questions if you would like it. Sorry—my apologies. In regards to determining the seriousness, the advice I got was that the sentence length is what’s taken into account for determining the seriousness.

Thank you, Madam Chair. I do want to move on to clauses 21 and 22, which are around electronic monitoring, now. Just a quick couple of questions for the Minister for Children—two on clause 21—the first one being I note that when imposing a curfew condition, it says “the curfew duration” but it doesn’t actually state the length of that duration. I do want to endorse our support for the Hon Willow-Jean Prime’s amendment, and this is 5 August, 7.04.45, which does include a particular—oh, no, hold on, am I looking at the right one? Sorry, I meant 7.05.44, which does require them to remain at the curfew address for a total period not exceeding 12 hours in a 24-hour period, so just putting a limit on that—unless there is a built-in curfew period already, or a maximum curfew period already. We just want to support that particular amendment, which is 5 August 2026, 7.05.44. Those are my first two questions on clause 21.

I do want to move on to clause 22, because I think when it comes to electronic monitoring—and I’m looking specifically at section 296K(5), which is around how the information is being kept, which is “no longer than is required for the purposes”. Now, my colleague Tamatha Paul has already spoken around how the police may potentially capture certain information as well, and where certain information can be held indefinitely for future use. I do want to know what is meant by no “longer than is required” in this case. I want to just also endorse the Hon Willow-Jean Prime’s amendment at 7.05.46, which does give a specific time frame of how long that is going to be able to capture—so the 21 days being the limit or threshold around that. I want to check with the Minister on how the Minister feels about that amendment or limit.

In response to the amendments from 7.05.44, 5 August—we were asking around the time limits and maximums—the minimum is 2 hours per day; maximum is 84 hours per week. In regards to the amendment, the bill is consistent with existing provisions in the Oranga Tamariki Act that place a weekly limit of 84 hours on daily curfew periods. Further, young people are able to seek or engage in employment and attend educational training and other rehabilitative or reintegrative activities or programmes with the approval of the chief executive during the daily curfew period.

I know you want to move on to the next—

💬 Hon Karen Chhour: Sorry, there was just one more—

CHAIRPERSON (Barbara Kuriger): Oh, sorry, there’s another thing from the Minister.

There was just one more amendment. It was 7.05.46, 5 August. It proposes to insert a time limit on the period for which electronically collected information can be held. Any information collected under this section must be securely deleted after 21 days—that’s the amendment. Yep. The provisions make it very clear that electronically collected information can only be used for specific lawful purposes and must not be kept any longer than necessary already.

I think we’ve only got a couple of things left in this Subpart. But just to close off the electronic monitoring part on our side, I wanted to ask the Minister whether she might consider my amendment, which is dated 1 September 2026, 11.20.03 a.m., which is related to clause 25, which is all the electronic monitoring provisions.

The reason I was keen to hear about the Minister’s thoughts on this is because we’re keen to delete the word “urgent”, because we kind of still want these young people to have some level of agency. Obviously, you can give them a curfew and the courts can set their own conditions, but what I guess we’re trying to encapsulate in this amendment is that when you’re dealing with young people, there is a real risk of lifetime institutionalisation, where these young people’s brains—and perhaps the Minister has met people like this, where they have spent their time growing up in State care or a lot of time in a youth justice residence, and they go on to prison, and it does lead to a kind of mental institutionalisation where every single thing in that person’s life needs to be compartmentalised and ordered, and they get really used to living a really strict, regimented lifestyle. I don’t know if that’s the outcome that we want for our young people—particularly if we believe that they can turn their lives around and not offend, and if we accept that these are kids, and they do have the potential to change.

The last question on that clause 25 in terms of the electronic monitoring is whether she might consider deleting the word “urgent” so they have a little bit more agency with still some restrictions.

Look, if it was any other circumstance apart from a young serious offender, I would absolutely agree with the member, but where the court has required compliance with a curfew to be electronically monitored, it’s not taken lightly. It is because the risk of non-compliance or reoffending by that young person is high. As such, I consider that requiring the young person to seek approval for attending non-urgent medical appointments during curfew period is highly appropriate.

CHAIRPERSON (Barbara Kuriger): I’m just going to take a call from Lawrence Xu-Nan, because we are finishing Subparts 2 and 3. As I explained before, my brain is compartmentalised.

This is why I’m kind of, like, moving quite a bit further along in Subparts 2 and 3—so that way we can get the Hon Dr Duncan Webb to ask about Subpart 4, which I know he’s been itching to ask for a little while.

CHAIRPERSON (Barbara Kuriger): Yes, and I know you’re very good at asking very quick, concise questions.

Yes, so moving on to clause 34, which is towards the end of Subpart 2, I want to check with the Minister, when we’re looking at the placement of young serious offenders (YSO) in the care of an approved person, whether in this case the Minister would consider—and again, I know I should also endorse the Hon Willow-Jean Prime, who has some excellent and really comprehensive tabled amendments. This is 5 August, timestamped 7.05.47, which is around how chief executive services and cultural services are able to make that application—having regards to certain criteria. I want to check with the Minister if that’s something the Minister would consider. I’m happy to move on unless the Minister has a response for that already.

CHAIRPERSON (Barbara Kuriger): Keep going, and then the Minister will respond to them at the end.

Cool—great. I actually want to move on to Subpart 3, clause 37, but I want to specifically focus, at this stage, on new section 296FB(1). This is the top of page 42 of the bill. I just want to check with the Minister in terms of the wording. This is when a YSO, without reasonable excuse, fails to comply, and what a constable would be able to do. I want to check with the Minister how we should interpret, or how a constable should interpret, what “satisfactory” means in that context.

Also, it says a constable “may”. I’m guessing, in that case, even though a YSO may have failed to comply satisfactorily with a special specified condition, a constable may be able to have a conversation with the YSO without having to go immediately to Youth Court for an application. Would that be an accurate interpretation?

All right, I think this might be our last little bit for Subpart 3, but I can’t wait for Subpart 4. This is about clause 27, which is, basically, all around—

💬 Dr Lawrence Xu-Nan: Clause 37?

Oh no, you jumped to clause 37, but I was at clause 25. I’m now moving to clause 27, but then we can move to Subpart 4.

This is an important one because this is around the supervision with a residence order, and this clause is quite important because it removes the eligibility for early release from a supervision with a residence order. I wondered if the Minister for Children might consider my amendment, which is dated 1 September 2026, 11.20.04 a.m. This one basically recognises that the possibility of early release from that supervision with residence order could be a carrot that a person might want to use to incentivise good behaviour or the improvement of that young person. I just wanted to ask the Minister whether she might consider deleting that bit that is highlighted in the amendment, which I won’t read out because it’ll be very boring, and just whether the Minister understands that that can be used as a carrot for good behaviour, and whether it’s worth removing that eligibility altogether.

Speaking to that, many of these young people have been within youth justice residences many times and have been given that carrot and it didn’t work, and now they are back under serious youth offending and the Youth Court considers that they are likely to reoffend and that previous interventions have been unsuccessful. Changing behaviour takes time. This is us doing something different, and it means we need longer and stronger interventions to reduce the risk of reoffending, and stronger interventions hold them to account for their offending.

Just remember, once again, these are not small crimes; this is serious, persistent offending which, if found guilty, has a sentencing of 10 years or more. These are not light crimes; these are pretty major crimes, and this young serious offender programme is to give them a lifeline and a shot not to end up in Corrections. I note that being in the youth justice residence for a longer period will mean that they will receive that additional support, including rehabilitation support, all while they are residents. The more we can do, the better.

CHAIRPERSON (Barbara Kuriger): Members, the time has come for me to leave the Chair. The committee is suspended and will resume at 9 a.m., when we will begin discussing Subpart 4.

Sitting suspended from 11.55 p.m. to 9 a.m. (Thursday)