Children's Commissioner Act 2003

1: Title
This Act is the Children's Commissioner Act 2003.
1: Preliminary provisions
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Purposes
The purposes of this Act are—
a: to continue, as the Children's Commissioner, the office of the Commissioner for Children and to state the Commissioner's functions and powers in a separate Act:
b: to re-enact the Commissioner's functions with modifications that are consistent with the Commissioner's primary role as an advocate for children:
c: to confer additional functions and powers on the Commissioner to give better effect in New Zealand to the United Nations Convention on the Rights of the Child:
d: to require the Commissioner to have regard to the Convention when carrying out the Commissioner's functions and powers:
e: to give the Commissioner express powers to obtain information and documents, and to apply for access to court records, in order to enhance the effectiveness of the Commissioner's investigative and inquiry functions:
f: to repeal Part 9
4: Interpretation
1: In this Act, unless the context otherwise requires,— child section 13 Commissioner Convention Schedule 2 investigation section 12(1)﻿(l) Minister Oranga Tamariki Act 1989 officeholder
2: Terms not defined in this Act but defined in the Oranga Tamariki Act 1989 Section 4(1) fees framework repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 4(1) Minister amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 4(2) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017
5: Act binds the Crown
This Act binds the Crown.
2: Appointment, functions, and powers of Commissioner
Provisions relating to constitution and appointment of Commissioner
6: Office of Children's Commissioner continued
1: There continues to be a Commissioner called the Children's Commissioner, being the Commissioner who, immediately before the commencement of this Act, was known as the Commissioner for Children.
2: The Commissioner is—
a: a corporation sole; and
b: a Crown entity for the purposes of section 7
c: the board for the purposes of the Crown Entities Act 2004
3: The Crown Entities Act 2004
4: 1989 No 24 ss 410(2) 421 Section 6(2) substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 6(3) substituted 25 January 2005 section 200 Crown Entities Act 2004 Section 6(4) repealed 25 January 2005 section 200 Crown Entities Act 2004
7: Appointment of Commissioner
1:
2:
3: Before recommending the appointment of a Commissioner under section 28(1)﻿(b)
a: notify the vacancy or prospective vacancy in a manner sufficient to enable suitably qualified individuals to apply for appointment; and
b: have regard to the desirability of consulting any organisations or persons that, in the opinion of the Minister, have a special interest in the functions of the Commissioner; including, without limitation, organisations representing children and children themselves.
4:
5: The appointment of a Judge as Commissioner does not affect the Judge's tenure of the judicial office or the Judge's rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as a Judge (including those in relation to superannuation) and, for all purposes, the Judge's service as Commissioner is service as a Judge.
6: Section 7(1) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 7(2) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 7(3) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 7(4) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 7(6) repealed 25 January 2005 section 200 Crown Entities Act 2004
8: Appointee must consent to appointment and disclose interests
Section 8 repealed 25 January 2005 section 200 Crown Entities Act 2004
9: Term of office
Section 9 repealed 25 January 2005 section 200 Crown Entities Act 2004
10: Removal of officeholder
Section 10 repealed 25 January 2005 section 200 Crown Entities Act 2004 Functions, powers, and duties of Commissioner
11: Matters to which Commissioner must have regard in exercising functions or powers
In performing or exercising the Commissioner's functions or powers under this Act, the Commissioner must have regard to the following matters:
a: the Convention:
b: the principle that the Commissioner should give serious consideration to the views of children and take those views into account:
c: the principle that the Commissioner should recognise the diversity of children in New Zealand:
d: the principles stated in sections 4A 5 Oranga Tamariki Act 1989 Section 11(d) amended 1 July 2019 section 37 Oranga Tamariki Legislation Act 2019 Section 11(d) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017
12: General functions of Commissioner
1: The general functions of the Commissioner are—
a: to investigate any decision or recommendation made, or any act done or omitted (other than a decision, recommendation, or act to which section 13(1)﻿(a)
b: to promote the establishment of accessible and effective complaints mechanisms for children and to monitor the nature and level of complaints:
c: to raise awareness and understanding of children's interests, rights, and welfare:
d: to raise awareness and understanding of the Convention:
e: to undertake and promote research into any matter that relates to the welfare of children:
f: to act as an advocate for children's interests, rights, and welfare generally (except before any court or tribunal), and, in that regard, to advance and monitor the application of the Convention by departments of State and other instruments of the Crown:
g: if there are issues in proceedings before any court or tribunal that relate to the Convention or to the interests, rights, or welfare of children generally, to present reports on such issues to the court or tribunal, at the request of—
i: the court or tribunal; or
ii: counsel representing any party to the proceedings; or
iii: counsel representing any child who is the subject of the proceedings; or
iv: counsel assisting the court or tribunal:
h: to receive and invite representations from members of the public on any matter that relates to the welfare of children:
i: to increase public awareness of matters that relate to the welfare of children:
j: to promote, in relation to decisions that affect the lives of children,—
i: the participation of children in those decisions; and
ii: an approach to children's views that, in each case, gives due weight to those views in accordance with the age and maturity of the relevant child:
k: to report, with or without request, to the Prime Minister on matters affecting the rights of children:
l: to inquire generally into, and report on, any matter, including any enactment or law, or any practice or procedure, that relates to the welfare of children.
2: Except as expressly provided otherwise in this or another Act, the Commissioner must act independently in performing his or her statutory functions and duties, and exercising his or her statutory powers, under—
a: this Act; and
b: any other Act that expressly provides for the functions, powers, or duties of the Commissioner (other than the Crown Entities Act 2004 1989 No 24 s 411(1)﻿(a), (d), (e), (f), (g), (2) Section 12(2) substituted 25 January 2005 section 200 Crown Entities Act 2004
13: Functions in relation to
Oranga Tamariki Act 1989
1: The Commissioner has the following functions in relation to the Oranga Tamariki Act 1989
a: to investigate any decision or recommendation made, or any act done or omitted, under that Act in respect of any child or young person in that child's or young person's personal capacity:
b: to monitor and assess—
i: the policies and practices of the department; and
ii: the policies and practices of any other person, body, or organisation that relate to the performance or exercise by the person, body, or organisation of a function, duty, or power under that Act or regulations made under that Act:
c: to encourage the development, within the department, of policies and services that are designed to promote the welfare of children and young persons:
d: on the Commissioner's own initiative or at the request of the Minister, to advise the Minister on any matter that relates to the administration of that Act or regulations made under that Act:
e: to keep under review, and make recommendations on, the working of that Act.
2: In this section, child section 2(1) Oranga Tamariki Act 1989 1989 No 24 s 411(1)﻿(a), (b), (c), (h), (i) Section 13 heading amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 13(1) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 13(2) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017
14: Commissioner to develop means of consulting with children
1: The Commissioner must develop means of consulting with children from time to time for the purpose of ensuring the views of children are taken into account in the exercise or performance of the Commissioner's functions (other than the Commissioner's functions under section 12(1)﻿(a) section 13(1)﻿(a)
2: The Commissioner must, where practicable, consult with children, using the means developed under subsection (1), before the Commissioner makes any significant recommendation in the exercise or performance of the Commissioner's functions under section 12(1)﻿(f), (g), (i), or (l) section 13(1)﻿(d) or (e)
15: Capacity and powers
Section 15 repealed 25 January 2005 section 200 Crown Entities Act 2004
16: Duties
Section 16 repealed 25 January 2005 section 200 Crown Entities Act 2004 Provisions relating to investigations
17: Commissioner's investigations must have regard to rights or interests and welfare of children
In conducting an investigation, the Commissioner must have regard to the question whether the rights or the welfare and interests of 1 or more children have been prejudiced.
18: Commissioner may not investigate courts or tribunals
1: Despite anything in this Act, the Commissioner may not investigate any decision or recommendation, or any act or omission, of a court or a tribunal.
2: If any matter is the subject of proceedings before a court or a tribunal, the Commissioner may not commence or (if the Commissioner has commenced an investigation) continue an investigation into the matter until the proceedings are finally determined.
19: Referrals of matters to certain statutory officers
1: If, in the course of conducting or proposing to conduct an investigation, the Commissioner considers that the subject matter of the investigation relates, in whole or in part, to a matter that is more properly within the scope of the functions of one of the statutory officers specified in subsection (4), the Commissioner must, without delay, consult with that officer in order to determine the appropriate means of dealing with the subject matter.
2: As soon as practicable after consulting with the officer concerned, the Commissioner must determine whether the subject matter should be dealt with, in whole or in part, under this Act.
3: If the Commissioner determines that the subject matter should be dealt with, in whole or in part, by one of the officers specified in subsection (4), the Commissioner must, without delay, refer the subject matter or, as the case requires, the appropriate part of the subject matter to that officer.
4: The statutory officers referred to in subsection (1) are—
a: the Chief Commissioner under the Human Rights Act 1993
b: the chief executive of the department for the time being responsible for the administration of the Oranga Tamariki Act 1989
c: the Commissioner of Police:
d: the Health and Disability Commissioner:
e: the Chief Ombudsman exercising jurisdiction under the Ombudsmen Act 1975
f: the Independent Police Conduct
g: the Privacy Commissioner. 1993 No 28 s 72 Section 19(4)﻿(b) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 19(4)﻿(f) amended 29 November 2007 section 26 Independent Police Conduct Authority Amendment Act 2007
20: Special powers to call for information or documents
1: If the conditions stated in subsection (2) are satisfied, the Commissioner may, by notice in writing, require any person—
a: to provide the Commissioner or a specified employee of the Commissioner with any information the Commissioner requires; or
b: to produce to the Commissioner or a specified employee of the Commissioner any document in the custody or under the control of that person, and to allow copies of, or extracts from, any such document to be made or taken; or
c: to furnish to the Commissioner or to a specified employee of the Commissioner copies or extracts from documents in the custody or under the control of that person.
2: The conditions referred to in subsection (1) are that—
a: the Commissioner believes, on reasonable grounds, that the exercise of the powers conferred by that subsection are necessary to enable the Commissioner to carry out an investigation; and
b: the person to whom a notice under that subsection is to be given has failed to comply with a previous request to provide the Commissioner, within a reasonable time, with the information or document or extract required by the notice; and
c: the Commissioner believes, on reasonable grounds, that—
i: it is not reasonably practicable to obtain the information or document from another source; or
ii: for the purposes of the investigation, it is necessary to obtain the information or document to verify or refute information obtained from another source.
21: Compliance with requirement to provide information or document
1: A person to whom a notice under section 20
2: Subsection (1) does not require a person to provide any information or produce any document that would be privileged in a court of law.
3: Every person commits an offence, and is liable on section 20
a: refuses or fails without reasonable excuse to comply with the notice; or
b: knowingly or recklessly provides information that is false or misleading in any material particular. Section 21(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011
22: Commissioner and staff must maintain secrecy
1: The Commissioner and every employee of the Commissioner must maintain secrecy in respect of all matters that come to the knowledge of the Commissioner or the employee in the course of any investigation.
2: Despite anything in subsection (1), the Commissioner or any employee of the Commissioner acting with the authority of the Commissioner may disclose any matter that, in the Commissioner's opinion, ought to be disclosed for the purposes of giving effect to—
a: this Act; or
b: the Commissioner's obligations under any other enactment; or
c: information privacy principle 6 Privacy Act 2020
3: The power conferred by subsection (2)﻿(a) does not extend to—
a: any matter that might prejudice—
i: the security, defence, or international relations of New Zealand (including New Zealand's relations with the Government of any other country or with any international organisation); or
ii: any interest protected by section 7
iii: the maintenance of the law, including the prevention, investigation, or detection of offences; or
b: any matter that might involve the disclosure of the deliberations of Cabinet; or
c: any information, answer, document, paper, or thing obtained by the Commissioner by reason only of compliance with a requirement made under section 20(1)
4: The power conferred by subsection (2)﻿(c) is subject to sections 49 to 53 1993 No 28 s 116 Section 22(2)﻿(c) amended 1 December 2020 section 217 Privacy Act 2020 Section 22(4) amended 1 December 2020 section 217 Privacy Act 2020
23: Consultation with other statutory officers
1: Despite anything in section 22
a: for the purposes of making a determination under section 19
b: in relation to any matter that arises out of, or in the course of, an investigation conducted by the Commissioner:
c: in relation to any matter that relates to the interests, rights, or welfare of children, whether or not the matter arises out of an investigation conducted by the Commissioner.
2: For the purposes of any consultation under subsection (1), the Commissioner may disclose to the officer concerned any information the Commissioner considers necessary for that purpose.
3: The statutory officers referred to in subsection (1) are—
a: the Chief Commissioner under the Human Rights Act 1993
b: the chief executive of the department for the time being responsible for the administration of the Oranga Tamariki Act 1989
c: the Commissioner of Police:
d: the Health and Disability Commissioner:
e: the Chief Ombudsman exercising jurisdiction under the Ombudsmen Act 1975
f: the Independent Police Conduct
g: the Privacy Commissioner. 1993 No 28 s 117 Section 23(3)﻿(b) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 23(3)﻿(f) amended 29 November 2007 section 26 Independent Police Conduct Authority Amendment Act 2007
24: Access to court records
1: If the Commissioner believes on reasonable grounds that access to a record of a court is required for an investigation, the Commissioner may apply to the court to inspect the record.
2: An application under subsection (1) is dealt with in accordance with the applicable rules of court governing the inspection of court records.
3: This section does not limit—
a: section 15
b: any other enactment that—
i: enables the Commissioner to access court records; or
ii: restricts access to court records.
25: Commissioner must not make adverse comment unless opportunity to be heard is given
Despite anything in this Act or the Crown Entities Act 2004 1989 No 24 s 414 Section 25 amended 25 January 2005 section 200 Crown Entities Act 2004
26: Commissioner may regulate procedure for investigations
The Commissioner may regulate the procedure for any investigation under this Act in any manner, not inconsistent with this Act, that the Commissioner thinks fit. Immunities and privileges
27: Proceedings privileged
1:
2: No civil or criminal proceedings may be brought against the officeholder or a former officeholder or against a person who is or has been an employee of the Commissioner for anything done or omitted in the course of the exercise or intended exercise of functions under this Act unless it is shown that the person concerned acted in bad faith.
3: Neither the officeholder nor a former officeholder nor a person who is or has been an employee of the Commissioner may be called to give evidence in any court, or in any proceedings of a judicial nature, in respect of anything that comes to the knowledge of the person concerned in the exercise of functions or powers under this Act.
4: Nothing in subsection (2) or subsection (3) applies in respect of proceedings for—
a: an offence against section 78 78AA(1) 78A(1) 105 105A 105B
b: the offence of conspiring to commit an offence against section 78 78AA(1) 78A(1) 105 105A 105B
c: the offence of attempting to commit an offence against section 78 78AA(1) 78A(1) 105 105A 105B
5: Nothing in subsection (3) applies to any report made by the Commissioner to a court under section 12(1)﻿(g)
5A: Sections 122 to 126
5B: This section contains an exception to section 121
6: Anything said or any information supplied or any document, paper, or thing produced by a person in the course of an investigation by the Commissioner under this Act is privileged in the same manner as if the investigation were a proceeding in a court.
7: For the purposes of clause 3 Section 27(1) repealed 25 January 2005 section 200 Crown Entities Act 2004 Section 27(4)﻿(a) amended 28 September 2017 section 335 Intelligence and Security Act 2017 Section 27(4)﻿(b) amended 28 September 2017 section 335 Intelligence and Security Act 2017 Section 27(4)﻿(c) amended 28 September 2017 section 335 Intelligence and Security Act 2017 Section 27(5A) inserted 25 January 2005 section 200 Crown Entities Act 2004 Section 27(5B) inserted 25 January 2005 section 200 Crown Entities Act 2004 Matters of administration
28: Annual report
Section 28 repealed 25 January 2005 section 200 Crown Entities Act 2004
29: Money to be appropriated for purposes of this Act
Section 29 repealed 25 January 2005 section 200 Crown Entities Act 2004
30: Provisions applying to Commissioner
The provisions in Schedule 1
3: Transitional and miscellaneous provisions
31: Continuation of office, appointment of Commissioner, and employment of employees
1: The office continued by section 6 section 410
2: On the commencement of this Act, the person who, immediately before that commencement, held office as Commissioner for Children under the Oranga Tamariki Act 1989 under this Act
a: for a term that, immediately before that commencement, represented the remainder of the person's term as Commissioner for Children; and
b: subject to the conditions of employment, determined under section 417
c: subject to any determination made under section 47
3: The Remuneration Authority is not obliged to make a determination under section 47
4: This Act does not affect the employment of any person who, immediately before the commencement of this Act, was an employee of the Commissioner for Children. Section 31(1) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 31(2) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 31(2) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 31(2)﻿(c) amended 25 January 2005 section 200 Crown Entities Act 2004 Section 31(3) amended 25 January 2005 section 200 Crown Entities Act 2004
32: Application of Act to matters commenced under
Oranga Tamariki Act 1989
1: The Commissioner may continue or complete any act, matter, or thing commenced by the Commissioner for Children under the Oranga Tamariki Act 1989
2: The provisions of this Act apply with all necessary modifications to the continuation or completion of any act, matter, or thing referred to in subsection (1). Section 32 heading amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 Section 32(1) amended 14 July 2017 section 149 Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017
33: Review of Commissioner's operations and performance
Section 33 repealed 25 January 2005 section 200 Crown Entities Act 2004
34: Power to request information in connection with review
Section 34 repealed 25 January 2005 section 200 Crown Entities Act 2004
35: Good reasons for refusing to supply requested information
Section 35 repealed 25 January 2005 section 200 Crown Entities Act 2004
36: Convention set out in Schedule 2 for information and reference only
1: The Convention is set out in Schedule 2
2: For the avoidance of doubt, the inclusion of the text of the Convention in this Act does not affect the legal status of the Convention.
37: Consequential amendments
The enactments specified in Schedule 3