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Legislation Note
LEGISLATION NOTE
Vulnerable Children Act 2014
ANDREW GRANT*
I INTRODUCTION
New Zealand's performance in measures of child well-being has
historically been among the worst in the OECD.' Amidst renewed
public outcry over New Zealand's failure to safeguard against the
abuse of our most vulnerable, the Government introduced the
Vulnerable Children Bill in September 2013. The Bill became the
Vulnerable Children Act 2014 (VCA) and passed into law on 1 July
2014. As described by the Children's Action Plan, a document that
accompanied the VCA upon its assent, the new Act aims to address
New Zealand's high rates of child abuse and "forms a significant part
of comprehensive measures to protect and improve the wellbeing of
2
vulnerable children and strengthen our child protection system".
This note will examine what is an important and much-needed
piece of legislation. First, it will consider the legislative scheme for
protecting children prior to the enactment of the VCA. Secondly, it
will detail the background and legislative process that culminated in
the VCA becoming law. Thirdly, it will analyse the key features and
implications of the VCA as enacted, before drawing final conclusions
as to the contribution of the VCA to the protection of children from
violence and abuse in New Zealand.
II LEGISLATIVE LANDSCAPE PRIOR TO THE VCA
The VCA's measures were, as evidenced by the nature of
parliamentary debate on the legislation, largely directed towards
addressing a perceived lack of communication and responsiveness on
the part of state agencies charged with monitoring the welfare of
* BA/LLB(Hons) student at the University of Auckland.
I OECD "Comparative Child Well-being across the OECD" in Doing Better for Children (OECD Publishing,
Paris, 2009) 21 at 23.
2 Ministry of Social Development "About the Vulnerable Children Act 2014" (February 2015) Children's
Action Plan <www.childrensactionplan.govt.nz>.
Auckland UniversityLaw Review Vol122 (2016)
vulnerable children. 3 The key enactment prior to the VCA for the
protection of vulnerable children was the Children, Young Persons,
and Their Families Act 1989 (CYPFA), which governed the
permissible scope of state activity in identifying and protecting
children whose circumstances put them at risk of harm.
The state agency primarily responsible for dealing with reports
of child abuse or neglect, Child, Youth and Family (CYF), was tasked
with responding to over 22,000 cases reported each year between
2010 and 2013. 4 The CYPFA's delegation of this responsibility to a
single agency, coupled with a lack of standardised monitoring or
prevention regimes in other government agencies, meant that the
systems were considered to have been "failing" as a scheme for
protecting children. 5 Indeed, in the five years preceding the first
reading of the Bill, more than 50 New Zealand children had died as a
result of abuse or neglect. 6 Even subsequent to the VCA's passing into
law, New Zealand has maintained the fifth worst record for violence
against children in the OECD.7
III BACKGROUND AND LEGISLATIVE PROCESS
Against this background, the Ministry of Social Development issued a
White Paper for Vulnerable Children outlining the concerns and
failings identified in an earlier Green Paper assembled from public
submissions. 8 Chief among these concerns was the need for shared
responsibility and collaboration among state agencies dealing with
children, and for a coordinated monitoring regime of those who
interacted with children through these agencies. Changes proposed in
the White Paper for Vulnerable Children included "a cross-agency
care strategy [...] from government child protection, health and
education agencies", a reformed process for "vetting and screening
people working directly with children" and a tiered set of "core
competencies and minimum
9
quality standards [...] within the core
children's workforce".
The Minister for Social Development, the Hon Paula Bennett
MP, introduced the Bill on 2 September 2013, and it was referred to
3 (17 September 2013) 693 NZPD 13382-13404.
4 (17 September 2013) 693 NZPD 13383.
5 (15 April 2014) 698 NZPD 17280.
6 (17 September 2013) 693 NZPD 13382.
7 Katie Kenny "Child homicide in New Zealand: How do the numbers compare internationally?" (21
November 2015) Stuff <www.stuff.co.nz>.
8 Ministry of Social Development "The White Paper for Vulnerable Children" (11 October 2012) [White
Paper].
9 At 19.
Legislation Note
the Social Services Select Committee on 17 September. The
Committee returned its report on 25 March 2014 after considering 115
public submissions.' 0 The Bill enjoyed cross-party support throughout
its passage through into law, and received 105 votes in favour on each
of its readings. Only the Green Party and the Mana Party opposed the
Bill, which passed a third reading on 19 June 2014, and received the
Royal assent on 30 June 2014.
Public and parliamentary attention towards the Bill during its
passage through parliament largely centred around two key issues.
The first was whether a proposed feature of the new law, a new
judicial power to issue orders known as "Child Harm Prevention
Orders", would be included in the final version of the new law. 1 It
was proposed that this mechanism would allow courts to restrain or
prohibit those subject to the order from having contact or interaction
with specified children or classes of children if it could be shown that
they posed a risk of harm to those children. Concerns from opposition
parties over the low threshold and wide scope of this measure saw it
removed at Select Committee stage, a decision supported by the
12
Minister of Social Development.
The second controversial aspect of the Bill was the scope and
ambit of the protective and supervisory measures that did survive
Committee scrutiny. The Labour Party, for example, criticised the
definition of "vulnerable" provided in the Bill.1 3 Despite supporting
the measures taken, Labour MP Sue Moroney noted during debate that
"[w]e did have the opportunity ... to actually address the issues that
do make 285,000 children in this country vulnerable, but instead the
Government has chosen to do some things to assist 30,000 who are
deemed to be at risk". 14 The class of children that the Bill "prioritised"
were considered by those in opposition to be too narrow. 15 Further, the
Government faced criticism for excluding volunteers from the class of
public-sector workers who would face renewed monitoring against
16
child abuse when in contact with children.
10 Vulnerable Children Bill 2014 (150-2) (select committee report) [Social Services Committee Report] at 12.
11 (17 September 2013) 693 NZPD 13382.
12 Social Services Committee Report, above n 10.
13 (15 April 2014) 698 NZPD 17278-17279.
14 (15 April 2014) 698 NZPD 17276.
15 (13 May 2014) 698 NZPD 17801-17813.
16 (13 May 2014) 698 NZPD 17804-17806.
Auckland University Law Review Vol 22 (2016)
IV KEY FEATURES AND IMPLICATIONS OF THE VCA
The passing of the VCA into law has two important effects on the
legal landscape of child protection and abuse monitoring in New
Zealand, both of which require closer examination. First, the
legislation compels the creation of "child protection policies" among
state agencies, the chief executives of which are mutually responsible
for those policies' implementation. 17 Second, the VCA introduces a
new mandatory screening regime for those working or seeking to
work in state agencies involving contact with children. 18 As
mentioned, the VCA does not include protection order mechanisms
proposed during the original drafting of the Bill. This omission also
requires closer analysis.
Child Protection Policies and Joint Responsibility
Part 2 of the VCA sets out a new requirement for a number of state
agencies that a cross-agency "child protection policy" be created and
implemented within the operation of each agency. This requirement
applies to the Ministries of Business, Innovation and Employment,
Education, Health, Justice and Social Development, as well as Te Puni
Kbkiri and the New Zealand Police. 19 Importantly, the VCA institutes
joint accountability among the chief executives of these state agencies
for the creation and implementation of these child protection
policies. School boards and District Health Boards are also required
to adopt such policies "as soon as practicable". 2 1 Further, any
organisation contracted or funded by any of these state agencies is
bound to comply with the children protection policy of that agency.22
The envisaged content and effect of a child protection policy is
not immediately clear from the language of the VCA itself.
Accompanying documents from the Ministry of Social Development
direct that child protection policies must "contain provisions on
identifying and reporting child abuse and neglect" so as to assist
agency staff to prevent such harm. 23 Policies developed subsequent to
the passing of the VCA typically detail behaviours associated with
neglect and abuse in children and provide a guide to best practice for
17 Section 16.
18 Sections 25-27.
19 Section 15. See also Ministry of Social Development "Child protection policies" (24 August 2016)
Children's Action Plan <www.childrensactionplan.govt.nz>.
20 Section 16.
21 Sections 17 and 18.
22 Section 16(b).
23 Ministry of Social Development, above n 19.
LegislationNote
staff in reporting, intervening and preventing abuse once identified.24
Many policies also deal with confidentiality requirements, complaints
about fellow staff and model approaches when dealing with
25
vulnerable children.
The implementation of child protection policies in agencies
such as the Ministries of Health and Education is a major step in
identifying and preventing abuse and neglect. The concept was
criticised by opposition MPs in Parliament, largely on the basis that
such policies, which s 20 of the VCA confirms do not create
enforceable legal rules, arguably do not go far enough in addressing
the underlying causes of abuse and neglect. 26 Concerns also arose,
particularly from New Zealand First, around whether such policies
were extensive enough to provide adequate training for staff to
respond effectively to instances of neglect and abuse, and whether the
agencies to which the policies applied were so limited that many
instances of abuse and neglect would remain unreported. 27
Nonetheless, pt 2 of the VCA reflects something of a standardised
commitment to awareness and prevention of child abuse in state sector
organisations, and is thus a roundly positive feature of the legislation.
Children's Worker Safety Checking and the Workforce
Restriction
Part 3 of the VCA introduces a mandatory safety-checking regime for
any individual paid by a government agency to work with children
and who is considered to have "primary responsibility" for children in
the course of that work. 28 Such checks must be carried out by all
"specified organisations", which are defined in the legislation as
including all state services and departments, as well as all
organisations which receive state funding and which employ
individuals to interact regularly with children. 29 Government figures
from 2014 estimated that 280,000 individuals would need to be safety
30
checked under the new regime.
The VCA makes clear that the requirement for specified
organisations to conduct safety checks applies to both new and
existing workers, and must be repeated every three years. Compliant
safety check procedures involve requiring a current or prospective
24 See, for example, Ministry of Education Child ProtectionPolicy (June 2016).
25 See, for example, Ministry of Social Development ChildProtectionPolicy (15 September 2015).
26 Social Services Committee Report, above n 10.
27 (13 May 2014) 698 NZPD 17804-17806.
28 Section 23.
29 Section 24.
30 Ministry of Social Development "Safety Checking and the Workforce Restriction"
<www.childrensactionplan.govt.nz>.
Auckland University Law Review Vol 22 (2016)
employee to provide proof of identity, his or her employment history
and a character referee. 3 1 Further, the employer must conduct an
interview, seek a police report into the worker's criminal history and
provide a report32 as to the organisation's assessment of the worker's
risk to children.
Subject to an exemption provision in s 35, safety checks
operate to give effect to the VCA's new workforce restriction. 33 In
essence, a safety check of a current or prospective worker revealing
that the individual concerned has been convicted of a "specified
offence" will preclude that individual from beginning or continuing to
work at the organisation. 34 A list of "specified offences" is provided in
sch 2 to the VCA. This schedule primarily applies to individuals
convicted of sexual and indecency offences under the Crimes Act
1961. It is an offence for a specified organisation both to employ a
worker who will work with children without conducting a safety
check and35
to employ a worker who has been convicted of a specified
offence.
Like the child protection policy regime, this standardised
method of screening workers in state and state-funded organisations is
an important step in ensuring that children are never exposed to
individuals who would do them harm. It was suggested by the
opposition that the legislation ought to institute a registration scheme
for "core" child workers, and that not doing so represented a missed
opportunity to regulate the quality and monitoring of the industry. 36 It
was further argued that the fact that the safety checks did not apply to
volunteers or private-sector organisations unnecessarily limited the
ambit of the regime. 37 Both points certainly have merit, and it may be
the case that future legislation is now better placed to deal with such
concepts with the passing of the VCA.
The Status of Prevention Orders
As mentioned earlier in this note, early drafts of the Bill featured a
new power for courts, on application from the Ministry of Social
Development, to impose restrictions or prohibitions on individuals'
contact with certain children or classes of children if the Ministry
could demonstrate a sufficient level of risk to the children in
31 Section 31; and Vulnerable Children (Requirements for Safety Checks of Children's Workers) Regulations
2015.
32 Vulnerable Children (Requirements for Safety Checks of Children's Workers) Regulations 2015.
33 Section 28.
34 Section 28.
35 Section 28(10).
36 (17 September 2013) 693 NZPD 13390-13391.
37 (15 April 2014) 698 NZPD 17275.
LegislationNote
question. 38 The removal of these "Child Harm Prevention Order"
mechanisms came as a result of opposition from both members of
Parliament and the public during submissions. 39 The Labour Party
noted that the proposed orders represented "a significant departure
from the usual tests and thresholds" of the New Zealand justice
system, and expressed particular concern at the ability of a judge to
impose such orders on the basis of evidence which had not necessarily
been properly tested at trial, or on the basis of alleged behaviours that
had not been proven to the criminal standard.4 °
Nonetheless, the Prevention Order mechanism received
support among groups representing the interests of children, making
its removal from the Bill at Committee stage surprising to some
extent. The Green and White Papers upon which the Bill was largely
based lent support to the concept of a Prevention Order, arguing that it
gave much-needed powers to courts, CYF and the Ministry of Social
Development in counteracting abuse and neglect before serious harm
occurred.41 It was argued by many groups that prevention orders were
a necessary and effective means of 'stopping harm before it started',
and that without such measures in the Bill, safeguards against abuse of
children would continue to be effective only after the abuse had
occurred and the case had passed through the justice system. By this
point, it was argued, it was often too late to reverse the damage done
by individuals to children in their care.
Of course, a mechanism which would have allowed a judge to
inhibit the rights of an individual on the basis of untested evidence is
inherently inconsistent with a number of fundamental legal principles.
However, there is certainly merit in the argument that measures of the
kind proposed in the original Bill were necessary, and therefore that
the removal of the child harm prevention order mechanism at the
behest of opposition parties was a missed opportunity to approach the
core of child abuse. It is suggested that the introduction of a modified
version of such an order scheme which more closely aligns with the
principles of criminal and natural justice may be a positive move in
future legislative steps of this kind.
38 (17 September 2013) 693 NZPD 13384.
39 Social Services Committee Report, above n 10.
40 Social Services Committee Report, above n 10.
41 White Paper, above n 8.
42 (15 April 2014) 698 NZPD 17265.
Auckland University Law Review Vol 22 (2016)
V CONCLUSION
It is clear that New Zealand's record of violence and abuse of our
most vulnerable is a blight on our social fabric requiring urgent
attention. The VCA represents an attempt to address this record, and
undoubtedly takes active steps to ensure that the public sector is
uniform and vigorous in identifying and preventing abuse as soon as
possible. However, the VCA has been criticised since its enactment
for not doing enough to address underlying causes of abuse, as well as
for its limited "paid public sector" ambit. These criticisms are not
without merit. It is hoped that the safety checking and harm
prevention policy mechanisms arising out of the VCA have a
meaningful impact in reversing historical trends of child abuse, and
that further steps might be taken by Parliament in the future to ensure
that risks to children of harm in non-public spaces are identified and
stopped before it becomes too late to do so.
