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Mental Health and Wellbeing Commission Bill Government Bill As reported from the Health Committee Commentary Recommendation The Health Committee has examined the Mental Health and Wellbeing Commission Bill and recommends that it be passed with the amendments shown.

Introduction This bill seeks to establish a Mental Health and Wellbeing Commission.

This is in response to recommendations 36 to 38 in He Ara Oranga: Report of the Government Inquiry into Mental Health and Addiction.
The Commission would be established as an independent Crown entity.

Its role would be to contribute to better and equitable mental health and wellbeing outcomes for people in New Zealand.

Proposed amendments This commentary covers the main amendments we recommend to the bill as intro- duced.

We do not discuss minor or technical amendments.


Groups from which the Commission would seek views Clause 13(1) of the bill as introduced would require the Commission to seek the views of Māori, Pacific peoples, disabled people, and others who are at higher than normal risk of poorer mental health and wellbeing.

It must also seek the views of chil- dren, young people, and those with personal experience of mental distress or addic- tion.

There was strong interest in this clause.


We note that multiple submissions identified additional groups that experience poorer outcomes.

Submitters recommended that the bill also list them as groups the Commission should seek the views of when carrying out its functions.
188—2 2 Mental Health and Wellbeing Commission Bill Commentary We propose a more inclusive approach to clause 13 that would acknowledge groups that experience poorer outcomes, such as rainbow communities, while providing the Commission flexibility to determine the groups it will consult.
We recommend amending clause 13 to highlight that the Commission should seek views of people at greater risk of experiencing poor mental health and wellbeing, while also explicitly referring to the 12 groups identified in He Ara Oranga as examples of groups that are at risk of experiencing poor mental health and wellbeing.
This list includes the groups in the bill as introduced (Māori, Pacific peoples, disabled people, and children and young people) but also includes rainbow communities, rural communities, older people, and refugees and migrants, among others.

We recommend inserting the list of groups into the bill as Schedule 1A.

We also recommend the addition of clause 13(1)(e) to explicitly state that the Com- mission could seek the views of any group that it considers may help it meet its objective.
We note that the Commission’s mandate covers the mental health and well- being of all people in New Zealand, and believe this addition would reinforce that the Commission could consider any perspectives it considers necessary to fulfil its func- tions.

We believe these amendments would capture not only the groups specified in Sched- ule 1A, but also those of other groups that made submissions on this bill.
These amendments also reflect the fact that the groups that are at greater risk of experienc- ing poor mental health and wellbeing will change over time, and the Commission needs the flexibility to seek the views of differing groups as circumstances evolve and change.

Functions of the Commission Clause 11(1) sets out the functions of the Commission.

In undertaking its functions, the Commission would be required to have particular regard to the experience of, and outcomes for, Māori (clause 11(2)).
We also recommend inserting clause 11(3) to be clear that the Commission should consider evidence where relevant and that it have regard to a wide range of factors affecting mental health and wellbeing.

We believe the bill should provide more clarity about the Commission’s role in influ- encing and improving approaches to mental health and wellbeing.
We therefore rec- ommend the addition of clause 11(1)(ca) to emphasise that the Commission can make recommendations to influence better mental health and wellbeing.

Membership of the board Proposed clause 8 would allow for the board to consist of 2 to 5 members.
It would also require the Minister to take into consideration the need for board members to col- lectively have an understanding of (amongst other things) te ao Māori and tikanga Māori; factors that affect people’s mental health and wellbeing; mental health services and addiction services; and improving overall system performance.

Commentary Mental Health and Wellbeing Commission Bill 3 We recommend amending clause 8(1) to require a board of 3 to 7 members.
We believe this would allow for the board to collectively cover a wider range of the rec- ommended attributes and experience.

We also recommend amending clause 8(2)(a) to specify that consideration must also be given to potential board members’ collective knowledge, understanding, and experience of: • • the effect of environmental factors on people’s mental health and wellbeing; and public health and population health approaches to improving health outcomes.
We believe this amendment would encourage the Commission to consider the full range of factors that affect people’s mental health and wellbeing and the full range of interventions to promote positive mental health and wellbeing and prevent poor men- tal health and wellbeing.

Commencement As introduced, clause 2 specifies that this legislation would come into force on 9 Feb- ruary 2021.
We note that the Government has already established the Initial Mental Health and Wellbeing Commission to undertake some of the proposed functions for the permanent Commission and to provide advice for the permanent Commission.

We see it as important to maintain momentum from this work and from He Ara Oranga.
To allow flexibility for the permanent Commission to be established earlier than 9 February 2021, we recommend that the Act come into force on the earlier of a date to be appointed by the Governor-General by Order in Council or 9 February 2021.
Independence of the Commission We recommend the following two amendments to reflect the fact that the Commis- sion would be an independent Crown entity: • • amending clause 8(2) to make it clear that the Minister would recommend people for membership of the board, but (under the Crown Entities Act 2004) members would be appointed by the Governor-General, not the Minister inserting clause 11(4), requiring the Commission to act independently when performing its functions.
This is a standard provision in legislation that estab- lishes such entities.

4 Mental Health and Wellbeing Commission Bill Commentary Appendix Committee process The Mental Health and Wellbeing Commission Bill was referred to the committee on 19 November 2019.

The closing date for submissions was 11 December 2019.

We received and considered 99 submissions from interested groups and individuals.

We heard oral evidence from 42 submitters.

We received advice from the Ministry of Health.
Committee membership Louisa Wall (Chairperson) Hon Maggie Barry Dr Liz Craig Matt Doocey Hon Ruth Dyson Jenny Marcroft Dr Shane Reti Hon Michael Woodhouse Mental Health and Wellbeing Commission Bill Key to symbols used in reprinted bill As reported from a select committee text inserted unanimously text deleted unanimously Hon Dr David Clark Mental Health and Wellbeing Commission Bill Government Bill Contents Page Title Commencement Part 1 Preliminary provisions Treaty of Waitangi (Te Tiriti o Waitangi) Interpretation Transitional, savings, and related provisions Act binds the Crown Part 2 Mental Health and Wellbeing Commission Establishment of Mental Health and Wellbeing Commission Mental Health and Wellbeing Commission established Board of Commission Additional collective duty of board Objective, functions, and powers of Mental Health and Wellbeing Commission Objective of Commission Functions of Commission Powers of Commission Obtaining views of specified groups Obligation to establish mechanisms to seek have effective means of seeking views 188—2 2 2 2 3 4 4 4 4 5 5 5 6 6 1 cl 1 Mental Health and Wellbeing Commission Bill Power to obtain information Power of Commission to obtain information Reasons for refusing to supply requested information Publication or disclosure of information to others Review of Commission Review of Commission Consequential amendments Consequential amendments to other enactments Schedule 1 Transitional, savings, and related provisions Schedule 1A Groups identified in He Ara Oranga: Report of the Government Inquiry into Mental Health and Addiction Schedule 2 Consequential amendments 7 8 8 9 9 10 11 12 The Parliament of New Zealand enacts as follows: 1 2 (1) Title This Act is the Mental Health and Wellbeing Commission Act 2019.
Commencement This Act comes into force on 9 February 2021.

This Act comes into force on a date appointed by the Governor-General by Order in Council, and 1 or more Orders in Council may be made bringing dif- ferent provisions into force on different dates.

(2) Any provision that is not earlier brought into force under subsection (1) comes into force on 9 February 2021.
5 10 Part 1 Preliminary provisions 3 Treaty of Waitangi (Te Tiriti o Waitangi) In order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi, and with a view to achieving better and more equitable mental health and wellbeing outcomes for Māori,— 15 (a) section 8(2) requires the Minister to have regard to the need for mem- bers of the board to collectively have knowledge, understanding, and experience of— 2 Mental Health and Wellbeing Commission Bill Part 1 cl 4 (i) (ii) te ao Māori (Māori world view), tikanga Māori (Māori protocol and culture), and whānau-centred approaches to wellbeing; and the cultural, economic, educational, spiritual, societal, environ- mental, and other factors that affect people’s mental health and wellbeing; and 5 (b) section 9(1) requires the board to ensure that the Commission main- tains systems and processes to ensure that, for the purposes of carrying out its functions under this Act, the Commission has the capability and capacity— (i) (ii) to uphold the Treaty of Waitangi (Te Tiriti o Waitangi) and its principles; and 10 to engage with Māori and to understand perspectives of Māori; and (c) section 11(2) requires the Commission to have particular regard to the experience of, and outcomes for, Māori when the Commission performs its functions under this Act, which include— 15 (i) (ii) (iii) (iv) assessing and reporting publicly on the mental health and wellbe- ing of people in New Zealand; and assessing and reporting publicly on
 factors that affect people’s mental health and wellbeing; and 20 assessing and reporting publicly on the effectiveness, efficiency, and adequacy of approaches to mental health and wellbeing (including mental health services and addiction services); and advocating for the collective interests of people who experience mental distress or addiction (or both), and the persons (including family and whānau) who support them; and (ca) section 11(3) requires the Commission, when it performs its functions under this
 Act, to also have regard to— (i) (ii) the cultural, economic, educational, spiritual, societal, environ- mental, and other factors that affect people’s mental health and wellbeing; and actions undertaken that (or that could be undertaken to) identify and respond to people experiencing poor mental health and well- being, and the persons (including family and whānau) who sup- port them; and (d) section 13 requires the Commission, in performing its functions and exercising its powers under this Act, to establish mechanisms to ensure that there are it has effective means of seeking the views of Māori.
4 Interpretation In this Act, unless the context otherwise requires,— 3 25 30 35 40 Part 1 cl 5 Mental Health and Wellbeing Commission Bill board means the board of the Commission Commission means the Mental Health and Wellbeing Commission established by section 7 Minister means the Minister of the Crown who, under authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act.
Transitional, savings, and related provisions The transitional, savings, and related provisions (if any) set out in Schedule 1 have effect according to their terms.

Act binds the Crown This Act binds the Crown.

Part 2 Mental Health and Wellbeing Commission Establishment of Mental Health and Wellbeing Commission Mental Health and Wellbeing Commission established The Mental Health and Wellbeing Commission is established.
5 10 15 The Commission is a Crown entity for the purposes of section 7 of the Crown Entities Act 2004.

The Crown Entities Act 2004 applies to the Commission except to the extent that this Act expressly provides otherwise.

20 Board of Commission The board of the Commission consists of 2 to 5 3 to 7 members.
In appointing the members, When recommending a person for membership of the board, the Minister must have regard to the need for members to collect- ively— (a) have knowledge, understanding, and experience of— (i) (ii) te ao Māori (Māori world view), tikanga Māori (Māori protocol and culture), and whānau-centred approaches to wellbeing; and the cultural, economic, educational, spiritual, societal, environ- mental, and other factors that affect people’s mental health and wellbeing; and (iii) mental health services and addiction services; and (iiia) public health approaches and population health approaches to improving health outcomes; and (iv) improving overall system performance; and 25 30 35 5 6 7 (1) (2) (3) 8 (1) (2) 4 Mental Health and Wellbeing Commission Bill Part 2 cl 11 (3) 9 (1) (2) (b) (c) have personal experience of mental distress; and have personal experience of addiction.
This section does not limit section 29 of the Crown Entities Act 2004.

Additional collective duty of board The board must ensure that the Commission maintains systems and processes to ensure that, for the purposes of carrying out its functions under this Act, the Commission has the capability and capacity— 5 (a) to uphold the Treaty of Waitangi (Te Tiriti o Waitangi) and its principles; and (b) to engage with Māori and to understand perspectives of Māori.
10 The duty in subsection (1)— (a) applies in addition to the duties of the board in sections 49 to 52 of the Crown Entities Act 2004; and (b) is a collective duty owed to the Minister for the purposes of section 58 of the Crown Entities Act 2004.
15 Compare: 2019 No 50 s 11 Objective, functions, and powers of Mental Health and Wellbeing Commission 10 Objective of Commission In performing its functions and exercising its powers under this Act, the Com- mission’s objective is to contribute to better and more equitable mental health and wellbeing outcomes for people in New Zealand.
20 Compare: 2004 No 115 s 14(2) Functions of Commission The functions of the Commission are— 11 (1) (a) (b) (c) (ca) (cb) (d) to assess and report publicly on the mental health and wellbeing of people in New Zealand; and 25 to assess and report publicly on factors that affect people’s mental health and wellbeing; and to assess and report publicly on the effectiveness, efficiency, and ade- quacy of approaches to mental health and wellbeing (including mental health services and addiction services); and 30 to make recommendations to improve the effectiveness, efficiency, and adequacy of approaches to mental health and wellbeing; and to monitor mental health services and addiction services and to advocate improvements to those services; and 35 to promote alignment, collaboration, and communication between entities involved in mental health and wellbeing; and 5 Part 2 cl 12 Mental Health and Wellbeing Commission Bill (e) to advocate for the collective interests of people who experience mental distress or addiction (or both), and the persons (including family and whānau) who support them.
(2) When performing its functions under this Act, the Commission must have par- ticular regard to the experience of, and outcomes for, Māori.
(3) The Commission must also have regard to— (a) (b) available evidence; and the cultural, economic, educational, spiritual, societal, environmental, and other factors that affect people’s mental health and wellbeing; and (c) actions undertaken that (or that could be undertaken to)— (i) (ii) (iii) promote positive mental health and wellbeing: build resilience and prevent poor mental health and wellbeing: identify and respond to people experiencing poor mental health and wellbeing, and the persons (including family and whānau) who support them.
5 10 15 (4) Except as expressly provided otherwise in this or another Act, the Commission must act independently in performing its statutory functions and duties, and exercising its statutory powers, under— (a) (b) this Act; and any other Act that expressly provides for the functions, duties, or powers of the Commission (other than the Crown Entities Act 2004).
20 12 Powers of Commission The Commission has the power to— (a) publicly report on any matters concerning the mental health and wellbe- ing of people in New Zealand; and 25 (b) make recommendations to any person (including any Minister) on any matters concerning mental health and wellbeing; and (c) obtain information in accordance with sections 14 to 16.
Obtaining views of specified groups Obligation to establish mechanisms to seek have effective means of seeking views 30 In performing its functions and exercising its powers under this Act, the Com- mission must establish mechanisms to ensure that there are effective means of seeking the views of— (a) Māori; and (b) (c) Pacific peoples; and disabled people; and 35 13 (1) 6 Mental Health and Wellbeing Commission Bill Part 2 cl 14 (d) (e) (f) other groups of people who have disproportionately poorer mental health and wellbeing; and people who have experienced mental distress, and the persons (including family and whānau) who support them; and people who have experienced addiction, and the persons (including fam- ily and whānau) who support them; and 5 (g) children and young people.
(2) (1) Those mechanisms may include appointing advisory committees or forming consultation forums.
In performing its functions and exercising its powers under this Act, the Com- mission must ensure that it has effective means of seeking the views of— 10 (a) Māori; and (b) (c) (d) (e) people who share a common identity, experience, or stage in life that increases the risk that they will experience poor mental health and well- being (for example, the groups identified in He Ara Oranga: Report of the Government Inquiry into Mental Health and Addiction and that are set out in Schedule 1A); and people who have experienced mental distress, and the persons (including family and whānau) who support them; and 15 people who have experienced addiction, and the persons (including fam- ily and whānau) who support them; and 20 any other group the Commission considers may help it to meet its objective (see section 10).
(2) Those means may include— (a) (b) appointing advisory committees or forming consultation forums: 25 using consultation mechanisms that have been established by other entities.

Compare: 2003 No 128 s 13 Power to obtain information 14 (1) Power of Commission to obtain information The Commission may request an entity specified in subsection (6) to supply to the Commission any information that is necessary or desirable to enable the Commission to perform its functions.
(2) A request— (a) must be in writing; and 30 35 (b) may state the date by which, and the manner in which, the information must be provided.

(3) If a date is specified, that date must be reasonable.

7 Part 2 cl 15 Mental Health and Wellbeing Commission Bill (4) An entity to which the request is made must comply with the request.

(5) Section 15 overrides subsections (1) and (4).


(6) A request may be made to 1 or more of the following entities: (a) a department named in Schedule 1 of the State Sector Act 1988, other than— 5 (i) (ii) the Government Communications Security Bureau; and the New Zealand Security Intelligence Service: a departmental agency named in Schedule 1A of the State Sector Act 1988: a statutory entity named in Schedule 1 of the Crown Entities Act 2004: 10 the New Zealand Defence Force: the New Zealand Police.
(b) (c) (d) (e) Compare: 2019 No 51 s 23 15 (1) Reasons for refusing to supply requested information The Commission must not request, and an entity must not supply, information that is— 15 (a) (b) (c) personal information as defined in section 2(1) of the Privacy Act 1993; or information held by the Government Statistician that was collected under the Statistics Act 1975; or 20 information that a revenue officer must keep confidential under section 18 of the Tax Administration Act 1994.
(2) An entity may refuse a request for information if— (a) (b) it can be properly withheld under sections 6, 7, 9(2)(a), (b)(i), (ba)(ii), (c) to (h), (j), or (k) of the Official Information Act 1982; or 25 the supply of the information would limit the ability of the entity, or of any of its employees, members, or office holders, to act judicially, or to carry out the statutorily independent functions of the entity, in relation to a particular matter.
Compare: 2019 No 51 s 24 16 Publication or disclosure of information to others The Commission must not publish or disclose any information obtained under section 14 unless 1 or more of the following apply: (a) the information is available to the public under any enactment or is otherwise publicly available: (b) the information is in a statistical or summary form: 30 35 8 Mental Health and Wellbeing Commission Bill Part 2 cl 18 (c) (d) the publication or disclosure is with the consent of the entity from which the information was obtained: the publication or disclosure is made under the Official Information Act 1982 or is otherwise required by law.
Compare: 2019 No 51 s 26 5 17 (1) Review of Commission Review of Commission The Minister must, as soon as practicable after the expiry of 5 years from the commencement of this Act,— (a) commence a review of the operation and effectiveness of the Commis- sion; and 10 (b) prepare a report on that review.

(2) The Minister must present the report to the House of Representatives as soon as practicable after it has been completed.
Consequential amendments 15 18 Consequential amendments to other enactments Amend the enactments specified in Schedule 2 as set out in that schedule.

9 Schedule 1 Mental Health and Wellbeing Commission Bill Schedule 1 Transitional, savings, and related provisions s 5 Part 1 Provisions relating to this Act as enacted There are no transitional, savings, or related provisions relating to this Act as enacted.
5 10 Mental Health and Wellbeing Commission Bill Schedule 1A Schedule 1A Groups identified in He Ara Oranga: Report of the Government Inquiry into Mental Health and Addiction s 13(1)(b) Māori Pacific peoples Refugees and migrants Rainbow communities Rural communities Disabled people Veterans Prisoners Young people Older people Children experiencing adverse childhood events Children in state care 5 10 15 11 Schedule 2 Mental Health and Wellbeing Commission Bill Schedule 2 Consequential amendments s 18 Crown Entities Act 2004 (2004 No 115) In Schedule 1, Part 3, insert in its appropriate alphabetical order: Mental Health and Wellbeing Commission Health and Disability Commissioner Act 1994 (1994 No 88) In the heading to section 9, delete “and Mental Health Commissioner”.
Repeal section 9(2).

In section 9(3), delete “or the Mental Health Commissioner”.

Repeal section 14(1)(ma).

In section 23(b), after “the Children’s Commissioner,”, insert “the Mental Health and Wellbeing Commission,”.

In section 68(2), delete “or the Mental Health Commissioner”.

In Schedule 2, clause 4(5), delete “or the Mental Health Commissioner”.
Official Information Act 1982 (1982 No 156) In Schedule 1, insert in its appropriate alphabetical order: Mental Health and Wellbeing Commission Ombudsmen Act 1975 (1975 No 9) In Schedule 1, Part 2, insert in its appropriate alphabetical order: Mental Health and Wellbeing Commission Remuneration Authority Act 1977 (1977 No 110) In Schedule 4, delete “The Mental Health Commissioner and the Deputy Health and Disability Commissioners”.
In Schedule 4, insert in its their appropriate alphabetical order: The Deputy Health and Disability Commissioners The members of the Mental Health and Wellbeing Commission 14 November 2019 19 November 2019 Introduction (Bill 188–1) First reading and referral to Health Committee Legislative history Wellington, New Zealand: Published under the authority of the House of Representatives—2020 12