Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill

Thank you, Mr Chair. If I also remember correctly, I think my last contribution was speaking to my tabled amendment timestamped 7.05.27, and that was an amendment to clause 4, new section 320J(1), and I believe I had completed my contribution on that one. I can’t quite recall whether there were any outstanding questions from that for the Minister for Children.

However, moving on to my tabled amendment timestamped 7.05.28: it is proposing an amendment to clause 4, new section 320L, and inserting restrictions on disclosure of young serious offender (YSO) status. As I have spoken about in some of the previous sections and amendments, there are some serious concerns that were shared by submitters around the labelling of young people for the purposes of this legislation. It was really clear in the select committee process that it is unnecessary to have such a declaration and status given to the young people; that it is purely political rhetoric, and point scoring that can also be potentially harmful to young people by giving them that label—and many of those concerns were outlined in the submissions.

The question that I have for the Minister in particular around this tabled amendment—and I hope that she, and her officials have had a chance to read that proposed amendment given that it causes significant stigma if it’s disclosed beyond what is necessary for the justice or care purposes. As I have said, there is no need for the “young” because we know how old they are from their date of birth, and there is no need for the “serious” part of it because we know that from the offences that they have committed. So it is completely unnecessary as an administrative tool.

My questions to the Minister around this proposed amendment—given that stigma and the issues with it—what advice did the Minister consider regarding the potential harm of labelling young people with a YSO declaration? And did the Minister consider strengthening privacy protections regarding the label of young serious offender declaration placed on the young people; and if not, why not? And did the Minister consider how a YSO declaration label could stigmatise young people, or even be used as a badge of honour, and the impact this would have on the young person throughout their life?

This proposed amendment would prohibit the disclosure to third parties for unrelated purposes, and imposes a positive obligation on recipients of such information to maintain confidentiality and limit its use to permitted purposes. The overall effect is to strengthen privacy protections, to mitigate risk of harmful labelling, and support a child centred and rehabilitative approach to youth justice. It aligns with the principles of minimising harm and promoting reintegration by ensuring that sensitive information is tightly controlled and used only where justified.

Again, my questions to the Minister are: did the Minister consider regarding the potential harm of labelling young people with the declaration? Did the Minister consider strengthening privacy protections regarding the labelling so that it’s not used beyond this—even though we don’t agree that you even need it for this? And did the Minister consider how YSO declaration label could stigmatise young people, or even be used as a badge of honour, and the impacts that it has on a young person throughout its life? And has she considered my tabled amendment to limit where that declaration can be used?

Mr Chair, I believe this has been addressed multiple times—last time we sat on this—but I’ll repeat it one more time for tonight: that would apply to the amendments timestamped 7.05.28 and 7.05.29. I do not support these amendments, and it’s the same reason for both: those that need to access information about the person’s young serious offender status, such as lawyers, police and the courts, will have access to this information, but the information will not be publicly available. The young series offender declaration is just used as a tool. As such, this amendment is not necessary.

Thank you Mr Chair. I want to check with the Minister for Children—I know that we’ve done quite a few bits of clause 4, new section 320. I want to check a couple of things with the Minister regarding section 320I, particularly with 320I(e) and 320I(i). I guess this is more trying to get an understanding from the Minister on some of the ministerial intent on what is the Minister’s expectations on how some of these could be measured.

For example, with 320I(e), when it comes to YSO—young serious offender—looking at “measures taken or proposed to be taken”, particularly around reparation or apologies, what measures does the Minister have in mind when the Youth Court are considering this? Or as part of the policy development process, what are some of the things that the Minister may have considered? I think that is important. While the Youth Court are going to be able to make some of those decisions themselves, I think it would be helpful to have something on Hansard or record to indicate the ministerial intent, if the Minister wouldn’t mind elaborating on some of her considerations.

With regards to 320I(i), when we’re looking at “the causes underlying the young person’s offending,” are the same things sort of—if the Minister wouldn’t mind maybe expanding on how some of these measures would be available to address some of those causes. For example, would we see, when it comes to youth offending etc., there’s a lot of undiagnosed neurodivergency, or potentially undiagnosed disability? We’re looking at potentially higher instances of ADHD, autism, but in particular, quite prominent, as we see in the corrections system, higher instances of fetal alcohol syndrome disorder (FADS)—whether that is something that the Minister would expect there to be availability for some of that diagnosis, so that way the court is able to make a more informed opinion.

With that, my colleague Tamantha Paul has an amendment that’s date stamped or timestamped to 11.50.06. This simply introduces a new subsection (k) in here, which refers to the matters that Youth Court must have regard for when considering an application for YSO declaration—any medical conditions or disability that may affect the behaviour of young person. Now, I understand that that might be something that is potentially covered under (i) already, if it does, it would be good to know from the Minister. But if not, then would the Minister consider this additional insertion by my colleague Tamatha Paul?

In regard to Tamatha Paul’s amendment date stamped 11.50.06, I believe I’ve previously responded to this amendment already. I don’t support this amendment. The existing principles of the Oranga Tamariki Act apply to these provisions, including the young serious offender declarations. The courts are already required under the principles in section 5 of the Oranga Tamariki Act to put the wellbeing of the young person at the centre of decision making. This expressly includes, for example, a young person’s experience of disability.

Thank you, Mr Chair, for the opportunity to ask the Minister a question. Maybe as a quick preface, one thing that I frequently came across when I was working at Youth Law was that we’d have young people who often really weren’t sure where they were in the process and why certain decisions had been made, and we found often that there was quite a delay in terms of explaining to those young people the decisions that had been made about their placement or even, in the context of the Youth Court, where they were in the system.

With that background in mind, I’m looking at Part 1, Subpart 1, clause 4, which inserts new section 320L(4). This is an amendment proposed by my colleague. It was filed on 5 August at 7.05.32, and it is proposing a new insertion, after “practicable” inserting “but in no circumstances later than 48 hours after the time at which the order was made.” This amendment introduces a clear outer time limit on the provision of a written statement to a young person where it’s not practicable to provide the statement before the young person leaves the court, but it just means that that time period ensures it’s provided as soon as possible. I completely understand that we have the word “practicable” there but, particularly for a young person, it is useful for them to know in what time period they can expect that information, and, certainly, for the provider of that information to know what is considered reasonable.

As drafted, new section 320L(4) does require that very broad kind of language, but, again, we would suggest that that’s quite uncertain for the young person involved. We’re really trying to ensure that there is no delay in the provision of those reasons to the young person. Preferably, that information would reach the young person well before the 48 hours, ideally while they are still in the courtroom, but, again, that is the outer time limit, just to ensure that there’s a sense of fairness and justice for the young person, who might be very unaware of the conditions that they’re being subject to and the reasons and the rationale for that. I’m just wanting the Minister’s response as to whether she would consider that amendment.

I consider that the current requirement for the court to provide the written statement to a young person as soon as practicable is appropriate. This time frame is consistent with similar requirements in section 340 of the Act around providing written statements after the Youth Court has made disposition orders. I won’t be supporting that amendment.

Thank you, Mr Chair. It’s good to see that the Minister has actually gone through these amendments and has prepared responses to all of them, despite what we might say in the Chamber. There is considerable importance in terms of new section 320L, in Subpart 1, clause 4. It is obviously important to let the young person know what’s going on, but the interesting thing about that is that, in subsection (3), it says, “The court may, for the purposes of subsection (1)(c),”—which is, telling them what’s going on—“direct that the offender remain at the court for a period, not exceeding 1 hour,”. There are two things that are problematic there.

The first thing is: not exceeding 1 hour—from when? It could be 1 hour from when they arrive at court, 1 hour from when the judge says, “And that’s my decision.”, or 1 hour from any other period of time. The other thing is that the idea that the offender must remain at the court is actually quite unclear, because, if you go into any court building, you’ll know that it can be, in some circumstances, a quite large precinct. Now, if what the Minister means is that you’ve got stay in the courtroom, that’s actually quite a different thing from staying in the court precinct. Take Christchurch, for example—a very large precinct, and I can’t remember how many courts—there are something like 13 District Court rooms, and various lower courtrooms and a number of High Court rooms. If you want the young person to remain—because, of course, it’s obviously a serious question if they don’t remain and they are obliged to by order of the court—we need to know exactly where they have to remain.

My apologies, it appears that one amendment has been duplicated, but the one I’m referring to is 7.05.30. It actually sets out a proposed replacement subsection (3), which states, “The court may, for the purposes of subsection (1)(c), direct that the offender remain at the court or within the precincts of the court for a period, not exceeding 1 hour after the time that the young serious offender order is made, that may be necessary to enable the statement to be provided to the offender.” It makes it clear that, in fact, it’s the court precincts that are the relevant area. It is actually really important. You’ve got to remember that this is, essentially, a detention. It’s a human rights issue. If you are going to say, “You are detained”—I guess there are two points, and my friend and colleague Vanushi Walters is much more knowledgeable in this area than me—I would have thought that you need to make it as modest a limitation as is reasonable in the circumstances, and that you need to make it certain.

I can understand that an order is made and the judge or someone else has to write the order up—do the paper work, if you like—and frame it in a way that the young person can understand. That may take an hour, but, at that time, it’s not appropriate that that young person has to sit in a chair in the court, under the beady eye of the registrar. It’s entirely appropriate that they say, “Well, don’t go away, remain within the precincts of the court, and we’ll call you when you’re required.” That’s why I think the replacement subsection (3) is a much more workable and effective subsection (3) than the one that is there at the moment.

Having made that comprehensive, sophisticated, and detailed argument, I am hoping that the Minister won’t read out some notes that someone has written for her previously on this amendment but will give full and due attention to the argument that I’ve made.

Thank you, Mr Chair. The Minister for Children must be thinking about her response to the questions from the Hon Dr Duncan Webb.

While the Minister is doing that, I want to turn our attention to a tabled amendment in my name. It is time stamped 5 August, 7.05.33. It is proposing to replace subsection (1) of new section 320M with “a period not exceeding 1 year”. What we’re asking the Minister to consider here is to reduce the default duration of the young serious offender declaration from 2 years to 1 year, with the provision for renewal by the court for a further period of 1 year. As it is currently drafted, the provision establishes a 2-year duration as the standard period for the young serious offender declaration. Given the significant impacts of such a declaration on a young person, a shorter default period, we argue, would be better and would better reflect the principles that interventions should be proportionate and no more restrictive than necessary. The amendment ensures that the declaration—[Interruption]

CHAIRPERSON (Teanau Tuiono): Can you just keep it down a little bit on that side of the Chamber, please. It is making its way across the Chamber.

Hon WILLOW-JEAN PRIME: The amendment ensures that the declaration remains in force for only as long as is justified, and by requiring any continuation beyond 1 year to actually be actively renewed by the court, it introduces an additional safeguard and promotes regular judicial reconsideration of the young person’s circumstances and progress. This approach would align with the Oranga Tamariki Act 1989, including the importance, once again, of minimising intervention and promoting rehabilitation. It avoids the “set and forget” model and ensures that the extended use of the young serious offender (YSO) regime is subject to ongoing scrutiny and justification. That effect is to create a more responsive and proportionate framework in which the duration of the YSO declaration is tailored to the individual circumstances of the young person and reviewed as those circumstance change.

My questions to the Minister, in addition to whether she has considered this amendment and what is her response to it, are: how did the Minister assess the impact of the longer duration of the YSO declaration on young people, and whether or not the two-year default is the best way to minimise intervention and promote rehabilitation, and why did the Minister not set the duration at one year and then allow the court to expand rather than simply setting the default at two years? So please explain to us, the committee, why it is the two years, and your response to the proposed amendments and the question we asked around the merits of making it one year, with the ability of the courts to extend that to a second year, if necessary.

Thank you, Mr Chair. I do want to support the Hon Willow-Jean Prime with her amendment, because my colleague Tamatha Paul has a very similar amendment in clause 4, and this is dated to 11.50.07. The Hon Willow-Jean Prime has already mentioned all of the consideration and evidence and context on why it should be reduced to one year, so I won’t dwell on that, and I think the only thing I will mention, with regard to that, is the fact that this would also align with some of the consideration by the submitters, particularly the Criminal Bar Association, but this also echoes the sentiments of the Children’s Commissioner around the United Nations Convention on the Rights of the Child, as well. So it is something that’s important to hear from the Minister, on that consideration.

I want to check with the Minister on new section 320O, inserted by clause 4, which is “Term of YSO declaration may be extended”. Noting there’s a whole list of criteria of how the two-year period can potentially be adjusted, the one I want to specifically focus on is the interaction between subsection (9) and subsection (10)—this is page 16 of the bill, roughly between line 10 and line 15. Subsection (9) says that “A YSO declaration may be extended for a period not exceeding 1 year and may be extended more than once.” The clarity that might be needed there is: if it’s extended once, it can’t go beyond one year—does that mean that it can be extended more than once but they can’t go within a one-year duration in total, or, every time it extends, it can be no more than one year? I presume it is the former, because in subsection (10)(b), it says that YSO declarations may not be extended at all in a situation that will mean that a declaration is “in force for a period exceeding 3 years”. My assumption is that it can be extended more than once, but the total duration can’t be above three years. Would that be a correct interpretation—that being my first question?

My second question around this is: let’s say it can’t be extended more than once: hypothetically, we have a scenario where a young serious offender is 14, they had a three-year declaration that will take them to 16, they had extensions that would take them to 17, and if the maximum is three years, it means that if there is offending in between that, it can’t go beyond the age of 17. But once they turn 17, if they offend—and this question could be responded to in the next section, and my apologies if this is covered in the next section, and the Minister can tell me if it is—and something happens after that previous maximum three-year declaration has lapsed and there is new offending, does that mean they get a new declaration of two years as a result of that? I won’t ask in terms of the extension, because there is the limit to that of 19 years of age.

It’s just kind of how that maximum three years would interact in this case, particularly around the mode of extensions, and if you’re looking at earlier clauses, like subsection (1), I presume the extension is only when you’re looking at a case where a young serious offender is charged with a further specified offence. I won’t discuss the offence itself, but it’s the three-year limit that I’m interested in.

Thank you, Mr Chair. I want to focus, similarly, on the new sections 320K and 320L—inserted by clause 4—space of this discussion tonight. It might even have some reference to new section 320I and 320J, which I think we covered a little bit last week. I want to know, Minister: do you know whether any part of that engagement with the young person and their family is facilitated, supported, and taken care of by any iwi providers? Does it enable that? If so, if you’re looking at 320I, and paragraphs (a) to (j), that’s a mountain of work. I’m wondering: it’s one thing to get the perspective and understanding of what happened for the young person, but what happened for the young person and their families has got to be a critical part of the discussion.

In new section 320L, I’m imagining, too, like the previous speakers have discussed about the engagement in court—how does that actually occur? I know too many, because I used to sit inside these places. They’re not the nicest places to be, of course. But, again, you imagine you’re a young person, and this material is being explained, and they’re going through what’s happened and where they’re going to head with this particular situation, but where in that are their whānau and where are they understood in this engagement, and then, potentially, any iwi engagement in this? So all the whānau and all the iwi that come with these young people—does this process appreciate the value of that and enable it in court? I’m really interested to know whether the Minister knows that and understands that, and I’d be interested to understand that, firstly.

Thank you, Mr Chair. There’s been a few amendments spoken to, so I will just go through them. In regards to the amendment with the time stamp 7.05.33—and that also includes the one time stamped 11.50.07—I don’t support these amendments, because I consider the two-year declaration length is necessary to make meaningful change in these young people’s lives. These are young people who the Youth Court considers are likely to reoffend, and previous interventions have been unsuccessful. Changing behaviours takes times. None the less, the bill also provides for the Youth Court—and, hopefully, this answers the Green Party member’s question at the same time—to be able to reduce the term of the young serious offender’s declaration on application, but the application can be made once after the declaration has been enforced for 12 months and once after 18 months—so a maximum of three years.

Thank you, Mr Chair; thank you to the Minister for her answers thus far. I’m looking at an amendment filed by my colleague Helen White, time stamped 7.05.36. The headline I would put on this amendment is just ensuring that the courts have sufficient discretion to consider the particular circumstances of the young person in front of them.

The amendment being proposed is in relation to Part 1, Subpart 1, clause 4. This is a new clause 4, new subclause 320P(6) after paragraph (b). I’m just going to go there now because, in subclause (6), we’ve currently got paragraphs (a) and (b), and this is where “The court may grant an application and make an order reducing the term of a YSO declaration if the court is satisfied,” on one of two grounds, either that “there is a low risk that the offender will reoffend;” or that “the YSO declaration is not required to promote the offenders compliance with orders made by the court.”

The proposal from my colleague is the addition of a new paragraph (c), that “the grounds upon which the YSO declaration were made no longer exist or no longer apply, or that, for any other reason, the declaration would not be made in the current circumstances.” Essentially, it’s expanding the grounds on which the Youth Court may reduce the term of a young serious offender by introducing a broader, I would say, circumstance test.

For example, we’ve got, where the young person has addressed their cause of offending, things like new support arrangements that might be in place, so that might be covered by the current paragraph (b); but perhaps where there are broader contextual factors that have altered the appropriateness of having an order in place, the jurisdiction isn’t quite there under the existing drafting to allow a court to stretch into circumstances that might just relate particularly to the individual concerned. A question to the Minister is whether she would consider broadening the jurisdiction of the court to take into account circumstances that may be quite particular to the individual young person.

To Helen White’s amendment timestamped 7.05.36 proposing to provide more grounds for the court to reduce the term of YSO declaration, I won’t be supporting this because the bill requires the Youth Court to consider that there is a low risk that the offender will reoffend, and the young serious offender declaration is not required to promote the young person’s compliance with the orders being made. You are correct—these existing provisions reflect the grounds upon which the declaration was originally made—and, therefore, the proposed amendment is unnecessary.

Thank you, Mr Chair. I would like to come back to my question earlier again, “leaving the courtroom”, and it literally says that in this bill. I’d like to know from the Minister for Children whether iwi providers, supporters, whānau, are notified and engaged in this process before the young person leaves the courtroom. The reason I ask that quite deliberately, and I’m not sure why it’s not been answered earlier, is the way in which, again, it’s just so readily discussed as “a young person”, “a youth”, or “a young person”, as if they belong to nobody.

Again, this is why the things were changed in 1989 to “children, young persons, and their families,” because it recognised that they belong to families, they belong to whānau, they belong to iwi, and they belong to hapū. Nowhere in this does it suggest that this young person has anyone but their shadow. I beseech you to just speak rationally, or maybe naturally, Minister, to explain what you know and understand will occur before they leave the courtroom. I’m interested to know whether you imagine what that’s like, and some kind of decent response to that, Minister, would be useful. Thank you.

Thank you, Mr Chair. I want to take the committee to my tabled amendment timestamped 5 August, 7.05.37. It is proposing an amendment to clause 4, new section 320Q, to replace subsection (2) with “The grounds on which an application may be made under subsection (1) are compassionate grounds, including that”—and it provides a list there—“(d) the offender is suffering from serious mental health issues, whether or not those issues amount to a diagnosed mental illness; and (e) any other reason that the court considers appropriate.”

What this proposed amendment does is it actually broadens the compassionate grounds on which an application may be made to discharge a young serious offender declaration under the new section 320Q(2) and clarifies the list of examples and makes sure that it’s not unduly restrictive. The effect is to ensure that a “compassionate grounds” regime is sufficiently flexible, humane, and responds to the lived circumstances of young people, enabling the court to make decisions that are proportionate and consistent with the welfare-focused principles of the Oranga Tamariki Act 1989.

As it is currently drafted, the subsection is framed as permissive, but it provides such a limited and relatively narrow set of examples that may influence how the Court interprets its discretion. The existing references to circumstances such as the offender being expected to soon give birth or being unlikely to recover from an illness set thresholds that may exclude significant and genuinely compassionate situations. This proposed amendment makes several improvements to ensure that pregnancy itself is sufficient without requiring that birth be imminent. It also clarifies that a serious illness need not be terminal or permanent by introducing the concept of “recovery soon”, thereby capturing conditions that may be temporary but none the less severely debilitating. In addition, the amendment expressly recognises serious mental health issues, whether or not they meet the threshold of a diagnosed mental health illness, reflecting the realities of young youth offending and vulnerability.

I ask the Minister for Children questions regarding this because we know that, in the first pilot of the military-style academy (MSA), we had a young person opt out of the programme and leave within just a couple of weeks of that programme starting. In MSA 2.0, the second military-style academy, we know that two young people have voluntarily left the in-residence phase of the military-style academy. Now, once this is made into law, young people will not be able to voluntarily leave the military-style academy programme. My question to the Minister before our time expires tonight is: what does she say to my tabled amendment about extending the compassionate grounds on which a young person can leave the military-style academy and this YSO declaration given that, in the first pilot and 2.0 version, we have had young people voluntarily leave?

Speaking to the tabled amendment timestamped 7.05.37, I don’t support this amendment. The compassionate grounds as currently drafted in section 320Q reflect that a young serious offender declaration would only be discharged in very limited circumstances. I note the current ability of the Youth Court to vary or discharge any order, such as a “supervision with residence” order, or any condition such as curfew that a young person is subject to. This bill does not change this. These options remain available to the Youth Court whether or not there are grounds to discharge young serious offender declarations.

Progress to be reported.

House resumed.

CHAIRPERSON (Teanau Tuiono): The committee has further considered the Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill and reports that it has made progress on the bill. I move, That the report be adopted.

Motion agreed to.

Report adopted.

DEPUTY SPEAKER: The House stands adjourned until 2 p.m. tomorrow.

The House adjourned at 9.59 p.m.