Children, Young Persons, and Their Families (Advocacy, Workforce, and Age Settings) Amendment Bill

2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill?

YES

The policy to be given effect by the Bill forms part of Government’s response to the recommendations made by the Modernising Child, Youth and Family Expert Panel. The Panel’s reports are:

• Modernising Child, Youth and Family Expert Panel, Modernising Child, Youth and Family Expert Panel: Interim report (July 2015) ) – available at: https://www.msd.govt.nz/about-msd-and-our-work/work-programmes/cyf-modernisation/

• Modernising Child, Youth and Family Expert Panel, Expert Panel Final Report: Investing in New Zealand’s Children and their Families (published April 2016) – available at: http://www.msd.govt.nz/about-msd-and-our-work/work-programmes/investing-in-children/index.html

2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty?

NO

2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill?

YES

To inform the main policy decisions taken by the Government relating to the contents of this Bill, three Regulatory Impact Statements (RISs) were produced:

• Children, Young Persons, and Their Families Act age settings – produced by the Ministry of Social Development – 9 March 2016, available at: http://www.msd.govt.nz/about-msd-and-our-work/publications-resources/regulatory-impact-statements/index.html
• Modernising Child, Youth and Family: Enhancing children and young people’s participation – produced by the Ministry of Social Development – 5 April 2016, available at: http://www.msd.govt.nz/about-msd-and-our-work/publications-resources/regulatory-impact-statements/index.html
• Modernising Child, Youth and Family: Vulnerable children workforce settings – produced by the Ministry of Social Development – 5 April 2016, available at: http://www.msd.govt.nz/about-msd-and-our-work/publications-resources/regulatory-impact-statements/index.html

These Regulatory Impact Statements can also be accessed from: http://www.treasury.govt.nz/publications/informationreleases/ris

Some text from the two RISs, Children, Young Persons, and Their Families Act age settings and Modernising Child, Youth and Family: Enhancing children and young people’s participation, is being withheld as it refers to material that is currently under active consideration.

2.3.1. If so, did the RIA Team in the Treasury provide an independent opinion on the quality of any of these regulatory impact statements?

YES

Only the RIS dated 9 March 2016 (Children, Young Persons, and Their Families Act age settings) met the threshold for receiving an independent opinion from the RIA Team based in the Treasury. The opinion provided by the RIA Team for Cabinet on that RIS is set out in full below:

“The Regulatory Impact Analysis Team (RIAT) has reviewed the RIS prepared by the Ministry of Social Development and associated supporting material, and considers that the information and analysis summarised in the RIS partially meets the quality assurance criteria.

RIAT notes the timeframes for seeking decisions have not allowed for a full assessment of the fiscal and operational costs of the age setting proposals. The risk of any unexpected costs associated with the preferred options will be managed as part of the further design work and, if evident, identified in the Cabinet report back in June 2016.”

The other RISs identified above did not meet the threshold for receiving an independent opinion on the quality of the RIS from the RIA Team based in the Treasury.

2.3.2. Are there aspects of the policy to be given effect by this Bill that were not addressed by, or that now vary materially from, the policy options analysed in these regulatory impact statements?

NO

The following options identified in the RISs correspond reasonably closely with the key policy features of the Bill:

• Option 2 in the care and protection options of the Children, Young Persons, and Their Families Act age settingsRIS
• Options 2, 3 and 4b in the Modernising Child, Youth and Family: Enhancing children and young people’s participationRIS
• Option 2 in the Modernising Child, Youth and Family: Vulnerable children workforce settings RIS.

2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill?

NO

2.5. For the policy to be given effect by this Bill, is there analysis available on:

(a)   the size of the potential costs and benefits?

YES

(b)   the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth?

NO

Further information is provided in Appendix One.

2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be impacted by:

(a)   the level of effective compliance or non-compliance with applicable obligations or standards?

YES

(b)   the nature and level of regulator effort put into encouraging or securing compliance?

YES

Further information is provided in Appendix One.

3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations?

During development of the proposals, the policy to be given effect by this Bill was assessed against New Zealand’s international obligations.

Consideration of consistency with the United Nations Convention on the Rights of the Child (UNCROC) included assessing whether, and how, the policy proposals addressed UNCROC articles as well as recommendations made to New Zealand by the Committee on the Rights of the Child. It included considering how other jurisdictions have given effect to children’s rights. The following RISs include sections addressing consistency with UNCROC:

• Children, Young Persons, and Their Families Act age settings(pages 16–21).
• Modernising Child, Youth and Family: Enhancing children and young people’s participation(pages 17–21).

3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

The policy to be given effect by the Bill forms part of Government’s response to the recommendations of the Modernising Child, Youth and Family Expert Panel.

The scope identified in the Terms of Reference of the Expert Panel included “how to ensure the new operating model delivers better outcomes for all Child, Youth and Family’s clients, and particularly for Māori.” The work of the Expert Panel included measures to ensure the implications for Māori were considered, such as:

• The Expert Panel included membership with strong understanding of tikanga Māori, as specified in its Terms of Reference.
• A Māori Reference Group provided independent critical advice and expertise to the design work of the Expert Panel to ensure any elements relating to the circumstances of vulnerable Maori children were properly considered.

Te Puni Kōkiri was consulted on the policy proposals to be included in the Bill, and the draft Bill itself.

3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990?

YES

Advice provided to the Attorney-General by the Ministry of Justice is generally expected to be available on the Ministry of Justice’s website upon introduction of a Bill. Such advice, or reports, will be accessible on the Ministry’s website at http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/human-rights/bill-of-rights

3.4. Does this Bill create, amend, or remove:

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

NO

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

YES

Clause 4 amends the definition of a “young person” under the CYPF Act for care and protection purposes to include 17 year-olds. This brings 17 year-olds within the jurisdiction of the Family Court when exercising its jurisdiction under the care and protection provisions of the CYPF Act.

Clause 8 extends obligations on Judges of District, Family and Youth Courts in proceedings under the CYPF Act and higher courts on appeal, to encourage and assist children and young people’s participation in proceedings, and to ensure their views are taken into account.  This includes ensuring that if a child or young person has difficulties in expressing his or her views or being understood (for example, because of age, language or disability), support is provided to assist him or her to express his or her views and to be understood.  

3.4.1. Was the Ministry of Justice consulted about these provisions?

YES

The Ministry of Justice was consulted on this Bill as part of the development of the RISs, but this was done within limited timeframes and it was not possible to determine detailed and precise fiscal and operational impacts. The Ministry of Justice identified that there would be some impact for courts as a result of these amendments.

Further detailed costing will be developed as part of an overall additional investment strategy for the new operating model for responding to the needs of vulnerable children, young people and their families. This will include identifying any fiscal or other impacts for the courts.

Final investment options will be presented to the Ministerial Oversight Group for agreement, ahead of funding being drawn from the contingency fund for the reform programme being established through Budget 2016.

In relation to the amendments relating to children and young people’s participation and views, these provisions were discussed with the Ministry of Justice. Changes were made to the draft Bill to clarify the nature of the support that needed to be provided where a child or young person has difficulties expressing views or being understood, and that the persons responsible for the duties must either perform the duties or be satisfied that the duties have been performed.

3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information?

YES

Schedule 2 of the Bill, which relates to the vesting of functions residing in social workers instead in the chief executive, amends:

• sections 33 and 266 of the CYPF Act – sections 33 and 266 provide that the department is to maintain written records of family group conference proceedings, and specifies who may have access to these records. The amendment provides that the chief executive shall have access to any such record, rather than any social worker.
• section 59 of the CYPF Act – section 59 enables a social worker to apply to the court for an order requiring a person to produce a document relevant to an investigation of whether a child or young person is in need of care or protection. The amendment provides for the chief executive to make an application for the document.
• section 66 of the CYPF Act – section 66 provides that Government departments are required to supply information for the purposes of determining whether a child or young person is in need of care and protection, or for the purposes of any care and protection proceedings. The amendment provides that this information may be required to be supplied to the chief executive of the department administering the Act, instead of to a social worker.

3.5.1. Was the Privacy Commissioner consulted about these provisions?

YES

Officials from the Ministry of Social Development met with the Office of Privacy Commissioner to discuss the amendment to section 66 of the CYPF Act. We understand the Privacy Commissioner does not have any concerns with the amendment. The Office of the Privacy Commissioner was satisfied that the legislation provided appropriate controls if this function was exercised by a delegate of the chief executive. The other amendments were also brought to the attention of the Office of the Privacy Commissioner, who indicated there were no concerns with these.

3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill?

YES

Appendix 2 contains information on the external consultation undertaken on the policy to be given effect by the Bill. 

No external consultation was undertaken on the draft Bill itself due to time constraints.

3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete? 

NO

4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property?

NO

4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax?

NO

4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively?

NO

4.4. Does this Bill:

(a)   create or amend a strict or absolute liability offence?

NO

(b)   reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding?

NO

4.5. Does this Bill create or amend a civil or criminal immunity for any person?

YES

Clause 7 inserts new section 7E relating to immunity for delegates outside the Public Service.

The Bill applies section 86 of the State Sector Act1988 to a delegate outside the Public Service acting under delegation from the chief executive under the CYPF Act. Section 86 of the State Sector Act has the effect of conferring immunity for Public Service chief executives and employees from liability in civil proceedings for good faith actions or omissions in pursuance or intended pursuance of their duties, functions, or powers. This amendment will give a delegate outside the Public Service acting under delegation from the chief executive under the CYPF Act the same level of protection as members of the Public Service exercising those functions. It would help avoid reluctance from those outside the Public Service to take on functions because of concerns about exposure to legal proceedings.

This requires a consequential amendment to the Crown Proceedings Act 1950 so that, although the delegate outside the Public Service will be immune from being sued, the immunity will be disregarded in any civil proceedings against the Crown for the actions or omissions of the delegate. This is consistent with the provision in the Crown Proceedings Act 1950 that applies to the immunity for public servants and the responsibility of the chief executive under section 41 of the State Sector Act 1988 for the actions of his or her delegates.

4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

YES

Age-settings

Raising the age of care and protection extends the ability of the care and protection system to receive reports of concern for 17 year-olds, determine that they are in need of care and protection, and take action including convening a family group conference and seeking Family Court orders. A range of care and protection interventions can have a significant impact on the rights and interests of 17 year-olds. All the safeguards that currently apply to care and protection decision-making powers under the CYPF Act to children and young people aged up to 17 will also apply to 17 year-olds under this amendment.

Workforce changes

Schedule 2 amends sections 236 and 242 of the CYPF Act, which relate to the detention of a child or young person in Police custody. These provisions currently require a senior social worker (and a constable or senior sergeant at, or above, the level of inspector) to be satisfied that certain conditions exist before a young person may be detained in Police custody for more than 24 hours. The amendment will vest the powers that currently reside with senior social workers instead in the chief executive of the department administering the Act. This does not amend a decision-making power, but does amend who can exercise that power.

Since these provisions allow a young person to be held in Police custody without the oversight of the court, the Bill places some additional limits on the range of persons to whom these functions may be delegated. The Bill specifies that the function that currently resides with senior social workers under sections 236 and 242 can only be delegated to a senior employee of the department and cannot be delegated outside the department.

4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

NO

4.8. Does this Bill create or amend any other powers to make delegated legislation?

NO

4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment?

NO