Redress System for Abuse in Care Bill

Redress System for Abuse in Care Bill Committee of the whole House Debate resumed from 13 May. Part 2 Redress system for abuse in care (continued) CHAIRPERSON (Barbara Kuriger): Members, the House is in committee for further consideration of the Redress System for Abuse in Care Bill and for consideration of the Education and Training (System Reform) Amendment Bill. We start with the Redress System for Abuse in Care Bill. When we were last considering this bill we were debating Part 2. This is the debate on clauses 9 to 25, including proposed new clause 26: “Redress system for abuse in care”. The question again is that Part 2 stand part. HELEN WHITE (Labour—Mt Albert) (17:22): Thank you, and hello, Minister. I’d like to ask some questions about the possibility of an amendment which has been put up by Willow-Jean Prime about clauses 9 and 10, which is about changing the structure so that there would be a panel rather than a single officer. The amendment proposes that the Minister would appoint a redress panel and it would involve three to five people who were there to represent survivors, advocates, and experts. They could well come from people who were survivors and they would still have the benefit of a retired judge, a King’s Counsel, or a lawyer of no less than seven years’ experience. The issue here is really the nature of the problem we have and the need for people who have been involved at that level of actual experience being involved in the process of making these decisions. It is something we heard over and over again from the royal commission—that an extremely important feature of any proper redress was that those people who were most affected would have a part to play in the system itself. There have been lots of discussions about how there has been concern that they have been left out of the loop more than they would have liked—and that is criticism that’s come back on us all—but a panel in this situation would mean that we would be able to look at that. So I would love the Minister to address that issue. Then, I’d also like to talk about clause 10. This is the part of clause 10 that is about the understanding that people have. It’s related to the other question, but rather than putting up a proposal for a panel, this is an alternative proposal which builds in a knowledge and understanding of the relationship between childhood trauma and criminal behaviour. Given what we’re discussing here, this is an amendment that was put on 13 May by Willow-Jean Prime. What we’re discussing here is that need to understand that, for people who have seriously offended, it hasn’t come out of the blue. We’ve had some discussion about this in other ways, but this is an amendment that’s been put about making sure that we are well aware and across the issue of childhood trauma. That issue is not a kind of cute issue; it’s actually a highly scientific one, so we will need a knowledge that will be changing. It would need to be up-to-date knowledge in that situation, and that would require the panel to have somebody on it who has that kind of understanding. Those are my clause 10 questions. I have questions on other clauses. Thank you. Hon ERICA STANFORD (Lead Coordination Minister for the Government's Response to the Royal Commission’s Report into Historical Abuse in State Care and in the Care of Faith-based Institutions) (17:26): In relation to the first paper that the member was discussing, we did consider this as part of our policy development—whether or not we would have a panel or a single officer—but the decision was made to have a single officer. It was with the appropriate skills and experience, and we consider that to be most efficient, so we won’t be supporting that Amendment Paper. On the second Amendment Paper that the member asked about, what she is asking has already captured in clause 10(1)(b)(i). This requires a redress officer to have knowledge and understanding of the criminal justice system, the royal commission’s findings, and the impact of abuse in care survivors. This clause was already strengthened by the select committee to make explicit reference to the impact of abuse in care on survivors. The concern behind the amendment has already been addressed and we won’t be supporting it. Dr LAWRENCE XU-NAN (Green) (17:27): Thank you. Mr Chair. OK, I’m going to start with a really basic question for you, Minister. Unfortunately, this is something that was probably covered in Part 1, but I just want to check who the redress agency is; that’s fine if you wouldn’t mind answering that. I do have specific questions. Mr Chair, just for your understanding—sorry, just to recap in terms of what was discussed previously, the last time we read this bill at committee stage, I asked the Minister regarding some of the additional considerations or criteria that we see in clause 10B. I do want to acknowledge the Minister for her response on that in terms of the people that she has worked with in the past that are potentially suitable for this particular role. I do want to just support the Hon Willow-Jean Prime’s amendment in terms of a panel. The reason for that is actually, potentially, something that’s touched on in clause 10B when it comes to the vacation of office. Now, in clause 10B, when we look at vacation of office, I understand the additional thing that’s been put in there is in terms of being removed or resigning at any time. In terms of clauses 10A and 10B, what is not clear in these two clauses is whether any subsequent appointment, if the redress officer resigns or is removed, is going to follow on immediately from the previous person—as in, is there going to be a gap that we’re going to be seeing where there’s no redress officer? I think this is where I want to come back to the Hon Willow-Jean Prime’s amendment because when you have a panel, if one person is removed or resigns, you still have the baseline of the panel, whereas, potentially, there is a good reason and good explanation for that, but I do want to check with the Minister: in the event of clause 10B, what is the time frame between the previous redress officer resigning or being removed and a new officer commencing? My final question at this stage is around clause 11, which is “Function of duty of redress officer”. Now, understanding that when we are asking all of these questions, what we are considering is from the perspective of the victim, and understanding that the survivor and victim have trauma and there is a risk of re-traumatising that maybe many of us have never experienced. I think, as a House, we need to acknowledge that not that many of us, if any, have experienced the kind of trauma and abuse that these survivors have experienced. When we do ask these questions, it’s mainly also from a perspective to reassure, if need be, the survivors that if they are going through this part of the process in Part 2, which details the operational aspect of the redress officer, redress agency, and the whole redress process, it is for them to know that things will be done in an appropriate way. The question then, for clause 11, is this. In clause 11(2), it says that “The redress officer must act independently”, but I note that “independently” doesn’t necessarily equate to “fairly”. I want to check with the Minister whether the Minister has considered that the redress officer must act independently and fairly when making a determination as to what a serious violent or sexual offender should be entitled to. That’s my final question. So the first question is just very quickly—if the Minister wouldn’t mind responding—who the redress agency is, and I apologise if this has been addressed previously. I do want to address the issue in terms of when there can be a gap between a previous officer and a new officer commencing, and, finally, could she just reassure us that—even if the Minister does not intend to add the new word “fairly”—in the Minister’s interpretation of “independently”, it implies “fairly”. Thank you. INGRID LEARY (Labour—Taieri) (17:31): Thank you, Mr Chair. I’ve got a couple of fairly simple questions, but they do come off the back of the previous speaker—quite a different question—on clause 10B. When I look at the vacation of office, there are things there like bankruptcy, which are kind of bright lines. They’re very easy to understand. It’s totally appropriate for the trust of that office to not have somebody who is bankrupt in it, and I can understand that. The “inability to perform the functions,” one is a little bit blurred, but probably still justifiable. What concerns me, really, are the two provisions clause 10B(1)(c), which is “neglect of duty:”, and clause 10B(1)(d), which is “misconduct.” The reason I ask about that is to get a sense from the Minister if that is a broad discretion. When I look there, it says that it’s “to the satisfaction of the Minister:”. What advice has she received and what are the parameters of that discretion that she has, because “neglect of duty:” could be interpreted in quite a political way, potentially, and “misconduct.”, equally, could be interpreted quite broadly. Is there a definition of “misconduct” which is much more narrow, and which we would expect would be about upholding the office of that redress officer, or is there a much broader discretion? If it is narrow, can she please provide the paperwork or advice that shows the parameters of that? I turn also to the previous things around the qualification of the redress officer in clause 10(1)(b). It’s got a whole bunch of things, including “the ability to work effectively with people from a range of cultures and backgrounds;”, and there’s an “and” afterwards—which is good—and there were a whole lot of “ands” previously. So this is a whole series of qualifications that this person must need. It is interesting to me, and I know that the Minister probably does have an issue with the explicit mention of Te Tiriti, but we’re talking about an area here where Māori have been significantly overrepresented for decades in the abuse and care system, and many of their socio-economic circumstances have been—and there is evidence of this—a direct result of colonisation and the kinds of pressures Māori communities were under. So while I think it’s a good thing to see a range of cultures and backgrounds, I’d like to understand what officials gave as advice regarding Māori, particularly, and Te Tiriti obligations, and whether she considered to put that in as a safeguard. I know that the Minister doesn’t like it in a lot of other legislation, but with this particular legislation, it would seem highly appropriate. Could she let us know her thinking and logic on that? Thank you. Hon ERICA STANFORD (Lead Coordination Minister for the Government's Response to the Royal Commission’s Report into Historical Abuse in State Care and in the Care of Faith-based Institutions) (17:34): The member shouldn’t presuppose what I do and don’t think about different clauses in other Acts. In relation to clause 10B, the Minister—this is about the neglect of duty and misconduct—the Minister, or me, whoever it is, will be required to act reasonably when making decisions about the removal. This is a really standard removal provision in legislation, and of course those decisions are always subject to judicial review. So that clears that one up. I want to just go back to Dr Lawrence Xu-Nan’s points and take them one by one. The first one we’ve already discussed, last time, and he’ll be aware of that. It’s just repetition. We’ve already said that the Minister may at any time appoint a redress officer and alternative redress officer. We can have one waiting in the wings, and so if the redress officer for any reason is unable to do his duties or her duties, then that person can take over. We already discussed that. In relation to the member was asking who the redress agencies are, the redress agencies, of course, are Oranga Tamariki, Ministry of Social Development, Ministry of Health, Ministry of Education, Department of Corrections, and Te Puni Kōkiri. It depends which one of those redress agencies is the one that the survivor is bringing their claim through, in relation to this part of the bill. That’s relatively self-evident, I would have thought. There was one more part around the redress officer having to act fairly. The redress officer of course is going to have to be—well, they’ll have to comply with natural justice requirements. The bill also specifies that the survivor can make submissions to support their application. But I guess, overall—as the member knows—they’ll be a King’s Counsel. You would expect, of course, that along with all those other things I’ve already said, a King’s Counsel will act fairly, and so I think that that is probably just nitpicking at this point. HELEN WHITE (Labour—Mt Albert) (17:37): Thank you, Mr Speaker. I just want to comment on the issue over misconduct, because it wasn’t something that I had considered until my friend stood up and talked about it. Of course, there’s a very big difference between misconduct and serious misconduct. Misconduct is actually a range that goes from something very trivial right through. Would the Minister consider what would be more normal would be serious misconduct, because that is a fundamental breach of the employment relationship and that’s the common language. You wouldn’t usually see the word “misconduct” used in that way. I also want to ask about the independence, but in a very different way. Because I can see that, under clause 10A—and this was discussed by the select committee—there was a decision to make about a five-year term; and there’s also a redress officer being eligible for reappointment. Now, the realities are they if somebody is coming up for reappointment, that that is a carrot that is being dangled. If you have a five-year term and the possibility of reappointment, do you think that that could influence the decision maker and actually erode the independence that’s intended under clause 11(2), because I would be concerned about that. Those are my questions on clause 11, but if I could go to clause 12 now and ask another question. This is about the agency publishing eligibility criteria, and this has quite different concerns in it, because when I look at those eligibility criteria I don’t see them as consistent with other parts of the bill. If you have a look at clause 20(4), you will a list of things that the redress officer must consider. Those, to me, seem to be relevant as to whether you’re eligible or not, and so they seem additional criteria. Then, the second part of clause 12(2)(b) is that “a statement that serious violent or sexual offenders are not eligible to receive financial”—a statement must be made, but they are. If you look at—well, there is a presumption that there is ineligibility. The whole point is to look at it again. So it’s not as simple as saying they’re not eligible. What I’m concerned about is really practical. If you tell people they’re not eligible, they’ll think they’re not eligible. If you don’t tell people the criteria that are listed in clause 24, then they don’t know. Those things should be part of the publication, surely, in this case. The right to reapply in clause 21 and the list in clause 24 seem relevant and contradictory to clause 12; one seems to mislead in terms of what is being told, because, in fact, those people are eligible in certain circumstances. It doesn’t say there is a presumption, it says they are not eligible. Well, are they or aren’t they? Because I understood that the position of the Minister, and she can answer this, was that they are eligible. There’s just a presumption and they should be making those things. Does she agree with me that those criteria should be going in plainly so that people who are looking at this know exactly what those criteria are? Those are just the two questions. I do have questions about other sections, but I would love an answer to those at this point. Thank you. Dr LAWRENCE XU-NAN (Green) (17:41): Thank you, Mr Chair. Thank you, Minister, for your response. Unfortunately, I wasn’t here for part of Part 1, but I really appreciate the Minister for responding to the question around redress agency. But just want to pick up on something that the Minister’s said, that I think, in some ways, didn’t sit as well with me because the Minister made a comment on my colleague Ingrid Leary’s remark about Treaty clauses. But also want to caution the Minister around using terms like “nitpicking”, because on one hand, it is the role of Parliament when we are scrutinising bills such as this, and ministerial intent is incredibly important, including in each subtle change to the legislation, but I also want to caution the Minister on the assumption of the intention of the House when we are scrutinising the bill. But with that, I do want to move on to clause 12 and 13—so we are moving through the bill systematically. In terms of clause 12, when we’re looking at “must publish eligibility criteria”, I think the addition by the select committee, “is available free of charge on an internet site maintained by or on behalf of the redress agency”, is an important inclusion to be made. But I also want to ask the Minister that, in instances, particularly when we’re looking at survivors of abuse in care, particularly when we’re looking at, you know, people who are in prison, who are remanded, etc., that we know for the fact that the literacy rate is lower, and we do know the fact that there’s a high level of dyslexia and neurodivergency within that. I do want to check that even including clause 12(1), when we are looking at “that agency is available free of charge,” what I’m not seeing, potentially, is that it is accessible, because, again, that is really important. So if that’s the assumption, again, if that is something that is implied, I would like the Minister to just state that ministerial intent that when we are looking at the criteria that they will be in an accessible format for survivors, especially, I think, you know, previous people have mentioned a large number of survivors are also from the disabled communities. So that’s my first question in terms of clause 12. Under clause 13, and, in some ways, clause 14—this is the part where I think it’s really important for the Minister to elucidate to the House on her Amendment Papers—Amendment Paper 581. I’m looking at the changes that she has made to clause 13 and clause 14. Now, this is not in the explanatory note on why those changes are being made. So I do want to question the Minister on why has there been a change from “an applicant” to “a person who applies” and “applicant” with “person” in both of those clauses? What is the difference between the terminology when we’re looking at that? Final question on this particular point is: in clause 14, we’re seeing in the Minister’s Amendment Paper 581, “replace “an applicant” (page 8, line 31) with “a person who applies”, and “replace the “applicant” (page 8, line 33) with “the person.” What he doesn’t state is replace the term “applicant” in the subheading with a “person who applies”—this is page 8, line 30. So what then would then be the implication if the substance of the clause had the terminology changed but not the heading? So those are my, I guess, three questions regarding clause 12 and 13. Hon ERICA STANFORD (Lead Coordination Minister for the Government's Response to the Royal Commission’s Report into Historical Abuse in State Care and in the Care of Faith-based Institutions) (17:45): Thank you. I just wanted respond to Helen White’s question around the eligibility criteria. The eligibility criteria in clause 20—there’s a simple difference here—are factors to be considered by the redress officer when they’re making their determinations about overturning the presumptions. They are not the eligibility criteria for redress. A serious offender may well be eligible for other forms of redress other than financial, so making sure the eligibility criteria is published is important. Those two things are very separate. In relation to Lawrence Xu-Nan’s further nitpicking—it was a technical change made by the Parliamentary Counsel Office to make sure there was consistency in the bill. Thank you for your question, though. INGRID LEARY (Labour—Taieri) (17:46): Thank you. I’m just picking up on the many hoops that these presumptions are requiring people who may, ultimately, prove eligible to go through, and Helen White has already raised the issue of what they know about their eligibility, but it appears to me that there are some other hurdles as well. If we look at the grounds on which the redress can be determined, one of them says that they can get redressed provided they don’t “adversely affect public confidence in the redress scheme.” And I’m just curious—that’s in clause 19(2). It’s such a broad iteration of what that could involve. I mean, in whose determination—for example, if there was a lobby group that heard that somebody was going to be applying for this and put public pressure on, is that in itself enough to bring the system into disrepute? And I’m wondering how that kind of coincides with the rules of natural justice. So if the Minister could explain who and how the public confidence in the redress scheme would be addressed. Then, when we look at what is required to happen, the person who might be eligible is required, before a determination is made under new section 20C, the redress officer must give them the opportunity to put forward information or make submissions. Again, it’s quite silent on how that’s done. How proactive is that duty on the redress officer? Is it an email? Is it just a period of time? Is there a minimum requirement? How is it assessed that the redress officer has given adequate diligence to the duties that they have under new section 20C? And then, I note, that they can only apply again if the circumstances change once, unless subclause (5) applies. And I’m curious to know that if there was a case such as we have seen in recent history of people who have been locked away for very serious offences like murder for 10-20 years, and have suddenly been found not guilty, and yet they have applied previously, is that caught by clause 21(5) or is there a kind of limitation period? How will that apply if somebody has been found not guilty, but they have already used up the allotment—which is one—of trying to claim redress? What is the guidance around that? Good sense would tell us that that person should be able to get redress. Is the Minister confident that that is possible under subclause (5) even after a long period of time? Hon ERICA STANFORD (Lead Coordination Minister for the Government's Response to the Royal Commission’s Report into Historical Abuse in State Care and in the Care of Faith-based Institutions) (17:49): Just in relation to the questions around the eligibility criteria and whether or not people would be able to understand those, many survivors are legally represented, and that is one of the things that we will provide through the redress scheme, so they have help to understand how the eligibility criteria applies to them. In a similar vein, redress agency staff are trained as part of their job to work with survivors and can help them to understand that criteria. In relation to this question around bringing the scheme into disrepute, this is a judgment call for the redress officer, considering all of the criteria set out in clause 20. They must provide their reasoning, but in the end it is their judgment call. Dr LAWRENCE XU-NAN (Green) (17:50): Thank you, Mr Chair, and, again, thank you, Minister Stanford, for your response. I do acknowledge the fact that that time, particularly with clause 13 and 14, that was nitpicking. I do want to move on to clauses 15 and 16. In terms of the application process that we see here, where the applicants must disclose, in clause 14 etc., when a person then goes through that criminal check, I guess the question kind of remains: what consideration has the Minister had, or in her conversation with the suite of redress agencies, of how to work with the survivors, particularly when all of them need to be police checked, etc., and that again may trigger certain trauma, etc. So how do we mitigate when everyone’s being checked in that case, when we’re looking at clause 14—sorry, actually, clause 13(b) specifies that; clause 15 simply talks about the agency conducting that criminal check. What’s also not clear when it comes to clause 15, when it comes to the agency conducting the check: is there a standard time frame we’re looking at for when the criminal check should be conducted and when a survivor is expected to get some sort of response from the redress agency on whether their criminal check has been passed or not. When they first apply, for example: is there even an automated response saying, “Please expect to hear back from us within four weeks.”? Is that something that has been considered or discussed with the redress agency? I think, finally, I want to touch on just the beginning of this, because I think there’s more to unpack when it comes to “Process if a person is serious violent or sexual offender” under clause 16. That is to do with the notification aspect. If the criminal check for the person considers the person to be, essentially, ineligible, how—it says “must notify the person”, I understand. What would that notification also look like? Would that be expected to be in writing in a physical format or in writing in an email format, etc.? Again, I think these are some of the questions that we heard from the survivors, to know what to expect as they go through this process. Thank you. Hon ERICA STANFORD (Lead Coordination Minister for the Government's Response to the Royal Commission’s Report into Historical Abuse in State Care and in the Care of Faith-based Institutions) (17:53): That’s the same question that Ingrid Leary asked before, which I’ll answer now. The procedure will be determined by the redress officer and will have to comply with natural justice. Survivors, of course, would be given a fair opportunity to put forward their submissions, and the redress officer will publish the process that they undertake. Just clearing up with the member, as already discussed a number of times through this committee of the whole House process: not every single person will be checked with the criminal check—we’ve already discussed this—only those who declare a conviction, and staff are trained to work very sensitively with survivors throughout the process. HELEN WHITE (Labour—Mt Albert) (17:54): Thank you. I’d like to talk about clause 20 and Willow-Jean Prime’s amendment to this clause, which was tabled on 13 May, where she proposes to add a clause to that which allows the consideration of the nature and severity of the person’s history of abuse. Hon Erica Stanford: What’s the Amendment Paper number? HELEN WHITE: Oh, sorry, it just says 7.30.09. Hon Erica Stanford: Yep, got it—thank you. HELEN WHITE: Thank you very much. So this is quite a substantive argument around this amendment, because the issue is, really, where is that line? The history of abuse and the severity of it is something that the Minister in the chair, Erica Stanford, has already made a line call about, with regard to torture. So where’s that line, and should it be something that an intelligent person takes into account rather than it’s either in or it’s completely out? So I would really like to know about that, particularly with regard to the decision that was made that there is a point where it becomes untenable. Where is the tenable line, and shouldn’t we have a criteria in there that allows discretion that creates fair and reasonable decision-making by doing that? That is clause 20. I’d also like to talk about another amendment by Willow-Jean Prime, which is around inserting new clause 21A, and that is the potential for—and, so sorry; I appreciate that the Minister’s getting some advice, and this is a totally new point, but shall I just go on? On 21A, there’s a proposal that we put in a right of appeal, that any survivor dissatisfied with the redress officer determination may appeal to the District Court, and that the appeal may be lodged by the survivor or the representatives or estate if the survivor is incapacitated or deceased. Now, this is a very interesting idea, I think. I have asked the question a while ago—I never got an answer to it—about why anyone would choose this pathway if in fact they were in the category that means there’s going to be a presumption against them given that they could go to the court. I am concerned that this is going to backfire completely and that for the more serious criminal cases, those people will have no real redress. I appreciate that the Minister says that they get something under this and that’s why I’m not right about the eligibility criteria, but, actually, it’s upfront information they need, because they’re choosing pathways—because my understanding is they can choose another pathway. Now, if they choose the other pathway, they’re very likely to become the cases that we hear about where large awards are made because there is no causal connection between their behaviour later in terms of that and the liability of the State for what is abuse. So it’s a serious issue. This clause seems to me to be quite relevant in terms of allowing an appeal. It allows people a pathway through in this situation, and so it may actually help not create that problem of all the cases where people have been imprisoned for serious offences afterwards going through a different pathway and those people actually being a lot better off financially than ones in the system. So can I have an answer to whether the Minister is prepared to accept that amendment by the Hon Willow-Jean Prime? I can see you’re ready to answer. Thank you. Hon ERICA STANFORD (Lead Coordination Minister for the Government's Response to the Royal Commission’s Report into Historical Abuse in State Care and in the Care of Faith-based Institutions) (17:58): Right, one by one. I forget who asked this, but it came up earlier about criminal record checks—it might’ve been Dr Lawrence Xu-Nan. Criminal record checks will be done as soon as practicable and when, also, they are appropriate to be done. So you might find that some agencies that have a backlog of claims will do the criminal check closer to the time when the claim is assessed, as you can imagine. On the first amendment that Helen White spoke about, the matter has already been considered during policy development and also by the Social Services and Community Committee. The decision-making framework in clause 20 puts the focus on rehabilitation and offending and steps then taken to avoid further offending. It’s because of the nature of the offending and its impact on victims that it is likely to bring the redress system into disrepute. The risk is mitigated where a serious offender has avoided further offending and/or taken significant steps towards that rehabilitation. Including a factor of the kind proposed may well create a perception that the harm caused to a person in care is to be weighted against the harm caused to the victim of a serious crime, which risks revictimising the victim. Adding experiences of abuse as a consideration would also raise complexities as it would require the redress officer to test the evidence and make a finding of fact about experiences in care. This would be inconsistent with the out of court redress schemes, which do not make findings of fact about a person’s time in care. Now, that is relevant to the next amendment, as well, that the member spoke of. Again, this was already taken into consideration by the select committee. The nature of the redress officer’s decision means that a judicial review is a more appropriate form of challenge than an appeal. Again, coming back to this matter of fact, an appeal is suitable when the decision involves making a finding of fact and that in the application of the law to the facts as found on appeal, a decision can be found to be right or wrong in fact or law. A judicial review is more appropriate for evaluating decisions such as those that are to be made by a redress officer where the issue is about the reasonableness of the decision rather than the weight that it is right or wrong. So survivors can bring judicial review proceedings if they consider that a decision made by the redress officer is unfair or unreasonable, and the right to seek a judicial review is enshrined in the New Zealand Bill of Rights Act and the Judicial Review Procedure Act. CHAIRPERSON (Greg O'Connor): The time has come for me to leave the Chair for the meal break. The House will resume at 7.30. Sitting suspended from 6.01 p.m. to 7.30 p.m. CHAIRPERSON (Barbara Kuriger): Members, the committee is resumed, and we are in committee for further consideration of the Redress System for Abuse in Care Bill and for consideration of the Education and Training (System Reform) Amendment Bill. We start with the Redress System for Abuse in Care Bill. When we were last considering this bill, we were debating Part 2—the debate on clauses 9 to 25, including proposed new clause 26—“Redress system for abuse in care”. The question is, again, that Part 2 stand part. HELEN WHITE (Labour—Mt Albert) (19:30): Thank you, Madam Chair. I have been to the Table and picked up a new amendment, as I understand it, from the Minister. It relates to clause 12, so I appreciate it’s backtracking, but it’s through no fault of my own. It’s an entirely new point. I would like the Minister to explain the amendment. What we seem to have here is an amendment that replaces the “and” with a “with” in clause 12(2)(a)(ii)(C). It’s “counselling or other well-being support; with”, I think. Then we’ve got, after that clause, a subsubparagraph (D) added. It’s going to say, “assistance with accessing care records”. This is about what will published in terms of criteria, so I’d love an explanation for this clause, and I do have a question that’s more where we were going, but I thought it would be good just to open this. CHAIRPERSON (Barbara Kuriger): Let’s just clarify that one. Hon ERICA STANFORD (Lead Coordination Minister for the Government's Response to the Royal Commission’s Report into Historical Abuse in State Care and in the Care of Faith-based Institutions) (19:31): Thank you, Madam Chair. There was a tabled amendment put forward by Willow-Jean Prime that the majority of parties or members agreed to. When the officials went back through it to make sure that it was consistently applied through the bill, they realised it would be required in clause 12 as well. It’s very straight forward. It’s just to make sure there’s consistency with the Hon Willow-Jean Prime’s amendment, which we agreed with and accepted. This is just to make sure that it’s consistently applied. HELEN WHITE (Labour—Mt Albert) (19:32): Thank you very much. That makes a lot of sense. Basically, that was an amendment that was made to Part 1 that has already been voted upon, and so it just makes Part 2 consistent with that, as I understand it. The next question that I have relates to proposed new clause 25A. That is, again, the Hon Willow-Jean Prime’s amendment that I’m talking to. Her proposal there is that an apology must be developed in partnership, and she’s talking about developing an apology in partnership with the survivor, and that’s about responding to the particular needs of that particular survivor—so not having a cookie cutter approach but developing that apology with that survivor to make it make sense to them and be meaningful to them. That seems to me an extremely sensible proposal. One of the things that I did when I was preparing for this was I looked at the people who were the commissioners, basically, on the royal commission. They were extremely esteemed people. Coral Shaw, who I think is one of the most wonderful people in terms of a background in family law. Having done many jobs, she ended up in this one, and her suggestion was that this really needed to be about survivor-led responses and survivor-designed responses. This is absolutely in line with that in terms of what an apology means. I did talk about my concern about what was lacking in what we were doing in terms of the need for an apology in the first part. My question is whether we will look at amending this so that the apology is something that is actually worked out with the survivor. That seems to me something that is of extreme validity and is very much in the spirit of what those commissioners talked about. I would like a response on that. Thank you. Hon ERICA STANFORD (Lead Coordination Minister for the Government's Response to the Royal Commission’s Report into Historical Abuse in State Care and in the Care of Faith-based Institutions) (19:34): The Government is still to formally respond to the specific recommendation from He Purapura Ora, he Māra Tipu, so it would be premature to codify in this legislation prior to that happening. A response to the royal commission’s recommendations on personal apologies will be formalised after redress Ministers agree a common apologies policy, so we won’t be supporting the amendment. INGRID LEARY (Labour—Taieri) (19:35): Thank you, Madam Chair. I’d like to take a question on a clause that we haven’t looked at yet, which is “Reporting obligations of redress officer”. There’s quite a lot of stuff that has been crossed out, and then there’s been a shorter iteration of what’s required. I’m trying to understand, because they’re a little bit different from each other, what the purpose of the reporting obligations are. It appears to me—and the Minister may be able to tell me if this is correct—that initially it looked like this was about collecting information and providing some kind of logical rationale so that legal counsel or others could make a predetermination to assess the merits of a claim, but then it looks like, perhaps, the specificity of that was dangerous from a kind of privacy and sensitivity basis—also for victims—and, therefore, it has been crunched down into something more like a summary. In that case, then, I’m not quite sure what the purpose is, because there are publication requirements. I think the language has been extended so that it’s not just anonymised to the person but to all those involved in the case, but if there isn’t enough detail to provide precedent and principles, then I’m just curious to know what the reporting requirements are, apart from maybe showing that the redress officer is getting through a certain number of cases. I really don’t know. That would be quite useful, and it would be really helpful if the Minister could explain the change in the language and what the liberties involved with that and that required that change are. The second question is: given the seriousness of what could happen either to those applicants who have their details accidentally revealed—but particularly families or victims of—the bill is silent on whether there is any liability of duty of care on what is published, so what are the safeguards to ensure that that reporting requirement is carried out diligently and that there is recourse if, somehow, there is a breach of the sensitive material that should be kept anonymised according to that clause? Then, finally, my question is about—sorry, I’ll just put my glasses back on—the “recovery of financial redress” under 24A. Basically, it says that if somebody doesn’t disclose that they’ve got a serious criminal conviction according to clause 13, they could be “liable on conviction to a fine not exceeding $5,000.”, and it’s the same with a serious violent or sexual offence. But the Minister herself has said that this whole system is predicated on legal advice and legal counsel. I’m curious, when you think of the disparity between the knowledge of the system and the requirements of those who are seeking redress versus that of whoever’s guiding them, why is this a personal liability from that person? Yes, they could go to the Law Society or Law Commission or whatever and try and then make a lawyer or a legal advocate responsible for the failure to disclose, but it seems to me that the burden here is on the wrong person and there should at least be some shared accountability if those seeking to get redress have somehow been misled about the nature and status of their conviction. Of course, if they had an honest belief in that, they could argue it, but it just seems very onerous that all of this falls on them when the Minister, in her own words, has said in relation to previous questions that we don’t have to worry about a lot of things, because legal counsel will be there guiding these people all the way through. Hon ERICA STANFORD (Lead Coordination Minister for the Government's Response to the Royal Commission’s Report into Historical Abuse in State Care and in the Care of Faith-based Institutions) (19:39): There are a number of things in there. The very first point that the member made about privacy, essentially, answered her own question, so I don’t need to go there, because she was exactly right. The purpose of the reporting is openness and transparency. There is a privacy part built into this where they’re not allowed to identify any person or report in such a way that identifies a person. That clarifies that. The report will talk about the number of claims—as you can see in here—that are accepted and that are not, or overturned or not. The decisions are not published. They’re the actual decisions, and not identifying the person is a safeguard. In relation to her part about point 24, it’s relatively obvious that lawyers are able to advise their clients but they can’t advise their clients on something they don’t know about. It’s very important that we are relying on the honesty of survivors to tell us whether or not they fall within the presumption. They can have all the legal advice in the world, but if they don’t disclose it, to either their lawyer or anyone else, then that is a problem. We are relying on their honesty, and this is a backstop for that. INGRID LEARY (Labour—Taieri) (19:41): Just to pick up on the Minister’s very helpful answers, my understanding is that if there is a conviction, there is a public record of it, and so the lawyer would be best placed to actually do the due diligence to understand the nature of the crime, and also to warn the client of their duties. Again, it seems to me that there is an ability for the legal counsel and, in fact, a duty for the legal counsel to get that information accurately or at least advise people. That is a disproportionate level of knowledge that they have, versus the person who is seeking it. Especially if you’re signing all sorts of forms while you’re engaging lawyers to do this work, there must be a way that the lawyers can actually do due diligence; not just say “Well, I was misadvised by my clients.” HELEN WHITE (Labour—Mt Albert) (19:41): Just to take up the issues of the difference—so we’ve got, basically, parallel clauses here under clause 23 and 24, which relate to clauses 13 and 14. One is about the offence that has already happened, and one is about an offence—well, there might be a conviction that happens during the process, so the application’s already made. I would like to know from the Minister: that second one is that somebody has declared and that has been correct at the time, and it’s their proactive duty to declare after that point, or to tell people that there’s been that kind of conviction since. That’s quite a different duty. I appreciate that the Minister keeps on saying that the lawyers will just know this stuff, but why haven’t we built into the system as a kind of almost administrative point that they would be put on notice over that? We’ve put them on notice about other things, but we haven’t put them on notice about that. That seems to be a bit hit and miss when you’ve got someone who’s halfway through the process. It’s quite different. I also wanted to know from the Minister: what’s the story with $5,000? How did we arrive at $5,000 as the liability in this case? Is there some sort of scale this was measured against? Is it a pragmatic decision, and, if so, why? How did we arrive at that figure? Thank you. KAHURANGI CARTER (Green) (19:43): Thank you, Madam Chair. I am wanting to talk around—actually, is it OK if I start talking around the Amendment Papers from the Minister, or is that in another part? CHAIRPERSON (Barbara Kuriger): No, it’s in a different part, actually. Sorry—can I just—just one moment. Ah, the amendment to clause 12 is in this part. KAHURANGI CARTER: The amendment to clause 12. Thank you very much for talking that through. I’m looking here at Part 2, and wanting to talk, again, about that clause 22 and the reporting that we’re talking about here. Now, the Minister has stated that there’s to be transparency, and, in the redress system for abuse in care departmental report, under clause 22, there are some recommendations here that go further than just the transparency. It’s talking about, here on page 44, departmental comment 307, “Reporting obligations are intended to support open justice.” The transparency is one part of that, so I’d really like to understand how this reiteration of clause 22, Part 2, is achieving that comment there on page 44. The Minister has clearly said that the new reporting clause is around transparency. In here, it also talks about that public confidence in the redress officer. It would be great to know what, in this clause—what advice was given, why it was decided that these two rewritten clauses were going to build public confidence other than transparency. Transparency is one part of public confidence, but there’s a whole raft of other things. I really wanted to needle into why this, rather than the section that has been crossed out, is actually going to increase public confidence, and where that advice came from. The rest of that comment says that “We consider this important, given the redress officer is a statutory officer that acts independently and is publicly funded in making significant decisions about a person’s right to redress.” The reporting is talking about the number of applicants, and the number of applicants declined, but that doesn’t really dig into the actual significant decision and the background into the decision about why somebody who has reapplied for redress has been denied. I understand the need for privacy and that aggregated data—sometimes, it’s very obvious who the person that they’re talking about is, so that there is that right of the survivor who is asking for that redress. But apart from transparency and the applications approved and not approved and the summary, what advice has been given around the public confidence? How is this reporting going to increase public confidence, or at least have that public confidence in this redress system? It’s something that the Minister has talked about a lot: making sure that this doesn’t come into disrepute. So what has been done to make sure that this reporting is actually adequate for public confidence, as stated in the departmental report, and doesn’t bring the system into disrepute, which I know is very important to the Minister? Hon ERICA STANFORD (Lead Coordination Minister for the Government's Response to the Royal Commission’s Report into Historical Abuse in State Care and in the Care of Faith-based Institutions) (19:48): At risk of repeating myself, we’ve already been over this part and explained the fact that these changes were made in the Social Services and Community Committee. Because of the feedback that was given, the select committee made these changes in order to protect the individual—the privacy of the people who are going through the system. As I’ve already said, there will only be a very, very, very small number of people who will go through this process, and if you start talking about the reasons for your decisions, they are potentially going to be identifiable. The select committee already went over this. I’ve already said that this is why we’ve removed much of this: to protect their privacy but to strike the balance to provide information to the public about the decisions without identifying those people. We’re traversing old ground. INGRID LEARY (Labour—Taieri) (19:49): Thank you. Just a very quick question, and it’s really for the Hansard, if that’s all right, under the “Procedure for making determination”, clause 20C(1)(b), it talks about making submissions, and then in subclause (2), it says “the redress officer may determine their own procedures for making a determination.” This is a particularly important clause, in my view. I’m sure the Minister will appreciate the need for flexibility around whether submissions are written or sometimes could be oral submissions. I’m keen to understand her expectation of how that will be delivered and the duty of care on the redress officer to ensure that the format of the submissions are the most appropriate to determine a fair—to achieve justice, really. Because it could be that they determine a process that they just apply blanket to all individuals, but if that’s not the Minister’s expectation, it would be really good to have that on the Hansard so we can get a sense of the type of flexibility that seems to be indicated in subsection (2) of clause 20C. CHAIRPERSON (Barbara Kuriger): The question is that the Minister’s tabled amendments to clause 12 and amendments to Part 2 set out on Amendment Papers 569 and 581 be agreed to. Amendments agreed to. CHAIRPERSON (Barbara Kuriger): The Hon Willow-Jean Prime’s tabled amendments to Part 2, replacing the phrases “serious violent or sexual offenders” and “serious violent or sexual offender”, are out of order as being inconsistent with a previous decision of the committee. The question is that the Hon Willow-Jean Prime’s tabled amendments to clauses 9, 10, 10A, and 10B be agreed to. A party vote was called for on the question, That the amendments be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendments not agreed to. CHAIRPERSON (Barbara Kuriger): The question is that the Hon Willow-Jean Prime’s tabled amendments to clauses 9, 11, 12, 16, and 17 be agreed to. A party vote was called for on the question, That the amendments be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendments not agreed to. CHAIRPERSON (Barbara Kuriger): The question is that the Hon Willow-Jean Prime’s tabled amendment to clause 10(1)(b), inserting new subparagraph (iia) be agreed to. A party vote was called for on the question, That the amendment be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendment not agreed to. CHAIRPERSON (Barbara Kuriger): The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 11(2) be agreed to. A party vote was called for on the question, That the amendment be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendment not agreed to. CHAIRPERSON (Barbara Kuriger): The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 12(2), inserting new paragraph (c), be agreed to. A party vote was called for on the question, That the amendment be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendment not agreed to. CHAIRPERSON (Barbara Kuriger): The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 20, replacing subclause (2), be agreed to. A party vote was called for on the question, That the amendment be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendment not agreed to. CHAIRPERSON (Barbara Kuriger): The question is that the Hon Willow-Jean Prime’s tabled amendment to clause 20(4), inserting new paragraph (ca) be agreed to. A party vote was called for on the question, That the amendment be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendment not agreed to. CHAIRPERSON (Barbara Kuriger): The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 20, replacing subclause (4A), be agreed to. A party vote was called for on the question, That the amendment be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendment not agreed to. CHAIRPERSON (Barbara Kuriger): The question is that the Hon Willow-Jean Prime’s tabled amendment inserting new clause 21A be agreed to. A party vote was called for on the question, That the amendment be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendment not agreed to. CHAIRPERSON (Barbara Kuriger): The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 22(2), inserting new paragraph (c), be agreed to. A party vote was called for on the question, That the amendment be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendment not agreed to. CHAIRPERSON (Barbara Kuriger): The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 23 be agreed to. A party vote was called for on the question, That the amendment be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendment not agreed to. CHAIRPERSON (Barbara Kuriger): The question is that Mariameno Kapa-Kingi’s tabled amendment to clause 24 be agreed to. A party vote was called for on the question, That the amendment be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendment not agreed to. CHAIRPERSON (Barbara Kuriger): The question is that the Hon Willow-Jean Prime’s tabled amendment inserting new clause 25A be agreed to. A party vote was called for on the question, That the amendment be agreed to. Ayes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Noes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Amendment not agreed to. A party vote was called for on the question, That Part 2 as amended be agreed to. Ayes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Noes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Part 2 as amended agreed to. CHAIRPERSON (Barbara Kuriger): Schedule 1—no debate. The Hon Willow-Jean Prime’s tabled amendments to Schedule 1 replacing the phrases “serious violent and sexual offenders” and “serious violent and sexual offender” are out of order as not being in the correct form of legislation. A party vote was called for on the question, That Schedule 1 be agreed to. Ayes 67 New Zealand National 48; ACT New Zealand 11; New Zealand First 8. Noes 55 New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 4; Ferris; Kapa-Kingi. Schedule 1 agreed to.