Criminal Justice Amendment Bill (No 7)

I move, That the House take note of the report of the Health Committee on the Criminal Justice Amendment Bill (No 7). The bill reforms Part 7 of the Criminal Justice Act, which deals with mentally impaired persons who come before the courts charged with criminal offences. The provisions of Part 7 have remained largely unchanged since the 1950s, despite the significant changes that have occurred in the treatment of people with mental illness over that period. Part 7 covers three situations. Firstly, when a trial cannot proceed because the defendant is unfit to stand trial due to his or her mental condition; secondly, when a defendant is acquitted of an offence on the grounds of insanity; and, thirdly, when the court considers that an offender convicted of an imprisonable offence would be better detained in a psychiatric hospital or a care facility than in a prison.

The most important changes made by the bill relate to those who are intellectually disabled. The Mental Health (Compulsory Assessment and Treatment) Act generally excludes from its ambit those whose mental impairment is solely due to an intellectual disability. This recognises that the intellectually disabled need different types of care than the mentally disordered. The exclusion of the intellectually disabled from the 1992 Act, however, was not followed with legislation that specifically provided for offenders with intellectual disabilities. Limited options have therefore been available to the courts in dealing with these offenders. As a result, they have often been inappropriately sent to prisons or to psychiatric hospitals. The bill, along with the related provisions in the Intellectual Disability (Compulsory Care) Bill, makes specific orders available to the courts for the intellectually disabled who are charged with criminal offences.

The bill also contains a significant new safeguard for defendants who are unfit to stand trial. Current legislation allows the detention of people found unfit to stand trial without any inquiry into their actual responsibility for the offence. This creates a risk that people may be detained in circumstances where they did not commit the offence with which they are charged. The bill includes a new provision so that people cannot be detained following a finding of unfitness to stand trial, unless there is sufficient evidence, on the balance of probabilities, that they are responsible for the offence.

The new Part 7 also contains a number of other important changes. Firstly, there is a new procedure for entering a verdict of not guilty on the grounds of insanity, where both the prosecution and the defence agree, on the basis of expert evidence, that it is the only reasonable verdict. This removes the need for a jury trial in situations where the defendant’s mental condition at the time of the offence is not in doubt. It will alleviate unnecessary stress and trauma for mentally impaired defendants, as well as victims and witnesses.

Secondly, courts are specifically empowered to hear evidence from a wide range of health professionals in determining the appropriate disposition of a mentally impaired offender. As recommended by the select committee, health professionals preparing assessment reports must also consult, where practicable, with the person’s family or whānau, and, as appropriate, with parents, guardians, or caregivers.

Thirdly, courts will have the ability to order that a convicted offender receive treatment or care in a psychiatric hospital or secure facility while also being subject to a prison sentence. As the select committee pointed out, this will allow the court to ensure the offender does receive treatment or care, rather than joining the backlog of people in penal institutions awaiting transfer for treatment.

I commend the select committee for the detailed attention it has paid to the bill. The committee has recommended amendments that improve the workability of the bill and ensure that the rights of the mentally impaired are protected.

Since the committee considered the bill, there have been changes in the criminal justice law, including the passage of the Sentencing Act, the Parole Act, and the Victims’ Rights Act. The passage of these Acts means that some amendments are now required to the bill, which I propose to do by way of a Supplementary Order Paper.

Firstly, I propose that an amendment be made to turn the bill into a stand-alone Act, and that the title of this Act be the Criminal Procedure (Mentally Impaired Persons) Act. Apart from Part 7, most of the provisions of the Criminal Justice Act have either been repealed by the Sentencing Act and the Parole Act, or will be repealed by the Corrections Bill. It is now appropriate to remove Part 7 from an Act with criminal justice in its title to avoid the misleading impression that those whose mental state make them non-culpable are subject to criminal sanctions. Amendments required to take account of the Sentencing Act, the Parole Act, and the Victims’ Rights Act include the removal of amendments that were to be made by the bill, which have since been made or superseded by the Sentencing Act or the Parole Act. Amendments must also be made so that the three Acts apply to the intellectually disabled in the same way that they apply to the mentally disordered.

I also intend to propose three other amendments to address issues that have been identified since the bill was reported back. Firstly, an example in clause 4 of the proposed Supplementary Order Paper of when a person will be found unfit to stand trial will be removed, because it does not assist in clarifying what the law sets out. This example relates to a defendant’s ability to make an informed decision about giving evidence.

Secondly, an amendment will be made to clause 23 to provide the court with discretion to remand a person who has been found unfit to stand trial, or not guilty by reason of insanity, in a hospital, secure facility, or on bail, while inquiries are made about the most suitable method for dealing with him or her. In deciding whether to grant bail, clause 23 will specify that the need to protect the public is the paramount consideration.

Thirdly, an amendment will be made to allow access to assessment reports for providers who have offenders subsequently transferred into their care from the facility to which they were first sent under an order of the court.

This bill, along with the proposed Supplementary Order Paper, updates and modernises the law. It provides a regime to ensure the appropriate care of the mentally impaired, while at the same time providing safeguards for the protection of the public. I commend this bill to the House.

I am one of the members who was on the Health Committee that originally heard this bill. It was introduced by the Rt Hon Wyatt Creech in response to some serious cases. One was a lad called Stephens whose parents had tried to care and look after him. This young lad grew into a rather large adult who was very difficult to contain. He had an intellectual disability. But, as Mr Goff said, at the time the mental health legislation was changed, intellectual disability was quite correctly removed from the definition of a mental illness. A person with an intellectual disability is quite different from a person with a mental illness. So we saw that there was a gap in the law, and, because of that gap, this legislation has come forward. It provides the ability for a defendant who, on the grounds of either mental illness or intellectual disability, is unfit to plead to be put into different forms of care rather than prison.

For someone who has an intellectual disability, going to prison is a very serious event. Those people are vulnerable, and are abused in a prison situation. I myself know of cases from when I was a geriatrician. I was seeing an elderly couple who were caring for their son. The mother had a stroke, and the father, who was in his 90s, died suddenly. This man, who was in his 40s, all of a sudden had all his supports removed. His behaviour deteriorated markedly. Once his behaviour had deteriorated he started committing offences, and he ended up in prison. It was a very unacceptable situation for such a vulnerable person. Under this bill, when such a person is found guilty he or she can be cared for in an appropriate facility that cares for people with an intellectual disability and gives 24-hour cover and care.

However, I have to say I am staggered that the Hon Phil Goff has tabled a Supplementary Order Paper that is 44 pages long, and has pretty substantial amendments. We have not had time to look at those. There is no select committee process for them. This legislation is a serious issue. It talks about what is happening with people’s lives—the ability to incarcerate them, to take away their rights—about protecting society, and about looking at how the mental health system works. Supplementary Order Paper 161 should not have been dropped on us at this stage. I ask the Minister of Justice how many years he has had to get these amendments before us. He has had 4 years to get these amendments before us so that we could look at them and so that the select committee could process them. But that has not happened. The Minister has just tabled these amendments.

Members should look at the first amendment. It states: “To omit from subclause (1) the words ‘Criminal Justice Amendment Act (No 70 1999’ … and substitute the words ‘Criminal Procedure (Mentally Impaired Persons) Act 2003’.” What does that mean? Does the Minister actually understand the definitions?

💬 Hon Phil Goff: Yes, I do understand.

I do not think the Minister does understand them. Does “mentally impaired persons” mean somebody with an intellectual disability, or does it mean someone who has a psychiatric illness? The whole point of this bill—of everything we did in the select committee—was to ensure that those two definitions were never together, because those who have a mental illness are totally different from those who have a mental disability. The Minister lumps them back together because he does not understand the issues. That is just an example of what happens when one tables a Supplementary Order Paper like this. I think it is absolutely unacceptable.

We are talking about mental illness and people going into forensic care—not going to prison, but going into forensic care because they have been found not guilty on the grounds of insanity. Let us look at the Paul Ellis case, which was reported back today. This Government is totally failing New Zealanders in mental health—absolutely totally failing New Zealanders and their families. There were massive problems with the care of Paul Ellis, whose family suffered the price. His father died because he was not listened to. Paul Ellis was released within 72 hours of his having been put under a compulsory assessment and treatment order. That should not have happened. I have a member’s bill that would have stopped that. It provides that people will be detained for 72 hours for assessment, which allows time for the families to be involved in their care. Families know a great deal about people with mental illness. If they were listened to, we would not have tragedies such as Mark Burton killing his mother, Paddy. If Trevor Burton, his father, had been listened to, that would not have happened.

In 1997 National moved an amendment to require that families be consulted, but that is not happening. It did not happen in the Burton case. It did not happen in the Ellis case. It is time that this Government took mental illness and mental health seriously. The fact that a Supplementary Order Paper is tabled just before an urgency motion, just before we are about to debate the bill, and after the Government has had 4 years to introduce those amendments, shows what little respect the Government has for the needs of those with a mental illness and their families.

When Paul Ellis was admitted to hospital the psychiatrist did not have time to assess him. He sought judicial review, and the case came before a judge. The facts about his mental illness were not available to be placed before the judge. He was released and his father suffered the price. I think every New Zealander has huge sympathy for that case. These families are suffering. There have been nine cases like this in the last few years.

We know that people with a mental illness generally are no more dangerous than anybody else. They have an illness. But there is a group of young men, generally under 30 and often with drug and alcohol problems, who do pose more of a risk. They must be identified, and they must be able to be held by forensic services. It is no good our waiting, when this bill becomes an Act of Parliament, till they come before the justice system, because by that time the public—generally, it is the families—will have paid the price through murder and attack. That is why we must see some changes to the Mental Health (Compulsory Assessment and Treatment) Act.

The Criminal Justice Amendment Bill (No 7) that we have before us was differentiated from the Intellectual Disability (Compulsory Care) Bill. At the select committee—and I do not know whether my colleague Paul Hutchison, who was on the committee with me, remembers this—the Government tried to do something very sneaky. The Government tried to have suspended sentences of imprisonment abolished altogether from the bill. It tried to sneak that in. Does the member remember that?

💬 Dr Paul Hutchison: I do, yes.

We talked about Carla Cardno and her stepfather, who had threatened to attack the killer of Carla Cardno if he was released. The stepfather was given a suspended sentence. This Government tried to abolish that form of sentence, without putting that amendment through due process. Once again, it tried to sneak something through without due process—without those who are involved, those who understand, being able to look at and scrutinise the legislation and have their say through the select committee process. It was a very poor way to treat the select committee process.

We will be supporting the Criminal Justice Amendment Bill (No 7) because it was part of a National Government bill that looked at correcting many of the problems that occurred due to the fact that, when intellectual disability was taken out of the jurisdiction of the Mental Health (Compulsory Assessment and Treatment) Act, there was no further legislation to enable somebody with an intellectual disability to be put into a secure facility that was not a prison but provided care and rehabilitation for that person. Because of that, we will support this bill. But this whole procedure of changing this bill with a huge Supplementary Order Paper is not acceptable. I would like the Minister to take a call, and tell us why he did that and why he did not consult.

It is a bittersweet pill seeing the bill on the floor today. I guess it is sweet because finally the House can say that something is being done to address the anomalies in the way in which mentally ill people and people with intellectual disabilities are handled once they become criminals.

We have to rewind the clock, go right back, and answer a couple of simple questions. Why are we passing legislation such as this? The answer is that we have created a situation where mentally unwell people are put in situations where they cannot help but become criminals. In Parliament, Labour started the nonsense. It would not listen to people in the industry who had been caring for mentally unwell people for generations. No, in the years of cost cutting and finding a corporate manner in which to deal with health services, Labour amended the mental health and disability legislation, led by that astounding Minister of Health whose greatest claim to fame is closing 29 hospitals. She has now been surpassed; her Minister of Education is about to close 200 or so schools. Those guys will have their names chiselled on a granite headstone, because that is where they deserve to be for the pain they have inflicted upon the New Zealand public.

Members should cast their minds back to Sunday night and the three families shown on the television programme Sunday. [Interruption] Now it is hurting; up come the chickens squawking. That party is responsible for much of the pain in our communities that has resulted from the changes brought about by the deinstitutionalisation led by Helen Clark and supported by her entire Cabinet, then picked up by Jenny Shipley and supported by people like Ruth Richardson.

I remember when I was a new, fledgling member of the Labour Party, trying to talk to our Minister of Health about reviewing her commitment to deinstitutionalisation. I had spent days and months listening to the Templeton parents association, which predicted that those changes would end up criminalising their children and family members who had intellectual disabilities, because they knew no better; by being put into the community, that is the very sort of thing they would be exposed to. The parents’ big concern was the lack of support for their children once they were in the community, because we know how that works. The association predicted those things. I came back from the Middle East and it was telling us that, in 1990.

I fronted up to Helen Clark at a meeting in Shirley, at a community hall, where she was supporting David Caygill in an election campaign. I had had a chat with Mike Moore, who was the leader at the time. He had told me to talk to Helen Clark, and had said that if she changed her mind, then Labour would change the policy and go with her. I had told him that as Labour’s candidate I would not advocate Labour’s policy on deinstitutionalisation. I spoke to that woman and her answer was absolutely dismissive. Her answers to staff and nurses who stood up at that same meeting and asked her whether she would keep the Templeton Centre open were an absolute dismissal of their professional concerns.

Where are we today? When people like Marc Alexander and the Law and Order Committee go to Auckland to visit the remand prison and talk about inmates there who have disabilities and mental problems, the prison tells them that anything between 12 and 23 percent of its inmates have mental disabilities. The staff members tell us those people should not even be in our prisons. Where are we today? When we visit police stations and talk to bobbies who patrol our streets, they tell us they are sick and tired of picking up the pieces of a failed deinstitutionalisation policy led by politicians who have no care, concern, or heart for the victims of those horrendous crimes, or their families.

What do we read today in the paper? I will take a simple press release. The Ministry of Health says it accepts an inquiry’s findings that no one is to blame for serious failings in the south Auckland mental health service 2 years ago. That is becoming a hallmark of the Labour Government. Nobody is to blame for anything, unless National is in Government and Christine Rankin is involved. With finding after finding and inquiry after inquiry, we can talk about the “goon squad” and about mental health failings till the cows come home, but nobody is to blame. I will tell members who is to blame. Helen Clark is to blame for a myopic, idealistic focus on deinstitutionalisation that has resulted in murder and homicide victims from one end of this country to the other. The Government accepts no blame. Well, the public does not think so.

The only thing I can say about this debate we are having now is that it is good we finally have this bill after 4 years of the Government sitting on its backside and doing nothing. We rammed through a sherry tax in the dead of night, in a 24-hour session to get it through, but when it comes to an issue such as this where families have had members murdered, where a woman was stabbed through the chest with a chisel and had her head cut off, and her daughters found her in the bath, it can wait for a jolly sherry tax. Well, hip, hip, hooray; the Government certainly has its priorities totally stuffed up.

One thing I will not let that party get away with is that it totally rejected every concern raised by nurses, clinical professionals, and people who had worked in the mental health services for years, in pursuit of its ideology. Today we are picking up the pieces and the tragedy is they are human pieces. They are pieces of someone’s family. If Government members think this is the end of it, I am sorry to say to them that it is not, because the fundamental problem has not been resolved. The Government will close Kimberley and it will not listen to anybody. It has this view of institutions. It opposed the construction of Brackenridge Estate, which New Zealand First got as a concession from the National – New Zealand First coalition Government. It works well. The parents are happy and the families are happy. The question we have for that lot over there is why could the same facility not be built up north in Auckland, Palmerston North, and other places where families do not want—

💬 Hon Roger Sowry: In Levin.

And Levin. Families do not want their children or their loved ones who have mental disabilities and intellectual disabilities criminalised because they are let out into a “care less in the community” programme where, time after time, they are failed. It is so ironic that the Labour Party, which champions itself as the heart, conscience, and mind of New Zealand, cares so little about the victims of the crimes committed by those people.

The nonsense is that the patient is a victim as well. We should talk to the families who have suffered the heartache of seeing their loved one dragged before a court to face charges for something that would never have happened had he or she been held in care in an institution. But we must not use that word; it is a dirty word. We will call it an asylum, a sanctuary, or what one will. If that party thinks that care in the community, in a community house with one-eighth of an acre of land around it, is better than the facilities that there used to be at Kimberley and Templeton, it is absolutely nuts. At least those people could roam over grass expanses. At least they had the swimming pool, the church, and other facilities. All that we had to do was to bulldoze the old facilities and replace them with something modern and efficient, but, oh no, the Labour Party will adhere to its blind ideology, despite the fact that the British Labour Party has since recognised the error of its ways and has reversed its policy.

Deinstitutionalisation is not a bad policy. What is bad is the blind, myopic view of total deinstitutionalisation, the belief that there is not room for a place for people who need constant, 24/7 care because they are fragile. Those people are not able to operate in the community because they will be victimised by normal people who take advantage of them. I have only to mention Mr Truscott to make my point.

I rise briefly to indicate that the Green Party will be supporting the Criminal Justice Amendment Bill (No 7), which saw its genesis long ago, under National in 1999. It is astonishing that we are now dealing with it under urgency in October 2003. Nevertheless, it is high time we plugged the gap in legislation in terms of dealing with major criminal offenders who are also intellectually impaired. As others have pointed out, there has been a real problem in that, since 1992, there has not been a legal means by which judges and courts can deal properly with intellectually disabled offenders. Because such people were removed from coverage by the Mental Health (Compulsory Assessment and Treatment) Act, they were also excluded from section 7 of the Criminal Justice Act, leaving a gaping hole in terms of procedures for dealing with them.

Although, of course, the Green Party has no problem at all with the fact that this group was left out of the mental health legislation for the very good reason that intellectual disability is not a mental illness—a fact apparently not realised by the previous speaker—it has been most unfortunate that a small number of people have ended up being inappropriately placed in mainstream prisons or detained as special patients in mental health units. Even now we continue to hear all too often of prison cells becoming a dumping-ground for people for whom there is simply no other place to go, and it is an indictment on our society that we have allowed that to continue into the 21st century.

Our one main concern about this bill and the accompanying bill, which we are about to deal with, is the level of resourcing and the preparedness of the infrastructure to support adequately the accommodation needs of intellectually impaired offenders once these bills become law. The Government tells us that a regional intellectual disability care agency has been established in four health regions, and that a number of new services have been set up, including so-called community secure accommodation, independent supported living services, and respite care services. However, word is that hospital-level secure services, which, in many of these cases, are what is needed, are still at an early stage of development. The Green Party certainly encourages the Government to do everything it can to resource the provision of those services at a fully adequate and appropriate level with as much haste as is practical.

We welcome the changes that have been made to this bill and to its accompanying legislation, the Intellectual Disability (Compulsory Care) Bill, that mean that the bills will no longer include compulsory care for adult non-offenders or under-17-year-olds who have not committed serious offences. It is good that the Government listened to submissions from the Council for Civil Liberties, the Human Rights Commission, and others that raised undeniable arguments as to the ethics and legality of placing people who have not carried out major criminal acts into what is, in effect, a term of imprisonment. The Green Party also supports Supplementary Order Paper 161, which, among other things, allows the courts more discretion about where they remand people who are found unfit to stand trial or not guilty on the grounds of insanity, and also allows service providers to have access to assessment reports provided by previous facilities. Those are simply common-sense amendments, and I commend them and the bill to the House.

I rise on behalf of United Future to support the consideration of the report on the Criminal Justice Amendment Bill (No 7). I would like to confine my comments during this debate to some of the main points in the bill and some of the changes recommended by the Health Committee, before taking a call in the debate on the third reading to talk about the general issues that the bill raises in relation to the criminal justice and health systems.

As noted by previous speakers, the legislation augments the procedural safeguards for the treatment of intellectually disabled persons who appear before the court charged with an offence. Perhaps the most important thing to bear in mind when considering this bill is the requirement to find a balance between the need to detain offenders for the sake of public safety, and the need to ensure that mentally impaired offenders are treated appropriately.

Under the Criminal Justice Act, if a court is satisfied that a defendant is mentally disordered it may determine that that person is unfit to stand trial, or acquit him or her on the grounds of insanity. The difficulty arises in the definition of “mentally disordered”, in that it does not include those whose impairment is solely caused by an intellectual disability. The distinction is an important one, as those who have an intellectual disability are not considered to be treatable, which has some fairly obvious consequences for the way in which those offenders are dealt with. It also means that intellectually disabled offenders could be made to stand trial even when, because they cannot construct a defence or instruct counsel to do it for them, they are not fit to do so. The bill gets round this by changing the term “mentally disordered” to “mentally impaired”, as recommended by the Law Commission in its 1994 report on mental health and criminal justice issues.

An important change made by the committee was to ensure that those who know the defendant’s personal history and condition the best, such as caregivers and family, are consulted when a health assessment is being made for the court. If a defendant is found to be unfit to stand trial, he or she will be made subject to either an order for compulsory care if intellectually disabled, as provided for in the accompanying Intellectual Disability (Compulsory Care) Bill, or compulsory treatment in the case of those with mental illnesses, as provided for under the Mental Health (Compulsory Assessment and Treatment) Act. But in order to balance that desire to ensure appropriateness of care and attention, the threshold for determining whether the accused is physically guilty of the crime is somewhat lower than normal. It is based on the balance of probabilities rather than on the absence of reasonable doubt. In light of the incapacity of the defendant to undergo trial, this is a practical change that keeps the need for community safety uppermost. There is an appeal process available to defendants, on the basis that there may be insufficient evidence to convict or that the defendant is unfit to stand trial.

On the other hand, to ensure that being found to be unfit to stand trial is not a softer option, the maximum period of imprisonment is being increased from 7 to 10 years. Once again, to balance out the need for public safety, the bill extends the period in which a person may be remanded to a hospital or secure facility from 7 days to 30 days, which allows the court sufficient time to assess the most appropriate method of dealing with a defendant.

Under the Intellectual Disability (Compulsory Care) Bill, the court will have an extended range of options made available to it. The bill also allows offenders to receive treatment at the same time as being subject to a prison sentence. One of the difficulties with the current system is that the courts cannot ensure that the offender is both punished and treated, leading to a backlog of people in prisons awaiting transferral to a hospital.

It is important to acknowledge that when we talk about offences committed by the genuinely intellectually impaired we are actually talking about a small number of cases. At times such as this, the tragedy is not limited to the victims—although I firmly believe that their needs should be paramount—but also extends to the fact that those crimes would not have occurred if the offenders had been receiving appropriate care. Ron Mark raised a few points and—although without quite so much exuberance as he exhibited—I have to say that there are some people for whom community care is simply not feasible. It is inefficient. It may be that institutional care is the only appropriate means by which to keep them.

We commend this bill.

I rise to speak on the Criminal Justice Amendment Bill (No 7) on behalf of the ACT party. The ACT party will be supporting this bill, as will all the other members in the House. I congratulate the National Party, and especially Wyatt Creech, who is no longer with us, on bringing this bill before the House.

💬 Dr Lynda Scott: He’s still alive, though.

He is still alive, and I am pleased to say that. I commend him for bringing this bill to the House. It makes a good deal of sense. I will not go over the points that the other members have made but, in particular, I am very pleased with the provision for compulsory treatment to run concurrently with the prison sentence. As Marc Alexander has just said, people can be both treated and punished now, whereas previously that was sometimes not the case. The prison sentence will now run while the person is in hospital or in secure care. If the need for treatment or care ceases, the person will be transferred to a prison to complete any remaining period of the prison sentence, and that is as things should be.

However, while supporting the bill, I would like to ask the Minister of Justice, as others have, why it has taken this Government so long to get to this point, and why we are sitting here at 10 minutes to 11 at night—

💬 Hon Phil Goff: You guys never vote for overtime. You vote against every motion ever passed to take urgency, then you wonder why you don’t get progress.

It would be good if the Minister would stand and take a call when it is his turn. In fact, I would like to say it has taken—[Interruption]

I raise a point of order, Mr Speaker. I must say that while we are having running commentaries from both sides of the House I am finding it very difficult to speak myself.

Members will allow you, and so will I, to continue in relative silence.

💬 HEATHER ROY: It is good to be able to be heard again. This Government has taken 4 years to get to this point. It is becoming something of a trend for this Government to drop long Supplementary Order Papers on the Table the day before a bill is to be heard. The one quite recently, just a couple of weeks ago, that I recall was the Gambling Bill. There were not 44 pages but 65 pages of Supplementary Order Paper that made significant changes to the bill. Fortunately, the changes to this bill are not quite as significant as that, but in a democracy this is not acceptable. Mr Goff stood up and commended the select committee for its hard work. I am not sure why he bothered commending anybody for hard work, when he has introduced a new Supplementary Order Paper to replace the bill. Why did—[Interruption]

The ASSISTANT SPEAKER (Hon Clem Simich): Mr Goff, speakers are clearly not heeding your advice.

💬 HEATHER ROY: Quite right. Anyway, it is very good that, even after 4 years, this Government has managed to bring this bill finally before the House, although changes do need to be made. People with intellectual disabilities should be separated from those with mental illnesses, although this Government does not have a good record in dealing with matters of mental illness. As Dr Lynda Scott said previously, the Paul Ellis inquiry, the report on which was released today, is a good indication of this. There are serious problems with the mental health system, and it is important that we should note these when we debate matters of mental illness. What we have at the moment is a fragmented system that is failing the truly vulnerable in our society.

This stems from two main causes, but there are others that are relevant. The first is that we have a chronic shortage of staff in this country. It is quite right that those with intellectual disabilities should be housed in separate units, but the difficulty is there are not enough mental health staff at the moment to staff the facilities that do exist, so quite where those staff will materialise from is anybody’s guess. We train our health professionals for export at the moment. We train them, and give them very good training, they immediately see that their opportunities, in terms of both working conditions and pay, are much better overseas, and off they go. The second thing is that there are not enough beds as it is, and that is part of the reason that ACT welcomes this bill. There will be more beds, despite the staffing difficulties, but at the moment what is clogging up the system is long-term patients in acute beds. When psychiatrists in particular are faced with a patient who needs inpatient care, there is nowhere to place that patient. We have a fragmented system, not one that patients can enter and flow through as they should be able to. That is a serious failing and is part of the reason that there is a cycle of tragedy in this country when it comes to mental illness.

The cycle of tragedy was pointed out to New Zealand in December 1998 by the then Opposition health spokesperson, Annette King. She criticised the then National Minister of Health for what he had described as the cycle of tragedy. A tragedy happened, blame was apportioned, there were inquiries, and reports were written that went nowhere and addressed very little. When another tragedy happened the whole cycle started again. That was a fairly accurate description of what was happening at the time. But what is happening now? There is exactly the same cycle of tragedy. The Opposition health spokesperson at the time, Annette King, said that this is no way to run a health system. What do we have now? There is no change—absolutely nothing is different. There is a cycle of tragedy and, if anything, the cycle of tragedy is worse now than it was then.

If we move on to intellectual disability, which is what this bill is mainly about—the proper and humane treatment of those with intellectual disabilities—we can talk too about community care and deinstitutionalisation. I would not go quite as far as my colleague Ron Mark from New Zealand First did. He indicated that the whole thrust of deinstitutionalisation had been a mistake. I think of it more as a pendulum. Previously, there were too many people living in institutions who could have been incorporated into the community. But the problem is that deinstitutionalisation was the politically correct thing to do, so the pendulum swung the other way completely. We are now at the point where there are not enough beds, as I said before. There are not enough beds for the acute patients or the medium-term patients, or indeed the long-term patients—the people who will be very difficult to incorporate into society.

If we look not far up the road, at the Kimberley Centre, we can see that it illustrates this point beautifully. Those who have been easy to re-establish into the community have now moved into the community, and are being very well catered for. By and large they get the support they need. But there is a group of people now left in that institution who are very difficult to place. The local community is in uproar, of course, because those patients need a great deal of care. They will be housed out of the Kimberley Centre so that it can be disestablished, and they will find it extremely difficult to integrate into the community. In fact, we might find that they are the very people whom this bill has been written for; people who, without the adequate support that they need, which in many cases is institutional care, find themselves in positions where they become criminals and are in need of the very facilities that the Minister is advocating now.

Ron Mark also pointed out that the Ministry of Health accepts no blame for anything, and that nobody is to blame for anything. That is a very convenient situation for the Government, is it not? Nobody is to blame for anything. I welcome some of the report’s recommendations. I was pleased to see that at least it had not blamed the mental health workers who are holding this system together—those at the coalface who are the last to see the patient. At least, the report did not blame them. What it should have done is blame the system that those people have to work in; the system that is failing the patients, the families of those patients, and also the staff who are expected to work within that system. The cycle of tragedy will continue until the Government addresses the real problems of mental illness.

I would like to finish by saying that we do in fact support the Criminal Justice Amendment Bill (No 7). It will bring forward some very sensible changes that should have been made long ago, and my criticism is that it has taken the Minister of Justice 4 years to get to this point, which is shameful.

I am delighted to take a quick call on this bill, because I am one of three current parliamentary members who were on the original select committee. I would like to clarify a couple of points.

I would like to acknowledge Wyatt Creech, who worked very constructively with Annette King when we come into Government. This was a top-priority bill, and we decided to send it to the committee, where it had full support, I must say. The committee worked in great accord on the bill.

The bill fits a small niche of people with intellectual disability—it has nothing to do with deinstitutionalisation, which Mr Mark seemed to confuse it with. A small group of up to a hundred people with an intellectual disability have been quite incorrectly housed when they get into difficulties with the law. Provision for housing has been carried over in the Budget, to build appropriate supported residential care for this very small group of people.

It is a great bill. It is a bill on which we should not be bitterly divided. The committee worked in accord on the bill and saw it as a very high priority. The gap concerned Wyatt Creech; it took 7 years to work up the bill so it could go to the select committee. Three years later we are now debating it in the House. I am delighted to support this bill.

Members of the community with intellectual disabilities will be thrilled about this bill, because they have always felt they are muddled up with people with mental ill-health. They do not fit that community of interest as a client group. They came before us and urged the passage of this bill, and will be very delighted with its outcome when it is passed into law.

Under urgency at 11 p.m. we are debating the Criminal Justice Amendment Bill (No 7). Laughter is coming from the Labour front bench, but I do not see anything funny. I do not think that the name of this legislation does justice to the human tragedy we are talking about in the bill. I hope that Labour Party members will have a change of heart and listen carefully.

I want to use my 10 minutes to tackle two issues. The No. 1 issue is the process of this bill, and the No. 2 issue is its substance. The Hon Phil Goff in Opposition would have shown passion and outrage if any other party had dared to let this important human tragedy bill languish in Parliament for 2½ years. When National was in Government in 1999 we brought in this bill because we knew there was a situation out there in which mentally impaired individuals who should not have to stand trial, had had to. The Rt Hon Wyatt Creech introduced the bill in 1999. I looked through the bill’s report-back from the Health Committee. It did a good job. It put forward amendments to make the bill more workable.

The bill was reported back to Parliament on 30 April 2001. The Hon Phil Goff has blamed National and Opposition parties for not agreeing to an urgency motion to debate this bill earlier. How many sittings under urgency did Labour have to wait through before it brought this bill back? It has waited for 2½ years, and now has come to Parliament to say that it has to bring in a Supplementary Order Paper of 44 pages—the same number as the original bill—without it being subject to the scrutiny of the select committee. Labour can blame the process and say that changes have happened in the world. Of course changes will have happened after 2½ years! Of course the world will have moved on—apart from the Labour Party! The Hon Phil Goff was outraged and asked why we could not just trust Labour to introduce 44 pages of Supplementary Order Paper. It is nothing new, so why can we not trust Labour? It is obvious why a person like me is full of scepticism. We heard the Hon Pete Hodgson bring in a “fart tax” of $8 million, because he said that the farming community contributed to research funding to the tune of only $800,000. Now the Government is saying that it looks as though farmers have contributed about $5.4 million. The Rt Hon Helen Clark has said that in terms of free-trade agreements Labour was not doing too badly, alongside Australia. We notice that the single example she was using was the Singapore free-trade agreement. Negotiations for that were started under National, when we were in Government. So with those types of outrageous claims, why should we trust the word of the Labour Government that this Supplementary Order Paper will not contain any surprises?

The abuse of the process is starting to get to a point where the public has simply had enough. We had the question of the Supreme Court, about which 80 percent of people said that the whole matter should have been subject to a referendum and that people should have had a say, but the Labour Government would not heed a word of it. This bill is a continuation of abuse of the process in which the Health Committee had done its job, amended the original bill, then reported back to Parliament on 30 April 2001—2 years ago. Now this Minister says that because it is 2 years since that process, an amendment is necessary, and he has not referred the bill back to the Health Committee for a proper process to be carried out. But I support quite a lot of what was said. I think it was said with sincerity, and with a lot of passion, by my colleague from New Zealand First Ron Mark. In fact, we are looking at “the fence at the bottom of the cliff”. Why do some of these individuals have to come before the court? I share Heather Roy’s view that we cannot say the whole deinstitutionalisation process was wrong, but certainly the pendulum has gone too far, and Labour—despite whatever claims it made when it was in Opposition—after 4 years has done nothing to address the human tragedy that continues to happen.

Today we have heard the inquiry results of Paul Ellis, a psychiatric patient who suffers from mental illness and who killed a family member. I agree that it is totally unsatisfactory once again to say that the system failed the individual. Accountability seems to be something that is now totally missing from this Labour minority Government. The report findings of this sad case say that it was due to the acute shortage of resourcing of mental health services. How many times did we hear outrage from the Hon Annette King when she was in Opposition? How many times did we hear promises that she would fix the mental health services? But after 4 years, we have not seen an improvement, and we continue to see individuals falling through the cracks. We continue to note the Labour minority Government announcing one inquiry after another. It is washing its hands by spending more and more money on inquiries, but it is not addressing recommendations and solutions to the issues.

I hope that the Minister, when we commence the Committee stage, will take this Parliament seriously and explain in detail what is in the 44 pages of Supplementary Order Paper. But, more than that, I think the Minister owes the public an explanation about why this bill—which is dealing with some of the saddest human tragedy in New Zealand—was sitting on the parliamentary Order Paper for 2½ years. Does Labour not find our mentally impaired individuals important enough human beings for that bill to have been passed a lot earlier? I hope that United Future stops complimenting the Labour minority Government on this bill, because it was totally outraged tonight that Labour was trying to rush through a 44-page Supplementary Order Paper on a very good bill that was introduced by the National Government in 1999, examined by the Health Committee, and reported back to this House in 2001. Although we will support the bill, we think the Minister owes the House the duty to take it fully through the Supplementary Order Paper. The Labour minority Government should at least pretend that it respects the process of the Committee stage.

I am delighted to stand in support of this bill.

National and New Zealand First wish to split the next call to have a 5-minute speech each; the first by Mr Dail Jones and the second by Dr Paul Hutchison.

The ASSISTANT SPEAKER (Hon Clem Simich): The next call will be split; 5 minutes each, and the bell at 5 minutes.

Thanks to members of the House, Mr Tisch, and Dr Hutchison for coming to this arrangement. This bill is new to me, so I have obviously been spending a little time going over it. I have been trying to come to grips with it and with the 44 pages of Supplementary Order Paper. I asked myself what the process was when the previous bill, the Criminal Justice Amendment Bill (No 7), was considered by the Health Committee. What happened in that select committee, and why could this amendment to create a new Act not be sent to the Health Committee? Was it such a long process on the previous occasion? Did the committee spend hours and hours on it? Did it get 360 submissions, as we sometimes get in the Justice and Electoral Committee? Will it take weeks for this to be resolved?

I looked at page 15 of the commentary on the Criminal Justice Amendment Bill (No 7), and what did I find? The commentary states that the Health Committee received and considered eight submissions from interested groups and individuals. It states: “We heard five submissions orally. Hearing evidence took one hour and five minutes and consideration took eight hours and forty minutes.” There is absolutely no reason why this bill, with a Supplementary Order Paper, cannot be returned to the Health Committee so that for 1 day interested parties can make a quick comment on this legislation before it is returned to the House. Yet 2½ years or so after it came back to the House, we are given a Supplementary Order Paper, on the same day as today, 21 October, and we are told that it must be rushed through the House. What is wrong with the bill going back to the committee so that Associate Professor Warren Brookbanks, the National Network of Stopping Violence Services, the Auckland City Council, the Human Rights Commission, the New Zealand Law Society, Mrs L D Orr, the Royal Australian and New Zealand College of Psychiatrists, New Zealand Branch, and the Mental Health Commission can have a look at? It will not take long. It is a simple matter, and there will be proper consultation.

We make a mockery of Parliament, and we all make fools of ourselves with this type of legislation. It is no wonder parliamentarians have a bad name. It is due to the actions of the minority Labour Government failing to consult the community and being very reticent in consulting the community. Mrs Chadwick can turn up her nose at submissions—she does not want it to go back to the Health Committee. She is not interested. She knows it all. She knows absolutely everything there is to know about this matter. She does not want the advice of people like Associate Professor Warren Brookbanks, or the Mental Health Commission. It would take one quick meeting of the Health Committee, and the matter would be back in the House within no time at all. Parliament would have done its job and we would have had consultation.

I seem to recall that once upon a time a Supplementary Order Paper like this would have been out of order. We would never have dreamt of putting a Supplementary Order Paper of 44 pages before the House. It just would not have happened. But, today, this minority Labour Government has no regard for Parliament or the people of New Zealand. This type of legislation is rammed through, under urgency, at this hour of the night, in the hope that no one notices what is happening. Tomorrow morning, or on the following day, the people involved in this area will suddenly discover that a bill has been passed—at last, for we have heard that this bill seems to have taken about 10 years to get to this stage. If it has taken 10 years altogether, then why can it not have 1 day in front of the Health Committee so that people can make submissions on it?

What does the Supplementary Order Paper actually do? As its explanatory note comments—and the explanatory note takes up barely half a page of its 44 pages—we will now have a new Act called the Criminal Procedure (Mentally Impaired Persons) Act. I am not sure that the term “mentally impaired” was the intention of the select committee. I ask Mrs Chadwick, who claims some knowledge of the bill, whether she agrees with the comment on page 3 of the commentary on the bill that: “The term ‘mental impairment’ should be left undefined to avoid the possibility of leaving an unintended gap in the legislation”. This legislation seems to be a contradiction of the work she allegedly did in the select committee—that is, if she can remember ever doing anything in the select committee, other than going along with the Labour Party viewpoint. Why can this bill not go back to the select committee so it can be reminded of what has been involved?

This is a very important bill. I well remember that in 1999 the Health Committee worked very well together, and Steve Chadwick pointed that out. However, it is a huge anomaly that finally, 4 long years later, here we are, under urgency, addressing this very important matter, but with no consultation on a Supplementary Order Paper of 44 pages.

Let us have a look at the commentary, in which Mrs Judy Keall had quite a lot to say. She said: “Occasionally Government departments”—and I will add Governments as well—“will propose substantive and significant changes to bills after select committees have finished hearing submissions.” She went on to say: “We disapprove of that practice. Committees are not simply vehicles for Government amendments to legislation: they are committees of Parliament with a duty to scrutinise legislation and provide for public input so that New Zealand is provided with the best legislation possible, reflecting a wide range of interests. Our process of select committee scrutiny and consultation is widely recognised as one of the most important aspects of our constitutional framework.”

Well, here is a clear abuse of that process by the Labour Government. No matter what Government members might say about their Supplementary Order Paper, it is very unfortunate that it is on a matter as important as this. It relates to distinguishing between those with intellectual impairment and those with mental illness, or even distinguishing between those who have a combination of the two. It requires huge skill and a great deal of thought to be able to transfer that into sensible legislation. There was good cooperation 4 years ago, and that was great, but to suddenly have this Supplementary Order Paper imposed on Parliament, under urgency, is inappropriate and an example of how this tawdry Labour Government, which is becoming more and more arrogant by the day, treats such a serious matter.

Let us look at the Supplementary Order Paper. Apparently the Criminal Justice Amendment Bill (No 7) is now to be called the Criminal Procedure (Mentally Impaired Persons) Bill. But if we go down to the fourth part of the explanatory note, I see that one of the reasons for the Supplementary Order Paper is to remove the current requirement that persons found unfit to stand trail, or who are acquitted on a count of insanity, must be remanded to a hospital or facility while inquiries are made to determine how they should be dealt with. Instead of the mandatory remand provisions, the Supplementary Order Paper gives the courts the option of remanding such persons on bail.

However, in deciding whether to grant bail, the need to protect the public is “the paramount consideration”. Here we have the Minister of Justice saying, quite rightly, that the need to protect the public is important, but he is also saying that it is “the paramount consideration”. In this circumstance, it is not just the need to protect the public; it is the need to ensure that those individuals who might be incarcerated or put into a treatment facility under this bill are, indeed, appropriately and fairly treated.

To say that this is “the paramount consideration”, where there are clearly balancing and conflicting considerations, is quite inappropriate. This is the quality of the Supplementary Order Paper that the Labour Minister of Justice, under urgency, has put on the Parliament, and that is quite wrong.

The debate having concluded, the motion lapsed.

Bill to proceed.

Procedure