Special protection measures - UNCROC - Sixth Periodic Report by the Government of New Zealand 2021

Reply to Asylum-seeking, refugee and migrant children - 26(a)

Section 9A of the Immigration Act 2009 defines a “Mass Arrival Group” as a group of more than 30 people who travel to New Zealand together or in associated groups and who, in terms of section 115, are unlawfully in New Zealand. Immigration Instructions set out the residence policy for those who arrive in a Mass Arrival Group and include temporal limitations on wider family reunification. Under instruction C8.5, unaccompanied minors (under the age of 18, not married or in a civil union) are excluded from these instructions and therefore not subject to the limitations on family reunification.

Reply to Asylum-seeking, refugee and migrant children - 26(b)

The rights of the child are a primary consideration in immigration decision making but are not an overriding consideration.

Read information about visa applications for dependent children

Reply to Asylum-seeking, refugee and migrant children - 26(c)

The Immigration Act 2009 sets out the procedures to be followed for a minor making a refugee or protection claim and these are reflected in Immigration Instructions.

Claims for refugee and protected person status are assessed individually in New Zealand. Immigration New Zealand’s (INZ) Refugee Status Unit (RSU) adopts the principle that it is in the child’s best interests to have a determination process where they are provided an opportunity to express their views, and that those views and their individual circumstances are taken into account independently in the decision. In the case of unaccompanied minors, the RSU has a legislative obligation [1] to ensure that they are properly represented during the claim process.

The RSU has published Guidelines on Children and Minors in the refugee status determination process to assist decision makers, child claimants, their parent/s or responsible adult, and representative.

Reply to Asylum-seeking, refugee and migrant children - 26(d)

The all-of-government New Zealand Refugee Resettlement Strategy provides the framework to improve refugee settlement outcomes so that refugees are able to contribute and to participate in communities and have a sense of belonging to New Zealand. The Strategy’s outcome areas directly relate to and support refugee children to settle in New Zealand, including education, housing, health and participation. Refugee and protection claimants are eligible to access government-funded assistance, including publicly funded health care, income support and (in the case of children) education in the compulsory sector. For example, refugee families may be eligible for a non-recoverable grant of up to $5,000 to support their establishment in the community.

INZ has established a Senior Civil Detention and Welfare Advisor role, who is responsible for assisting refugee and protection claimants with their support needs (including disability). This includes unaccompanied minors and children.

MOE funds targeted assistance to meet all children’s individual needs, including disability support and English language support.

Reply to Children belonging to minority or indigenous groups - 27

1. The legislation established Te Mātāwai, a new organisation to lead revitalisation of te reo Māori on behalf of iwi and Māori. This is the vision of a new Māori language strategy called the Maihi Māori Strategy that was developed by and for iwi, Māori and Māori language communities.
2. Oranga Tamariki has specific legislative obligations to have regard to many Māori cultural principles under the OTA. See reply to paragraph 9(a).
3. A set of five objectives have been developed to guide Oranga Tamariki workers on how these principles can be practically applied (the Mana Tamaiti objectives [pages 40-53]). These are focused on tamariki Māori, but aspects can be applied to all children.
4. The CYWS, once fully implemented, should influence the business planning, including legislative, policy and service development for all relevant government agencies, and guide decision-making. Several of the Strategy’s principles reflect the importance of identity for Māori children. One of the outcome areas of the Strategy is that all children and young people are “accepted, respected and connected” which includes having connection to their culture, language, beliefs and identity, including whakapapa and turangawaewae (a place to stand).
5. The Oranga Tamariki Voices of Children and Young People team undertakes research and engagement projects with tamariki and rangatahi in care to better understand their needs and experiences and advocate for their voices to be heard and responded to. Some of the insights gained from specific cohorts in care include the voices of tamariki and rangatahi Māori, Pacific children and young people and the voices of disabled children and young people.
6. For Pacific children, the Action Plan for Pacific Education is in place. It has the vision that “Diverse Pacific learners and their families are safe, valued, and equipped to achieve their education aspirations”. This was designed together with Pasifika learners, families and educators through two years of fono (meetings) across the country and research regarding best practice.

Reply to Economic exploitation, including child labour - 28(a) to 28(e)

New Zealand’s existing policy and legislative framework continues to provide age thresholds for entry into work in general, and for safe work.

New Zealand has not ratified the International Labour Organisations Minimum Age Convention, 1973 (No. 138). Rather than legislate for a single minimum age of employment, New Zealand has a range of protections and restrictions on young people’s work, mainly regulated by a combination of education and health and safety legislation.

The Education and Training Act 2020 mandates that all children in New Zealand attend school between the ages of six and 16 to ensure that young people achieve a proper education before entering the workforce. In addition, employers are explicitly prohibited from employing children under 16 during school hours or when it would interfere with their attendance at school.

The Government is committed to securing the health and safety of all young workers. New Zealand’s consistent approach to children’s employment is that our existing policies and legislative framework provides effective age thresholds for entry into work in general, and for safe work. The Health and Safety at Work Act 2015 covers all types of working relationships and arrangements, including casual contracts.

The Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 places restrictions on hiring children under the age of 15 to do certain work such as logging, construction and manufacturing - or any other work that is likely to cause harm. Further regulations protecting young people in the Health and Safety at Work (General Risk and Workplace Management) Regulations 2016 apply to workers under any type of contract.

As part of our ongoing regulatory reform programme, we are considering a range of aspects of youth health and safety at work, including the current settings for:

• how best to support young people transitioning into hazardous work
• how hazardous work is defined in a regulatory sense
• the age of entry to hazardous work.

MBIE’s Labour Inspectorate is responsible for enforcing compliance with employment standards to prevent and detect breaches. The Labour Inspectorate has a webpage dedicated to raising awareness for the rights of young people at work and prioritises its work through the application of three filters, one of which is ‘Vulnerable Youth’. This filter ensures that any employment standards breaches relating to young workers are dealt with swiftly through the enforcement tools available to the Labour Inspectorate.

The Starting-Out Wage replaced the new entrants’ minimum wage and training minimum wage for under 20s in 2013. The Starting-Out Wage is aimed at reducing unemployment rates for 16 to 19-year-olds, particularly those at risk of long-term labour market disadvantage from prolonged unemployment and spells of inactivity. This is to be achieved by improving incentives for employers to give work opportunities to the targeted young people. These young people may be paid 80% of the minimum wage for the first six months of their employment or for as long as they are undertaking training involving at least 40 credits a year. However, if the young person is undertaking a supervisory role, they must be paid the same minimum wage that over-20s are entitled to.

Reply to Administration of child justice - 29(a)

Following New Zealand’s third Universal Periodic Review in January 2019, New Zealand agreed to consider whether the current minimum age of criminal responsibility, ten years of age, should be increased to align with international standards. The Government is currently monitoring the progress of the Council of Attorneys-General Age of Criminal Responsibility Working Group review led by Western Australia. 

It should be noted that very few children go through the youth justice system. The majority of children who offend aged between 10-13 will receive a warning or alternative action by Police Youth Aid. If a child’s offending raises serious concerns for their wellbeing, a family group conference can be convened to make a plan for the child’s wellbeing. This involves the child being dealt with under the care or protection system rather than through the Youth Court.

Children may be referred to Oranga Tamariki for an intention-to-charge family group conference, or be brought before the Youth Court, if they are:

• 10 or older and are alleged to have committed murder or manslaughter
• 12 or 13 and alleged to have committed a serious offence that carries a maximum term of imprisonment of 14 years or more
• 12 or 13, have previously offended and been dealt with via the care or protection or Court system, and are alleged to have committed a serious offence that carries a maximum term of imprisonment of 10 years or more.

17-year olds who commit very serious offences (as listed in Schedule 1A of the OTA) will have those charges transferred to an adult court following first appearance in the Youth Court. This allows for offending by the oldest cohort, on the most serious end of the scale to be heard by a higher court.

Reply to Administration of child justice - 29(b)

In 2019, the OTA was changed to include most 17 year olds in the youth justice system. This means most children and young people, where logistically possible, are separated from adult offenders while on remand, appearing in court, and in custody.

Given New Zealand’s relatively sparse population, particularly in some large geographical areas, mixing is sometimes considered to be in the best interests of the child, young person or staff member’s wellbeing.

Some examples of where age-mixing may occur in New Zealand include:

• in detention to and from fixed places (e.g. by Police transport where a mix of young people and adults are arrested as a result of the same offence/s)
• under exceptional circumstances, if a 17 year old poses an unmanageable risk to other young people in a Youth Justice residence, they can be placed in a Corrections Youth Unit
• mixing in facilities due to the small number of cells available in a region, combined with the relatively long distance to a suitable placement (in Police and Court facilities) [2]
• mixing where it may be clinically and developmentally appropriate for a child or young person to undertake a brief (24–48 hour) local admission at an adult health facility with access to a special and separate care area.

The decision to age-mix is a complex one. The young person’s wellbeing will play a significant role in this decision, of which a factor is the young person’s connection to their whānau, whakapapa, and whenua which may influence decisions on where to detain the child.

Reply to Administration of child justice - 29(c)

The principles of the OTA provide that children (10–13 years old) and young people (14–17 years old) should be kept in the community as far as is practicable and consonant with public safety. When held in custody, children and young people are mostly held in a community-based remand home or a youth justice residence as these are more appropriate than detaining a child in a Police cell.

Oranga Tamariki is working towards more community-based options as an alternative to detention in custody. These community-based options aim to provide a more child and young person centric placement and ensure that young people’s connection to their whānau are upheld and strengthened. In turn, this aims to improve the wellbeing of young people who are held on detention.

A child or young person who is arrested by Police may be held for up to 24 hours in police custody while waiting for placement with the chief executive of Oranga Tamariki where:

• the Police officer believes on reasonable grounds that the child or young person may not appear before the court, may commit further offences, or detention is necessary to prevent loss or destruction of evidence or interference with witnesses; or
• where they have been arrested for repeated breaches of bail and are likely to continue breaching (section 235 OTA).

In limited cases where there are no suitable facilities for the safe custody available to the chief executive and a young person is likely to abscond or be violent, a joint certificate can be issued by the chief executive and a senior Police officer to enable the young person (aged 14–17) to be held in custody for longer than 24 hours and until the next court appearance (section 236 OTA). A Youth Court reviews this continued detention every 24 hours unless clearly impractical. A young person must be brought before the court as soon as possible. Once brought before the Court there is the possibility of a young person being further detained in Police custody.

Reply to Administration of child justice - 29(d)

The Ngāpuhi-led remand service, Mahuru, launched in October 2019, is a remand service for tamariki of Ngāpuhi decent who commit a crime and are placed on remand. This service has been built by listening to our partners as they know what works for the young people and whānau with whom they work. In turn, this helps ensure the best outcomes for young people, whānau, and victims.

As of July 2020, Oranga Tamariki is working with a range of iwi and Māori organisations on youth justice placements, and transition support workers in order to better support young people, whānau and victims of youth crime to restore mana to tamariki and rangatahi. There have been no instances of suicide in any Oranga Tamariki institution since 2005.

TPK is undertaking Paiheretia te Muka Tangata – Uniting the Threads of Whānau, a $35 million investment in a multiagency whānau-centred approach that aims to improve outcomes for Māori under 30 and their whānau engaged with the Corrections system. This approach will support improved outcomes for Māori in the youth justice system.

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Footnotes

1. Section 375, Immigration Act 2009. Return to text
2. Sometimes there are only a small number of cells available in regional Courts, where young people may be temporarily held while they await a Court hearing. Young people will be held in a separate cell but may be in close proximity to adults in cells. A small spike in volume of young people or adults on a specific instance can mean some young people may need to be held alongside adults. At the same time, we do not consider moving young people to more distant courts (where more space may be available) is desirable as this may remove the young person from their whānau and home community. Return to text