Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill

Oversight of Oranga Tamariki System and Children and Young People’s Commission Bill

Government Bill

94—1

Explanatory note

General policy statement

This Bill is an omnibus bill introduced under Standing Order 267(1)(a). Standing Order 267(1)(a) provides that an omnibus Bill to amend more than 1 Act may be introduced if the amendments deal with an interrelated topic that can be regarded as implementing a single broad policy. The interrelated topic and single broad policy objective of this Bill is to improve outcomes for children and young people in New Zealand by strengthening—

  • the independent monitoring and complaints oversight of the Oranga Tamariki system; and

  • advocacy for children’s and young people’s issues generally.

Independent monitoring and complaints oversight of Oranga Tamariki system

Independent monitoring of the Oranga Tamariki system has been identified as playing a vital role in—

  • providing assurance that outcomes for children and young people are improving, and providing independent scrutiny of the use of coercive powers, particularly in regard to the removal of children from whānau; and

  • strengthening the resilience of systems through supporting improvements in services, practices, and processes.

Independent monitoring also promotes transparency and builds public trust and confidence that the well-being and safety of children and young people is paramount.

From 1 July 2019 the Ministry for Social Development (MSD) was appointed on an interim basis as the independent monitor of the Oranga Tamariki system, with the intention that the monitoring function be transferred to a new person or entity once the new legislative framework to be established by this Bill and the strengthening of the function are in place.

Key components of the functions of the independent monitor (the Monitor) include—

  • ensuring effective systems performance, service, and practice monitoring and reviews, drawing on a range of information sources, including the voices of children, young people, families and whānau:

  • providing for the Crown’s commitment to te Tiriti o Waitangi in a meaningful and practical way.

Complaints oversight

Children, young people, families and whānau in the Oranga Tamariki system are often reluctant to raise concerns. Complaints can take a long time to resolve, and it can be challenging to find the right support to resolve issues involving multiple agencies.

The Ombudsmen Act 1975 is generally considered sufficient for Ombudsmen to deal with complaints and undertake investigations in respect of children, young people, and families and whānau in the Oranga Tamariki system.

This Bill seeks to strengthen the complaints oversight function performed by Ombudsmen by ensuring that where an Ombudsman is conducting an investigation relating to the Oranga Tamariki system, they do so in a way that—

  • will further the Bill’s ultimate purpose of improving outcomes for children and young people; and

  • supports the agencies in the Oranga Tamariki system in resolving complaints; and

  • will give practical effect to te Tiriti o Waitangi.

Advocacy for children’s issues generally

The Children’s Commissioner currently has the following key functions under the Children’s Commissioner Act 2003:

  • monitoring, assessing, and reporting on services provided to children and young persons in the Oranga Tamariki system:

  • investigating decisions, recommendations, and acts or omissions in respect of children and young persons:

  • inquiring generally into, and reporting on, any matter that relates to the welfare of children:

  • advocating on issues that affect all children and young people in New Zealand:

  • raising awareness of, and advancing, the United Nations Convention on the Rights of the Child (the Children’s Convention).

In recognition of the importance of children’s issues generally in society and that it is no longer possible for a single individual to be across the broad scope of issues, the Commissioner sole model will be replaced with a Children and Young People’s Commission (the Commission). To this end, the Bill will repeal the Children’s Commissioner Act 2003 and create a new Act (separate from the parts of the Bill that govern the independent monitoring and complaints oversight and investigations of the Oranga Tamariki system) to set out the governance, functions, duties, powers, and principles of the Commission.

The Commission will be an independent Crown entity with the mana and flexibility to hold the Government to account when necessary and be independent of Government policy.

The Minister responsible for the Oranga Tamariki Act 1989 is specified in the Children’s Commissioner Act 2003 as the responsible Minister for the administration of that Act. However, in recognition of the conflicts that exist with this Minister (who is currently the Minister for Children) also being responsible for Oranga Tamariki—Ministry for Children (Oranga Tamariki), administrative responsibilities have previously been delegated to the Minister for Social Development. The Bill provides that the appointment of a responsible Minister for the administration of Part 5 of the Bill governing the Commission to be at the discretion of the Prime Minister. Therefore, in future the Prime Minister, rather than the Minister responsible for the Oranga Tamariki Act 1989 will determine who will be the Minister responsible for the administration of the Commission.

This Bill does not intend to substantially change the functions presently carried out by the Commissioner and to be inherited by the Commission, with the exception that the powers to investigate decisions, recommendations, acts, or omissions in respect of individual children and young people will not carry over. The reason for this is that Ombudsmen already conduct a similar investigatory function and will continue to do so.

Notably, the function of inquiring generally into, and reporting on, any matter that relates to the welfare of children will be strengthened by the Bill with the ability of the Commission to require the provision of information from agencies to enable the effective discharge of this function.

Bill provides for 5-yearly reviews

The Bill provides for the review of the way in which the Monitor is operationalising Parts 1 to 4 of the Bill (to become a separate Act) relating to independent monitoring, and the Monitor’s working relationship with Ombudsmen, no later than 5 years following its commencement. The way in which the Commission is operating in respect of Part 5 of the Bill (also to become a separate Act) will also be reviewed no later than 5 years following its commencement. These reviews will provide assurance that the entities with functions under the Bill are operating in a manner that is achieving the purposes of the Bill.

Claims relating to abuse in state care

Since responsibility for the Oranga Tamariki Act 1989 transferred from MSD to Oranga Tamariki, both agencies have been developing improved arrangements for the resolution of claims relating to abuse in state care.

The Bill makes a minor amendment to Schedule 1AA of the Oranga Tamariki Act 1989 to reflect that MSD will be responsible for resolving claims about events that occurred prior to 1 April 2017.

Legislation amended by Bill
Amendments to other legislation by Parts 1 to 4 of Bill relating to independent monitoring and complaints oversight of Oranga Tamariki system

The following legislation is amended by the Bill to give effect to the changes relating to independent monitoring and complaints oversight of the Oranga Tamariki system:

  • Official Information Act 1982:

  • Ombudsmen Act 1975:

  • Oranga Tamariki Act 1989:

  • Oranga Tamariki (National Care Standards and Related Matters) Regulations 2018:

  • Oranga Tamariki (Residential Care) Regulations 1996:

  • Family Court Rules 2002.

Amendments to other legislation by Part 5 of Bill relating to Children and Young People’s Commission

The following legislation is amended by the Bill to give effect to the changes relating to the establishment of the Children and Young People’s Commission:

  • Children’s Act 2014:

  • Coroners Act 2006:

  • Corrections Act 2004:

  • Crimes of Torture Act 1989:

  • Crown Entities Act 2004:

  • Health and Disability Commissioner Act 1994:

  • Human Assisted Reproductive Technology Act 2004:

  • Ombudsmen Act 1975:

  • Oranga Tamariki Act 1989:

  • Public Safety (Public Protection Orders) Act 2014:

  • Remuneration Authority Act 1977:

  • Substance Addiction (Compulsory Assessment and Treatment) Act 2017:

  • Education (Hostels) Regulations 2005:

  • Family Court Rules 2002:

  • Oranga Tamariki (Residential Care) Regulations 1996.

Existing provisions relevant to the purpose and intent described for each function contained in the Oranga Tamariki Act 1989, the Oranga Tamariki (National Care Standards and Related Matters) Regulations 2018, the Oranga Tamariki (Residential Care) Regulations 1996, and the Children’s Act 2014 will be transferred to the new Acts and related regulations.

Bill to be divided into separate Bills

It is intended that this Bill be divided into the following 2 separate Bills at the end of the committee of the whole House stage:

  • Parts 1 to 4 and Schedule 1—Oversight of Oranga Tamariki System Bill:

  • Part 5 and Schedules 2 to 4—Children and Young People’s Commission Bill.

Departmental disclosure statement

The Ministry of Social Development is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact statement

A regulatory impact statement is not required for this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. Both the Oversight of Oranga Tamariki System Act set out in Parts 1 to 4 and Schedule 1 and the Children and Young People’s Commission Act set out in Part 5 and Schedules 2 to 4 come into force on the day after the date on which each resulting Act receives the Royal assent.

Part 1Preliminary provisions

Clause 3 provides an overview of the general scheme and effect of the Oversight of Oranga Tamariki System Bill (the Bill).

Clause 4 states the purpose of the Bill.

Clause 5 sets out the principles to guide a person who performs a function or duty or exercises a power under the Bill.

Clause 6 sets out how the Bill recognises and respects the Crown’s responsibility to give effect to the Treaty of Waitangi (te Tiriti o Waitangi).

Clause 7 sets out the common duties of the Independent Monitor of the Oranga Tamariki System (the Monitor) and Ombudsmen under the Bill.

Clause 8 defines terms used in the Bill.

Clause 9 defines Oranga Tamariki system, which is a key term used throughout the Bill. Oranga Tamariki system means the system that is responsible for—

  • providing services and support to children, young people, and their families and whānau under, or in connection with, the Oranga Tamariki Act 1989; and

  • responding under that Act to offending by children and young people.

Clause 10 gives effect to the transitional, savings, and related provisions set out in Schedule 1.

Clause 11 provides that the Bill, when enacted, binds the Crown.

Part 2Oversight of Oranga Tamariki system

Subpart 1—Monitoring of Oranga Tamariki system

Independent Monitor of Oranga Tamariki System

Clause 12 establishes the office of the Independent Monitor of the Oranga Tamariki System. The Monitor is the person appointed as chief executive of the Independent Monitoring Agency of the Oranga Tamariki System (a departmental agency to be established under section 23 of the Public Service Act 2020 to support the Monitor in carrying out their functions, duties, and powers under the Bill).

Monitor’s objectives, monitoring function, duties, and powers

Clause 13 states the objectives of the Monitor, which are to carry out objective, impartial, and evidence-based monitoring and to provide advice about the Oranga Tamariki system and its interface with other systems.

Clause 14 provides that the function of the Monitor is to monitor the performance of the Oranga Tamariki system in the context of its interface with other systems and specifies the details of the monitoring function.

Clause 15 provides that a Minister of the Crown must not direct the Monitor to stop carrying out an activity, or prevent the Monitor from carrying out an activity, that the Monitor considers is necessary to enable them to perform or exercise their functions, duties, or powers under the Bill.

Clause 16 requires the Monitor to develop tools and monitoring approaches to use in their monitoring and reporting under the Bill.

Māori Advisory Group

Clause 17 requires the Monitor to appoint a Māori Advisory Group in order to support meaningful and effective engagement with Māori.

Clause 18 provides that the Monitor must collaborate with, and have regard to the views of, the Māori Advisory Group when the Monitor is developing their priorities, work programmes, and monitoring approaches. Clause 18(2) requires the Monitor to demonstrate annually on an Internet site maintained by or on behalf of the Monitor how they have had regard to the Māori Advisory Group’s views.

Arrangements with iwi and Māori organisations

Clause 19 provides that the Monitor must make reasonable efforts to develop arrangements with iwi and Māori organisations for the purposes of providing opportunities to, and inviting proposals on how to, improve oversight of the Oranga Tamariki system and sharing information under the Bill.

Code of ethics

Clause 20 requires the Monitor to have a code of ethics relating to engagement with other persons in the performance of their monitoring function under the Bill. Clause 20(2) states the purposes of the code of ethics. Clause 20(5) requires the Monitor to publish their code of ethics on an Internet site maintained by or on behalf of the Monitor.

Reports and reviews

Clause 21 requires the Monitor, at least once every 3 years, to prepare a State of the Oranga Tamariki System report.

Clause 22 requires the Monitor to prepare an annual report on compliance with regulations made under the Oranga Tamariki Act 1989 that set out national care standards for children and young persons in the care or custody of the chief executive of Oranga Tamariki—Ministry for Children (the chief executive of Oranga Tamariki).

Clause 23 requires the Monitor to prepare an annual report on the performance of the Oranga Tamariki system in respect of the outcomes being achieved for Māori children and young people and their whānau.

Clause 24 requires the Monitor, at the request of the Minister responsible for the Monitor, to carry out a review, and prepare a report on any topic within their monitoring function. However, clause 24(2) provides that a request may not require the Monitor to cease carrying out any of their monitoring activities currently underway or scheduled to begin in order to prioritise the review. Clause 24(3) allows the Monitor to carry out a review at the request of the chief executive of Oranga Tamariki.

Clause 25 enables the Monitor, on their own initiative, to carry out reviews of issues, themes, concerns, or areas of identified practice relating to the delivery of services or support through the Oranga Tamariki system and to prepare a report on the results of the review.

Clause 26 requires the Monitor to provide their draft findings or draft report to the chief executive of an agency that is the subject of the report and give the chief executive the opportunity to comment on the draft findings or draft report. Clause 26(2) prohibits the Monitor from making a comment in a report prepared under subpart 1 of Part 2 that is adverse to an individual or agency unless the person has been given an opportunity to be heard.

Clause 27 specifies the Ministers, chief executives, and other persons to whom the Monitor must provide their final reports prepared under clauses 21, 22, 23, and 24.

Clause 28 requires the Minister responsible for the administration of the Oranga Tamariki Act 1989 to present final reports prepared under clauses 21, 22, 23, and 24 to the House of Representatives as soon as is reasonably practicable after receiving them.

Clause 29 requires the chief executive of an agency that is the subject of a Monitor’s final report to prepare a response to the report. The response must set out what the agency intends to do, the time frame within which any necessary changes are intended to be made, and how the agency intends to monitor the impact of the changes.

Clause 30 requires the Monitor to publish the final reports made under clauses 21, 22, 23 and 25 and responses to those reports on an Internet site maintained by or on behalf of the Monitor. However, any information in the reports or responses that may identify an individual must be redacted or withheld from publication unless certain provisions set out in clause 31 apply.

Clause 31 provides that reports prepared by the Monitor under clauses 21, 22, 23, 24(4), 25(2), and 27, or any report prepared by the chief executive of an agency in response to those reports, must not contain any personal information about a child or young person or any member of their family, whānau, hapū, or iwi unless the Monitor has obtained informed consent.

Power of entry for monitoring purposes

Clause 32 enables the Monitor to authorise their employees or contracted staff (authorised staff members) to enter premises in accordance with the Bill. Clause 32(3) defines premises as a residence or an office that is owned, managed, or contracted by Oranga Tamariki or an approved provider.

Clause 33 provides authorised staff members with the power to enter premises for the purposes of observing practice or monitoring the performance of the Oranga Tamariki system.

Clause 34 requires an authorised staff member to give written notice of a proposed entry under clause 33 to the person in charge of premises within a reasonable time before entering the premises.

Clause 35 sets out limits on the power to enter premises under clause 33.

Subpart 2—Complaints oversight by Ombudsmen

Clause 36 states the purpose of subpart 2, which is to provide an Ombudsman with additional duties and powers when dealing with matters that fall under the Ombudsmen Act 1975 and relate to services or support delivered by Oranga Tamariki or care or custody providers.

Clause 37 specifies provisions of the Bill that apply to an Ombudsman when they are dealing with matters that fall under the Ombudsmen Act 1975 and relate to services or support delivered by Oranga Tamariki or care or custody providers. Clause 37(3) clarifies that nothing in the Bill limits or affects the functions, duties, and powers of an Ombudsman under the Ombudsmen Act 1975.

Clause 38 sets out new duties that apply to an Ombudsman when they are dealing with complaints and investigations involving Oranga Tamariki or care or custody providers, including a duty to ensure they operate in a culturally competent way and their complaints and investigations processes incorporate a tikanga Māori approach.

Clause 39 provides that an Ombudsman may provide guidance to Oranga Tamariki and care and custody providers on the design of their complaints processes and to support the learning and continuous improvement of those processes.

Clause 40 provides that an Ombudsman may require Oranga Tamariki or a care or custody provider to provide the Ombudsman with information that is required for the purposes of making preliminary inquiries.

Clause 41 requires the chief executive of Oranga Tamariki or a care or custody provider to proactively provide an Ombudsman with access to information to assist the Ombudsman when they are considering matters that fall under the Ombudsmen Act 1975 and relate to services or support delivered by Oranga Tamariki or the care or custody provider.

Arrangements with iwi and Māori organisations

Clause 42 provides that the Chief Ombudsman must make reasonable efforts to develop arrangements with iwi and Māori organisations for the purposes of supporting Ombudsmen in carrying out their duties under the Bill in relation to complaints and investigations and sharing of information under the Bill.

Part 3Information provisions and other matters

Subpart 1—Information provisions

Clause 43 sets out the purpose for which information may be collected, used, or disclosed by the Monitor under the Bill.

Collection of information

Clause 44 enables the Monitor to engage directly with certain people.

Clause 45 provides the Monitor with the power to require information from an agency that delivers services or support to children, young people, and their family or whānau. The requirement to provide information must be in writing and made in accordance with the Monitor’s code of ethics and information rules. Clause 45(4) clarifies that nothing in this clause limits or affects legal professional privilege.

Clause 46 requires the Monitor to comply with the requirements of the Monitor’s code of ethics and to obtain informed consent before collecting information directly from a child or young person. If the child or young person does not have the capacity to give consent, the informed consent must be obtained from the child’s or young person’s caregiver. Clause 46(2) provides that a child, young person, or caregiver may withdraw their consent to the collection of information at any time.

Clause 47 provides that the Monitor may require a child’s or young person’s caregiver to facilitate the Monitor’s access to a child or young person in their care for the purpose of monitoring the performance of the Oranga Tamariki system.

Disclosure of information

Clause 48 prohibits the Monitor from disclosing information collected by the Monitor except for specified reasons.

Monitor’s information rules

Clause 49 requires the Monitor to make information rules in relation to the collection, use, and disclosure of information by the Monitor to ensure protection of the privacy of persons to whom the information relates.

Clause 50 sets out what must be contained in information rules made under clause 49.

Sharing of information

Clause 51 provides for sharing of information between the Monitor and an Ombudsman.

Subpart 2—Other matters

Reports of interference or non-compliance

Clause 52 enables the Monitor to report on interference with the performance of their monitoring function and on a lack of compliance with specified provisions of the Bill.

No power for Monitor to review courts or tribunals

Clause 53 provides that the Monitor may not review any decision or recommendation, or any act or omission, of a court or tribunal when the Monitor is performing their monitoring function under the Bill. If a matter is the subject of proceedings before a court or tribunal, the Monitor may not commence or continue a review into the matter until the proceedings are finally determined.

Referrals

Clause 54 enables the Monitor or an Ombudsman to refer matters, in whole or in part, to specified persons. The Monitor or Ombudsman must consult the relevant person before making a referral.

Miscellaneous

Clause 55 protects the Monitor and the Monitor’s staff from personal liability when performing or exercising functions, duties, or powers under the Bill, unless the person acts in bad faith.

Clause 56 provides for the making of regulations for the purposes of the Bill.

Clause 57 requires an independent review of the operation and effectiveness of the proposed Oversight of Oranga Tamariki System Act (created by the Bill) and the operation of the Monitor under the Act no later than 5 years after its commencement.

Part 4Amendments to other legislation

Subpart 1—Amendments to Acts

Amendments to Official Information Act 1982

Clause 58 provides that clause 59 amends the Official Information Act 1982.

Clause 59 amends the definition of official information in section 2(1) to exclude information that is contained in correspondence or communications between an Ombudsman and a public service agency, a Minister of the Crown, or an organisation and that relates to an agency delivering services in the Oranga Tamariki system or the provision of guidance by an Ombudsman under clause 39.

Amendments to Ombudsmen Act 1975

Clause 60 provides that clauses 61 and 62 amend the Ombudsmen Act 1975 (the principal Act).

Clause 61 amends section 15, which enables the House of Representatives to make rules for guidance of Ombudsmen, to enable the making of rules to guide Ombudsmen when they are performing their duties under the Bill.

Clause 62 amends Part 2 of Schedule 1, which specifies organisations (other than local organisations) to which the principal Act applies, to include approved providers under section 396 of the Oranga Tamariki Act 1989, to the extent that they are providing services under that Act.

Amendments to Oranga Tamariki Act 1989

Clause 63 provides that clauses 64 to 70 amend the Oranga Tamariki Act 1989 (the principal Act).

Clause 64 amends section 2(1), which is an interpretation provision, to insert a definition of Independent Monitor of the Oranga Tamariki System.

Clause 65 amends section 7(2)(bae), which provides that it is a duty of the chief executive of Oranga Tamariki to ensure that the policies and services provided by Oranga Tamariki are informed by the outcomes of cases considered by the complaints process undertaken in accordance with regulations made under section 447. The amendment removes the reference to the complaints process being undertaken in accordance with those regulations because the oversight of complaints is now set out in subpart 2 of Part 2 of the Bill (which provides for complaints oversight by Ombudsmen).

Clause 66 amends section 47, which requires a report to be furnished to the Children’s Commissioner where a child or young person placed in the custody of the chief executive of Oranga Tamariki is released from that custody before they are required to be brought before court. The amendments provide that the report is to be sent to an Ombudsman to enable the Ombudsman to consider whether to exercise any functions or powers under the Ombudsmen Act 1975 in relation to any matter arising from the release of the child or young person from custody.

Clause 67 amends section 445E, which prevents a person from bringing certain proceedings, so that the provision no longer covers proceedings in relation to the review of an outcome of a complaint.

Clause 68 replaces section 447(1)(fa)(v), which is a regulation-making power relating to the manner in which national care standards are monitored and reported on under the principal Act, to reflect the changes made by the Bill.

Clause 69 consequentially repeals section 447A, which requires the Minister responsible for the principal Act to appoint independent persons to monitor compliance with the standard of care prescribed in regulations.

Clause 70 amends clause 6 of Schedule 1AA, which is a savings provision relating to the application of the complaints mechanism established under section 7(2)(bad) that enables a person to complain about acts or omissions of the chief executive of Oranga Tamariki and their delegates and employees that occurred on or after 1 January 2008. The amendment provides that the complaints mechanism applies to any act or omission that occurred on or after 1 April 2017.

Subpart 2—Amendments to secondary legislation

Amendments to Oranga Tamariki (National Care Standards and Related Matters) Regulations 2018

Clause 71 provides that clauses 72 to 75 amend the Oranga Tamariki (National Care Standards and Related Matters) Regulations 2018 (the principal regulations).

Clause 72 amends section 5(1), which is an interpretation provision, to insert a definition of Independent Monitor of the Oranga Tamariki System.

Clause 73 revokes regulations 77 to 85 (and the cross-heading above regulation 77), which provide for monitoring and reporting on compliance with the principal regulations by an independent monitor (currently, the Ministry of Social Development) as these matters are superseded by the Bill.

Clause 74 amends regulation 86, which provides for self-monitoring of compliance with the principal regulations by the chief executive of Oranga Tamariki and approved organisations with a child or young person in care or custody, to enable the Monitor to require a report on the self-monitoring at any time.

Clause 75 amends regulation 87, which requires the chief executive of Oranga Tamariki and approved organisations with a child or young person in care or custody to report to the Minister and the independent monitor on the results of their self-monitoring, to update the reference to the independent monitor with a reference to the Independent Monitor of the Oranga Tamariki System, and to change the reporting period from once every 3 years to once every year.

Amendment to Oranga Tamariki (Residential Care) Regulations 1996

Clause 76 provides that clause 77 amends the Oranga Tamariki (Residential Care) Regulations 1996.

Clause 77 amends regulation 31(5)(d) to add the Chief Ombudsman and the Independent Monitor of the Oranga Tamariki System to the list of persons who must receive reports from grievance panels under that provision.

Amendments to Family Court Rules 2002

Clause 78 provides that clause 79 amends the Family Court Rules 2002.

Clause 79 amends rule 427 to include an Ombudsman in the list of people who are entitled to have access to a document or court file during the first access period (as that period is defined in rule 426) and to include a definition of Ombudsman in the provision.

Amendment to Ombudsmen Rules 1989

Clause 80 provides that clause 81 amends the Ombudsmen Rules 1989.

Clause 81 amends rule 2 to provide an Ombudsman with the power to publish reports relating to the performance of their duties under the Bill.

Part 5Children and Young People’s Commission

Part 5 (clauses 82 to 122) and Schedules 2 to 4 set out the Children and Young People’s Commission Bill (the Bill).

Subpart 1—Preliminary provisions

Clause 82 provides an overview of the general scheme and effect of the Bill.

Clause 83 states the purpose of the Bill.

Clause 84 sets out principles to guide the Commission when performing its functions and duties and exercising its powers under the Bill.

Clause 85 sets out how the Bill recognises and respects the Crown’s responsibility to give effect to the Treaty of Waitangi (te Tiriti o Waitangi).

Clause 86 defines terms used in the Bill.

Clause 87 clarifies that the text of the United Nations Convention on the Rights of the Child (the Children’s Convention) is reproduced in Schedule 3 for information and reference purposes only.

Clause 88 gives effect to the transitional, savings, and related provisions set out in Schedule 2.

Clause 89 provides that the Bill, when enacted, binds the Crown.

Subpart 2—Children and Young People’s Commission

Clause 90 establishes the Children and Young People’s Commission (the Commission) as an independent Crown entity.

Clause 91 relates to the membership of the Commission’s board and provides that it must consist of at least 3, but not more than 6, board members.

Clause 92 sets out the experience and knowledge required of the Commission’s board members and requires at least half of the board members to have Māori knowledge and experience in, and understanding of, tikanga Māori.

Clause 93 requires the Minister to have regard to the recommendations of a nominations panel (convened under clause 94) when recommending the appointment of a board member, or the reappointment of a board member who has had continuous service of 6 years or more. Clause 93(2) also provides that candidates applying for appointment as a board member must be endorsed by relevant agencies.

Clause 94 requires the chief executive of the responsible department to convene a nominations panel for the purposes of assessing candidates and making recommendations to the Minister relating to appointments and reappointments under clause 93.

Clause 95 clarifies matters relating to the appointment of a Judge as a board member.

Clause 96 sets out the duties of the board.

Clause 97 provides for the independence of the Commission.

Clause 98 provides that income of the Commission is exempt from income tax.

Commission’s functions, common duties, and powers

Clauses 99 to 104 relate to the specific functions, duties, and powers of the Commission.

Clause 99 describes the function of the Commission to promote the interests and well-being of children and young people.

Clause 100 describes the function of the Commission to promote the rights of children and young people.

Clause 101 describes the function of the Commission to encourage children’s and young people’s participation and voices.

Clause 102 sets out common duties of the Commission, the Monitor, and Ombudsmen under the Bill. The common duties apply when the Commission is working with children and young people who are receiving, or have previously received, services or support through the Oranga Tamariki system.

Clause 103 provides that the Commission may perform or exercise any other functions, duties, or powers conferred on it by another enactment.

Clause 104 requires the Commission, when performing its functions under clauses 99, 100, and 101, to have regard to the question of whether the rights, interests, and well-being of 1 or more children or young people have been prejudiced.

Clause 105 prohibits the Commission from making a comment under the Bill that is adverse to an individual or agency unless the Commission has given the person a reasonable opportunity to be heard.

Code of ethics

Clause 106 requires the Commission to have a code of ethics in relation to engagement carried out by board members and staff of the Commission in the performance or exercise of the Commission’s functions, duties, or powers under the Bill.

Subpart 3—Inquiries and other matters

Provisions relating to inquiries by Commission

Clauses 107 to 110 set out further detail relating to inquiries carried out by the Commission under clause 99(i) of the Bill, including—

  • provisions giving the Commission special powers to call for information or documents (clauses 107 and 108):

  • a requirement for the Commission and its staff to maintain secrecy (clause 109):

  • allowing the Commission to regulate its own procedures when conducting inquiries (clause 110).

Information rules

Clause 111 requires the Commission to make information rules in relation to the collection, use, and disclosure of information by the Commission to ensure protection of the privacy of persons to whom the information relates.

Clause 112 sets out what must be contained in information rules made under clause 111.

Sharing of information

Clause 113 provides for sharing of information between the Commission, the Monitor, and an Ombudsman.

Reports of interference or non-compliance

Clause 114 enables the Commission to report on interference with the performance of the Commission’s functions under the Bill and a lack of compliance with the requirement to provide information to the Commission.

Referrals

Clause 115 enables the Commission to refer matters, in whole or in part, to specified persons.

Miscellaneous

Clause 116 provides that proceedings are privileged.

Clause 117 provides for the making of regulations under the Bill.

Clause 118 requires an independent review of the proposed Children and Young People’s Commission Act (created by the Bill) and the operation of the Commission under the Act no later than 5 years after its commencement.

Subpart 4—Amendments to other legislation and repeal

Amendment to Oranga Tamariki (Residential Care) Regulations 1996

Clause 119 provides that clause 120 amends the Oranga Tamariki (Residential Care) Regulations 1996.

Clause 120 amends clause 10(4) of the Schedule to remove the ability of the Children’s Commissioner to carry out an investigation when a child or young person is not satisfied with the outcome of a grievance panel’s review. An Ombudsman continues to have the ability to carry out an investigation.

Consequential amendments and repeal

Clause 121 consequentially amends the legislation specified in Schedule 4 in the manner set out in that schedule.

Clause 122 repeals the Children’s Commissioner Act 2003.