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:
Oranga Tamariki Act 1989:
Oranga Tamariki (National Care Standards and Related Matters) Regulations 2018:
Oranga Tamariki (Residential Care) Regulations 1996:
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:
Crimes of Torture Act 1989:
Health and Disability Commissioner Act 1994:
Human Assisted Reproductive Technology Act 2004:
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:
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.