Oversight of Oranga Tamariki System and Children and Young People’s Commission 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 Expert Panel Report was commissioned in April 2015 by the Minister for Social Development. The Panel sought to explore the question: How can we transform the lives of our vulnerable children once and for all? This review was different from its predecessors because alongside caregivers, families and front-line staff, it prioritised the voices of children and young people throughout its reflections and design processes. Children and young people were viewed as vital participants in delivering the solution that determines their lives.

The Panel’s Review gave rise to further work by MSD which focused on strengthening independent oversight of the Oranga Tamariki system. A consultation document Strengthening Independent Oversight of the Oranga Tamariki System and of Children’s Issues in New Zealand was consulted on by MSD between May and July 2018. The consultation document was published on MSD’s website along with the accompanying Cabinet paper. That information was also sent directly to a wide range of interested parties including NGOs, Māori, Judges, academics, Pacific Peoples, health professionals, past Children’s Commissioners, statutory bodies such as the Children’s Commissioner, Chief Ombudsman and the Privacy Commissioner and chief executives of the relevant public sector agencies.

A Post Consultation Report prepared by Sandi Beatie was published in August 2018.

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

YES

Like the Children’s Commissioner Act 2003, the Children and Young Person’s Commission Act will include the full text of the United Nations Convention on the Rights of the Child (Children’s Convention) under Schedule 3.

2.2.1. If so, was a National Interest Analysis report prepared to inform a Parliamentary examination of the proposed New Zealand action in relation to the treaty?

NO

Clause 87 clarifies that the Children’s Convention is set out for information and reference purposes only and does not affect the legal status of the Children’s Convention in New Zealand.

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

NO

The Treasury's Regulatory Impact Analysis team has determined that the proposed new oversight arrangements are exempt from the requirement to provide a Regulatory Impact Statement on the grounds that they have no or only minor impacts on businesses, individuals, and not-for-profit entities. Providers within the Oranga Tamariki system are subject to a cost recovery funding model, and any regulatory burdens on providers associated with the new oversight arrangements would be passed on in full as a cost to Government.

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

Budget and population group considerations were considered in the March 2019 Cabinet Paper.

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?

NO

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

NO

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?

In developing the policy we have worked closely with the Children’s Commissioner, the Ministry of Justice and the Ministry for Social Development to ensure the policy that underpins the Bill is consistent with relevant conventions such as the Children’s Convention and the Optional Protocol to the Convention Against Torture.

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?

Te Arawhiti and Te Puni Kōkiri were consulted throughout the process of developing the policy proposals and the Bill.

A dedicated Māori advisory group (Te Kāhui) was established specifically to ensure that the policy and resulting legislation will support active participation of Māori to support improved outcomes for tamariki and rangatahi. Te Kāhui Group conducted 21 Hui throughout New Zealand and we subsequently engaged with Te Kāhui Group regularly as the Bill was developed.

MSD also engaged a team of Māori legal experts to provide advice on how to support the development of te Tiriti provision in the Bill.

In order to recognise and respect the Crown’s responsibility to give practical effect to the Treaty of Waitangi (te Tiriti o Waitangi), the Bill creates a number of specific duties to engage with Māori and iwi, these duties are signposted in the following clauses:

• In clause 7, in relation to the Monitor and the Ombudsman
• In clause 85, in relation to the Commission.

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, or a section 7 report of the Attorney-General, 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.

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)?

NO

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

The following clauses have been identified as prevailing over, excluding or limiting the application of the information privacy principles (IPPs) in section 22 of the Privacy Act 2020:

• Clause 31(2) and (4) (Duty to protect individuals’ privacy in relation to reports) prevail over IPP 10 in that they prevent the Monitor from including, in any report prepared by the Monitor under clause 21, 22, 23, 24(4), 25(2), or 27, any personal information about the individuals referred to in those subsections unless a circumstance referred to in those subsections that permits inclusion of the personal information applies.
• Clause 41(2) (Information to be proactively provided to Ombudsman) prevails over any limitation in IPP 11, in relation to disclosure by Oranga Tamariki and care or custody providers to an Ombudsman, of personal information falling within the categories of information referred to in the subsection.
• Clauses 43 (Purpose for which information to be collected, used, and disclosed) prevails over IPP 1, IPP 10, and IPP 11, in relation to collection, use, and disclosure of personal information by the Monitor to the extent of any inconsistency between section 43 and these IPPs.
• Clauses 45(1) (Monitor’s power to require information) prevails over:
  • IPP 1, in relation to collection by the Monitor of personal information, to the extent of any inconsistency between section 45(1) and IPP 1:
  • IPP 2, in relation to collection by the Monitor of personal information from agencies delivering services or support to children, young people, and their family and whānau through the Oranga Tamariki system (instead of from the individual concerned).
  • Clause 48 (Disclosure of information by Monitor) prevails over and excludes the application of IPP 11, thereby preventing disclosures not permitted by clause 48 that might otherwise have been permitted by IPP 11 – based on feedback from OPC to avoid doubt of relationship to Privacy Act 2020.
  • Clause 51(2) (Sharing of information between Monitor and Ombudsman) prevails over and limits IPP 10, in relation to use by the Monitor of personal information obtained under the Act, to the extent of any inconsistency between clause 51(2) and IPP 10.
  • Clause 113 (Sharing of information with Monitor and Ombudsman) prevails over and limits IPP 10, in relation to use by the Commission and Monitor of personal information obtained under the Act, to the extent of any inconsistency between clause 113(2) and IPP 10.
  • Clause 114(4) (Commission may report interference or non-compliance) prevails over IPP 10 in that it prevents the Commission from including, in a report under clause 114, any personal information about the individuals referred to in clause 114(4), unless a circumstance referred to in that subclause that permits inclusion of the personal information applies.
  • Clause 3(2) of Schedule 1 provides that IPP 11 does not apply to the transfer of information from MSD to the Oranga Tamariki System Monitoring Agency under subclause (1) - based on feedback from OPC that the exemption was previously too broad.

3.5.1. Was the Privacy Commissioner consulted about these provisions?

YES

MSD received feedback from the Office of the Privacy Commissioner (OPC) on draft versions of the Bill and LEG paper. We also met with the OPC to discuss this feedback further. We have noted where the Bill addresses concerns raised by OPC in our response to 3.5.

OPC consider that Bill is broadly compliant with the purposes and principles of the Privacy Act 2020. However, it overrides the Privacy Act 2020 in a number of respects. OPC have been clear that they do not have significant concerns with the Bill. However, it is important to note that some parts of the Bill interact directly with the protections afforded by the Privacy Act 2020, providing greater privacy protections to acknowledge the particular vulnerabilities of children, young people and whānau in the Oranga Tamariki system.

MSD has commissioned a privacy, human rights, and ethics assessment, and this has not identified any outstanding issues with the Bill.

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

Since the publication of the March 2019 Cabinet decisions there has been further consultation during the policy development process, including with the Children’s Commissioner, the Office of the Ombudsman, the Independent Police Conduct Authority, Te Kāhui group and with Māori organisations and individuals that represent a range of interests and expertise across the Oranga Tamariki system. This has also included strategic Treaty/Iwi partners, medical professionals, providers, care experienced individuals, caregivers and other relevant stakeholders.

This consultation informed development of the 2019 December Cabinet paper.

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? 

YES

Significant work has been undertaken with the Ombudsman and the Office of the Children’s Commissioner on the refinement of the legislative proposals, and consulting with a wider set of agencies on the issue of the scope of monitoring and long-term home of the Monitor.  While remaining within the policy intent, details of some policy proposals were refined, and informed the development of the May 2021 Cabinet papers.

Although there has been consultation on the proposal for the Ombudsman to lead the complaints and investigation function in respect of the Oranga Tamariki system, iwi and community partners have not been consulted on the specific proposal to broaden the Ombudsman’s jurisdiction than set out in the Bill.

Discussions with Oranga Tamariki and MSD’s Te Kāhui group have highlighted there is likely to be in principle support from Oranga Tamariki partners for broadening the Ombudsman’s jurisdiction to encompass at least the approximately 60 providers delivering care and custody under Section 396 of the Oranga Tamariki Act 1989. However, some care partners may raise concerns about the lack of consultation, a lack of a partnership approach, and the potential administrative burden (especially for smaller providers). MSD has proposed that the Select Committee Process provides a suitable opportunity for care partners to express their views on this proposal.

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?

NO

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?

NO

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?

YES

The Governor-General is empowered by clauses 56 (in relation to parts 1 to 4 of the Bill) and clause 117 (in relation to part 5 of the Bill) to make, by Order in Council, regulations for the all or any of the purposes specified in those clauses. The regulations are secondary legislation.

Under clauses 49 and 111 respectively the Monitor and the Commission must make information rules relating to their collection, use and disclosure of information to ensure protection of the privacy of persons to whom personal information relates, and the confidentiality of other information. The information rules are secondary legislation.

See Appendix One for further information.

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

YES

• Clause 12 refers to the Independent Monitoring Agency of the Oranga Tamariki System. This agency has yet to be established but will be established under the Public Service Act 2020 by the time the Bill commences.
• Clause 24(2) prevents the Minister responsible for monitoring from stopping or preventing the Monitor from undertaking any monitoring activity that the Monitor deems necessary. The intent is to balance the need for trust and confidence in the Monitor from both the public and Ministers, by ensuring that Ministers do not interfere with the Monitor’s functions.
• Clause 33 provides staff authorised by the Monitor with a power to enter premises. The power of entry is unusual in that there is no judicial oversight of the use of the power.
• Clauses 45 and 107 respectively create powers for the Monitor and Commission to require information. These powers are unusual in that there is no offence committed by a person where they do not provide the information required. Non-compliance is unusually addressed by reporting to the responsible chief executive and Minister (see clauses 52 and 114).
• Clause 62 amends schedule 1 of the Ombudsman’s Act 1975 to extend an Ombudsman’s jurisdiction to investigate complaints into relation to non-government agencies, namely approved providers under section 396 of the Oranga Tamariki Act 1989, to the extent that they are providing services under that Act