Responding to Abuse in Care Legislation Amendment Bill

Members, we come now to Part 2. Part 2 is the debate on clauses 11 and 12, “Amendment to Crimes Act 1961”. The question is that Part 2 stand part.

I’m expecting my colleague to come down and take most of these questions, but I just want to open with one of the things from the select committee process. I know that there was a huge amount of debate over it, because the bill amends the Crimes Act 1961 to add “disability” to the definition of “vulnerable adult” in section 2(1) of that Act. This is a direct response to recommendation 26 of the royal commission’s final report—a direct response to the royal commission’s report—which states that “The government should amend the Crimes Act 1961 to specifically include disability within the definition of a vulnerable adult.”. The amendment does not expand the scope of what is captured by the definition of “vulnerable adult”; it’s a classification rather than a change to the effect of the law.

During the select committee process, the Ministry of Justice recommended, in the departmental report, that the words “at risk” be added alongside “vulnerable”, in the definition of “vulnerable adult”. However, the Parliamentary Counsel Office suggested that doing so would carry the risk of unintended consequences to the underlying definition of “vulnerable adult”. As a result, the ministry recommended withdrawing this recommendation and retaining the original amendment, as proposed by the royal commission themselves. As I said, this was a direct response to their recommendation. I know that it has caused some disquiet in the community, and we are very sensitive to that, but the word “vulnerable”, in this instance, has a definition—it has meaning—and it was a recommendation by the royal commission, after six years, of their report, and we are responding to that. I think, as you can see, the Social Services and Community Committee—and thank you to those of you who were on the select committee—did try and come up with solutions to help solve this problem. But in the end, we ended up back in a position, as recommended by the officials, that this was the best course of action in responding to the royal commission’s advice.

Thank you. The Minister in the chair is absolutely addressing an issue that I’d like to take further, because this was perhaps something that was the most passionate response that was given on this area. Just for the benefit of the public, we had a lot of submissions. I wasn’t on the Social Services and Community Committee at the time, but I have had approaches about this very issue. There was a lot of people who considered the words inappropriate; what they wanted was a replacement of “vulnerable adult” with “adult at risk”. I continue to think that it’s incredibly important, and that it is something that we never dismiss—this actual, on-the-ground experience—because of the trauma involved. I appreciate that the Minister has given an explanation that we’ve gone back to what the commission has suggested, but the very purpose of a submission process is that we listen to the New Zealand public and we listen to those voices. I, for one, think that’s one of the best things about our system that we do—that we listen very clearly to those voices in our process, and that we respond to those often by changing where we’re going. I would like to know whether the Minister would consider—

Can I just interrupt you—because we’re changing Ministers, could you just set that scene again for the question that you are asking, just so we’re clear.

HELEN WHITE: Thank you very much. Good morning to the Minister in the chair. What we are talking about here is Part 2, and we’re talking about the significance of the use of the words “vulnerable adult” and the potential replacement of those words with “adult at risk”. While I acknowledge that the last Minister in the chair, the Hon Erica Stanford, explained that what has been done here is to continue with the language that was proposed by the commission itself, I was explaining that one of the best things, I think, about the New Zealand democratic system is the force of us listening very genuinely to submissions in select committees. This was a submission that was made repeatedly and very articulately by people who had suffered this trauma and had thought very deeply about these issues. The preference of many of those people was to swap out the use of the words “vulnerable adult” with “adult at risk”. It seems to me something that we really could do, but I would like the Minister’s explanation as to whether he would entertain a change of language there by amendment. I could put an amendment on the Table doing that.

The select committee rejected the suggestion out of concern for what was seen as unintended consequences. Could the Minister, for the people who are listening who actually made those submissions—and they will be listening today, because this is something so close to people’s hearts—could explain what, specifically, some of those unintended consequences that the majority of the select committee were worried about are or were? I’d really like to drill down here, because I am conscious that it is really, really important we respond to the select committee. It’s related to an earlier point made, right at the commencement of this committee stage, where we were really talking about the concern over the lack of consultation. The one thing that—I think—has been done well is the select committee process, and this is what the people said, so it’s a really heavy thing not to listen to it.

I just wanted to emphasise that, in an area of great trauma for people—that’s very real and absolutely rests on, and was the responsibility of, the State—listening to people at this point builds trust, and that trust starts at an all-time low. Listening, in this case, and responding here, today, to this suggestion by altering the language or accommodating the worries of the people involved in this process would actually be its own step in terms of trust, rather than overriding it with something that can be seen as an institutional override. Can I have an explanation as to what the fear was of unintended consequences of using the alternative language, and can I have an explanation of whether the Minister would consider swapping out the language? Including the language is the other way to go, perhaps, by having both those parts of language. I’d be very grateful for a proper answer on those things. Thank you.

Thank you, and kia ora to the Minister. We have a number of questions on the term “disability” and, again, on the term “vulnerable adult” versus “at-risk adult”.

I guess the problem that my colleague Helen White is canvassing is that “vulnerable adult”—the term “vulnerable” kind of suggests something inherent within somebody, almost something that you can’t change or shift or shake. The connection between “vulnerable adult” and having a disability kind of implies that, if you are disabled, you are a vulnerable adult. Now, I’ve got multiple disabilities—I’ve got rheumatoid arthritis; I’ve got lupus—but I wouldn’t consider myself a vulnerable adult. There are many people who live their lives and who have disabilities who we wouldn’t consider vulnerable; they’re completely independent, they’re capable of making their own choices, and they’re capable of moving around and exercising their own discretion and power in whichever way they see fit. I guess, the question we’re trying to understand is: what was the decision making behind connecting the existence of a disability and the term “vulnerable adult”?

Again, “vulnerable” suggests something inherent that will always be there, whereas the term “at-risk” points to or suggests maybe the circumstances that somebody is living in that makes them vulnerable. I’m thinking about the children and the young people who end up in youth justice residences or end up in State care. There might be a number of factors that mean that they are at risk—it could be their home environment, it could be the town or the community that they’re growing up in, it could be influences around them, like the use of drugs and alcohol, violence in the home. These are things that would suggest that that young person is at risk, but if we can remove them from those environments and put them into a safer environment, that factor might be mitigated, meaning that they’re not necessarily a vulnerable adult any more. I’m really keen to understand that choice to use “vulnerable adult” over “at-risk adult”, but also the choice to connect disabilities to that definition of being a vulnerable adult.

The other thing we’re interested in is the term “disability” and how that fits into the definition. In this country, some disabilities are treated differently to others. Some are not recognised, some come with funding, some come with better methods of diagnosis, and some disabilities have far better understanding in the health world and in the children’s world as well, in terms of those professionals that are working with children. But they’re not all treated equally. The example that I want to give is fetal alcohol spectrum disorder (FASD). FASD is very prevalent in our prison population, and I would assume, based on my one visit to a youth justice residence last year, Te Puna Wai in Christchurch, that fetal alcohol spectrum disorder is probably prevalent in a lot of the young people in there; I know traumatic brain injuries definitely are. If you’re a kid with fetal alcohol spectrum disorder, you don’t get access to certain types of funding. Ongoing Resource Scheme funding, which gives that extra funding to kids in the education system with disabilities—if you’ve got FASD, you can’t even access that, and that’s not the only disability that is not recognised or funded or supported in this country.

What definition or list were you working with when you were thinking about disabilities? Is there a defined list, or would that be up to the courts to determine whether that child is disabled or not? Or is there a list that you’re working from, and is there a recognition that not all disabilities are treated or identified or supported evenly?

I thank the two speakers for their questions and their introductions. I think the first point I’d make is that of course the Government has been listening to the submissions in the select committee process, and that’s very much our intention. It doesn’t always mean that you’d necessarily agree with the suggestions made, but that does not equate with ignoring. It is just recognising that what we’re doing here is responding to the recommendations of the report of the royal commission, which has spent many years on this and has had an enormous amount of consultation with the broader affected community.

The royal commission’s conclusion and their recommendation to us was to acknowledge the concerns from the broader disability community about describing people as “vulnerable”, but they recommended changing the Crimes Act to strengthen the protections for disabled people in the current legislative framework. That was the recommendation: to include or add “disability,” to the definition of “vulnerable adult”, which is currently in the Crimes Act, and it is well-established and it has a lot of case law around it. That was their recommendation, and that’s what we’re undertaking in this legislation.

If you were to change “vulnerable adult” to another definition such as “at risk”—well, that obviously has consequences much more broadly than this particular instance, because it would change that for everything that applies in that situation in the Crimes Act, with ramifications that may be unintended and not necessarily helpful to other elements of that regime. We’re following the recommendation of the royal commission. We understand that there will be a variety of views on this, but we do take some confidence in the process of the royal commission and the very extended process and significant amount of consultation that went into that in order to recognise that that was a sensible thing to recommend, and that’s why we’re carrying it through.

Kahurangi Carter’s Amendment Paper No 365, deleting Part 2, is out of order as being a direct negation of the question. The best course of action for any member supporting this amendment is to vote against Part 2 standing part.