Criminal Justice Amendment Bill (No 7)

When the sitting was interrupted last night Dr Paul Hutchison was speaking and has 2 minutes 52 seconds remaining.

Have I got 2 seconds remaining on this extremely important bill—

The CHAIRPERSON (Ann Hartley): No, the member has 2 minutes remaining.

—that was so badly handled by the Minister of Justice in an outrage of political process? Might I say again that here we have a bill on which all members of the select committee collaborated excellently, in an incredibly sensitive situation, only to find, 3 years later, the process totally abused by the Labour Minister of Justice in terms of bringing in the bill in the dead of night, under urgency, and clearly making a ridicule of the parliamentary process.

Undoubtedly, this so-called Criminal Procedure (Mentally Impaired Persons) Bill is one that requires considerable care and thought in the way it is delivered. We have found—even in the explanatory note of the 44-page Supplementary Order Paper, so inappropriately brought in by the Minister of Justice—several instances where there are serious concerns as to the considerations he has given to protect the public, and has totally forgotten that the other vital consideration is care of the individuals concerned. Because of that, it leads me to believe that there would be great benefit in the Government actually backing down and withdrawing the bill, to allow further consideration and deliberation by the select committee. In fact, I would go so far as seeking leave to ask that the Government withdraw this bill, and instead take it back to the select committee where appropriate considered thought can be given to these hugely important issues.

I was quite surprised to find that New Plymouth Crown solicitor, Tim Brewer, when he was appointed law commissioner in 1997, said that this—

💬 Hon Rick Barker: That’s last century.

It might have been last century; however, it was 4 years ago that this bill was considered by the select committee, and that is the huge inappropriateness of the way the Labour Government has brought it in under urgency. Crown solicitor, Tim Brewer, said that this was one of the changes to the law he was determined to promote.

I move, That the question be now put.

I have to rise and put it on to the record, so that the Minister is aware, that New Zealand First will not support Supplementary Order Paper 161, and I will explain why. Quite simply, we have had some discussion, and whilst we may accept the Minister’s explanations at the Table today, I think this is a point of procedure and process. It pains me somewhat because, as I pointed out in my earlier speech, this bill has been 4 years in its gestation—4 years of Labour governance. This bill has sat for 4 years beneath the pile on the Order Paper. For 4 years we have watched other bills and other legislation of lesser significance go through. Here we are with a Supplementary Order Paper containing—

💬 Jill Pettis: It was reported back in 2001.

What was that?

💬 Hon Phil Goff: It was reported back in 2001.

It was reported back in 2001, and today we have a Supplementary Order Paper—some 44 pages long—dated 21 October 2003, that has not been through the select committee process.

💬 Hon Phil Goff: That is because it is now a stand-alone Act, rather than an amendment.

I have heard that explanation. That may well be the explanation, but the point is that we have a select committee process that gives people—particularly those who seek to support the Government—the opportunity to examine the bill. We live in an era of mixed-member proportional representation. The public out there are seeking to see parties cooperating more in the interests of the nation, not this first-past-the-post nonsense where we simply stand up and say: “We won, you lost, eat that. We’ve got the numbers today so we don’t care about the process. We’re just going to shove it through.”

Quite frankly, the public are sick of that sort of attitude and it is now reflecting in the polls. It is reflecting when I travel around the communities. When I go to Auckland, a place where I have never lived in my entire life, people walk up to me in the street, shake my hand, and say: “Ron Mark, good to see you.” They say things to me like: “Whatever happened to the old Labour Party? Has anybody seen Judith Tizard? Does anybody know Dover Samuels?”.

I have to say to the Minister that he is a good Minister. There is a lot this Minister does that I actually respect. He does a pretty good job in foreign affairs. However, he has brought a Supplementary Order Paper of some 44-odd pages to the floor, without having given people the opportunity to go through it and understand precisely its implications. Members should look at the bail provisions. If anything will get the hackles up of New Zealand First members it is the suggestion that a person who is deemed to be insane should be given bail. That needs full explanation. We need to understand that, and we will not get that understanding in a Committee stage where Labour Government members refuse to take calls and make any explanation. I say to the Minister in the chair that he is an exception in this respect. At least this Minister, Mr Phil Goff, has stood and taken a few calls in the Committee stage. He is an exception, and we appreciate that.

We watched Margaret Wilson sit in that chair for hour after hour, day after day. She might as well have been doing her knitting because she did not take one call. She displayed the sort of arrogance that Mr Goff will have to fight hard to pull back on the hustings. But on this, I think, he has let us down. We look to him in so many ways for good performance. He is one of the shining stars. He actually looks like Tony Blair in many ways, and he is right up there. When I was in the Labour Party we had earmarked this man as a future leader of the Labour Party, and it still could happen. Helen Clark’s star is fading, and Mr Goff is right there, beautifully poised, untouched, and untainted. But little things like this do not do his reputation any good.

💬 Pansy Wong: This is the first one.

This is the first black mark on his copybook.

💬 John Carter: The barbecue!

The barbecue season is coming up, and we are in a prime position to launch this coup and get things rolling. However, to move Supplementary Order Papers like this one, at such a late hour, without giving us the opportunity to put it in front of our health spokesperson or the select committee, even if it was for only an hour, is totally unacceptable.

I am worried about some of the comments Ron Mark made. It really concerned me to start with, because to praise this Minister in such a wholesome way is a real worry.

💬 Hon Phil Goff: You do it privately to me all the time.

Excuse me! The Minister said that he would not mention that.

💬 Pansy Wong: That’s three blots.

Yes, that is right. That is three blots on the Minister’s copybook now. If the Minister relies on me for support he is in real trouble. It must be too early in the morning; I cannot believe that my colleague would be quite so fulsome.

However, having said that, I want to pick up the point he made. From a procedural issue, it concerns me that here we are in urgency on a bill that was reported back in 2001. It has been around for a long, long time. In fact, it has been sitting here for a couple of years. Suddenly we get a Supplementary Order Paper of 44 pages, which most members have not had an opportunity to digest at all. Although it is true that the Minister may have taken a couple of calls, I want to draw his attention to a couple of sections and ask him whether he would take a call perhaps to elaborate on what they mean. The Supplementary Order Paper, on page 34, under the heading “Juries Act 1981”, states: “Repeal the definition of mentally disordered in section 2 and substitute the following definition:”. The definition states: “mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature) that is—(a) characterised by delusions, …”.

That really concerns me. Where did the Minister get that from? Was he looking at the Prime Minister when he wrote that? Was he looking at his colleagues when he put in the words—“characterised by delusions”? Bless my soul. The wording goes on—and I wonder whether the Minister was thinking of the Minister of Māori Affairs—to state “or disorders of mood”. Bless my soul. Our Minister of Māori Affairs often interests this House when he is answering questions. I wonder whether the Minister may have had the Minister of Māori Affairs in mind. The wording states further “or perception or volition or”—good grief, all these words get difficult to pronounce!

The point I am making to the Minister is that members needed time to digest what this means. The definition states further “(b) not induced by substance abuse; …”. Well, goodness gracious, I wonder whether the Greens think about that, for example. One would have to wonder whether they have an interest in that sort of thing, and whether they—

💬 Ron Mark: Who is the member thinking of?

There are one or two people who immediately spring to mind, and one wonders why one would leave them out. That is the point. This is why the Supplementary Order Paper needs to be thoroughly examined. The point that Ron Mark was making, and the point that my colleagues have been making, is that it is just not good enough, it is not a fair procedure, to load this House, in urgency, at 9 o’clock on a Thursday morning—[Interruption] Well, that may be true, and that is the point. How can one digest a 44-page document, when one has been in this place for as long as we have now, and try to understand what it means? It will affect the lives of many New Zealanders. We can jest and laugh, and from time to time have a smile, but it is a serious point. I tell the Minister that it does cause me concern that suddenly we need this volume of change to a bill. Why could this bill not have been brought to the House’s attention a lot earlier, and perhaps referred back to the select committee for a couple of weeks for examination? Would that not have been more sensible?

One of the disappointing things is that our members did not know about the Supplementary Order Paper until it arrived in the House. At least we could have been briefed on it, and that would have been very useful.

I will do the member the honour of taking him seriously. The definition of “mental disorder” was well known by his colleagues, because this is the same definition that he and his colleagues put into the Mental Health (Compulsory Assessment and Treatment) Act 11 years ago. Also, that is the definition put into the original bill that this Supplementary Order Paper is based on. That is well known to his colleagues. They have been aware of this definition for over a decade. This can be no surprise to the member or any of his hopefully better informed colleagues.

I rise during the Committee stage of this bill to talk again about the lack of scrutiny—scrutiny that should exist with the select committee process. The Minister tries to tell us that there is no risk with these amendments, and that they are all fine. If the changes are so good, why is he is so reluctant to let this legislation go back to the Health Committee so that it can have the scrutiny and get the cross-party support that the original bill had? I was not on that select committee at the time, but I understand there were no dissenting members. There was general agreement that the bill was a good thing. My reading of it shows that there are many positive changes in it. But I do worry about the facts.

Something that is becoming increasingly common with this Government—despite the fact that select committees have come to general agreement about bills—is the throwing in of long Supplementary Order Papers at the last minute. This one is 44 pages long, and other ones that we have seen in this urgency have also been long. The Gambling Bill a few weeks ago had a Supplementary Order Paper that was 65 pages long. This is clearly unacceptable. The Minister complimented the select committee on its work, yet completely ignored part of its report that said that it did not agree with the fact that a Government can put in last-minute amendments, many of them of a technical nature, without scrutiny. The select committee said it was clearly against this. So the Minister compliments the select committee, then completely ignores the advice that was given in the commentary on the bill.

No doubt the Minister had a lot of advice when writing this Supplementary Order Paper, but what about the advice of the legal profession that could be gained through the select committee process if this Supplementary Order Paper were taken back? What about the advice of the medical profession? I would have thought that they had the right to look at these amendments and comment on them at the very least, and give their very good and thorough advice to the members of the select committee who might well, in the final instance, agree to what is in the Supplementary Order Paper. But none of us have had a chance to look properly at this. What about the doctors and the lawyers who should have been given an opportunity to look at the Supplementary Order Paper and its new provisions? They have not seen it either. No doubt the Ministry of Health has had a finger in the pie. Officials were probably involved in this. I would like to remind members of the fiasco we had with the smoke-free legislation and the contracts in that. We know that the lobby groups, which the Government favours, have been given funding specifically to go and lobby MPs. I would say that their judgment is seriously under question when the Government is allowing this sort of thing to happen.

As I flicked through the Supplementary Order Paper—we have not had time to look at it thoroughly—I saw that on page 39 it talks about the Parole Act. There is an insertion under the definition of “secure facility” that states: “secure facility means a secure facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003”. Now, I ask the Minister to correct me if I am wrong, but have I missed something here? If I look at the Order Paper I see that the next bill for debate is the Intellectual Disability (Compulsory Care) Bill. I thought that in fact we do not have at the moment an Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. At the moment it is in bill form. What the Minister expects us to do here is approve something that does not exist at the moment. We need royal assent for the next bill, the Intellectual Disability (Compulsory Care) Bill, before we can get royal assent for this Supplementary Order Paper that we are debating at the moment—the Criminal Justice Amendment Bill, which the Minister wants to change the name of, too. How can that be? I am not a lawyer. I would like the Minister to stand up and tell us how we can actually approve something that does not exist and is not to be debated until we get to the next item on the Order Paper. How are we supposed to pass this without having passed the legislation that the Minister is talking about? Have I missed something here?

💬 Hon Phil Goff: Yes.

Oh, obviously I have. Perhaps the Minister could stand and point it out. I am not a lawyer, and I know that the Minister previously was. That advice would be very much welcomed. I tell the Minister that perhaps this should have gone to the select committee to have proper scrutiny. That comment is from me, just as a layperson, looking through this Supplementary Order Paper and finding things that do not seem to add up. What else is hidden in this Supplementary Order Paper that we do not know about? We have not had the opportunity to debate this, or the opportunity to take it back to select committee and look at it properly. The Minister may well laugh, but it is not funny.

I move, That the question be now put.

This bill was introduced on 5 October 1999—4 years ago—then in 2001 the Health Committee returned it back to this House. The chair, Judy Keall, in her report back said, and I quote from page 12: “Occasionally, Government departments will propose substantive and significant changes to bills after select committees have finished hearing submissions.”—this is a Labour Party chair—“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.” The Labour Party chair of the Health Committee said that.

What do we have today? We have a Supplementary Order Paper being rushed through under urgency that we first saw only on Tuesday, 21 October—today; in parliamentary time it is still Tuesday, 21 October—and it is 44 pages long. Even as a lawyer I find it difficult to grasp everything in this bill, but one thing that is very clear is in the explanatory note of Supplementary Order Paper 161—and I hope the people who support the Sensible Sentencing Trust viewpoint are listening to this, especially the United Future people. The explanatory note says the Supplementary Order Paper is intended to “remove the current requirement that persons found unfit to stand trial or who are 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.” So the current bill, approved by the select committee, has a mandatory remand provision; this explanatory note says that, instead of a mandatory remand provision, the Supplementary Order Paper gives the courts the option of remanding such persons on bail. What an appalling piece of legislation! I understand that the Ellis inquiry report came out yesterday. The person involved in that inquiry was given bail by a Family Court judge. Look what happened while that person was on bail! The Minister of Justice now wants to multiply that situation. This bill must go back to the select committee.

I want to know what United Future members will do about this matter. Are they keen on harsh sentencing? I have heard a lot from Marc Alexander about this issue. Where will United Future stand? This morning, barely after 9 o’clock, I saw Darren Hughes having a long talk with Paul Adams. I wonder what Darren Hughes was telling Paul Adams. Perhaps it was “Vote this way or else!”. I would be very interested to hear what happened in that conversation. United Future was getting its instructions to be the lap dog of the Labour Party, as usual, and was being told to support a bill that is soft on law and order.

What will the chair of the Health Committee say about this? This bill took only 1 hour in the Health Committee when it first came in. It will take less than an hour if it goes back to the select committee on this occasion, and it will be back in the House in a fortnight.

The Minister said yesterday that people have to be given the opportunity to have bail because of the human rights aspect of the matter. That was not a problem in the bill originally. The Human Rights Commission went to the Health Committee, and it had no problem with the mandatory bail provision, as I see it. The Human Rights Commission has supported it. The Minister’s advice and the Minister’s statement are all poppycock. It is absolute nonsense to suggest that it might be a human rights matter or a New Zealand Bill of Rights Act matter. The advice he has been given is appalling. It is absolutely appalling to suggest there could be a human rights issue, when the Human Rights Commission has already supported the mandatory requirement to stay on remand.

💬 Hon Phil Goff: It has not.

It has, in the original bill. I tell the Minister to read the original bill that he is trying to amend under urgency. The mandatory bail provision, as he says in his own explanatory note, is being taken out. That is what the Minister is doing, even though he does not seem to know it. We are talking about all those criminally insane people out there being let out on bail as a result of this Labour Party legislation.

💬 Hon Phil Goff: Don’t be silly.

Those were the Minister’s own words last night, by inference. He used a politically correct viewpoint. Clearly, that is what this bill is all about. People who are unfit to stand trial or are insane will have the opportunity to have bail granted to them, as a result of this legislation. New Zealand First says that is wrong, and is a ground in itself for opposing this legislation. We are the law and order party in this Parliament. We stand by what we said.

💬 Georgina Beyer: You are not.

Of course, we are. If the member had any regard for law and order, she would not be supporting people who are insane and having these problems getting bail. It is no wonder there are so many problems in the Wairarapa, with representations like that from its member, Georgina Beyer.

Labour should not rush to try to shut down this debate. The issue that various members of the Opposition have raised is very serious.

I want to highlight to the Committee the unacceptability of a Supplementary Order Paper of 44 pages being introduced like this; we do not have the time to scrutinise it in the way that a select committee might do. One of the important changes that is introduced by the Supplementary Order Paper, as stated there, is to “remove the current requirement that persons found unfit to stand trial or who are 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. Instead of the mandatory remand provision, the Supplementary Order Paper gives the courts the option of remanding such persons on bail.” When I inquired of the Minister of Justice and officials last night, for a full 10 minutes they could not point me to the place where that provision is. Why should the minority Labour Government be surprised at the outrage, when it cannot even tell us where in the Supplementary Order Paper that significant change is?

I am sure the Minister was well meaning when he said that these changes are all technical changes, and they aim only to rearrange the original bill. But we have heard that approach being taken in the House too many times. Whenever we have been told there are technical changes or reformatting, we find out that, invariably, some important changes have been introduced, or some wording has been changed that, on the surface, does not seem to cause a great change but, upon close scrutiny by the select committee, turns out to change the legislation significantly.

Let me come back to this controversial provision that has been introduced that gives the court the discretion to remand an individual who has been found unfit to stand trial. The new provisions say that the court has to take into account, when making that discretion, that the public interest is Parliament’s primary consideration. We have no doubt that the court always tries to take into account the public interest. Unfortunately, we are putting the court and the judges in a position where they will have to act like a person who has medical skill.

This is a very serious issue. Yesterday we had the Ellis inquiry report. So many times we hear of people who, because of mental impairment, are not responsible for their actions, yet have committed a crime. To introduce such discretion, no matter how well meaning it is, will cause problems for individuals who are mentally impaired, because whenever a tragedy or problem occurs, the public tends to blame those individuals, in the first instance, rather than the system. People will start to say: “Well, put those people in secure places.” These individuals need protection from themselves most of the time, and others also need to be protected from them. We should not, once again, try to put these hard decisions back on the judges. The law should be clear: in terms of people with a mental impairment who might be a risk to themselves and to other people, Parliament as a whole should give a clear direction, rather than our once again giving a difficult decision to the court.

I move, That the question be now put.

The Criminal Justice Amendment Bill (No 7), in its original form, cleared up some of the major problems in dealing with people who have a mental illness or an intellectual disability who come before the courts. Very significant issues are involved in determining special patient status, in determining whether somebody should be in a prison or a mental institution—a hospital that could treat that person’s mental illness. We know that this country has a huge number of people in prison today who have a mental illness. When they come before the court, it is a matter of whether there are grounds for saying they are unfit to stand trial because they have a mental disorder or an intellectual disability. Initially, we changed the definition from “mental disorder” to “mentally impaired” because it gave a broader definition. It was not defined. It was left undefined to avoid the possibility of leaving a gap in the legislation. It is difficult at times to determine how much a person is responsible for his or her actions when he or she commits a crime.

The other part of the bill we talked about was the understanding of the police, the Ministry of Justice, our judges, and our JPs of the issues of mental health and intellectual disability. Having been a nurse and a doctor, I am very used to dealing in those fields; it always surprises me that members of the public, when I start to talk to them, really do not want to know. Some really have very limited understanding. Originally, we saw that the police needed increased training in this area to be able to determine whether a person who had committed a crime had a mental illness. I think that issue has improved a lot, but I am not too sure whether it has improved with regard to intellectual disability. We heard at the select committee of cases of people who had a really staggering gait because of something like cerebral palsy being considered to be drunk, and of cases of people who had other conditions being misinterpreted as acting in an inappropriate way. There does need to be more understanding in society of those who have an intellectual disability.

For people who come up before the courts, the definition of whether a person has an intellectual disability is someone who is mentally impaired enough not to understand the consequences of his or her action, or, for somebody who has a mental illness, at the time of committing the offence is clinically insane and not responsible for his or her actions. A finding of unfitness does not involve a determination of criminal liability, and it can therefore lead to civil detention. There was a lot of discussion about that fact.

I note the Minister’s Supplementary Order Paper 161. I have to say that a Supplementary Order Paper of that size should not be brought before members in this way. Members of the select committee and members of other parliamentary parties have not had time to peruse it. It is absolute arrogance for the Minister to bring in such a substantial Supplementary Order Paper, which not only proposes changes to the original amendment bill but also proposes a completely separate, stand-alone bill. Psychiatrists have not had time to look at it; neither have people working in the field, nor people working in the field of criminal justice. To say “Trust us, we know what we’re doing.” is to ask us to take a leap of faith.

Why do we have a select committee process? I would like the Minister to tell us why we have a select committee process. I think the select committee process is excellent because it allows for the scrutiny of legislation. Often the officials who draw up a bill are doing their very best work, but they are not out in the field, and they do not always know how a point of law will be interpreted. That is why we have a select committee process—so that those issues can come under the scrutiny of not just other members of Parliament but the professions and those working in the field. Those people can go to the select committee and tell it that what it thinks is meant will not happen.

I move, That the question be now put.

I am struggling to understand the reason for Supplementary Order Paper 161. I listened to this debate last night, mostly on the radio as I was returning from the Manawatu, where I had been looking after Mr Hughes’ folk. But I did not hear anything that really informed me why the Minister of Justice introduced a 44-page Supplementary Order Paper, and why the criminal justice amendment was being—

The CHAIRPERSON (Ann Hartley): There is too much running commentary.

Thank you. I believe that Mr Goff would have had reasons that he regarded as substantial. I am quite sure there must have been some significant reason why, after 4 years, those pages should be delivered to this House on Tuesday to change substantially something that had been the subject of a largely consensual process in the Health Committee.

I call on the Minister to explain to us even the most elementary things. For example, what is the principle that lies behind the Supplementary Order Paper? How does it differ from the provisions in the bill? Do we still have the same distinction between those who are mentally impaired, and therefore unlikely to recover, and those who are mad? Are the mentally impaired to be dealt with in this legislation in a way that is different from the way that those who are mad are dealt with? Is there room after all this time, or will there be room consistent with this legislation, to improve criminal law in a way that many New Zealanders would like to see—that is, that we get rid of all the wasted hearings on whether a person is insane? People really want to know whether he or she did it, and whether to go toward a verdict of guilty but insane. In other words, insanity or mental impairment goes to the form of sentence, whether it is punishment or treatment, but does not go to whether the person concerned will be subject to custody.

I understand that the principle in the bill, as it came back from the Health Committee, was to draw a humane distinction between those who are sane and guilty, those who are insane and guilty, and also those who are mentally impaired and therefore cannot be held responsible for their actions, even though insanity is not the correct verdict. What I cannot tell, in all the pages of amendments, is just what is so urgent that it has made the Minister choose not to let the medical profession, or people involved in dealing with the consequences of impaired people’s actions, consider them. For example, in relation to the inquiry into the Ellis case that has just been reported, did anyone involved in it have an opportunity to consider the changes now coming before the Committee? Why would the Government not make sure that all these thousands of words were made available to the people who have been closely involved in these tragedies, and ask them whether they are an improvement?

What is the Government trying to hide? Is it trying to hide something, or is it just frustrated with democracy? Is it simply impatient with the questions members of Parliament ask in a select committee on behalf of New Zealanders? Is it its view that “We know best and we are sick of being held up.”? Laws should not be done by decree. With all the bills that have been dealt with during this urgency, I ask Mr Goff what led the Government to land on this House changes that nobody in the House, other than the Minister and perhaps any cronies he has let into the know, has a clue about. What led to a Supplementary Order Paper like this being delivered without any explanation? The explanatory note for 44 pages of Supplementary Order Paper consists of four paragraphs. Why did the medical profession not get a chance to come and comment?

💬 Hon Phil Goff: Because there are no changes related to the medical aspects of the bill.

The Minister is answering by way of interjection, and I value that; if that is all we are going to get, it is better than nothing. The Minister says it is because there are no changes that relate to the medical profession. In that case, whom do they relate to? There is a whole set of new definitions in the Supplementary Order Paper, including “intellectual disability”, “medical practitioner”, “psychologist”, “special care recipient”, and “unfit to stand trial”.

💬 Hon Phil Goff: They’re all in the original.

I ask the Minister why there is a substitution. What is the explanation?

💬 Hon Phil Goff: Because it’s a stand-alone Act, not an amendment to another.

The Minister says it is because it is to be a stand-alone Act.

I move, That the question be now put.