Criminal Procedure (Mentally Impaired Persons) Bill

I move, That the Criminal Procedure (Mentally Impaired Persons) Bill be now read a third time. This was a bill that was supported by all parties in the House, but a number of them chose—because, I guess, they had to fill in their debating time—to try to find fault with it. The one fault they claimed to find was that Supplementary Order Paper 161 was 44 pages long. I had explained to the Committee a number of times that the reason for the Supplementary Order Paper was that this bill, which began life as the Criminal Justice Amendment Bill (No 7), had now become stand alone Act. The reason for that was quite clearly that the Criminal Justice Act is in the process of being fully repealed, and “Criminal Justice” as a title for this bill was no longer appropriate because the thrust of this bill was that a person who was found not to be competent to stand trial, or who was found to be insane, was, therefore, not criminally culpable. That was accepted.

Members remarked on the fact that there was an explanatory note. That made it absolutely clear, but a little bit of politics went on in the debate. There was, however, one change that is a change of policy, and that change is that the Supplementary Order Paper amends the mandatory requirement that a person be remanded to a hospital or secure facility while inquiries are made about the most suitable method for dealing with that person. Normally, a person who is found unfit to stand trial or insane will be remanded to a hospital or a secure facility, but that will not inevitably be the case. The person may, for example, be charged with a relatively minor offence. There may be advice to the judge, by health and psychiatric experts, that the individual constitutes no risk to the community, at all. There may be cases like that, and on that basis the Crown Law advice to the Government was that a mandatory requirement is likely to contravene section 22 of the New Zealand Bill of Rights Act, under which everyone has the right not to be arbitrarily detained. I would have thought that most members in the House would accept that as a matter of common sense, but what we have done as a safeguard—because I believe the public has the right to that safeguard—is that, in making in the decision, the judge must have regard to the fact that the paramount consideration must be the public safety. Dr Hutchison said, quite rightly, that we also have to have concern for the patient. I accept that, but in cases where things are evenly balanced, the judge must give paramount consideration to the safety of the community, and I think that that is appropriate.

There is common ground on this bill—and I think every party agrees on it—which is that important changes are made to ensure the more appropriate care of people with an intellectual disability who appear before the criminal courts. Those people are excluded from the Mental Health (Compulsory Assessment and Treatment) Act unless they also have a mental disorder. Therefore, there are limited options currently available to the courts when deciding how they should be dealt with. This bill and its companion measure, the Intellectual Disability (Compulsory Care) Bill, which is about to come before the House, introduce a new process in disposition options for people with an intellectual disability who are either found unfit to stand trial, not guilty by reason of insanity, or are convicted of an offence. As a consequence, people with an intellectual disability who appear before the courts will be dealt with in a more appropriate way than is the case under the current legislation.

One such important change is that under the bill’s new procedures, a person cannot be found unfit to stand trial unless the court is first satisfied that there is sufficient evidence of that person’s physical responsibility for the offence with which they are charged.

This addresses the risk under the current law that a person can be found unfit to stand trial and placed into secure care, even though that person has not committed the alleged offence. The bill also provides that a trial is not always required to find a defendant not guilty by way of insanity. A judge can accept such a verdict if the prosecution and defence agree and the judge is satisfied on the basis of expert evidence of the defendant’s insanity at the time the offence occurred. This new procedure is a vast improvement on the status quo, because it has the potential to prevent the stress that can be caused to defendants and victims by having to go to a full trial, even when the appropriate ultimate verdict is not in question. It will also prevent unnecessary appeals in cases where a perverse jury verdict is returned.

The bill also allows the court to order that a convicted offender receive treatment or care in a hospital or secure facility while also being subject to a prison sentence. If the need for treatment or care ceases, the offender will be transferred to prison to complete the remaining period of the sentence. By making this new option available to the court, we will ensure that those who appear before the courts and are in need of treatment or care do receive it in a timely fashion. Supplementary Order Paper 161, as I said before, also addresses the anomaly relating to the remand of people found unfit to stand trial or found not guilty by reason of insanity.

Finally, the bill allows access to assessment reports for providers who subsequently have offenders transferred into their care from the facilities to which they were first sent under an order from the court. There would be significant risks if subsequent providers did not have access to assessment reports. In particular, those providers could be forced to make assessments about offenders on the basis of incomplete information. The current ad hoc nature of arrangements for access to those reports is unsatisfactory and needed to be addressed, and it has been addressed by this legislation.

In summary, the bill represents a significant step forward in the treatment and care of the mentally impaired in the criminal justice system. As well as increasing the options open to the court, significant new safeguards are introduced to ensure that those subject to the bill’s provisions are dealt with fairly and justly. I believe the bill’s provisions strike an appropriate balance between the rights of the mentally impaired and intellectually disabled and the legitimate concern for safe and appropriate secure care options to be available for those people with a mental impairment who commit offences. I commend the bill to the House.

The question is that the Criminal—

💬 Hon Phil Goff: The Criminal Procedure (Mentally Impaired Person) Bill. [Interruption]

The question is that the Criminal Procedure (Mentally Impaired) Persons Bill be now read a third time.

I think this absolutely demonstrates why things like this should not be rushed. Even the Speaker has to go and find the new wording of this bill, which will become a separate Act of Parliament. The way this has happened with this Supplementary Order Paper being introduced is really unfortunate. We do not accept the Minister’s explanation. We do not accept it, at all. Previously the Health Committee had worked together on the Criminal Justice Amendment Bill (No 7)—a bill that we agreed on and supported. However, because the Criminal Procedure (Mentally Impaired Persons) Bill did not have a chance to be perused by the select committee, we cannot support it. Even members of the House have not had a chance to look at it in any detail. We cannot support it, so we will vote against it—and that is unfortunate.

The Minister, Mr Goff, said that with regard to the provisions he has added, there is no risk. The bill contains major changes to the way the criminal justice system applies to people who have an intellectual disability or mental illness. How can Mr Goff say there is no risk, when he has changed the requirements? He has removed the current requirement: “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.” Just imagine the scenario we see every day: somebody is found not guilty on the grounds of insanity or intellectual disability, and there are no beds. What happens when there are no beds? What will the judge do then? Maybe that person will be sent back to his or her family. The family can look after the person. Is that not what happens every day of the week in the mental health services? The family can look after the person—provide the care without support. Bail would be granted, and the family will have to look after the person.

We know that judges work very hard in this country and do their very best, but not all judges have very clear knowledge about mental illness or intellectual disability. They are not trained for that. There are cases like Paul Ellis, on whom a report was released yesterday. Paul Ellis went into a mental institution and two doctors said he needed to be assessed. There must have been sufficient evidence for that. He came up before a judge within a day, because there happened to be a gap, and he was told his rights. What did the judge do? He released him. He released him, because people with a mental illness can appear very sane at times. They can hide their paranoia and the distress that is going on in their minds. He was released, and his father paid the price for that and died.

Mr Goff has come to this House with this Supplementary Order Paper that allows people who have been found not guilty on the grounds of insanity or intellectual disability to be discharged on bail to the community, rather than be remanded to a hospital or secure facility while inquiries are made to determine how they should be dealt with. No one says that once an appropriate care package is put in place, the ability may not be there to rehabilitate people back into the community. We are not saying that; we are saying that the Minister cannot stand up and say there is no risk. He cannot make those sorts of substantial changes without anybody in the sector having had a chance to look at them. Unfortunately, on those grounds, we are not able to support the bill.

When we were going through the select committee process, an attempt was made to slip in a proposal to amend suspended sentences of imprisonment. We state in our report: “Occasionally, Government departments will propose substantive and significant changes to bills after select committees have finished hearing submissions. We disapprove of that practice.” Everyone on the committee agreed with that response with regard to trying to slip in something after the select committee process. And what do we have here? We have a Supplementary Order Paper that is slipped in, in urgency, at the last minute. Not only has the select committee not had a chance to scrutinise it, nobody working in the actual field has had a chance to scrutinise it. It may be that there may be agreement on it, but who knows? Nobody has had that chance of perusal. We find that very disappointing.

We stated in our report on the Criminal Justice Amendment Bill (No 7): “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.” That is a principle I uphold. I think that the way the select committee process works is excellent. It allows all New Zealanders to have a say, and the process with this bill is simply and utterly bypassing it. The bill that was before the select committee was a very good bill, because we all worked together to try to improve the situation of the assessment, treatment, and care of people who have a mental illness or intellectual disability.

We extended the number of days somebody could be remanded to a hospital or care facility from 7 to 30, because that was determined to be the most suitable way of dealing with cases. Inquiries need to be made. I have been promoting a member’s bill to make amendments to the Mental Health (Compulsory Assessment and Treatment) Act, because families need to be involved. Sometimes, with people who have intellectual disabilities, it takes time to find their families and to try to put together knowledge about what has happened.

A lot of the changes made by the Intellectual Disability (Compulsory Care) Bill and this Criminal Procedure (Mentally Impaired Persons) Bill were driven by particular cases, including the Barry Ryder case. Mr Ryder had been in a mental institution, but, when the law was changed so that those with an intellectual disability no longer remained under mental health care, he was released. The bills were also driven by the case of a young man called Mr Stephens, whose family had struggled and struggled to care for him. He also had been in mental health care but had a mental disability. So a differentiation needed to be made.

One of the very first jobs I had when I left school was to work at Porirua Hospital. At that time there were a lot of people with intellectual disabilities who were cared for in mental institutions, which were inappropriate places for them. They needed specialised care. The law was changed in 1992, which made clear the difference between mental illness and intellectual disability. But then there were gaps in the system, which is why this bill and the Intellectual Disability (Compulsory Care) Bill were needed. It is unfortunate that this legislation, which was introduced in 1999, has taken so long, until 2003, before we get to debate it in its final form. It has been sitting on the Order Paper for 3 years, and I thought it would never see the light of day. I am very pleased it is here today, because it was a National Party bill to begin with. It was a National Party initiative, and in 1999 we allocated $18 million to develop services for people with an intellectual disability who need to be kept in a secure facility, who need 24-hour supervision, and who need to be kept under that sort of care, either because their behaviour has deteriorated or because they are unaware when they strike out at somebody or behave in a way that is socially inappropriate to the rest of society.

Most people with an intellectual disability are living good lives within our society these days, and that is great. I am very pleased that that has occurred. But there are those—and it is a very small group—who do need specialised care. It is good that the $18 million has been used over the last 4 years to develop those services. We would have supported the Criminal Justice Amendment Bill (No 7). However, it is unfortunate that, because of our lack of time to scrutinise it, we cannot support the Criminal Proceedings (Mentally Impaired Persons) Bill. We will have to vote against it.

Apart from the politics, I quite enjoyed listening to that member’s speech. This is an issue on which many people in this House may have some strong views. Members will be aware of a case I raised when I was a very new MP, relating to the treatment of a Mr Gellatly in Invercargill. I think that that particular matter got mental health to the top of the political agenda. Mental health is not a respecter of political parties; at the end of the day it is a public policy issue that we have to get our heads around—and this bill is a good attempt.

I would have thought that the Leader of the Opposition, a former Minister of Health, would take a call on this issue. It is one that was of concern to him as a Minister, and I know that as Minister he took a very strong stand on protecting people in the health industry who were working in the mental health area. But he is not taking a call, and others are flabbergasted to find out that, at a time when his caucus is falling to pieces, rather than take a call on this bill he is in Invercargill speaking to 40 people about a school review there. The Minister of Education had 700 at his meeting. The Leader of the Opposition dallies while Rome burns and does not come to the Chamber to speak about the bill. I think that says volumes about the commitment of the National Party to mental health issues.

💬 Darren Hughes: What about his deputy?

Indeed, his deputy! His deputy had quite a lot to do with this area of policy, as well. He has not said a word about it, either. But for the Leader of the Opposition to ignore this bill is outrageous. There are better things he could have been doing with his time rather than spending it in Invercargill talking to 40 people. He could have been here talking to the bill.

This is a good bill, and I am delighted the House is passing it. It is a step in the right direction in providing good care for those with mental disabilities.

It is quite remarkable how the Labour Party tries to shoot itself in the foot. If it is going to talk about former Ministers of Health not speaking to this bill, where is the Prime Minister? She is a former Minister of Health, so why is she not speaking to this bill? Her legacy as a Minister of Health was the Bottrill case. The botched-up Bottrill case was her legacy to the health system. It took the Privy Council to sort that one out. There was a hepatitis problem, and it took the subsequent Government to sort that one out. The former Minister of Health in the Labour Party, the Rt Hon Helen Clark, was one of the worst Ministers of Health we have ever seen. It is not surprising that she is not here to speak on this bill.

Mind you, it would be the greatest surprise if she were here, because we rarely see her in this House after 4 o’clock on any particular day. I mean 4 p.m., not 4 a.m. when some of us are present. The Labour Party must be in absolute disarray for the Labour member from Invercargill to be talking about former Ministers of Health. That has given me a grand opportunity to attack his leader as a failed Minister of Health. He would have been better off keeping his mouth shut on that issue.

As far as this bill is concerned, we have had a bill thrust upon us that has placed you in a situation of some embarrassment—

💬 Mr SPEAKER: I am not to be brought into this debate, at all.

I apologise.

This bill is called the Criminal Procedure (Mentally Impaired Persons) Bill, and we did not know it was to be called that until Tuesday. For over 4 years it was the Criminal Justice Amendment Bill (No 7), and it was in a totally different form from the one before us in the House today. We have this incredible situation developing now in this Parliament, where the Labour Party decides that it will take urgency on a number of issues, and then, during the course of urgency, tries to slip in enormous Supplementary Order Papers, some of which are bigger than their original bills and change their form quite dramatically. There was a time, I seem to recall, when the Government of the day was very cautious about the introduction of a Supplementary Order Paper, and a good deal of time would be spent in caucus discussing whether it was possible, and whether it was an abuse of parliamentary procedure.

This minority Labour Government has no concern for Supplementary Order Papers. Just in the last day—and we are still in Tuesday, 21 October—we have had substantial Supplementary Order Papers in respect of the Retirement Villages Bill, the Criminal Investigations (Bodily Samples) Amendment Bill, and now this Criminal Justice Amendment Bill (No 7). It is an arrogant abuse of Parliament by this minority Labour Government, and those of us who have seen its arrogant abuse of the constitutional process, and the way it rammed the Supreme Court Bill through this House, are no longer surprised by anything it does.

The Ellis inquiry report came out yesterday, and it was a classic example of why someone should have been kept in remand and not let out into society. Here we have a bill that shows absolutely no regard for the Ellis inquiry and any report on it. That report might as well be burnt now, because this minority Labour Government says it is not interested in its outcome. Regardless of the facts of that case, the Government will compound the issue by legislating to ensure that the problems contained in the Ellis report continue to a much greater extent—because that is what this bill does.

United Future members sit there and support a bill that will allow mentally deranged, insane people out into the community on bail. Do members know what will happen when someone gets killed as a result of this bill? A United Future member will ask the Minister of Justice why it happened, and the Minister of Justice will say that it was the judge’s fault. The judiciary will be blamed, and there will be this struggle between United Future and the Minister of Justice—as if United Future were being tough on law and order—and the Minister of Justice will come back and say: “Oh no, no. It’s the judge’s fault.”

Why would the judge be given the option to do it? I say to United Future that Parliament should make that decision—the buck stops with us. United Future should not have a little ping-pong game with the Minister of Justice, pretending that they are hard and tough on law and order, asking why that is happening and what the Government will do about it, and having Mr Goff say that it was all the judiciary’s fault. This bill should not be supported. People who are insane, and who have committed criminal acts, should not be allowed out into the community while arrangements are being made for their care. That is what this bill does, and that is what United Future supports. Of course, the Greens will support it. The Greens opposed bodily samples being taken from people. The Greens will oppose anything that is tough on law and order. As far as the Greens are concerned, this bill makes it easy for people to be out in the community, regardless of whether they are insane and have committed criminal acts.

The Minister raised a ridiculous argument relating to the Human Rights Act. In the original bill, if people had committed criminal offences and their positions were being considered, they were not remanded on bail but in custody. They had to be under care and supervision. The Human Rights Commission made a submission on the bill. The select committee came back and insisted that there be a mandatory provision in respect of care and custody. That matter has been considered. The Minister has obviously not read the report from the Health Committee.

Of the members of the Health Committee who supported that view, some are still in Parliament—not Judy Keall, of whom the Government is taking no notice, nor Phillida Bunkle, but people like Steve Chadwick, the Labour member for Rotorua. What has she to say about it? She sat on the Health Committee that came up with the unanimous view that when people have committed criminal acts and are insane, they should be kept in mandatory custody. Now she is voting against that. She has been told to change her mind, do what she is told, and go the way that the Minister wants to go—regardless of the facts, and regardless of the present Ellis inquiry.

Dr Paul Hutchison stood up and opposed the legislation. I commend him and Dr Scott for the way they have conducted this matter. It is quite in contrast to some of the ways that National Party spokespeople have conducted other matters in the House during this urgency. They have done an excellent job on this bill. Sue Kedgley supported mandatory custody provisions while she was on the select committee. She will change her mind today for the Greens and go with the Labour Party, because that is what suits the Greens, regardless of the care and welfare of the people of New Zealand. Mita Ririnui will always go the way the Labour Party wants to go. He was on that select committee, and one would have thought he would know better, but no, whatever the Labour Party tells Mita Ririnui to do, he will do.

One of the things the Minister mentioned during his speech was that new procedures were involved. If new procedures are involved for the justice system, I would have expected the courtesy of a select committee hearing to allow the New Zealand Law Society to make submissions on the new criminal procedures in court. I would have thought that the Criminal Bar Association should be invited to make submissions as to whether those new procedures were correct. They are the experts on the issue. Instead, the Minister wants to rely on some departmental official—who has never appeared in court in his or her life—in preference to the New Zealand Law Society and the Criminal Bar Association.

I predict that before very long we will have the same problem that we have had time and time again in the House with bills being rushed through. The Minister will say he wants to amend a bill that we have just rushed through, and could we support the matter in a Statutes Amendment Bill. That is going on now with matters from before the last session. We will get a request, as we do time and time again, from the Hon Rick Barker, for amendments to a Statutes Amendment Bill. I say to the Labour Party that if amendments to the Statutes Amendment Bill arise out of this rushed legislation, I will advise my caucus not to support them.

New Zealand First is getting sick and tired of rushed legislation and enormous Supplementary Order Papers, and then having the Labour Party come crawling up and saying that it had made a mistake, asking if we could support something in the Statutes Amendment Bill, rushing it through the House because X, Y, and Z said so, and saying that if we did not do so, then it was our fault—not Labour’s fault—for rushing legislation through. We have had this situation time and time again.

There are probably only a couple of other minor matters on the Order Paper. New Zealand First hopes that urgency can be finished before 1 o’clock. We are looking forward to question time this afternoon. That is the real issue before the House. We hope that the old parties—the Labour Party and the National Party—do not continue urgency beyond 1 o’clock to prevent New Zealand First from once again showing up the minority Labour Government for the useless Government it is—as set out in this legislation.

It is with a certain amount of sadness that I rise to speak to the third reading of the Criminal Procedure (Mentally Impaired Persons) Bill. ACT New Zealand will not support the bill, despite the fact that we came to the House last night, when the bill had its turn, wanting to support it because of the good changes and provisions relating to both the mentally ill and the intellectually disabled. In the original bill there were very good provisions for much better care of intellectually disabled people, in particular. One thing that I think would have been a significant step forward was that compulsory treatment was to run concurrently with prison sentences. The commentary on the bill states: “The prison sentence will 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.” This was something that was missing previously. There have been cases where patients have been treated and although they would have gone to prison for some time, have been released into the community, to the satisfaction of nobody.

That was just one example of the promise showed by the bill. The problem now is that the Supplementary Order Paper that was dumped in the House on 21 October—the day before the bill was to be debated—allows no scrutiny at all. The Minister states that there is no risk involved with the changes and that they are innocuous changes, and possibly they are, but we have not had time in the debating chamber to scrutinise them thoroughly. Certainly, the professionals who should be involved—medical professionals, perhaps the legal profession, and particularly the public and lobby groups—and who would have valid concerns and would want to come and be heard before the select committee on those provisions, have not had that opportunity made available, and we cannot accept that. Because of the good nature and promise of the bill, as I have just described, it is with sadness that we will not be able to support the Criminal Procedure (Mentally Impaired Persons) Bill, because of the lack of scrutiny.

If we look at the Supplementary Order Paper for a moment, we see that the second bullet point on the explanatory note on the back page—page 44 of this very long and wordy Supplementary Order Paper—states that the Supplementary Order Paper makes a number of technical and drafting changes, then leaves it at that. What exactly are these technical and drafting changes? I have had a bit of a flick through. I do not have a legal background, and I found it difficult to find my way through the Supplementary Order Paper, but I cannot see what was wrong in the first place to make this necessary. What was wrong with the bill, as it was written up, that required a Supplementary Order Paper of such length to be put forward? We were told it was because of procedural problems, but why, when this bill has been before Parliament since 1999—Wyatt Creech saw gaps in the Mental Health (Compulsory Assessment and Treatment) Act and quite rightly drew up the bill to rectify those gaps and the problems that existed—has it taken 4 years for these procedural problems to be drawn to the attention of the House? If they truly were procedural problems, then what is wrong with having right and proper scrutiny before the select committee? I think this shows that the Minister of Justice and the whole Labour Government have no respect at all for parliamentary process. It is an authoritarian, “we know best” Government. Its motto is: “Don’t worry, we’ll tell you how to live your lives.”, and we are seeing it more and more often. In this spell of urgency we have seen it in bill after bill, with huge Supplementary Order Papers dropped in at the very last minute, with no regard at all and no respect for parliamentary process.

Mr Goff could have made it very simple for himself. In the Supplementary Order Paper he could have outlined what has not changed in the bill. By telling us what had not changed, it would have been much easier for anybody reading the Supplementary Order Paper to quickly scrutinise exactly what the changes were. He would have shown some respect for the people who had gone through the submission process—the people who had very valid concerns in the first place He would have been one of the first to admit that there were problems, and that they needed to be rectified. He could have shown his respect for submitters. He could also have shown some respect for the parliamentary process and for his parliamentary colleagues. But we are left now asking ourselves what the real reason is for such a lengthy and wordy Supplementary Order Paper. The only conclusion we can come to—and in fact the conclusion we have come to on this side of the House—is that there probably are substantive changes in this Supplementary Order Paper. But they are substantial changes that nobody is going to get to scrutinise properly. Dail Jones, who spoke just before me, said that this has been seen before. Like his party, the next time a Statutes Amendment Bill comes forward, ACT New Zealand is not going to try to help the Labour Government smooth over the silly changes that have been made, out of undue haste. Phil Goff has a bit of a track record in this respect. I would like to draw the House’s attention to the Victims’ Rights Bill.

💬 Mr SPEAKER: No, the member will talk about this bill, please, in the third reading.

Phil Goff does have a track record, and he is showing yet again that he has no respect for the parliamentary process. He is showing an arrogant abuse of the parliamentary system. It is an arrogance that has only really been allowed to develop because of those people who support this minority Government, and I refer here, of course, to the Green Party, but most particularly to United Future, which campaigned strongly on the fact that it would hold Governments to account, and that things should be transparent. But where is the transparency now? The Labour Government asks for United Future’s support, and it just rolls over and says: “Yes, here it is.” There is no transparency at all. We had the opportunity. This side of the House called for the Supplementary Order Paper to be taken back to the Health Committee, to be scrutinised properly. But United Future does not care about transparency; neither does this Government. They are happy just to let things come forward. The untrustworthiness of the Minister, and also the untrustworthiness of the people who prop up this Government, becomes very visible when we look at this.

I come back to the fact that this is a very sad day, because we on this side of the House are not able to support this bill. We cannot. We would like to have supported the bill, as it stood initially. The Supplementary Order Paper casts nothing but questions and aspersions on the nature of the changes being made to this bill—changes that are of a very technical nature and are not going to be scrutinised. This Government does not want scrutiny. It wants us all to do what it says is best for the citizens of this country. ACT New Zealand is not going to buy into this. We say that enough is enough. Despite the fact that we would like to have supported this bill, we will not be doing so.

I rise once again on behalf of United Future to support this bill and endorse its third reading. Both this bill and the Intellectual Disability (Compulsory Care) Bill have been around for some time, which has meant that United Future has not had the kind of involvement with this legislation that it would have had, had the legislation been actively considered by the current Parliament. It seems that legislation that languishes in this way typically tends to be the kind of legislation that is non-controversial in nature, and at the same time has no particular urgency surrounding its enactment. Alternatively, it waits on the Order Paper because the Government is continuing to prepare significant amendments. In this case, I am sure that the bill will prove to be non-contentious in terms of the level of support that it will attract from the parties across Parliament. We have Supplementary Order Paper 161 in the name of the Minister, which includes a significant number of amendments to the bill as reported back from the Health Committee. But I would argue that because this bill is far from contentious, it has not been given the urgency it deserves.

This bill justifies a much higher position on any Government’s agenda than it has had, because it seeks to alter the rather blunt and monolithic way that the criminal justice system deals with those who are mentally disabled. In the case of mental illness, one concept of care does not suit all. Those afflicted with conditions loosely described as mental illness vary greatly, as does their degree of disablement. Since the introduction of the Mental Health (Compulsory Assessment and Treatment) Act in 1992, controversy has arisen because that legislation states that no person may be placed under compulsory psychiatric care, by reason of intellectual disability. As a consequence, some people may have been imprisoned unnecessarily and others may have been inappropriately released from all legal control.

The main aim of the mental health reforms was to establish a clear distinction between the services for the intellectually disabled and those for the mentally ill. Advocacy groups considered that this distinction in services would not become properly established as long as compulsory care for both groups was covered by the same legislation, as it tended to direct both groups into the same facilities. So the intellectually disabled were excluded from that Act, leaving it with a more clearly defined focus on compulsory treatment for mental illness. However, the difficulty that emerged was that insufficient attention was paid to the small number of intellectually disabled people who still required compulsory care, and there was inadequate legal provision for the even smaller number charged with criminal offences. So this bill permits intellectually disabled people who are charged with offences to be readily removed from the criminal trial process and placed into the compulsory care regime, thus providing the option of care in a secure facility.

My concern is about how many people have suffered in the meantime, while waiting for this kind of legislation to appear. National introduced these twin bills in 1999, to some degree in response to concerns that Barry Allan Ryder, who has a 17-year history of sexual offending, would be released back into the community. These bills would have provided for those kinds of dangerous individuals to be held in a secure facility within the mental health system, once they had served their prison sentence. Unfortunately, in Ryder’s case, he has consistently been allowed to reoffend against young boys, in a copycat manner to his earlier crimes, after being released twice: in 1994, and again last year. Authorities were warned on both occasions that he posed a serious risk of reoffending. They were warned the first time by the whistle-blowing Lake Alice psychiatric nurse, Neil Pugmire. Even if this legislation had been in place, I am not sure whether it could have been applied retrospectively to Ryder. I know that Mr Ryall and Mr Goff have traded insults over the years about exactly who was responsible, when they were alternately the former Minister and present Minister of Justice. But I think the most important point is the principle that this kind of legislation should have been a priority, to protect citizenry against those types of offenders and, in a few specific cases, to protect those who are truly unable to comprehend their actions from themselves.

Thank you, Mr Speaker, for the opportunity to speak on this very important Criminal Justice Amendment Bill (No 7), which is now known, pretty belatedly, as the Criminal Procedure (Mentally Impaired Persons) Act of 2003.

💬 Mr SPEAKER: Bill.

Bill—quite right, at this stage of events. But it is shortly to become an Act—and I believe, in many respects, quite inappropriately. This legislation undoubtedly deals with the hugely important area of the intellectually disabled and the mentally impaired. As I said earlier in the Committee stage, the differentiation, the diagnosis of those areas and the definition of them, is hugely important. It is problematic, and it has exercised a lot of thought, over a lot of time, to try to get legislation that meets the requirements.

In fact, if one goes back historically, one finds it is interesting to hear what New Plymouth Crown solicitor Tim Brewer said, back in 1997. He regarded this as one of the changes to the then law that he was determined to promote, after the brutal murder of 12-year-old boy Dane Gibson by his parents at their Inglewood home in 1994. During the trial, both the defence and the prosecution agreed with the psychiatrist that the couple were both insane at the time. Way back then, Mr Brewer said: “I very much welcome that finally something has been done that will save witnesses and juries the unnecessary anguish of having to consider in detail awful events about which there is no contest on the issue of insanity.”

This law change was first introduced in 1999, under the Hon Wyatt Creech. It is of great import regarding this bill that the Health Committee, which dealt with it, did work in a multiparty fashion. There was collaboration and goodwill, and I believe that the time of the genesis of the Criminal Justice Amendment Bill (No 7) certainly demonstrated members’ willingness to respond through the parliamentary process to a situation that was problematical, difficult, and sensitive, and they did that well.

But is very interesting to note in the commentary on the bill the point made by, I think in particular, Judy Keall, who is known to have a unique way of articulating herself. The commentary states: “Occasionally, Government departments will propose substantive and significant changes to bills after select committees have finished hearing submissions. We disapprove of that practice.” Yet here we are, 3 to 4 years later, with the Minister of Justice, Phil Goff, introducing a substantial Supplementary Order Paper, No. 161, under urgency, without any consultation with, or any information having been given to, the other parties that had previously collaborated so well on this very important issue. When we asked the Hon Phil Goff to explain why he did that, he was absolutely unable to do so. This bill demonstrates quite clearly an abuse of the parliamentary process by the Minister of Justice and by this Labour Government.

I want to refer to one of the other speeches on this bill made back in 1999 by the Hon Phil Goff, when he said—and he had been talking about the very concerning David Stephens case that appeared in the Hamilton District Court—“What was the judge to do? Would he put the person in jail? Was he to put the person in a facility designed for the mentally disordered? He did the latter, but he said that that was quite inappropriate and that Mr Stephens ought not to have been in that facility.” He continued—this is what the Minister of Justice, Phil Goff, said in 1999—“Again, I ask the Government, having put this legislation before the House, having put a companion measure before the House, whether the facilities are there so that those who are intellectually impaired or mentally impaired can be placed somewhere where they are safe personally, where the community is safe from actions they might take, but which is not a prison designed to punish, or a mental hospital designed to cure an illness. That is the key question that arises out of this legislation.” We have had 4 years of this Labour Government—which pointed out that the key question arising in respect of this legislation is the provision of mental health facilities—yet we have a mental health crisis in this country because of that Government’s absolute negligence in this area of mental health.

Just a few minutes ago we heard Mr Mark Peck, the member for Invercargill, wittering away inanely about why the various spokespersons from National have not taken part in this debate. He must be reminded that a former Minister of Health, the Prime Minister, has had nothing to say about this legislation. That shows how much she cares about mental health. She is the person who, when in Opposition, was very concerned about mental health facilities. Yet we have a mental health crisis in New Zealand right now. The Minister of Health has not partaken in this debate. That shows how much she is concerned about mental health—and we have a mental health crisis right now.

💬 David Benson-Pope: She’s in New York.

Well, that is the problem. Four years ago when National was in Government the Labour Opposition was saying that there was a problem with mental health. Yet every day we hear huge concerns being expressed about the lack of mental health provisions in this country, and that falls fairly and squarely, after 4 years, on this dilatory Labour Government.

I want to refer to the explanatory note of the Supplementary Order Paper, which is extremely out of order in having been—

💬 Jill Pettis: He’s gone very quiet.

Once again we are hearing some very inane iterations from the Labour Government benches on this hugely important bill—particularly where we have an explanatory note that is so misleading. One of the points of that Supplementary Order Paper, which has been put in under urgency, is that it 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.”

We have heard time and time again about the injudiciousness of such a move in the present climate in New Zealand. We have had desperately tragic cases occurring, yet once again this Labour Government is prepared to put through a Supplementary Order Paper in a great deal of hurry, in circumstances where the Opposition had been totally prepared to collaborate with it. Instead, the Government has put something in that Supplementary Order Paper that will probably put the lives of New Zealanders at risk in the future. It has made the point that the paramount consideration must be given to the public, and has failed to point out that it is also hugely important that enormous account is taken of the individual concerned.

I raise a point of order, Mr Speaker. I did not want to interrupt my colleague’s speech, but during the course of his delivery I overhead the junior Government whip, Jill Pettis, make a claim that one of my colleagues was on someone’s payroll, which is quite unparliamentary and not acceptable. I take exception to that, and she should be asked to withdraw and apologise.

💬 Mr SPEAKER: Yes, she will do so.

💬 Jill Pettis: I withdraw and apologise.

It is my pleasure to take a brief call on this bill. As my colleague Sue Bradford said last evening, this bill has been around for a long time, and it is long overdue. We look forward to its implementation, and we take pleasure in supporting it.

Well, good morning, good morning, good morning to listeners out there in radio land. I just want to tell them that the speaker who spoke immediately before the member who has just resumed his seat was “Paul from down south”. “Paul from down south” is actually Paul Hutchison, who comes from somewhere around Waikato. He is so highly profiled in the National Party that his own leader, at a recent function in Remuera, could not remember his name and referred to him as “Paul from down south”.

💬 Mr SPEAKER: We do not do that in the House. We refer to members by their name in the House.

I asked Mr Hutchison, by way of—

💬 Hon Member: Dr Hutchison.

—Dr Paul Hutchison. I asked him a question, by way of an interjection—and I did not think I was asking anything untoward, at all—

💬 Mr SPEAKER: I have ruled on that matter. The member will now come to the bill.

I do want to say that this a very good bill, and for all the bleating, whingeing, and whining that has been coming from the Opposition side of the House about how long it has taken for this bill to be progressed through Parliament, those members have done nothing but delay it. This is a good bill, and the best thing that we can do is to get it passed. I recommend we do that as rapidly as possible.

I do not think I need to use the word that is banned in this Parliament. I think that even the public would know what a load of untruth that statement was. How did the Opposition delay this legislation? This necessary and important legislation was introduced into the House in 1999 by the very capable Minister of Health, under the very responsible National Government in 1999. It was examined by a very diligent, very good Health Committee that had on it esteemed colleagues like Dr Lynda Scott, Dr Paul Hutchison, Roger Sowry, and others. Those members are very capable. They examined the legislation, improved it, and made it more workable. But when was it reported back to the House? It was reported back in 2001. It sat on the Order Paper for 2½ years, but Ms Jill Pettis says the Opposition delayed the passage of the legislation. The Supplementary Order Paper was introduced in this House last night, at 11 p.m. I think the public would be very concerned that a junior whip in a minority Labour Government had not bothered to read the legislation and could not say a thing about it. She could not tell us what was in the 44-page Supplementary Order Paper.

The delay in the passage of this legislation—legislation that is very necessary—was entirely the fault of the minority Labour Government. Last night we were told briefly by the Minister, the Hon Phil Goff—when trying to explain to us the reason for the late introduction of a 44-page Supplementary Order Paper, which is about the same size as the original bill—that “things have changed”. The legislation that this bill is part of no longer exists; therefore, the legislation had to be amended to become a stand-alone bill. Of course, none of us was surprised. Only the minority Labour Government would have thought the world stood still for 2½ years while the legislation languished on the Order Paper. But things have moved on.

The senior Government whip is chipping away. I wonder what message his constituents sent him to Wellington to deliver, because he never seeks the call, never makes any constructive comments, and just chips away. He has nothing to show for his representation. Last night we were told that, apart from this Supplementary Order Paper being necessary to re-format the legislation to become a stand-alone bill, there was substantial change. In the original legislation there was a requirement that when persons are found unfit to stand trial, or are acquitted on account of insanity, they must be remanded to a hospital or facility while inquiries are made to determine how they should be dealt with. We were told by the Hon Phil Goff that changes have to be made to the legislation—that it cannot be made compulsory—otherwise it would breach the New Zealand Bill of Rights Act in respect of human rights. We knew that the Health Committee had examined the original bill that had this compulsory requirement. It was cleared by the Human Rights Commission, and I understand that the legislation also passed the New Zealand Bill of Rights Act.

How can the Minister come to this House in the third reading, and say—after the Health Committee had received and heard submissions from the Human Rights Commission and the bill had satisfied the requirements of the New Zealand Bill of Rights Act—that those requirements, in effect, need to be changed; otherwise, they would be in breach of various pieces of legislation? It is simply not credible to accuse the select committee of not doing a proper job; nor is it credible for the Minister, in the House, to accuse the Human Rights Commission and other officials who cleared those provisions contained in the original bill. It remains a mystery to the House why the Minister brings about that change in the eleventh hour without disclosing to us the real reason behind it. If the Minister does not explain in full to us about the changes, I am afraid further grievances will be caused mentally impaired individuals, who, as we have heard recently and throughout the last 4 years, have been brought before the court for conduct that, at that stage, they cannot be held responsible for. There was public outrage. The public always blames the individual, because they find it frustrating.

This change puts the hard decision back to the court, instead of a clear message being sent by this Parliament to say that, while inquiries are being made, those individuals should be remanded in a secure place to protect themselves from themselves and to protect others from them. The Minister, once again, is taking the easy option. He has put the difficult task and decision on to the court. I find it extremely disappointing that this necessary piece of legislation, which was introduced to the House 4 years ago and examined by the Health Committee with diligence and responsibility, has came back to the House after sitting on the Order Paper for 2½ years, and then has had major changes introduced to it without the reasons for them being properly explained to the House. When in future a similar tragedy happens, I hope the Minister will remember what he has done. I think the situation is very unsatisfactory on two grounds: abusing the parliamentary process, and bringing in substantial changes without Parliament being briefed in full. So it is with extreme disappointment that I have taken part in this third reading of this bill.