Oversight of Oranga Tamariki System Legislation Amendment Bill

Members, the House is in committee on the Oversight of Oranga Tamariki System Legislation Amendment Bill. Members, we come first to Part 1. This is the debate on clauses 3 to 10, “Amendments to Oversight of Oranga Tamariki System Act 2022”, Schedules 1 and 2, and proposed new Schedule 1A.

Point of order, Mr Chair. I seek leave that all provisions be taken as one part.

Leave is sought for that? Is there any objections? There are no objections. The question is that Parts 1 and 2, Schedules 1 to 6, and clauses 1 and 2 stand part.

I’d like to open my remarks by thanking members of the committee for their willingness to engage in the next stage of improvements to the oversight of the Oranga Tamariki system and, in this case, in the Oversight of Oranga Tamariki System Legislation Amendment Bill.

I thought I would just make some introductory comments. The bill builds on the work that was undertaken by the previous Government, which was a significant improvement in the oversight by making the roles of the three entities in the oversight system clearer and simpler so that it was much more easily understood by those interacting and using the Oranga Tamariki system. This bill fulfils the Government commitment to create a truly independent monitoring and oversight agency for Oranga Tamariki, as well as ensuring we have a single Children’s Commissioner to make it crystal clear to children who their advocate is.

I just want to say that these are both changes that there was significant feedback on when the last Government made changes, and this was seen as another step. So I don’t want anyone to think that it fundamentally changes the great work that was done by the previous Government, but the concern was that the Independent Children’s Monitor wasn’t independent enough, which is what we are doing today. And the second, again, was responding to clear feedback about everybody in New Zealand knowing who the Children’s Commissioner is. By having a board, there was real concern that they wouldn’t know who that was and therefore who was their champion, who was their advocate. So that’s why this change is proposed in this legislation, and I’m really encouraged by the cross-party support. As I say, it’s about taking the next level and the next step in strengthening the oversight system. It’s not taking anything away; it is strengthening it.

I will talk shortly about an amendment that is out of scope that has got approval of the Business Committee to come into this, which is another important step in strengthening what we do, because it is clear that every member of this House and, actually, of the country wants us to ensure we have the strongest possible oversight of the Oranga Tamariki system.

Thank you. I’m just looking at Part 1 here and looking at clause 4, “Section 8 amended (Interpretation)”. Just wanting to dig into what protections are in place to ensure that the newly defined monitor and its board will uphold Te Tiriti o Waitangi and reflect the voices of Māori, particularly given the overrepresentation of mokopuna Māori in State care.

Just a follow-up to that—and I do have some more questions after this—how will the Government ensure that the new board’s structure does not compromise the monitor’s independence, or enable ministerial influence, particularly when concerns have been raised about the centralisation and lack of community accountability during the select committee phase? Thank you.

I’d like to say a couple of things. Firstly, there is a Māori advisory board which the Independent Children’s Monitor board must consult with. So that is one of the safeguards. You know, it is an unfortunate reality of the number of Māori children in State care. I think another important safeguard is the baseline report that’s just been undertaken by the monitor. I think that will provide really good information so that the board, when it comes in, will have something to start from to then look at what the forward work plan should be.

I want to take this opportunity to stress part of this change is to make it independent so that it is not located in a departmental agency of the Government, to keep it as far as possible away from the Government of the day—which I know parliamentary colleagues of that member’s party were instrumental in getting to this change. We’re very much part of our Government’s commitment to make this change, because we know how important that independence is.

That’s also why, if I can talk now to the Amendment Paper, one of the things that is really important is that when reports are made by the Independent Children’s Monitor, there are time frames by when Government agencies must report back on progress, so that we can ensure progress is being made in a timely manner. So that is why we have included it.

Again, as I say, it is with the Business Committee’s approval that this is an out-of-scope matter that we are also addressing today.

Thank you. So now just looking at Part 1, clause 5, “Section 12 replaced (Independent Monitor of Oranga Tamariki System established)”. I’m just wanting to understand the safeguards, or the statutory safeguards, which are included to protect the operational and functional independence of the monitor, particularly in relation to clause 12(3), which allows for exceptions to the Crown Entities Act. If the Minister can just talk about what the statutory safeguards are, that would be awesome.

Actually, I’ll just go on to this next question as well, because it’s just clause 12A, so just moving down from that into 12A “Monitor’s board”. So just wanting to understand the justification for limiting the monitor’s board to only three members, and how this number is determined to be sufficient for robust governance, expertise, and representation. Thank you.

I want to thank the Minister, the Hon Louise Upston, for her responses so far with regard to this and the bipartisan approach that has been adopted here, as I said earlier. Can I just, further to that, say that it’s pleasing there is some acknowledgment of the Treaty and the partnership there is with Māori with regards to oranga. I think the Minister will appreciate it has been one hell of a last few years, for whoever the Minister has been. Oranga Tamariki has been incredibly hard, in terms of oversight.

I think the compilation of the board is incredibly important, so I’ll just ask the Minister what types of priorities she is giving to those three members. Will we see someone with strong iwi experience in there, for example? We have talked about diversity. Is that something she would be looking at, given how important the relationship is with Māori? My assessment and the Minister’s assessment might be that the views are divided. There are some who, obviously, still want to get rid of Oranga Tamariki. There are some who want to give Oranga Tamariki a chance. I think, in terms of giving Oranga Tamariki a chance, Labour and National are in the same waka there, and so we would like to help and support the Minister. What type of priority is she giving to diversity?

Can I also ask the Minister—because we don’t have a lot of questions in this committee time—in terms of her kōrero with various Māori, has she been working with hapū, iwi, and Māori organisations? Can she give us some assurances that there has been kōrero at pan-tribal level, in terms of a consultation process? This was always a kaupapa that the iwi leaders had prioritised, so I imagine she has talked with various people. I know that Naida Glavish has been a very vocal person and also an adviser to both Governments. Has that type of person been consulted? I’m just interested in the kōrero and the process that the Minister has gone down. Is she going to transfer some of that information and actually install people on her board who do have, I suppose, the diversity, background, history, whakapapa, and reo to instil the confidence amongst Māori? Just a few questions there for the Minister.

Thank you, members, for your questions. Just a couple of things. One that I think is really important to have on record is that the oversight of the Oranga Tamariki system is not just oversight of Oranga Tamariki as a department; there are eight children’s agencies that are involved. I want to make that really explicit because, in too many instances, where there are issues that emerge, and when the Independent Children’s Monitor reports have come through in the past, the finger gets pointed at Oranga Tamariki, where, actually, there are eight agencies involved. Often the lives of the children we are referring to have been at greater risk or harm because of other agencies other than Oranga Tamariki. I think it’s really important to put that on record. It is about: how do we ensure the eight agencies are working together to improve the lives of some of our most vulnerable children? So I wanted to make sure that we put that on the record.

In terms of the three board members, it’s a balance of—you can have an independent Crown entity with one board member. I didn’t think that that was appropriate. I think three gives us the ability to get the diversity that we require, the skill set. Absolutely, in terms of appointment of the initial board, it needs to be people who deeply understand the Oranga Tamariki system, who will have the trust and confidence of providers, of iwi, of New Zealanders at large, and of children themselves. They also need to be able to work with the other two parts of the oversight system, which is of course the Ombudsman and, after this legislation passes, the Children’s Commissioner. I was also really careful in drafting the legislation to minimise the amount of change at once, which is why it enables the continuity of the existing monitor and the existing Chief Children’s Commissioner for a period of 12 months. So they’re used to working together. They’ll continue to do that. That is about making sure there is an easier transition.

In terms of the number of the board members, again, I would just say there is a Māori Advisory Board that the three-member board will work with. In terms of the governance, I’m confident that that will be a strong set of governance for the Independent Children’s Monitor.

In terms of the safeguards, they are the standard safeguards that are required for an independent Crown entity. They are the safeguards that ensure it is independent, and that’s that arm’s length that we will want to see it will have.

Thank you, Mr Chair. I just want to ask you to follow up and explain, if you can, the role of the judge in this process, because one of the appointments is a judge on to the board. I wondered whether you were looking at that judge as being someone who’s practising now, which it looks like it is, and practising in those fields that would be connected with this area, or whether that’s going to be a problem, because they’ll be practising. So I’d just really genuinely like to know: do you see that as an asset that that person’s practising at the present time in the field and seeing what they see in that or do you see that as a conflict in the role?

I also can’t see from this whether those board members will be—it looks like it’ll be a part-time occupation. So how many hours would you envisage that the board members would be engaged in this work? Because it looks like it fits alongside other work, and just in terms of the public watching this: the role of the kind of governance of a board—what this board is intended to do in layperson’s terms. Thank you.

So in terms of the position of the judge, that’s not being changed in this legislation. But if the member Helen White thinks back to previous Children’s Commissioners, we had Judge Becroft. So when the legislation was changed in 2022, that was taken into consideration. It wouldn’t mean “in future”; it would prevent a judge taking on the Children’s Commissioner’s role in the future. So that’s not something that’s changed. We’re just changing from the board to a single person.

In terms of the time commitment, I don’t anticipate the board roles would be full time, as most Government boards are not full time. I would expect, though, in year one, as an establishment board, there would be a heavier workload in year one than I would expect in the future.

It’s the appointment of a judge as a board member. It’s a different thing from appointing a judge to the position. Obviously, with Judge Becroft, that was a full-time position. There was a small amendment, which is why I picked it up, I think, in the wording on the judge. I think it said there must be a judge on the board, and then it’s changed the wording. I just wondered what that role looked like. Thank you.

Thank you. So just speaking to the experience and knowledge of the board members, this is in new section 12B, inserted by clause 5, “Experience and knowledge of board members”: “When recommending a person for membership of the board, the Minister must have regard to the need for board members to collectively have knowledge … and experience in relation to,”—and these are all great things—“(a) the Oranga Tamariki system”—that’d be good—“(b) quality assurance; and (c) data governance.”

I’m just wanting to explore why new section 12B doesn’t have any requirement for collective expertise in Te Tiriti o Waitangi, child rights, or lived experience of care, particularly given the disproportionate number of mokopuna Māori in State care and also the Royal Commission of Inquiry into Abuse in State Care and in the Care of Faith-based Institutions’ emphasis on survivor-informed insight. I think those would have been some good things to have in there for the experience and knowledge of the board members.

Can the Minister for Social Development and Employment clarify how quality assurance and data governance will be defined in practice and what thresholds of competence will be applied in assessing board candidates under those categories? Because I know that we’re all really keen to get this board right and to make those steps forward in te Aroturuki and its independence and, therefore, effectiveness for our most vulnerable tamariki.

Just one more on that new section 12B, inserted by clause 5: why are the required areas of knowledge just really narrowly focused on internal systems expertise and not inclusive of areas such as kaupapa Māori frameworks or child development or trauma-informed care? Thank you.

Just coming back to Helen White’s question, just in terms of the appointment of a judge, it’s not required. It’s just saying if a judge was appointed as a board member, it wouldn’t affect the tenure of their judicial office. So that is what happened when we previously had a Children’s Commissioner who had been a judge. So it’s just picking that up and saying if a judge was appointed on to the Independent Children’s Monitor board, the same provisions would allow, because what we wouldn’t want it to do is preclude a judge for considering being on that board.

In terms of the requirements of the Crown Entities Act, that covers issues more generally around what we would expect board members who are on independent Crown entities to have. So what is specified here in new section 12B(1), inserted by clause 5, is the additional special requirements specifically related to the Independent Children’s Monitor, and the Oranga Tamariki system. I actually think that reflects some of the broader areas such as care experience and the abuse in State care considerations because that comes into that broader Oranga Tamariki system. And what happens when a new board is created, or actually any board appointments, but particularly a new board, is the Public Service Commission then looks at what are the requirements of the role, and then there is a bit of to and fro in terms of does that set of skills, attributes, capabilities fulfil the legislative requirement of what’s laid out, but also the intention of what the Minister wants to see from that independent Crown entity.

So I’m confident that is covered, including the questions around data governance, and I know particularly with Māori, through Pou Tangata, for example, there is work under way around specific Māori data governance issues that are of interest. So that would be part of the consideration in terms of suitable candidates, and that will be taken into consideration at that point.

Thank you, Madam Chair. I can see the other side are really keen to take a closure motion on this.

Tim van de Molen: Oh, don’t make assumptions.

Hon WILLOW-JEAN PRIME: Oh. I don’t know why they would break with the tradition of previous short calls and take one. But, anyway—anyway—we’re being serious here, everybody. I just wanted to pick up on the question that my colleague asked around the appointment of a judge as a board member. I think the concern that we have, and we just want to raise that in the committee, is because they would be able to potentially continue—so they bring over skills, relevant skills and expertise, like we saw with Judge Becroft when he was the Children’s Commissioner. But the concern, I suppose, I want to raise here is: given it is the Independent Children’s Monitor of the children’s system, and courts play a role in that entire system, it doesn’t create some kind of potential conflict there that could threaten the true independence of the monitor and the board. I just wonder if you have anything that you want to say on that for us.

I thank the member, and I think what is useful—and it’s a good issue to raise—but just thinking about the three entities of the Independent Children’s Monitor, is they provide advice; they do the monitoring. It’s not advocacy, and I think that’s where—obviously, when the appointments are being made to the board, that would be something to consider, but I don’t see it would be an issue.

I move, That debate on this question now close.

Given that answer, I do think we need to note on the record that when we look at the experiences shared in the royal commission and the complaints made, a lot of distrust exists amongst the community of the oversight in the past, and still of the current systems between courts, agencies, and so on. So I just want to note the concern around the fact that a judicial appointment to that board—I understand what you are saying their role is, that we, through this bill, are trying to make it truly independent. Just that those concerns are there, because they are real concerns that have been shared by survivors in the royal commission process, as an example.

I thank the member the Hon Willow-Jean Prime for raising that, and my feedback to that would be: this is a board, and I think, at an operational level—so when it is the staff themselves who go in to monitor a facility or go in to monitor and engage with providers—I could absolutely see that survivors would be concerned if they were confronted with a member of the judiciary who is doing that work. But this is at a governance level, and their role doesn’t include any oversight of the judicial system; that would, clearly, be inappropriate. I note the member’s concern, and it’ll now be on the record.

Mr Chair, thank you. Thank you to the Minister for Social Development and Employment for that explanation. I suppose what I would note here is that it does have a five-year review clause, and maybe if that turns out to be an issue once this is enacted, then that is something that could be looked at through the review process—that it didn’t have any unintended consequences. I think we can see what it is trying to address, but we are also raising concerns about what potential there could be for that perception of real lack of genuine independence. So I do note that we have a five-year review clause in here, which means that that could be looked at if it was an issue.

Mr Chair, thank you. I still do have quite a bit of—not heaps and heaps, not enough to fill the 2½ hours programmed for this committee of the whole House—but I do have some more scrutinising of the bill, just to make sure that we are really understanding it and really getting it right for our most vulnerable tamariki.

So I just want to talk to Part 1, clause 6, new section 16; this is the “(Duty to act independently)”. In here it does say: “Except as expressly provided otherwise in this or another Act, the Monitor must act independently when performing its functions and duties”. So I just wanted to know: what specific legislative provisions, either in this bill or in other Acts, override or limit the monitor’s independence? And can the Minister please provide some of those expectations? And, yeah, just reminding where it is, it’s in that clause 6, new section 16, where it says—so, yeah, some examples would be wonderful.

So the first thing is the functions of the monitor are no different than what they were previously. It is just them including it here because it now will be an independent Crown entity. But the functions are the same. As part of the legislation that was passed in the previous Government, there is a five-year review. The review of the legislation I brought forward, it has been concluded—the first review—and it deemed that there was no change necessary to the functions in the three entities of the oversight system. So there is no change in those functions. I think the committee and the public should be reassured that the legislative review that has been undertaken already, early of the five-year mark, didn’t highlight any concerns or issues with the division of the functions that are currently undertaken by the three entities.

I move, That debate on this question now close.

Thank you. I’m just moving into Part 2 now—I know that we’re just taking it as a whole, but I had it in sections, so there we are. So I’m looking at Part 2, “Amendments to Children and Young People’s Commission Act 2022”, clause 13, “Section 6 amended”. It’s talking about “when recommending a candidate for appointment as the Children’s Commissioner, to have regard to the candidate’s knowledge and understanding of te Tiriti o Waitangi/the Treaty of Waitangi, Māori knowledge, and knowledge of, and experience in, tikanga Māori;”. So I’m just wanting to understand why this amendment only refers to the Children’s Commissioner and doesn’t extend to Tiriti-related appointment criteria to the board members, as we talked about previously, of the Independent Children’s Monitor.

I’m asking this particularly because we know that Māori tamariki are so overrepresented and make up about 70 percent of those tamariki in State care. So we can see that it’s in there for the appointment of the Children’s Commissioner, and just wondering why it was decided not to extend that. Thank you.

As I said before, the Crown Entities Act already covers these requirements, so it wasn’t necessary for the Independent Children’s Monitor to add that into it. It was just adding, for this particular independent Crown entity, what the requirements were for the selection of the board members.

Thank you. Moving into Part 2, clause 15, new sections 11 to 14—and this is the section that establishes the Children’s Commissioner—and we know that we’re moving into that sole commissioner model. I’m wanting to understand what advice did the Government receive on the compatibility of a single commissioner model with the principles of collective decision-making and how will continuity, institutional knowledge, and accountability be ensured in the absence of the previous structure, particularly in the event of a change in commissioner or a vacancy in the role?

Just further to that—so still looking at clause 15, new sections 11 to 14—how does the clause ensure the commissioner has adequate administrative and structural support to perform a wide-ranging mandate under the new section 12 and related legislation?

Obviously, if we think about how we got to the recommendation of a single Children’s Commissioner, as opposed to a board, it was absolutely about ensuring there was complete clarity for New Zealanders at large but, more importantly, for children and young people—that they knew who their person was. The Children’s Commissioner is the advocate for children in the Oranga Tamariki system but children at large. So, in terms of the decision to move from a board to a single Children’s Commissioner, that’s why we’ve done that. I got advice at the time about the structure. This is the same model that is in Australia and the UK and also a successful model that we had previously, before the 2022 changes. So it was going back to a structure we had.

Also, the ability to appoint a Deputy Children’s Commissioner, I think, is an important addition in terms of continuity and in terms of having support for the Children’s Commissioner. I’m aware of the importance of administrative support for a Children’s Commissioner, and you might appoint a Children’s Commissioner that is an amazing advocate who isn’t necessarily the best person at managing an organisation, and so I’m clear that the legislation that we are presenting today has the flexibility to ensure the Children’s Commissioner is able to be supported with an organisation, to cover off those skill sets, because the Children’s Commissioner should be first and foremost focused on advocacy rather than administration.

I move, That debate on this question now close.

The question is that the Minister’s amendments to Amendment Paper 291 set out on Amendment Paper 292 be agreed to.

Amendments to the amendments agreed to.

The question is that the Minister’s amendments to Amendment Paper 291 set out on Amendment Paper 293 be agreed to.

Amendments to the amendments agreed to.

The question is that the Minister’s amendments set out on Amendment Paper 291 as amended be agreed to.

Amendments agreed to.

Parts 1 and 2, Schedules 1 to 6, and clauses 1 and 2 as amended agreed to.

Bill to be reported with amendment.

House resumed.

Madam Speaker, the committee has considered the Oversight of Oranga Tamariki System Legislation Amendment Bill and reports it with amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.

The Oversight of Oranga Tamariki System Legislation Amendment Bill is set down for third reading immediately.

Third Reading