Children and Young People's Commission Act 2022

1: Title
This Act is the Children and Young People’s Commission Act 2022.
2: Commencement
1: This Act comes into force on the earlier of the following:
a: a date appointed by the Governor-General by Order in Council:
b: 1 July 2023.
2: An Order in Council made under subsection (1)﻿(a) is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act.
1: Preliminary provisions
3: Overview
1: This Act replaces the Children’s Commissioner Act 2003
2: This Part states the purpose of this Act, defines terms used in this Act, and contains other preliminary provisions.
3: Part 2 Commission
4: Part 3
5: Part 4 Children’s Commissioner Act 2003
6: This section is only a guide to the general scheme and effect of this Act.
4: Purpose of this Act
The purpose of this Act is to establish the Children and Young People’s Commission to promote and advance the rights, interests, and participation of children and young people and to improve their well-being within (without limitation) the context of their families, whānau, hapū, iwi, and communities.
5: Principles
The Commission must have regard to the following matters when performing or exercising its functions, duties, or powers under this Act:
a: the Children’s Convention:
b: the child or young person within (without limitation) the context of their family, whānau, hapū, iwi, and communities:
c: the diversity of children and young people in all its forms:
d: the need for high aspirations for the well-being of all children and young people, including responsive systems and structures that support them:
e: the need to give priority to the children and young people who are disadvantaged, and the issues affecting them:
f: the need to hear from, and be informed by, children and young people:
g: other international instruments relevant to, and that affect, children and young people.
6: Tiriti o Waitangi/Treaty of Waitangi
In order to recognise and respect the Crown’s responsibility to give effect to te Tiriti o Waitangi the Treaty of Waitangi
a: section 13(1)﻿(b) te Tiriti o Waitangi the Treaty of Waitangi
b: section 13(2)
c: section 15
d: section 17(1)﻿(a)
i: having a strong focus on the rights, interests, and well-being of Māori children and young people within the context of their whānau, hapū, and iwi:
ii: setting strategic priorities and work programmes that support improved outcomes for Māori children and young people within the context of their whānau, hapū, and iwi:
iii: promoting Māori participation and leadership and te ao Māori approaches in the performance of its functions, as appropriate; and
e: section 20(f)
f: section 31(3)﻿(a)
g: section 38(2)﻿(b)
7: Interpretation
In this Act, unless the context otherwise requires,— agency section 8(1) board board member chief executive of Oranga Tamariki child Children and Young People’s Commission Commission section 11 Children’s Convention Schedule 2 code of ethics section 26 department section 5 former Act Children’s Commissioner Act 2003 harm in care or custody Independent Monitor of the Oranga Tamariki System Monitor section 12(2) inquiry section 20(i) Minister Ministry news activity section 7(1) news entity section 7(1) Ombudsman Ombudsmen Act 1975 Oranga Tamariki—Ministry for Children Oranga Tamariki Act 1989 Oranga Tamariki system section 9 personal information section 7(1) te ao Māori tikanga Māori young person
a: a person aged 14 years or over but under 18 years; and
b: a person aged 18 years or over but under 25 years if they are, or have been, in care or custody.
8: Children’s Convention
1: The Children’s Convention is set out in Schedule 2
2: To avoid doubt, the inclusion of the text of the Children’s Convention in this Act does not affect the legal status of the Convention. 2003 No 121 s 36
9: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1
10: Act binds the Crown
This Act binds the Crown.
2: Children and Young People’s Commission
11: Children and Young People’s Commission established
1: This section establishes the Children and Young People’s Commission.
2: The Commission is a Crown entity for the purposes of the Crown Entities Act 2004
3: The Crown Entities Act 2004 2003 No 121 s 6
12: Commission’s board
1: The board consists of the following:
a: the chairperson, to be known as the Chief Children’s Commissioner; and
b: at least 2, but not more than 5, other board members.
2: Board members are the board for the purposes of the Crown Entities Act 2004
13: Experience and knowledge of board members
1: The Commission must have, on a collective basis, among its board members—
a: experience and knowledge of children’s and young people’s rights and issues; and
b: knowledge and understanding of te Tiriti o Waitangi the Treaty of Waitangi
c: the required skills and leadership expertise to reflect the needs of children and young people of interest to the Commission.
2: At least half of the board members must—
a: have Māori knowledge; and
b: have experience in, and knowledge of, tikanga Māori.
3: This section does not limit sections 29 30
14: Recommendation and endorsement of board members
1: The Minister must have regard to recommendations from a nominations panel when recommending—
a: the appointment of a board member under section 28(1)﻿(b)
b: the reappointment of a board member who has had continuous service of 6 years or more.
2: A candidate applying to be a board member must have the endorsement of a relevant agency specified in regulations made under section 37(1)﻿(a)
15: Nominations panel
1: The chief executive of the Ministry must convene a nominations panel for the purposes of assessing candidates and making recommendations to the Minister relating to appointments under section 14(1)﻿(a)
2: A nominations panel may only recommend a candidate for appointment under section 14(1)﻿(a)
3: A nominations panel must consist of persons who have, on a collective basis, the following expertise and experience:
a: Māori leadership:
b: working with children and young people:
c: governance experience at a board level:
d: appointment and recruitment experience.
16: Appointment of Judge to Commission
1: The appointment of a Judge as a board member does not affect the tenure of their 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).
2: For all purposes, the Judge’s service as a board member is taken to be service as a Judge. 1985 No 151 s 10 2003 No 121 s 7(5)
17: Duties of board
1: The duties of the board are to—
a: build and maintain relationships with hapū, iwi, Māori organisations, organisations representing children’s and young people’s issues, youth-led organisations, community organisations, departments, and other agencies, including by—
i: having a strong focus on the rights, interests, and well-being of Māori children and young people within the context of their whānau, hapū, and iwi:
ii: promoting Māori participation and leadership, and te ao Māori approaches, in the performance of its functions, as appropriate:
b: set strategic priorities and work programmes that support improved outcomes for Māori children and young people within the context of their whānau, hapū, and iwi:
c: have regard to the Children’s Convention as required by section 5(a)
2: The duties set out in subsection (1)—
a: apply in addition to the collective duties of the board set out in sections 49 to 52
b: are collective duties owed to the Minister for the purposes of section 58
18: Independence of Commission
Except as expressly provided otherwise in this or another Act, the Commission must act independently in performing its functions and duties and exercising powers under—
a: this Act; and
b: any other legislation that provides for the functions of the Commission (other than the Crown Entities Act 2004 2003 No 121 s 12(2)
19: Exemption from income tax
The income of the Commission is exempt from income tax. 2003 No 121 Schedule 1 cl 23 Commission’s functions, duties, and powers
20: Function relating to promoting interests and well-being of children and young people
A function of the Commission is to promote the interests and well-being of children and young people by—
a: developing and publishing reports and submissions on issues through a child- and young person-centred lens and, when appropriate, making those reports publicly available:
b: advocating for children’s and young people’s well-being, and their interests collectively:
c: supporting a child or young person to engage with agencies to facilitate the resolution of issues:
d: providing information to members of the public who have questions about matters relating to children’s and young people’s rights, interests, or well-being:
e: raising public awareness and understanding of matters that relate to children’s and young people’s rights, interests, or well-being, including (without limitation) by contributing to public debate:
f: undertaking and promoting research into any matter that relates to the rights, interests, or well-being of children and young people, while giving special attention to te ao Māori:
g: receiving and inviting representations from members of the public on any matter that relates to the rights, interests, or well-being of children and young people:
h: reporting, with or without request, to the Prime Minister on matters affecting the rights of children and young people:
i: inquiring generally into, and reporting on, any systemic matter, including (without limitation) any legislation or policy, or any practice or procedure, that relates to or affects the rights, interests, or well-being of children and young people:
j: presenting reports to proceedings before any court or tribunal that relate to the Children’s Convention or to the rights, interests, or well-being of children generally and presenting 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. 2003 No 121 s 12(1)﻿(g), (k), (l)
21: Function relating to promoting and advancing rights of children and young people
A function of the Commission is to promote and advance the rights of children and young people by—
a: raising awareness and understanding of children’s and young people’s rights, including the rights set out in the Children’s Convention, and advocating for the advancement of the application of the Children’s Convention by the public:
b: monitoring the application of the Children’s Convention by departments and other instruments of the Crown and making reports to the United Nations:
c: raising awareness and understanding of children’s rights and the Children’s Convention and advocating for the advancement of the application of the Children’s Convention, including (without limitation) by departments and other instruments of the Crown. 2003 No 121 s 12(1)﻿(d), (f)
22: Function relating to encouraging children’s and young people’s participation and voices
A function of the Commission is to encourage children’s and young people’s participation and voices by—
a: promoting, in relation to decisions that affect the lives of children and young people,—
i: the participation of children and young people in those decisions; and
ii: best practice approaches to listening to the views of children and young people and taking those views into account:
b: developing mechanisms and means to ensure that the Commission engages and supports children and young people to participate and express their views and be informed by those views in the performance of the Commission's functions:
c: modelling and promoting best practice in children’s and young people’s participation through the Commission’s engagements with children and young people:
d: publishing and sharing the views and voices of children and young people with the general public and relevant groups:
e: providing support and advice to any person, body, or organisation carrying out engagement with children and young people to better hear their views and uphold their rights. 2003 No 121 s 12(1)﻿(j)
23: Additional functions, duties, or powers
1: The Commission must perform any other function or duty and may exercise any other power conferred on it by or under other legislation.
2: See section 7
24: Commission must have regard to rights or interests and welfare of children
When performing its functions under sections 20 21 22 section 23 2003 No 121 s 17
25: Commission must not make adverse comment unless opportunity to be heard is given
Despite anything in this Act or the Crown Entities Act 2004 2003 No 121 s 25 Code of ethics
26: Commission’s code of ethics
1: The Commission must have a code of ethics relating to engagement with other persons carried out by board members and staff of the Commission in the performance or exercise of the Commission’s functions, duties, or powers under this Act.
2: The purposes of the code of ethics are to—
a: ensure safe (including culturally safe) and ethical engagement:
b: provide assurance that the voices of individuals, particularly children and young people, are heard:
c: provide certainty in engagement:
d: minimise the burden of engagement.
3: The code of ethics must—
a: include the information prescribed in regulations made under section 37
b: be reviewed by the Commission at intervals not exceeding 5 years or any shorter intervals prescribed by regulations made under section 37
4: When developing the code of ethics, or any amendments to the code of ethics, the Commission must consult the persons prescribed by regulations made under section 37
5: The Commission must publish the code of ethics on an Internet site maintained by or on behalf of the Commission.
3: Inquiries and other matters
Provisions relating to inquiries by Commission
27: Special powers to call for information or documents
1: If the conditions stated in subsection (2) are satisfied, the Commission may, by notice in writing, require any person—
a: to provide the Commission, or a specified employee of the Commission, with any information that the Commission requires; or
b: to produce to the Commission, or to a specified employee of the Commission, any document in the custody or under the control of that person, and to allow copies of, or extracts from, the document to be made or taken; or
c: to provide the Commission, or a specified employee of the Commission, with copies or extracts from documents in the custody or under the control of that person.
2: The conditions are that—
a: the Commission believes, on reasonable grounds, that the exercise of the powers conferred by subsection (1) is necessary to enable it to carry out an inquiry; and
b: the Commission 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 inquiry, it is necessary to obtain the information or document to verify or refute information obtained from another source.
3: However, the Commission must not require any personal information to be provided under this section unless that information can be provided in a form in which—
a: personal identifiers (for example, name or address) have been removed; and
b: the individual concerned cannot otherwise reasonably be identified. 2003 No 121 s 20
28: Compliance with section 27
1: A person to whom a notice under section 27
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. 2003 No 121 s 21(1), (2)
29: Commission and staff must maintain secrecy
1: The Commission and every employee of the Commission must maintain secrecy in respect of all matters that come to the knowledge of the Commission or the employee in the course of any inquiry.
2: Despite anything in subsection (1), the Commission or any employee of the Commission acting with the authority of the Commission may disclose any matter that, in the Commission’s opinion, ought to be disclosed for the purposes of giving effect to—
a: this Act; or
b: the Commission’s obligations under any other legislation; or
c: information privacy principle 6 set out in section 22
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 Commission by reason only of compliance with a requirement specified in section 27(1)
4: The power conferred by subsection (2)﻿(c) is subject to sections 49 to 53 2003 No 121 s 22
30: Procedure for inquiries
The Commission may regulate the procedure for any inquiry under this Act in any manner, not inconsistent with this Act, that the Commission thinks fit. 2003 No 121 s 26 Information rules
31: Information rules
1: The Commission must make rules ( information rules
2: The information rules must support the performance of the Commission’s inquiry function under section 20(i)
3: When making information rules, the Commission must—
a: make reasonable efforts to consult interested or affected agencies, including hapū, iwi, and Māori organisations; and
b: consult the Privacy Commissioner.
4: Information rules made under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication The maker must publish it in accordance with the Legislation (Publication) Regulations 2021 LA19 s 74(1)﻿(aa) Presentation The Minister must present it to the House of Representatives LA19 s 114 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act.
32: Content of information rules
Information rules made under section 31
a: the collection of information under section 27
b: the methods of collecting information:
c: the use of information (for example, that information may only be used by approved staff):
d: the storage and disposal of information (for example, how information is to be kept separate from other information held by the Commission):
e: the accuracy and completeness of information (for example, procedures for confirming or validating information):
f: the disclosure of information by the Commission:
g: the operational procedures to support the exchange of information between hapū, iwi, and Māori organisations and the Commission. Sharing of information
33: Sharing of information with Monitor and Ombudsman
1: The Commission, the Monitor, and an Ombudsman may share information with each other if the provider of the information believes either or both of the following apply:
a: the sharing of the information would minimise the burden on individuals and agencies:
b: the sharing of the information would assist the Commission, the Monitor, or an Ombudsman in the performance of their functions, duties, and powers.
2: Any information received by the Commission, the Monitor, or an Ombudsman under this Act may only be used in connection with,—
a: in the case of the Commission, the performance or exercise of its functions, duties, or powers:
b: in the case of the Monitor, the performance or exercise of the Monitor’s functions, duties, or powers under the Oversight of Oranga Tamariki System Act 2022
c: in the case of an Ombudsman, the exercise of their jurisdiction under subpart 2 of Part 2 Ombudsmen Act 1975
3: Information may be provided under this section whether or not a request has been made.
4: The Commission, the Monitor, or an Ombudsman may decline a request for the sharing of information under this section.
5: This section overrides section 21 Reports of interference or non-compliance
34: Commission may report interference or non-compliance
1: The Commission may report to the chief executive of a department or an agency, or to any Minister responsible for the department or agency, if—
a: the Commission considers there has been interference with the performance of the Commission’s functions under this Act; or
b: the department or agency has not complied with a requirement from the Commission to provide information under section 27
2: The Commission may publicly notify the matter on an Internet site maintained by or on behalf of the Commission.
3: However, the Commission must not, in any report under this section or any published report, make any comment that is adverse to any department or agency unless the department or agency has first been given a reasonable opportunity to be heard.
4: If a report prepared under this section contains information that may identify an individual, the information must be redacted or withheld from publication unless—
a: the individual concerned consents to their personal information being included in the report; or
b: the Commission or the chief executive of the department or agency (as applicable) considers that the public interest in including the personal information in the report outweighs the individual’s privacy interests.
5: However, the exception in subsection (4) may not be relied on if the information may identify any child or young person. Referrals
35: Referral of matters
1: If, when performing functions under this Act, the Commission considers that the subject matter relates (whether in whole or in part) to a matter that is more properly within the scope of the functions of a person or body specified in subsection (4), the Commission must, without delay, consult that person or body to determine the appropriate means of dealing with the subject matter.
2: As soon as practicable after consulting the person or body, the Commission must determine whether the subject matter should be dealt with, in whole or in part, under this Act.
3: If the Commission determines that the subject matter should be dealt with, in whole or in part, by one of the persons or bodies specified in subsection (4), the Commission must, without delay,—
a: refer the subject matter, or the appropriate part of the subject matter, to that person or body; and
b: give written notice of the referral to the individual who brought the matter to the Commission’s attention.
4: The persons and bodies are—
a: the chief executive of Oranga Tamariki:
b: the Independent Monitor of the Oranga Tamariki System:
c: an Ombudsman exercising jurisdiction under subpart 2 of Part 2 Ombudsmen Act 1975
d: the Chief Commissioner under the Human Rights Act 1993
e: the Director-General of Health:
f: the chief executive of Health New Zealand:
g: the chief executive of the Māori Health Authority:
h: the Health and Disability Commissioner:
i: the Secretary for Education:
j: a board constituted under subpart 5 of Part 3
k: the Commissioner of Police:
l: the Independent Police Conduct Authority:
m: the Privacy Commissioner:
n: any other person or body that the Commission considers appropriate. 2003 No 121 s 19 Miscellaneous
36: Proceedings privileged
1: No civil or criminal proceedings may be brought against an employee or officeholder for anything done or omitted in the performance or intended performance or exercise of any functions, duties, or powers under this Act, unless it is shown that the person acted in bad faith.
2: No employee or officeholder may be called to give evidence in court, or in any proceedings of a judicial nature, in respect of anything that comes to their knowledge in the performance or exercise of their functions or powers under this Act.
3: Nothing in subsection (1) or (2) 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 or attempting to commit an offence against any of the provisions specified in paragraph (a).
4: Nothing in subsection (2) applies to a report made by the Commission under section 20(j)
5: Sections 122 to 126
6: This section contains an exception to section 121
7: Anything said or any information supplied by an individual or agency in the course of an inquiry by the Commission under this Act is privileged in the same manner as if the inquiry were a proceeding in a court.
8: For the purposes of clause 3
9: In this section,— employee officeholder 2003 No 121 s 27
37: Regulations
1: The Governor-General may, by Order in Council, make regulations for all or any of the following purposes: Relevant agencies
a: specifying, for the purposes of section 14(2) Code of ethics
b: prescribing the information that must be contained in the Commission’s code of ethics:
c: prescribing, for the purposes of section 26(3)﻿(b)
d: prescribing any 1 or more persons that must be consulted when the Commission is developing its code of ethics or any amendments to the code of ethics: General
e: providing for anything this Act says may or must be provided for by regulations:
f: providing for anything incidental that is necessary for carrying out, or giving full effect to, this Act.
2: Regulations made under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act.
38: Review of Act
1: The Minister must arrange for an independent review of the operation and effectiveness of this Act and the operation of the Commission under this Act.
2: The review must consider—
a: whether the functions, duties, and powers set out in this Act are supporting the Commission to give effect to the purpose of this Act; and
b: whether the Commission is working effectively with hapū, iwi, and Māori organisations; and
c: whether any amendments to this Act are necessary or desirable; and
d: any other matters that the Minister considers appropriate, after consulting the Commission and other Ministers of the Crown with relevant portfolios, as necessary.
3: The review must commence no later than 3 years after the commencement of this Act.
4: The findings of the review must be reported to the Minister.
5: The Minister must present a copy of the report on the review to the House of Representatives as soon as practicable after receiving the report.
4: Amendments to other legislation and repeal
Amendment to Oranga Tamariki (Residential Care) Regulations 1996
39: Principal regulations
Section 40 Oranga Tamariki (Residential Care) Regulations 1996 2023-07-01 Oranga Tamariki (Residential Care) Regulations 1996 could come into force earlier by OIC. See s 2(a)
40: Schedule amended
In the Schedule the Children’s Commissioner or Consequential amendments and repeal
41: Consequential amendments
Amend the legislation specified in Schedule 3 2023-07-01 Children’s Act 2014 Coroners Act 2006 Corrections Act 2004 Crimes of Torture Act 1989 Crown Entities Act 2004 Health and Disability Commissioner Act 1994 Human Assisted Reproductive Technology Act 2004 Ombudsmen Act 1975 Oranga Tamariki Act 1989 Public Safety (Public Protection Orders) Act 2014 Remuneration Authority Act 1977 Substance Addiction (Compulsory Assessment and Treatment) Act 2017 Education (Hostels) Regulations 2005 Oranga Tamariki (Residential Care) Regulations 1996 could come into force earlier by OIC. See s 2(a).
42: Repeal of Children’s Commissioner Act 2003
The Children’s Commissioner Act 2003 2023-07-01 Children’s Commissioner Act 2003 could come into force earlier by OIC. See s 2(a)