Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill

Thank you, Madam Chair. We know that the system has not served most serious youth offenders or our communities adequately in the past. This has been turned around with a huge reduction in youth offending since this Government took office. The initiatives in this bill are designed to build on those gains and lock them in, keeping our communities safe while giving young people the opportunity to turn their lives around.

This bill creates a young serious offender declaration and this will unlock stronger powers for both the Youth Court and New Zealand Police. The Youth Court will have the ability to make a military-style academy order longer, make Youth Court orders, and increase the use of electronic monitoring. For every young person declared to be a serious youth offender, it will trigger a far more intensive operational response.

The bill provides new police powers to ensure that if a young person who is declared a young serious offender reoffends or does not comply with conditions of any Youth Court orders, we can respond far quicker before their offending escalates. The bill creates a military-style academy order where the most serious youth offenders can spend three to 12 months in a youth justice residence undertaking a military-style academy programme. The order is about young people facing tougher consequences but also having support wrapped around them with intensive case management, rehabilitative support, enhanced transition support, and whānau engagement.

In Part 1, there is an Amendment Paper of mine, so I’d just like to speak to the amendments that will be in Part 1 from myself. I’m proposing two amendments to Part 1 of the bill through my amendment. The first amendment relates to clause 4 and it addresses a technical issue which mistakenly limits the effects of changes recommended by select committee and accepted by this House. The select committee recommended that in some limited cases, the Youth Court should be able to make back-to-back orders when, for example, a young person reoffends just as their young serious offender declaration is ending.

Currently, section 285(5) of the Oranga Tamariki Act prevents the Youth Court from making two orders at the same time back-to-back. My amendment is to ensure that the select committee’s changes can work as intended. This change is important because it ensures the Youth Court has access to consistent sentencing lengths for all young people, regardless of when their declaration expires.

The second amendment relates to the Schedule and is a simple technical amendment to update the bill to ensure that young people on military-style academy orders have the same access to their youth advocate as other young people in youth justice residences. I commend these amendments to the committee.

CHAIRPERSON (Maureen Pugh): Before I take the first call, can I just point out there are quite a few clauses in this first part, so it would be helpful if you could identify which clause you are speaking to, please.

Thank you. Yes, as you point out, there are a number of clauses and then changes to the particular section and then under that section, there are many, many pieces. We’re going to be talking about section 320 a lot, but it’s not repetitive, because there’s a lot in there.

But can I first start by saying that this bill legislates boot camps, an experiment that has never worked in the past and didn’t work in this Government’s military-style academy, aka boot camp. Here we are at the committee stage, progressing with legislating serious young offenders and the military-style academy into law.

I want to speak to Part 1. This is tabled amendment 7.05.16 in my name where I am proposing that we replace “young serious offender” with “young person that meets specified offending criteria” in every instance. Also in Part 1, replace “YSO” with “young person that meets specified offending criteria” in every instance. This does also apply to Part 2, but I’ll just deal with Part 1 at this point.

The reason for this proposed amendment is because we heard through the select committee process that there is no need for a label. There is no administrative need to have the “young serious offender” label put on a young person. This is simply political and it is dangerous, because names and labels matter, and the evidence internationally shows that names and labels matter. It could become a self-fulfilling prophecy for these young people.

As I said, there is no administrative need to label these young people “young serious offenders”. We had submissions from many submitters pointing out that this risks stigmatising them far beyond their youth, and could have negative impacts. My question to the Minister is: why is the young serious offender label necessary? The evidence we received said that you are able to identify the age of the person, so “young” is unnecessary; you’re able to identify their record of offending, so it is unnecessary to have the label, but there could be stigma and negative consequences.

My question to the Minister is: will she consider my proposed amendment to change the label “young serious offender” to “young person that meets specified offending criteria” and “YSO” to “young person that meets specified offending criteria”? It is unnecessary and it should be removed due to the potential to cause harm.

Kia ora, Madam Chair. My questions relate to new section 320A, inserted by clause 4.

The first thing is around this interpretation of “proved” in here. One of the ways that this can be proved is through an admission. What a lot of the submissions said to us was around admissions of offending made during a family group conference and how that being used as evidence against the young person, or evidence in building a case towards designating them as a young serious offender, could actually undermine the whole purpose of a family group conference.

My question regarding that is, did the Minister consider the adverse effect of including admission of offending at a family group conference as an eligibility criteria? I think that is a really important point, and I know that in this committee of the whole House stage, we will talk a lot about family group conferences and the roles that they play in this process of the declaration, which does warrant scrutiny and interrogation, because family group conferences are one of the innovating, world-leading parts of our juvenile justice system. If that environment becomes one in which a young person being honest and admitting an offence can then be used against them, it can undermine the entire purpose of a family group conference, which is for a young person to take responsibility for their offending and to put their hand up and say, “Yes, I did do that wrong”.

That admission is really important, because it also means that rehabilitation for that young person is just not going to work without an admission of guilt—otherwise, they deny that it happened, they deny the harm that they’ve caused. The reason that young people currently can make those admissions in family group conferences is really undermined by that then being able to be used against them. Can the Minister talk to us about why that admission is needed to be proved within this context?

Another part within this new section 320A that is really important, as Willow-Jean Prime outlined previously, is this title of “young serious offender”. That is defined in this new section and in this clause. We could talk about this “young serious offender” label for a really long time, because this was probably one of the biggest areas of scrutiny by the submitters. People really questioned the psychology behind that label itself and what psychological impacts that can have on the young person who gets that label.

I guess one of my beginning questions on that, to build on what the previous speaker talked about, is has the Minister considered not just the self-fulfilling prophecy narrative that this young serious offender label carries but has the Minister considered also the kind of glorification of the offences that comes about through young serious offenders? I think probably the best example that everybody knows of labelling young offenders and having it backfire is actually the Mongrel Mob. The Mongrel Mob’s name came from a judge, in Lower Hutt, I believe, saying to a group of young offenders that they were a pack of mongrels. They didn’t take that as, “Oh, I better go and look at my actions”; they took that as a badge of honour.

That is what a lot of the experts who submitted on this bill raised—that in creating this “young serious offender” label, any Minister and any official must consider the badge of honour that it might create for some young people. That is one of the reasons why some of these offences are live-streamed and videoed and broadcast—to skite about it. Unfortunately, there is that risk that that “young serious offender” label will also be something to skite about and something to be earned, and that could actually lead to more crime—people trying to earn that label. That’s just the beginning, but there’s so much to dig into with this new section alone, so I’ll start there.

Thank you, Madam Chair. In response to Tamatha Paul’s question, what does an admission in a family group conference actually mean? That’s a really good question, and I appreciate it being brought up, because I think there is a lot of concern there, so I’d just like to clarify it.

The bill defines “proved” as a finding by the Youth Court that the charge is proved following admission in a family group conference (FGC), a guilty plea, or through a defended hearing. This legislates for current practice that already happens in the Youth Court, where the court is provided a report from an FGC including an admission by the person of the charges or charge. The Youth Court, if satisfied that the charge is proven, then records on the court file “proven by admission in a family group conference”.

Eligible offences for a young serious offender declaration are offences carrying a maximum penalty of 10 years imprisonment or more, and all young people charged with these serious offences must have legal representation at an FGC.

Thank you, Madam Chair. As has been put out already, this is a chunky bill, and there are a number of amendments on the Table; I see that the Clerk has kindly bundled Labour amendments together.

I’m, essentially, going to invite the Minister to talk and to respond to some questions about the purpose and intention of this legislation. Amendment Paper 662, if we go through them roughly consecutively, is actually just behind the tabled amendment that the Hon Willow-Jean Prime talked about, which suggests that there should be a purpose clause inserted. It’s actually a little bit more; the clause as drafted—very ably drafted by Willow-Jean Prime, I see—does a little bit more than that.

We disagree pretty strongly on the strategies adopted in this bill, but I do believe the Minister does genuinely want to achieve the purposes that are set out here. Whilst, for example, the young serious offender framework is framed as a kind of “turning up the temperature” on punishments, if we unpick it, there are some aspects of it that just enable more intense interventions. If we look at the tabled amendment, it would insert a purpose clause just saying, essentially, that the purpose of this set of amendments in this bill is actually to promote the rehabilitation of children and young persons who offend and also support their reintegration into their families, whānau, hapū, iwi, and communities.

I think that’s a really important point, and I think it’s really important at the outset to say that youth justice is quite different from criminal justice. In the kind of framing of it, criminal justice for adults does have, essentially, a punitive aspect—a deterrence aspect—whereas, in a youth justice framework, that is pretty much non-existent, and it’s worth pointing that out in a purpose section. The whole objective of youth justice is to “correct the ways” of this young offender by providing them with the necessary support and interventions. That’s the proposed purpose section in subsection 1(c): “prioritise and enhance the wellbeing of those children and young persons, including their physical, emotional, cultural, and developmental needs.” Because, look, this piece of legislation will pass—this is how these things work—but it would be worth, particularly for the military academies, to point out that that third purpose is, in fact, I hope, their purpose, which is to enhance the wellbeing of those young people. It’s against that background that, perhaps, that service will be delivered more effectively.

The second part of that purpose section sort of says that in performing their functions, Oranga Tamariki must, essentially, take a particular approach. In particular, a shout-out to our outgoing Children’s Commissioner, who is such a fantastic advocate for young people, and really did go hard on the Government—and rightly so—because she was so passionate about it. She would absolutely say that the Government, and any Government, should adopt a child-centred and strength-based approach—you put that child first. I think if we do take that approach, then when we come to ask what a military-style academy actually looks like and what it delivers, it’ll be quite different from one that, essentially, takes, for example—to use the language of one National Party member in particular—a victims-based approach.

That victim may well want retribution, but retribution doesn’t play a part in the youth justice system; that belongs elsewhere. A child-centred approach is really important. It also just recognises, every step of the way, family and whānau relationships and that this child is interconnected. Strengthening those networks is an important part. It’s not just about the person; it’s about their community and their family as well. I haven’t gone through every line of the proposed amendment, but it’s there on the Table, and I’d be very interested if the Minister was interested in adopting it. Thank you.

Just in response to the Hon Dr Duncan Webb, who has spoken to a couple of amendments—I will respond to the amendment in regard to inserting a purpose clause—I do not support this amendment. The existing purposes and principles of the Oranga Tamariki Act, including the youth justice principles, will apply in these new provisions.

In regard to another amendment he spoke to, amending the definition of “proved”—there’s another amendment there—I don’t support that amendment, and it has also been spoken to by a couple of speeches already. The current definition of “proved” already covers applicable pathways.

There is another amendment that has been spoken to as well, around removing the use of the term “young serious offender” throughout. I do not support this amendment because the “young serious offender” declaration is purely an administrative label, which will only be used by the Police, and the Youth Court and will not be publicly available.

Thank you, Madam Chair. Clause 40, new section 320X, requires the Youth Court to make a supervision order immediately following any military-style academy order, with the combined term capped at 24 months, under section 320X(1)(a)(ii)(B)—gracious! I am discussing this, not because I’m passionate about this but because I am experienced in it. I have, over the years, convened a number of youth justice family group conferences, care and protection family group conferences, so I know what I am talking about. This isn’t passion; actually, this is probably just quiet rage about how bizarre we get to this point. Here we go again and we’re discussing boot camps in this Chamber.

Section 320S(5)(b) further allows the military-style academy programme itself to include an overnight component delivered outside the residence established. Under section 335, the court can only approve an activity if delivered by the chief executive or a qualifying provider not yet defined in operation. This committee is being asked to authorise an order whose most institutionally risky element—overnight placement outside a residence—is left to a plan that a court approves without any regulatory standard yet in force under section 447.

Before I ask the question, Minister, I wonder if the Minister has had any insight into the 13 recommendations that were put under Pūao-te-Āta-tū. I was in the department and worked in that space and understood the possibilities that existed in those 13 recommendations, which, of course, this particular piece of legislation just nails to the wall. It kicks it out of the park. It has no real understanding and knowing of the importance of that time and what it meant for whānau, what it meant for Māori communities, what it meant for mokopuna Māori. Sadly, it has failed; this piece of legislation fails us yet again. I ask the Minister: under new section 320S(5)(b), what specific activities constitute the overnight component that may be delivered outside a section 364 residence, and what safeguards, under section 335(3), will apply to a plan approving a component before any court has tested this provision in practice?

This is one of several amendments, and they all sound very numbery and all very technical in way. I mean, we need to speak that way because that’s the way this process was designed, but I guess the fundamental question that I want to ask is: why would you even consider bringing a thing like military-style camps—I mean, “military”? We all know what that word means, right? It isn’t good for us. They’re our young people. Boot camps—a big boot with a dirty big rubber heel on your throat. Those are the memories that come back.

I know this stuff. This isn’t passion speaking; this is experience speaking. I look forward to any reasonable responses that the Minister may provide.

In response to why we considered allowing outside providers to play a role in this space, it’s because—even the member Mariameno Kapa-Kingi herself has spoken many times about allowing iwi, hapū, and communities to do what they do well and enable them to be able to actually do some of this work in this space, and this legislation allows for that. I have had many iwi and hapū come to me and say that they would like to be stepping up in this space, they would like to be working with these serious youth offenders, rather than them ending up in a youth justice facility, but the current law doesn’t allow that. This law will allow that, with oversight.

All right, so we did just kind of jump all the way forward to new section 320X, but I wanted to bring it back to new section 320A, inserted by clause 4, because new section 320A is about 15 pages long. We kind of jumped to the end, but I’m bringing it back to the start.

CHAIRPERSON (Teanau Tuiono): Have you got a page there?

TAMATHA PAUL: Yes, page 7 of the bill. I’m just going to bring it back, because there is a lot to interrogate.

Back to new section 320A, under “specified offence”, paragraph (b)—that’s “punishable by a term of imprisonment of 10 years or more”—I wanted to ask the Minister for Children, and I wanted to say to the Minister also that we all have very strong feelings about this bill, but I would be really keen to go through it clause by clause, just so that the record will show that we really did think about each part of this bill.

I wanted to ask the Minister whether she might consider my table amendment which amends paragraph (b), “punishable by a term of imprisonment of 10 years or more”, and replaces it with “punishable by a term of imprisonment of at least 14 years”. The reason for that is because crimes that have a term of imprisonment of 10 years or more can be quite broad, and I believe it was the Criminal Bar Association that brought that point up, and that perhaps amending it to 14 years might more accurately capture the seriousness of the crimes that the Minister is intending to be targeting within this bill and, really, reduce the risk of overcharging young serious offenders, which is, essentially, when a prosecutor charges a defendant with a more severe crime or a greater number of offences than the actual evidence or circumstances warrant. I would be really keen to hear the Minister’s view on whether she might be open to looking at that as a way to, I guess, pinpoint the seriousness of the offending that she hopes to capture within here.

Then, to move to new section 320B, which is around “Young persons in respect of whom application for YSO declaration may be made”, I wondered whether she might also consider my amendment which is to delete subsection (1)(b). New subsection (1)(b) is around “who is currently charged with 2 or more unrelated specified offences that have been proved, and in respect of which …”, and what I want to do is delete that. The reason for that is to remove that eligibility to avoid capturing young people who are appearing in the Youth Court for the first time. I think one of intents of the bill, if I’m understanding what the Government has been saying about this bill, is to capture serious repeat offenders; however, the way that that part of that new section is drafted means that the Minister might capture people who are actually appearing before the Youth Court for the first time. I wanted to ask the Minister whether she might consider that amendment so that first-time offenders can, instead, be diverted away from the criminal juvenile justice system and towards, maybe, rehabilitation or something that isn’t such a serious consequence for someone who might be appearing before the Youth Court for the very first time.

In regards to removing 320B(1)(b), to avoid capturing people appearing before the court for the first time, I don’t support this amendment because the intention of this bill is clear. It is a response to serious and persistent offenders. This is why we have the requirement of two qualifying offences to ensure that only those who are known to the youth justice system are eligible for declaration, not just first-time offenders.

Thank you, Mr Chair. I just want to talk to a proposed amendment in my name, which is around what amounts to “proved”. I know my Green colleague touched on this definition—

CHAIRPERSON (Teanau Tuiono): Have you got a number for your amendment?

Hon Dr DUNCAN WEBB: Yes, so this is clause 320A, and the tabled amendment is one that was lodged at 7.05 and it’s got 17 on it. Clause 320A is on page 7 of the bill. My point is this: that if we get a have a trigger of “proved” for young serious offender declarations, then “proved” needs to cover all eventualities where there is an affirmative finding of some kind in response to the charge.

An admission of a guilty plea in a defendant hearing looks like it covers all options, but in fact it doesn’t. It doesn’t actually cover the possibility of an undefended hearing, which does occur. And so my proposal is that you add a paragraph (d) in here to make it comprehensive, and it’s a hearing where the charge is not opposed. It could say “undefended”, because one of the frustrating things that some defendants do, with a little bit of legal advice, is nothing. They don’t want to admit it, that it’s a guilty plea or an admission. They don’t want to fiercely defend it. They will just sit on their hands and do nothing. The court has to go through a process, but it’s not being defended; it’s being, essentially, formally proved by the prosecution. And so it’s not a defended hearing, it’s not a guilty plea, and it’s not an admission; it’s simply that the charge is not opposed and the court, from that lack of opposition, goes on to make an adverse finding.

The reason it’s really important to put this in is that if you don’t, every young person will simply not oppose the charge. They’ll simply not enter a plea and do nothing. Even if there’s an adverse finding made, it doesn’t fall within the definition of “proved”, and therefore, you can’t make a young serious offender declaration. It’s a technical point, but in going through this, this is an extremely technical piece of legislation, and rather than talking about the charge, a guilty plea, or a finding against the young offender, if you’re going to have the special meaning of “proved”, you need to have it comprehensive. It’s a small point, but it’s one which lawyers love because if they can find a crack like that, they’ll get their clients to drive through it. Of course, now that I’ve said it here, they all know about it, right?

Thank you, Mr Chair. Just in response to Tamatha Paul in regards to an tabled amendment around section 320A, “specified offence to include only 14-year offences”, I just thought I’d give you a response to that because you’d spoken to it, so it deserves a response.

I don’t support this amendment because both 10- and 14-year offences represent serious offending by young people, so these should both form part of the eligibility criteria. Offences carrying a penalty of 10 years of imprisonment are serious offences. They’re not small things. They can cover robbery, serious assault, sexual offending, ram raids, all proven, so they’re serious enough for me to consider them.

Totally, Minister. Not at all acting as if those offences aren’t serious, but the intention was more that the 10-year limit could capture people appearing before the Youth Court for the first time. That’s not saying that they shouldn’t have consequences at all, but it’s just to say that perhaps there’s still a chance at that point when they’re first there to actually really turn their lives around before getting them wrapped up in the juvenile court system.

But while I’m here, I might also speak to—we’re still obviously speaking to clause 4, but I’m looking at new clause 320C, or it might be under clause 320B, and one of my other tabled amendments. Sorry, yes, it is the new clause 320C, which is around police and their ability to “inform the youth justice coordinator of possibility of application for YSO declaration being made in respect of a young person”. There is a time—

CHAIRPERSON (Teanau Tuiono): Can you just confirm the timestamp on that?

TAMATHA PAUL: Oh, yeah. It was today at 11.50.04 a.m. Is that helpful? OK, cool. Within that, this is basically around police. This is when police will notify that they intend to apply for a young serious offender (YSO) declaration, and I believe, in the bill, it does that in seven days. This amendment is basically asking to extend that period of time, so extending it to 21 days ideally.

This is, basically, just so that there is time for more thoroughness, so that if we allow for a bit more time, as was recommended by Te Tira Whakamātaki, this will allow for more thorough assessments of what’s going on. It means the family or the guardians or the community of that young person are able to prepare better for the family group conference so that, hopefully, fairer decisions can be made, and better preparation can go into it. That is an amendment asking for that notification to just be pushed out, I think tripled potentially, just to three weeks rather than one week to allow for a bit more time for preparation and assessment.

This is in response to Tamatha Paul in regards to the amendment to clause 320C to make the notification period for a young serious offender application to family group conferences (FGC) from one day to three weeks. I sympathise with what you’re speaking to, but I don’t support this amendment for a reason, because this bill is intended to provide a swift response to those who are persistent and serious offenders. These matters should be disposed of in the youth justice system quickly, and adding three weeks at the FGC stage will simply just delay outcomes.

Just thinking about this across the whole of youth justice, a lot of young people sit on remand with no certainty of what’s going to be happening because the FGC process may take a bit longer and hold things up. This is just about making sure that we have a very swift response to this.

The other thing that I’d just like to reiterate again, just in case there’s some confusion later, is that no one appearing for the first time is eligible for a young serious offender order. This is why they have to have committed two unrelated offences on top of that. No one for the first time will be declared a serious youth offender.

Thank you, Mr Chair, and thank you to the Minister for Children for her responses. I didn’t have the opportunity to examine the bill at the Social Services and Community, but I do believe that this is an extremely important piece of legislation because of the time I spent as a solicitor and then as a manager at YouthLaw Aotearoa where a lot of the young people who would present in these circumstances would come to us for help.

My question relates to clause 320B(3), and when I was reading through that, it just felt like there was—sorry, I’ll go back. Clause 320B(3) and clause 320B(4), which I read together, and when I read them both, it felt to me like there was a serious natural justice issue potentially at play. The Minister for Children can correct me of course if I’ve read it incorrectly, but subclause 320B(3) appears to allow a previously declined application to be revived using the very same specified offence once a fresh application is later filed.

So I just wanted the Minister to speak, in terms of subclause (3), as to how this is not, in substance, a second attempt at a case the State has already lost once, and what natural justice principles permits the State to, essentially, relitigate a matter, potentially, because the first outcome simply failed.

Subclause (4) appears to go further in that it lets offences from an earlier declined application to be treated as current offences. So the two subclauses are linked. Again, even though the Youth Court has already made a section 283 response disposing of those charges, those could then be brought up again. What I’m worried about with subsection (4) is that it’s triggered, essentially, by a breach. It could be something like absconding under sections 296B or 316. Is there a risk, in terms of the Minister’s assessment, that someone who breaches a curfew or supervision conditions, which might arise because of housing instability reasons or family circumstances, that they end up, essentially, being punished twice for circumstances that are well out of their control? If the Minister could address those two subclauses, I’d be very grateful. Thank you.

Thank you, Mr Chair. Just in response to the the Hon Dr Duncan Webb talking about “proved”. I just wanted to reiterate the definition of “proved” in this bill reflects current practice in the Youth Court. It is entirely appropriate that when a young person admits offending, that counts towards the eligible offences.

This is my first time taking a call on this important debate. Like Vanushi Walters, I did not have the privilege of sitting on the Justice Committee, but I want to acknowledge those who did. I want to also acknowledge Tamatha Paul who has tabled several amendments.

I want to speak to one of those—timestamp here of 11.50.05. This is making changes to clause 4 under new section 320E, “Applications for young—

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

RICARDO MENÉNDEZ MARCH: 11.50.05.

CHAIRPERSON (Teanau Tuiono): And it’s Tamatha Paul?

RICARDO MENÉNDEZ MARCH: That’s right. It’s under the name of Tamatha Paul, Wellington Central MP.

This is the one that changes, in clause 4 new section 320E, “Applications for young serious offender declaration” and for suggesting that we replace “constable” with “senior police officer”. Now, for people watching, constables do make up the sort of greater proportion of people in the police force compared to senior police officers. One of the reasons why my colleague Tamatha Paul and the Greens back this amendment is because we wanted to test, with the Minister for Children, whether she thinks that having senior police officers being the ones who can make these applications as opposed to constables, just addresses some potential concerns that members of the public or advocates may have around biases and to manage risks. Also, to acknowledge that the sort of seniority component of that would additionally come with, you know, the respect and as well as connections to the community that they’re supposed to protect and be accountable to, also for their use of discretion or, potentially, the influence of any unconscious biases that may be part of it.

In the interest of, I guess, the Government meeting its objectives, we did wonder—you know, despite us obviously not supporting the bill, but in acknowledgment of what the Government is trying to do—if the Minister would be open to considering this amendment simply for the nature that it elevates that decision making to a more senior position, and, in my view, that just also encourages trust amongst the people who, ultimately, will be affected by this legislation—then at least those that end up making these applications will come with more experience and the recognition that they have served to the degree of being worthy of that title.

If the Minister is not keen to support this amendment, I guess I would be interested in knowing what steps the Minister hopes to undertake in her role as Minister to address any concerns that may arise within the community around the sort of use of discretion and biases that may occur via constables being able to make these applications. I do think this warrants careful consideration, and if the Government is keen to make this bill work as they intend to do, we would suggest that elevating the title to a more senior position when it comes to the applications for young serious offender declarations would be more appropriate. I’m keen to get the Minister’s reflection on this issue, and acknowledging my colleague Tamatha Paul for bringing this amendment forward.

Thank you, Mr Chair. I want to speak to an excellent tabled amendment in the name of Glen Bennett, who’s got a very thoughtful amendment on the table—it’s in the Labour bundle 7.05.18.

Now, there’s a couple of things—this is around offences that are of the same or similar kind. There are two questions I have: the first is, in response to the member Tamatha Paul, the Minister for Children appeared to say that no person will be subject, or could be subject, to a young serious offender declaration when it’s their first time in court. Now, I don’t quite get that because in the example that I was talking about with a colleague, that if a young person, you know, one Saturday night, steals a car or commits one serious offence that crosses the threshold and then a week later commits a serious assault that crosses the threshold, and the police put those two charges together before the Youth Court—it strikes me that on the wording of the Act, because they are not of the same or similar kind, different courses of events, that those two offences together would cross the threshold, and the court could, in considering those offences, impose a young serious offender declaration. If the Minister could clarify that, that would be really good.

The second thing is, in terms of the amendment I have, because “offences are not of the same or similar kind”, is actually quite a tricky concept and there’s always the kind of like rampage problem—it’s not very tidy phrase—but if someone goes and smashes a window in a shop, steals a car, and then pushes someone into the gutter; now, do those three offences meet the “not the same or similar kind”? It’s a novel phrase in the law and I actually searched the legislation to see if it appeared anywhere else; it doesn’t. That’s why I have suggested the use of the phrase in my amendment, “not of a similar kind” or “part of a connected series of offences”.

The reason I propose that is because it’s drawn from the Sentencing Act. When you sentence someone, there’s the possibility of either a cumulative or concurrent sentence. If you do one set of events and it’s all, kind of, the same melee, then you’ll usually get a concurrent sentence. You might be sentenced to six months for that and a year for that, but it served concurrently, so it’s only a year. Whereas, if you do entirely separate, not of a similar kind or part of the connected series of offences, then you’ll get a consecutive sentence. It strikes me that the use of that test is actually exactly what the Minister is trying to achieve.

“Same or similar kind” actually is problematic as well, because, to take my example, a young person who does these three things, essentially, in five minutes—there was smash a window, steal a car, and push someone over—they are not of the same or similar kind; one’s property damage, one’s a dishonesty offence, and one’s a violent offence. They’re about as different in class as you can get, but it is a connected series of offences. Actually, they’ve probably got the same cause—probably some anger- or drug-induced rage or something. They should be dealt with as a single offence or single kind of legal proceeding, and that’s what my amendment would address.

So I actually have quite a lot of concerns about the use of that unique phrase. I can understand why someone in youth justice didn’t look across to the Sentencing Act to find out something that’s got an established legal meaning, but now that I’ve drawn it to the committee’s attention, I’m really hopeful that you’ll adopt that, because I think it’s actually a pretty good one.

Thank you, Mr Chair. I may have missed it, but I was wondering if the Minister for Children was going to respond to the questions and points raised by Vanushi Walters. I just point out to the Minister that that also, I think, speaks to one of our tabled amendments, time stamped at 7.05.19, which is the proposal to delete paragraph (b) in new section 320B(4), inserted by clause 4. I understand she was talking to 320B(3) and 320B(4)(a) and (b). So it would be helpful if the Minister could respond to the points made and the questions asked by Vanushi Walters, and also to that tabled amendment, because those are some serious issues around justice.

I want to speak to new section 320C(1) and the tabled amendment in the name of Arena Williams, which has the timestamp of 7.05.20. It proposes that in new section 320C(1), after the words “constable who”, the word “reasonably” be inserted. This amendment is important because it qualifies the belief required of a constable by providing that it must be held reasonably. As it is currently drafted, the provision allows action to be taken where a constable believes that the statutory criteria may have been met. Without an express requirement that the belief be “reasonable”, there is a risk that the threshold for the action could be too low, potentially enabling decisions to be made on the basis of subjective or insufficiently grounded views.

So by inserting the word “reasonably”, it would align the provision with established legal principles which generally require that discretionary power, exercised on the basis of belief, be supported by reasonable grounds. This ensures that the exercise of power is grounded in objective justification and is capable of scrutiny. The amendment promotes consistency across the statute book and supports fair and proportionate decision-making by requiring that the belief relied upon is one that is reasonable and that a reasonable person in the circumstances could hold. It therefore enhances legal certainty, safeguards against arbitrary use of power, and strengthens confidence in the integrity of the process.

So my question to the Minister is: will she consider the proposed amendment by inserting the word “reasonably” there, for the reasons that I have outlined? The concern is that the threshold could be too low, subjective, and insufficient.

Thank you, Mr Chair. We’re still in roughly the same area, new section 320B—which is a chunky section, isn’t it?—and new section 320B(4), inserted by clause 4. My suggestion in my amendment, lodged at 7.05.19, is to delete paragraph (b). If the Minister for Children can point out that I’ve got this wrong, then please do. But it strikes me that paragraph (b), essentially, creates retrospective effect. We’re still on the convictions which can lead to young serious offender declarations being made. What paragraph (b) of subsection (4) here says is that “for the purposes of the subsequent application, the earlier offences may be treated as current offences (despite the Youth Court having made a response under section 283”—and that’s kind of the orders that can be made on a finding—“in relation to charges filed in respect of those earlier offences).”

So the young serious offender regime is a kind of supercharged intervention regime which gives significant powers to Oranga Tamariki to, essentially, place limits on the liberty of the young person. And certainly if this was a sentencing regime, you know, it would be seen as a very serious thing to say: “We are introducing a brand new regime, the young serious offender regime, and for offences that have already been committed and arguably resolved, they can count towards this new regime.” I mean, if you think about the three-strikes regime, it was pretty problematic, and there was no suggestion, when it was first introduced, that offences which had been committed prior to its passing into law could count as a strike.

What we, essentially, have here is a kind of mini - strikes regime. It’s like a two-strikes regime, but something that you’ve done and been dealt with for already can count as your first strike under the young serious offender regime, which is retrospective. I’ve got to say, despite the philosophy underpinning youth justice, I am of the view that this is a retrospective punishment: you are being punished again for something which has already been dealt with. So it’s a double punishment and it’s retrospective, because the law is changing under the feet of the person who’s already been dealt with by the justice system.

If I’ve got that entirely wrong, I’d be very pleased to know. But if I haven’t, and it has in fact got that kind of retroactive quality, I’d be very keen to hear the Minister’s justification for, essentially, creating a law which looks backwards and says, “Things which have already occurred can have consequences under this brand new regime.” Because that’s very uncommon and is seen as constitutionally very problematic. The Minister’s response on that will be appreciated.

I just want to reassure the member who’s just sat down, the Hon Dr Duncan Webb, that this is not retrospective. So any laws broken before this law is passed will not be able to go towards the young serious offender (YSO) declaration.

In response to Vanushi Walters, I’m just being reassured around natural justice issues. The member was concerned about whether a YSO declaration was declined and reapplied for using an earlier offence, and whether that would be a natural justice issue. The purpose of the YSO declaration is to address those young people who are likely to have reoffended or who have had previous interactions and have been unsuccessful. The YSO declaration is not actually an order. It is not a response by the Youth Court under section 283 of the Act. It’s purely an administrative label, and therefore I have no issues with natural justice. Natural justice was carefully considered as part of the bill’s development when the bill was vetted for human rights, and it was found to be consistent with the New Zealand Bill of Rights Act. To reiterate, the declaration is not an order; it is an administrative label. The Youth Court responses still respect natural justice principles.

Thank you, Mr Chair, and thank you to the Minister for Children for those responses. I have another natural justice issue across different clauses of the bill. I am just reviewing new section 320C and 320D, inserted by clause 4, not in their entirety but just in terms of a common issue that I was reflecting on as I read both of them.

In my view, a right that carries no remedy for its breach is not a right at all. I do think that although the Minister has said that they are administrative labels and they’re not orders, they do have an implication for the young people against whom they are made. I will go back one step.

There’s an obligation in new section 320C, inserted by clause 4, for the police to inform the youth justice coordinator of the possibility of an application for a young serious offender (YSO) declaration being made in respect of a young person, and they’re to do that as soon as it becomes their belief. The language is that they must do that; there’s no discretion permitted in the drafting of that clause. Similarly, in new section 320D, police “must inform the family group conference of that belief” if they believe there’s a possibility of an application for a YSO declaration being made in respect of a young person.

My question is really about what happens in terms of natural justice if those obligations are not met. If the police person fails to meet their obligations under new section 320C or 320D, would that mean that a subsequent declaration that’s made is deemed ineffective? What is the natural justice right that the young person holds, given that there is clearly a right being given to them by use of the word “must” in both those sections? Unless the Minister would like to point me to an appropriate clause of the bill, there doesn’t appear to be a consequence of failing to deliver on those two obligations. A brief question from me spanning those two clauses. Thank you, Minister.

In response to that member, I’m happy to wait for further information and might stand up again and reiterate on this, but both new section 320C and 320D that you spoke to were actually amended as part of the select committee process. I would assume that if the Social Services and Community Committee amended this, they would have gone through what those would have meant, but I will come back if there’s any further information.

I’m actually on the same bit that Vanushi Walters was as well—new sections 320C and 320D, inserted by clause 4, around police informing the youth justice coordinator—except I’m not talking about the “must”; I want to focus in on their belief.

A lot of those two there—new sections 320C and 320D—are that constable informing “the youth justice coordinator of their belief as soon as”, etc. My question for the Minister for Children is: what evidence constitutes a belief? What evidence might a constable communicate to that youth justice coordinator, or indeed in the Youth Court, to give evidence of the belief that they hold? Is it that they simply have to say, “I believed that this was happening, and therefore I reported it”, or do they need some kind of evidential basis that says, “I believed this was the case because I observed this, and I recorded this, and I have got this information”? I’m just keen to know what evidence constitutes a belief.

I also wanted to thank the Minister for her engagement in our tabled amendments, and I wanted to ask whether she might consider supporting, actually the Hon Dr Duncan Webb’s tabled amendment at 7.05.21 p.m. yesterday, which talks about inserting the words—

Hon Dr Duncan Webb: Don’t steal my material!

TAMATHA PAUL: Ha! They took all the amendments before I could lodge them today—nah! This amendment inserts “the facts giving rise to”. What I imagine this amendment is trying to tease out is a requirement for that constable to actually set out the facts that gave rise to that belief. We’re not sure that just simply the belief, as written within the bill as it stands, is enough of an evidential basis. We think that by putting in just those five words, “the facts giving rise to”, that that might then require a bit more evidence, which, as stated in the tabled amendment, does align with those established principles of good administrative practice and does favour reasoned and evidence-based decision making. If the Minister would please give us a response to whether she might support inserting those five words.

In regards to the tabled amendment that has just been spoken to about inserting “the facts giving rise to”, I don’t support this amendment, because current process gives all parties adequate notification of the possibility that a young serious offender declaration may be applied for.

Thank you, Mr Chair. I am talking to new sections 320C and 320D, inserted by clause 4, and I specifically want to talk about the tabled amendment in the name of Helen White, and the timestamp is 7.05.23 p.m. The proposal is that the words “or may be charged” are deleted in every instance that they’re mentioned in new sections 320C and 320D, thereby restricting the intention of the young serious offender (YSO) process to cases where a charge has actually been laid.

As it’s currently drafted, the provisions allow the YSO process to be triggered on the basis that a person may be charged with a qualifying offence. That introduces a degree of speculation and uncertainty into the statutory scheme as it allows significant procedural steps to be taken before any formal charging decision has actually been made. This amendment reflects the principle that coercive or consequential processes should be grounded in concrete and established facts rather than the possibility of future action. Initiating the YSO process prior to the laying of charges risks engaging the young person and their family in a process that may ultimately prove unnecessary—particularly in cases where no charge is subsequently filed. This concern is heightened by the mandatory nature of the obligation that we’ve been talking about on constables where they must notify the youth justice coordinator.

In its current form, the provision requires notification in any case where there is a possibility that charges may be brought, which may lead to the process being initiated in a wide range of cases that do not proceed further. This risks inefficiency and may place unnecessary stress on the young person and their whānau. By limiting the trigger for the YSO process to cases where charges have actually been laid, the amendment promotes clarity, fairness, and proportionality, and it ensures that the process is engaged only when there is actually concrete legal basis to do so, supporting a more disciplined and principled application of this regime. My question to the Minister is: would she consider deleting “or may be charged” in every instance?

Thank you, Mr Chair. Two things: just first of all noting that we’re still engagement on the amendment at 11.50.05 on changes to new section 320E, inserted by clause 4, in relation to constables versus senior police officers.

Moving now to new material under new section 320E, I wanted to ask—particularly in the provisions where constables may apply to the Youth Court for a young serious offender (YSO) declaration—what level of resources are intended to be used for the preparation around that in relation to making sure constables are using discretion responsibly? Have any training materials been already developed? Are there any sort of materials that will be developed? I’m interested to know, if that is the case, who will be in charge of developing those materials. In new section 320E(4), for example, the way that it’s worded “may apply”, there’s a level of discretion.

If the Minister for Children wasn’t to accept the tabled amendment I’ve discussed earlier, perhaps the Minister would like to talk a little bit about whether there’s any resourcing that will be deployed to ensure that those provisions are used responsibly and we account for any unconscious bias that may or may not exist otherwise. If she would like to maybe outline that, it would be useful.

Additionally, a new question would be whether the Minister, at any point in deciding the provisions under new section 320E, thought that perhaps a Youth Aid officer would be better suited for, say, being the one that would be able to apply to the Youth Court for a YSO declaration, or someone else within the workforce who perhaps has specific experience or training in relation to young people. So if she’d like to address and engage with the amendment from Tamatha Paul, that would be amazing, but also, if she’d like to engage with questions on preparation for this provision and the level of resourcing that may or may not have already been started to be created and used, that would also be great. Thank you.

In response to new section 328E, inserted by clause 4, Police have developed guidance to support making applications for a young serious offender declaration (YSO).

In response to Tamatha Paul and also Dr Duncan Webb on new sections 320C and 320D, inserted by clause 4, around evidence of belief, the belief is that the criteria has been satisfied, with the criteria that two unrelated specified offences have been committed. The constable will then communicate this belief to the family group conference (FGC) coordinator and the FGC itself.

This carries on to Vanushi Walters’ question. The FGC is required to consider the YSO declaration. Under section 320H, inserted by clause 4, a YSO declaration cannot be made unless the FGC has made that consideration and made recommendations.

Just moving to Arena Williams’ excellent tabled amendment 7.05.24. It relates to new section 320F, inserted by clause 4, and it proposes inserting a new paragraph. It’s about service, and sets out that if there is an application for a young serious offender declaration, then you’ve got to serve this application on a number of people. There’s a bit of a twist in the tail for this because the way in which proceedings in the Youth Court are served is actually set out in the Oranga Tamariki Rules 1989, and it provides default rules for service. It says that if you’re going to serve a young person, you can do so by serving their lawyer, and the same goes for the adult as well. The difficulty here is that you’re being told to serve four different people, but under the rules as they stand, you could serve three of them by delivering the documents to the lawyer, which is clearly not what’s intended by this legislation. That’s why I have suggested—or Arena Williams, in fact, has suggested—that after paragraph (d) you need to kind of tweak the Oranga Tamariki Rules by saying, “provided that service on the person’s name in paragraphs (a) and (d) must be effected by leaving that document with the person to be served, or if that person does not accept it, by placing it in that person’s presence and drawing it to that person’s attention.”, which is the normal thing to do when someone tries to run away from serving a document—that last bit is kind of a necessary addition.

This is to make sure that those people who clearly the legislation intends to be served and have the application explicitly drawn to their attention are, in fact, served, and that this overrides the rules in the Oranga Tamariki Rules 1989, which basically says just give it to the lawyer and service is effected. Once the thing’s under way, you can return to that default position for any subsequent applications, an affidavit, or whatever else might follow from this proceeding. But for the application itself, that there is an application extant clearly should be drawn directly to the attention of both the young person and the parent or guardian, by actual service.

Now, I think other kinds of service—because the legislature has leaned towards email service, the postal service, and so on, but for an application of this nature, and given the likely nature of the people upon whom they are being served, I would suggest that actual personal service, the handing over of a physical and official document, is a good idea. But if the Minister’s intention in the drafting this legislation was that you can serve three people—lawyer, parent, and child—simply by delivering it to one person, namely, the lawyer, then please say so; but if it’s to serve those people separately and individually, then that certainly needs some pretty serious attention.

Thank you, Mr Chair. I just wanted to come to new section 320H, inserted by clause 4, the area dealing with that family group conferences, and the amendment put forward by Helen White and an opportunity to consider the matter set out in 320H(1).

CHAIRPERSON (Teanau Tuiono): Is that timestamp dated 7.05.25?

Hon WILLIE JACKSON: Yes, 7.05.25. It is a very important and serious matter. Having myself dealt with family group conferences extensively before I came to Parliament, it is not right to—I’d ask the Minister for Children—restrict the Family Court process or the scope. By broadening the scope of consideration here, our amendment will support the core purpose of a family group conference, which includes participatory decision-making and whānau involvement. The worry here, I think, for the Minister, and for all of us, is that whānau will be somewhat restricted by what’s being proposed at the moment.

We need to have total whānau involvement, and rehabilitative responses need to be put in. This new amendment promotes more balanced and holistic advice to the court, and I think it will give more integrity to the process. I note that the Minister has been working closely with some of her Māori advisers, which is good. I spoke with one of them, at length, over the weekend, Mark Solomon, who has been working with the Minister and working on this kaupapa. He himself has expressed to me some of the concerns he has in this particular area, because the whānau, being the centre of this, needs the opportunity to participate, needs to be part of the whole decision-making process. What we have at the moment is a far too restrictive process, and when you get people like Mark Solomon, who is one of the key advisers, speaking about this and wanting to help the kaupapa, is something, I think, that the Minister needs to take into consideration.

Understanding the family group conference area—and I’ve seen so much be resolved through that family group conference process—we want it to continue to be a success. If we can see that it’s being too restrictive, then we will go backwards. So I would ask the Minister to consider this amendment. It’s an amendment that is being put up in Helen White’s name. I think, when we look at where we are, particularly with serious offenders, we need to bring forward members of the family who know those serious offenders better than anyone else, who can speak on their behalf; who don’t normally speak, but through this process are able to come out with views and ideas in terms of the offender that no one would have known in the past. So I’d asked the Minister to consider this.

Just in response to the Hon Willie Jackson’s question around Helen White’s tabled amendment, new section 320H(1)(a) relates to a youth serious offender (YSO) declaration following a breach of orders, so consideration of charges is irrelevant in that scenario, and so I don’t support that amendment.

Tamatha Paul’s tabled amendment around requiring a senior police officer to make a YSO application—I don’t support that because it’s actually not necessary. “Constable” applies to all police with constabulary powers. Applications of YSO declarations will be made by experienced police or youth aid officers.

Tēnā koe. If I may, I do want to touch on the family group conferencing aspect of this, because I think what is lacking is understanding. Now, the Minister for Children may not be aware, but family group conferencing is a concept that came out of tikanga Māori. The committee should know that. The whole family group conferencing activity and its fundamental understandings were born out of Māori thinking, out of a Māori world view. It’s called “family group conferencing” but it used to be called “whānau hui”, that was the origin of it. Mr Jackson will know, and several of us who have been around in that space will know that.

If you were to understand that, then you must realise that when family group conferences—by the way, the ones that are facilitated these days have three people in them; barely three, maybe seven at most, and an $18 budget for a family group conference. In the first family group conference that I ran for youth justice, we had more than 85 people—85 people concerned about a young Māori man who was failing, right? We gathered for more than two days. That’s family group conferencing in the most sincere and good way.

Can the Minister give absolute confidence that that is the approach, that is the sincerity of family group conferences in this context? I fear that it is not, because it is not understood from that world view. I’m really, really keen to get that understanding in a genuine and authentic way before we go to new section 320I, inserted by clause 4. Thank you.

Thank you so much, Mr Chair. I wanted to actually start moving on to new section 320I, inserted by clause 4, but I acknowledge that some members may still want to re-tread other bits, so just noting that.

I wanted to speak to Tamatha Paul’s amendment. It’s 11.50.06—

Tamatha Paul: Oh, ah—

RICARDO MENÉNDEZ MARCH: —yes. Thank you.

CHAIRPERSON (Teanau Tuiono): Can you say that again?

RICARDO MENÉNDEZ MARCH: It’s 11.50.06.

CHAIRPERSON (Teanau Tuiono): All right. Cool.

RICARDO MENÉNDEZ MARCH: Thank you. Have you got it there, Mr Chair?

CHAIRPERSON (Teanau Tuiono): Yep.

RICARDO MENÉNDEZ MARCH: OK. Cool. I just didn’t want to go ahead before you identified it. Basically, this is the stuff around what must be considered. The amendment just simply adds a declaration after new section 320I(j), in relation to matters that the Youth Court must have regard to when considering an application for a young offender: “(k) any medical condition or disability that may affect the behaviour of the young person.”

I guess I wanted to test out with the Minister for Children whether she believes that this is something that should be considered. If she thinks so, that’s great, but if not, I would like to know whether the Minister in designing these provisions sought to get a sense of, I guess, how many people who were going through the Youth Court are deemed to have a medical condition or disability that affects their behaviour, like, what proportion of young people would have traumatic head injuries or other disabilities that may impact them? We have heard that disabled people are often criminalised and face a particularly challenging time through the court systems. With young people in particular, many of them may not have had access to, say, for example, diagnoses that allow them to receive additional support.

Often, actually, going through the Youth Court can be an opportunity for young people to be able to receive a diagnosis and receive adequate support, but we simply think that adding that a medical condition or disability is something that should be able to be considered just simply accounts for that. I’m interested to know if this is something that the Minister would be inclined to consider.

Finally, if there was engagement with whaikaha in the design of this bill, I wonder whether they gave any feedback in relationship to new section 320I and whether she received any feedback from Whaikaha or others that disability or medical conditions that affect someone’s behaviour should be included in here. Thank you.

I understand where the member’s coming from, but I won’t be supporting this amendment because it’s not necessary. In the existing principles of the Oranga Tamariki Act in these provisions, including the serious offender declaration, the courts are already required, under the principles in section 5 of the Act, to put the wellbeing of a young person at the centre of decision making, and this expressly includes, for example, the young person’s experience of disability.

If I can go to new section 320I, inserted by clause 4, “Matters the Youth Court must have regard to when considering application for YSO declaration”. Straight away, I’m looking at “(a) the nature and circumstances of the specified offences” and “the personal history,”. What I know in this space is when the judge, when the court needs to know and consider seriously, they need to have good evidence, solid information about a particular individual. When you think you’re going to get “the nature and circumstances of the specified offences proved to” blah-blah-blah—the personal history, you need two years. You need time. You need good people that know how to collect that information from an individual and their family.

If you’re talking about my family, you would need whoever it is and then 75 other people in the room to give you all of that context. Sadly, Minister, this whole activity is so poorly understood, but you think it’s going to be dealt with by something as unproven and hopeless, in my view, as a military camp and boot camp and all of that kind of thing.

But I will go on, if I may. Let’s go into “the attitude of the young person”. Quite honestly, do you think you’re going to capture that in a seven-minute conversation in a Ministry of Social Development office with a social worker that they’ve just met that day? Honestly, where do you think this information is going to come from—out of a hole in the ground? It cannot.

Very often, with these things, the lead-up to this is trauma and it’s disconnection—long-term disconnection. It’s nowhere to belong. You’ve also got the elements of self-harm, the suicidal ideation. You think you can capture all of that in, like, I don’t know, a one- or two-hour session overall to get a decent report so it goes to the court staff and then to the judge to make an application? This is serious, serious stuff, which, foolishly, it’s considered as if you can give it a name and you can give it a process then you think you’re dealing with it. You’re not. You’re not at all dealing with it.

Can I take us down to “(e) any measures taken or proposed to be taken by the young person, or the family, whanau, or family group of the young person,”, right? Again, a whānau—you’re talking about at least 25 people, if not 105 people. It is not two parents and two cars and a comfortable garage with a blinking boat outside. That’s not the reality for a lot of young Māori people, our young ones. It is not. I think they might want it, but that’s just not the privilege that they have, Minister.

Again, family group conferences came out of the Māori mind and hearts of good people in that time, in the time of Puao-Te-Ata-Tu, in the time when lots of good work was done. Sadly, this is an undoing of it, whether you realise it or not. I want to draw your attention to that. And sorry, if I can—OK, I’ve got one more minute.

I do recall, in a court, making a proposal to a judge, who said, “Mariameno, you’ve got this boy who’s ripped off this car from this couple—he took it out of their driveway and he took it for a drive and he smashed it up.” And I said, “OK, judge, this is what we’re going to do: this boy has a dog, this boy has a fishing rod. I’m going to take those off him. He’s going to sell them, he’s going to give them to that family, and he’s going to spend time with them.” Now, we were able to process that, we were able to do that, because we applied tikanga, we applied Māori ways of thinking and practising, and we did all of that at the marae. Unfortunately, you undid all that in 7AA, and with a whole bunch of other crazy ideas.

In my 27 remaining seconds, all of this material here continues to criminalise young Māori people and their families, Minister, though you might think otherwise—and you’re thinking this way because you’re poorly advised. Explain this for me: try and help me explain this if you’re on my marae in Te Kao; I’m interested to hear your response to that.

CHAIRPERSON (Teanau Tuiono): Just before the Minister for Children takes a call, just to remind members not to use “you”—don’t bring the Chair into the debate.

Just in response to Ricardo Menéndez March’s question around whether Whaikaha was consulted, I’ve just been informed that agencies, including Whaikaha, were consulted on both the policy decisions and the legislation as it was developed.

Thank you, Mr Chair, and thank you for that answer, Minister. I’m staying on that part that my colleague Mariameno Kapa-Kingi has begun the conversation on, and it is quite a big section. Obviously, these are all the matters that the Youth Court has to take into consideration when considering granting that young serious offenders declaration. There is a lot in here, and, you know, you could interrogate each piece of this, and we intend to.

One of my questions to the Minister for Children is about my tabled amendment, which is the one lodged at 11.50.06, which my colleague Ricardo Menéndez March has asked some questions about. That tabled amendment is about inserting disabilities into that consideration, but I wondered whether that might already be captured under (b) in terms of “the personal history, social circumstances, and personal characteristics of the young person”, or whether that might be captured under (i), which is “the causes underlying the young person’s offending, and the measures available for addressing those causes”. If the Minister could just let me know whether those elements might address the amendment that I’ve presented around disabilities, that would be really helpful to know.

Moving through some of these considerations, I wanted to ask whether cultural reports were applicable within the Youth Court. That’s a question that I am generally not sure about. Obviously, the funding for those have been removed in this term, but people are able to commission their own these days—so whether a cultural report being produced would be a consideration that is captured under these points from (a) to (j).

The other question I had is around (b), so that’s talking about the “personal history, social circumstances, and personal characteristics of the young person”. The bit I’m most interested in the phrase “so far as those matters are relevant to the specified offences”. Another question for the Minister that I’m genuinely interested in is what aspects of a young person’s personal history or social circumstances and personal characteristics could be deemed relevant in terms of that offending. So that’s another question.

Moving down to (d), in terms of the response of the young person’s family, whānau, or family group, this bit is really important, and I know that the Minister understands that a lot of these kids are coming from really abusive households and whānau. No child is born with the ability or knowledge of how to be violent. They’re reproducing behaviour that they had seen another adult do. So what happens when you’ve got a young person who comes from a family who thinks violence is OK and normalises it? What if that family’s attitude towards that young person’s offending is that it’s all good and fine? I’m really worried about the detrimental impact of the family’s views around the offending that might be a detriment to that young person, who has obviously been failed in those circumstances by the adults around them.

Another point, really, is just to circle back to the inclusion of disabilities within this list of considerations. I was really keen to understand whether that disability is captured within these considerations, because when you look at the adult criminal justice system, you can really see the prevalence of a number of different disabilities. I’m thinking, in particular, of fetal alcohol spectrum disorder (FASD) and all sorts of different neurodivergences like ADHD. This does matter, because disabilities like fetal alcohol spectrum disorder—they’re not recognised as a disability but they’re also not well understood by the criminal justice system in terms of the ability of that disorder to inhibit someone’s brain from even considering what the consequences of their actions are. That’s not to say that everybody with FASD goes on to offend, actually; I’m not by any means saying that. But it does say that that disability can impair good decision-making, and even impair the ability to have an adult’s brain, really, and to even consider that actions have consequences for other people. Also traumatic brain injuries—the way that that impairs the brain from being able to make those decisions.

So I’m really keen to understand from the Minister whether those elements might be captured within these considerations.

This is just in response to Tamatha Paul. I really do appreciate some of the issues that you are raising. I was listening to your comments around the families and their responses to a young person’s offending behaviour. I think that’s why a young serious offender (YSO) declaration is so important: as part of the YSO declaration, it enables a stronger response, and that response also includes family. It’s not just about that young person; it’s about whānau. For far too long, we have sent young people back into the same environment that they came from, and expected a different result. So we want to be working with their family as well as them, putting supports in place so that it is a nice environment to go home to, but also so that the family feels supported when that young person does go home.

Thank you, Mr Chair. Just talking about the matters that the court must have regard to when considering an application for a young serious offender (YSO) declaration—so that’s new section 320I—there’s an amendment in my name, lodged at 7.05.26. Whilst all of those things listed there are kind of legit, if you like, and they all make sense, it’s what’s not in there.

My first speech in this debate was around the purposes of this legislation and the approach that should be taken, and the fact that it should be a child-centric approach. I’ll be perfectly honest: these are kind of child-adjacent, but they’re not focused on the child. That’s why my tabled amendment suggests that you look at explicitly including subsection (2) there, which actually focuses on the child. For example, to touch on what the member Tamatha Paul was talking about, this is about taking into account the young person’s physical and mental capabilities, including any disability or impairment.

So if we look at the list of matters there, it doesn’t really capture them or say how the young person could benefit from learning work habits or skills through any order that could be made. So it’s asking the question: what’s the match between a stronger response—I’d like to think it was an enhanced response; I’d like to be able to use that word—or this enhanced response and the nature of the child that is going to be subject to this declaration, and also any cultural circumstances that are relevant?

The member Mariameno Kapa-Kingi has made some really good observations about having a response which is appropriate in that cultural context. If that young person has a particular cultural context that can be accommodated, especially by a YSO, then perhaps it’s appropriate, but surely we need to take that into account, and also the outcome of any restorative justice processes. I was surprised, in fact, that I didn’t think that that outcome of any restorative justice approach was actually already in that section.

I do think kind of reorienting the question to say this is all about this young person, and whilst wider contexts of the justice system, the nature of the offending, previous offences, all of those things, yes, they’re relevant, but the real question, if we’re taking what’s essentially a therapeutic approach—which is what youth justice is—we should say: will the chances of a better outcome for this young person and the chance that they will be less likely to offend in the future be enhanced given who they are, what they are, where they come from, and what they’ve done? Will they be enhanced by this order? Because that’s the only real question. You can look at all the other stuff. At the moment, those child-focused considerations don’t appear there, so that’s why I’m asking the Minister for Children to adopt my tabled amendment 7.05.26.

Thank you, Mr Chair. The amendment 7.05.26 that the Hon Dr Duncan Webb has just spoken to is very similar to the amendment that I already answered this question to for Tamatha Paul around adding additional matters, including disabilities or any other issues that may arise. I’ll repeat it again so that it’s very clear that it’s not that I’m not supporting this amendment because I don’t care; I’m not supporting this amendment because it’s not necessary.

The existing principles of the Oranga Tamariki Act apply to these provisions, including the young serious offender declaration. The courts are already required, under the principles in section 5 of the Oranga Tamariki Act, to put the wellbeing of young persons at the centre of decision making, and this expressly includes, for example, the young person’s developmental potential and their experience of disabilities. I think I’ve really covered this area quite well already, so hopefully that closes that issue off.

In regards to Tamatha Paul’s, I really was still thinking about some of the things you spoke to around neurodiversity issues, around physical disabilities, and around meeting their needs. There is a more intensive response here so that we do get the right clinical response in front of these young people so that we can get what they need in front of them so that they can unlock their potential like they never have before; a real, holistic therapeutic approach that hasn’t been done before.

“A real, holistic therapeutic approach” that has never been done before that is called a military-style academy (MSA). It’s just a publicity stunt. It’s anti-child. It’s not child-centric. I want to speak to new section 320J(1), inserted by clause 4. It’s all been very polite in our exchanges this evening, and I’m conscious that we are almost at the end of the day.

CHAIRPERSON (Teanau Tuiono): I have appreciated it being polite.

Hon WILLOW-JEAN PRIME: I will try and keep it polite, but I am concerned that the Government is talking tough on crime rhetoric, punitive approaches, and introducing a military-style academy, which I want to understand what are the military-style components of it, because the Minister for Children is saying it’s holistic, therapeutic, wraparound, and so on. It just doesn’t compute. But what I want to ask the Minister is: would she consider the amendment 7.05.27 in my name, which would insert new section 320J(1)(c): “satisfied that there is no less restrictive or less intrusive order available that would reduce the risk of the young person committing another specified offence within the period for which the order would be in place to an acceptable level.”?

It is almost like we jumped straight to the declaration of a young serious offender. We’re going to give them this label. We’re going to tick the box on being tough on crime, the punitive approach. By accepting this amendment, it would be requiring that we are satisfied that there are actually no other less restrictive and less intrusive orders that have been considered before going to the young serious offender (YSO) declaration. This would be consistent with the Act. It would be consistent with ensuring that the intervention in the life of a young person is the least restrictive, consistent with their welfare and the safety of the public.

As currently drafted, section 320J does not expressly reflect this principle within the threshold decision to impose a YSO declaration, despite the significant consequences of such a declaration. The amendment makes the principle explicit by requiring the court to consider whether alternative orders could sufficiently reduce the risk of the young person committing another specified offence within the relevant period. This ensures that it is a proportionate response and reinforces that the YSO declaration should actually be a measure of last resort. The effect is to strengthen the statutory safeguards around the use of the YSO regime, promote consistency with the wider purposes and principles of the Act, and ensure that the court’s powers are exercised in a manner that is both targeted and proportionate.

These military-style academies, we’ve asked many questions about the funding. How much funding is this Government putting behind military-style academies and the services that are provided through that? How safe are these military-style academies, this YSO declaration and sentencing to a military-style academy? How safe are those? Is this the best, less intrusive intervention that the court could be giving this young person before going to YSO and before going to these military-style academies? I have asked the Minister about the pilot. Eight out of nine reoffended in the first pilot, and in MSA 2.0, we had two young people voluntarily leave the in-residence component of the military-style academy. Why did they leave? Is the Minister satisfied that these military-style academies are the best response and are the safest place for these young people? I want her to consider my amendment about whether we could ensure that the court has looked at every other less intrusive intervention that these young people should have the opportunity before.

Look, I don’t support this amendment, because the existing youth justice principles in section 208 of the Oranga Tamariki Act apply to these provisions. We already require the courts to consider a number of principles, including that the court consider the least restrictive form of response that is appropriate in the circumstances. There’s no need to add it because it is already in place.

CHAIRPERSON (Teanau Tuiono): Members, the time has come for me to report progress.

Progress to be reported.

House resumed.

Climate Change Response (Tort Liability) Amendment Bill

Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill

Report of Committee of the whole House

CHAIRPERSON (Teanau Tuiono): Mr Speaker, the committee has considered the Climate Change Response (Tort Liability) Amendment Bill and reports it without amendment. The committee has also considered the Oranga Tamariki (Responding to Serious Youth Offending) Amendment Bill and reports that it has made progress on the bill. Mr. Speaker, I move, That the report be adopted.

Motion agreed to.

Report adopted.

SPEAKER: The House stands adjourned until 2 p.m. Tuesday, 18 August 2026.

The House adjourned at 5.59 p.m.

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