Responding to Abuse in Care Legislation Amendment Bill

Members, we now come to Part 3. This is the debate on clauses 13 to 31, “Amendments to Oranga Tamariki Act 1989”, and Schedules 2 and 3. The question is—I’ll just wait for the Minister to swap, because you may wish to speak first. I’ll just wait for the Minister for Children to get settled.

Hon Karen Chhour: Thank you.

CHAIRPERSON (Barbara Kuriger): The question is that Part 3 stand part.

Thank you, Madam Chair. This part of the omnibus bill in response to the abuse in care inquiry is around the Oranga Tamariki Act. The content of this part of the bill makes three changes to all residences. It repeals strip-searches, requires a search plan to be created, applies to all children and young people in secure residence, and it’s around plans being adhered to, unless not reasonably practical. It clarifies the duration in secure care, which will be three days before court authority is required, and it also makes two changes to youth justice residences. It will enable searches to entry—everyone may be searched before they enter, with no requirement to have reasonable grounds—and it also enables the use of image technology that applies to all searches, both on entry and inside a residence.

I’ve also tabled Amendment Paper 354, which is looking at clause 17 of the bill, which defines terms related to the new search on entry provisions in secure youth residences. Under this clause, I’m proposing to add a definition of the word “enter” in relation to these searches. The definition makes it clear that a search on entry can include entering from an administration or staff building or thereof into a secure area containing residential units. This means that a search can happen at the boundary of an administration or staff building at the secure residential units where young people live, or when entering the administration building from outside of the secure residence. This flexibility is needed to accommodate infrastructure differences between residences, which can affect where a scanner can be placed. It also gives Oranga Tamariki the option to avoid searching visitors who do not go beyond the administration building. The Amendment Paper also proposes minor and technical amendments to the bill to clarify definitions and address drafting errors.

This has been a long time coming. It’s been spoken about for years—even before the abuse in care inquiry—around safety when it comes to our young people in care and particularly in residences, and making sure that we’re listening to them and making sure that they are safe when they are in a residence.

This bill is about making sure that we’re keeping our young people safe, keeping our staff safe, and bringing some professionalisation into these residences that hasn’t been there, to make sure that we have good oversight so that our young people can’t be hurt or harmed when they are in a residence. I feel that these changes are just a small part of what we are doing within Oranga Tamariki. There’s a lot of work going on in the background that doesn’t require legislation, but with the help of this legislation, our youth justice and care and protection will have better tools to be able to make sure that our young people are safe. I look forward to answering any questions.

Thank you, Madam Chair. I want to start by looking at clause 16, “Section 370 amended”, which is the time limits on secure care, and talk about that. I just want to open on this Part 3 by saying this is probably the part of this bill that people have been most worried about, and for good reason. It’s very serious in its implications and the actual tension and the time period is part of that, but so is, obviously, the invasiveness of searching and the humiliation that is involved and the control over people in that situation—but probably the most contentious part will be the issue over force used in that situation.

I wanted just to start with this in a methodical way and focus on clause 16. What has happened in the amendment of the law—or will happen—is that we’ll move from a continuous period of 72 hours of detention, and we’ll be moving to a situation where there is clarity over the period that there hasn’t been before, including the actual period “commencing on the day on which the child or young person is first placed in secure care”.

I would like the Minister to explain, because we will have people watching who have had this happen to them and have had this situation abused in some way—I’d like a plain explanation of what this change is intended to do and what kinds of grey areas there have been in the past, and the concern over the previous way that this was written in the law and why we are now, in particular, moving to articulating that the commencement of the period is actually at the time when the person is first placed in secure care. Had that not happened before? What were the stories that we heard in terms of when that was triggered in the previous situation? I’m only just putting this one thing so that it could be addressed. I do have, obviously, lots of other questions about this particular part.

Thank you, Madam Chair. I’ll follow in that lead around questions on clause 16, about time limits on detention in secure care. I just want to note for the Chair that we’ve got a number of Amendment Papers that we’re keen to explore—again, in the kind of good-faith, good-natured approach of trying to make sure we cover all our bases while passing such an important piece of legislation.

On the time limits on detention in secure care, we’ve got an Amendment Paper which reduces the 72 hours to three hours, mostly because we’re cognisant of the psychological and physical impacts that it can have on any human being who is detained in secure care for prolonged periods of time. Obviously, at the extreme end, we see that quite a lot in the adult prison system, where you have reports like the report into the Prisoners of Extreme Risk Unit (PERU) at Auckland Prison, where there were people in there who spent 900 consecutive days in, essentially, solitary confinement.

Back to the youth justice (YJ) residences. We’re really interested to know how you landed on 72 hours as your amount of time that you’re comfortable, or want to legislate, for young people to spend in secure care. Having spoken to people who work in YJ residences, I can understand why secure care could be an option in some circumstances. It can be really overwhelming being in a residence full of other rangatahi, and maybe being in secure care gives them that time to just be alone with their thoughts and kind of regather and regulate their emotions and figure out what’s next, particularly in really hostile youth justice residence environments. I think we have to be really careful that we’re not leaving people and leaving children in the secure care for too long of a period of time, because when people exit that secure care eventually, if they haven’t had any human or social interactions or contact for too long, it can cause even more adverse problems. It can mean that their emotions or their actions can become more aggressive or more hostile because they haven’t been around other human beings, so they have to kind of ease back into that.

Our question on the 72 hours in secure care is: how did you land on 72 hours? Why was that picked to be the period of time that young people would spend in secure care? Why would a young person need to be put into secure care in the first place? I obviously just gave some examples of that, but I think that illuminating why you need access to that tool in the first place could be constructive to the interrogation that we’re doing of this bill today. What do those 72 hours look like? What is that child entitled to during their time in secure care? Does it mean that they will be constantly observed during that 72 hours? Will there be someone sitting outside that cell? Let’s just call it what it is: it’s a cell. Will there be someone sitting outside and observing during that 72 hours? Will that young person have privacy? How often will they have meals? Are they allowed to be visited by family members or by mental health professionals or workers that work in those youth justice residences? What does that 72 hours look like for that young person in secure care, and what else happens during that time? Is that young person given an explanation as to why they are in there? Are they given a really fair understanding of how to get out of there, or how to raise concerns if they don’t feel that they should be in there?

To relate it to solitary confinement for adults in the correctional system, one thing that was brought to light through the PERU report that came out last year is that people who are in PERU for prolonged periods of solitary confinement had no idea either why they were in there or no idea how to get out of there, or what the process was to get out of there. If there is a young person in secure care who doesn’t want to be in there, are they made aware of their rights? Are they made aware of the process to get out of there?

In terms of that 72 hours, when does that start again? If a child spends 72 hours in there, and you’re like, “Oh well, the law says that you’ve got to get out of here because it’s been 72 hours.”, is there a period of time that they have to spend outside of secure care before they are able to go back into it again? We don’t want there to be a system where a young person spends 72 hours in there, and then they’re out for, let’s say, 10 minutes and then they’re able to be put back into it, so that you end up with these long lags of secure care and kind of skirting around the legislation that is supposed to prevent that. When does it start again and how are they eased back into social interactions? Again, anybody, any human being, who spends a long period of time in a cell by themselves—largely by themselves—it’s going to be hard for them to go back into an environment where there are lots of other people. How are they eased back into the residence or back into the community, following that security care?

Just to summarise, my questions are: how did we land on 72 hours; is that aligned with other international standards, or is that aligned with some kind of recommendations from someone like the Ombudsman or the independent Children’s Commissioner—who set that 72 hours? Why would somebody need to be in secure care, and is it made clear to them how they can exit secure care eventually? What does that 72 hours look like: are they being observed; what are their meals like; are they able to be visited by professionals? When does that 72 hours start again, in terms of is there a grace period before they can enter secure care again? And, when they exit secure care, how do they ease back into the residence without being overwhelmed or aggressive? You know, the natural feelings that you might feel after not having human contact for three days, in this case.

I’ll answer some questions around secure care and why a time frame is needed. I just want to clarify, because it’s been repeated a couple of times that we landed on a 72-hour time frame: actually, this legislation will be deleting the 72-hour time frame to make sure that we are very clear that it clarifies that three days in secure care before court authority is required is what was landed upon—not 72 hours.

The problem is that when you have two separate definitions, if a child or young person was placed in secure care at 6 p.m. on the Tuesday, that is day one, so, when counting three days, they need to be out by midnight on the Thursday; in contrast to, when counting 72 hours after 6 p.m. on a Tuesday, it is 6 p.m. on a Friday—18 hours later than when counting three days. We just want to make sure that they’re not staying in secure care longer than they need to, so the three days just really clarifies that. If we have the 72 hours, they’re staying longer. This is just a clarification, because there was a bit of a gap in that legislation when we had two different timings. That’s how we came to the three days, not 72 hours. I just want to make that very, very clear: we haven’t landed on that 72 hours. It just removes doubt about when court oversight is required. The question was asked: “When does that start again?” Once you hit the three days, you need to be court authority - required if you want to continue that secure care. That is up to the courts whether that continues.

What I would say, though, is that the member has painted a pretty bleak picture of what secure care looks like within a youth justice residence. I just want to clarify that the young people are not withdrawn from contact with other people. They don’t sit for three days with no contact with a person. They are in a secure care unit, which means that they have the ability to move around the unit. It is a separate unit from the unit where they may be cohorting with a group of people. They are removed from that unit with a group of other young people and moved into a secure care unit, where they have the ability to move around a secure unit. They will have staff with them and they have access to their social workers if need be, and they are able to be in the day room during the day, but just within a more secure area, to keep them safe, to keep the other young people safe if there’s been a bit of a conflict within their unit, and to allow them time to have a conversation, maybe, with a worker around how we can do better with the behaviour, and give them a chance to regulate themselves so that they can move back within a normal unit.

This picture of sitting in a cell, with the door locked, dark and dank, and not being able to leave their room, and have no contact with people for three days, is absolutely untrue and overexaggerated. Young people do have the ability to have conversations with workers about why they are in there, what they could do to avoid ending up in a secure care unit again, and how we can work better, even as staff members, with them to help de-escalate a situation. I just want to make that clear.

Why do we need secure care at all? Secure care is only used as allowed in law and where necessary. There are times when a young person may seek to abscond from youth justice residences; this is one of the reasons, which is one of the statutory grounds for placing a young person in secure care. But there are also times when secure care is needed to ensure the safety of maybe not just that young person that’s been put in secure care but other young people that are within a unit, if that young person’s behaviour is showing that it may cause harm to others. We need to be able to have that, unfortunately, as a temporary solution to de-escalate dangerous situations.

Thank you, Madam Chair, and thank you to the Minister for Children for those initial responses. I suppose my initial response to that response is that three days is still a significant period of time. I think my Green Party colleague has raised some of the issues in terms of trying to understand the logic for the three-day period, but also the very valuable question of to what extent that young person can then be made to go back into secure care and what the time period between those two instances must be or if that’s a case of judgment, and whether it would be appropriate for there to be some statutory provisions around the gap between those potential periods.

The other issue is that secure care is also tied to very broad discretion in terms of when that can occur—and just looking at the scope of searches that can be done under these provisions, as well, it is quite considerable. Under new section 384A, in clause 17(2), search can be any article; under new section 384(b)(i), it could be “anything that could, while in the possession of a youth justice resident, be harmful to the youth justice resident or any other person:”—so I think the point we’re trying to make is that the discretion here is extremely broad, and the question is whether there’s consideration of how that could be drawn down.

When I was working at YouthLaw Aotearoa, I visited Whakatakapokai, and we used to go in to deliver sessions with educators, and there were times, on multiple occasions, when simple objects would go missing and that would restrict the provision of those legal services to those young people. I remember, at one stage, it was a pen that had gone missing and had not been identified. While I completely understand the Minister’s explanation of it not being an isolated cell that this young person is in, there are certainly large restrictions that are made around young people in care and a huge amount of discretion—just one general point.

I’ve also just been looking at the Minister’s Amendment Paper 354, which amends clause 17. In the explanatory note, it amends the current definition of a “pat down search” in section 384A to ensure that it covers not only the youth justice resident but those who enter a youth justice residence. I’ve just spoken to one of the roles I used to play entering a youth justice residence, and so I have just an observation that I think it would have been useful to consult with some of those entities that are regularly entering youth justice facilities to hear their views on the pat-down searches.

My second question—because I haven’t had time to go back to the principal Act and check the cross reference—is: would it only be pat-down searches, or are there other provisions within the changes made in this bill that would also apply to visitors or professionals coming through to youth justice facilities?

I do also want to speak to some of the amendments that the Hon Willow-Jean Prime has proposed. A first question here would be: what advice did the Minister seek regarding how the use of force is consistent with the royal commission’s findings and recommendations, which found that laws and regulations surrounding the use of force were often ignored when they were in place, and, in reality, legitimised the use of force, leading to severe harm, abuse, and trauma in far too many cases?

Now, the Hon Willow-Jean Prime has proposed an amendment to new section 384A in clause 17(4), by inserting, after paragraph (b) of the definition of “authorised person”, “a person who has received training in de-escalation methods appropriate for children and young people.” She has also proposed a similar, but different, amendment to new section 384H in clause 24, where she proposes inserting, after the heading, a new subclause (1A) that provides that no member of staff may use physical force in carrying out a search authorised by section 384C unless that person has first used de-escalation methods appropriate for children and young people which the person has been trained to use.

The question here is, really, whether the Minister agrees that it would be preferable to avoid the use of force and whether, if she agrees with that, she would agree to those amendments, which would then give statutory—

Suze Redmayne: Of course she does.

VANUSHI WALTERS: Which is great, and that’s wonderful, but whether she would then agree to statutory direction in terms of that being the preferred method—again, just recognising that there’s a huge amount of discretion in this area. Having been into many of these facilities, I was struck by the good faith of the staff who are in those facilities and who run them. However, it is a broad amount of discretion and these are young people who don’t often have access to easy avenues of complaint or raising issues, so it’s a space where clear statutory direction could be quite valuable.

Again, I think there are several amendments here from the Hon Willow-Jean Prime that the Minister could consider. I guess the question is what advice the Minister has had on whether provisions like this would be useful in terms of directing that those staff are trained in this area and that de-escalation is the preferred method before search, as well. Thank you.

Tamatha Paul: Madam Chair.

Tamatha Paul.

Hon Karen Chhour: Madam Chair?

CHAIRPERSON (Maureen Pugh): Sorry, I had called Tamatha Paul. Sorry, Minister.

I’ve got more on the use of force if you wanted me to do my questions—I don’t know how this works.

CHAIRPERSON (Maureen Pugh): You’ve got the call; you can take it or not.

TAMATHA PAUL: OK, thank you. I have some follow-on questions around the use of force, so maybe this will mean that the Minister for Children could address both of our questions around the use of force and a consideration of our amendments that seek to put some more safeguards in place where force is used.

Just to kind of comment on the answer that the Minister gave me before, I think it should be appreciated that not everybody can go into youth justice residences and into these State care institutions. I don’t think we should be able to do that in the same way that we are able to visit any prison in New Zealand. But the Minister was talking about the true nature of what secure care looks like, and kind of saying that the way that I was describing it may not reflect the reality. That might be the case, but we don’t know because we’re not able to go into those—

Hon Karen Chhour: You’ve visited.

TAMATHA PAUL: We weren’t able to see the secure care residence when we were at Te Puna Wai, actually. I’ve tried to visit Korowai Manaaki, as well, but have been denied three times. We don’t have the same access that the Minister has, so we are going to be asking questions, because apart from herself and apart from the independent Children’s Commissioner, we don’t know what the reality is. We know the laws that surround youth justice residents, residences, and State care, but we don’t know what the reality of that looks like—hence why we’re asking questions to try and determine what that looks like, so that we can put the right safeguards in place to protect children.

My questions are around the use of force, and I’m going to be talking specifically to our Amendment Paper 366. This is an amendment that looks to remove all provisions for the use of force against youth justice residents. Now, obviously, during this submission process, there were people who came and spoke about the use of force—when might it be necessary, what is it used for, and what are the safeguards that can be put in place? It also made me think about the Oranga Tamariki (Responding to Serious Youth Offending) bill that came up, and we had lots of organisations during that time come and talk to us about the use of force that is permitted for third-party providers in the setup of the boot camps for young people who are absconding. There were lots of questions and valid points raised about what the use is of “the use of force”. There are many people who believe there is no justification for the use of force against children, which is a viewpoint that we tend to agree with.

I guess the balance that we’re trying to strike with this amendment is how we can make sure that a youth justice residence worker, or anybody who’s working with these tamariki, truly resort to the use of force as a last-case tool. We want to know what processes will be in place to make sure that every option is exhausted before a staff member resorts to using force against that young person.

What are some of the modern de-escalation techniques that a worker might be able to employ before they resort to a use of force? But more importantly, what kind of training are these workers, who are going to get—I mean, that’s a lot of power, allowing someone to be able to use force when carrying out a search or preventing a young person from absconding. That’s a lot of power. What training will go into these workers’ programmes and regimes and life to make sure that they know that the use of force is a last resort, and so that they are really confident with nonviolent de-escalation techniques that they can employ confidently before they resort to force? What is the training going to look like for those workers?

Then, more importantly, what is the evaluation process that follows after that use-of-force event? Will it be monitored? Will it be tracked? Will it be recorded somewhere? Is there a chance for all different people involved in that residence to come together and actually evaluate that use of force?

In prisons, when there is a use of force, the best practice is that there’ll be a bit of a multidisciplinary team that come together. They look at the body camera footage, they look at the CCTV footage, and they ask themselves, “Did we have to use force, did we have to escalate this, or could we have tried something else differently?”—and they bring in mental health professionals, psychological experts, the officers themselves, and they kind of look at the situation to reassess. That means that there is better practice, because people are more aware of the different tools that they can utilise before resorting to force—because it truly should be the last thing that anybody thinks about. So appropriate training, and then the “after” in terms of evaluation and what’s happening there. We’re really interested to know how they might keep a record of what de-escalation practices were tried out before they resorted to the use of force.

The other question we had was in terms of recording those incidences where force is used. Like I mentioned before with corrections officers, they have got body cameras and there’s CCTV everywhere. I acknowledge that there are bigger sensitivity and privacy concerns when it comes to children who are in these residences, but how are they going to be able to reflect on their use of force? Like, how will that be captured so that they can reflect? Otherwise, it’s kind of a “he said, she said”; the young person says, “They held me down and put their knee on me.”, and then the officer says, or the social worker or youth worker says, “No, I didn’t do that.” How do we keep a record—a physical record—of what actually happened, and how is that recorded?

I guess the other point I’ll make in terms of the use of force is, when weighing up whether to allow for the use of force and whether to expand that provision to other people as well, how did you strike a balance between professionalisation—which you talked about in your opening speech, Minister—versus institutionalisation? One of the core recommendations from the abuse in State care report Whanaketia was the institutionalisation of those residences or programmes and how that could lead to a lifetime of staying in institutions, whether that be in mental hospitals or in prison. How do you strike that balance of professionalising things so that there are appropriate safeguards, so that people do have appropriate training and expertise and evaluation processes—but how do you make sure that that’s not just institutionalising an entire generation of young people, where it becomes normalised to them to have force used against them by people in authoritative positions in their lives?

There are quite a few questions there. One was around section 384A of the Act, defining pat-down searches. I just want to clarify that that amendment in clause 17(2B) of Amendment Paper 354 just amends the definition of “pat down search” to ensure it covers non-residents to make sure it’s consistent with section 384KC. It replaces references to “child” or “young person” with the term “person”. It’s just to tidy that up so that they are consistent.

When it comes to pat-down searches, those will only happen if there’s a circumstance where they don’t want to go through the scanner. It’s a bit like an airport. If something pops up, just a quick pat-down search, just like you would at the airport, or if you don’t want to go through the scanner, it will be given as an alternative. It’s not a punishment; it’s used as an alternative option if needed. That’s just really a tidy-up in the legislation rather than a change.

I would like to go through some of these amendments that have been put on the Table, some by Kahurangi Carter from the Green Party. I’ll speak to Amendment Paper 370: “This amendment requires reasonable modern de-escalation practices to be exhausted before any force is used in carrying out a search.”—and there’s a bit more to it, but what I would say is I do not support this, as legislating modern de-escalation practices in the context of searches would make the safeguards for searches different from safeguards for other contexts where force may be used, for example in self-defence or in defence of another person. Nothing in this bill allows for force to be used as a first resort in the context of search on entry.

Amendment Paper 369, in the name of Kahurangi Carter, is to reduce the ability to retain images generated from the use of technology. I would say that this bill is clear that the scanner search images must be disposed of within 24 hours, meaning that they can be disposed of sooner if necessary. In those cases where a harmful item was identified by the scanner, it could be useful to retain the image for a short period of time to allow staff and managers to make necessary decisions about the search. For example, if an image indicates a young person has swallowed a harmful item, decisions will need to be made about seeking medical attention or whether the image should be copied, photographed, or provided to medical professionals. The Privacy Commissioner, in his submission on this bill, found the restriction on the retention of images was generally appropriate, so we won’t be supporting that amendment.

Amendment Paper 368 amends clause 16, “Section 370 amended”. This amendment prevents children and young people from being kept in secure care for longer than three hours. The existing time limit applies to the period before approval must be sought from the court for an extension. Reducing the period to three hours is not a practical time frame in which a court decision can be sought. If the intent is just to cap secure care to a maximum of three hours without any possibility of court approving an extension, then further amendments would be needed—so we wouldn’t be supporting that amendment.

Amendment Paper 366 is around removing provisions authorising the use of force against youth justice residences, including existing authority in the Act to use force for searches generally, not just for proposed new authority to use force for searches on entry. I would say that, without this provision to use force in the context of a search on entry, Oranga Tamariki would have no authority to touch the child or young person who is not cooperating—for example, even to just guide them to a scanner. Nothing in the bill allows force to be used as a first resort, I will repeat. It is clear that an authorised person must not use force on carrying out a search on entry unless there are reasonable grounds to consider it necessary in the circumstances, so we will not be supporting that amendment.

Amendment Paper 371: this amendment that specifies that contractors may not be authorised to use force against youth justice residences. The intent is to ensure that only staff can be authorised to use force. I can certainly understand the thought behind this amendment. Further work is required to consider whether it’s practical to authorise contractors to carry out a search on entry, but to prevent them from using force if necessary to the purpose of the search. The proposed amendment as it currently sits could mean that staff would be pulled away from their duties inside the residence only to use force for the search. There has to be further consideration, if we were to look at that—but the way that this amendment has written, we cannot support that.

We have amendments in the name of Willow-Jean Prime. The first amends clause 17, “Section 384A amended (Interpretation)”, the amended definition of “an authorised person”. We won’t be supporting this, as the bill already allows for regulations to prescribe the qualifications for being an authorised person.

The next amendment from Willow-Jean Prime amends clause 24, “Section 384H amended (Use of force in carrying out search)”. It’s pretty much the same answer I gave to a previous Amendment Paper—nothing in this bill allows force to be used as a first resort in the context of search on entry, so we will not be supporting that amendment.

Now, this has been brought up a little bit around recording inspections and searches. This is something that is allowed for within regulations and staff training and making sure that we are recording incidences. In clause 29 of the bill, “Section 447 amended (Regulations)”, new section 447(1)(caac)(vii) contains the words “prescribing procedures by which a person may make a complaint in relation to a search, and how that complaint is to be dealt with:”, and then (viii), “prescribing recordkeeping requirements relating to searches conducted on entry to a youth justice residence:”—that has been taken into consideration around how we do record-keeping and how we make sure that there is accountability in that space. We won’t be supporting that amendment.

Willow-Jean Prime’s next amendment amends clause 28, new section 384KB. This amendment is around the use of force in carrying out searches in youth justice residences. Same answer that I’ve given in the past: nothing in this bill allows for force to be used as a first resort in the context of search on entry. Willow-Jean Prime also has an amendment that amends clause 28, new section 384KK. This has been covered in another amendment around record-keeping, so we will not be supporting that amendment.

I think there are only a couple more amendments that are in here that haven’t been spoken to. If I’ve missed any, please let me know—but, hopefully, that gives an explanation as to as to why we won’t be making those changes.

Can I just ask, before I take the next call, for members to please highlight which clause that you are speaking to? It just helps with the order that we’re trying to work through in the paperwork. Thank you.

Thank you, Madam Chair. Before I get on to clause 17, I am really curious as to the Minister for Children’s answer to the issue about repeated detention under the 72 hours. I thought that was an excellent point by people, and I’d be very, very, interested in hearing what the response is in terms of the misuse of that by repeatedly detaining, with a few hours in between, perhaps, and what safeguards are in place with regard to that. I do know that’s an issue in many clauses about detention—that people game that system if they can—so I will be very keen to hear about that.

I want to ask about clause 17, which is the “harmful item” section. I can see in clause 17(2), which amends section 384A, that a harmful item includes one that “has reasonable cause to believe is likely” to cause harm, but that seems, to me, to be an undercooked section in terms of setting out the principle of harm. If I go down to the list, under paragraph (b), of things that have already been identified as likely to cause harm, we get to an example here of an “electronic communication device”. I can see that there may be instances where that is—and there’s a further section on that further on, which I’ll come to—but I can see that it could be, or it could not be. It is something that most of us have all the time, and there will be arguments as to why it is actually not harmful for people to have those things.

I’m not a fan of tobacco or vaping—I do think there is a harm—but there is a proportionate nature to those things. We have lots of adults who self-medicate with tobacco and vaping, and they are not seen as particularly harmful with regard to their mental health. They are a method of self-medication and comfort. These things are clearly on the list as harmful, and I wondered what balance has gone into making sure that there is an availability of things that might be things that we would respect autonomous individuals to be able to make choices about? We allow adults to make those choices, but, in this situation, we’re kind of clamping down really hard—so you’ve got a child who’s coming in and they’re just stripped of all these things that have been used, probably, for comfort, etc., and they’re in an extremely challenging situation. Is there any discretion in that situation? I completely agree that I would not want my kids vaping or using tobacco; I’m not suggesting that it has not got some harm associated with it. I’m just asking, in this situation, why has this been prohibited in this way rather than some sort of proportional assessment at the time, or is that built in? Is it something where there can be a discretion involved? I can’t see any form of discretion here.

I want to ask about clause 17(2), inserting paragraph (b)(xi), which is an “article or thing declared to be a harmful item by regulations”. I wanted to ask the Minister to explain the process around how that decision would be made, given what I have suggested, which is that we’ve got a fairly spare—a minimal—principle of harm in the first clause. Is the process simply applying the standard that the people making the decision to put something new in the regulations are simply making a case that they have reasonable cause to believe it is likely? Again, it involves the same kinds of issues of proportionality and that kind of invasion. Thank you.

Just in regard to the questions that have just been asked around harmful items: the harmful items are the same as the list in the Corrections Act, for starters. That’s part of how we came to the decisions to be making that.

What I want to make really clear as well is there are two areas to this. You were speaking around vapes being something that can be—some items can be an item that can relax a young person, that they’re used to having it, and that it may not be harmful. What I would say is that staff and people who work in this area have seen these items being used in very harmful ways. They can be used as shanks that can cause major damage, and even death, with just that item alone. It’s not just really up to discretion; there has to be a link between an item and harm. If the item is not likely to cause harm to a child or young person, there is no reason to add it to the list and regulations. There are also existing processes in place to curb the power of adding inappropriate items to this list—for example, the role of the regulations review committee is to scrutinise the regulations to ensure they are made fairly and used consistently.

The bill was also amended at select committee stage to include guiding criteria for this legislation-making power. This will require the Minister for Children to consult with the Minister of Justice and be satisfied on reasonable grounds that the harm that could be caused by the items justifies it being added to the list or even removed from the list if requested. That puts in that safeguard in the areas of harmful items.

This is not about taking away what young people enjoy. They are in an area where they are high risk; in a youth justice facility, in particular, they are court-ordered to be there. There are some restrictions that come with being in a court-ordered youth justice residence where some of your freedoms are taken away. There is good reason for that. What I would say is that we do not want to see a staff member in danger of being stabbed; we don’t want to see a young person in danger of being stabbed.

Part of the responding to the abuse in care legislation—it was very clear throughout that we needed to listen to the voices of young people. Young people within youth justice residences have consistently said, “This is my home and I want to feel safe.” If you know you are going to be in a unit with young people that have weapons on them, that have the potential to stab you or kill you, you are not feeling safe—and so what I would say is this is a valid response to making sure that young people in our care are safe.

Thank you, Madam Chair. Mōrena, Madam Chair. Mōrena, Minister. I’m still on clause 16 and I might move on to clause 17, and I guess I will start by saying this: if only the descriptions of “dark and dank”, and those types of descriptions were actually an exaggeration. The Whanaketia report shows very clearly that they were not exaggerations; they were the horror that people lived through. I think it’s important not to bring those things back into memory for drama, but more for centring ourselves in the conversation, and so I just wanted to remark on it in that way.

As a party, we get and we acknowledge the efforts going forward to improve what we’ve failed on. You will recall, Minister, when I spoke in the House to the fact that was an apology and there were apologies provided, but by no means did that mean that all the survivors have to forgive us, and I think we have to do better.

I want to take us to the question about training, and I think that there’s something really important in that. I’ve heard words like “de-escalation” from my colleagues on the right as a being a smart and good idea, but that takes real, solid, enduring training and monitoring and assessment as to whether people are up for that. I’m keen to know if you can tell us what the model of care is, because if we’re talking about moments of securing—putting young people into security, for whatever reasons—it’s the moments before and after they’re secured. So spending three days in secure is one thing, but the 22 previous days is really where I’d want to understand in a more thorough way, Minister, as to what that actually does look like and what is the model of care.

Can that be described, and are you confident and assured that it is rigorous enough and that it is deeply understood from the young people and their families as to what it takes to provide a model of care, particularly for mokopuna Māori? It’s not for only mokopuna Māori, obviously—I’m not that silly. But I don’t hear that in the descriptions. From what I’m hearing this morning, I can hear intention, but I don’t hear deep conviction in that way, and I’d like to understand that better.

The use of force: even when we use that word description of “force”, it conjures up all kinds of horror. I have this Ngā Rākau Rikiriki, which is the poetry, which is the document that was provided and put together by survivors. It’s worth a read and a reminder.

Minister, I genuinely want to feel whether any of the discussions or the questions this morning are appreciated in your responses so that it gives us the confidence that we can do this better, together. Thank you.

I just want to go back to a question asked by the member Tamatha Paul: what training was there to ensure that youth workers know that use of force is a last resort, and what is the evaluation process after a use-of-force event? I thought that that needed to be answered; I want to make sure I give you a good answer on that.

Standard operating procedure is that physical intervention can only be used when verbal de-escalation techniques have failed. I do agree that in the past that hasn’t really been followed very well because there wasn’t a very good training programme in place when people came to work within youth justice. This has been a real passion of mine, making sure that we’re not (a) setting staff up to fail when they go to work within these facilities, but (b) making sure that they have an understanding of what their obligations are to keep young people safe, and that we need to treat these young people with dignity and respect. Yes, they are in there for reasons, but they’re also human beings that deserve to be treated with respect. I’m very passionate about that, and I want to make sure that we give the tools to these staff to be able to do their job and do their job well.

That was part of the professionalisation of the workforce programme that we’ve been working on, making sure that every staff member that goes to work within a youth justice facility is well trained. Part of that training is around that and also retraining staff that have been working for us for a while that may need a reminder in that space of what their obligations are. Now staff are trained in verbal de-escalation with restorative practice in addition to proactive prevention of events like fights. After the use of force, it will be reviewed by a team leader. It will also have a process to escalate internally to the Oranga Tamariki escalation team where any concerns about the appropriateness of the use of force can be investigated.

I think that’s actually really, really important because you are right, it is a massive power to have and we have to make sure that there’s really good oversight on that. The use of force, any use of force, whether it be showing a young person to the scanner, if we have to physically move them in any way or touch them in any way, must be recorded in a daily log and also reviewed for appropriateness.

I move, That debate on this question now close.

I don’t think we’re quite there yet. But I do have to note to members that there is a lot of repetition coming back in around the timing, the secure care, and the use of force. Look, there are quite a few clauses in this particular part that are still to be explored, so I do encourage you to move on.

Thank you, Madam Chair. My questions are on a few other parts of the bill. Can I, first, just thank the Minister for Children for her extremely thorough responses and addressing the Amendment Papers individually. That was very helpful and actually addressed a number of questions I would have otherwise asked. Thank you for pre-empting that.

I’m looking at—so where are we?—clause 23, which is the amended section 384G, “Restrictions on searches”. This clause replaces the wording “must be carried out by a member of staff who is of the same sex as the child or young person being searched” with “must not be carried out in view of another child or young person in the residence”. They’re quite different objectives, in my view. I’ve also noted that, obviously, we have the new section 384AC, inserted by clause 18, which is around the plan, and I really appreciate the language in that around the needs of the child and what’s reasonable, and that, potentially, the child could express a view there about who should be searching them. I’m also very aware of the lack of explicit language, given that if we look further at new section 384KF, inserted by clause 28, (3A) says, “A person (other than a youth justice resident) may request that a pat down search be carried out only by an authorised person of the sex or gender identity chosen by the person.” It’s very explicitly giving this right to others who aren’t youth justice residents. I must also commend the Minister on the inclusion of “gender identity chosen by the person.” within that section. My question is, really: why wasn’t that explicit wording included in 384AC, and what was the intent of the removal of some of that language in section 384G, as well?

My other question is back to new section 384KF(3), which lists the people who must be present when a youth justice resident is being searched. It includes (b), which says that a prescribed person can be someone who’s named in regulations made under section 447. Again, I haven’t done the cross-reference, but I’m wondering why we don’t have a closed list in legislation and who that provision might, then, include. It just feels to me like the appropriate people—like, (3)(a)(ii) is worded so broadly “another authorised person:”, I can’t imagine who might be included under regulation who sits outside being an authorised person. Just those two issues for me. Thank you.

I just want to come back to questions from Helen White and Tamatha Paul around the period of time in secure care and repeated use of secure care, because that’s been raised a couple of times.

I just want to address the concerns where you are asking if, when a young person comes out, what’s to stop the abuse of reusing it. What I would also like to say is, I just want to bring a little bit of balance to this, because we have some pretty amazing staff that take care of our young people, and whilst, at times, there are people that do skirt those lines of being responsible caregivers for our young people, most of our workers go to work every day to make our young people’s lives better. I just want to make sure that people have an understanding that nobody goes to work to try and torture or break the rules and have a young person repeatedly in secure care—just to bring a bit of balance to it.

This bill’s not changing the existing time limits for secure care. Although a young person can be placed in secure care again, with each placement there’s a strict criteria for admission, so they have to have to meet that criteria and additional safeguards for preventing continuous care. It can’t be for the same offence that they were put in there the first time around. They have to really justify why that young person is being re-placed there; it may be a new event that has happened. There’s a very strict criteria for admission.

Thank you, Madam Chair. Thank you, Minister, for your detailed answers to our particular points. As I said at the beginning of this session this morning, we’re supporting the bill, so it’s good to use the session to just clarify and make sure we’ve got some of those safeguards right. Your answers really assist us in feeling a little bit of confidence in what we’re all—or mostly all—agreeing to.

A few questions ago, there were some questions from Helen White about harmful items. I just wanted to touch on that a little bit, because I totally agree with the Minister; I have also heard from tamariki that prohibiting these items makes them feel safer, and I totally support that—whatever makes them feel safe in their residence or the place that they’re calling home for that period is 100 percent justified. It’s also justified in light of news stories—last year, I think—around Korowai Manaaki, where contraband was being brought in. Vapes were one of the items mentioned, so I’m glad that this kind of responds to that, and I hope the Minister is keeping those managers accountable for those findings from, I think, the Children’s Commissioner.

On the harmful items point, I guess what I’m keen to understand is: with more harmful items comes a greater level of searching when families come into visit their tamariki or their whānau who are in there—not just family; maybe friends, mentors, whatever. One thing I have heard from rangatahi who have been in youth justice residences is that the family visits can make a big different to the care they’re being provided, or maybe the counselling they’re getting in there or the programmes they’re doing. Those family visits really reinforce the positive things that they’re learning. Knowing the kinds of backgrounds that a lot of these tamariki come from, some of these families might have experienced—I’m not saying it’s all of them, but some of them may have been in prison or may be a bit sensitive to that institutional nature. I wanted to ask a question to the Minister about how you strike that balance between keeping kids safe but not being too prohibitive to those families. We want them to visit; we want them to be an active part of their tamariki’s healing and rehabilitation. How did you go about striking that balance in terms of the family visits?

The other points I just wanted to raise are in reference to our Amendment Paper 369, which addresses the image scanning, which we haven’t touched on yet; and also Amendment Paper 371, but I’ll start with the image scanning because we haven’t really touched on that yet this morning. Obviously, this bill, in clause—I’m not going to waste our time finding it, but it is definitely in Part 3. The clauses and sections around the scanner searches and the images: we’re really keen to understand how those images are stored. We’re kind of presuming that these images could be quite intimate images of those young people. It could be normal images as well, but there could be some really sensitive images, so we’re keen to understand how those images will be stored prior to them being deleted.

We know that this bill will mean that they’re deleted a lot faster, but how will they be stored? Is it secure storage software or whatever it ends up being? How will we know and monitor that those images have been deleted within that 24-hour window? Who has access to those images? Does that include third-party contractors? Is it just the people that work in the youth justice residence? Is it the police? Is it other youth justice residences around the country? We’re keen to understand how those are stored, who has access to those images, and whether there has there been any communication with the Privacy Commissioner or people in those kinds of roles who specialise in privacy and storing sensitive information and data?

Some of us might recall—a couple of years ago, I believe—there was this kind of big drama about police taking lots of images of young Māori on the street and not storing those images securely, and the Privacy Commissioner found that there were tens of thousands of unauthorised, unsecure photos of young Māori children just floating around and being stored on these devices.

The privacy of children is of the utmost importance to us, and we’re also keen to understand how that deleting happens. Where do those images go once they’ve been deleted? We’re keen to understand the dynamics of the image-scanning aspect of this bill.

Sorry, I’m still a little bit behind. I will answer that question soon, but I just want to go back to the harmful items and also address what Tamatha Paul has just also said around staff as well.

We have to be careful that we’re not just laying the blame on whānau members and saying this is all them bringing in contraband to these young people. There are multiple layers of indirect harm with some of these items. I’ll give an example around vapes: they can be made to use as shanks, as we’ve talked about, but they can also be used as contraband trade or a commodity within a youth justice residence. That’s not just by young people; there is the temptation for staff to use them in ways to get young people to do things, so we want to make sure that we’re holding staff to account when we’re doing searches coming into residences.

Aside from legislation change today, there is a lot of practice change going on in that space too. If you look at that search on entry, which we’re looking at, when you go through, say, a corrections facility, there are some practices there that staff have had to do for a while. One of those is the clear plastic bags so that we can see what staff are bringing into residences, and holding the staff to the same level of accountability as any other visitor that comes into a residence. We want to stop this contraband being used as commodity, which can often lead to fights and lead to cliques that become quite dangerous within a youth justice residence.

Around the image technology, I think it sounds really scary, that we’re bringing in this image technology, that we’re scanning people. What I would like to say is it’s not as uncommon as we think. You walk through an airport; you get scanned at an airport if you want to catch a flight. You often can come to these restrictions when going to court. There are multiple places where you walk through a scanner and it’s “nothing to see here” and not a problem. What I would say is, yes, we are aware of the unintended consequences of whānau not wanting to visit, that it could be quite a traumatic experience for some whānau, if they have been incarcerated in the past. We want to make this process as friendly as possible, but also, quite frankly, we need to put the safety of the young people in our care at the very front of our decision making.

We’re very clear that there will be training in this space around how we deal with whānau visitation. We will make sure that it is made very clear, before they come into the residence, what is expected of them. Currently, there is a sign on the entrance saying, “Please do not bring these items in”. That has not worked, obviously.

With the scanners, that’s also why we changed the entry: because it had the possibility of actually searching people who were just coming to the reception to ask questions. By changing that entry, we have an area where we can first speak to the visitors, set that expectation before going through the process so that it’s not just, wham, “I’m stuck in this process where I can’t even speak to somebody, and I’m already being searched”. We’ll set the expectations very clearly in the beginning.

If something is found, through either the scanning process or the pat-down process, if it is not an illegal item, then they will be given the option to take that back to their vehicle and then come back again. We want to make it as least restrictive as possible, but make sure that we’re keeping our young people safe.

Thank you. First of all, I just wanted to thank the Minister for Children for the thorough answers on the issue that I’ve raised about repeated detention and on the harmful objects. My only remaining concern in that area is my concern about self-soothing and addiction to things like nicotine. I seek the Minister’s assurance that people would be given appropriate interventions in terms of things like nicotine patches, etc., because they’re undergoing huge amounts of stress and they’re being asked to, basically, detox at the same time, quite often. I would like an assurance that there are processes in place with regard to alcohol and nicotine.

I actually want to move on to the area of vehicles and dogs because they’re both important issues. With regard to vehicles, I guess what most New Zealanders would wonder is: if we’ve got this very comprehensive system of search, and things aren’t coming in, why is it necessary for us to search vehicles? I did a lot of work on these kinds of searches when I was a lawyer in relation to workplaces where cars were parked in the car park. There were always balancing acts that needed to be done, like giving people the appropriate warning that their vehicle could be searched but also explaining, in those situations, whether the invasion of privacy over a car was necessary.

When it comes to cars, one of the issues is that you’re not in control of them all the time. People would find things in the cars that were, perhaps, illegal. I remember I had a case where there was equipment for the use of marijuana and there was equipment for the use of P. In fact, it’s very hard to link that to the person who’s driving the car because so many people are in the car. I would like to know what the logic is here and what procedures we are copying and following with regard to why we are we looking at the vehicles with a search in that way?

Then the other issue I’d really like to know about is the use of dogs. Now, I can see this has been considered in this piece of legislation. The worry about dogs is that they’re actually very frightening, and I can see the legislation has said that they will be kept at a distance from the people, etc. I would like for people who are listening today to hear a little bit from the Minister about what kind of dogs are involved and whether there have been any instances where those dogs have got out of control, because it’s very hard to control a dog, actually. One the challenges that many of us who’ve had dogs face is they’re not actually entirely in our control. Given the fact that these are trained dogs, I’d like the Minister to talk about why we use the dogs, what they can do that is not able to be done by human beings, and what safeguards are put in place, in really ordinary language. What kind of dogs are we talking about here and is there any risk that the dogs would be aggressive or would frighten people involved in this process, given that we’re often dealing with really traumatised people? Thank you. I’d be grateful for your answers to both those questions.

Thank you. I’m just responding to Vanushi Walters’ question around clause 23, “Section 384G amended”. Section 384G relates to searches inside residences. The bill removes the current requirement that pat-down searches only be carried out by a person of the same sex as the child or young person. This is done because it would completely contradict the new section that it’s being replaced by, which would require search plans under new section 384AA, inserted by clause 1, where a child or young person can express the gender or sex of the staff member they prefer to be searched by. It’s just to clarify that, otherwise we’ll have two contradicting pieces of legislation that don’t match. It’s just to tidy that up to make sure that we aren’t contradicting what we have said we will do. It’s making sure that young people feel safe in their home and feel safe in the processes that happen within their home, because this is their home, and whilst there are quite a few more rules within their home, we want them to feel comfortable with the processes, to understand the processes, so that it’s less traumatic than is needed to be and less traumatic than it has been in the past. It’s also to set the expectation upon staff members of what is expected from them in respecting a young person’s wishes around how they are searched and who they are searched by.

Thanks, Mr Chair. Thanks, Minister, as well for all those answers. My questions follow on around the search provisions in clause 28.

The one I’m keen to ask a few questions about is the vehicle searches. This bill allows for vehicles that enter the perimeter of a youth justice residence to be searched. We’ve, this morning, been having a bit of a conversation about striking that balance between safety for ngā tamariki but also making sure that families feel safe and comfortable to visit, recognising that they’re a really important part of the healing rehabilitation journey for young people.

Obviously, this bill puts lots of measures in place within the kind of administrative office or when you enter a justice residence where there’s a lot of screening, as Helen White was just talking about. There may be dogs, there are the body image scanners, and there are the various layers of security that are now presently in place. This bill talks about those vehicles, and I guess I’m just a little bit worried about those powers around searching a vehicle, because of the possibility that it might deter people from coming in.

Like, let’s be real. I don’t have a car, but if I did, I might have friends in that car, a vape might fall out of their pocket, and there might be, I don’t know, a vape on the ground or something like that—I guess I’m a bit nervous that that family might get searched and “Oh, you’ve got an unauthorised item in your vehicle.”—and then they’re not able to visit their kids or their niece or nephew or whatever it is. I’m just keen to understand why the extra precaution on the vehicles. Is that based on an event that’s happened or is it that we’re not feeling completely confident in the protections that are in place at that office—I was going to call it a receiving office, but that’s not what it is. That’s that question around the searching of vehicles.

I just also wanted to raise our Amendment Paper 371, which talks about, within Part 3, the amendments that specify that an authorised person is able to use force. We wanted to just question this a little bit and make sure we understand what the implications of this amendment are. We’re wondering if this means that contractors who may be running a programme or something within a youth justice residence—does this mean that they too are able to use force? We’re quite keen to just interrogate this a little bit more. Our preference in light of the answers the Minister’s given us around de-escalation training and the evaluation post use of force—we’re keen to understand if those measures would be extended to any other people that might be granted greater powers within this bill, particularly those who might be third-party contractors, acknowledging that in that pool of third-party contractors there could also be iwi social services and things like that.

I’m keen to understand the vehicle search, the rationale behind the searching of the vehicles, and the weighting of how this might deter some families from visiting their family or friends or mentees or whatever just out of the fear that they might have some harmful items in their cars, which, as Helen noted, some of those are legal objects that adults use for various different reasons. Has that been considered? Also, on the use of force for third parties or contractors, what steps will be in place to make sure, again, that it’s a last-case resort, and what kind of training and evaluation might be provided to those people using that power?

Thank you. In regards to new section 384KG, inserted by clause 28, “Search of vehicles entering youth justice residence”, I just want to make it very clear that it’s vehicles that are brought within the secure perimeter of a youth justice residence. The vehicle may be searched by an authorised person for the purposes of detecting any unauthorised item. It’s the secure perimeter, so it wouldn’t be the car park that a visitor comes in to visit. It’s where contractors may come in through a back gate into the secure area. They might be bringing items in for the kitchen, they might be bringing anything in, and it just gives us the ability to be able to make sure that contractors aren’t bringing in unauthorised items, because they will be skipping the process of going through the scanner in the initial entrance to residence. It is all about the secure perimeter of a youth justice residence.

Just to clarify, we won’t be putting dogs in searches on family that are coming to visit and are parking in the car park. The use of dogs will be extremely limited. It would have to be quite a significant issue to use dogs. Maybe if we found somebody coming into the secure area in a vehicle with cannabis—quite a fair bit of cannabis—we might call in to get that checked by dogs. It’s only to be used in shared spaces, and the dogs will be controlled by police or Corrections handlers, not youth justice staff.

Thank you, Mr Chair, and thank you to the Minister for Children, for her response in relation to the new section 384AC, inserted by clause 18; I think it’s reassuring to know that that would be part of the plan. My concern on that one was more about whether we ought to make it explicit, given that in other sections we make it explicit that non-residents of the facilities can elect either someone of the same sex or the same gender. It was just trying to work out why the language was different in that section versus new section 384AC, but I am assured that that remains a choice for the young people.

My next question is in relation to new section 384KD, “Consequences of refusing search under section 384KC”, inserted by clause 28. We had an earlier conversation about people being able to elect whether they went through a scanner or had a pat-down search, and one of those being sufficient. My read of that section is that that’s correct. The question would just be that my read is also if someone were to go through a scanner and then the security were alerted for a need for a pat down, the person could refuse a pat down but still not fall within the section—so they’ve complied with one or the other and, therefore, this section wouldn’t prevent their entry. That’s my read of the section, but if I could get some clarification from the Minister on that.

The next one is consequences of refusing a search because you failed to remove an outer item of clothing. Now, this includes head coverings, as well, and I just wonder whether the Minister had received advice on religious head coverings and the interaction with the New Zealand Bill of Rights Act and how that would be treated in terms of this instance?

My next question is in relation to—let me find the number—new section 384KC, “Search of other persons entering youth justice residence”, the new subsection (7), “To avoid doubt, the search of an authorised person under this section must be conducted by another authorised person”, inserted by clause 28. My question is just around whether it would be useful to include additional language about it not being the individual subordinate or not being from the same team or finding other protective ways of ensuring that a diligent and objective or independent search is conducted.

I have another question in relation to new section 384KF, “Restrictions on entry to youth justice residence”, inserted by clause 28. These are the provisions under subsection (5), which state, “An image produced as a result of an imaging technology search must,—(a) so far as practicable, avoid showing a clear image of the body beneath clothing; and (b) obscure the genitals or make them not easily distinguishable if they are included in the image.” I wondered whether it would be useful to prioritise obscuring the genitals as opposed to making it an alternative, and that way, saying that the preference by far is for that to be used as an option instead of making them not easily distinguishable, which feels to me quite invasive.

Again, I’m just aware of the discretion in this space and the times at which we can and should, perhaps, legitimately be very clear about our preferences. I take the Minister’s point that she’s made earlier about the need for that discretion and the respectful way in which the people employed in these facilities conduct themselves. I do think that when it comes to searches where body parts are involved and these images are captured, it potentially warrants a more closely drafted section. I’m just interested in the Minister’s comment on those questions.

Thank you, Mr Chair. I just want to address the question around new section 384KD, around the consequences of refusing a search under section 384KC, inserted by clause 28. What I would say is, yes, you have some alternatives. You can go through the scanner, or you can get a pat down, or it may be both. If the scanner detects something you might be asked for a pat down. But, yes, absolutely if you do not comply with the obligations of entry, then, yes, you can be denied entry to the youth justice residence.

I move, That debate on this question now close.

Thank you, Mr Chair. I want to ask the Minister for Children about the consequences of using too much force. There’s a section here that talks about the need to be minimal—

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

HELEN WHITE: Sorry, I did have it. I’m just flicking through now for the actual section number, but it’s the one that talks about minimisation of how much force is used.

CHAIRPERSON (Teanau Tuiono): Do you know the number?

HELEN WHITE: Sorry, I just had it and I’ve just lost it. Apologies. Look, I could just go to a different question and come back to it, if you prefer. I will find the section number, but the question is simply one about what happens if somebody does actually go too far in their use of force when this legislation is very clear that they must use minimal force. I will give you the section number as soon as I find it.

The other questions that I wanted to ask were about the regulation-making criteria over harmful objects. I can see that there has to be satisfaction that there are reasonable grounds that the nature or extent of the harm that may be caused by the article or thing justifying the article or thing being declared as a harmful item for the purposes of the Act—that is in the criteria—and that the Minister of Justice has to be consulted about adding to that list. Because I talked so much about it earlier, in terms of that, I wanted to ask about that regulation-making power and what was envisaged in terms of time frames on making new objects, and what happens in a situation where a new object is presented which isn’t in the scope so far but would come into this regulating-making power—what will happen to that object at that time? I can see a gap there. The world is an inventive place and new things turn up. It’s the other side of my question about making sure that we’re limited and we’re proportional.

There is one final issue here, which is the way that that’s framed is all about the risk but not about the benefit. What if you have an object that has benefit as well as risk? I could only use one that I know already exists, rather than one that is anticipated to be covered here. You’ve got a situation where you’ve got a communication device. Some of the features of that are actually probably very good for people, and I can see that the legislation has included references to telephones that are clearly limited in their ability. I presume that’s because they’re permitted because there is a benefit to people being able to continue having that kind of communication available. What happens in this wording? It looks to me as if it’s balanced towards risk rather than benefit, and, in most areas of the law, we’ve moved to balancing those two things in our words as well, saying we need to actually look at the benefit as well as the risk when we decide whether to prohibit such an object. I would love to know about that.

Apologies for not coming to you with the section number, with regard to the other thing. I will actually just sit down and find it. Thank you.

If I have understood your questions around harmful objects, I actually think I’ve been very thorough in my explanations, a couple of times now, and have gone through the process of “It must go through a process to be added to the list or taken off the list”. I will just leave that one because I think I’ve explained that one a couple of times.

What I would go into is what would happen to a staff member if it is shown that the use of force was unnecessary or inappropriate. After a use of force, it’s reviewed by a team leader and would also be able to be escalated internally to Oranga Tamariki around any concerns of appropriateness of the use of force. If it is found that that use of force is questionable, I would assume and expect that that would be a disciplinary and that would actually be a matter when it comes to their contract.

Thank you. The section that I wanted to refer to when I was talking was new section 384KB, inserted by clause 28, which is “Use of force in carrying out search of youth justice resident”. I think that you’ve answered my question in terms of disciplinary process.

I also wanted to just reflect on what the Minister for Children and I had talked about earlier in terms of repeated searches. While I agree that there would be a disciplinary issue involved, there is also probably a role here for the Ombudsman in both situations where they would be looking at patterns of behaviour. If things like this were occurring and there was more force being used than necessary, I would like the confirmation of the Minister that one of the checks and balances in place is our Ombudsman, who would be able to have access to this information.

I would still like the answer to the question about what happens with an object that hasn’t been identified as harmful but may have those results, and the issue about the—I don’t believe that the Minister has ever answered the question about that proportionality of some benefit in a new situation. I am not talking about the same section; I am talking about a later section in this Act, which we have not discussed before and it has a different nuance, which is those new objects that have yet to be classified. Thank you.

When it comes to the oversight of a youth justice facility, the Ombudsman does have access to that information. Mana Mokopuna does regular reviews of our youth justice facilities. We also have a panel that is there to take on concerns of young people and make sure that those concerns are addressed. There are plenty of oversights available in that space.

Just before I take the next call, if members could talk specifically about the clauses that they’re talking about, that would assist the committee. We are tracking which clauses have been discussed and which points have been addressed.

Thank you, Mr Chair. I just want to seek clarity from the Minister for Children, who did comment on clause 17(4), which is amending section 384A. It was about the amendment of the Hon Willow-Jean Prime, which was around the definition of “authorised person” and the request in our amendment around adding the words “a person who has received training in de-escalation methods appropriate for children and young people”. The Minister, when she responded, just said that it’s described in the Act who an authorised person is. The reason I just wanted to clarify that—and can you point me to where that is?—is because, obviously, the protection of our young people is of supreme importance.

The reason we are debating this in the committee today is because of abuse in State care, but it’s also about protecting the State by making sure that we have the right people with the right skills. I just need clarification that there is a description of what an authorised person is in order to make sure that they have the skills, because we know that we’re dealing with young people who have trauma and young people who are in escalated situations. We need to make sure that we protect the people working with them who are working for the State and working in these institutions, and, obviously, the most important thing is the protection of the young person.

I move, That debate on this question now close.

Thank you, Mr Chair. I am looking at new section 384KN, inserted by clause 28. This is the “Power to seize articles … found on search”. In particular, it’s in connection to new section 384KC, inserted by clause 28, which is not about residents but visitors and authorised persons who may be coming on to the property. My question is really about what is appropriately placed in primary legislation versus secondary legislation, because those sections taken together and the broadness of the section as it’s currently drafted mean that regulations would set out how long an item that was seized from a visitor to a facility could be potentially held for and under what circumstances they could be released.

I can see why you may need to withhold possessions when they’re seized from residents of those facilities, but, certainly for visitors, they should have that property returned to them as swiftly as possible. In my view, given it is a search, it’s more appropriate for that to be set out in primary legislation as opposed for it to be delegated. It’s an issue that I raised before in terms of who the prescribed person is who must be present during a pat-down search. I questioned why we needed secondary powers to create other persons when we already had the wording of “an authorised person”. I couldn’t imagine circumstances where anyone but an authorised person would be the person who was there for a pat-down search. I’m also just seeking a response to that. There is, as my colleague has just said, a question around who is an authorised person, and that’s also prescribed by secondary legislation, so I wonder whether consideration was given to those definitions being held within the primary Act. Thank you.

I move, That debate on this question now close.

Motion agreed to.

The question is that Kahurangi Carter’s amendment set out on Amendment Paper 367 be agreed to.

The question is that Kahurangi Carter’s amendment set out on Amendment Paper 368 be agreed to.

The question is that Kahurangi Carter’s Part 3 amendments to Amendment Paper 354 set out on Amendment Paper 366 be agreed to.

The question is that the Hon Karen Chhour’s amendments set out on Amendment Paper 354 be agreed to.

Amendments agreed to.

The question is that the Hon Willow-Jean Prime’s tabled amendment to clause 17(4) amending the definition of “authorised person” in section 384A be agreed to.

The question is that Kahurangi Carter’s amendments set out on Amendment Paper 369 be agreed to.

The question is that Kahurangi Carter’s amendments set out on Amendment Paper 370 be agreed to.

The question is that the Hon Willow-Jean Prime’s tabled amendment to clause 24 inserting subsection (1A) into section 384H be agreed to.

The question is that the Hon Willow-Jean Prime’s tabled amendment to clause 25 inserting subsection (1A) into section 384I be agreed to.

The question is that the Hon Willow-Jean Prime’s tabled amendment to clause 28 inserting subsection (1AAA) into section 384KB be agreed to.

The question is that Kahurangi Carter’s amendment set out on Amendment Paper 371 be agreed to.

The question is that the Hon Willow-Jean Prime’s tabled amendments to clause 28 amending new section 384KK be agreed to.