Rights for Victims of Insane Offenders Bill — Part 1 Amendments to Criminal Procedure (Mentally Impaired Persons) Act 2003, and Schedule 1

The House is in committee on the Rights for Victims of Insane Offenders Bill. We come first, members, to the debate on Part 1, this is the debates on clauses 3 to 7B, and Schedule 1—“Amendments to the Criminal Procedure (Mentally Impaired Persons) Act 2003”. The question is that Part 1 stand part.

Thank you, Madam Chair. There seems to be a little procedural change that we weren’t expecting, so apologies to the committee. I just want to put on record the changes that were made at the Justice Committee, so that there is some context in terms of how this debate will go for the rest of the session.

This bill has had a start of a committee of the whole House. It was on 1 July 2020 referred to the Justice Committee. It had unanimous support from all parties in Parliament, and there was a significant amount of work by the select committee and the determination of the chair that we could have a bill that all parties would continue to support. I want to put on record my thanks to the Justice Committee chair, Ginny Andersen, for the professional and very deliberate way in which she chaired the select committee to ensure that we had time to consider the issues during the select committee.

On 16 April 2021, it was reported back to the House with extensive amendments agreed by the select committee. They were unanimously accepted in the second reading on 12 May. However, on 24 May, the Chief Justice wrote to the Attorney-General raising concerns about the implications of some of the amendments that had been agreed. One of the key areas raised was the amended wording of the proposed verdict. I tabled Supplementary Order Paper 52 at the time, in response to some of the Chief Justice’s concerns. However, on 30 June, the bill was referred back to the select committee with the instruction that the committee consider the Chief Justice’s advice on the bill.

We requested advice on the original verdict—the verdict the select committee chose and the verdict used in New South Wales. The bill as introduced said, and I quote, “the acts or omissions are proven but the defendant is not criminally responsible on account of insanity”. The select committee amended the verdict to “proven but insane”. So we sought officials’ advice on both the use of either of those options and the New South Wales verdict of “act proven but not criminally responsible”. Officials provided advice on three other alternatives. We have landed on a compromise, and that is in the bill that we are debating in the committee of the whole House today, and that says “act proven but not criminally responsible on account of insanity”, which meets the needs of all parties: victims, those who are facing charges, the judiciary, and Parliament.

My thanks to officials in the Parliamentary Counsel Office for getting this done so promptly, and for the unanimous cooperation of the members of the select committee, who worked so hard to get to a position that we could all agree with.

Madam Chair, thank you very much for the opportunity to speak on the bill. Look, I’d like to, firstly, acknowledge the Hon Louise Upston as the member in charge of the bill for bringing such a weighty issue before this Parliament, one that’s taken a considerable amount of work from members from across both sides of the House.

I’d like to also briefly acknowledge the submitters. I think that during the select committee stage of the bill, I heard probably some of the most harrowing and difficult stories from those submitters who came forward to share their stories, and I would like to put it on the record to acknowledge that effort and how difficult that was—for those family members of victims as well. I’d like to also generally acknowledge victims of crime. This is a bill that’s very much attempted to give greater justice to the victims of crime and to carve out greater space within the criminal justice system for the rights of victims.

This bill is an ambitious one, as it’s taken on two very complex areas that I can see that the debate going forward in the House will cover, and I’d like to outline those two areas. The first being balancing the rights of victims alongside meeting the needs of the legal requirements of the criminal justice system and doing that in a way that meets those needs, but also provides for victims in the courtroom space. Secondly, it also strikes a balance between the mental health needs of the offender and the needs of the victim and their family; improving the interaction between our mental health system and also our criminal justice system, which is no easy feat.

So as we’ve heard already from the member in charge of the bill, this bill has already received a second reading. An important recap is to recap the legislative process to date as the passage of the bill has not been a typical one. The critical part of this bill has been the verdict that is read out in the courtroom. So the initial attempt was to address the verdict, which was read out as “not guilty on account of insanity” and those words “not guilty” were the words that were so hurtful to victims and families of victims who were having to hear “not guilty”. When the committee initially heard those concerns of submitters, we took advice and attempted to strike that balance between the needs of victims and the requirements of law.

After the committee had reported back to the House, as already outlined, the Chief Justice wrote to the Attorney-General highlighting concerns regarding changing to the definition the committee had arrived at, and that was “proven but insane”. In particular, there was real concern raised around using that word “proven”, and that goes right to the heart of requirements for mens rea and actus reus in order for a crime to be proven. The Chief Justice emphasised the fundamental legal principle underpinning the finding of not guilty on account of insanity, and that is that the defendant by definition is not guilty because of that mental element, that mens rea, and the element of the offence had not, in fact, been proven. On the other hand, the central purpose of the bill outlined by the member is to avoid the victim and their family hearing the words “not guilty”. So this was a difficult balancing act, and at this point the bill was referred back to the select committee for a second time to have another crack at striking that balance and getting that right.

So where the committee has arrived at is “act proven but not criminally responsible on account of insanity”. While that’s a bit of a mouthful, the committee feels and has had good advice that that lands in terms of meeting those legal requirements for the criminal process, as well as sitting well with victims of crime and those families who will be sitting in the courtroom when the process is heard. While it’s been a difficult balancing act, I think we’ve got there in the end.

I’d like to acknowledge too the role of Simon Bridges, who was the lead spokesperson from National, who actually took his legal background and put it to good use by trying to assist in finding that middle road.

The committee considered a number of options, and what we’ve really arrived at now is we’ve completed that consideration and it’s really pleasing to see that the committee has reached a unanimous position on the way forward. So this is where we are now.

I’d like to continue on further if possible and continue here. I would like to continue by outlining why Labour supports the bill. I think it’s important to have that there—

Debate interrupted.

Point of order. I apologise for interrupting the debate, but I seek leave to report progress and sit again presently.

Motion agreed to.

House resumed.

The committee has considered the Rights for Victims of Insane Offenders Bill and reports progress.

The Chair moves accordingly—and that is that the committee has reported progress on the bill and has sought leave to sit again presently.

Motion agreed to.

The House is resumed. I should have said that earlier.