Criminal Justice Amendment Bill (No 7)

It is with pleasure that I begin the debate on the Committee stage of the bill. Members will note that the Supplementary Order Paper in the name of the Hon Phil Goff omits from clause 1 the words “Criminal Justice Amendment Act (No 7)”, and substitutes the words “Criminal Procedure (Mentally Impaired Persons) Act”. That means that this will not be an amendment bill; it will become a separate bill, in its own right.

This bill will be welcomed by judges, who have been working under a difficult situation. It amends the principal Act to allow people who are mentally impaired by insanity—by a mental illness—or by intellectual disability, the ability to have the defence of being unfit to stand trial on either of those grounds. If that is found, and the court is satisfied that the defendant who has been involved in an offence either has a severe mental illness and is insane, and therefore is unfit to stand trial, or has an intellectual disability that makes that person unaware of the consequences of his or her actions, then that person can be found not guilty on those grounds but be placed in an appropriate level of care to protect the community.

I am very concerned that the proposed amendments to the Criminal Justice Act on the Supplementary Order Paper remove the requirement that persons found unfit to stand trial, or acquitted on account of insanity, must be remanded to a hospital or facility while inquiries are made to determine how they should be dealt with. That is the way the bill was, but it is now to be changed to allow the courts to decide whether to grant bail and whether a person can then go back into community care.

Understandably, the need to protect the public is paramount. However, I have immense concerns about this. We have just had the report on the case of Paul Ellis, who was considered to have a mental illness. His family approached psychiatrists and doctors for care. He was committed to a hospital to be assessed under the Mental Health (Compulsory Assessment and Treatment) Act, but he sought a judicial review. He managed to get that review after only a very few hours in hospital. The doctors had not had time to complete an appropriate assessment, so, when Mr Ellis came up before the judge, he was discharged. The very sad and tragic consequences were that he then attacked and killed his father.

The amendments on the Supplementary Order Paper allow a judge to discharge somebody, or to grant bail and let him or her back into the community, before inquiries can be made to determine how he or she should be dealt with. Sometimes that takes time. We know that our facilities are full. We know that we do not have enough resources. Therefore, we may not have the beds. If we do not have the beds in, say, an intellectually disabled care facility that gives 24-hour locked care, what will happen? Pressure will be on for those people to go back to their families. That is what we wish to avoid. We want to be able to put people in a situation where a care plan can be made. If someone has an intellectual disability and his or her behaviour deteriorates to the point where he or she ends up before a court due to having broken the law because of assault, indecent exposure, or other anti-social behaviour, then in that situation it can take time to put together an appropriate care plan. Often the social situation can be very difficult, with families struggling to cope. If time is given, a care plan can be put together. If the situation is rushed, that will not happen.

The Committee stage gives us the opportunity to ask the Minister to explain why, with such sensitive legislation as this—when 4 years ago there was clearly cross-party cooperation and collaboration—he has brought the bill in, under urgency, and also changed some aspects of the care of people affected. It is important that the Minister stands and gives an adequate explanation.

As I said earlier, this bill involves a particularly vulnerable cross-section of New Zealanders. It is absolutely important to get it right. There is no doubt that the judiciary has supported these changes. In fact, I note that just recently the Dominion Post pointed out comments made by one of the judges, who very much welcomes that finally something has been done that will save witnesses and juries from the unnecessary anguish of having to consider in detail awful events, about which there is no contest on the issue of insanity. He goes on to point out once more that the major decisions were made in 1999 and 2000.

There is absolutely no excuse for the Labour Government letting this bill lie for the last 2 to 3 years and now suddenly bringing it in under urgency. As my colleague Dr Lynda Scott was just saying, there is an area of considerable concern in the explanatory note to the Supplementary Order Paper. It points out that instead of the mandatory remand provision, the Supplementary Order Paper will give 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. A fair amount of discretion is being given to the courts in a situation that not only might endanger the public but also might endanger the individual.

The Royal Australian and New Zealand College of Psychiatrists has said that at least two formal psychiatric opinions are needed in terms of assessing. In fact, I believe that the bill does not allow for that as being compulsory. It is optional. The other assessor may be a psychologist or other similar health assessor. However, clearly this bill allows for a variety of discretions to occur. We now find that on a Supplementary Order Paper, brought in under urgency by this Labour Government, a substantial change is being made, and a substantial concern raised, in terms of saying on the one hand that paramount consideration is given to the safety of the public—that is absolutely vital—but on the other hand that the court has the discretion to decide whether someone remains on bail. That is clearly something we hope the Minister will also take a call on. I can see the Minister nodding. I hope he will carefully explain why there has been such a delay in this important bill, and also why he has not continued to foster the cross-party support that was enjoyed by all members of the Health Committee some 4 years ago.

I will respond to the comments made by Dr Hutchison and Dr Scott. First, the question has been raised about the length of the Supplementary Order Paper. The Supplementary Order Paper is as long as it is because this new legislation has been recast as a stand-alone Act, not as part of the Criminal Justice Act, as it was introduced. Therefore, most of what is in the Supplementary Order Paper is what is required in order to turn it from an amendment to a bill that is shortly to be totally repealed, to a stand-alone Act. So most of this material is purely technical. It is to create it as a stand-alone Act. It makes sense to make it a stand-alone Act and to have a title that better reflects what it does. This is not about criminal justice, because this is about people who are deemed to be not responsible for their acts in a criminal sense.

Secondly, we would not want to keep the legislation called the Criminal Justice Act, when that Act is about to be repealed. Most of it has already been superseded by the Sentencing Act and the Parole Act. I mention the point made about multiparty support. Yes, there has been multiparty support, and there has been that support in the Chamber tonight. Every party in the Chamber has agreed that this is necessary legislation and will be supporting it. Yes, it is important that we get it passed now, and, therefore, I hope that the matter will not be unnecessarily delayed.

I now want to come to the key point about the mandatory requirement. The original Act has a requirement that the judge must remand the individuals in a hospital or secure facility while inquiries are made about the most suitable method of dealing with them. Clearly, in most cases where a person is found unfit to plead or not guilty on the basis of insanity, that person will be remanded into some form of secure facility, in most cases. But it will not be the case on every occasion that it is necessary to remand a person into a secure facility. In fact, the advice I have been given by Crown Law is that by making this mandatory or leaving it mandatory, we would very likely contravene section 22 of the New Zealand Bill of Rights Act, under which everyone has the right not to be arbitrarily detained. In most cases the judge will remand the person to a secure facility. But it is always important in our justice system to give a judge discretion so that the law is applied to the situation in the particular case. In every other facet of our justice system, we create that form of discretion—

💬 Dr Lynda Scott: Oh!

—and unless the member believes that a person who patently constitutes no risk at all ought nevertheless to be compulsorily detained when there is no need to do so, why would we not want to give the judge discretion?

But within the context of the discretion, we have given a clear direction to the judge that the benefit of the doubt has to be given to the safety of the community. That is why in making the judgment the judge will be required to give paramount consideration to the safety of the community. I think everybody would agree that that is eminently sensible. It is certainly what Crown Law requires. It is certainly what the Human Rights Commission would support, and I think that every reasonable person in the House would say that that is sensible. We should err on the side of caution, but we should not create a mandatory situation that fails to take into account those situations where a person constitutes no risk and should be able to be remanded on bail into the care of an appropriate person.

I know it must be late in the night because, clearly, the Minister was not even listening to himself, as he said that this bill is about people who are not responsible for their criminal acts. So what he is saying is that people who are not responsible for their criminal acts and who may be involved in criminal acts can be, possibly, let out on bail. When people are involved in criminal acts, often very serious ones, they should not be let out on bail in the first place. Here we have the situation where a person who is not responsible—which is a polite way of saying that the person is, possibly, insane—and who has committed a criminal act is to be allowed out on bail. What absolute rubbish! Is this not the same Phil Goff who, when he was in Opposition, constantly opposed the granting of bail? Did he not, time and time again, when he was in Opposition, say that criminals should not be let out on bail? Now what he is saying is that not only should they be let out on bail, but that even if they are criminally insane they should be let out on bail. That is what he is saying. He is giving criminally insane people the opportunity to go out on bail.

New Zealand First will not be supporting this Supplementary Order Paper. It is absolutely ridiculous. I asked United Future what the Sensible Sentencing Trust would say about this. We are talking about a person who, as the Minister himself said in a short speech a few moments ago, has committed a criminal act and who is insane, and the Minister is going to give that person the opportunity to get bail. That person should not get bail, at all.

The select committee was right when it considered this bill initially and said there should be a mandatory provision of no bail. Is that not what the select committee considered, as I understand it? That was the select committee’s original consideration, as has been read out by Dr Hutchison in the explanatory note. Instead of the mandatory remand provision, the Supplementary Order Paper gives the court the option of remanding such persons on bail. As members of this Chamber we quite often criticise the courts for granting sane people bail. We have been upset, and Phil Goff has been upset, when visibly sane people have been given bail. Now he is supporting visibly insane people who have committed criminal acts, the opportunity to get bail. What absolute ridiculous nonsense on the part of this Minister! It is as simple as that, is it not? That is the simple fact of the matter. This Labour Government, and this Minister Phil Goff, when in Opposition stood here, as Labour Opposition members did from time to time, and opposed bail. And what was Mr Maharey’s view? It was just that: “Well, that was when we were in Opposition.”

💬 Pansy Wong: The ”Maharey principle”.

Yes, the “Maharey principle” is well and truly in practice tonight. It may be twenty minutes to midnight, but here we have the “Maharey principle” in practice. Phil Goff, the man who opposed bail left, right, and centre for all sane people, is tonight supporting bail for the insane who have committed criminal acts. What an appalling piece of legislation!

We in New Zealand First have had enough. Time and time again during this urgency we have been fed 40, 30, and, again, 40 pages of Supplementary Order Papers in respect of the Retirement Villages Bill and other legislation that we have been considering right throughout this urgency. Well, this is it. We have cooperated until now to a large extent. We have voted, I think, for just about every bill we have had under this urgency, but we cannot support this one. This legislation is itself just about insane, because it supports allowing the insane people who have committed criminal acts to be let out on bail.

I am sure the doctors in this Chamber will not like me using the word “insane”, but I am a New Zealand First member and a lawyer, and I call an insane person an insane person. I do not come up with fancy phrases about people not being responsible for their criminal acts. Let us call a spade a spade, and an insane person an insane person. For a Minister of Justice to support people who, in his own words, are not responsible for their criminal acts, to be given bail—well, what more can one say?

This Supplementary Order Paper must go back to the select committee. It took only one hour on the previous occasion for the select committee to consider it. Can we not send it back to the select committee and give it at least another hour, so that people can make comments on it? I am sure it will come back in less than an hour, with the mandatory provision once again reinstated. What does Mrs Steve Chadwick have to say about this? This is clearly not her bill. I expect her to stand up in this Committee and say why she supports insane people getting bail.

I would like to start where the previous speaker left off. The ACT party, too, has had quite enough of a lack of democracy—a lack of scrutiny—with this legislation. The Minister stood up before and said that his 44-page Supplementary Order Paper was necessary to the bill, and that it contained just minor changes. Why is it 44 pages long if it contains just minor changes? There has been no scrutiny of those changes, at all.

The Minister complimented the Health Committee on its fine, very thorough work on the bill. I would like to read out a piece from page 12 of the commentary on the bill as it was reported back. It states: “Occasionally, Government departments will propose substantive and significant changes to bills after select committees have finished hearing submissions. We disapprove of that practice.”

The committee stated that it disapproved of that practice, yet the Minister congratulated it on its work, then still put forward a 44-page Supplementary Order Paper. The commentary goes on to state: “Committees are not simply vehicles for Government amendments to legislation:”—and ACT New Zealand would agree with that—“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 …”.

I recently attended a Commonwealth Parliamentary Association seminar, and was asked to present on the select committee process in New Zealand. I must say that the other delegates from around the Commonwealth were impressed with our select committee process. They were very much in favour of the cross-party support that is often gained from that process, and they were also very impressed with the amount of public scrutiny our bills receive. Because of those very things, I felt very proud of our select committee process when I was there. I think those delegates would be appalled if I turned up today and said: “Well, actually, since I spoke to you, the Government has done nothing but put up hefty Supplementary Order Papers to Government bills that do not receive scrutiny from the members of select committees, or from the public. That is clearly wrong, as the commentary on the bill as reported from the Health Committee states.

Like New Zealand First, we in the ACT party are saying that enough is enough. We will no longer support this Supplementary Order Paper. We were very happy to support the bill, which has very sensible measures in it, but we will not put up with the lack of democracy and scrutiny that is becoming a habit with this Government. It is not good enough.

Mr Goff says the Supplementary Order Paper does not contain anything controversial, yet if we look at the explanatory note on the back page of it, we see in the bottom bullet point—and the National Party has mentioned this, as did the New Zealand First speaker who spoke before me—“Instead of the mandatory remand provision,”—

💬 Hon Chris Carter: What about Donna?

Perhaps that member on the Labour side would like to stand up and take a call—although that would prolong the process that those members are trying to shut down. They do not want to see democracy, or scrutiny, in this country. They will not stand up and argue this issue properly. Instead, they just hurl abuse across the Chamber. Where does that get us? I ask Mr Carter what he thinks the people of New Zealand think of that. I suspect they think very little of those tactics.

I come back to the bill and the quotation from the Supplementary Order Paper’s explanatory note: “Instead of the mandatory remand provision,”—and there is a blatant conflict here—“the Supplementary Order Paper”—

💬 David Benson-Pope: What about Mainframe?

Mr Benson-Pope wants to have a go now—not in his own time, but in other members’ time. Perhaps he would like to read the Supplementary Order Paper. Maybe he has not had the opportunity to do that, either, because it did not come out until yesterday—despite the fact that the Government has had 4 years to bring it to the attention of the New Zealand public, and to the members of the Health Committee. They should be given the opportunity now to look at the Supplementary Order Paper in some detail, so that it can be scrutinised as it should be.

I go back to quoting from the explanatory note on the Supplementary Order Paper. Government members do not want to hear this, because they know they are wrong. If they were at all worried, they would listen.

I was delighted to hear Dr Paul Hutchison, Dr Lynda Scott, Mr Dail Jones, and my colleague Heather Roy finally say that it is almost irrelevant what the Minister thinks he has provided in the Supplementary Order Papers we have had during this urgency. We have had page after page of amendments in Supplementary Order Papers that have been dropped on Parliament without members being provided with any adequate explanatory notes, or explanation as to why they were so late. Members of Parliament are being expected to push provisions through in 1 day, the real import of which they could have absolutely no knowledge. We cannot have any understanding of them, and I believe I am a reasonable reader of legislation. We cannot know the effect of these pages of amendments on Supplementary Order Paper 161.

It may well be that all of the parties on this side think this is good law that should be put through, but it would be utterly irresponsible to vote for it. It would be utterly irresponsible for Parliament to continue to connive with a Government that is so incompetent that after 4 years it has to dump this material on it, in urgency, expect us to vote for it, and for the people of New Zealand to respect Parliament while it happens. This Minister is utterly incompetent.

The last time the Minister in the chair, Phil Goff, did this, he got caught. He dumped a Supplementary Order Paper on the House in respect of the Victims Rights’ Bill that utterly gutted the way burglaries were prosecuted. The Minister is sitting in the chair pretending he cannot hear, but the Government dumped on Parliament a Supplementary Order Paper that reversed the effect of a unanimous select committee change to the Victims’ Rights Bill that allowed the police to at least tell the court the address of a burglary. No, this Minister knew better. He did not consult the select committee, or his own members. He dumped a Supplementary Order Paper on us, and he pushed it through. What happened? Suddenly, there were 60,000 prosecutions where the police were not allowed to tell the court the address of the victims.

Would Mr Goff care to comment on just how much that has cost the country? The last time he tried to ram a Supplementary Order Paper through in these circumstances, without Parliament being able to know what was going on, it meant that in 60,000 burglary prosecutions, there was a need—at an estimate, about an hour extra in procedure—to explain to the court what they were doing. What was the explanation for that? Oh, it was that the officials and Mr Goff knew better than the select committee, so they just changed it back to what they had before the committee had considered it. Let us put it into a great, fat Supplementary Order Paper that no one understands, and push it through! But the Minister is begging us to allow the fix-up to go into the Statutes Amendment Bill.

Now we have silence on the other side of the Chamber. Now we have the three musketeers sitting there—one of them with his hand over his face. Of course it is embarrassing!

💬 Hon Rick Barker: This is so funny.

It is not funny when the member has to sit there in embarrassment with his hand over his mouth, because he knows that these kinds of Supplementary Order Papers have got Mr Goff into trouble, and when this side of the House finally says: “Enough is enough. We’re not going to tolerate any more of this kind of Supplementary Order Paper.” Whatever the merits of the bill, we will not rubber-stamp legislation that the Minister has not explained. We will not vote for it.

The CHAIRPERSON (Hon Clem Simich): There will be fewer interjections from the Government benches. They are not making any sense. If there are interjections, they need to be relevant to the issue before us. [Interruption] I do not need any argument. I am here, you are there; I hear you.

I believe that the broadcasting of Parliament saves those people from a little bit of public disclosure of just how bereft they are. Faced in this Committee stage with 10 pages of material that they have not seen, but are expected to vote on—material that they do not understand, and that this side of the Chamber certainly cannot understand—all they can do is yell, and then cover their mouths with embarrassment when the consequences of the last time this Minister did that are pointed out.

The Minister in the chair could perhaps explain just why this is so urgent that none of it was disclosed to the members of the committee before.

I know it is very late at night and all of us would rather be home. However, here we are debating the Criminal Justice Amendment Bill (No 7), which is about to be turned into separate legislation by the Minister’s Supplementary Order Paper—that is, the Criminal Procedure (Mentally Impaired Persons) Bill. There is one part of this Supplementary Order Paper that we do not like, and it is having 44 pages dropped in the House the day before this debate. None of us have had a look at it. How many times have we seen this type of behaviour before?

Problems occur when those on the select committee, the public out there, plus those who work in the particular industries, have not had time to scrutinise the Supplementary Order Paper. This is all about looking after people who have an intellectual disability or mental illness, and when found to be insane or unfit to plead will be released on bail. How many psychiatrists have had a look at these changes? How many people who work in the area have had time to look at them? Probably none, because certainly no members of the Health Committee have had time to look at them. It is absolutely unacceptable that this Government should be trying to rush them through the House, when no one has had a look at them.

The explanatory note to the bill talks about the court having the option of remanding persons on bail in the community, or deciding whether they have to go into a secure facility. That is a major change, and it is in clause 23, “Court orders”. The Minister said there was no risk. How can he possibly say that when we are talking about a person who has been found unfit to stand trial because he or she has been determined to be insane or unfit to plead? If that were the case, surely those people should then be in a secure facility until they can be appropriately assessed and placement made in an appropriate facility? Whether or not those individuals are clinically insane due to a mental illness, they should go into a secure forensic facility, so that they can get appropriate treatment and an appropriate care plan. If it happens to be somebody who has an intellectual disability, and therefore does not understand his or her offending, does not understand the social consequences, cannot take responsibility for the criminal act in which he or she has engaged, that person also needs to be in a secure facility with access to an appropriate care plan.

With this Criminal Justice Amendment Bill (No 7) and the Intellectual Disability (Compulsory Care) Bill, National put its money where its mouth was. It put in $18 million to set up facilities that could care for people with an intellectual disability, who come before the courts, who actually are in a position to not be able to take responsibility for a criminal act, and therefore need secure care. It is just beyond me how the Minister can stand there and say that there is no risk. Why was that person before the courts, if there was no risk? One does not come before the courts unless there is some act that breaks the law.

We will not be supporting this bill, and that is unfortunate, but the Supplementary Order Paper cannot be supported. In the select committee, we worked so well together on the original Criminal Justice Amendment Bill (No 7) to try to get a good piece of legislation that would deliver for New Zealand. We had discussions about the two levels of offending, and about the definition of health assessors. This was quite a debate, because it determined whether one needed to have a psychiatrist decide mental illness and intellectual disability, or whether psychologists could do the job. The Royal Australasian College of Psychiatrists submitted that assessment reports should be from psychiatrists if the issue was one of mental illness, and psychologists or other experts if the issue was intellectual disability.

It is getting close to the midnight run, for sure.

💬 Hon Rick Barker: It’s fantastic to have you here. Great speaker from the National Party!

I failed to hear what the member said. There was a considerable amount of verbal—I note it is getting late.

💬 Hon Rick Barker: I just said it’s fantastic to have you here. Great speaker from National!

The member is recognising the clarity and excellence of this speech, and it will be directed towards the Minister of Justice, who in dealing with this bill has miserably failed the parliamentary process. I called for him to make an explanation why a bill so sensitive and so important as this, where there has been cross-party collaboration, has been brought in by him 3 years later, under urgency, and without any explanation. That is clearly an abuse of parliamentary process, and it has been carried out by, of all people, the Minister of Justice! He has failed to explain why he has done that, and I would call on him to do precisely that. As Mr Franks pointed out just a few moments ago, this is the third time in the last 24 or 48 hours where this Labour Government has just continued to abuse process.

It was absolutely fascinating to see that commentary, which was influenced so much by Judy Keall, who used to be here. She said: “Occasionally, Government departments will propose substantive and significant changes to bills after select committees have finished hearing submissions. We disapprove of that practice.” Here we have this crucially important bill dealing with—

💬 Ron Mark: Who said that?

It is in the commentary of the select committee on this very bill. Here we are 3 years later, and none other than the Minister of Justice of this tawdry Labour Government abuses the process.

Sitting suspended from midnight to 9 a.m. (Thursday)