Source: New Zealand Government
Mr Speaker, as the Minister for Children, it is my priority to ensure that children and young people in the care system are safe.
The thousands of survivors who shared their experiences with the Royal Commission have been clear that the system must improve its protections against abuse and neglect.
The amendments to the Oranga Tamariki Act included in this Bill are a positive step in that direction and form the beginning of our action.
They focus on the secure residences operated by Oranga Tamariki, where less than 200 children and young people with the highest needs are cared for at any given time.
The Royal Commission has recommended the Government minimise the use of restrictive practices in care.
This Bill removes the authority to strip search children and young people in secure residences, eliminating one of the most restrictive powers in the care system.
The Royal Commission has also recommended that all care providers should seek the best possible understanding of the background, culture, needs and vulnerabilities of every child and young person in their care.
This Bill introduces a requirement for Oranga Tamariki to develop a tailored search plan for each child or young person in these residences. This plan will ensure their search and gender preferences are respected and will reflect their unique needs and vulnerabilities.
The Royal Commission has emphasised that care safety is of paramount importance.
For the five secure Youth Justice residences, I am introducing new search provisions to reduce the risk of harmful and unauthorised items entering the residence.
Care-experienced young people have said they support these provisions, and they want residences to be safe.
Furthermore, being and feeling safe is a precondition for successful delivery of therapeutic programmes in these residences.
The successful delivery of these programmes will help young people who have offended find new goals, gain a different perspective and successfully return to their communities.
The Bill also makes a minor technical amendment regarding the maximum time a child or young person can spend in secure care before Court oversight is required to approve an extension.
We heard from survivors in the Royal Commission’s report that strip searches had been used in dehumanising and traumatising ways.
In residences today, the power to strip search is rarely used because these searches are recognised as invasive and potentially harmful to vulnerable children and young people.
I am therefore removing the authority to conduct strip searches. This will not just minimise, but eliminate, one of the most restrictive powers in the care system.
There are situations when it is necessary to search a child or young person, but these searches need to be conducted with respect and reflect the person’s unique needs and vulnerabilities.
I am proposing two amendments to better respect the child or young person being searched. These amendments align with Recommendation 78 made by the Royal Commission, which is about recognising the needs and vulnerabilities of each child or young person in the care system.
The first amendment will remove the requirement for pat-down searches to be undertaken by a staff member of the same sex as the child.
This requirement does not respect the LGBTQIA+ community, and leaves staff to rely on discretion when conducting searches.
There will be safeguards around these preferences. Where there are clear risks from a preference to be searched by the person of the opposite sex, staff members will be able to overrule that preference or put other safety mitigations in place.
The second amendment requires a search plan to be made for each child or young person in the residence, that identifies their needs and preferences for how they are searched and by whom.
This includes recognising the histories of trauma or other conditions that could negatively impact how a search is experienced.
The amendments specify that the search plans must be complied with, while allowing for appropriate exceptions.
The safety of those in care is paramount. The Royal Commission has recommended the Government is guided by Care Safety Principles, one of which relates to mitigating risks in physical environments.
Currently, the entry of harmful and unauthorised items is a risk to the safety of young people in secure Youth Justice residences.
In the six months to February 2024, 390 unauthorised items were found in one secure Youth Justice residence alone. 21 of these were rocks, and 14 were shanks that could immediately be used as a weapon.
167 of these unauthorised items were either vapes or illicit drugs and related items, which must have come from outside the residence. I have been informed staff and visitors can be the source of these items.
Care-experienced young people have shared concerns about the current working environment in residences and the ability to keep young people safe.
To reduce the risk of harmful and unauthorised items entering secure Youth Justice residences, the Bill will:
- enable searches of everyone entering the residence including young people, visitors, staff and contractors
- allow the use of imaging-technology scanners, and
- more clearly define the list of harmful and unauthorised items.
In general, VOYCE Whakarongo Mai, an advocacy group for care-experienced young people, supports the extension of search powers and said priority needs to be given to ensuring that adequate technology, such as body imaging scanners, is available and used to minimise the use of “hands on” searches, such as pat downs.
The Oranga Tamariki Youth Advisory Group are in favour of standardised searches, which were not too punitive. In the words of one advisory group member, “all searches should be required for anyone. This is health and safety for everyone.”
I acknowledge the new search provisions may be viewed as going against the Royal Commission’s recommendations to minimise and ultimately eliminate institutional practices.
Moving to models of care that avoid institutional environments would take significant time to achieve and cannot be addressed through these amendments.
I expect the overall impact of these changes to be a reduction in intrusive search practices.
Given the Act already enables young people to be searched within the residence, enabling a scanner search each time they enter is a relatively small change, but one expected to greatly improve the safety and feelings of safety in the residence.
I acknowledge most people entering a residence will not have unauthorised items in their possession and universal searches limit the right to be secure from unreasonable search, protected by section 21 of the New Zealand Bill of Rights Act.
However, we need to balance this against the severe harm that could occur if these items continue to be brought into residences.
I acknowledge some whānau and families may be put off from visiting the residence due to the possibility of being searched. But the greater safety for everyone is also likely to mean that some whānau and families feel safer to visit.
To support visitors and help prevent the loss of connection for young people that the Royal Commission highlighted, Oranga Tamariki will advise them that searches occur to detect unauthorised items, what those items are, and the consequences if found.
Unauthorised items will be removed and returned to the individual when leaving the residence, where appropriate.
This will enable visitors to make decisions about what they bring to their visits in advance.
There will also be clear safeguards in place for searches.
These safeguards will require searches to be conducted with decency and sensitivity, and afford the person being searched the greatest degree of privacy and dignity.
This means having certain restrictions on the use of imaging technology scanners and pat-down searches.
For example, images produced by an imaging technology scanner must avoid showing a clear image of the body beneath clothing and be retained only as long as necessary to determine the presence of an unauthorised item.
For pat-down searches, there must be a record kept of all pat-down searches and the grounds for conducting the search. There will also be restrictions on those present for the search.
Visitors, staff, and contractors may deny a scanner or pat-down search but may be refused admission to the residence if they do so.
The Bill also clarifies the maximum time a child or young person can spend in secure care before Court approval is required to extend the period.
Secure care refers to the containment of a child or young person in a residence within a unit, locked room or enclosure with visible physical barriers.
It is meant to be a last-resort, short-term option to prevent a child or young person from:
- behaving in a way likely to cause physical harm to themselves or others, or
- absconding from a residence, where two additional conditions are met. For example, where there is a real likelihood of absconding, and the wellbeing of the child or young person is likely to be harmed if they abscond.
Currently, the Act has two timeframes on the maximum time a child can remain in secure care before requiring Court approval to extend their placement:
- one timeframe is 72 hours, which begins counting when the child or young person is first placed into secure care.
- the other timeframe is ‘no more than three days’, which begins counting on the day they are first placed into care.
The amendment removes the 72-hour timeframe, as it can result in a child or young person being in secure care longer than counting three days.
This is a minor amendment that reduces the ambiguity in the Act, while the Government continues to analyse and respond to the Royal Commission’s recommendations.
I have said before that I want our system to ensure that every child in this country is raised in a loving and stable home that sets them up to succeed for life.
For the children and young people cared for in our secure residences, safety is the fundamental condition for creating this stable environment. The amendments to the Act will improve the safety in secure residences.
